• Key point: Public high school baccalaureate services may be permissible on school property if the school has created an “open forum” by allowing other community groups to utilize its facilities.
• A federal court in Wyoming ruled that a public high school board of education violated the constitution by forbidding the school gymnasium to be used for a baccalaureate service. A group of graduating students asked school officials for permission to rent the school gymnasium for a private baccalaureate service. The service was to be privately sponsored, open to the public, and completely unrelated to school activities. Participation by graduating seniors would be completely voluntary. After receiving verbal approval for their private baccalaureate service, the students had the graduation announcement changed to identify the place, date and time of the baccalaureate ceremony. The school board, on the advice of the state attorney general, later decided not to allow its gymnasium to be used for a baccalaureate ceremony on the ground that such a use would violate the first amendment’s nonestablishment of religion clause. The students made alternative arrangements, and then sued the school board for violating their constitutional rights of assembly, speech, and religion. With regard to their free speech claim, the students argued that the school had created an “open forum” by allowing a wide variety of other community groups to rent the gymnasium, and therefore it could not deny the same right to the students solely on the basis of the religious content of the ceremony. The school board defended its decision by insisting that the baccalaureate service was not truly voluntary and that the school was involved in the ceremony indirectly because of the following factors: (1) the graduation announcement referred to the ceremony; (2) the school choir and orchestra were to perform at the ceremony (there was additional evidence that members of the choir and orchestra were required to participate in the ceremony under penalty of a failing grade); (3) a letter from the school principal to students and parents informing them of the ceremony; and (4) some 75 percent of graduating students planned to participate in the ceremony (an amount so large that it constituted an indirect form of pressure on students to participate). The court concluded that the school board, by denying students the right to rent school property for a baccalaureate ceremony, violated the students’ constitutional right of free speech. It observed: “The United States Supreme Court has determined that a public school district rule barring use of school facilities by groups whose subject matter has a religious purpose or a religious viewpoint when all other groups are allowed such use violates the first amendment.” It rejected the school board’s argument that the ceremony was not voluntary and included indirect school participation, noting that “although the board’s disassociation from the baccalaureate ceremony could have been more unequivocal, the evidence also clearly demonstrated that baccalaureate was being sponsored by a private group of parents and students and that the event was not being sponsored by the school district itself.” The very fact that the school board was vigorously resisting the efforts of the students to conduct the ceremony on school property “aids in disseminating the message to the community that the board is not endorsing or sponsoring religion by renting [the gymnasium] to the [students] for the purpose of holding a privately sponsored baccalaureate service.” The court referred to the Supreme Court’s recent decision banning prayers at public high school graduation ceremonies, and noted that “it is evident that the dangers to be avoided are state sponsorship and endorsements of activities which compel or coerce participating in a particular religious orthodoxy.” It referred to a statement by one of the Justices in the Supreme Court’s decision that “pointedly suggested a privately sponsored baccalaureate for students who desire to express their religious feelings at the time of their graduation.” Shumway v. Albany County School District, 826 F. Supp. 1320 (D. Wyo. 1993).
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