By Julie P. Samuels, Contributing Writer
Updated June 2007 by Scott Felsenthal
As May approaches every year, public schools grapple with the question of whether or not they may allow prayers at graduation ceremonies. Most religious prayers will not be permissible, especially in public elementary and secondary schools. However, as with most issues of the law, the answer is not that simple.
Rulings against graduation prayers
In the seminal case on the issue, the U.S. Supreme Court held that inviting adults from outside the school to deliver religious prayers at a public middle school graduation ceremony was unconstitutional.
In that 1992 case, Lee v. Weisman, a middle school customarily invited different members of the clergy to offer invocation and benediction prayers as part of the annual graduation ceremonies. Although the clergy chosen were of varying faiths, and the school district provided guidelines to assist in delivering nonsectarian prayers, the Court still found that inclusion of such prayers violated the establishment clause. The Court said the school had no business sponsoring prayers, selecting clergy or otherwise directing religious activities at a graduation.
The Court based its opinion in part on the fact that graduating students in effect would have no realistic choice but to participate in the prayers, even if they objected to them. The Court evaluated the importance of graduation ceremonies and determined that even though students could obtain diplomas without attending, attendance and participation were “in a real sense obligatory.” This obligation represented a subtle coercion into taking part in a prayer at graduation, the Court held, thus violating the establishment clause’s promise of no state-imposed religion.
Courts following the Lee decision have relied on that case’s coercion test as well as the Lemon test (established by the Supreme Court in its 1971 ruling Lemon v. Kurtzman), which sets out three criteria that must be met to satisfy the establishment clause: 1) the practice must have a clearly secular purpose; 2) its primary effect must neither advance nor inhibit religion; and 3) there cannot be excessive government entanglement with religion.
In 1996, the 3rd U.S. Circuit Court of Appeals, in ACLU v. Blackhorse Pike Regional Bd. of Directors, struck down a high school policy allowing students to decide if they wanted to include a graduation prayer, as well as to choose the kind of prayer and a student to give that prayer. The school also planned to include a disclaimer in the graduation program. In deciding that the policy was unconstitutional, the 3rd Circuit noted the amount of state control over the ceremony as well as the students’ coerced participation. The court also evaluated the Lemon factors and found that including a student-selected prayer did not have a secular purpose.
Because graduation prayers are seldom allowed, school administrators will commonly play an active role in deciding what constitutes appropriate content in student speeches.
The 9th U.S. Circuit Court of Appeals has held that a high school principal may retain the discretion to review student graduation invocations and speeches to ensure they are not “offensive or denominational.” In Cole v. Oroville Union High School Dist. (2000), student graduation speakers complained that the school violated their free-speech rights when the principal censored the religious content of what they wished to say. The 9th Circuit relied on both Leeand the 2000 Supreme Court case Santa Fe Independent School Dist. v. Doe in concluding that the school district would have violated the establishment clause by allowing the students in question to deliver their desired speeches. Since an “objective observer” would believe the school district had approved the content of the students’ words, the 9th Circuit reasoned, the speech and invocation in question could not be delivered at the graduation ceremony. (In Santa Fe, the Supreme Court found unconstitutional a policy allowing a student-led nonsectarian and nonproselytizing statement or invocation to be delivered at varsity football games.)
These decisions extend further than simply prayers — a district court in Indiana, in Skarin v. Woodbine Community School, held in 2002 that the singing of the Lord’s Prayer at a high school graduation was similarly not allowed when it was included for religious purposes.
Rulings favoring graduation prayers
Although courts ruling on this topic take Lee into account, some have found that Lee does not rule out other arrangements involving graduation prayer. In fact, at least four federal courts have distinguished graduation invocations and speeches from the one in Lee, and found them to be permissible.
In the 5th Circuit, a Texas school district won a 1992 case involving its policy allowing student-led invocation at graduation if the majority of the senior class voted to have one. The opinion in Jones v. Clear Creek Independent School District, 977 F.2d 963, said, “We hold that Lee does not render Clear Creek’s invocation policy unconstitutional.” The 5th Circuit affirmed that the policy required any invocation to be nonsectarian and nonproselytizing, and to be conducted only by a student volunteer. School officials merely permitted the prayers if the seniors wanted them, the court said. The justices reasoned that the policy in no way coerced students to participate in prayer because opposing students realized that the decision to include it had not been made by the school, but by the students. In applying the Lemon test, the court found that the policy passed constitutional muster because it was secular, neither advanced nor inhibited religion, and involved no excessive entanglement between the government and religion.
