Majority Vote vs Church/State Separation

March 11, 2010

ACLU of Indiana today filed a case in the U.S. District Court in Indianapolis challenging the decision of Greenwood High School to allow a student led prayer at this year's graduation ceremonies because a majority of the senior class voted in favor of it.  The plaintiff is Eric Workman who is the top ranked student in the class and expects to speak at the graduation ceremony.  

This brings back memories of the last few days of my 31 year career at Perry Meridian High School which is 5-6 miles north of Greenwood High School.  Actually, the current principal at Greenwood High School was on the staff at Perry Meridian High School at the same time that I was for a few years.

I discovered one morning that my department head was scurrying around and typing up a ballot of some sort but trying to be secretive about it.  I asked her what it was and she said that it was for the senior class to vote on whether or not a student would say a prayer at the graduation ceremony.  Immediately I said, "They can't do that."  to which she replied that they could and that the students had brought in evidence that it was legal.  She showed me a brochure that the students had given to the principal and he and she were convinced that it was legal.  

Well, it still didn't sound right to me.  So, I immediately (without telling my department head or anyone) emailed Ken Falk , Legal Director of ACLU of Indiana and Fran Quigley who at that time was Executive Director of ACLU of Indiana.  I was a board member but only a few people that I worked with knew that and I am sure my department head and principal did not know.   The environment I worked in was permeated with conservative Christians and knowing that I was on the board of such a terrible organization would not have set well with them.

Even though I was sent a copy of the letter sent to the Superintendent of the school district by ACLU, I never heard it mentioned by anyone around me.  However, the next day I heard that the vote would not take place and that the principal had called the senior officers in and explained to them why they were not taking the vote.   I don't think my department head and principal knew that I was the one who had alerted ACLU but they knew that I had objected to the vote and the prayer.  So, they were especially hush-hush around me even though I worked in the same department.

I would say that the information in the brochure that was shown to the principal by the students probably came from Pat Robertson's American Center for Law and Justice or another similar source.  Here is a quote from their website :

Can we have student-led prayer at graduation?

Yes! In Lee v. Weisman , the Supreme Court held only that it violates the Establishment Clause for school officials to invite clergy to give prayers at commencement. Justice Kennedy made clear, for the majority, that the Court's decision was limited to the particular facts before the Court.  Thus, any change from the factual situation presented in Lee might alter the resulting opinion from the Court.

Indeed, following Lee, at least one Federal Appeals Court has ruled that "a majority of students can do what the State acting on its own cannot do to incorporate prayer in public high school graduation ceremonies."  In Jones v. Clear Creek Independent School District (Jones), a post-Lee decision, the Fifth Circuit upheld the constitutionality of a school district resolution permitting high school seniors to include a student-led invocation in their graduation ceremony if the majority of the class so votes.

A counter to this is  "Prayer in Public Schools and Graduation Ceremonies" by Dr. W. Kenneth Williams, Scholar-in-Residence Baptist Joint Committee, Washington, D.C.

Pat Robertson's American Center for Law and Justice, a legal advocacy group established in counterpoint to the American Civil Liberties Union, has sought to capitalize on a 1993 case that the Supreme Court chose not to review. In Jones v. Clear Creek Independent School District , the 5th Circuit Court of Appeals held it permissible for a student to say a "non-proselytizing, non-sectarian" prayer in graduation ceremonies, if the students voted to have prayer. The ACLJ sees the Supreme Court's choice not to hear the case as tacit approval of the lower court's resolution.

This is wrong. The Supreme Court receives more than 6,000 petitions for review annually. It accepts only a little over 100. Does this mean that the court approves of the other 5,900? No. It is simply impossible for the high court to review every case presented to it. The ACLJ is making a claim that cannot be legally supported.

I will leave the legal interpretations up to the likes of ACLU of Indiana's Ken Falk and CFI's Derek Aruajo , but I want to tell you the rest of the Perry Meridian story.  All was very secretive but I had a feeling that it was not the end of it.  So, I was not surprised when at a point in the graduation ceremony there was a pause as the president of Fellowship of Christian Athletes made her way to the stage and "spontaneously" gave a prayer.   The principal, superintendent, and at least one school board member were seated on the stage behind her and none of them made any move to interfere with a student whose name was not listed in the program just "spontaneously" coming to the stage.  Since I had supervision duty in the back of the room behind the graduates and facing the stage, I was standing right beside two of the assistant school superintendents.   They neither flinched nor registered any surprise at what happened.  I did not show any reaction either. 

The graduation exercises at Perry Meridian were always very well supervised and I had been a part of that supervision for 13 years.  Anyone else among the graduates who had made their way to the stage "spontaneously" would have been confronted and probably escorted out courtesy of the uniformed police present.