May a student lead a prayer at graduation exercises?
It depends on the court and the context. If the student speech is deemed to be school-sponsored or endorsed by the school, the student prayer would violate the establishment clause. Some courts have determined that purely student-initiated speech would not run afoul of the establishment clause.
Two federal appeals court decisions show how the courts are divided on this issue.
In October 2000, the 9th U.S. Circuit Court of Appeals rejected a First Amendment challenge brought by students in California who were denied the right to make a religious speech at graduation. The court determined that school district officials reasonably prevented the student’s religious speech to avoid violating the establishment clause. The court determined in Cole v. Oroville Union High School that even "if the 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."
However, in May 2001, the 11th U.S. Circuit Court of Appeals refused to strike down a Florida school district policy allowing an elected student to deliver an unrestricted message at graduation. The court in Adler v. Duval County School Board determined that "it is impossible to say that … [the policy] on its face violates the Establishment Clause without effectively banning all religious speech at school graduations, not matter how private the message or how divorced the content of the message may be from any state review, let alone censorship."
Are baccalaureate services constitutional?
Yes, if they are privately sponsored. Public schools may not sponsor religious baccalaureate ceremonies. But parents, faith groups, and other community organizations are free to hold such services for students who wish to attend. The school may announce the baccalaureate in the same way it announces other community events. If the school allows community groups to rent or otherwise use its facilities after hours, then a privately sponsored baccalaureate may be held on campus under the same terms offered to any private group.
If students themselves nominate a fellow student to say a prayer at graduation, with no help from the school, will that prayer be permissible?
The answer will depend in part on the age of the graduating students and the nature of the prayer. Including a prayer by a student would pose no problems at the university level. However, high schools and junior highs have to be more careful and may need to consider the content of the prayer. Courts have found that if students organize themselves wholly independently of the school to present a sectarian prayer, if it even appears that the school was involved, the act would violate the Constitution. It is important to note that because graduation ceremonies are school-sponsored, it is difficult to avoid the appearance of school involvement. A student-initiated prayer that was non-sectarian and non-proselytizing might not violate the establishment clause, but many people object to such exercises as “civil religion” that dilutes prayer. One federal district court has held that a student chosen on the basis of neutral criteria (the valedictorian or class president, for example) may deliver a prayer of any sort on his or her own if the school is not involved – because for the school to censor the student’s religious speech would also violate the Constitution. It’s a tricky area. For those who want prayer to be included in secondary-school graduations, the best approach may be to hold a privately sponsored, voluntarily attended baccalaureate service after school hours, perhaps at a local church.
Does it violate my First Amendment rights if a school official reads over my graduation speech before I give it?
No. The courts have said school officials may review a graduation speech before it is given. They may also censor parts of that speech as long as they can show it is reasonably related to a legitimate educational concern. The U.S. Supreme Court, in the 1985 case Bethel School District v. Fraser, asserted that “The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board.” In its 1988 ruling in Hazelwood School Dist. v. Kuhlmeier, the Supreme Court wrote that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Meanwhile, the 9th U.S. Circuit Court of Appeals, in a case (Cole v. Oroville Union High Sch.) that dealt specifically with the issue of graduation speeches, issued an opinion in 2000 that stated in part, “the principal retains supervisory control over all aspects of the graduation, and has final authority to approve the content of student speeches.”