The 8th Circuit allowed recitation of the Lord’s Prayer at a high school graduation ceremony where a student’s father, who served on the school board, delivered the prayer without warning. In Doe v. Nelson (2003), the school had an informal policy of allowing speakers at graduation ceremonies; the court held this policy did not constitute enough state involvement to punish the school district.
In an important further finding, the court determined this prayer to be private speech and thus wholly protected by the First Amendment’s free-speech guarantee.
A federal district court in Florida, in Adler v. Duval County School Bd., held that, as noted in the First Amendment Center publication Finding Common Ground, “it may be possible for a school to provide a forum for student speech within a graduation ceremony, during which time prayer or religious speech might occur.” If school policy permitted a student to speak at graduation, for instance, and he or she expressed religious sentiments, the speech probably wouldn’t be found unconstitutional unless the school had suggested or encouraged the religious views, the court said. On appeal, in 2002, the 11th U.S. Circuit Court of Appeals upheld the decision but did offer a caveat that even when a policy was constitutional, students could still complain if the school district either didn’t implement the policy or did so incorrectly. It must be clear to the attending students that the speaker of religious sentiments is not speaking for the school or acting at the school’s behest.
In 2003, the Department of Education released guidelines mirroring the 11th Circuit’s decision. Those guidelines say that where
“students or other private graduation speakers are selected on the basis of genuinely neutral, evenhanded criteria and retain primary control over the context of their expression … that expression is not attributable to the school and therefore may not be restricted because of its religious (or antireligious) content. To avoid any mistaken perception that a school endorses student or other private speech that is not in fact attributable to the school, school officials may make appropriate, neutral disclaimers to clarify that such speech (whether religious or nonreligious) is the speaker’s and not the school’s.”
A federal district court in Utah, in Bauchman v. West High School, allowed a school to include religious songs in high school graduation ceremonies, finding that songs were part of the school’s curriculum, that music has a role in education beyond actual song lyrics, and many choral songs tend to be religious in nature. The 10th Circuit affirmed that decision in 1997.
In Virginia, a 2003 case in the 8th Circuit, Doe v. School District of the City of Norfolk, concerned a school district policy of allowing a school board member who was a parent of a graduating senior to make a speech at his or her child’s graduation ceremony. Without the prior knowledge of the school district officials, a board member making a speech recited a prayer. The 8th Circuit found no establishment-clause violation because in reciting the prayer, the school board member acted as a private citizen — thereby rendering the speech constitutionally protected. The court emphasized the oft-cited phrase articulated by former U.S. Supreme Court Justice Sandra Day O’Connor inBoard of Education of Westside Community Schools v. Mergens (1990): “There is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.”
In 1997 the 7th U.S. Circuit Court of Appeals, in Tanford v. Brand, 104 F.3d 982, declined to extend Lee’s holding to public university ceremonies. The 7th Circuit said mature college students did not require the same protections as those afforded to elementary and secondary students. In that case, many people chose not to stand during the ceremony’s benediction, showing that there was no palpable coercion.
The 6th Circuit, also in 1997, invoked the establishment clause in upholding a graduation prayer at Tennessee State University. In that case, Chaudhuri v. State of Tennessee, 130 F.3d 232, the court alluded to the maturity of college students, asserted that the professor who brought the suit had not been prevented by the prayer from practicing his own religion, and located a secular purpose in the prayer that enabled it to pass the Lemon test.
Prayers, even those nonsectarian in nature, will almost never be permitted at elementary school graduations, but probably will be acceptable at public university-level ceremonies.
The answer is not as clear with regard to secondary schools.
If the prayer in question appears to be sponsored by the state, exhibits at least the same coercive effect as the prayer in Lee, or fails the Lemon test, its inclusion in the ceremony will likely be unconstitutional. However, such prayers may be allowed when uttered by a student selected on a neutral basis to speak — such as a valedictorian chosen for having the highest grades — who decides on his or her own to express religious views, with no pressure from school officials to do so.
Julie P. Samuels, now an attorney, worked as a legal intern at the First Amendment Center while attending Vanderbilt Law School.