Graduation Hot Topics and Pitfalls: “No Cap” (and Gown)

With high school graduation approaching, school officials should be aware of common graduation-related legal issues and recommendations for addressing them.

Diplomas and “Walking” at Graduation

The end of the school year is often accompanied by senior pranks, which may cause school officials to consider withholding a student’s diploma as a disciplinary action. Withholding an earned diploma, however, deprives an individual of a constitutionally protected property interest and subjects the school to liability. Some courts have ruled that a student who is awaiting an expulsion hearing but has completed graduation requirements may be entitled to a diploma.

While students generally have a right to an earned diploma upon completion of graduation requirements, they have no right to receive the diploma at a graduation ceremony. As with participating in prom and extracurricular activities, walking across the graduation stage is a privilege that may be revoked.

If student misconduct results in discipline at the end of the school year, school officials may 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 and 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). The policy also should address whether a student who has not timely completed graduation requirements may participate in the graduation ceremony in anticipation of earning a diploma.

Cap and Gown

A school can establish and enforce a nondiscriminatory dress code for graduation. Note that a dress code may not discriminate based on hair textures or styles commonly associated with race. This dress code should be communicated to students and parents as early as possible. Courts have upheld published cap and gown requirements and, in one case, a “no jeans” policy. Another court upheld a dress code that prohibited decorated graduation caps. Because all decoration was prohibited in that case, the students’ First Amendment rights were not violated. A student’s refusal to comply with a published nondiscriminatory dress code can justify excluding that 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 sex are frequently targeted in sex discrimination lawsuits and can be easily avoided by single-color or student-choice color policies.

Prayer

Public schools cannot mandate or organize prayer at graduation ceremonies without violating the First Amendment’s Establishment Clause. The U.S. Supreme Court has held that a clergy-led graduation invocation is unconstitutional school-sponsored prayer. Lee v Weisman, 505 US 557 (1992). Equally unconstitutional is a school-led process of having students elect a classmate to lead an organized prayer at school-sponsored events, such as graduation. Santa Fe Indep Sch Dist v Doe, 530 US 290 (2000).

Note that individual students may voluntarily incorporate religious content into valedictory or other graduation speeches. While student speech that is part of a school-sponsored event may bear the school’s imprimatur, censoring religious content from a student’s graduation speech may violate the student’s First Amendment free speech rights. Courts have held that graduation prayer voluntarily initiated by a student without school encouragement is permissible.

School officials should provide students with appropriate guidelines for the big ceremony. We also recommend including a disclaimer statement in the graduation ceremony program that the views expressed by students and other speakers do not necessarily represent the views of the school.