LEGAL COHHENT
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Lathrop & Clark LLP
is legal counsel to
the WASB.
BY
Lathrop
&
Clark
he US Supreme Court in L e e v.
Weisrnan~ set the standard for
determining the constitutionality
of prayer at school graduation
exercises. In that 1992 decision,
the court held that non-sectarian
prayers at a public school graduation offered by a rabbi selected by the
school principal were unconstitutional. The
court determined that such prayers violated
the First Amendment's Establishment
Clause because of 1) the state involvement
and 2) the obligatory nature of the students'
participation in the religious activities.
The court reasoned that the principal in
effect directed and controlled the prayers by
deciding that prayers should be given, selecting the clergy member to lead the prayer,
and advising the clergy member that the
prayer should be non-sectarian. Further, the
court rejected the concept that high school
graduations are voluntary in that graduation
is one of life's most significant occasions and
a student is not free to absent himself or herself from the graduation ceremony in any
real sense of the term "voluntary."
The legality of prayer at school-sponsored
events continues to be addressed in the
courts. This Legal Comment will discuss some
of the more recent school prayer decisions. 2
Coles v. C l e v e l a n d B o a r d o f Education. 3
The Cleveland (Ohio) Board of Education
since 1992 had a practice of opening its
meetings with a prayer. The impetus
behind the practice was the president's
hope that doing so would create a more
businesslike and professional environment.
Prayers were offered by members of the
clergy (mostly of the Christian faith) and
by the board president, a clergyman himself. The prayers often were overtly religious-sometimes referring to the Bible and
sometimes invoked "in Jesus' name." A student and a teacher sued the school board
contending that the board's opening
prayers violated the Establishment Clause.
The Sixth Circuit Court of Appeals stated
that this case put the court squarely between
the proverbial rock and a hard place-namely, the holding in L e e v. W e i s m a n that
opening prayers at high school graduation
ceremonies violate the Establishment Clause
and M a r s h v. Chambers4 in which the
Supreme Court ruled that opening prayers
are constitutionally permissible at sessions
of a state legislature. The court determined
that a school board, unlike other public bodies, is an integral part of the school system.
Since the function of a school board is
directed toward school-related matters, it
has a different type of constituency (namely
students} than other legislative bodies. As
such, the court found the school prayer
cases to be controlling.
The court also concluded that the board
prayers lacked secular purpose, had the
primary effect of endorsing religion, and
excessively entangled the government with
religion. The prayers had repeated references to Jesus and the Bible; the board
president was himself a Christian minister
who personally delivered the majority of
the prayers; and the setting was the public
body that constantly interacts with elementary and secondary school children. The
court held that under these circumstances,
any reasonable observer could conclude
that the school board was endorsing
Christianity. Thus, the court held that
ilaab
DECEMBER 1999 WISCONSINSCHOOL NEWS
31
the school board's practice in this case conveyed the message of government endorsement of religion and was unconstitutional.
Doe v. Madison School District No. 321. 5 An
Leg~ Comment is o ~ a d
to
ixo~au~gener~
~ m ~ o n . w ~ commentary,
as a se~ce to WASB member.
It stmuld not be relied tCx~nz~
k~a a ~ c ~ ~ ~
ad~ce is
m£~'ed, the see~oes of competent leg~ ~
s/:~ouldbe
obtained.
WISCONSIN
Idaho school district had a policy of inviting
at least four students who were selected on
the basis of academic standing to make an
uncensored presentation at the high school
graduation ceremony. The policy provided
that the format and content of the speech be
controlled solely by the student speaker. In
addition, the printed graduation programs
contained a disclaimer from the school district expressly disavowing any responsibility
for the content of the student's presentation.
A student challenged the school district's
practice on the basis that the policy allowed
students to inject prayers and religious
songs into the graduation program, thus
resulting in the school district's sanctioning
religious graduation ceremonies.
The Ninth Circuit Court of Appeals rejected this argument and held that the school
district's policy, on its face, was permissible. The court found that the school in this
instance did not exert significant control
over the religious content of the graduation
,SCHOOL NEWS
DECEMBER
1999
program. Of importance to the
court's decision was the fact that the
students who delivered the presentation were selected based on the purely neutral and secular criterion of
academic performance and had complete autonomy over the content of
the presentation. Thus, the court
concluded that control rested in the
individual students and not the state.
Further, the court found that the
policy was motivated by secular purposes including a desire to grant top
students the autonomy to deliver a n
uncensored speech. It did not have
the primary effect of advancing religion because by allowing any s p e e c h
a student chose it neither advanced
nor inhibited religion. Finally, the
court reasoned that the neutrality
of the policy toward religion avoided
excessive entanglement between
church and state that might be more
likely if the school sought to expunge
all religious references from the ceremony.
