The National School Board Association reports that the American Humanist Association has filed a lawsuit against theGreenville (SC) County School District arguing that the District violated theEstablishment Clause violated the Establishment Clause by including prayers inan elementary school graduation ceremony and by conducting the ceremony in thechapel of North Greenville University, a private religious school affiliatedwith the Southern Baptist convention. The matter of the prayers seems straightforward and is mainly interesting as areminder that even fifty years on, the school prayer decisions are not alwaystreated as law. Although the prayers were led by students, the complaintalleges that the prayers were listed in the official program and that schoolofficials asked students to write the prayers and reviewed their content. If this is true, the practice seems plainly unconstitutional under Lee v.Weisman, 505 U.S. 577 (1992). Indeed, the District’s general counselalready seems to have conceded as much by stating that any future student-ledprayers at school-sponsored events would be conducted “under differentcircumstances than that of the May 30, 2013 program.” Still, the Districthas refused to meet the plaintiffs’ demand for a “policy that prohibitsstudent-initiated and led prayer” at all future school events. In holdingopen the possibility of a different approach to student-led prayer in thefuture, the District gestures toward the idea that under certain conditions, anisland of “truly private” (and thus constitutionally permissible) studentreligious speech might exist in the context of a graduation ceremony. While there is some case law supporting this notion, Santa Fe Indep. Sch.District v. Doe, 530 U.S. 290 (2000) signals that rendering student prayersat school events “wholly private” is no easy matter. Given the young ageof the children here and the history of obvious constitutional violations,courts would and should take a skeptical eye toward future variations on thestudent-led prayer strategy.
The location of the graduation ceremony in aChristian Chapel at a private Christian university raises more interestingquestions. The leading case is Doe v. Elmbrook Sch. Dist., 687F.3d 840 (7th Cir. 2012) (en banc). There, the court found anEstablishment Clause violation where two local high schools held their (whollysecular) graduation ceremonies in the sanctuary of an evangelical“megachurch.” The majority conducted a fact-specific analysis andemphasized the overtly Christian character of the surroundings, while dissentsby Judges Posner, Easterbrook, and Ripple thought the use of the churchpermissible in the absence of evidence that the site had been chosen for anyreasons other than secular considerations such as size, air conditioning,parking, and more comfortable seats. A petition for certiorari in Elmbrookis pending before the Supreme Court. In the meantime, the Greenvilleschools have responded that if they use North Greenville University’s chapel inthe future, they will ensure that the space is “devoid of religious iconographythat would lead a reasonable observer to believe that the district is endorsingreligion.” This language may well be based on a reading of the Elmbrookmajority opinion, which appears to suggest that a “church building” would beacceptable if sufficient steps were taken to temporarily de-sacralize thespace. But perhaps the purportedly fact-specific majority analysis wouldnot work with younger children, and having courts decide how much “religiouscleansing” is enough seems unappealing for reasons given by the Elmbrookdissenters. To my mind, a better approach might focus less on the churchenvironment than on the question of the available alternative spaces and thelight they shed on why a religious site was chosen for an importantschool ceremony. (Even the Elmbrook majority opines that if themegachurch were the only suitable space in town, the case might have come outdifferently). The Greenville complaint alleges that there were othersuitable sites, which (if true) would lead me to conclude that using theuniversity chapel was unconstitutional. Much would depend, though, on thedefinition of “suitable” and presumptions about proof of suitablealternatives. I suspect the Supreme Court’s ideas about those mattersmight be different from mine.