It is impermissible for a school to financially support, organize, or have direct influence over a baccalaureate service. Below are a list of things to look for in a baccalaureate service that might cause an objective observer to believe that a school is sponsoring the event. If you become aware that any of the scenarios described below are taking place, you may use our handy web form to report a church/state violation.

What to Look for:

Is the school organizing the service?
This is a clear violation of the Constitution. School employees may not organize or help organize a baccalaureate service while working in their official capacity. This means that school employees should not be setting the date, time, or location for a service, should not be actively recruiting students to organize a service, and should not be involved in other matters related to the service, such as designing the program or selecting bible passages to be read at the event. Furthermore, the school should not set aside class-time to allow students to organize a service. 

Is a private party holding the service on school property?
If a school rents its facilities to community groups, generally it may not deny equal use of its facilities to religious groups. For more information on this issue specifically, consult our FAQ on Churches Renting Public Schools. If you believe that a school has abandoned its normal facilities rental policy and granted a religious group free use of school property to conduct a baccalaureate service, request verification from the school district that payment was made or contact FFRF for assistance. Use of school facilities for a baccalaureate service is also a factor to be considered by a court when determining if a baccalaureate service would appear to a reasonable observer to be school sponsored. This means that if a service violates some of the other topics covered in this FAQ, holding the service on school property may also be a violation.

Has the school financially supported the service?
This is another clear constitutional violation. Beyond overt financial support, a school might be indirectly subsidizing a baccalaureate in a number of other impermissible ways. Check to make sure that the school has not allowed the party sponsoring the baccalaureate use of school facilities at a lower cost than any other non-school group. (See our FAQ on Churches Renting Public Schools). Additionally, make sure that programs or advertisements for the event were not printed using school resources.

Are school employees participating in the service within their official capacity?
School employees may attend a baccalaureate service as general observers, but may not otherwise lend support to the event. Employees may not read speeches, give awards, or hand out programs at a service while acting in their official capacity as a public school employee. It would also be inappropriate to reserve special seating for school employees at the event. 

Is the school choir or orchestra performing at the event?
A school music teacher may not use in-school learning time to prepare religious music specifically for a baccalaureate performance or for any other religious service. Courts have held that public school choirs may learn religious music if it has educational value, but may not be taught religious songs specifically for their religious content or specifically for performance at religious services. Talk to the school choir director to ensure that all music being taught during school hours is educational in nature and is not being taught solely for performance at religious services.

Students participating in a school music group may not be compelled to perform at a religious service and may not be adversely affected for choosing not to attend. No student’s grade may be affected for choosing not to perform at a service.

Are there other indications of school sponsorship or involvement?
If the baccalaureate event is privately sponsored, as indeed it must be, then there should be nothing indicating that the school had a hand in organizing the event. For instance, there cannot be district information or a school seal on the baccalaureate program. Also, policies regarding baccalaureate should not appear in the school’s student handbook and the school cannot retain the authority to bar students from attending baccalaureate for disciplinary reasons. The school must take steps to disassociate itself from the private event to avoid the appearance of government endorsement.

STATE OF THE LAW: SCHOOL SPONSORSHIP OF BACCALAUREATE SERVICES

Some guidelines on how to conduct baccalaureate services can be inferred from the Supreme Court’s decisions concerning religion in public schools. The Supreme Court has held that a school’s “sponsorship of prayer at [a] graduation ceremony is most reasonably understood as an official endorsement of religion” and is therefore barred by the Establishment Clause. Lee v. Weisman, 505 U.S. 577, 630 (1992). That holding has been understood to apply more broadly to any school-sponsored prayer or religious event, including so-called “student-led” prayer. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 313 (2000) (holding that the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer). It is generally understood, and courts have found, that a baccalaureate is by nature a religious event involving prayer. See Tanford v. Brand, 932 F. Supp. 1139, 1145 (S.D. Ind. 1996) (observing that a baccalaureate has “religious force”); Verbena United Methodist Church v. Chilton County Bd. of Educ., 765 F. Supp. 704, 705-06 (M.D. Ala. 1991) (describing a baccalaureate service as “characteristically includ[ing] speeches, prayer, and songs with a Christian theme”). Thus, a public school may not affirmatively sponsor a baccalaureate.

