Vanderbilt Law Review

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The Supreme Court consistently has held that it is unconstitutional to pray in public school classrooms.' Until 1992, however, the Court had never addressed the issue of prayer at a public school graduation ceremony. Prior to the Court's ruling, public school districts across the country regularly included a prayer of some variety in their graduation programs. In June 1992, the Supreme Court finally addressed this longstanding practice. In Lee v. Weisman, the Court held that the Providence, Rhode Island school district violated the Establishment Clause of the First Amendment by permitting a rabbi to offer an invocation and benediction at its commencement ceremony.

Although it is possible to interpret the Weisman decision as proscribing all prayer at public school graduation ceremonies, at least one court refused to read Weisman this broadly. In Jones v. Clear Creek Independent School District, the Fifth Circuit Court of Appeals held that a Texas school district did not violate the Establishment Clause when it allowed student volunteers to recite prayers at its commencement ceremony. Clear Creek reached the Supreme Court during the Court's 1992 term, just weeks after the Weisman decision. The Court vacated the Clear Creek ruling and remanded it to the Fifth Circuit, with instructions to rehear it in light of Weisman. The Fifth Circuit promptly reaffirmed the constitutionality of the Clear Creek student-led prayers, notwithstanding Weisman. The Supreme Court subsequently denied certiorari, adding to the confusion surrounding what types of prayer might survive Weisman.

Principals, superintendents, and state legislatures continue to struggle to identify what kind of prayer, if any, is constitutionally permissible at public school commencement ceremonies. In early 1993, a Pat Robertson backed organization, the American Center for Law and Justice ("ACLJ"), pressured schools across the nation to permit student-led prayers at their graduation ceremonies in lieu of the clergy-led prayers outlawed in Weisman. The ACLJ argued that powers. Because Congress possessed no power under the Constitution to legislate on matters concerning religion, Congress has no such power even in the absence of the First Amendment. It is therefore unreasonable, even fatuous, to believe that an express prohibition of power--'Congress shall make no law respecting an establishment of religion'-vests or creates the power, previously nonexistent, of supporting religion by aid to all religious groups.