These opening words of the First Amendment to the Constitution set forth a dual guarantee of religious liberty. Both the Establishment Clause and the Free Exercise Clause operate to protect the religious liberty and freedom of conscience of all Americans. Quoting Thomas Jefferson, the Supreme Court has stated that the Establishment Clause was intended to accomplish this end by erecting a "wall of separation between Church and State." Everson v. Board of Educ. of Ewing, 330 U.S. 1, 15-16 (1947).

It is one of the fundamental principles of the Supreme Court's Establishment Clause jurisprudence that the Constitution forbids not only state practices that "aid one religion . . . or prefer one religion over another," but also those practices that "aid all religions" and thus endorse or prefer religion over nonreligion. Everson, 330 U.S. at 15. See Wallace v. Jaffree, 472 U.S. 38, 53 (1985)("[T]he individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all"); see also County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 589-94, 598-602 (1989); Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 17 (1989); Torcaso v. Watkins, 367 U.S. 488, 495 (1961).

For the past 20 years, the federal courts have utilized the three-pronged framework first set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971), to maintain the separation of government and religion. Under the so-called "Lemon test," a court must inquire (1) whether the government's action has a secular or a religious purpose; (2) whether the primary effect of the government's action is to advance or endorse religion; and (3) whether the government's policy or practice fosters an excessive entanglement between government and religion. See 403 U.S. at 612-13. In recent years, the Supreme Court has also frequently asked whether the challenged governmental action constitutes an impermissible "endorsement" of religion. See, e.g., Allegheny, 492 U.S. at 592 (inquiry is whether the government "convey[s] or attempt[s] to convey a message that religion or a particular religious belief is favored or preferred"); id. at 592-94; School District of the City of Grand Rapids v. Ball, 473 U.S. 373, 390 (1985)("[A]n important concern of the effects test is whether the symbolic union of church and state effected by the challenged governmental action is sufficiently likely to be perceived by adherents ... as an endorsement, and by nonadherents as a disapproval, of their individual religious choices").

I. GRADUATION PRAYER

The Supreme Court has long held that the Establishment Clause of the First Amendment forbids school-sponsored prayer or religious indoctrination. Over thirty years ago, the Court struck down classroom prayers and scripture readings even where they were voluntary and students had the option of being excused. See School Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S. 421 (1962). The Court earlier had struck down a "released-time" program providing voluntary religious instruction in public schools during regular school hours. See Illinois ex rel. McCollum v. Board of Educ., 333 U.S. 203, 209-10 (1948).

More recently, the Supreme Court has held that a school district may not require that students observe a moment of silence at the beginning of the school day where the purpose of such a requirement is that students use that time for prayer. Wallace, 472 U.S. at 40. In a similar vein, the Court has held that the state may not require the posting of the Ten Commandments in public school classrooms, Stone v. Graham, 449 U.S. 39, 41 (1980)(per curiam), and may not require the teaching of "creation science" in public school science classes where evolution is taught, Edwards v. Aguillard, 482 U.S. 578, 596-97 (1987).

The fundamental principle underlying all these decisions is that the Constitution commands that public schools may not take sides in matters of religion and may not endorse a particular religious perspective or any religion at all.

A. The Supreme Court's Graduation Prayer Decision

In 1992, the Supreme Court held in Lee v. Weisman, ___ U.S. ___, 112 S.Ct. 2649 (1992), that prayer -- even nonsectarian and nonproselytizing prayer -- at public school graduation ceremonies violated the Establishment Clause of the Constitution. The Supreme Court held that the inclusion of prayers as part of a school-sponsored and school-supervised graduation ceremony contravened the Establishment Clause both because of its inevitably coercive effect on students and because it conveyed a message of government endorsement of religion. See id. at 2655.

The Supreme Court focused on the subtle coercive pressures that accompany any religious exercise conducted as part of a school-sponsored event. The Court held that even though the school district in Lee did not require students to attend graduation in order to receive their diplomas, the students' attendance and participation in graduation exercises was "in a fair and real sense obligatory." Id. at 2655. As the Court observed:

Everyone knows that in our society and in our culture high school graduation is one of life's most significant occasions.... 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.

