[1994/oagheade.htm]

OAG 94-55

August 5, 1994

Subject: Prayer at school graduation

Written by: Lynne Schroering

Requested by: Lawrence W. Allen

Syllabus: We cannot clearly state that prayer at a school graduation is constitutional. Any prayer at a public school graduation must be student controlled and not directed by the school administration pursuant to Supreme Court precedent.

OAGs cited:

Statutes construed:

OPINION OF THE ATTORNEY GENERAL

This office has been asked for legal advice regarding the appropriateness of prayer at school graduation ceremonies in light of recent pronouncements of the United States Supreme Court. Specifically, the questions presented are:

1. What guidelines, limitations and restrictions does the Kentucky Attorney General recommend for lawful compliance by a school board as to graduation prayers?

2. Is any prayer at a school graduation permissible and, if so, what would be the specific conditions and terms of such prayer?

3. Is any prayer at graduation permissible if it is student directed and controlled?

The First Amendment to the United States Constitution contains the Establishment Clause which prohibits the government from enacting laws respecting the establishment of religion and states in part:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[.]

Simply put, the religious clauses of the First Amendment provide "that all creeds must be tolerated and none favored." Lee v. Weisman, 505 U.S. __, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992). The States and their school districts must comply with the provisions of the Establishment Clause.

In response to the first question, we believe that the United States Supreme Court has clearly forbidden school administrators from requesting clergy to offer a prayer or invocation at a public school graduation. In 1992, the United States Supreme Court found unconstitutional a public school policy permitting members of the clergy to give a nonsectarian invocation at the school graduation. Lee v. Weisman, 505 U.S. __, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992). The Supreme Court held that the policy violated the Establishment Clause since the nonsectarian prayer represented governmental coercion of students to participate in religious activities.

In Lee, the school district policy permitted principals to invite members of the clergy to give invocations at middle and high school graduations. The school principal invited a rabbi to deliver a prayer and provided the clergy with a pamphlet containing recommendations regarding public prayers at nonsectarian civic ceremonies. Additionally, the principal advised the rabbi that the invocation and benediction should be nonsectarian. Attendance at the graduation was voluntary and receipt of a diploma was not contingent on appearing at the ceremony. At the commencement ceremony, the students stood for the pledge of allegiance and remained standing during the rabbi's prayers which lasted approximately two minutes. Lee, 112 S.Ct. at 2653.

It is interesting that the Supreme Court in Lee did not apply the three-part Lemon v. Kurtzman test historically used to evaluate whether a particular state activity violates the Establishment Clause. Rather, the Court found that the school's involvement with the graduation prayer is "pervasive, to the point of creating a state-sponsored and state-directed religious exercise in a public school." Lee, 112 S.Ct. at

2655. The Court concluded that the graduation prayer is unconstitutional because the state in effect required participation in a religious exercise.

The Supreme Court stated that prior cases have recognized that prayer in public schools has a particular risk of indirect coercion on students. Lee, 112 S.Ct. at 2658. An earlier case found invalid a practice permitting religious leaders to use public school classrooms during regular class time for religious instruction on a voluntary basis. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed.2d 649 (1948). The Court held that a state law requiring that a teacher lead an officially sanctioned daily prayer in the public school violated the Establishment Clause. Engle v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962).

In Lee the school administration's involvement with the graduation prayer was central to the Court's ultimate holding that the policy violated the Establishment Clause. Troubling to the Court was the "coercion" that the dissenting students felt during the graduation invocation. The school official's efforts to monitor a graduation prayer "will be perceived by the students as inducing a participation they might otherwise reject." Lee, 112 S.Ct. at 2657.

While unquestionably foreclosing school directed prayer at public school graduation, the Court left open the possibility of accommodating some prayer or religious practice at a graduation ceremony. In closing, the Supreme Court noted that 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." Lee, 112 S.Ct. at 2661.

Therefore, pursuant to Lee v. Weisman, a public school district may not allow school administrators to choose a clergy member to provide a prayer or an invocation at a public school graduation ceremony.

The next two questions relate to whether any prayer at graduation is permissible and would it make a difference if the prayer is student directed and controlled. These specific questions have not been addressed by the United States Supreme Court or Kentucky courts.

The Fifth Circuit Court of Appeals addressed the exact issue of student directed prayer at graduation in Jones v. Clear Creek Independent School District, 977 F.2d 963 (5th Cir. 1992) cert. denied, 113 S.Ct. 2950. This case involved a Texas public school district which permitted high school seniors to choose student volunteers to deliver nonsectarian, nonproselytizing invocations at their graduation ceremony.

The court analyzed the case utilizing the three-part test enunciated in Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971), to determine if the Establishment Clause had been violated. The Lemon test examines (1) whether the government action has a secular purpose, (2) whether the primary effect is to endorse religion, and (3) whether the government excessively entangles itself with religion. Id.

The Fifth Circuit reasoned pursuant to Lemon that the policy has a secular purpose to solemnize the importance of completing one's high school education, that the primary effect is to impress upon graduation attendees the social significance of the occasion rather than advance or endorse religion, and that the school system does not excessively entangle itself with religion by dictating the content of the prayer. Jones, 977 F.2d at 966-967.

