Written by K. Hollyn Hollman, BJC General Counsel
One of my best early professional experiences was working on a successful arbitration in
a contract dispute. My client was seeking to enforce a provision that prohibited the other
party from taking some business action unless he paid my client. I’ll spare you the
document-reviewing, witness-interviewing, hours-billing details. The case was fun
because it turned on a very satisfying rule of contract law: You cannot do indirectly what
the contract forbids you to do directly. It is a rule that protects fairness by protecting the
essence of the agreement.
That rule came to mind with this year’s crop of graduation questions. I was repeatedly
asked if graduation prayer was OK, so long as students do the praying. Most callers know
the Supreme Court’s holding that the Establishment Clause was violated by the clergy-led
graduation prayer in Lee v. Weisman (1992). The Court has not decided a case involving
student-led prayer at graduation, but the Santa Fe v. Doe (2000) decision on prayer at
football games by an elected student chaplain dispelled the notion that if a prayer comes
from a student, there is no problem. Where, for example, the school provides the
microphone, invites the audience and defines a selection procedure that ensures a
majoritarian outcome on a matter of religious expression, the constitutional problem
remains. Still, as the Court itself has noted, its jurisprudence in this area “is of necessity
one of line-drawing.”
The two widely publicized graduation incidents this year involved religious speech by
students. While factually and legally distinct, both appear to miss the essence of the rule
prohibiting graduation prayer. In one Kentucky town, a crowd of students upset by a
court order requiring the removal of prayer from scheduled graduation exercises stood
during the ceremony and recited the Lord’s Prayer. While the school may have had a
sticky disciplinary issue on its hands, it probably avoided any constitutional violation.
The students ably, though perhaps not wisely, demonstrated they could pray voluntarily,
without the school scheduling it or directing them.
In a Nevada school district, school officials cut short an address by a valedictorian who
veered from her school-approved text to give a more elaborate Christian testimony. On
review of the student’s draft speech, school officials had reportedly deleted six of her 12
references to God. The student had agreed to comply. On graduation day, however, she
attempted to use her time in the spotlight to give the original version of her speech. While
the speech ended abruptly, the story received extended attention in the news and Internet
chat rooms.
No doubt the students involved in these cases would claim free speech rights and
discount the impact on those who don’t share their perspective. They would argue, quite
persuasively, that they did not coerce participation in religious exercises the same way a
formal invocation might. Appeals to free speech, however, only go so far. A graduation
stage is not what the law regards as a traditional free speech forum. School officials will
typically set the agenda and control the content of graduation ceremonies. In any event,
these incidents disregard significant religious rights and values that lie at the essence of
the graduation prayer ruling. At a highly regulated school event—this one marking an
achievement of singular importance to students and their families—no student should be
made to feel like an outsider. Protecting religious freedom requires guarding rights of
conscience and avoiding the use of government to promote religion.
By design, the First Amendment protects speech and religion differently. As Justice
Anthony Kennedy noted in Lee, speech is protected by insuring its full expression, but
religion is protected by “a specific prohibition on forms of state intervention in religious
affairs, with no precise counterpart in the speech provisions.” The explanation for this
difference lies in the lessons of history that inspired the Establishment Clause—lessons
that protect freedom of conscience and ensure religious faith is real, not imposed.
It is quite likely that boundary-testing graduation cases will continue to emerge; one may
eventually reach the Supreme Court. Fortunately, the law reaches beyond formalism, and
schools will not be allowed to simply substitute a student for a school official—doing
indirectly what is prohibited directly. Many school districts recognize that a moment of
silence or private baccalaureate service is a better vehicle for those who want to mark
graduation with prayer. During graduation ceremonies, communities are better served
when schools and students promote the essence, and not just the letter, of the religion
clauses. After all, the rule protects not only the objector or dissenting nonbeliever, but
religion itself.
This column originally appeared in the July/August 2006 edition of Report from the
Capital.
