The story here is simple. Bastrop High School, a public school in Louisiana, originally included a prayer in the school’s graduation ceremony. After a complaint by student Damon Fowler, the school removed the prayer from the program. However, at the 20 May 2011 graduation ceremony, the valedictorian led those in attendance in a recitation of “the Lord’s Prayer”. (http://www.youtube.com/watch?v=DYLpZIv8xFY).
This situation brings forth an important Constitutional question: Does student-led prayer violate the Establishment Clause of the First Amendment to the Constitution?
To best approach these questions, we first must read the operative Constitutional text, which states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. Good. Now fast-forward 171 years to the Supreme Court, which banned daily prayer in public schools in Engel v. Vitale (1962) and affirmed that ruling in Abington v. Schempp (1963). In Schempp, the daily prayer in question was actually the same prayer used at Bastrop High’s graduation; “the Lord’s Prayer”. Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (U.S. 1963). While there is a large difference between daily compulsory prayer and a singular prayer at graduation, I think it’s important to note the contextual similarity of the prayers in question. (The Lemon Test line of cases established in Lemon v. Kurtzman (1971) is of course noteworthy here. The Lemon Test states that a governmental action must meet three criteria in order to withstand Establishment Clause attack: a. Purpose – There must be a secular governmental purpose, b. Effect – Its effect must neither advance nor inhibit religion, c. Entanglement – There must not be an excessive government entanglement with religion.)
A more pertinent case was decided in 1992, Lee v. Weisman. In that case, the public school administration chose a rabbi to lead a prayer at an optional graduation ceremony (as most graduation ceremonies are optional). The Court held that this act was an unconstitutional establishment of religion. A school administrator, as an employee of the State, may not direct religious content at a public school graduation. The Court noted the following facts irrelevant: attendance was optional, the prayer was brief, the prayer was broad and ‘nonsectarian’, and the occasion was significant and as such many wished for the inclusion of religion. Lee v. Weisman, 505 U.S. 577 (U.S. 1992).
Since this ruling, many school districts have changed policies, but also changed tactics. There have recently been questions in the federal courts of student-led prayer at graduation ceremonies that have yet to reach the Supreme Court. Thus, the question has been left open by the Court: Is student lead prayer at public school graduations violative of the Constitution?
I feel that such an act is indeed violative of the Constitution. To find out why, we again need to cover a bit of Supreme Court history.
In Marsh v. Alabama, the Court held that if a private entity provides a public function, a function traditionally reserved for the State, the entity can be considered a State actor, and thus be bound by the Constitution. Marsh v. Alabama, 326 U.S. 501 (U.S. 1946). The Court has advanced this ‘state action’ doctrine over the years, adding additional reasons a private entity could be bound by the Constitution as a State would. In 1961 the Court wrote,
…[N]o State may effectively abdicate its responsibilities by either ignoring them or by merely failing to discharge them whatever the motive may be. It is of no consolation to an individual denied the equal protection of the laws that it was done in good faith… By its inaction, the Authority, and through it the State, has not only made itself a party to the refusal of service, but has elected to place its power, property and prestige behind the admitted discrimination.
Burton v. Wilmington Parking Authority, 365 U.S. 715 (U.S. 1961). Later, the Court held that state action may be found when there is a “close nexus between the State and the challenged action”, such that the action “may be fairly treated as that of the State itself.” Jackson v. Metropolitan Edison Co., 419 U.S. 345 (U.S. 1974).
Most recently, the Court decided Brentwood Academy v. Tennessee Secondary School Athletic Association in 2002. In that case the Tennessee Secondary School Athletic Association was a not-for-profit corporation charged with regulating interscholastic competition in the state. Brentwood Academy, a private school, claimed that its First and Fourteenth Amendment rights were being infringed by the Association as it acts as a state entity. The Supreme Court agreed. The Court felt that there was a "pervasive entwinement" of state and private officials with state-sanctioned and recognized authority. Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass'n, 531 U.S. 288 (U.S. 2001).
What does this all mean? That the Courts can hold non-State entities accountable as if they were indeed formal actors of the State. The Court has indicated that this determination is necessarily a fact-intensive one, but in general the entity must either occupy a role traditionally occupied by the state (Marsh), implicitly be given state authority by the State (Brentwood), etc.
And in the end…
The Court has already held that State-led prayer at a voluntary public high school graduation violates the First Amendment. (Lee v. Weisman). While the student who led the prayer is not a state employee, she stood on stage, with the microphone, commanding the attention of those gathered. Instead of a school administrator making the decision for a prayer, such a decision was given to her, granting her the ‘power and prestige’ of the State. (Burton v. Wilmington PA). The same coercive infirmaries discussed and acknowledged in Lee v. Weisman exist here: no marginalized individual will feel differently if an administrator chose the prayer or a student chose the prayer. A student speaking at a graduation is a state actor. If the student was speaking merely as an individual, and not an actor of the state, who would pay attention? How many would attend the speech of a random 18-year-old recent high school graduate? The prayer itself occurred because the state had given it a forum, a captive audience, and implicit approval. The students are there to participate in their graduation ceremony from a public high school. No student need be ostracized at his/her own graduation on religious grounds. Not in America.
If the Court were to hold that this individual wasn’t a state actor, such a holding would effectively erode Lee v. Weisman. School administrators would be able to get around the ‘impositional power’ avoided in that case by simply finding a student to do the prayer instead of a selected clergy member. The state will still be establishing religion. Those of any other religious persuasion would still suffer legally cognizable coercion.As such, I condemn the actions taken this weekend at Bastrop, and similar ones wherever and whenever they may occur. I also commend the—apparently—lone student dissenter to this event, Damon Fowler, for standing up for the firm separation of church and state in America.