This graduation season, public school officials across the country found themselves in a Catch-22: threatened with lawsuits if they allowed prayer at high-school graduations and threatened with lawsuits if they did not. “There’s been quite a lot of controversy, and maybe even more than controversy, confusion,” admits Ivan Gluckman, general counsel for the National Association of Secondary School Principals. His Washington-area association was flooded with phone calls from school officials asking for help.

At issue is last year’s Supreme Court decision in Lee v. Weisman—and two radically different views on how to interpret it. On one side are the American Civil Liberties Union (ACLU) and other church/state separationists who believe the high court clearly struck down all prayers at graduation ceremonies. On the other side are Pat Robertson’s American Center for Law and Justice (ACLJ) and other religious groups that believe the Court left the door open for student-initiated prayers. Caught in the middle are school districts, trying to accommodate local desires, while at the same time staying out of court. It has not been easy:

• At Blue Ridge High School in Farmer City, Illinois, 65 of 66 seniors voted to have graduation prayer, but the principal said no. Class treasurer Chad Vance and other students contacted the ACLJ for help. “I feel if we don’t stand up for our rights, our rights will be eaten away,” Vance says. At the May 23 ceremony, class president Sheldon Bane quoted the Bible, but did not pray.

• Rep. Steve Buyer (R-Ind.) says he was “uninvited” to be the commencement speaker at Kankakee Valley High School’s graduation. He refused to provide a written guarantee that he would not pray.

• In Loudoun County, Virginia, Superintendent Edgar Hatrick circulated a memo outlining how prayers and religion should be handled. He said an invocation or benediction may be allowed “under limited circumstances.” The ACLU threatened legal action and warned that its members would be monitoring graduations across the country.

The turmoil began last June, when the Supreme Court ruled that Providence, Rhode Island, school officials violated the First Amendment’s Establishment Clause by sponsoring an invocation and benediction at graduation, inviting a local rabbi to give the prayers, and then instructing him to keep the prayers nonsectarian (CT, Aug. 17, 1992, p. 44). “The Constitution forbids the state to exact religious conformity from a student as the price of attending her own graduation,” wrote Justice Anthony Kennedy.

Then, in November, the Fifth Circuit Court of Appeals, in Jones v. Clear Creek Independent School District, unanimously upheld the idea of student-initiated, student-led prayers at graduation. “There is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religions, which the Free Speech and Free Exercise Clauses protect.”

The ACLU and church/state separationists were horrified. “That decision is clearly wrong, and I’m confident that the Supreme Court is not going to allow the legitimate rights of students to depend on the whims of the majority of their classmates,” says Barry Lynn, executive director of Americans United for the Separation of Church and State. But for advocates of graduation prayer, it provided the legal precedent they were seeking.

ACLJ chief counsel Jay Alan Sekulow used the Jones decision as the basis for a memo mailed to the nation’s 15,000 public-school superintendents. Sekulow’s memo warned, “The First Amendment precludes any governmental effort to single out and censor—or otherwise burden—the speech of private parties solely because that speech is religious.”

Americans United and the ACLU fired off their own memos to school boards, taking issue with Sekulow’s analysis and warning of potential legal trouble if schools followed the center’s advice. Last month Sekulow responded with a follow-up letter to every state superintendent warning of the “counter-potential for litigation” if student religious expression is stifled.

Steven McFarland, director of the Christian Legal Society’s Center for Law and Religious Freedom, says, “Student-initiated and student-delivered school prayer is constitutional … because the First Amendment only constricts the activities of the government, and students are not instruments of the government.”

By Kim A. Lawton in Washington, D.C.

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