Home » Take Action » Become a Student Activist » Case of the Month Archives » January 2000
Legal Issues in the Graduation Prayer Case
The key question in this case is whether the Duval school system has in fact endorsed religion by using policy that does not require prayer at graduation, but instead allows students to indirectly select prayer and then create and deliver a message that tends to be a prayer. To answer this question, two Supreme Court cases, Lemon v. Kurtzman and Lee v. Weisman, require an analysis of the policy's purpose and effect.
Under a seminal U.S. Supreme Court decision from 1991, Lemon v. Kurtzman, a government policy violates the Establishment Clause of the First Amendment ("Congress shall make no law respecting an establishment of religion...") unless it meets three specific elements: (a) it must have a primary secular purpose; (b) it must have a primary effect that does not advance or inhibit religion; (c) and it cannot result in an "excessive entanglement" of government with religion. A policy violates the Establishment Clause if it fails even one of these inquiries.
In Lee v. Weisman, a decision in 1992, the U.S. Supreme Court held specifically that use of sectarian paryers by clergy at high school graduations was unconstitutional.
The Duval schools' policy arguably constitutes an Establishment Clause violation because it was not created for a primarily secular purpose. Rather, the policy developed as a response to community pressure to maintain a prayer tradition at graduations in Duval County despite the Supreme Court's decision in Lee v. Weisman; it was written expressly to allow religious speech, although student-initiated, after Lee barred school-sponsored prayer. Duval school officials, therefore, designed the policy to promote religion by permitting prayer. It was even entitled a "Graduation Prayers" policy.
The Duval policy additionally can be argued to have the primary effect of advancing religion. From Emily Adler's perspective, for example, the Duval policy communicates government support and preference for religion because, by allowing student-led messages, it facilitates religious activity at graduation ceremonies. And in fact, most student messages under the graduation policy have been prayers and are often listed on graduation programs as "benediction" or "invocation."
In the interest of other First Amendment liberties, some religious activity will arise in the public context. But when the government compels even a religious minority to take part in religious exercises, the policy has a result that is at odds with the Establishment Clause. In Duval County, the policy has this effect because it involves the graduation ceremony-wan event that is itself mandatory for students. Beyond this inherent characteristic, Emily's and other seniors' coerced participation is a result of specific school-enforced rules on student and audience as the senior message is being presented.
A policy is thirdly unconstitutional if it causes the government to become overly entangled or involved with religion. One major question is derived from this Lemon test requirement: Is the government the true actor even though it does not require, choose, prepare or conduct a graduation prayer? The Duval school district, for example, contends it is not responsible for graduation prayers that students initiate and conduct. The countering argument is that the school board effectively controls all aspects of ceremony, including behavior and decorum, controls the time of the "messages" (two minutes), and the placement in the program and description of the messages (as "benedictions" and "invocations"). A significant consideration in this type of case is whether the school board still controls the decision to have prayer regardless of the fact that students decide upon, create and deliver the graduation prayer.
In defense of its graduation prayer policy, the Duval school system argues that its graduation prayer policy is indeed motivated by a secular purpose - to accommodate students' right of free speech. This issue turns in part upon the state control issue discussed above. In other words, are the prayers truly students' independent speech or do they reflect essentially a school board policy designed to specifically institute or facilitate ceremonial prayers?
The type of forum that a graduation ceremony provides is another factor that determines whether students themselves have a protected right to express their religious beliefs at graduation ceremonies. Individuals do not have an automatic right to exercise freedom of expression on all government property and in any government forum. If the property is a traditional or designated public forum, such as a public sidewalk or park, individuals have right to speak freely within that domain, unless the government has a compelling reason to restrict the individual's access to the forum. The school board's argument that the First Amendment requires a policy that permits both secular and religious student messages is consistent with Perry only if Duval public school graduation ceremonies constitute a similar public forum, open to all speakers on equal terms. The U.S. Supreme Court has not addressed the issue of whether a high school graduation ceremony is a public forum, but most courts that have considered that issue have held that it is not. A true public forum, for example, requires unfettered access for all who wish to speak, without regard to viewpoint. Part of the ACLU's position in this case is that a high school graduation ceremony cannot do that, and that the Duval school board's policy does not do that.
