Pomp and Circumstance ... and Prayer
Public school officials who thought that the U.S. Supreme Court's decision last year banning school-sponsored prayers at graduation ceremonies would settle the matter are learning otherwise.
Dozens, perhaps hundreds, of communities across the nation this spring are again confronting the divisive issue.
"I think every school district in America is debating it,'' said Jay Alan Sekulow, the chief counsel at the American Center for Law and Justice, an advocacy group founded by the Rev. Pat Robertson, the prominent television evangelist and leader of the Christian Coalition.
In its 5-to-4 decision last June in Lee v. Weisman, the High Court ruled that it was an unconstitutional government establishment of religion for a school district to invite clerics to deliver prayers at graduation.
"The Constitution forbids the state to exact religious conformity from a student as the price of attending her own high school graduation,'' Associate Justice Anthony M. Kennedy said in his opinion for the majority. (See Education Week, Aug. 5, 1992.)
The ruling was a surprise to many who had thought the Court would craft a way to allow greater public recognition of religion in civic affairs. Many school officials simply hoped that the ruling would settle the matter once and for all.
While observers say most school districts appear to have ended the tradition of allowing local religious leaders to deliver invocations and benedictions, others have looked for other ways to retain a prayer or some other solemnizing element for their ceremonies.
Some, such as the Sheboygan, Wis., public schools, are replacing prayers with a moment of silence. Students in other districts will attend privately sponsored baccalaureate services this year held separately from the graduation ceremony.
The Fairfax County, Va., school district voted to end school sponsorship of such baccalaureate services, in keeping with the Lee decision. The district went even further, barring students from mentioning the separate ceremonies in their graduation invitations.
It is clear that there will be prayers at many graduation ceremonies this year, and they will most often be delivered by young people wearing caps and gowns.
At Wellsville (Kan.) High School, "the senior class voted unanimously to have students give'' an invocation and benediction at the May 22 ceremony, said George Stewart, the principal. "At the present time, we still plan to go ahead and do it.''
The sentiment at Wellsville High is typical of that being expressed by many proponents of graduation prayer: The Supreme Court may have banned officially sponsored prayers, but students are not government officials. They have free-speech rights, and they may choose to include a prayer in their graduation programs, according to lawyers on their side.
"There is a clear distinction between government speech endorsing religion and private speech endorsing religion,'' Mr. Sekulow of the A.C.L.J. said.
In April, the center mailed a bulletin to thousands of school officials maintaining that students have a right to include prayers in their graduation ceremonies. The Virginia Beach, Va.-based organization warned that a national network of legal "SWAT teams'' was prepared to meet with school officials "to inform them that student-initiated prayer is a constitutionally protected right.''
Among the cases cited by the bulletin was a decision by a panel of the U.S. Court of Appeals for the Fifth Circuit that backed student-initiated graduation prayer. Ruling last November, after the Supreme Court's decision in Lee, the Fifth Circuit Court's panel held that prayers that were initiated and given by students and were "nonsectarian and nonproselytizing in nature'' would not violate the establishment of religion clause of the First Amendment. (See Education Week, Dec. 9, 1992.)
The court essentially distinguished the facts of that case, Jones v. Clear Creek Independent School District, from the situation in Lee, where Providence, R.I., school officials invited the local clergy to say prayers and gave them a set of guidelines for composing nonsectarian blessings.
The Fifth Circuit Court said that "the graduation prayers permitted by [Clear Creek's policy] place less psychological pressure than the prayers at issue in Lee because'' students know the prayers "represent the will of their peers,'' who do not have the same coercive authority the Supreme Court majority found troubling in the Rhode Island case.
Although it is legally binding only in Louisiana, Mississippi, and Texas, the Fifth Circuit's decision has been circulated around the country by proponents of student-initiated prayer.
Advocates of strict separation of church and state, however, believe the Fifth Circuit's decision in Jones was wrong. They argue that the High Court's decision in Lee also would prohibit student-initiated and student-led prayers because such activities would still have the tacit approval of the school administration and the graduation would still be a school-sponsored event.
"It is clear the Fifth Circuit struggled to find some way to get around Lee,'' said Robert S. Peck, a legislative counsel for the American Civil Liberties Union. "What the A.C.L.J. has done is attempt to muddy the waters long enough to allow students to give prayers.''
In response to the A.C.L.J. bulletins, the A.C.L.U. has sent letters to 15,000 school superintendents explaining why it believes the Jones decision is wrong and why even student-initiated prayer violates the Constitution.
"When public schools reserve time at a graduation ceremony for prayers, they violate the Constitution by putting the power, prestige, and endorsement of the state behind whatever prayer is offered, no matter who offers it,'' reads the A.C.L.U.'s materials.
Americans United for Separation of Church and State and the American Jewish Congress have also sent memos to school officials arguing against student-led prayers.
Marc D. Stern, a lawyer with the American Jewish Congress, argued that the right to remain free of government establishment of religion should not be subject to a majority vote. He said that is exactly what happens when a senior class decides whether to include a prayer at graduation.
"Who [among students] is going to say no to prayer without risking a lot of animosity and hatred?'' he said. "Also, doing what students want is not a general rule of governance for our public schools.''
Review Said Unlikely
The Fifth Circuit's Jones decision has been appealed to the Supreme Court, but several lawyers said they doubted the Court would revisit the issue so soon after Lee.
Nonetheless, the National School Boards Association recently filed a friend-of-the-court brief urging the Justices to review the case.
"A religious war is being fought in this country'' between both sides of the prayer issue, the N.S.B.A.'s brief reads.
"Only this Court can solve this dilemma, ... thus saving the schools from the onslaught of litigation and public dissension on this very emotional issue,'' the brief concludes.
The High Court could announce as soon as May 24 whether it will review the Jones case.
Gwendolyn H. Gregory, the deputy general counsel of the National School Boards Association, said the group is not sure what advice to give its members.
"It's typical--schools are caught in the middle,'' she said. "We think they are fairly safe with a moment of silence, but the A.C.L.U. has threatened to sue even over a moment of silence.''
School officials "obviously risk a lawsuit no matter what [they] do,'' she added.
Indeed, it seems that no matter what position school districts take, they may end up in court.
Ripon (Wis.) High School this year decided to drop its traditional prayers by clergy at graduation, but the school board had approved a request by the senior class to have a student give the invocation and benediction.
However, the father of one student sued in federal court in March, contending that the prayers would violate his daughter's constitutional rights and would be offensive to her. The board dropped the prayers.
"There was fairly strong sentiment on the part of the board and many parents that students should have the right of determination,'' said Roland Alger, the principal at Ripon High.
"However,'' he continued, "the bottom line was that to pursue that course would have required time and money. The board was not willing to spend taxpayer dollars.''
Meanwhile, five students at Frankfort (Ind.) High School sued their school district this month when school officials allegedly told them student speeches had to be approved in advance and could not include prayers.
The officials were afraid of being sued by the Indiana Civil Liberties Union if they allowed student prayers, according to Kesha Woodruff, an 18-year-old plaintiff in the lawsuit.
The students and the district settled the lawsuit, with the district agreeing not to censor the speeches of students or other private speakers at graduations.
"They have had prayer here for so many years,'' Ms. Woodruff said.
"The majority of people find it very comforting. To a non-Christian, it
is not going to hurt them too bad to sit through it for a