With the recent decision by the United States Supreme Court in Greece v. Galloway, Slip Op No. 12–696, May 5, 2014, the question about whether Arizona schools can again include invocations and benedictions in their middle school and high school graduation programs has been raised by those who have only heard about the decision from television and radio news reports. In fact, the Galloway court took great pains to insure that no one would understand it to change anything regarding the school graduation cases.  The opinion stated, “This case can be distinguished from the conclusions and holding of Lee v. Weisman, 505 U. S. 577. There the Court found that, in the context of a graduation where school authorities maintained close supervision over the conduct of the students and the substance of the ceremony, a religious invocation was coercive as to an objecting student.” Galloway at 22.  That being said, why are invocations and benedictions not approved for K-12 graduations when a prayer can be offered for opening a town hall meeting? The first case to consider is Lee v. Weisman,505 U.S. 577 (1992). In this case, the District invited clergy to offer invocation and benediction prayers as part of the formal graduation ceremonies for middle schools and high schools.  Debbie Weisman, a middle school student, objected to a prayer being offered at her graduation from middle school.  The principal invited Rabbi Leslie Gutterman to offer the invocation and provided the rabbi with an informational pamphlet about making such invocations nonsectarian.  This is the invocation that was given:

God of the Free, Hope of the Brave: For the legacy of America where diversity is celebrated and the rights of minorities are protected, we thank You. May these young men and women grow up to enrich it. For the liberty of America, we thank You. May these new graduates grow up to guard it. For the political process of America in which all its citizens may participate, for its court system where all may seek justice we thank You. May those we honor this morning always turn to it in trust. For the destiny of America we thank You. May the graduates of Nathan Bishop Middle School so live that they might help to share it. May our aspirations for our country and for these young people, who are our hope for the future, be richly fulfilled. AMEN

Id. at  581-582. Despite the clearly supportive, beautiful, and ecumenical language of the prayer offered by Rabbi Gutterman, the Supreme Court found that by the school officials determining that prayers would be given at the graduations, by selecting the religious participant to give the prayers, and by providing those participants with a pamphlet giving directives about making the prayers nonsectarian in nature, the school had violated the Establishment Clause of the U.S. Constitution. Regarding the entanglement of the school with religion, the Court held, “The degree of school involvement here made it clear that the graduation prayers bore the imprint of the State and thus put school-age children who objected in an untenable position.” Id. at 590. The Court pointed out that unlike prayers given at other types of events where the public can choose to not attend until after the prayer is given or to leave during the prayer and return afterwards, a graduation ceremony is very different. The school argued that because Deborah Weisman did not need to attend the ceremony to graduate, she did not have to participate in the graduation ceremony.  The Court dealt with that argument with no little scorn, “There was a stipulation in the District Court that attendance at graduation and promotional ceremonies is voluntary. … Petitioners and the United States, as amicus, made this a center point of the case, arguing that the option of not attending the graduation excuses any inducement or coercion in the ceremony itself. The argument lacks all persuasion. Law reaches past formalism. And to say a teenage student has a real choice not to attend her high school graduation is formalistic in the extreme. True, Deborah could elect not to attend commencement without renouncing her diploma; but we shall not allow the case to turn on this point. Everyone knows that in our society and in our culture high school graduation is one of life’s most significant occasions. A school rule which excuses attendance is beside the point. Attendance may not be required by official decree, yet it is apparent that a student is not free to absent herself from the graduation exercise in any real sense of the term ‘voluntary,’ for absence would require forfeiture of those intangible benefits which have motivated the student through youth and all her high school years. Graduation is a time for family and those closest to the student to celebrate success and express mutual wishes of gratitude and respect, all to the end of impressing upon the young person the role that it is his or her right and duty to assume in the community and all of its diverse parts.” Id. at 594-595. From there the Court went on to say, “We do not address whether that choice is acceptable if the affected citizens are mature adults, but we think the State may not, consistent with the Establishment Clause, place primary and secondary school children in this position.”  Id. at 594.  “[T]he conformity required of the student in this case was too high an exaction to withstand the test of the Establishment Clause.  The prayer exercises in this case are especially improper because the State has in every practical sense compelled attendance and participation in an explicit religious exercise at an event of singular importance to every student, one the objecting student had no real alternative to avoid. No holding by this Court suggests that a school can persuade or compel a student to participate in a religious exercise.  That is being done here, and it is forbidden by the Establishment Clause of the First Amendment.” Id. at 598. The Court held, “When public school officials, armed with the State’s authority, convey an endorsement of religion to their students, they strike near the core of the Establishment Clause. However ‘ceremonial’ their messages may be, they are flatly unconstitutional.” Id. at 631.  