Neutral or hostile?

National | As another graduation season arrives, the ACLU and the courts again challenge student-led prayer

Issue: "Germ warfare and national security," June 2, 2001

Natasha Appenheimer wasn't a typical valedictorian. As she rose to get her diploma May 20 at Washington High School in Washington, Ill., just outside Peoria, the audience booed. "It wasn't too bad," she said. "It had happened at practice, too, so I was ready for it." Just four days earlier, Miss Appenheimer and her lawyers from the state's American Civil Liberties Union chapter filed a lawsuit over the student-led invocation and benediction at the graduation ceremony. A cooperative judge issued a restraining order to stop the prayers, ending a tradition dating back 80 years. The school board buckled and senior class president Omar Yunus lectured it: "To say that there is a deity is sowing seeds of intolerance and divisiveness throughout the senior class, especially for those who believe in multiple gods or no god at all. Step aside from your personal views and look at diversity." In announcing his decision, Judge Joe Billy McDade declared, "If one student at Washington Community High School is deprived of his or her constitutional rights, then that takes precedence over the rights of the majority." But the majority was heard. The Peoria Star-Journal's Internet poll found 77 percent of respondents opposed the judge's prayer ban, and 200 students surrounded the school's flagpole before the ceremony in a prayer vigil. At the ceremony, senior speaker Ryan Brown drew a standing ovation from some for taking a moment of silence. Audience members cheered the band's playing of "God Bless America." The Star-Journal's editorial supporting the prayer ban claimed, "The irony, of course, is that there was far more prayer at Washington's graduation than there would have been had none of this happened." The incident is the latest episode of what is becoming an American tradition. At the end of every school year, graduation is a time for celebration but also litigation. In 1962, the Supreme Court outlawed organized school prayer. In 1992, the court banned prayers by school officials and outside speakers. Over the last decade, as graduation prayers fell to students to organize and lead, anti-prayer activists have taken school districts to court to end student-led prayers as well. So all roads lead to Washington, D.C., and to the U.S. Supreme Court. But the patchwork of prayer decisions over the last few years has grown so confusing that even federal judges have complained that the totality of the high court's decisions on church-state separation is "a vast and perplexing desert." Amid the confusion, Jay Sekulow of the American Center for Law and Justice found as a general rule, "three justices are in favor of prayer [he cited Chief Justice William Rehnquist, Antonin Scalia, and Clarence Thomas], and six are not. They are very divided, and it will take a couple of retirements to bring clarity." In the meantime, federal courts have been all over the map:

  • In California in 1998, the liberal-dominated 9th Circuit Court of Appeals ruled that schools could prevent valedictorians from offering a religious message in Cole vs. Oroville Union High School. Oroville co-valedictorian Chris Niemeyer had planned a graduation speech stating that man's plans "will not fully succeed unless we pattern our lives after Jesus' example." He also wanted to say that "God seeks a personal relationship with each one of us-Jesus wants to be our best friend." After reviewing Mr. Niemeyer's speech and fellow student Ferrin Cole's invocation, Principal Larry Flynn ordered them to tone down the sectarian messages. Mr. Niemeyer and Mr. Cole filed suit. Mr. Niemeyer would not take Jesus out of his speech, so school officials banned him from speaking altogether. The judges ruled that Oroville's principal had supervisory control over all aspects of the graduation, including the content of student speeches. The Supreme Court declined to take on the case, letting the ruling stand in states of the 9th Circuit.
  • Last year the Supreme Court declared that student-led prayers over the public address system before high-school football games in Santa Fe, Texas, was unconstitutional. But that decision didn't mandate the end of student-led graduation prayers, and it left up for grabs the definition of government neutrality in regard to religion. Groups like the American Civil Liberties Union believe neutrality toward religion means no religious speech at a school microphone. Pro-prayer lawyers argue that neutrality means that students marking the end of their high-school days are free to espouse religion, or atheism, or the sounds of silence.
  • Last month, the 11th Circuit Court of Appeals, in Adler vs. Duval County School Board, ruled in favor of student prayer by a vote of 8 to 4. (The full-court "en banc" ruling is rare, since most appeals-court rulings come from a three-judge panel.) Unlike the "prayer-only" policy in the Santa Fe case, the Adler case centered on the policy that Jacksonville, Fla., area schools instituted for graduation in 1993: Graduating students could speak on any topic, secular or religious, or no topic, free of school oversight or censorship. The ACLU still had complained that students could thank not only family and friends, but G-O-D as well.

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