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
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 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.
- 505 U.S. 577 (1992).
- E.g. Jones v. Clear Creek Independent School
District, 977 F.2d 963 (5th Cir. 1992).
- 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).
- 115 S. Ct. 2510 (1995).
- 84 F.3d 1471 (3d Cir. 1996).
- Id. at 1475.
- Id. at 1479.
- Lee, 505 U.S. at 592-93.
- Black Horse Pike, 84 F.3d at 1478; citing
Lee, 505 U.S. at 591.
- Rosenberger, 115 S. Ct. at 2519.
- Id. at 2523.
- Id. at 2518.
- Id. at 2524.