Likewise, even student-initiated prayer violates the Establishment Clause. It is unconstitutional for school officials to invite a teacher, faculty member, member of the clergy, or student to deliver any sort of prayer, invocation, or benediction at public school-sponsored events, including graduations. See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000).
High school graduations are seminal events in a student's life. Attendance at graduation has been classified as highly coercive or practically mandatory in numerous court decisions. The purpose of a public school graduation is to celebrate the achievements of a student body – not to worship. The deliverance of prayers "alter dramatically the tenor of the ceremony, shifting its focus … away from the students and the secular purpose of the graduation ceremony to the religious content of the speaker's prayers." Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806, 816 (5th Cir. Tex. 1999).
In the 1992 Supreme Court case Lee v. Weisman, 505 U.S. 577 (1992), the Court struck down school policies of inviting members of the clergy to deliver prayers during invocations and benedictions at graduation ceremonies as a violation of the First Amendment's Establishment Clause. The lawsuit began after Merith Weisman's 1986 graduation ceremony in a public middle school in Rhode Island, when a Baptist minister instructed those in attendance to bow their heads in prayer and "thank Jesus Christ." Daniel Weisman, Merith's father and a professor of social work, sent a note of complaint to the principal, but he received no reply. In 1989, as his daughter Deborah Weisman's graduation approached, Daniel reminded the school about the Establishment Clause problem. He was informed that the school had arranged for a rabbi to give a message at the ceremony, ignorantly assuming that this would satisfy the state/church complaint of a Jewish family.
In 1991, the case reached the U.S. Supreme Court, which ruled in favor of the Weisman family. In affirming nearly four decades of precedent against school prayers, the high court ruled that prayers at public school graduations are an impermissible establishment of religion. Justice Kennedy wrote for the majority, "if citizens are subjected to state-sponsored religious exercises, the State disavows its own duty to guard and respect that sphere of inviolable conscience and belief which is the mark of a free people." Lee v. Weisman, 505 U.S. at 592. In response to the claim that the prayers were not state speech, Kennedy replied,
[The State's] involvement is as troubling as it is undenied. A school official … decided that an invocation and a benediction should be given; this is a choice attributable to the State, and from a constitutional perspective it is as if a state statute decreed that the prayers must occur. The principal chose the religious participant … and that choice is also attributable to the State … The degree of school involvement here made it clear that the graduation prayers bore the imprint of the State and thus put school age children who objected in an untenable position. Lee, 505 U.S. at 587, 590.
Allowing prayer at public school commencements, serves to impermissibly further the establishment of religion. To demand that a student forego his or her own graduation as the price of avoiding this state-imposed religious exercise is unfathomable, Kennedy concluded.
Daniel Weisman commented, "People shouldn't be able to live with themselves if they leave these violations unchallenged." The Weisman family was awarded FFRF's Freethinker of the Year Award in 1992.
The Court reaffirmed the policy of preserving the secular nature of high school functions even more recently in Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000). This case involved a school policy of electing a Santa Fe High School student to serve as student council chaplain. This student would then deliver a prayer (described as overtly Christian) over the public address system before each home varsity football game. One Mormon and one Catholic family filed suit challenging this and related practices as violations of the Establishment Clause, because the policy clearly favored the predominant Protestant viewpoint to the effective exclusion of non-evangelical students and audience members.
The District Court enjoined the Santa Fe Independent School District from continuing the policy of electing a student council chaplain. While the suit was pending, the District adopted a new policy permitting, but not requiring, student-initiated and student-led prayer at home games. The policy authorized two student elections: the first would determine whether "invocations" should be delivered at games, and the second would select the prayer officiant. After the students authorized such prayers and selected a spokesperson to conduct the prayer over the loudspeaker, the District Court approved the plan with the modification that the policy would only permit nonsectarian, nonproselytizing prayer.
In a 6-3 decision by the U.S. Supreme Court, Justice John Paul Stevens, writing for the majority, declared that student-led, student-initiated prayer at school events violates the Establishment Clause. Stevens addressed the District's rationalizations for the policy, which claimed the prayers were a student choice, and that unlike at a graduation ceremony, attendance at an extracurricular event is "voluntary." However, the Court concluded that the prayers were authorized by the school (a government agent) and took place on public school property at a school-sponsored event, thus reflecting the school's endorsement of the message and making the students' remarks public – not private – speech.
Furthermore, Stevens noted that the election mechanism was put in place by the District and "encourages divisiveness along religious lines in a public school setting." He wrote,
School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherants "that they are outsiders, not full members of the political community, and an accompanying message to adherants that they are insiders, favored members of the political community." Lynch v. Donnelly, 465 U.S., at 688 (1984) (O’Connor, J., concurring). The delivery of such a message–over the school’s public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer – is not properly characterized as "private' speech." Santa Fe, 530 U.S. at 309-310.
The Court stressed that students should not have to choose between attending school functions or avoiding prayer. "The Constitution, moreover, demands that the school may not force this difficult choice upon these students for it is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practice." Id. at 312.
To suggest that students who rightly object to prayer at school graduations should absent themselves from their graduation ceremonies would require "forfeiture of those intangible benefits which have motivated the student through youth and all her high school years. Graduation is a time for family and those closest to the student to celebrate success and express mutual wishes of gratitude and respect, all to the end of impressing upon the young person the role that it is his or her right and duty to assume in the community and all of its diverse parts." Lee, 505 U.S. at 595.
