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High Court’s Ban on Graduation Prayers Disappoints Districts

By Mark Walsh — August 05, 1992 5 min read

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The U.S. Supreme Court’s decision barring official prayer at public-school graduation ceremonies disappointed many educators in districts where the tradition has been strong, and some school officials say they will try to work around the ban.

At the same time, the ruling earlier this summer eased others’ fear that the Court would use the prayer case to alter or abandon its 1971 test for examining government actions regarding religion, thus opening the door to mandatory prayer or boosting religious-school vouchers.

In the final days of its 1991-92 term, the Court held 5 to 4 that school-sponsored prayers at graduation exercises coerce students to participate in violation of the First Amendment’s ban on government establishment of religion.

Officials at some public schools that held their graduation exercises after the June 24 ruling defied the Court and allowed prayers, according to press accounts.

Others said that they would follow the letter of the ruling, but that they still hoped to find ways to include prayer at graduation exercises.

“I think it’s wrong we have one person file a lawsuit and have the whole country make a change,’' Robert Slavens, the superintendent of the Prairie Heights school district in northern Indiana, said last week.

“This community is one that takes great pride that they believe in God,’' he added.

“I’m not defying the law. But as long as a prayer came from a student and was not put in by the administration or faculty, then I think it’s allowable.’'

Bradley P. Jacob, the executive director of the Christian Legal Society, said he believed the ruling left the door open for some forms of graduation prayer. His organization filed a brief in the case supporting prayer.

Mr. Jacob said Justice Anthony M. Kennedy’s majority opinion in the case, Lee v. Weisman (Case No. 90-1014), relied heavily on the facts that school officials had invited a clergyman to open and close the ceremony and that they gave him guidelines for nonsectarian prayers.

Mr. Jacob suggested that a prayer recited by a valedictorian “would almost certainly be constitutional.’'

Also, if a student committee controlled the graduation program and invited a speaker to pray, “that could very well be constitutional,’' he continued. “There is no government action there.’'

Gwendolyn H. Gregory, the deputy general counsel of the National School Boards Association, said one alternative would be to hold a non-school-sponsored baccalaureate service in a local church the night before graduation exercises. Justice David H. Souter endorsed that idea in his concurrence.

‘Religious Conformity’

Writing for the majority, Justice Kennedy declared that “the Constitution forbids the state to exact religious conformity from a student as the price of attending her own high-school graduation.’'

“No holding by this Court suggests that a school can persuade or compel a student to participate in a religious exercise,’' he added. “That is being done here, and it is forbidden by the Establishment Clause of the First Amendment.’'

Justice Kennedy’s opinion was joined by Justices Souter, Harry A. Blackmun, Sandra Day O’Connor, and John Paul Stevens. In addition to Justice Souter, Justice Blackmun wrote a concurring opinion.

Justice Antonin Scalia wrote a sharp dissent that was joined by Chief Justice William H. Rehnquist and Justices Clarence Thomas and Byron R. White.

The majority’s ruling “lays waste a tradition that is as old as public-school graduation ceremonies them el14lselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally,’' Justice Scalia wrote.

The Weisman case arose from a dispute over prayers offered by a rabbi during a middle-school promotion ceremony in Providence, R.I., in 1989.

A federal district judge ruled that the Providence district’s practice was unconstitutional, and enjoined its middle and high schools from including prayers in their graduation programs. His decision was upheld by the U.S. Court of Appeals for the First Circuit in 1990.

The Supreme Court affirmed the First Circuit Court in its ruling.

‘Lemon’ Test Intact

In a setback for the Bush Administration, the Court declined to use the case to rewrite church-state law to allow greater government accommodation of religion at public occasions.

The Administration and several religious groups had urged the Court to move away from the test for church-state issues it laid down in Lemon v. Kurtzman in 1971 and to adopt a more lenient test.

“We are very happy the Lemon test is left in place,’' Ms. Gregory of the N.S.B.A. said. “We were afraid that a number of precedents on aid to private schools would be in question if the test were changed in any way.’'

Although Justice Kennedy had criticized the Lemon test in previous decisions, he said a re-examination was unnecessary in this particular case. His opinion suggested, however, that the the Lemon precedent might yet be reviewed outside the context of public education.

Bruce Fein, a prominent conservative legal scholar, called the decision “wrong-headed.’'

“It teaches intolerance instead of tolerance,’' he said. “It says someone is being imposed upon if they merely stand up at a ceremony’’ to show silent respect for another’s religion.

Because Justice Kennedy “eschewed endorsing Lemon'' in his opinion, he may yet “come back and be the fifth vote to throw it out,’' Mr. Fein added.

Derek Davis, the associate director of the J.M. Dawson Institute of Church-State Studies at Baylor University, said that the prayer ruling “was consistent with prior decisions,’' but that it “leaves the Lemon precedent hanging.’'

“It looks like we are still about where we were a few years ago,’' with church-state law “teeter tottering’’ according to the changing makeup of the Court, said Mr. Davis, the author of a 1991 book about the High Court’s role in church-state issues.

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On June 29, the final day of its term, the Court announced that it would not review several education-related Establishment Clause cases it had put on hold pending its decision in Weisman. They included:

  • Jones v. Clear Creek Independent School District (No. 91-310). The High Court ordered the U.S. Court of Appeals for the Fifth Circuit to reconsider its ruling that no constitutional violation occurred when a student offered nonsectarian prayers at a Texas high-school graduation.

Morongo Unified School District v. Sands (No. 91-477). Lower courts had ruled in the case that a California district’s graduation prayers violated both the federal and state constitutions.

  • Roberts v. Madigan (No. 90-1448). Lower courts said it was improper for a Denver public-school teacher to keep a Bible and other religious books on his desk and to silently read the Bible during class.
    Bishop v. Delchamps (No. 91-286). Lower courts upheld the authority of the the University of Alabama to order a professor in its college of education not to interject his religious beliefs into his classroom lectures and not to conduct optional classes in which he presented a Christian perspective on academic topics.

A version of this article appeared in the August 05, 1992 edition of Education Week as High Court’s Ban on Graduation Prayers Disappoints Districts