To determine if a school has crossed the line drawn by the Establishment Clause, courts apply the second prong of the Lemon test to determine if a challenged practice has “the effect of communicating a message of government endorsement or disapproval of religion.” Lynch v. Donnelly, 465 U.S. 668, 692 (1984). In other words, a religious activity is considered state-sponsored if “an objective observer in the position of a secondary school student will perceive official school support for such religious [activity].” Bd. of Educ. v. Mergens, 496 U.S. 226 (1990). Courts have noted that “a ceremony to honor a public high school’s graduates[, such as baccalaureate,] is vulnerable to carrying with it an aura of school affiliation.” Verbena, 765 F. Supp. at 712. 

The U.S. Department of Education has released guidelines to help schools know what is permissible at baccalaureate events. The guidelines state that “teachers may participate in their personal capacities in privately sponsored baccalaureate ceremonies,” however, “[s]chool officials may not mandate or organize religious ceremonies” and “a school may disclaim official endorsement of events sponsored by private groups.” U.S. Dept. of Educ., Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools, 68 Fed. Reg. 9645 (Feb. 28, 2003).

Factors to Consider: by Appeals Circuit

Most federal circuit courts have not directly addressed the issue of school sponsorship of baccalaureate services. District courts that have considered the problem have identified a variety of different practices that impermissibly cross the line.

Eighth Circuit
The Eighth Circuit Court of Appeals (which encompasses Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) held that a baccalaureate was effectively school sponsored when school employees acted as “senior class sponsors,” supervising the planning of the service, and additionally designed and distributed the service program. Warnock v. Archer, 443 F.3d 954, 955 (8th Cir. 2006). The court additionally found it relevant that baccalaureate programs were printed using school resources. Id.

Within the Second Circuit
A district court (in New York) within the Second Circuit (which includes Connecticut, New York, and Vermont) held that a baccalaureate service could permissibly be held in a rented school gym.Randall v. Pegan, 765 F. Supp 793 (W.D.N.Y. 1991). In holding that the situation was sufficient to dispel any impression of state sponsorship, the court noted that: the event was sponsored by a student group who had paid to rent the gym, Id. at 794, the school board had formally and publicly disassociated itself from the service, Id. at 796, the school had cancelled its order of programs and refused to financially support the event, Id. at 796, and no district personnel were involved in any aspect of the service, in official or personal capacities. Id. at 796. 

Within the Third Circuit
Within the Third Circuit (which encompasses Delaware, New Jersey, Pennsylvania, and the Virgin Islands), a court (in New Jersey) found that a school effectively sponsored a baccalaureate, even though the event was officially sponsored by a private party, when the school set out the date, time and format for the service, organized the content of the service, had students vote in school on whether to have the service, and retained control over whether students could attend the service. Carlino v. Gloucester City High Sch., 57 F. Supp. 2d 1, 22-23 (D.N.J. 1999). The court also noted as significant the proximity of the service to the school-sponsored graduation ceremony and the fact that the school superintendent had referred to the two events in a way that suggested that they were both part of commencement exercises. Id. at 23.

Within the Tenth Circuit
In the Tenth Circuit (which encompasses Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming), a court (in Wyoming) found it significant that a school’s official choir and orchestra participated in a baccalaureate service and that the school produced a single written announcement for both baccalaureate and graduation. Shumway v. Albany County Sch. Dist., 826 F. Supp. 1320, 1327 (D. Wyo. 1993) (holding ultimately that the service could permissibly be held in the school gym since it was privately sponsored). 

Within the Eleventh Circuit
In the Eleventh Circuit (which includes Alabama, Florida, and Georgia), a district court (in Alabama) ruled that a baccalaureate service could be held in a rented school auditorium after requiring the school board and high school to “take steps to disclaim any official connection to the event in their communications with students, parents, school employees, and other members of the community.”Verbena United Methodist Church v. Chilton County Bd. of Educ., 765 F. Supp. 704, 713 (M.D. Ala. 1991) (noting Plaintiff’s recommendation that a disclaimer of endorsement could be “communicated via newspaper or radio advertisements, as well as notices posted in the school and distributed to students and parents.” Id. at 714 n.24). The court also noted that no school officials would participate in the service, “in the sense of doing any more than attending it as a member of the general audience.” Id. at 714 n.25.

Researched and written by Sam Grover, FFRF’s Legal Intern for Summer 2010
Posted December 2010