Lee, Santa Fe, and numerous other Supreme Court cases since the 1940s demonstrate that school-sponsored activities, including high school graduations, must be free from religious rituals, including prayer. The Court has continuously struck down formal and teacher- or school-led prayers in public schools. See, e.g., Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) (see above); Lee v. Weisman, 505 U.S. 577 (1992) (see above); Wallace v. Jaffree, 472 U.S. 38 (1985) (overturned law requiring daily “period of silence not to exceed one minute … for meditation or daily prayer.”); Abington Township Sch. Dist. v. Schempp, 374 U.S. 203 (1963) (declared unconstitutional devotional Bible reading and recitation of the Lord’s Prayer in public schools); Engel v. Vitale, 370 U.S. 421 (1962) (declared prayers in public schools unconstitutional); West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943) ("The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts."); and Jager v. Douglas County Sch. Dist., 862 F.2d 825 (11th Cir. 1989), cert. den., 490 U.S. 1090 (1989) (holding unconstitutional pre-game invocations at high school football games).
Public schools have a legal duty to remain neutral toward religion. By scheduling or allowing unlawful graduation prayers, schools abridge that duty.
What if the Students Vote to Include a Prayer?
Some schools have attempted to circumvent the ban on prayer at graduations by putting the decision to include a prayer up to a vote by the student body; however, this is also unconstitutional.
In Santa Fe (described above), the Supreme Court ruled that, "[a] student election does nothing to protect minority views but rather places the students who hold such views at the mercy of the majority. Because ‘fundamental rights may not be submitted to vote[,] they depend on the outcome of no elections…' " Santa Fe, 530 U.S. at 304-305 (citations omitted).
The non-religious are the fastest-growing segment of the U.S. population by religious identification: according to the 2008 American Religious Identification Survey, at least 15% of the national population identifies as non-religious. No matter how many students may wish for a prayer to be offered at graduation, the rights of minorities are protected by the Constitution and are not subject to a majoritarian vote. “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943).
What if a Student Leads the Prayer?
Schools often try to claim that their graduation prayers are legal because students deliver them rather than school officials, making the prayers "private, free speech" and not state endorsement of a religious message.
In response to one school's claim that a student-delivered invocation was private student speech, the Supreme Court pointed out, "These invocations are authorized by a government policy and take place on government property at government-sponsored school-related events." Santa Fe, 530 U.S. at 302. Such prayers, delivered over the school's audio equipment by school-sanctioned speakers who supposedly represent the student body, "[are] not properly characterized as 'private' speech." Santa Fe, 530 U.S. at 310.
This does not mean, though, that every reference to a student's religious beliefs within the context of a school graduation is necessarily violative of the Establishment Clause. Spontaneous references to an individual's personal beliefs may be permissible under certain circumstances, such as when school officials "open the [ceremony] to 'indiscriminate use,'…by the student body generally." Santa Fe, 530 U.S. at 303. However, allowing one or two selected students to speak or moderating/pre-approving the comments prior to delivery constitutes "selective access" – not "indiscriminate use" - and "does not transform government property into a public forum." Id.
What if the School Disclaims the Content of the Prayer?
A graduation ceremony comprises a single activity which is secular in purpose: celebrating students who have completed an educational milestone. A prayer delivered at a scheduled, school-sponsored ceremony has every outward appearance of a state endorsement of religion. In essence, schools are forcing students to choose between missing the highlight of their school years or subjecting themselves to these unconstitutional religious exercises.
Including a disclaimer in the graduation program does not magically transform prayers, invocations, or benedictions into protected, private speech. The schools maintain control over who is allowed to speak and often regulate what they are allowed to say – the prayers become, in effect, government speech, and government speech cannot violate the Establishment Clause, with or without a disclaimer. The inclusion of a disclaimer does imply, however, that the school is aware that the content of the speech is highly problematic.
What Can I Do?
Contact the school and request a copy of the program or other event schedule. If the program lists an invocation or benediction, that serves as a reliable indication that there will be an illegal school-sponsored prayer; however, the absence of an invocation or benediction segment in the program does not necessarily mean that a prayer won't be offered – it may only mean that the schools are obfuscating what they know to be an unconstitutional practice. Inquire as to whether prayers have been included in past graduation ceremonies and whether there is a plan to include them in upcoming ceremonies.
If students are permitted to make speeches, ask if the school officials review the speeches beforehand. Will members of the public be invited to speak? Requesting a copy of school board graduation policies is helpful in determining whether a school tends to provide a platform for prayer to a captive audience or whether it has explicit provisions appropriately barring prayers and sermons.
HOW FFRF CAN HELP
If, after reading the above information, you believe there has been or will be a violation of state/church separation, you may contact the FFRF for assistance in filing a complaint with the school district. Please contact us by filling out a report at http://ffrf.org/legal/report. If a violation is imminent, please phone FFRF directly during working hours at (608) 256-8900. It’s helpful to share any background information, such as how long this has been going on or what sorts of prayer have typically been delivered in the past.
Please provide specific and complete contact information about the offending speaker (if known), school, school district, a copy of or link to the program (if available), and the date of the graduation ceremony. Additionally, it is helpful to know about what communication, if any, you have had with the school district regarding the violation.
You can read more about FFRF's position of maintaining the wall of separation between state and church by barring prayer in public schools.
Written by Kristen Fox, FFRF Law Clerk – Summer 2011. Last updated 07/19/2011.