From Lee we understand that K-12 schools cannot take the lead on placing an invocation and a benediction on the graduation program, secure a member of the clergy to make the invocations, and direct the member of the clergy to give an ecumenical prayer without violating the Establishment Clause of the U.S. Constitution. The next step in the analysis came in Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000).  In that case, the school had long allowed the election of a school chaplain who would then lead prayers at all home football games.  When this practice was challenged, the school board discussed the issue and decided to allowed the students to hold an election to decide if there would be prayer at the football games and, if the majority decision was to allow prayers at football games, to hold a second election for a student who would be the person to offer the prayers.  This, too, was found to be a violation of the Establishment Clause, even though the prayers were student led. The Court found, “School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherants ‘that they are outsiders, not full members of the political community, and an accompanying message to adherants that they are insiders, favored members of the political community.’ Lynch, 465 U. S., at 688 (O’Connor, J., concurring). The delivery of such a message—over the school’s public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer—is not properly characterized as ‘private’ speech.” Id. at 309-310. The Court distinguished the student prayer at the football games from other student prayer saying, “nothing in the Constitution as interpreted by this Court prohibits any public school student from voluntarily praying at any time before, during, or after the school day. But the religious liberty protected by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer.”  Id. at 313.  Here, as in Lee, the point was made that attending a football game is clearly voluntary and if a student was offended by the prayer, the student could simply not attend the game or arrive after the prayer was given.  In response to that argument, the majority found, Attendance at a high school football game, unlike showing up for class, is certainly not required in order to receive a diploma. Moreover, we may assume that the District is correct in arguing that the informal pressure to attend an athletic event is not as strong as a senior’s desire to attend her own graduation ceremony.  There are some students, however, such as cheerleaders, members of the band, and, of course, the team members themselves, for whom seasonal commitments mandate their attendance, sometimes for class credit. The District also minimizes the importance to many students of attending and participating in extracurricular activities as part of a complete educational experience. As we noted in Lee, ‘[l]aw reaches past formalism.’ 505 U. S., at 595. To assert that high school students do not feel immense social pressure, or have a truly genuine desire, to be involved in the extracurricular event that is American high school football is ‘formalistic in the extreme.’ Ibid. We stressed in Lee the obvious observation that ‘adolescents are often susceptible to pressure from their peers towards conformity, and that the influence is strongest in matters of social convention.’  Id., at 593. High school home football games are traditional gatherings of a school community; they bring together students and faculty as well as friends and family from years present and past to root for a common cause. Undoubtedly, the games are not important to some students, and they voluntarily choose not to attend. For many others, however, the choice between attending these games and avoiding personally offensive religious rituals is in no practical sense an easy one. The Constitution, moreover, demands that the school may not force this difficult choice upon these students for ‘[i]t is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state sponsored religious practice.’ Id., at 596.  Even if we regard every high school student’s decision to attend a home football game as purely voluntary, we are nevertheless persuaded that the delivery of a pre-game prayer has the improper effect of coercing those present to participate in an act of religious worship. For ‘the government may no more use social pressure to enforce orthodoxy than it may use more direct means.’ Id., at 594. As in Lee, ‘[w]hat to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.’ Id., at 592. The constitutional command will not permit the District ‘to exact religious conformity from a student as the price’ of joining her classmates at a varsity football game. Id. at 311-312.  Since football, itself may be deemed by many to actually be a religion in Texas, the social pressure on the non-believer to attend the games and participate is understandable.  The Court went on to hold, “the simple enactment of this policy, with the purpose and perception of school endorsement of student prayer, was a constitutional violation.” Id. at 316. Interestingly enough, however, the Supreme Court has refused to rule on cases from Texas where a student elected to give an invocation and benediction at a high school graduation had been upheld as proper by Third Circuit Court of Appeals and where case in the 9th Circuit where the opposite conclusion was reached.  Since Arizona is in the 9th Circuit, Arizona schools are expected to comply with the findings of the 9th Circuit, at least until such time as the Supreme Court decides to rule. This is part one of a blog that should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please feel free to contact School Law Attorney, Candyce B. Pardee at  520.678.9108, log on to udallshumway.com,  or contact an attorney in your area. Please check back on 7-21-2014 for part two of ” ‘Greece’ is Not The Word… At Least Not for Prayers at K-12 Graduations in Arizona”