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Prayer During Public School Activities

§ 13.03
Key point 13-03. The First Amendment prohibits the recitation of prayers by school officials and clergy in public schools or at public school events, including graduation ceremonies and sports activities. However, some courts have allowed student-initiated prayers during such events.

The issue of student-initiated religious activities on public school property is addressed in section 13-07.

1. Prayers at Public School Graduation Ceremonies

A number of federal courts have addressed the question of whether prayers at public school graduation ceremonies violate the First Amendment's Nonestablishment of Religion Clause. Illustrative cases are summarized below. In a 1992 ruling, the United States Supreme Court concluded that such prayers are unconstitutional, at least in some situations.[17] Lee v. Weisman, 505 U.S. 577 (1992). The case involved a challenge to a public high school policy that allowed members of the clergy to give invocations and benedictions at middle school and high school graduations. Clergy were provided with a pamphlet entitled "Guidelines for Civic Occasions," prepared by the National Conference of Christians and Jews, and were advised that the invocation and benediction should be nonsectarian.

The Supreme Court, by a majority of five votes to four, ruled that prayers offered at public high school graduation ceremonies violate the First Amendment's "Nonestablishment of Religion Clause. The Court concluded that a public high school graduation ceremony that includes prayers exerts a "psychological coercion" or pressure on everyone to conform, even those who are personally opposed to prayer. The Court observed:

The undeniable fact is that the school district's supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the invocation and benediction. This pressure, though subtle and indirect, can be as real as any overt compulsion. Of course, in our culture standing or remaining silent can signify adherence to a view or simple respect for the views of others. And no doubt some persons who have no desire to join a prayer have little objection to standing as a sign of respect for those who do. But for the dissenter of high school age, who has a reasonable perception that she is being forced by the state to pray in a manner her conscience will not allow, the injury is no less real. There can be no doubt that for many, if not most, of the students at the graduation, the act of standing or remaining silent was an expression of participation in the Rabbi's prayer. That was the very point of the religious exercise. It is of little comfort to a dissenter, then, to be told that for her the act of standing or remaining in silence signifies mere respect, rather than participation. What matters is that, given our social conventions, a reasonable dissenter in this milieu could believe that the group exercise signified her own participation or approval of it.

The Court acknowledged that participation in graduation ceremonies is voluntary, and that students who are opposed to prayers can simply not attend. But it concluded that the voluntary nature of the ceremony did not mean that prayers had to be allowed. It noted:

[T]o say a teenage student has a real choice not to attend her high school graduation is formalistic in the extreme. True, [the student] could elect not to attend commencement without renouncing her diploma; but we shall not allow the case to turn on this point. Everyone knows that in our society and in our culture high school graduation is one of life's most significant occasions. A school rule which excuses attendance is beside the point. Attendance may not be required by official decree, yet it is apparent that a student is not free to absent herself from the graduation exercise in any real sense of the term "voluntary," for absence would require forfeiture of those intangible benefits which have motivated the student through youth and all her high school years. Graduation is a time for family and those closest to the student to celebrate success and express mutual wishes of gratitude and respect, all to the end of impressing upon the young person the role that it is his or her right and duty to assume in the community and all of its diverse parts.

The Court acknowledged that a majority of those attending graduation ceremonies probably have no objection to prayers being offered, and would even prefer that they be. It concluded, however, that "[w]hile in some societies the wishes of the majority might prevail, the Establishment Clause of the First Amendment is addressed to this contingency and rejects the balance urged upon us. The Constitution forbids the state to exact religious conformity from a student as the price of attending her own high school graduation."

The Court acknowledged that

[w]e do not hold that every state action implicating religion is invalid if one or a few citizens find it offensive. People may take offense at all manner of religious as well as nonreligious messages, but offense alone does not in every case show a violation. We know too that sometimes to endure social isolation or even anger may be the price of conscience or nonconformity. But, by any reading of our cases, the conformity required of the student in this case was too high an exaction to withstand the test of the establishment clause.
The Court concluded its opinion with the following statement:
Our society would be less than true to its heritage if it lacked abiding concern for the values of its young people, and we acknowledge the profound belief of adherents to many faiths that there must be a place in the student's life for precepts of a morality higher even than the law we today enforce. We express no hostility to those aspirations, nor would our oath permit us to do so. A relentless and all-pervasive attempt to exclude religion from every aspect of public life could itself become inconsistent with the Constitution. We recognize that, at graduation time and throughout the course of the educational process, there will be instances when religious values, religious practices, and religious persons will have some interaction with the public schools and their students. But these matters, often questions of accommodation of religion, are not before us. The sole question presented is whether a religious exercise may be conducted at a graduation ceremony in circumstances where, as we have found, young graduates who object are induced to conform. No holding by this Court suggests that a school can persuade or compel a student to participate in a religious exercise. That is being done here, and it is forbidden by the establishment clause of the First Amendment.

