The 9th Circuit Court of Appeals case is Cole v. Oroville Union High School District, 228 F.3d 1092 (9th Cir. 2000). The Court of Appeals actually found the matter moot as to all issues other than the issue of damages alleged by the plaintiffs Ferrin Cole and Chris Niemeyer, the students whose graduation addresses were banned by the principal. The background of the case was that every year the Oroville High School held a formal graduation ceremony on school property. The program graduation, again, a program determined by the District, consisted of welcoming remarks, introduction of the District board and superintendent by the school principal, the singing of the National Anthem, a salute to the flag, a spiritual invocation delivered by a student chosen by a vote of his or her classmates, several songs, graduation speeches by the valedictorian and salutatorian, presentation of the class and diplomas, presentation of the class advisors, one or two farewell speeches and a recessional. The District controls ever aspect of the graduation, including requiring students to sign behavioral contracts. Again, as in Lee, students did not have to attend graduation to receive a diploma.
Because of concerns about lawsuits and potential violations of the Establishment Clause, however, the principal had begun reviewing all student speeches prior to graduation. Until graduation of 1998, the main review had been to make grammatical corrections. During the 1997-1998 school term, Niemeyer was selected as a co-valedictorian; Cole was elected by his classmates to give the invocation. Neither provided the principal with drafts of their remarks until days before the June 5th graduation. After reviewing the speeches each planned to give, the principal, after discussion with legal counsel, told the boys that they would be unable to give the speeches unless they were edited to remove the overtly Christian references from the invocation and the overtly proselytizing message of the valedictory speech. The boys refused to do so and the principal refused to let them make their speeches at graduation. The boys attempted to file an injunction, which was denied, and later filed the suit, including Niemeyer’s younger brother, also enrolled in the school, to attempt to avoid the issue of mootness.
The 9th Circuit used the rationale of the Lee and Santa Fe cases cited above to extend the ability of a school principal to prevent a student body elected representative from offering an invocation at the high school graduation and to prevent the valedictorian from offering a proselytizing valedictory address. The Court found that the boys’ right to free speech was not violated by the District officials, stating, “Even assuming the Oroville graduation ceremony was a public or limited public forum, the District’s refusal to allow the students to deliver a sectarian speech or prayer as part of the graduation was necessary to avoid violating the Establishment Clause under the principles applied in Santa Fe Independent School District v. Doe, 530 U.S. 290, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000), and Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed. 2d 467 (1992).” Id. at 1101.
As to Cole’s invocation, the Court held, “it is clear the District’s refusal to allow Cole to deliver a sectarian invocation as part of the graduation ceremony was necessary to avoid an Establishment Clause violation. The invocation would not have been private speech, because the District authorized an invocation as part of the graduation ceremony held on District property, allowed only a student selected by a vote of his classmates to give an invocation and no doubt would have used a microphone or public address system to amplify the invocation to the audience at the graduation ceremony….In addition, as the Court noted in Santa Fe, an invocation policy by its very terms appears to reflect an impermissible state purpose to encourage a religious message.” [Internal citations deleted.] Id. at 1102.
The Court recognized that Niemeyer’s valedictory speech did not have the same degree of District imprint as did Cole’s invocation saying, “Chris Niemeyer’s valedictory speech presents a more difficult issue as to whether the speech was private or attributable to the District. As the appellants argue, the valedictorian speech policy neither encourages a religious message nor subjects the speaker to a majority vote that operates to ensure only a popular message is expressed at the graduation.” Id. at 1103. Despite this, the Court went on to find, “we conclude the District’s plenary control over the graduation ceremony, especially student speech, makes it apparent Niemeyer’s speech would have borne the imprint of the District. … First, the District authorizes the valedictory speech as part of the District-administered graduation ceremony, which is held on District property and financed in part by District funds and in which only selected students are allowed to speak. … Second, the principal retains supervisory control over all aspects of the graduation, and has final authority to approve the content of student speeches. See id. Third, the District requires the students to sign a special contract obligating them to act and dress in a manner prescribed by the District. … Finally, the speech presumably is broadcast to the audience over a school microphone or public address system. …Allowing Niemeyer to give his proposed valedictory speech at the Oroville graduation would have constituted government endorsement of religious speech similar to the prayer policies found unconstitutional in Santa Fe and Lee. Because District approval of the content of student speech was required, allowing Niemeyer to make a sectarian, proselytizing speech as part of the graduation ceremony would have lent District approval to the religious message of the speech. Equally important, an objective observer familiar with the District’s policy and its implementation would have likely perceived that the speech carried the District’s seal of approval.” [Internal citations omitted] Id.
The Court stated, “Cole and Niemeyer remained free to pray and to proselytize outside of school or in contexts where the District would not have been an actual or perceived party to their religious activities. Indeed, the Religion Clauses promote robust private religious debate, allowing each religion to ‘flourish according to the zeal of its adherents and the appeal of its dogma.’ [Zorach v. Clauson] …. However, ‘[t]he Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice, and that while some [government] involvement and entanglement are inevitable, lines must be drawn.’ [Lemon v. Kurtzman]… The requirement that religion be left to the private sphere is the product of a well-documented and turbulent history, demonstrating that ‘in the hands of government what might begin as a tolerant expression of religious views may end in a policy to indoctrinate and coerce.’ [Lee] This danger is most apparent here, where allowing the students to engage in sectarian prayer and proselytizing as part of the graduation ceremony would amount to government sponsorship of, and coercion to participate in, particular religious practices.” [Internal citations omitted] Id. at 1104.
Even though the 9th Circuit found that Cole and Chris Niemeyer had standing to bring damage claims against District officials, “the officials did not violate the students’ right to freedom of speech. Rather, District officials acted reasonably to avoid violating the Establishment Clause.” Id. at 1105.
To summarize, students may informally choose to pray before, during and after graduation. The school may not, however, include an invocation or a benediction as part of its school sponsored graduation exercises without running afoul of the Establishment Clause. It appears that if the District does not choose to review student valedictory speeches for content or require students to comply with certain regulations regarding religion in those speeches, a student may be able to proselytize without worrying about District censure. Once the District chooses to exert control over the content of graduation speeches, however, the government imprimatur is on even those. Finally, the new Supreme Court ruling in Greece v. Galloway, referring to prayers to open legislative bodies, specifically upheld Lee, distinguishing graduation exercises from legislative prayers. As always, be sure to consult with your own District’s attorney if matters regarding freedom of speech or violation of the Establishment Clause arise.
This is part two 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.