Legal Brief

Religious Invocations at Graduation
By RAY LI/School Administrator, June 2019

AS GRADUATING SENIORS of Canton High School’s Class of 2018 found their seats for their commencement, the Rev. John Tamilio led an invocation, calling upon a “holy, loving and most gracious God” to bless the graduates. A few days later, the Freedom from Religion Foundation sent the school district a demand letter notifying administrators that the invocation violated the Establishment Clause of the First Amendment, citing a U.S. Supreme Court precedent in Lee v. Weisman.

The fact Canton High School was holding an invocation at its 2018 graduation was surprising, given that Lee was decided in 1992. In that case, the Supreme Court held that public schools cannot invite clergy members to deliver religious invocations at graduation ceremonies.

In the Lee case, a principal had asked a rabbi to deliver prayers at graduation and provided him with a pamphlet that made recommendations for nonsectarian prayers at civic ceremonies. In this invocation and benediction, the rabbi thanked God and asked for blessings for the graduates.

The Supreme Court found the principal had excessively entangled the school with religion. The principal’s involvement in scheduling an invocation, selecting a rabbi and giving him instructions on how to structure his prayer crossed the line into unconstitutional behavior.

Student-Led Prayer
While Lee prohibits clergy-led invocations and benedictions, the Supreme Court also has addressed whether student-led invocations are constitutionally permissible. In Santa Fe Independent School Dist. v. Doe, the Supreme Court in 2000 invalidated a school district’s policy that called for a student election to decide whether student-led invocations could be held before football games. The court ruled that student-led speech and student-initiated religious speech was unconstitutional, even if student elections authorized it. The Supreme Court did not state whether their decision also prohibits student-led invocations before graduation ceremonies.

Lower courts have grappled with whether the decision in Santa Fe should prohibit student-led graduation invocations. Since 2000, no federal court has permitted a school to hold a student election to decide if a student-led invocation should be given at graduation.

At least two lower courts have found that student-initiated, student-led invocations at graduations violate the First Amendment. For example, in Deveney v. Board of Education of County of Kanawha, a federal district court in 2002 enjoined a school district in West Virginia from permitting a student government to vote on whether a student would lead an invocation at graduation. In Appenheimer v. School Board, a federal district court in Illinois enjoined a school’s class officers from voting on including a student-led invocation as a designated portion of their graduation ceremony.

No Allowances
In sum, the Supreme Court determined in the 1992 Lee case that school official-initiated and clergy-led graduation invocations are unconstitutional. The Supreme Court further determined, in Santa Fe, that student-initiated and student-led invocations before football games also were unconstitutional.

Federal courts have applied the latter ruling to prohibit student-initiated and student-led invocations at graduation ceremonies. Since Santa Fe was decided in 2000, no federal court has allowed a school to hold student-initiated and student-led invocations at graduation.

School administrators ought to be mindful of excessive entanglements with religion. When determining graduation ceremony policies, school district leaders should:

» Refrain from inviting clergy to give invocations or other religious speeches.

» Avoid designating any portion of a graduation ceremony for prayer, even if nonsectarian.

» Do not name any portion of a graduation program a “benediction,” “prayer” or “invocation.”

» Require students not make religious remarks in their speeches.

» Prohibit administrators from including any religious language in their remarks.

RAY LI is an education associate in the Hogan Lovells law firm in Washington, D.C. Twitter: @RayLiEdLaw. Maree Sneed, a senior counsel at Hogan Lovells, assisted with the column.