Graduation-Related Challenges


April 25th, 2019

With high school graduation fast approaching, school officials should be aware of the following graduation-related legal issues.

Diplomas and “Walking” at Graduation

The end of the school year may usher in “senioritis” and senior pranks, tempting school officials to withhold a student’s diploma as a disciplinary action. School offi­cials who do so risk legal exposure because withholding an earned diploma deprives an individual of a constitu­tionally protected property interest. In fact, some courts have ruled that a student who is awaiting an ex­pulsion hearing but has completed the graduation requirements may still be entitled to a diploma.

While students generally have a right to a diploma upon completion of graduation requirements, there is no constitutional right to receive that diploma at the graduation ceremony. Further, students have no right to participate in or “walk” at the graduation ceremony. Like participation in prom and extra-curricular activi­ties, walking across the graduation stage is a privilege.

If student misconduct results in discipline at the end of the school year, school officials have the discre­tion to revoke a student’s privilege to walk at gradua­tion. To avoid backlash from students and parents, school officials should include a graduation participa­tion policy in the student code of conduct or provide written notice of the policy to students and their par­ents as early as possible (e.g., in the student handbook at the start of the school year). That policy should also address whether students who have not timely com­pleted graduation requirements may participate in graduation ceremonies in anticipation of earning a diploma.

Cap and Gown

A school can establish and enforce a non-discriminatory dress code for graduation if the dress code relates to legitimate pedagogical concerns. Courts have held that students must abide by published cap-and-gown requirements and, in one case, a “no jeans” policy, to attend the graduation ceremony. One court also upheld a dress code prohibiting decorated gradua­tion caps. Refusal to comply with a published non-dis­criminatory dress code can justify excluding a student from the graduation ceremony.

Some schools provide separate gown colors for male and female students. We recommend allowing students to wear gown colors consistent with their gen­der identity or allowing all students to choose between two colors. Arbitrary dress-code distinctions based on gender are frequently targeted in sex-discrimination lawsuits.

Prayer

Public schools cannot mandate or organize prayer at graduation ceremonies because doing so violates the First Amendment’s Establishment Clause. The U.S. Supreme Court has specifically held that a clergy-led graduation invocation is unconstitutional school-spon­sored prayer. The Supreme Court has also declared un­constitutional a school’s policy of allowing students to select one of their classmates to lead an organized prayer at school-sponsored events.

Individual students may attempt to incorporate religious content into valedictory or other graduation speeches. While student speech that is part of a school-sponsored event may bear the imprimatur of the school, censoring religious-themed content from a stu­dent’s graduation speech may violate the student’s First Amendment free speech rights. When confronting this issue, some courts have held that graduation prayer voluntarily initiated by a student without any school policy encouraging or organizing prayer is per­missible and does not violate the Establishment Clause.

School officials should provide students with appropriate guidelines for the ceremony and include a disclaimer statement in the graduation ceremony program that the views expressed by student speakers do not necessarily represent the views of the school. Being familiar with the above graduation-related legal issues will help ensure a smooth finish to your school year.