Graduation Prayer After Lee v. Weisman: a Cautionary Tale - Stephen B. Pershing

• Citation: Vol. 46 No. 3
• Publication year: 1995

Graduation Prayer After Lee v Weisman: A Cautionary Taleby Stephen B. Pershing^*

Loudoun County, Virginia, is a lush expanse of fields and rolling hills at the edge of the burgeoning Washington metropolis. Its growing population¹ is heavily white,² affluent,³ and Christian.⁴ In 1993, a year after the Supreme Court's decision in Lee v. Weisman,⁵ the county not surprisingly became an arena for the resurgence of a familiar majoritarian dispute: the legality and propriety of officially sponsored prayer in America's public schools.

This Article tells the story of the Loudoun County graduation prayer litigation, and tries to set the case in context. It ponders doctrinal questions from an unabashedly separationist perspective, but it offers words of caution for both sides in the debate. For while the notion of officially promoted group prayer for public school students raises Establishment Clause alarms that are as urgent today as they were a generation ago in Engel v. Vitale,⁶ the current wave of school prayer controversy also involves questions of individual free speech that are only now receiving fuller treatment in the courts and the academic literature.

The latest school prayer furor was predictable from the well-known antagonism of some, though by no means all, devout religionists to court decisions of the past generation that have restricted public school prayer in one way or another.⁷ The latest chapter of the dispute opened when the United States Supreme Court held, in Weisman, that a public school system could not constitutionally arrange for a member of the clergy to deliver a prayer at a middle school graduation ceremony in Providence, Rhode Island.⁸ Though the Court's pronouncements in Weisman were ringing and unequivocal,⁹ observers critical of the result in the case followed in their forbears' footsteps¹⁰ and chose to search for gaps or limitations in the decisional language that could leave room for an argument that some organized prayer was still permitted in the nation's public schools.

The Weisman critics' search was eased and encouraged by an anomalous federal appeals court decision, Jones v. Clear Creek Independent School District,¹¹ which addressed the particular question whether a public school graduation prayer was permissible where it resulted from school implementation of a majority vote of the graduating class.¹² The Fifth Circuit had held, after Weisman had been appealed to the Supreme Court but before certiorari was granted,¹³ that such a prayer did not violate the Establishment Clause. At the time the Supreme Court decided Weisman, a petition for certiorari was pending in Jones.¹⁴ The Court granted the petition, vacated the Fifth Circuit's decision and remanded the case "for further consideration in light of Lee v. Weisman."¹⁵ The Fifth Circuit's opinion on remand essentially warmed over its previous holding, but cloaked it in Weisman garb, saying that the student-led prayer passed muster under each of several available Establishment Clause tests.¹⁶

By early 1993 the American Center for Law and Justice ("ACLJ"), affiliated with the Reverend Edmund G. "Pat" Robertson's Christian Broadcasting Network and the Regent (formerly CBN) Law School,¹⁷ had drafted and circulated a "bulletin"¹⁸ to every school superintendent in the nation¹⁹ which, in the name of providing "helpful . . . information,"²⁰ proclaimed in a shameless distortion of the caselaw that Jones II was now controlling: "Students have the right to include an invocation and benediction in their graduation exercises."²¹ The bulletin explained,

In [Weisman], the Supreme Court held only that it violates the Establishment Clause for school officials to invite clergy to give prayers at commencement .... Indeed, following [Weisman], at least one [fjederal [a]ppeals [c]ourt has ruled that "a majority of students can do what the State acting on its own cannot do to incorporate prayer in public high school graduation ceremonies."²²

