Graduation And Other School Events - 2004

Can we have student-led prayer at graduation?

Yes! In Lee v. Weisman, the Supreme Court held only that it violates the Establishment Clause for school officials to invite clergy to give prayers at commencement.[FN15] Justice Kennedy made clear, for the majority, that the Court's decision was limited to the particular facts before the Court.[FN16] Thus, any change from the factual situation presented in Lee might alter the resulting opinion from the Court.

Indeed, following Lee, at least one Federal Appeals Court has ruled that "a majority of students can do what the State acting on its own cannot do to incorporate prayer in public high school graduation ceremonies." [FN17] In Jones v. Clear Creek Independent School District (Jones), a post-Lee decision, the Fifth Circuit upheld the constitutionality of a school district resolution permitting high school seniors to include a student-led invocation in their graduation ceremony if the majority of the class so votes. [FN18] Quite unlike the school-directed and school-controlled practice found unconstitutional in Lee, the Clear Creek Independent School District's resolution simply permits the students of each graduating class to decide if they do or do not wish to have an invocation as a part of their commencement. In the event that students choose to include an invocation, the resolution provides that it shall be nonsectarian and nonproselytizing and conducted only by a student volunteer.

The Jones Court recognized, as the Supreme Court has previously held, that "there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." [FN19]

The Fifth Circuit is the only United States Court of Appeals to have addressed the rights of students to initiate prayers at graduation following the Supreme Court's decision in Lee v. Weisman. On June 7, 1993, the Supreme Court denied certiorari in Jones. In other words, the Supreme Court let stand the Fifth Circuit Court of Appeals' decision permitting student-initiated prayer at graduation. Thus, the Fifth Circuit's opinion in Jones provides school boards across the nation, both in and outside the Fifth Circuit, with a valid legal basis for choosing to uphold the rights of students to initiate prayers at graduation. [FN20]

In Harris v. Joint School District, [FN21] the Court of Appeals decided that prayer during a high school graduation ceremony violated the Establishment Clause. This decision directly conflicted with the Fifth Circuit's opinion in Jones v. Clear Creek, which upheld the right of students to conduct prayer at graduation ceremonies. In the 1994-95 term the Supreme Court granted review in Harris and vacated the Court of Appeals decision as moot--because a viable claim no longer exists. This ruling by the Supreme Court leaves Jones v. Clear Creek as the only federal appeals court decision on the issue of student-led graduation prayer.

Some may suggest that school officials should aggressively censor all student expression simply because it occurs within the jurisdiction of the school. The law regarding the First Amendment rights of students, however, is well-established. Student speech cannot be restricted because of the content of that speech.

Can valedictorians, salutatorians, or honorary student speakers give speeches on religious subjects, including reading from the Bible?

Yes! As stated previously, it is well settled that religious speech is protected by the First Amendment of the Constitution. [FN22] The Supreme Court has firmly held that school administrators can only prohibit protected speech by students when it "materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school." [FN23]

Where students have been granted freedom to compose their own speeches (e.g., valedictorian or salutatorian addresses, etc.), or even their own commencement exercise, protected student expression should not be subjected to censorship because of its content. In fact, it is a fundamental proposition of constitutional law that a governmental body may not suppress or exclude the speech of private parties for the sole reason that the speech contains a religious perspective. [FN24] To deny this bedrock principle would be to undermine the essential guarantees of free speech and religious freedom under the First Amendment.

There is quite a difference between refusing to direct prayer or invite clergy to give prayer at graduation, and choosing to prohibit individual student expression based on its content. The First Amendment precludes any governmental effort to single out and censor - or otherwise burden - the speech of private parties solely because that speech is religious. [FN25]

A decision by a school board to respect the free speech rights of students and to refrain from censoring student speech based solely on its content is not a deliberate violation of the law. As the Supreme Court has emphasized, students' free speech rights apply even "when [a student] is in the cafeteria, or on the playing field, or on campus during authorized hours . . . ." [FN26] Students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." [FN27] The same axiom is true at graduation.

Can we have Baccalaureate services?

Yes! Students, community groups and area churches are entitled to sponsor events, such as baccalaureate services. If school facilities are available to the community for use, these groups must be allowed to use school facilities also, regardless of the religious nature of their activities. A policy of equal access for religious speech conveys a message "of neutrality rather than endorsement; if a State refused to let religious groups use facilities open to others, then it would demonstrate not neutrality but hostility toward religion." [FN28] The United States District Court for the District of Wyoming recently issued a preliminary injunction which allowed a baccalaureate service in a public high school. The court relied directly on Lamb's Chapel. [FN29]

Are official "Moments of Silence" permissible under current law?

Yes! The Supreme Court reviewed the issue of official, "moments of silence" in Wallace v. Jaffree. [FN30] While it is true that the Supreme Court did find the particular "moment of silence" statute before the Court in that case unconstitutional, the Wallace Court did not declare that all "moments of silence" violate the Establishment Clause. In fact, a majority of the Wallace Court clearly recognized that moments of silence are constitutionally permissible: "I agree fully with Justice O'Connor's assertion that some moment-of-silence statutes may be constitutional, a suggestion set forth in the Court's opinion as well." [FN31] Furthermore, all parties in the Wallace case agreed that an Alabama statute mandating a "moment of silence" during class time was constitutional. [FN32] Wallace held only that the particular facts of the case made the Alabama statute calling for a moment of silence "for meditation or voluntary prayer" during class time unconstitutional. [FN33] Specifically, the Court focused on the clearly religious intent expressed by the statute's sponsors in the recorded legislative history, and the express language of the statute which called for a moment of silence "for meditation or voluntary prayer." [FN34]

After Wallace, it is clear that any official moment of silence must be motivated by a well-defined secular purpose and be neutral on its face, leaving the use of the "moment of silence" to individuals and the dictates of their own consciences.

