Jendi Reitr*

One of the most disputed questions of current Establishment Clause jurisprudence is whether Lee v. Weisman's(1) ban on prayers at high school graduations extends to prayers initiated and written by students rather than by public school officials. Some courts have chosen to distinguish Lee on its facts, reasoning that there is not state "endorsement" of religion if the students and not the school officials make the decision to include prayer in the ceremonies.(2) Other courts, unfortunately, adopt a more protean notion of the state action requirement in order to forbid all prayers, student-initiated or not, at school-sponsored events.(3) The latter interpretation of the Establishment Clause is based on Lee's treatment of religious expression as uniquely coercive to non-believing listeners. The Supreme Court's own recent decision in Rosenberger v. Rector & Visitors of the University of Virginia,(4) however, requiring a state university to allocate student activity funds to both religious and secular student groups on a neutral basis, indicates that students' religious speech cannot constitutionally be treated as a more dangerous and less protected form of expression than secular ideological speech.

The Third Circuit's May 1996 en banc decision in ACLU of New Jersey v. Black Horse Pike Regional Board of Education(5) typifies the federal courts' mistrust of public religious expression. The court found unconstitutional a public school policy allowing the high school senior class to vote on whether their graduation ceremony would include a student-written and student-delivered prayer, a moment of silent reflection, or neither.(6) The graduation remained a school-sponsored event, subject to the school's procedural regulations, reasoned the Third Circuit. Thus it held that the graduation prayer (if one were chosen), no less than in Lee, would bear the "imprint" of the state, and thus amounted to state endorsement of religion. The state may not "coerce" students into accepting a particular creed, whether or not the decision to promote this creed is made by the state itself or by a majority vote of the students to whom the state has delegated this decision-making power.(7) In characterizing the situation thus, the Third Circuit wholeheartedly adopted Lee's premise that a student who is required to maintain respectful silence during a public prayer is thereby being forced by the state to pray in a manner "her conscience will not allow."(8)

Crucial to the Third Circuit's opinion in Black Horse Pike was the passage in Lee that asserts that the Constitution protects speech and religion by different methods: Secular speech, by this reasoning, is protected by ensuring its full expression, while religious expression is protected by walling it off from everything involving the state.(9) Presumably, under this analysis, no constitutional provision would be violated by a school policy allowing students to prepare and deliver a graduation speech on a secular topic, even though students who disagreed with the speaker's ideology would be required to maintain a respectful silence and thereby equally appear to be endorsing a "creed" they did not espouse.

After Rosenberger, however, Establishment Clause jurisprudence can no longer rest on the above-mentioned premise that exposure to religious expression in a state-sponsored setting coerces dissenters in a way that secular expression does not. In addition, Rosenberger contradicts Black Horse Pike's decision to attribute state action to the students themselves simply because they exercise their free choice in a setting controlled by the state's content-neutral rules.

In Rosenberger, the University of Virginia withheld student group funding from a student paper solely because the paper promoted a religious creed, i.e., Christianity. The Court held that not only did the Establishment Clause not require the university's action, but that withholding the funds actually violated the Constitution-specifically, the Free Speech Clause's ban on viewpoint discrimination.(10) Unlike a tax levied specifically for the support of religious institutions-the very situation that inspired Madison's defense of constitutional church-state separation-the funds in this case came from student activity fees assessed from all students for distribution to a broad spectrum of student groups. The newspaper in question sought funding by virtue of its status as a student organization, not its religious content. The students in charge of the paper, not the public university, decided to promote a Christian viewpoint. Based on these facts, the Court found that the university's funding allocation system simply provided a forum for the expression of student views and operated according to content-neutral rules, and thus did not violate the Establishment Clause.(11) In fact, stated the Court, to hold otherwise would violate the Free Speech Clause: It would be constitutionally impermissible for a public institution to provide funds for a student group that criticized religion while denying funds to one that promoted religion.(12)

Rosenberger thus provides two grounds for distinguishing the graduation prayers in Black Horse Pike from those in Lee v. Weisman. First, according to Rosenberger, when the decision to interject religious content into a public school setting is made by the students rather than the administration, and the school makes it clear that the students' religious viewpoint is not the school's official position, no impermissible "establishment" of religion has been created. In Black Horse Pike, the high school officials played a neutral ministerial role, providing a mechanism for students to choose whatever form of secular or religious expression they felt would best solemnize the important event. To ensure complete neutrality, however, the Black Horse Pike system probably should also have included the option of a secular invocation on an appropriately solemn theme, so that students who did not desire a prayer would have the option of expressing their values as well as the option of a moment of silence. In addition, since a graduation speech is more likely to be attributed to the school than a student newspaper editorial, a public school that gives students the opportunity to choose prayer for their graduation should publicly dissociate itself form the content of their chosen invocation (perhaps by a statement in the program that the views expressed by students at this ceremony are not the official position of the school).

Second, Rosenberger casts serious doubt on the psychological theory behind Lee and Black Horse Pike, namely that the Constitution protects students from exposure to religious speech in public institutions because such speech is more coercive than secular proselytizing. Rosenberger suggests that as long as the public school utilizes neutral procedures in providing a forum for students' expression of their creeds, the Free Speech Clause's ban on discrimination between religious and secular viewpoints outweighs concerns that dissenters will feel coerced by exposure to religion in a public school setting. Secular creeds can exert as much peer pressure as religious ones. For a school to treat one category of speech as more dangerous than the other, even in an attempt to avoid "establishments" of religion, is precisely the sort of viewpoint discrimination that Rosenberger forbids.

Rosenberger represents a tentative step towards restoring some objectivity to Establishment Clause jurisprudence. As the court implicitly recognized, to safeguard students' freedom of expression, the Establishment Clause inquiry must focus on the neutrality of the school's procedures and purposes, and not on the content of student speech about religion or its reception by other students.(13) Application of these principles could help schools and courts to enable students to express their beliefs within their school community, while leaving the subtle psychological questions of belief and dissent to be resolved within a student's own conscience. This is a result more in keeping with the spirit of the Establishment Clause than the courts' present vision of a therapeutic state that protects students from such choices.

*Jendi Reiter, a 1996 graduate of Columbia University School of Law, is an attorney and freelance writer in New York City.

1. 505 U.S. 577 (1992).
2. E.g. Jones v. Clear Creek Independent School District, 977 F.2d 963 (5th Cir. 1992).
3. E.g. Ingebretsen v. Jackson Public School District, 864 F. Supp. 1473 (S.D. Miss. 1994), aff'd, No. 94-CV-0411, 1996 U.S. App. LEXIS 379 (5th Cir. Jan. 10, 1996), reh'g denied, 88 F.3d 274 (5th Cir. 1995), cert. denied, 117 S. Ct. 388 (1996); ACLU of New Jersey v. Black Horse Pike Regional Board of Education, 84 F.3d 1471 (3d Cir. 1996).
4. 115 S. Ct. 2510 (1995).
5. 84 F.3d 1471 (3d Cir. 1996).
6. Id. at 1475.
7. Id. at 1479.
8. Lee, 505 U.S. at 592-93.
9. Black Horse Pike, 84 F.3d at 1478; citing Lee, 505 U.S. at 591.
10. Rosenberger, 115 S. Ct. at 2519.
11. Id. at 2523.
12. Id. at 2518.
13. Id. at 2524.