The Supreme Court's decision in the Lee case does not necessarily preclude all prayers at public graduation ceremonies, as some of the following cases demonstrate.

Case studies
  • A federal appeals court ruled that allowing public high school seniors to choose student volunteers to deliver nonsectarian, nonproselytizing invocations at their graduation ceremonies does not violate the First Amendment's Nonestablishment of Religion Clause. [18] Jones v. Clear Creek Independent School District, 977 F.2d 963 (5th Cir. 1992). The United States Supreme Court issued an order declining to review the Jones case. This may signal the Court's satisfaction with the lower court's resolution of this controversial issue. Regardless of why the Court declined to review this case, the fact remains that the decision of the federal appeals court remains binding in the fifth judicial circuit, which includes the states of Louisiana, Mississippi, and Texas. Other federal courts have rejected the conclusion of this ruling.See, e.g.,Ingebretsen v. Jackson Public School District, 88 F.3d 274 (5th Cir. 1996). But see Does 1-7 v. Round Rock Independent School District, 540 F.Supp.2d 735 (W.D. Tex. 2007) (student-initiated prayers at a public school graduation ceremony violated the establishment clause, and the Clear Creek case may not be consistent with the United States Supreme Court's decision in the Santa Fe case, addressed below). A public school district in Texas adopted the following resolution: "The use of an invocation and/or benediction at high school graduation exercises shall rest within the discretion of the graduating senior class, with the advice and counsel of the senior class principal; the invocation and benediction, if used, shall be given by a student volunteer; and consistent with the principle of equal liberty of conscience, the invocation and benediction shall be nonsectarian and nonproselytizing in nature." Pursuant to this resolution, prayers were offered by graduating seniors at public high school graduation ceremonies within the district. A lawsuit was filed challenging the constitutionality of this practice, and a trial court ruled that the practice did not violate the First Amendment. A federal appeals court agreed, concluding that the Supreme Court's decision in the Lee[19] 505 U.S. 577 (1992). See §12-13. case did not change the result. In the Lee case, the Supreme Court ruled that a public high school principal violated the First Amendment by inviting a local clergyman to deliver a nonsectarian, nonproselytizing invocation at a graduation ceremony. The appeals court acknowledged that it was bound by the Supreme Court's decision in Lee, but concluded that the Lee case did not require that the school district resolution at issue in this case be invalidated. The court noted many critical differences in this case that distinguished it from Lee. First, the graduating seniors themselves decided whether or not they wanted an invocation during their graduation ceremony. In Lee, a high school principal made this decision. Second, the invocation (if desired by the graduating seniors) was offered by a student. In Lee, the invocation was offered by a member of the clergy. Third, the student selected to offer the invocation was free to compose it without any participation by the school (other than the requirement that it be nonsectarian and nonproselytizing). There was no requirement that the invocation mention God or contain any other religious references. In Lee, there was some school involvement in the composition of the prayers, and it was understood that the prayers would be "religious." Fourth, and perhaps most importantly, there was little if any of the "psychological pressure" upon students to participate in the invocation that there was in Lee. The court observed, "We think that the graduation prayers permitted by the resolution place less psychological pressure on students than the prayers at issue in Lee because all students, after having participated in the decision of whether prayers will be given, are aware that any prayers represent the will of their peers, who are less able to coerce participation than an authority figure from the state or clergy."
  • A federal appeals court ruled that the spontaneous recitation of the Lord's Prayer at a high school graduation ceremony by a school board member did not violate the First Amendment. The court referred to a ruling in which the United States Supreme Court observed 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." [20] Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000). The court concluded that the board member's recitation of the Lord's Prayer was private speech due to the "complete lack of school involvement or sponsorship in his remarks," and therefore there was no government promotion of religion and no constitutional violation.[21] Doe ex rel. Doe v. School District, 340 F.3d 605 (8th Cir. 2003).
  • A federal appeals court ruled that the First Amendment Nonestablishment of Religion Clause would be violated by allowing a prayer to be recited at a public high school graduation ceremony, even though a majority of the graduating class voted to include the prayer in the ceremony and attendance was voluntary. [22] Harris v. Joint School District, 41 F.3d 447 (9th Cir. 1994). Further, outlawing prayer at the ceremony did not violate the majority's constitutional rights of free speech and freedom of religion, since the ceremony was not an "open forum" and students could exercise their religion outside of the ceremony.
  • A federal appeals court ruled that a public school policy permitting high school seniors to vote upon the delivery by a student of a message entirely of that student's choosing as part of graduation ceremonies did not violate the Establishment Clause. The court observed: "Neither the [school district] nor the graduating senior classes decide if a religious prayer or message will be delivered, let alone require or coerce the student audience to participate in any privately-crafted message. While schools may make private religious speech their own by endorsing it, schools do not endorse all speech that they do not censor. We cannot assume that [students] will interpret the school's failure to censor a private student message for religious content as an endorsement of that message —particularly where the students are expressly informed as part of the election process that they may select a speaker who alone will craft any message. No religious result is preordained." The court concluded: "Although it is possible that under [the school's] policy the student body may select a speaker who then chooses on his or her own to deliver a religious message, that result is not preordained, and more to the point would not reflect a majority vote to impose religion on unwilling listeners. Rather, it would reflect the uncensored and wholly unreviewable decision of a single student speaker. … The total absence of state involvement in deciding whether there will be a graduation message, who will speak, or what the speaker may say combined with the student speaker's complete autonomy over the content of the message means that the message delivered, be it secular or sectarian or both, is not state-sponsored." [23] Adler v. Duval County School Board, 250 F.3d 1330 (11th Cir. 2001). The court noted that the Supreme Court, in the Santa Fe case (see below) "had every opportunity to declare that all religious expression permitted at a public school graduation ceremony violates the Establishment Clause; it did not do so. We could not invalidate [the school's] policy without taking the very step the Court declined to take."
2. Prayers at Public School Athletic Events

