May 9, 2007

School Graduations, Religion and the Courts

Spring is the season for school graduations, and graduation ceremonies play a featured role in the national debate over the place of religion in public education. Is a clergyman’s benediction at a public school event a violation of the separation of church and state? Can students lead a prayer at their school commencement?

In a new series of occasional essays, the Pew Forum on Religion & Public Life explores the relationship between government and religion. Ira C. Lupu, a scholar in constitutional law at George Washington University Law School, introduces the first of these essays in a conversation with the Pew Forum.

Featuring:
Ira C. Lupu, the F. Elwood and Eleanor Davis Professor of Law, George Washington University Law School

Interviewer:
Robert Ruby, Senior Editor, Pew Forum on Religion & Public Life


Forum: In the early 1960s, the Supreme Court ruled that the Constitution prohibited school-sponsored prayer in public schools. Shortly thereafter, the court extended the prohibition to daily Bible reading. The Pew Forum’s essay explains that the court was saying that government action has to have a predominantly secular purpose. But what are the rules for graduation ceremonies at a public school? Can a commencement speaker invoke God in some way? Can the speaker offer a prayer?

Ira Lupu: I would need to know who the speaker is.

Forum: A student?

Lupu: You started with the hard case. If you had started with the principal or someone else who is without doubt an employee, agent or representative of the school or the school board – that might be the principal, that might be the chairman of the school board or some other public official, such as a mayor, or someone who is there to preside – then I would say it’s quite straightforward — not based on those 1960s cases alone, but based on a 1992 decision called Lee v. Weisman. In that decision, the court ruled that public schools at their commencements may not sponsor or promote prayer, even if it has a nonsectarian character.

Forum: Why is that? What rights would be endangered?

Lupu: There’s more than one way to answer that question. The court relied on an anti-coercion rationale. It was that anyone who is at the ceremony is going to feel compelled to participate. Not in the sense of standing or reciting or worshipping, but because if there’s an invocation [or] a prayer at a commencement, then everyone there is engaged by it. They are listening to it. They are being respectful of it. To say “submitting to it” would be too strong, but that’s what they’re being asked to do. And the rationale for the principal opinion in the Supreme Court in Lee v. Weisman is that there was a kind of coercion of religious experience and that it was impermissible.

Now, there are other rationales that explained the earlier school prayer and Bible reading cases that a number of the justices in Lee v. Weisman also brought into their opinions. And the other rationales have to do with the idea of the government and its voice being secular: The government should not choose a religious perspective or promote a religious perspective. And even a prayer that seems to many people like a completely nonsectarian prayer is going to invoke some sort of idea of God – typically one God, not many gods – so that people who are polytheists or people who are atheists are going to say, “This is not a prayer to which I can subscribe.”

The basic theory of the school prayer and Bible reading cases is that those activities inevitably are partial with respect to religious perspectives and that the government shouldn’t have a religious perspective, especially in schools.

Forum: Why are schools considered a special environment?

Lupu: People are compelled to attend them. There’s this back and forth in the graduation prayer case as to whether this is compulsory attendance or not. It is not in the strong sense. You don’t get fined or punished if you don’t show up for graduation. You still get your diploma if you don’t show up.

So there’s a big argument in Lee v. Weisman between Justice [Anthony] Kennedy, who wrote the court’s opinion, and Justice [Antonin] Scalia, who wrote this very angry dissent, about what really was coercion. Kennedy said in effect: Oh, everybody wants to be at graduation. It would be terrible if you felt it was a matter of conscience that you couldn’t go to graduation, so you’re going to show up and then you’re going to be coerced – be engaged – in the prayer. But Scalia said: No, listen, nobody’s coerced to show up. Nobody gets in trouble if they don’t show up. Coercion in the legal sense means you’re going to get punished if you don’t do it. You’re going to get fined, you’re going to be imprisoned, and that doesn’t happen here.

Forum: So we’re at a public high school. Can the principal give a prayer? Can an invited clergyman give a prayer?