The bulletin also advised that "within the context of a valedictorian, salutatorian, or other address, students may initiate prayers, Christian testimonies or other religious speech,"²³ and indicated that "[sjtudents, community groups and area churches are entitled to sponsor events, such as baccalaureate ceremonies .... Thus, avenues still exist after [Weisman] for voluntary yearly baccalaureate ceremonies [at school]."²⁴ On February 5, 1993, the Loudoun County school superintendent, in consultation with the local school board, distributed to principals of the county's four public high schools a memorandum he had written, based on the ACLJ Bulletin, which purported to set out "guidelines . . . with regard to baccalaureate [services and] prayer at graduation . . . ."²⁵ Though the superintendent later testified that the central school administration left decisions about graduation ceremonies to "the individual schools,"²⁶ he also stated that his own "personal position" was that "having prayer at school graduation is an appropriate vehicle for solemnization" because it "acknowledg[es] a power beyond ourselves."²⁷ Accordingly he devised a simple scheme parallel to the one at issue in Jones, i.e., official implementation of the results of a simple majority vote of members of the senior class on whether to have a prayer at graduation.²⁸ Meanwhile, also in February 1993, two members of the county school board drafted a resolution to "express support for prayer at graduation," a statement that they "figured . . . would be picked up by the media" and that "most of the community would see . . . ."²⁹ The unusual resolution³⁰ ultimately passed the full board that April, to the wide publicity its patrons had expressly intended.³¹

Principals at the county's high schools proceeded to hold student assemblies for their senior classes at which the superintendent's memorandum was read aloud and the voting arrangement presented. From there school officials proceeded to orchestrate the vote.³² The procedure was repeated with minor variations at each school, e.g., as to who called the meetings, or whether a teacher was the only speaker at the meeting where the plan was presented. Some might think it significant, for instance, that senior class officers at one high school asked their principal, rather than the other way around, for a meeting on the prayer issue, or that senior class officers, acting with apparent unanimity, put the matter to a class vote themselves.³³

The ensuing votes at all four high schools were lopsided in support of prayer.³⁴ At Loudoun County High School, the vote was 125 in favor, 46 opposed and 4 recorded as "other."³⁵ At Loudoun Valley High School, the vote was 133 in favor and 33 opposed.³⁶ At Broad Run the vote was 145 to 46,³⁷ and at Park View the vote was 171 to 33.³⁸ After the votes, school administrators guided students as to choice of text and reviewed the proposed prayers in advance, in particular to observe the superintendent's admonition that any prayer was to be "non- sectarian and non-proselytizing",³⁹ even in one instance changing the text at the last minute following the onset of litigation.⁴⁰ At Loudoun County High School, the county's oldest and largest, school officials handed out and collected ballots for the prayer vote, and afterwards made most if not all of the decisions about the prayer itself: who would recite it, when in the graduation ceremony it would be given, and even what it would and would not say. The Loudoun Valley High School principal testified that if he had had doubts about whether the prayer to be offered was "non-sectarian" and "non-proselytizing," he would have sent the student who posed the question to a pastor and would have "taken the pastor's word" for the answer.⁴¹

As soon as plaintiffs could be found from the affected community, a preliminary injunction was sought and obtained in federal district court.⁴² The county appealed immediately to the Fourth Circuit and was granted a stay of the injunction almost without a word.⁴³ Graduation ceremonies in the Loudoun County high schools then took place with varying degrees of religiosity.⁴⁴ The interlocutory appeal was dismissed by stipulation, and the case proceeded through discovery and summary judgment in the district court. It was submitted to Judge Bryan in late 1993⁴⁵ by agreement of the parties for a paper "trial" on the ultimate issues, i.e., for findings and conclusions on stipulated facts and documentary evidence without an oral hearing.

Defendants contended, in the district court's words, that "the remarks delivered were student-initiated, student-written and student-delivered, and, therefore, lacked the pervasive government involvement condemned in [Weisman] and [Lemon]. They reified] heavily on [Jones II]. They also assert[ed] that the students' purpose in the remarks was to 'solemnize' the graduation ceremonies, and that such a purpose does not run afoul of the Establishment Clause; and that the prayer at issue neither advances nor inhibits religion."⁴⁶ Plaintiffs' arguments were essentially that Weisman applied; that Jones was wrongly decided; and that "student-initiated" and "student-led" prayers at Loudoun County's graduations were no less violative of the separation command than the prayers given by clergy in Weisman. As the district court put it, the heart of the plaintiffs' case was that "state sponsorship of a graduation ceremony cannot be insulated from government entanglement [with religion] by delegating to a majority of the members of the graduating class the decision whether prayers are to be included."⁴⁷

Plaintiffs used three local expert witnesses: a school psychologist, a college professor of religion, and a Conservative Jewish rabbi. The expert testimony was to the effect that the prayers actually given at the graduation ceremonies were essentially Christian, regardless of their supposed "non-sectarian" cast; that for non-Christians "participation in even 'non-denominational' and...