Do students have a right to pray together at school and participate in events like the See You at the Pole National Day of Prayer?

Yes! See You at the Pole National Day of Prayer is a student-led and student-initiated event. On an annual basis, students across the nation gather with like-minded peers around the flagpole at their respective schools before the class day begins and pray for their schools, teachers, administrators and country.

As discussed in earlier sections, students retain their constitutional rights of free speech and expression, including the right to pray and share personal beliefs, while on their public school campuses. Under the Tinker standard, school officials may restrict protected student speech only if it "materially and substantially interfere[s] with appropriate discipline." [FN35] Thus, school officials may not prevent students from gathering together for prayer and religious discussion on school grounds, provided that students do so in a non-disruptive manner during non-instructional time. Non-instructional time would be immediately before and after school, at lunchtime, or any other "free" time when students are permitted to talk and mingle with peers on campus.

It should be noted that while school officials may not prevent students from engaging in protected religious expression unless it "materially and substantially interferes with school discipline," [FN36] they may impose reasonable time, place and manner restrictions. Such restrictions, however, must be content neutral, "narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." [FN37]

Can a See You At The Pole rally be held even if it is not part of an officially recognized club on campus?

Yes! Tinker stands for students' rights to freedom of speech and expression. As long as the activity being participated in does not "materially or substantially interfere with school discipline" students have the right to gather together on campus for prayer, even if no prayer group or Bible club is officially recognized on their campus.

Prayer is a protected form of speech that cannot be banned by school officials when it is being offered in a manner such as See You At The Pole. School officials refusing students the right to pray on their campus is nothing short of censorship.

If there is an officially recognized Bible Club or Prayer Group on campus, then students in the club can advertise the Prayer Rally. Students must be allowed to use the same forms of advertisement that the other clubs are allowed to use. That includes the public address system, the school bulletin boards, and the school newspaper.

Is it constitutional to have holiday observances, in the public schools?

Yes! Students, of course, are free to express their beliefs and convictions as they apply to particular holidays, provided they do so in a non-disruptive manner. For example, students have the right to distribute Christmas cards or religious tracts on the "true meaning of Christmas" to their peers during non-instructional time. Students could also wish their classmates a "Merry Christmas" or a "Happy Hanukkah." School officials could not constitutionally prohibit such activities. Further, students may express their individual beliefs during classroom discussions, as well as in the context of appropriate class assignments. For instance, an elementary student when instructed to draw a "Thanksgiving" picture may choose to draw a picture of a pilgrim praying to God. Or, when told to prepare an essay on a topic of choice, a student may select the birth of Christ, or any other religious topic the student wishes. School officials cannot discriminate against a student's work simply because of its religious nature.

Regarding official public school observance of religious holidays, an issue separate and distinct from protected student expression, the Eighth Circuit has held that religious songs and symbols can be used in the public schools if they are presented in a "prudent and objective manner and only as part of the cultural and religious heritage of the holiday." [FN38] The Florey Court also stated that the study and performance of religious songs is constitutional if the purpose is the "advancement of the students' knowledge of society's cultural and religious heritage, as well as the provision of an opportunity for students to perform a full range of music, poetry, and drama that is likely to be of interest to the students and their audience." [FN39]

The Florey decision was based largely on a United States Supreme Court opinion: School District of Abington Township v. Schempp, [FN40] In Schempp, the Supreme Court said, "It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment." [FN41]

Can the Bible be used as part of the curriculum of the school?

Yes! In Stone v. Graham, the Supreme Court said, "the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like." [FN42] Thus, it would be constitutional for a public school teacher to have students study the biblical passages that relate to Christmas (e.g., Matthew 1:18-2:22 and Luke 2:1-20) if the purpose was to study the historical or literary significance of the passages. Of course, any student that had ideological or religious objections to reading the Bible should be excused from the assignment.

In addition, the Bible was an important book in the early history of this country. It is possible to set up a curriculum that evaluates the role of the Bible in this country and western civilization that is constitutional. The Bible is also considered to be literature from antiquity. A school board could establish a policy that allows the Bible to be discussed as part of a literature program in the school.

Can members of the community or organizations use school facilities for religious purposes?

Yes! Members of the local community also have free speech rights in the school if the district rents school facilities to outsiders during non-school hours. In other words, if the school district rents its facilities to non-school groups during non-school hours, then the school district has a constitutional duty to rent to religious speakers, such as a local church that wants to rent a facility for its annual Christmas pageant. [FN43]

The Supreme Court recently rejected an exclusion of religious speakers from public schools in Lamb's Chapel. In refusing to uphold a religious exclusion, the Lamb's Chapel Court stated that "the principle that has emerged from our cases is that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others." [FN44] The Lamb's Chapel decision reinforces the rights of religious persons to express their views publicly.

Can Christmas vacation still be called Christmas vacation?

Yes! Finally, school districts are under no constitutional obligation to rename "Christmas vacation" as "Winter vacation" or some similar name. Any suggestion to the contrary is simply unnecessary and should be avoided. The Supreme Court itself has acknowledged with approval that Congress gives federal employees a paid holiday on December 25 and that Congress calls it, "Christmas." [FN45]

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