Law Update

June 06, 2001 3 min read

Graduation season is here, and that means it’s also the time for legal wrangling over prayer at public school commencement ceremonies. Skirmishes have already occurred this spring, for example, over student-led prayers at ceremonies in Illinois and Nebraska.

Some observers believed that a U.S. Supreme Court ruling last year against student-led prayers at football games might be easily applied to graduation ceremonies. But a ruling last month by a federal appeals court on a graduation-prayer policy suggests that the issue is much more complicated than that.

Since the Supreme Court ruled in 1992 that clergy-led prayers at public school graduation were an unconstitutional establishment of religion, prayer advocates have attempted various forms of “student initiated” and “student led” prayer policies. Last June, the high court struck down a Texas school district’s policy authorizing student-led prayers before high school football games. In Santa Fe Independent School District v. Doe, the court ruled 6-3 that the student invocations authorized by the district’s policy represented government, not private, speech.

The justices later set aside a federal appeals court ruling upholding a policy on student-led-prayer at graduation and asked the lower court to reconsider its ruling in light of Santa Fe. At issue before the U.S. Court of Appeals for the 11th Circuit, in Atlanta, was the graduation-prayer policy of the Duval County, Fla., district.

The 127,000-student district, which includes Jacksonville, allows senior-class members to vote on whether one of their classmates should give a graduation message that could include a prayer. The full 11th Circuit court upheld the policy last year by a vote of 10-2.

Now, the appeals court has reconsidered the policy, and its earlier ruling upholding it, in light of the Supreme Court’s Santa Fe ruling on football prayers. And the court has again come down in favor of the Duval County policy, this time by a vote of 8-4.

The majority found that there were two key differences between the football-prayer policy struck down by the Supreme Court and the Duval County policy. First, unlike the messages in Santa Fe, Texas, the student graduation messages in Duval County are not subject to review by school officials.

“Second, unlike Santa Fe’s policy, the Duval County policy does not by its terms, invite and encourage religious messages,” the majority said. It is not preordained, the court said, that student speakers at graduation in Duval County will deliver a religious message.

The four dissenting judges said that the Duval County policy was unconstitutional on its face, and that the majority had failed to properly apply the Supreme Court’s Santa Fe decision.

They pointed out that when the policy was first proposed by administrators in 1993, the title on the memo was “Graduation Prayers.”

“The policy’s purpose is to endorse student-initiated rather than school-initiated prayers at graduation, not merely to allow students to deliver a generic message,” said the dissent by U.S. Circuit Judge Phyllis A. Kravitch.

The May 11 ruling means that graduation-message policies patterned on Duval County’s are legal throughout the 11th Circuit, which covers Alabama, Florida, and Georgia. But opponents of the policy have said they will appeal to the Supreme Court.

Most Duval County schools held their graduation ceremonies last week, and according to local newspaper accounts, several included student messages with references to God, Jesus, or the Bible.

Legal Guide on Religion: Any educator attempting to keep up to date with church-state legal issues in the schools knows that the ground is often shifting, such as with the graduation-prayer issue. But the National School Boards Association has a new publication that offers some guidance.

Religion and Public Schools: Striking a Constitutional Balance, published by the NSBA’s Council of School Attorneys, is an update of a similar 1994 book.

Among the topics covered are: prayer on campus, invocations at school board meetings, accommodation of student religious expression, use of school facilities by outside religious groups, and religious challenges to school curricula. Most of the chapters are written by members of the school lawyers’ council.

Copies of the book are $35, plus $7 shipping and handling, from the NSBA. Books can be ordered by phone, at (800) 706-6722, or online, at

— Mark Walsh

A version of this article appeared in the June 06, 2001 edition of Education Week as Law Update