Religious endorsement posing as free speech fools no one

Tuesday, June 2, 1998

Perhaps convinced that inmates indeed can run the asylum, two federal courts recently have concluded that high school students can appropriately solve the thorny constitutional issues surrounding prayer during graduation ceremonies.

The courts’ rulings mark the latest in the now-annual legal battles among parents, students, school administrators and religious groups over whether public high school graduation ceremonies may include prayers and other religious references. At odds are core First Amendment principles: free speech and the right to practice religion versus the separation of church and state.

The U.S. Supreme Court probably thought that it had resolved the issue in 1992, when it held that public school officials could not direct that prayers be included in graduation services. Since that time, however, supporters of school prayer have argued that the high court’s ruling does not prohibit student-led prayer. In recent decisions, the 9th Circuit Court of Appeals and a federal district court in Florida accepted this argument. These courts reasoned that school district policies that allow students to decide the content of their graduation speeches are consistent with First Amendment free-speech principles, even if the students include prayers that would be prohibited if directed by school officials.

These rulings are troubling for a number of reasons. First, they abdicate to students the constitutionally vital role of protecting religious minorities from public religious indoctrination. As a result, prayer offensive to some undoubtedly will occur. In the school district that generated the 9th Circuit Court of Appeals case, for example, the student body is 90 percent Mormon and the graduation ceremonies typically have included opening and closing prayers, religious references in student speeches and religious songs. The First Amendment’s requirement that church and state remain separate was drafted specifically to ensure that 90 percent majorities do not impose their religious beliefs on 10 percent minorities. From the perspective of the minority, it matters little whether the religious indoctrination is led by school officials or by students acting with the school officials’ smiling approval.

The advocates of student-led prayer and the courts that agree with them argue that free-speech graduation policies do not endorse religion. Because the students are free to say whatever they deem appropriate, the argument goes, the choice to include a religious reference or a prayer is the student’s, not the school officials’. The minority, therefore, cannot reasonably understand a student’s choice to constitute a public endorsement of religion.

The hypocrisy of this argument is a second problem with these rulings. Many, if not most, of the schools wrapping their graduation prayers in the First Amendment’s guarantee of free speech do not hesitate to regulate student speech in other contexts. Some may regularly control the content of the student newspaper. Others may adopt dress codes. All undoubtedly prohibit pornography, racially insensitive remarks and other speech that would disrupt the schools’ educational mission.

These types of regulation may in many cases be appropriate. A high school is not a public forum in which a chaotic marketplace of ideas must be allowed to thrive. The fact that school officials regulate student speech in all contexts other than graduation ceremonies, however, is a strong endorsement of the graduation speech. This endorsement is made even stronger because almost everyone recognizes that school officials granted this freedom specifically to evade the 1992 prayer ban. The endorsement is further solidified by the school administrators’ approval of the speakers, who, because of their academic success, are perceived to have the respect, trust and admiration of the school community.

A third troubling aspect of these cases is that the free-speech policies reinforce the “what’s-the-big-deal?” attitude of many in the religious majority. Despite the fact that the First Amendment creates wide spheres of public and private space in which the religious majority can exercise its religion free from interference, some in the majority are determined to expand those spheres whenever and wherever possible, even if they knock down the wall between church and state in the process. What’s the big deal, they ask, if some non-believers have to sit through a short graduation prayer? What right do they have to ruin the ceremony for the rest of us? What’s the harm?

If graduates have learned anything during their four years in high school, they should be able to answer these questions. They should be able to explain how religious intolerance and persecution inspired the drafting and adoption of the First Amendment. They should be able to explain how the First Amendment’s guarantee that church and state remain separate has allowed multitudes of religions to develop and thrive in the United States. They should be able to explain that the preservation of all freedoms depends upon the ability to elevate the fundamental rights of the minority over the will of the majority.

As long as the law in this area remains unsettled, school officials and judges likely will continue to give students the right to lead prayers during their graduation ceremonies. The rest of us should hope, however, that the students’ education gives them the knowledge, understanding and courage to refuse to do so.