Court To Decide Constitutionality of Graduation Prayers

By Liz Schevtchuk Armstrong — March 27, 1991 3 min read

Washington--The U.S. Supreme Court agreed last week to decide whether prayers offered at public school graduations violate the First Amendment.

The case, Lee v. Weisman (Case No. 90-1014), could provide the Justices with an opportunity to lower the barrier between church and state, as the Bush Administration advocates in a brief filed in the suit. (See Education Week, March 6, 1991.)

Several of the Justices have expressed varying degrees of dissatisfaction with the test the Court has used for the past 20 years to determine whether a government practice sidesteps unconstitutional state establishment of religion.

Under the test, first announced in the case Lemon v. Kurtzman, the challenged practice must have a secular purpose, its primary effect must be one that neither advances nor inhibits religion, and it must not foster excessive entanglement with religion.

Federal district and appellate courts applied the Lemon test in reaching the decision that prayers offered by a rabbi during a 19894middle-school graduation ceremony in Providence, R.I., violated the First Amendment.

In its brief, the Administration urged the Court to “jettison” the Lemon test in favor of a new standard that would permit “a non-coercive, ceremonial acknowledgment of the heritage of a deeply religious people.”

Arguments are likely next fall, with a ruling by mid-1992.

Souter’s Views

The Court’s newest member, Associate Justice David H. Souter, apparently represents the swing vote that could determine the Lemon test’s fate.

Justice Souter’s views on the issue are unclear. He was not on the bench last June when the Court ruled 8 to 1 to uphold a federal law giving student religious clubs access to public high-school facilities. (See Education Week June 13, 1990.)

August W. Steinhilber, general counsel of the National School Boards Association, said he was “delighted” the Court took the case. The group had filed a friend-of-the-court brief urging such action.

Mr. Steinhilber noted that in public-school settings, “the differences between devotional programs and historical, ceremonial programs has never been clarified.”

He added, however, that if the Justices “look at the Lemon test and modify it, our principal concern is that they’ll reopen” the fractious debate over state aid to church-affiliated schools.

Douglas F. Bates, coordinator of school law for Utah, also applauded the Court’s decision to hear the case.

Mr. Bates, who drafted a brief for the National Association of State Boards of Education urging review of the case, said lower courts apply the Lemon test “and come out with really bizarre differences.”

“I think [the Justices] ought to say what it means,” he said.

While agreeing to take the Rhode Island case, the High Court last week declined to review Human v. Doe (No. 90-1193), involving lower-court rulings that struck down the Gravette, Ark., school district’s longstanding policy of allowing volunteer-led Bible study for grade-school children whose parents approved.

The district defended the Bible study as a nonsectarian activity and a means of encouraging values among children.

In other business, the Court ruled unanimously in United Auto Workers v. Johnson Controls (No. 89-1215) that federal civil-rights laws bar the company from denying women jobs that involve exposure to lead because the metal could threaten their fetuses if they become pregnant.

Other Action

According to the Court, the firm’s “fetal-protection policy explicitly discriminates against women on the basis of their sex.”

Also last week, the Court refused to review lower-court rulings in two special-education lawsuits.

In Kent City School District v. Rettig (No. 90-1088) a federal district court dismissed a complaint, one of numerous actions brought over the last 20 years by a mother on behalf of her son. An appeals court upheld the decision.

In Lester H. v. Chester Upland School District (No. 90-1210) a federal court awarded a handicapped child 30 months of compensatory schooling after finding that local school officials took too long to find him a suitable educational placement. An appeals court affirmed the ruling.

A version of this article appeared in the March 27, 1991 edition of Education Week as Court To Decide Constitutionality of Graduation Prayers