Navigating Graduation’s Legal Minefield

The high school graduation ceremony is the culmi­nation of the K-12 experience for graduates and their families. As a defining moment in a student’s life, the graduation ceremony carries both social and emo­tional significance. The graduation ceremony also presents many challenges for school officials.

School decisions affecting a student’s participation in graduation can result in litigation. Fortunately, court decisions provide some guidance to school officials on navigating this challenging area.

No Right to “Walk”

The predictable onset of “senioritis” may lead to conduct warranting student discipline at the end of the school year, a time when the school’s ability to appro­priately sanction students is limited. At some point, the only recourse may be to deny participation in graduation exercises.

Courts have held that a student’s attendance at a graduation ceremony is a privilege not a right. Accordingly, school officials have discretion to decide whether a student may participate in the graduation ceremony.

School officials may not, however, withhold a diploma if the student has met the diploma require­ments. A federal court in Texas distinguished the rights to participate in the graduation ceremony and to receive a diploma as follows:

While the Court recognizes that high school graduation is an important and memorable occasion in a young person’s life, “walking across the stage” certainly does not rise to the level of a constitutionally protected property interest any more than attending one’s high school prom, which most young people also expect to do after completing twelve years of public school. It is the actual high school diploma which is the property interest.

Williams v Austin Indep Sch Dist (WD Tex, 1992).

Schools should provide seniors and their parents with written notice that students may be denied par­ticipation in the graduation ceremony as a possible disciplinary sanction for misconduct. This notice should be included in the high school student conduct code.

Graduation in a Church Building

When selecting the location of the graduation ceremony, school officials must find a venue that meets the school’s needs and accommodates large crowds. In some communities, the school’s graduation ceremony is held in a church.

Graduation ceremonies held in a church could violate the First Amendment’s Establishment Clause if the selected venue provides a distinctly religious at­mosphere. To determine whether a public school has violated the Establishment Clause, courts analyze whether the practice: (1) clearly reflects a secular purpose; (2) has a primary effect that neither inhibits nor advances religion; and (3) avoids excessive government entanglement with religion.

A federal appeals court held that a school’s practice of holding graduation and related ceremonies at a church with an overtly religious atmostphere vio­lated the Establishment Clause. Doe v Elmbrood (CA 7, 2012). The church had a 20-foot Latin cross in the sanctuary; the pews were supplied with Bibles, hymnals, and religious literature; and the lobby had numerous religious materials. Church members had also distributed religious literature directly to graduation attendees.

On the other hand, another federal court denied a temporary restraining order preventing a public school from using a church to host a school event. ACLU-TN v Sumner Co Bd of Ed (MD Tenn, 2011). The court found that the school had considered other venues but was unable to find facili­ties that could accommodate its needs. In addition, the church did not have religious symbols or imagery in the space used by the school.

A school’s need to accommodate large crowds will not immunize it from an Establishment Clause viola­tion. The risk of such a violation is reduced when there are no overt religious symbols such as those in Elmbrood.

Prayer

Once the venue is booked and the students seated, the graduation legal minefield remains. School officials must also ensure that the ceremony does not violate the Establishment Clause while respecting a student speaker’s First Amendment speech rights.

Public schools may not mandate or organize prayer at school-sponsored events. The U.S. Supreme Court held that a school’s practice of having a clergy-led “nonsectarian, non-proselytizing” graduation invo­cation violated the Establishment Clause. Lee v Weisman (1992). Subsequently, the U.S. Supreme Court held that a school could not circum­vent the prohibition against organized prayer by hav­ing students lead the prayer over the public address system before football games. Santa Fe Indep Sch Dist v Doe (2000).

Asserting the right to free speech, students often insist on including religious content in their gradua­tion speeches. Student speech that is part of a school-sponsored event generally bears the imprimatur of the school and can be restricted. Nonetheless, some fed­eral courts have upheld held prayer that is genuinely student-initiated and not the product of a school policy encouraging prayer.

A federal appellate court held that a school’s policy permitting student-led messages at the begin­ning of the graduation ceremony with no restriction on prayers did not violate the Establishment Clause. Adler v Duval Co Sch Bd (CA 11, 2001). The court stressed that the school had no control over the content of the student-led messages and school officials did not review them in advance.

To minimize legal challenges about religious content in student speeches, school officials should provide students with appropriate guidelines and in­clude a disclaimer statement in the graduation program that the views expressed by student speakers are not the district’s views.