Id. at 2659. Because attendance at high school graduation ceremonies is in effect not voluntary -- and because the ceremonies themselves are an adjunct to and, in some sense, the culmination of the public school curriculum -- the inclusion of a religious program in graduation ceremonies violates the Establishment Clause. As the Court stated in Lee:

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.

Id. at 2661.

The Supreme Court in Lee also focused on the unavoidable entanglement of government and religion that results from any attempt by school officials to control the content of graduation prayers, even if that control extends, as it did in Lee, only to making sure that the prayers given are nondenominational. Under Lee, school officials may not in any way "assist in composing prayers as an incident to a formal exercise for their students." Id. at 2657. As the Court explained:

The question is not the good faith of the school in attempting to make the prayer acceptable to most persons, but the legitimacy of its undertaking that enterprise at all when the object was to produce a prayer to be used in a formal religious exercise which students, for all practical purposes, are obliged to attend.

Id. at 2656. The Court observed that the religion clauses of the First Amendment "mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State." Id.

Contrary to protests voiced by the religious right, the Supreme Court's holding in Lee is not anti-religious and does not interfere with the rights of students, guaranteed by the Free Exercise Clause of the First Amendment, to worship and pray according to the dictates of their own consciences. As the Supreme Court stated over three decades ago in Engel:

It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance.

370 U.S. at 435.

It is likewise clear that graduation prayer cannot be justified as a permissible "accommodation" of religion under the Free Exercise Clause of the First Amendment. Government efforts to accommodate the religious beliefs and practices of individuals are permitted under the Establishment Clause only when they remove government-imposed burdens on the free exercise of religion. See Lee, 112 S.Ct. at 2676-77 (Souter, J., concurring); Allegheny, 492 U.S. at 601 n.51; id. at 631 (O'Connor, J., concurring).

The absence of prayer from a school's official graduation ceremony does not impose any burden on the ability of students to affirm their religious beliefs before or after the ceremony. Nothing in Lee, for example, would prevent or prohibit like-minded students from organizing a privately sponsored baccalaureate service -- provided that it was held off school grounds, was entirely voluntary, and was neither sponsored nor supervised by school officials. See 112 S.Ct. at 2677 (Souter, J., concurring).

B. Student-Initiated Graduation Prayer

1. The Fifth Circuit's decision in Jones v. Clear Creek Indep. Sch. Dist.

This past year, a federal appeals court in Texas approved a school board's policy allowing graduation prayer where a majority of the graduating class had requested that a prayer be given by a student volunteer at the school's graduation ceremony. Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963 (5th Cir. 1992), cert. denied, ___ U.S. ___ 113 S.Ct. 2950 (1993).

As a technical matter, the decision in Jones only applies within the three states comprising the Fifth Circuit (Texas, Louisiana and Mississippi). More fundamentally, in our view, Jones seriously misreads the Supreme Court's holding in Lee.

The Supreme Court made clear that its decision in Lee did not turn on the fact that school officials made the decision to include prayers in the graduation ceremony or the fact that the principal selected the particular clergyman who gave the prayers. Rather, the Court held that prayers at public school graduation ceremonies carry the imprimatur of the state and, therefore, impermissibly endorse religion because the prayers are included as part of a program that is sponsored, supervised and controlled b y the school and at which student attendance is, for all practical purposes, obligatory. See 112 S.Ct. at 2657. Lee thus stands for the straightforward proposition that when public schools reserve time at a graduation ceremony for prayers, they violate the Constitution by putting the power, prestige and endorsement of the state behind whatever prayer is offered, no matter who offers it.

As the Supreme Court observed, "the school district's supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students" to act in a manner that signifies participation in or approval of religious exercises that an individual student may find repugnant to his or her own beliefs. 112 S.Ct. at 2658.

The Fifth Circuit in Jones relied in part on the fact that school officials reviewed the student prayers to ensure that they were nondenominational and nonproselytizing. 977 F.2d at 971.(1) Yet this review by itself impermissibly involves school officials in deciding which prayers are acceptable and which are not. As the Supreme Court warned in its first school prayer decision, "one of the greatest dangers to the freedom of the individual to worship in his own way [lies] in the government's placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services." Engel, 370 U.S. at 429. In Lee, the Supreme Court reaffirmed this basic tenet when it stated that "our precedents do not permit school officials to assist in composing prayers as an incident to a formal exercise for their students." 112 S.Ct. at 2657.