Lupu: Those are all the same.

Forum: Can the class valedictorian do whatever he or she wants to do? And maybe the valedictorian this year wants to give a short prayer.

Lupu: That’s a different question, and here’s why. It depends on the school’s involvement. The principal at the school may not sponsor or promote a religious exercise. So if the valedictory speech has to be shown to the principal before it is delivered and the principal knows that it includes a prayer, the school is going to be held responsible for the content of the speech, including the prayer. The courts that have engaged this question so far have said, no, that’s not good. It becomes the school’s speech. The school owns that speech – is responsible for that speech – when it supervises and signs off.

If the school doesn’t take responsibility for the content, they might be taking some risks, right? Schools are worried not only about the prayer, they’re worried about people saying scandalous kinds of things, but that’s just part of the incentive for them to look. But if they don’t look and they’re not responsible for the content, then the courts that have engaged on this question have said that it’s okay for a student speaker to give a personal thanks to God, or maybe in a form of a prayer – but not to do something that involves the audience; that is not to say, “Please stand and pray with me.” Even when it’s a student, if it’s somehow part of the enterprise of the commencement that everyone in the audience has to involve themselves in the prayer, this perhaps crosses the line.

Forum: If at this public high school the students invite a speaker who happens to be a clergyman and who happens to show up in his or her clerical garb but does not otherwise invoke religion in his or her remarks, is that okay?

Lupu: There’s a back story behind the question. How did it come to pass that the students had authority to invite guest speakers? It would be very unusual in a commencement to give students that authority, unless it was part of some elaborate plan in which the administration was involved, in which case the administration would be responsible for the content of what was said by that outside speaker. Now, I don’t think the garb presents a problem. I think what’s said presents a problem. So if someone shows up wearing a collar, that in and of itself is not a problem.

Forum: What are the rules for a public university or a private university, and then let’s consider the members of a third category – the military academies?

Lupu: The cases so far about public universities have permitted nonsectarian invocations at universities on the theory that students are older or less impressionable and therefore less subject to coercion or of having a feeling of coercion. If coercion is the operative theory here, then perhaps that distinction is sensible. If the operative theory is the government should not have a religious voice, which is a stronger, more sweeping theory, there’s no reason to treat university commencements differently from high school commencements.

But because Lee v. Weisman was focused on coercion, the courts that have addressed this public university issue have been able to distinguish the cases and essentially treat public university commencements as not very different from other public ceremonies – the inaugurations of presidents or mayors or governors, for example – where sometimes, likewise, there will be an invocation or benediction, which we have tended to permit in this culture, including in the law, as somehow serving a kind of ceremonial – historical ceremonial – function.

So the university commencement is sort of the bridge case between the high school commencement (prayer not allowed) and the inauguration (prayer allowed).

Private universities are not a problem at all: They’re not state actors; they’re not subject to the Constitution; they have their own rules; they are subject to whatever state law controls them. But no state law is ever going to tell a private university that it may or may not have a prayer.

Forum: And military academies?

Lupu: The military academies are government-controlled universities, and there are a number of cases now that say the military academies may not coerce prayer. They’re also operating under this coercion theory. So 30 years ago there was compulsory chapel at West Point. It was on Sunday, and it was compulsory. You had to attend chapel. And the Court of Appeals here in the District of Columbia said, no, you may not compel cadets to attend. You can offer it. You can make it available. You can have chaplains in the military. You can have chaplains on the West Point campus. That’s okay. But you can’t compel people to attend.

That’s coercion, and, likewise, a supper prayer at the Virginia Military Institute was recently held unconstitutional. People did not have to eat, but they had to attend. All the cadets were there, and there would be a prayer recitation – not a commencement, right? The commencement prayers have this quality of ceremony because they are marking commencement – the same way inaugurations are ceremonies – but when it’s a daily exercise, it doesn’t feel ceremonial the same way. It feels like it’s being made part of your ordinary and regular life to say the supper prayer.

