Public school officials can avoid commencement prayer thicket

By K. Hollyn Hollman

Church-State Intersection
May 28, 2003

Every year at this time, the BJC receives inquiries about graduation prayers and baccalaureate services. This year's graduations come just a few months after the Department of Education issued new guidance on prayer in the public schools. The guidance seems to approve certain types of student-led religious expression, arguably going beyond what current case law allows. It is thus a good time to review the state of the law.

As the Supreme Court's most recent and thorough decision on graduation prayer, Lee vs. Weisman remains the benchmark for legal analysis. In that 1992 case, the principal of a Rhode Island middle school had asked a rabbi to give an invocation and benediction at commencement, giving the rabbi a set of guidelines to follow. The court struck the school's practice as an unconstitutional violation of the Establishment Clause because school officials impermissibly exercised control over the content of the prayer and coerced those who attended to participate in the prayer. By a 6-3 margin, the court highlighted some of the reasons that graduation prayer should be treated with caution. Specifically, the majority noted that while attendance at commencement was voluntary, the importance of the event meant that the state would be effectively coercing students into participating in prayer. By sponsoring a prayer at graduation, the state would send a message that those who did not agree with the prayer were not welcomed as full participants in the graduation.

In 2000, the court revisited the issue of school prayer, this time in the context of a student-led prayer at football games in Texas. In that case, Santa Fe Independent School District vs. Doe, the school facilitated the election of a student representative to offer prayers over the school public address system prior to football games. The court held the practice unconstitutional, emphasizing key factors that demonstrated school sponsorship of the prayer. Among these factors were the school's adoption of a pro-prayer policy, administration of an election for the student who would lead prayers, control over the pre-game program and public address system and encouragement of all students to attend the games.

While mentioning these two cases, the new Department of Education guidance explicitly states that schools cannot restrict religious expression by students at graduation as long as the school selects the student on neutral criteria and gives the student primary control over its content. We do not know if the Supreme Court agrees with the guidance, and lower federal courts have split on these issues. For example, the 11th Circuit upheld the election of a student representative to present an unrestricted "message" at graduation. The 3rd Circuit, however, struck down a policy allowing students to vote on whether to have a "prayer, moment of reflection or nothing at all." Recently, the 9th Circuit rejected a claim by a student who asserted that the school impermissibly restricted his religious speech at graduation.

So where does this leave us? In terms of the law, several questions remain. While Lee vs. Weisman involved clergy-led rather than student-led prayer, Santa Fe warns against any assumption that having students speak automatically protects the school from constitutional challenges.

Until the Supreme Court clarifies these issues, school administrators eager to avoid legal disputes would be wise to retain control of graduation exercises and avoid religious expression. A moment of silence during the ceremony can provide the kind of solemnization desired by students of various faiths without infringing on the rights of others. In addition, privately sponsored baccalaureate services allow students to celebrate graduation with full expression of religious messages and worship.

With these options, there seems little reason for schools to risk litigation by inviting students to deliver messages that may be interpreted as coercive prayer.