This past summer, the Supreme Court decided not to review the Fifth Circuit's decision in Jones. Over the past few months, leaders of the religious right have claimed that the Supreme Court's action is an endorsement of student-initiated prayer and a vindication of Jones. That characterization is simply wrong as a matter of law. The Supreme Court's decision does not indicate approval of the result in Jones, nor does it transform the Fifth Circuit's decision into a national precedent.

The Supreme Court grants review on writ of certiorari in only a small fraction of the cases that are presented to it each year. Its decision not to grant review in a particular case is wholly discretionary and is rarely explained, as it was not in the J ones case. See generally P. Bator, D. Meltzer, P. Mishkin & D. Shapiro, Hart & Wechsler's The Federal Courts and the Federal System, at 1855 (3d ed. 1988).

The Court has emphasized that a denial of certiorari is not a decision on the merits and thus carries no precedential weight. See Teague v. Lane, 489 U.S. 288, 296 (1989)("[A] denial of a writ of certiorari imports no expression upon the merits of the case")(quoting United States v. Carver, 260 U.S. 482, 490 (1923)(Holmes, J.)); Maryland v. Baltimore Radio Show, 338 U.S. 912, 917-19 (1950)(opinion of Frankfurter, J.). See generally 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice & Procedure 4004, at 510-511 & n.20 (1977 & Supp. 1993). As Justice William J. Brennan has explained:

A denial of certiorari is not an affirmance of the [lower] court judgment as some erroneously think . . . . The denial does not mean that the Court agrees with the result reached by the [lower] court. . . . The Court may very well take the next case raising the same question and reach a different result on the merits.

Lee v. Weisman, not Jones, is the law of the land, and Lee holds that graduation prayer is unconstitutional.

2. Other decisions on student-initiated prayer

Following the Supreme Court's denial of certiorari in Jones, a handful of federal courts have considered challenges to student-initiated graduation prayers. Although the outcomes of these cases have been somewhat mixed, the more well-reasoned decisions, including a decision by the Court of Appeals for the Third Circuit, have held that student-initiated graduation prayers run afoul of the separation of church and state required by the Establishment Clause of the First Amendment.

Federal courts in Iowa, New Jersey, and Virginia have held that student-initiated prayers of the type at issue in Jones are forbidden by the Establishment Clause. See ACLU v. Blackhorse Pike Regional Bd. of Educ., Dkt. No. 93-5368 (3d Cir. June 25, 1993 ); Friedmann v. Sheldon Community Sch. Dist., Dkt. No. C93-4052 (N.D. Iowa, May 28, 1993), vacated on standing grounds, Dkt. No. 93-2375 (8th Cir. May 28, 1993); Gearon v. Loudon County Sch. Bd., Dkt. No. 93-730-A (E.D. Va. June 21, 1993), stayed pending appeal, Dkt. No. 93-1770 (4th Cir. June 23, 1993). (2)

In Blackhorse Pike, the Court of Appeals for the Third Circuit enjoined a proposed student-initiated graduation prayer, noting that:

the graduation ceremony is a school sponsored event; the fact that the school board has chosen to delegate the decision regarding one segment of that ceremony to members of the graduating class does not alter that sponsorship, does not diminish the effect of a prayer on students who do not share the same or any religious perspective, and does not serve to distinguish, in any material way, the facts of this case from the facts of Lee v. Weisman.

Slip op. at 1.

In Friedmann, the United States District Court for the Northern District of Iowa held that graduation prayers offered by authority of a majority student vote "run head on into the mandate of Lee v. Weisman" and are constitutionally impermissible. Slip op. at 2. Likewise, in Gearon, the United States District Court for the Eastern District of Virginia found that a school district's protocol allowing students to vote for the offering of a nonsectarian, nonproselytizing graduation prayer violated the Establishment Clause. Slip op. at 4.

