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Last week a letter to the editor appeared in the Sentinel-News in which the author claimed that a student, by uttering a prayer (GASP!) at the Shelby County High School graduation ceremony, "was disrespectful of the intent of the law and the audience before her."
To support her view, the author suggested we should examine "the reasons the school district properly came to the decision to discontinue including prayer in the graduation ceremony." She further suggested this student (and the adults who supported her) might educate themselves by reading the writings of the Founding Fathers and decisions from the U.S. Supreme Court. As an attorney who has a particular interest in matters of free speech and religious liberties, I am simply unable to let this letter go unanswered.
With all due respect, I suggest that the author of that letter should further her own education in this matter. The U.S. Supreme Court addressed graduation prayers in Lee v. Weisman 505 U.S. at 580 (1992). It has also addressed prayers at other pubic school events in various other cases (see e.g. Santa Fe v. Independent School District v. Doe 530 U.S. 290 (2000)). I'll spare the legal analysis here, but the Constitution, the writings of the Founding Fathers, and the Supreme Court cases would all agree: it is wrong for the government or its representatives (school personnel, for example) to impose a particular religious view, but it is an essential protection of Free Speech that students should be allowed to express their own religious views in any context where it does not materially and substantially interfere with the educational process.
Prayer in schools is restricted, because school officials can give the impression that the state is endorsing a particular religious view by facilitating sectarian prayer . It is that endorsement - and the appearance that it is made by the state - that can cause a student with minority views to feel pressured into a certain religious mold by the state (yes, there is a theme here - it's the state we're concerned about). While such pressure from the state is prohibited, the very same student may feel tremendous pressure from private citizens to conform to a particular religious view, but there is no Constitutional prohibition against such pressure coming from individual citizens. Under the law, the deciding factor is who is exerting the pressure. As long as the pressure comes from a private citizen, the speech is protected. According to the U.S. Supreme Court, a student who chooses to pray as part of her own speech at graduation is speaking as a private citizen. Because she is not acting on behalf of the government, her speech is protected as Free Speech.
Having set the law straight on this issue, I can address some of the reasoning behind the Shelby County School Board decision referenced by the author. Although there may have been non-legal considerations involved (I was not present when the decision was reached), the legal reason for the change in policy was that by placing the prayer on the program, the school seemed to be sponsoring the prayer. By removing prayer from the program, the school was no longer facilitating potentially sectarian activity.
Contrary to the author's assertion, however, there was no decision to "discontinue prayer" at graduation. Indeed, to do so would violate the Constitutional rights of students (like the one this year) who might want to pray at the podium. If a student, selected by neutral criteria, chooses to use her time to say a prayer, she is merely voicing private, protected speech in a public context. Good for her! She not only behaves constitutionally, but she exemplifies the highest ideals of free speech in a diverse society. I would say this regardless of whether the student chose to recite a Christian prayer, a Muslim prayer, or a Scientologist passage.
The author contends that the graduate violated the "spirit of the law." However, her argument is based on faulty premises: not only does she fail to understand the law itself, but she seems to think the "spirit of the law" is that people have a "Right Not To Be Offended" when attending public events. In truth, the "spirit of the law" is not interested in whether somebody is offended. Even if nobody were offended, it would still be unconstitutional for the state to endorse a particular religion. Instead, the "spirit of the law" is interested only in who is doing the speaking and in what capacity. In America there is no Right to Not Be Offended. We sacrifice that right so we can have Free Speech. I'm sorry, but in this country, you don't get to go through life without being offended.
W. Paul Olsen, Esq.