Monday, October 21, 2013
The National School Board Association reports that the American Humanist Association has filed a lawsuit against the Greenville (SC) County School District arguing that the District violated the Establishment Clause violated the Establishment Clause by including prayers in an elementary school graduation ceremony and by conducting the ceremony in the chapel of North Greenville University, a private religious school affiliated with the Southern Baptist convention. The matter of the prayers seems straightforward and is mainly interesting as a reminder that even fifty years on, the school prayer decisions are not always treated as law. Although the prayers were led by students, the complaint alleges that the prayers were listed in the official program and that school officials 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 counsel already seems to have conceded as much by stating that any future student-led prayers at school-sponsored events would be conducted “under different circumstances than that of the May 30, 2013 program.” Still, the District has refused to meet the plaintiffs’ demand for a “policy that prohibits student-initiated and led prayer” at all future school events. In holding open the possibility of a different approach to student-led prayer in the future, the District gestures toward the idea that under certain conditions, an island of “truly private” (and thus constitutionally permissible) student religious 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 prayers at school events “wholly private” is no easy matter. Given the young age of the children here and the history of obvious constitutional violations, courts would and should take a skeptical eye toward future variations on the student-led prayer strategy.
The location of the graduation ceremony in a Christian Chapel at a private Christian university raises more interesting questions. The leading case is Doe v. Elmbrook Sch. Dist., 687 F.3d 840 (7th Cir. 2012) (en banc). There, the court found an Establishment Clause violation where two local high schools held their (wholly secular) graduation ceremonies in the sanctuary of an evangelical “megachurch.” The majority conducted a fact-specific analysis and emphasized the overtly Christian character of the surroundings, while dissents by Judges Posner, Easterbrook, and Ripple thought the use of the church permissible in the absence of evidence that the site had been chosen for any reasons other than secular considerations such as size, air conditioning, parking, and more comfortable seats. A petition for certiorari in Elmbrook is pending before the Supreme Court. In the meantime, the Greenville schools have responded that if they use North Greenville University’s chapel in the future, they will ensure that the space is “devoid of religious iconography that would lead a reasonable observer to believe that the district is endorsing religion.” This language may well be based on a reading of the Elmbrook majority opinion, which appears to suggest that a “church building” would be acceptable if sufficient steps were taken to temporarily de-sacralize the space. But perhaps the purportedly fact-specific majority analysis would not work with younger children, and having courts decide how much “religious cleansing” is enough seems unappealing for reasons given by the Elmbrook dissenters. To my mind, a better approach might focus less on the church environment than on the question of the available alternative spaces and the light they shed on why a religious site was chosen for an important school ceremony. (Even the Elmbrook majority opines that if the megachurch were the only suitable space in town, the case might have come out differently). The Greenville complaint alleges that there were other suitable sites, which (if true) would lead me to conclude that using the university chapel was unconstitutional. Much would depend, though, on the definition of “suitable” and presumptions about proof of suitable alternatives. I suspect the Supreme Court’s ideas about those matters might be different from mine.