Concerning Graduation Prayer:

The key question for determining whether a prayer is appropriate or not in the context of graduation ceremonies depends on whether the speech is government speech or private speech. The Court has emphasized that:

There is a “crucial difference” between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.” Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226 (1990).

For example, if a school district has a tradition of allowing a cross-section of the graduating parents to make brief remarks, and a parent chose to offer a prayer during that time, the prayer would be allowed. Even though the parent would be praying, the prayer would be protected because it is private speech. Doe v. Sch. Dist. of the City of Norfolk, 340 F.3d 605   (8th Cir. 2003

Furthermore, in 1992, the Supreme Court decided an important graduation prayer case, Lee v. Weisman, 505 U.S. 577 (1992). In this case, middle school administrators invited a Rabbi to give an opening prayer, which the administrators advised must be nonsectarian. The word “nonsectarian” has been understood to mean “without the specific reference to any deity that a reasonable listener would associate with a particular faith,” however, this definition has not been emphatically settled by law. The Court in Lee concluded that the Rabbi should not have been allowed to give the prayer. The rationale for the Court’s decision was that a public school event should not promote a formal religious exercise. The Court established this by acknowledging four facts: First, the school was a public school. Secondly, the school officials and teachers were active in the planning of the ceremony. Thirdly, a member of the clergy offered the prayer. Fourth, the case involved a ceremony which the attendees may have felt obligated to attend, even though attendance was not mandatory.

While much has been made of the decision, there are only two clear-cut rules from the case. The first rule from the case is that a school administrator may not invite a member of the clergy to give a graduation prayer. The second rule from the case is that a school administrator may never tell any speaker how a prayer must be delivered or else the Establishment Clause is violated.

The Student Election of a Speaker for a Graduation Ceremony Who Gives a Prayer by His Own Will.

If your school elects an individual to speak at the ceremony, who then chooses on his/her own to say a prayer, this prayer would be protected speech because it would be considered private speech. Adler v. Duval County Sch. Bd., 250 F.3d 1330 (11th. Cir. 2001).

The Student Election of a Speaker for a Graduation Ceremony Specifically for the Purpose of Giving a Prayer:

Students may elect another student by a majority vote of the senior class to give a nonsectarian invocation at graduation. Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963 (5th Cir. 1992), Goluba v. School Dist., 45 F.3d 1035 (7th Cir. 1995).

Saying (but Not Praying) “God”, “Jesus”, etc:

Although the First Amendment addresses religion and speech, different guidelines apply depending on whether an individual prays in a divinities’ name or merely mentions a divinities’ name while speaking. Even if an individual is presented the forum to speak by the government, if he/she mentions a particular deity while speaking, the words should be considered the speaker’s and not the government’s. A government may not favor nonreligious speech over religious speech.

Minutes of Silence:

Students have the right to request that school administrators provide a minute of silence at the beginning of the ceremony to accommodate the religious practices of some people who feel compelled to pray during momentous occasions. However, no current law demands that the school district obey the student’s request.

The Supreme Court has yet to determine explicitly that a minute of silence is constitutional at graduation ceremonies. Furthermore, the circuits are split as to whether a minute of silence in public school classrooms constitutional. Brown v. Gilmore, 258 F.3d 265 (4th Cir. 2001) (finding the minute of silence constitutional), May v. Cooperman, 780 F.2d 240 (3rd Cir. 1985) (finding the minute of silence unconstitutional).

 The recent trend in the law, however, seems to favor the minute of silence in the classroom as constitutional. This observation can be based on the words of Chief Justice Rehnquist, who, after recalling the procedural history of this case which was laced with failed attempts by those who would disfavor the moment of silence to gain an injunction, said the following:

“Without expressing any view of my own, or attempting to predict the views of my colleagues as to the ultimate merit of applicants' First Amendment claim, I can say with some confidence that their position is less than indisputable.” Brown v. Gilmore, 533 U.S. 1301, 1304 (2001).

A Clear Cut Scenario of Personal Free Speech

According to the 8Th Circuit Court, "the total absence of state involvement in deciding whether there will be a graduation message, who will speak, or what the speaker may say combined with the student speaker's complete autonomy over the content of the message [means] that the message delivered, be it secular or sectarian or both, is not state-sponsored." Doe v. Sch. Dist. of the City of Norfolk, 340 F.3d 605, 612 (8th Cir. 2003)

Finally,

an administrator or school system may not single out religious expression for censorship in a student’s speech. There is no question about a violation of the separation of church and state, when the audience clearly understands that the speech is being given by a student about his or her personal experiences… period. Let no one convince you of otherwise. A student does not work for the government and does not speak for the government.

The content on this page has been reviewed by The Rutherford Institute.