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Published in Print: June 3, 1998, as Appeals Court Allows Student-Led Graduation Prayers

Appeals Court Allows Student-Led Graduation Prayers

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A school district that allows the top four graduating seniors to speak on any topic during commencement exercises does not violate the First Amendment, even if the students elect to recite prayers or sing religious songs, a federal appeals court ruled last week.

The 3-0 ruling by a panel of the U.S. Court of Appeals for the 9th Circuit is the latest in the ongoing battle over graduation prayers. The San Francisco-based court said the policy of the 4,200-student Madison district in Rexburg, Idaho, passed constitutional muster because the content of the students' speech was not controlled by school officials.

"Under the Madison school district's policy, control vests in the individual students, not the state," said the May 27 ruling in Doe v. Madison School District No. 321.

The court upheld a federal district court that had rejected a challenge to the district's policy filed by a mother of two children in Rexburg, a heavily Mormon community.

The appeals court said the Madison policy was distinguishable from the clergy-led prayers struck down by the U.S. Supreme Court in its 1992 decision in Lee v. Weisman.

The 9th Circuit ruling cited three factors about the Idaho district's policy that allowed it to be upheld. First, it was students and not clergy who delivered any prayers. Second, the student speakers were chosen based on academic standing. And third, school officials gave the students broad latitude to choose the content of their speeches. The policy allows them to deliver "an address, poem, reading, song, musical presentation, prayer, or any other pronouncement."

"The significance of these features cannot be overstated," said the opinion by U.S. Circuit Judge Diarmuid F. O'Scannlain.

Stephen L. Pevar, a lawyer with the American Civil Liberties Union office in Denver, said his client has not wanted to be identified for fear of reprisal in the community.

Commencement at Madison Senior High School in Rexburg was scheduled for May 29.

Elsewhere on the graduation legal front, a federal district judge in Denver last month refused to issue an injunction that would have allowed two students to wear African kente-cloth sashes during their commencement exercises.

The two African-American seniors at Arvada High School in the 87,000-student Jefferson school district near Denver had hoped to wear the colorfully woven cloths during the ceremony on May 26. But the school's graduation agreement, which all seniors must sign, prohibits making changes to decorate a cap and gown.

The students, Enockina Ocansey and Aisha Price, sought an exemption from the rule from their principal, but they were turned down. Principal Ken Robke said in a letter that school officials wanted to preserve the unity of the ceremony, and that "while the kente cloth is a symbol of great dignity and respect, other individuals might choose to wear adornments intended to convey a viewpoint that others might find offensive."

The students and their families sued the district in state court, with the help of the American Civil Liberties Union. They cited their First Amendment right to free speech, as well as Colorado constitutional and statutory guarantees of free expression for students.

The district removed the case to federal district court, where U.S. District Judge Richard P. Matsch rejected the request for an injunction.

"I believe the unity purpose is a legitimate governmental interest here in the limitation of this ceremony," Judge Matsch said May 19 in a ruling from the bench.

Judge Matsch sent the state claims back to state court. Mark Silverstein, the legal director of the ACLU of Colorado, said the students accepted the ruling and wore their kente cloths before and after, but not during, commencement exercises.

The lawsuit will continue in state court, he said, because Ms. Ocansey's brother, Ezekiel, is also named in the suit and is just a freshman at Arvada High.

It is not unheard of for an employee to be fired for being chronically late to work. But in an unusual case, an arbitrator and a Pennsylvania appeals court have ruled that a district could not fire a custodian for arriving for work too early.

The case involved Randolph Mack, a custodian in the 2,000-student Springfield Township district near Philadelphia. Mr. Mack often arrived for work 30 to 40 minutes ahead of schedule, even though his principal and supervisor told him not to arrive more than 15 minutes early. They said the district's insurance company recommended such a policy for liability and safety reasons.

In January 1995, the district suspended Mr. Mack for five days for disregarding the directive. He continued to do so, however, arriving at work more than 30 minutes early on 11 occasions between January and April. He was fired.

Mr. Mack's union, the Springfield Township Educational Support Personnel Association, challenged the dismissal. An arbitrator sided with the employee and ordered him reinstated, stating that arriving at work early did not constitute "just cause" for termination.

The district appealed to a state trial court and won. But in an April 28 ruling, a three-judge state appeals court held that the arbitrator had the authority to interpret "reasonable" work rules and "just cause" for termination under the union's collective bargaining agreement with the district. The court ordered Mr. Mack reinstated.


Vol. 17, Issue 38, Page 7

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