Vanderbilt Law Review


Colin Delaney

First Page



The Supreme Court's decision in Lee v. Weisman held clergy- delivered invocations at public-school graduation ceremonies unconstitutional. In the wake of this landmark case, school boards across the country instituted a variety of policies to avoid the establishmentarian attributes fatal to the prayers in Lee. Several Courts of Appeals soon heard cases involving authorities seeking to divorce themselves from speakers and speaker selection, in the apparent belief that school involvement placed the imprimatur of the state on graduation prayer. Yet two facts mark all of the situations challenged to date. First, an agent of the state, the school board, exercised governmental power in determining the process for selecting speakers. Second, members of a captive audience found themselves subject to the same pressure to participate in the prayer as was present in Lee, irrespective of who led the prayer and the process for selecting that person. Despite these unifying potentially unconstitutional features, post-Lee circuit courts have employed a wide variety of analyses in deciding Establishment Clause challenges to graduation prayer and have issued expressly conflicting opinions in near- identical cases.

This Note examines the major attempts to interpret and apply Lee to school board policies adopted in response to that case. It identifies the analytical shortcomings of each decision and reconciles their inconsistencies with Lee and the Supreme Court's other cases addressing public schools and the First Amendment.

Part II briefly explores pre-Lee Establishment Clause doctrine. It explains the "coercion" analysis that dominates the Lee opinion. It also lays out the competing equal access principle, which carried the day in Rosenberger v. Rector & Visitors of the University of Virginia and has since been used to justify prayers at high school graduations. Part III describes schools' attempts to avoid the flaws fatal to the principal's actions in Lee by using predetermined objective criteria or vesting the speaker-selection power in another body. It then explains the critical facts underlying Lee v. Weisman. Finally, Part III identifies the common features of Lee and subsequent graduation prayer cases from the perspective of an audience member.

Part IV observes that the graduation prayer cases lie at the intersection of several First Amendment doctrines. Lower courts have balanced the coercion analysis against the equal access doctrine. While courts often use "coercion" or "forum" language, the result has too frequently turned on behind-the-scenes speaker selection criteria. In two prominent Ninth Circuit cases, for example, agent-of-the-state analysis proved fatal to student-controlled invocations in one case, while another panel held a class rank-based invitation to speak sufficiently secular to avoid establishment.