The United States Supreme Court has ruled that the practice of reciting prayers at public school athletic events violates the First Amendment.[24] Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000).

3. Religious Music Performed by Public School Students

In many cases, students who are barred from performing religious music during public school ceremonies or events claim that their constitutional right to free speech has been violated. Most courts have analyzed these claims by focusing on the "forum" in which the music was to be performed. Generally, the courts have divided government property into four categories: public fora, designated public fora, nonpublic fora, and limited public fora. Table 13-1 defines each of these fora.

Case studies
  • A federal court in Washington ruled that a public school acted properly in barring a wind ensemble from performing an instrumental arrangement of "Ave Maria" at a graduation ceremony. The court concluded that the school district created a limited public forum when it allowed the wind ensemble to choose the piece for performance at the graduation. As noted in Table 13-1, a public school's prohibition on the performance of "Ave Maria" was not a violation of the students' free speech rights if the restriction was viewpoint neutral and reasonable in light of the purpose of the forum. In determining whether the restriction is viewpoint neutral, the court noted that it "must identify whether exclusion of Ave Maria is content discrimination, which may be permissible if it preserves the purpose of the limited forum, or viewpoint discrimination, which is presumed impermissible when directed against speech otherwise within the forum's limitations." The court noted that "content discrimination occurs when the government chooses the subjects that may be discussed, while viewpoint discrimination occurs when the government prohibits speech by particular speakers, thereby suppressing a particular view about a subject." The court concluded that the exclusion of "Ave Maria" was based on permissible content restriction, not impermissible viewpoint discrimination since the prohibition "was based on a decision to keep religion out of graduation as a whole, not to discriminate against a specific religious sect or creed. … The blanket restriction on the exclusion of religious music that occurred in this case is one based on content, not viewpoint." [25] Nurre v. Whitehead, 520 F.Supp.2d 1222 (W.D. Wash. 2007).
  • A federal appeals court ruled that the constitution was not violated when a public high school choir performed religious songs and conducted a few of its concerts in churches. [26] Bauchman v. West High School, 132 F.3d 542 (10th Cir. 1997). A non-Christian student who was a member of the choir asked a federal court to issue an order banning the choir from singing religious songs and performing concerts in churches. A federal district court refused to do so, and the student appealed. A federal appeals court concluded that the choir's practices were permissible and violated neither the First Amendment's Nonestablishment of Religion or Free Exercise of Religion Clauses. The court applied the Supreme Court's three-part Lemon test in determining whether the choir's practices constituted an impermissible establishment of religion. Under this test, a government practice challenged as an establishment of religion will be valid only if it satisfies the following three conditions —a secular purpose, a primary effect that neither advances nor inhibits religion, and no excessive entanglement between church and state. The court concluded that all of these tests were met.
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