Additionally, the Jones court analyzed the case using the coercion analysis used in Lee v. Weisman, supra. The Fifth Circuit held that the student directed prayer did not "coerce" graduation attendees to join in a formal religious exercise. Id. at 969.

The Fifth Circuit distinguished its finding allowing school directed prayer at graduation from the Supreme Court's 1992 holding in Lee v. Weisman, supra. The court stated that school directed prayer does not excessively entangle government with religion. "That a rabbi wrote and delivered the prayer at issue in Lee makes entanglement analysis relevant to that case, but the resolution keeps Clear Creek free of all involvement with religious institution." Id. at 968. The policy in Jones did not mandate a prayer unlike the policy at issue in Lee v. Weisman. The court found that the government did not unconstitutionally endorse religion. "The resolution is passive compared to the governmental overture toward religion at issue in Lee." Id. at 968. Concerning the endorsement of religion, the Jones court stated that "a graduating high school senior who participates in the decision as to whether her graduation will include an invocation by a fellow student volunteer will understand that any religious references are the result of student, not government, choice." Id. at 969.

Kentucky is located within the Sixth Circuit Court of Appeals and decisions of the Fifth Circuit are not binding upon Kentucky courts. Prior to the Supreme Court's decision in Lee v. Weisman, the Sixth Circuit addressed the issue of prayer at public school graduation. In Stein v. Plainwell Community School, 822 F.2d 1406 (6th Cir. 1987), the Sixth Circuit held that a prayer at a public school graduation ceremony does not violate the Establishment Clause if the content of the prayer is neutral. Id. at 1410.

At issue in Stein were two Michigan school districts which allowed prayers at their commencement ceremonies. The first situation involved the invocation delivered by two student volunteers chosen by the honor students and the content of the invocation was determined by the students. In the second instance, the seniors elected to include an invocation and benediction at the graduation that was given by clergy chosen by the senior class representatives. Id. at 1407.

The Sixth Circuit did not use the traditional three-prong Lemon test to determine if the graduation prayers violated the Establishment Clause. Rather, the court applied the "content" of the prayer analysis provided in the Supreme Court's decision in Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983). In Marsh v. Chambers, the Supreme Court upheld nonsectarian and nonproselytizing invocations before the state legislature. The prayer cannot symbolically place the government's "official seal of approval on one religious view." Marsh, 103 S.Ct. at 3336.

The court in Stein v. Plainwell Community Schools found that the content of the invocations in question did not pass the Marsh test. Rather, they employed the language of Christian theology and prayer and some involved the name of Jesus as the Savior. However, the Sixth Circuit indicated that student prayer at a high school graduation could be permissible if the content of the prayer is nonsectarian.

In light of the above cases, we cannot clearly state that a Kentucky school district's decision to allow student directed prayer at a high school graduation is constitutional. On one hand, the Supreme Court has commented in dicta that some form of religious observance at a public school event is permissible. Unfortunately, the court gave no clue to identify acceptable religious observations it was contemplating. On the other hand, the Fifth Circuit has upheld student directed prayer at graduation and the Supreme Court decided not to review the decision. Jones v. Clear Creek Independent School District, 977 F.2d 963 (5th Cir. 1992) cert. denied, 113 S.Ct. 2950. Additionally, the Sixth Circuit, before the Lee v. Weisman decision, indicated its acceptance of student directed prayer at graduation.

We have studied the above cases and believe that a Kentucky school district could refuse to allow any form of prayer at a graduation ceremony since the law is unclear in this area. If the school district decides to allow student directed prayer at a high school graduation, we recommend that they closely follow the decisions in Lee v. Weisman, 112 S.Ct. 2649, Jones v. Clear Creek Independent School District, 977 F.2d 963, and Stein v. Plainwell Community Schools, 822 F.2d 1406.

We offer the following observations on the issue of prayer at public school graduation:

1. The students must initiate the concept of prayer at graduation. The students would vote on whether to include a prayer at graduation. Thus, the issue should only arise if the students approach the administration with a desire to have prayer at graduation.

2. Any prayer or invocation should only be allowed at a high school graduation ceremony and not middle school or elementary school graduation. The students graduating from high school are generally 18 years old, are eligible to vote, drive a motor vehicle and serve in the military. These 18 year old young adults are not as susceptible as the younger students to the coercion that is the main concern in the Lee v. Weisman decision.

3. The prayer or invocation should be written and delivered by students.

4. The prayer or invocation should be nonsectarian and nonproselytizing. The Sixth Circuit in Stein v. Plainwell Community Schools, supra, reasoned that the content of the prayer was critical.

We know that the issue of prayer at graduation is extremely dear to persons on both sides of the debate. We cannot overemphasize the importance of distancing the school administration from orchestrating a prayer at graduation. However, the school administration could accommodate student directed prayer at a high school graduation under the circumstances set forth in this opinion. Our opinion in no way impacts the ability of local churches and groups to conduct private graduation prayer services.

CHRIS GORMAN

ATTORNEY GENERAL

Lynne Schroering

Assistant Attorney General