The Fifth Circuit's decision in Jones also runs contrary to the decisions of other federal courts of appeal and that have addressed the issue of student-initiated prayers at school-sponsored events. In Jager v. Douglas County Sch. Dist., 862 F.2d 824 (11th Cir.), cert. denied, 490 U.S. 1090 (1989), the Court of Appeals for the Eleventh Circuit held that prayers at public high school football games violated the Establishment Clause, even though student clubs designated the individuals who gave the prayers. Likewise, in Collins v. Chandler Unified Sch. Dist., 644 F.2d 759, 762 (9th Cir.), cert. denied, 454 U.S. 863 (1981), the Ninth Circuit Court of Appeals held that student-initiated prayer and Bible readings at school assemblies violated the Establishment Clause, even though the prayers and readings were given by student volunteers.(3) Finally, the Fifth Circuit itself, in Karen B. v. Treen, 653 F.2d 897 (5th Cir. 1981), aff'd, 455 U.S. 913 (1982), held that the Establishment Clause prohibited student volunteers from leading fellow classmates in prayer, even though students could be excused from participating. 653 F.2d at 901-02.(4)

As these cases demonstrate, Jones relies on a crabbed reading of Lee that rests almost entirely on a distinction between school-initiated and student-initiated graduation prayer that is irrelevant to the analysis and result in Lee and that ignores the inherently coercive nature of a religious exercise conducted as part of an event convened and sponsored by the school.

The fact that a majority of students may ask the school district to allow a prayer at graduation does not change the requirements of the Establishment Clause. Indeed, the very purpose of the Establishment Clause is to prevent a majoritarian government from imposing particular religious beliefs -- or any religious beliefs at all -- on individuals in our society who do not share those beliefs. See West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). As Justice Jackson wrote for the Court in Barnette:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Id. at 638 (emphasis added).

The entire premise of the Bill of Rights is that individual liberty must be safeguarded and must sometimes trump the desires of the majority. High school students, by majority vote, may no more use the machinery of the state to impose religion on a minority of dissenters than may a majority of students ask the school board to violate the First Amendment by engaging in censorship or violate the Fourth Amendment by engaging in unreasonable searches of students. As the Supreme Court declared in Lee,

[W]hile in some societies the wishes of the majority might prevail, the Establishment Clause of the First Amendment is addressed to this contingency and rejects [it]. The Constitution forbids the State to exact religious conformity from a student as the price of attending her own graduation.

112 S.Ct. at 2660.

Notes

1. Even the Jones court limited its decision, however, to non-sectarian prayers. The Fifth Circuit correctly indicated that a student-initiated prayer that was sectarian or proselytizing would run afoul of the Establishment Clause. See 977 F.2nd at 969.

2. Contra Harris v. Joint School District No. 241, 821 F.Supp. 638 (D. Idaho 1993), appeal docketed, No. 93-35893 (9th Cir. June 15, 1993.)

3. Notably, the Ninth Circuit in Collins found "no meaningful distinction between school authorities actually organizing the religious activity and officials merely 'permitting' students to direct the exercises." 644 F.2nd at 761.

4. Indeed, the Fifth Circuit itself no appears to have backed away from the Jones court's exceedingly narrow reading of Lee. In a subsequent case, Doe v. Duncanville Indep. Sch. Dist., 994 F.2nd 160 (5th Cir. 1993), the court struck down the practice of offering prayers before high school basketball games. In Doe, the Fifth Circuit recognized that Lee "is merely the most recent in a long line of cases carving out of the Establishment Clause what essentially amounts to a per se rule prohibiting public-school-related or -initiated religious expression or indoctrination." Id. at 165.

II. BIBLE DISTRIBUTION

Earlier this year, the United States Court of Appeals for the Seventh Circuit ruled that an Indiana school district's policy and practice permitting representatives of Gideon International to distribute Bibles in public schools during school hours violated the Establishment Clause of the Constitution. See Berger v. Rensselaer Central School Corp., 982 F.2d 1160 (7th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 2344 (1993).

In Berger, the father of two elementary school children challenged the local school district's longstanding practice of allowing the Gideons to come into the public schools during instructional hours and distribute Bibles to fifth-grade students. Even t hough the teachers did not participate in handing out the Bibles to the students, and even though the Bibles were not used for pedagogical purposes, the Seventh Circuit held that the in-school Bible distribution was "a far more glaring offense to First Am endment principles" than the nonsectarian graduation prayer at issue in Lee. See Berger, 982 F.2d at 1169.