A d l e r v. Duvall C o u n t y S c h o o l Board. 6
Students challenged the school board's policy
permitting graduating students to decide on
whether to have unrestricted, student-led
messages at the beginning and dosing of
graduation ceremonies. The Eleventh Circuit
Court of Appeals determined that the policy
on its face violated the Establishment Clause.
The court found that the school board
had tremendous control over the graduation
ceremonies in that it rented the facilities,
told the graduating students what they
should wear, decided when the students
and audience would sit or stand, decided
the sequence of events, and designed and
printed the programs. The court determined
that the decision not to censor the message
that the elected students gave at the beginning and the closing of the graduation ceremonies failed to erase the overwhelming
control that the schools exerted over the
remainder of the ceremony. In fact, the
court noted that the students decided
whether to have a message at graduation
and who to deliver that message only
because school officials agreed to let them
~Schools cannot
circumvent the
Establishment
Clause simply
by delegating the
decisions about
prayer to a
majority of the
senior class. ~
decide that one question. Thus, the court
concluded that the delegation of the decision regarding a prayer message to the voting graduating students did not erase the
imprints of state control from the program.
Moreover, in analyzing the policy, the
court found evidence that the policy's intent
was to permit prayer. The court noted that
the m e m o r a n d u m embodying the policy was
entitled "Graduation Prayers"; the school
board had voted down a m o m e n t of silence
to permit these guidelines to remain in
place; and unlike a valedictory address, a
two-minute message at the beginning or end
of the graduation ceremony w a s more likely
to result in prayer. Thus, the school board's
policy did not pass constitutional muster.
Doe v. Santa Fe Independent School
D i s t r i c L 7 Students and parents challenged
a Texas school district's policy of allowing
student-initiated and student-led graduation
prayers. The district policy also provided for
a student-selected, student-given brief invocation or message to be delivered during
the pre-game ceremonies for home varsity
football games to solemnize the event, promote good sportsmanship and student
safety, and establish an appropriate environment for competition.
The Fifth Circuit Court of Appeals held
that the policy was unconstitutional. The
policy did not require that the prayers be
non-sectarian and non-proselytizing. The
court concluded that this omission resulted
in government-endorsed prayers that
lacked a secular purpose and had the illicit,
primary effect of advancing a particular
form of religion.
Further, the court rejected the argument
that the school district had created a limited
public forum in which private, religious
speech must be permitted. The court stated
that graduation invocations and benedictions were not the place for exchanges of
dueling presentations on topics of public
concern. Rather, they provided access to
only a very limited n u m b e r of speakers
chosen to deliver very circumscribed statements that under any definition were
prayers. The court held that this tightly limited access and range of permissible speech
precluded a finding that a limited public
forum was created.
The court also struck d o w n the football
game prayer policy finding that athletic
events are not conducive even to nonsectarian, nonproselytizing, religious expression. The court explained that football
g a m e s are hardly the sober type of annual
event that can be appropriately solemnized
with prayer. It should be noted that the
US Supreme Court has agreed to review
this decision.
Guidance to s c h o o l districts. The case law
on the issue of prayer at school events is
sometimes conflicting and undoubtedly confusing. The Establishment Clause does not
prohibit students from praying voluntarily
during free time in school. Rather, it prohibits school employees from requiring or
encouraging students to pray in school. The
vast majority of courts have found that most
policies allowing for prayer at school functions do not meet the constitutional requirements of separation of church and state.
Importantly, schools cannot circumvent
the Establishment Clause simply by delegating the decisions about prayer to a majority
of the senior class. A properly worded and
properly applied policy like the one in D o e
v. M a d i s o n may be constitutional so long as
school officials ensure that student speakers
do not represent that they speak on behalf
of or with the audience. When the Supreme
Court revisits the school prayer issue this
term, it m a y provide a more definitive
answer. Until that time, school officials
are safest in prohibiting school-sponsored
prayers at school events. ~)
References
1. 505 u.s. 577 (1992}.
2. For previous articles in Wisconsin School News
that discuss school prayer see "Supreme Court
Outlaws Graduation Prayer" (August 1992};
"Prayer at School-Sponsored Events: Stein
Weakened" (March 1990}; and "Prayer at
School-Sponsored Events: Think Before You
Pray" {December 1988}.
3. 171 F. 3d 369 (6th Cir. 1999}.
4. 463 U.S. 783 (1983}.
5. 147 F.3d 832 (gth Cir. 1998}.
6. 174 F.3d 1236 (llth Cir. 1999).
7. 168 F.3d 806 (5th Cir. 1999}.
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