Vanderbilt Law Review

Article Title

The Graduation Prayer Cases: Coercion By Any Other Name


Colin Delaney


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.

This Note demonstrates that none of the decisions satisfactorily integrates all of the relevant First Amendment doctrines. For example, a largely ignored line of cases validates official supervision of student speech when schools create the forum. Moreover, this Note argues that the graduation prayer decisions to date consistently ignore the fact that the result of a board's policy choice to permit an invocation is the same no matter what method determines the speaker. Recognizing this phenomenon certifies that the graduation audience, who must listen to whomever mounts the stage, is captive to the state's speaker-selecting decisions, at whatever level they operate. Thus, graduation most closely resembles other pedagogical functions, to which courts do not apply open forum analysis. Accordingly, schools cannot deny responsibility for the content of commencement programs. The Establishment Clause restrictions present in the classroom must also control graduation ceremonies. Only such comprehensive analysis sufficiently integrates the various analytical paradigms that the Supreme Court has established. Consequently, the only graduation speaker policy consistent with the Court's dictates bars all speakers from delivering a message infused with religious content.