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High court turns away question: Is prayer at school events constitutional?

Analysis

By Tony Mauro
Special to freedomforum.org

12.11.01

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Prayer at public school graduations and events: Is it allowed or not under the establishment clause of the First Amendment? This week, it became clear that the Supreme Court may never answer that question with complete clarity or finality.

But even though the court has ruled in seemingly contradictory ways in the last decade, it has offered enough guidelines that prayer advocates say they can live without a final edict from the court.

"It's not settled, but we have workable parameters," said Jay Sekulow, chief counsel of the American Center for Law and Justice, which has spearheaded the campaign for student-led prayer at schools.

The high court declined yesterday to review the case of Adler v. Duval County School Board, in which students challenged a ruling that upheld the policy of a Florida school board allowing graduation prayer by students. The 11th U.S. Circuit Court of Appeals found that because the prayer occurs as a result of a neutral process without pre-screening of the message by school officials, Duval County's policy did not amount to establishment or endorsement of religion.

Under the county's procedure, seniors elect the student who will deliver the graduation message — not what the message should be. Though students have campaigned with a promise that they would offer a prayer, not all graduation messages have contained prayers, and school officials take no part in deciding or reviewing what is to be said.

The Adler case marks a far journey from the Supreme Court's ruling nearly a decade ago in Lee v. Weisman. There, the Supreme Court said public schools could not invite outside clergy to offer benedictions at graduation because it came too close to government-endorsed religion.

In between, there have been decisions — Lambs Chapel v. Center Moriches Union Free School District in 1993 and Good News Club v. Milford Central School last June — that have upheld student religious activities on school grounds. But in 2000, the court handed down Santa Fe Independent School District v. Doe, ruling that student-led prayer before school football games at a Texas town was impermissible because under that district's policy, there was encouragement of prayer and too much official school involvement in screening the student's message.

What has emerged from these rulings — as well as the court's denial of review in the Adler case — is a seeming consensus that if schools establish a neutral procedure that might or might not result in prayer being delivered by a student, it is constitutional. Sekulow's litigation strategy of framing the cases as a matter of student free speech — rather than as student free exercise of religion — has led to that framework. The free-speech mantle has also, to some extent, immunized the students from challenge by some civil liberties advocates who would normally oppose religious expression in public settings.

Sekulow, who often fields inquiries from school districts about how to handle the graduation prayer issue, now expects more policies like Duval County's to be adopted — and less litigation challenging those policies.

But the pause in litigation over the issue does not mean that controversy over graduation prayer has ended. Barry Lynn, executive director of Americans United for Separation of Church and State, said the high court's action yesterday should not be read as an endorsement of forcing public school students to listen to prayer. Constitutional problems remain, Lynn suggested.

"Students should not have to sit through a prayer they don't believe in just to get their high school diplomas," said Lynn yesterday. "The rights of religious minorities should never subjected to majority rule, whether it's by a graduating class or a school board."

Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.

Related

Supreme Court won't weigh in on graduation prayer
Group had sued to block Duval County, Fla., policy allowing senior class to choose student 'chaplains' to give inspirational addresses at high school commencements.  12.10.01

Iowa students object to singing Lord's Prayer at graduation
Choir members enlist civil liberties group to file suit against Woodbine Community School District.  04.03.02

Federal appeals court reinstates Texas prayer case
Lawsuit claims school district had no right to prevent student from leading prayer before football games.  04.15.02

Colorado teacher loses bid to block graduation prayer
Meanwhile, ACLU plans lawsuit to prevent West Virginia high school from including prayer during commencement.  05.28.02

Salutatorian's free-speech suit tossed by federal appeals panel
Court finds in California case that 'permitting a proselytizing speech at a public school's graduation ceremony would amount to coerced participation in a religious practice.'  02.21.03

2001-2002 Supreme Court term coverage
Analysis and other coverage of the 2001-2002 U.S. Supreme Court term.  11.01.01

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