A long line of Supreme Court precedents establish that it is impermissible for school officials to allow the machinery of the state to be used to gather an audience for religious exercises or instruction. See Illinois ex rel. McCollum v. Board of Educ., 333 U.S. 203; Engel, 370 U.S. 421. In McCollum, for example, the Supreme Court struck down a program allowing religious instructors to come into the public schools to teach sectarian classes during school hours, at a time when students would be free to attend the religious classes or remain in their regular classes. The Court stated that:

Here not only are the State's tax-supported public school buildings used for the dissemination of religious doctrines. The State also affords sectarian groups an invaluable aid in that it helps to provide pupils for their religious classes through use of the State's compulsory public school machinery.

333 U.S. at 212.

It violates one of the Establishment Clause's most fundamental principles to turn government power over to religion. As the Supreme Court has recognized, the public school is the forum through which basic norms of citizenship are transmitted to the next generation and is thus a "vital civic institution for the preservation of a democratic system of government." See Abington Township, 374 U.S. at 230 (Brennan, J., concurring). When government permits a religious group to take over part of the school's facilities during instructional time, however briefly, it strongly implies official endorsement of that religion. In the Grand Rapids case, the Supreme Court stressed the importance of avoiding any "symbolic link" between government and religion. The Court held that the second ("effects") prong of the Lemon test will not be satisfied where the government fosters a "close identification of its powers and responsibilities with those of any -- or all -- religious denominations." School District of the City of Grand Rapids v. Ball, 473 U.S. at 385.

A school's participation in or supervision of the Gideons' Bible distribution impermissibly suggests that the Gideons' program is a valid part of a legally required education. The practice also carries the unmistakable message that religion -- in this case, Christian Bible study -- is the norm and the non-adherents are something less than full members of the school community. "When the government puts its imprimatur on a particular religion, it conveys a message of exclusion to all those who do not adhere to the favored beliefs." Lee, 112 S.Ct. at 2665 (Blackmun, J., concurring). See Wallace, 472 U.S. at 69 (O'Connor, J., concurring)(government endorsement of religion violates the Establishment Clause because it "sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that the are insiders, favored members of the political community"); see also Lynch v. Donnelly, 465 U.S. 668, 688 (1984)(O'Connor, J., concurring).

As the Seventh Circuit aptly observed in Berger:

the act of accepting a Bible in front of other students, with the option of returning it later privately or choosing not to read it, signals accord with the Gideons' beliefs. Presumably, the fifth graders could make a public show of not accepting the Bible, just as students could walk out of the graduation ceremony in Lee, or leave during the scriptural reading in Abington, but the First Amendment prohibits the government from putting children in this difficult position.

982 F.2d at 1170.

Moreover, the Supreme Court repeatedly has emphasized the impressionability of primary and secondary school children and the pressure they are apt to feel from teachers, administrators and peers to conform. As the Supreme Court recently observed in Lee, "there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools" 112 S.Ct. at 2658. See Edwards, 482 U.S. at 584; see also Grand Rapids, 473 U.S. at 390 ("The symbolism of a union between church and state is most likely to influence children of tender years, whose experience is limited and whose beliefs consequently are the function of environment as much as of free and voluntary choice").

The Seventh Circuit also properly rejected the school district's argument that barring the Gideons from distributing Bibles in the public schools would violate the Gideons' First Amendment free speech rights. It is well established that the free speech rights of individuals and religious groups to engage in religious expression must be subordinated to Establishment Clause concerns where those individuals or groups seek to observe their religion in a manner that unduly involves the government. See, e.g. , Engel v. Vitale, 370 U.S. 421 (students and teachers may not recite prayers in school); McCollum, 333 U.S. 203 (teachers may not provide religious instruction on public school property); see also Berger, 982 F.2d at 1168. Religious groups such as the Gideons remain free to promote Bible study and otherwise proselytize in ways that do not carry the imprimatur of state endorsement.

III. EQUAL ACCESS TO SCHOOL FACILITIES

The Establishment Clause issues are quite different where a school district wishes to make its facilities available for use by student or community groups during non-school hours. In such cases, the Establishment Clause does not prohibit opening the school's facilities to religious groups -- provided no elements of school sponsorship or endorsement are present.