The Fourth Circuit Court of Appeals – a pretty conservative court of appeals – said no, you can not have a daily meal prayer at VMI.

Forum: Why did it take until the 1960s for the Supreme Court to weigh in on religious expression in public schools? And why did it need to act?

Lupu: First, it’s important to remember that the First Amendment’s religion clauses were not held applicable to the states or to localities until the 1940s – the Free Exercise Clause in 1940, the Establishment Clause in 1947. So there wasn’t any jurisdiction over these practices by the Supreme Court until the middle of the 20th century.

Second, there had been conflicts in America back to the middle of the 19th century about religious ceremonies in public schools – Protestants versus Catholics. And the conventional pattern was that it was a Protestant prayer or Protestant Bible reading that was going on in the public schools in a great many states.

And in a great many places authorities thought of it as nonsectarian because all Protestants could comfortably say it. And they weren’t very much worried about the non-Protestants because it was a predominantly Protestant country. But what really challenged us was the big wave of Catholic immigration.

You had this kind of Protestant religious expression in the schools. And Catholics protested this and said, “We need to start our own schools; would you please pay for it?”

The authorities frequently said “no,” the courts said “no” and there were state constitutional amendments that said “no.” So this was the message to Catholics: We’re going to pay for schools to have a Protestant character; if you want to set up your own schools, that’s fine. You have to pay property tax that’s going to pay for the public schools and pay separately your own tuition for your own schools, and that’s too bad.

Now fast-forward to 1947 when the Supreme Court first said that the Establishment Clause applies to the states. And the court reinforced this idea that the state may not pay for religious education.

And I think a light went on in the Supreme Court, especially with Justice Hugo Black and others, that there was something deeply unfair in this. People suddenly perceived that you were compelling people to go to school, compelling people to pay for public school and then telling them they had to have their children participate in the prayers and Bible reading from somebody else’s faith.

That’s the backdrop for the school prayer cases in the early 1960s. This was the deal that the courts made: We’re not going to pay for your separate schools. If you want Catholic education, you’ve got to pay for it. But if you go to the public school, which you are entitled to do, we’re going to promise you that it’s going to be religion free. It is going to be a secular enterprise so that you can feel safe sending your children there and then sending them to a Catholic education after school, Sunday school or something else. We’re not going to compete with your Catholic education by giving them some Protestant education every morning in public school.

Forum: So one of the promises of the First Amendment’s religion clauses now is that the government will guarantee that public schools are a secular enterprise.

Lupu: Yes.

Forum: Is that promise still in flux? Are we going to look back in 10 years and say, well, that wasn’t so settled after all?

Lupu: The idea that public education is a secular enterprise… I said “yes,” but it’s too simple to describe public education in two words. There is the famous and forever-contested distinction between teaching religion and teaching about religion. Lots of folks reacted to this idea of the school as a secular enterprise as meaning that we can’t mention religion, religion has to drop out of history, it has to drop out of literature class, we really have to eliminate all signs and marks and vestiges. And that was an overreaction.

The school prayer cases said you can’t have worship and observance in the school. They never said you can’t mention the subject. So there’s been a lot of good, healthy, constructive attention in the last 20-30 years as to how you go about teaching about religion in a way that is respectful, has fidelity to the truth, is not designed to promote observance or belief, but rather is designed to promote understanding and awareness.

There’s a whole movement now about whether you can teach the Bible as literature. Is it permissible? How do you do it? Can you do the Bible alone? Can it just be one of many great books? And that’s all going on now.

The other limitation about the school as a secular enterprise is that we’re talking about the school in its official functions – you know, the instructions and activities sponsored by the school, including commencement. But that doesn’t apply to student speech. People wrongly think students can’t say grace at lunch, or that students can’t gather for a prayer in front of school in the morning.

Students can bring their own faith to school.

For a longer discussion of the relationship between government and religion read the Pew Forum on Religion & Public Life’s essay.