American Humanist Ass’n v. South Carolina Dep’t of Educ., No. 13-2471 (D.S.C. May 18, 2015)
Abstract: A federal district court in South Carolina has ruled that a school district’s prior policy through 2013 of official and school-sponsor student prayers at school events, such as graduation, violated the First Amendment’s Establishment Clause. As a result, it granted the plaintiffs’ motion to permanently enjoin the school district from officially promoting prayers at school sponsored events. However, the court concluded that the school district’s revised policy of allowing student led and initiated prayer at school events absent school district supervision and control did not violate the Establishment Clause. Applying the three-prong test set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971), it determined that the revised policy passed constitutional muster. The court pointed out that the speech being sanctioned by the revised policy is private speech, which even if it endorses religion is protected by the First Amendment’s free speech and free exercise of religion clauses.
Facts/Issues: A student, identified as Jill Doe, attended Mountain View Elementary School (MVES) during the 2012-13 school year. Jill’s parents, John and Joe Doe are avowed humanists and non-theists and members of the American Humanist Association (AHA). Since 1951, Christian prayers have been included at graduation ceremonies for elementary school children in Greenville County School District (GCSD). All prayers have been delivered by school-selected fifth graders, normally age 10 or 11. Two prayers are included in each ceremony. The first is offered after opening remarks by the principal and the second is offered at the ceremony’s conclusion. It does not appear that any have been non-Christian prayers.
It has been GCSD’s practice to have school officials, typically fifth grade teachers, select the students to deliver the prayers. Students are selected based in part on their “ability to speak in front of a group.” It has also been the school district’s practice to have school officials review and approve the content of the prayers prior to their delivery. Each prayer is designated as “Prayer” on the official graduation programs, which are distributed to attendees, such as the Does. GCSD conducted its annual MVES graduation and included two Christian prayers as part of the ceremony. Jill participated in the event, and her parents attended.
Other schools in GCSD, including elementary schools, have a policy and practice of including prayers in graduation ceremonies. It is undisputed that in the vast majority of these schools, the prayer-givers are selected by the school, as with MVES, often based on ability to publicly speak, class rank, or class office. It is further undisputed that in most of these schools, the “prayer” (or “invocation” and “benediction”) has been listed on the official graduation program handed out to attendees and that, in many of these programs, the audience and graduates are expressly instructed to stand for the prayer. In several schools, men are even required to remove their caps.
AHA and the Does filed suit in federal district court against GCSD to vindicate their rights under the Establishment Clause, seeking declaratory and injunctive relief and damages pursuant to § 1983. The plaintiffs challenged the constitutionality of the defendants’ long-held practice of including prayers at public school graduation ceremonies.
GCSD revised its policy on prayer and religious content at graduation following the MVES graduation ceremony. The revised policy states:
As it pertains to the use of prayer by students, the District is committed to not endorsing the use of such prayer by students, and therefore, any prayer given by a student at a school-sponsored event, including an awards program for Mountain View Elementary, will be under different circumstances than the May 30, 2013 program . . . . With regard to a student delivering a prayer or providing a religious message during a school sponsored event, the District will not prohibit this practice as long as the prayer or message is student led and initiated and does not create a disturbance to the event. Prohibiting such independent student speech would go beyond showing neutrality toward religion but instead demonstrate an impermissible hostility toward religion. If a student is selected to speak based upon genuinely neutral criteria such as class rank or academic merit, that student should have the same ability to decide to deliver a religious message or prayer as another student has the ability to decide to speak about an inspirational secular book or role model.
Ruling/Rationale: The district court granted the plaintiffs’ motion for a permanent injunction in regard to the policy and practice in place through 2013. It stated: “To the extent the plaintiffs seek to enjoin the kind of official and school-sponsored student prayers, which were held as a formal part of graduations in the school district in 2013 and prior, the injunction is granted.” The court noted that GCSD had conceded “that such formal and sponsored prayers are unconstitutional and should no longer be allowed.”
The district court then took up the issue of whether the revised policy avoided the Establishment Clause pitfalls that the prior policy/practice had fallen victim to. It warned that even a facially neutral policy could still have the practical effect encouraging religious speech in the form of prayer. According to the court, “[I]t is conceivable that the cultural residue of prior practices might continue to color and confuse the application and invitation of, even now, constitutionally neutral practices.”
However, the district court found that because GCSD had conceded the impropriety of its prior practice, the plaintiffs were robbed of the bulk of their legal precedent and factual history. It pointed out that GCSD’s new position involves no selection process, or election, to preemptively challenge or question. It also found the plaintiffs lacked any “evidentiary basis to expect that students speaking at graduation will enter into prayer or speak religiously in a way that implies school sponsorship.” It stressed that the legal precedent relied on by the plaintiffs all involved active government participation, noting that in those cases whatever neutrality had been attempted on paper had been plainly undermined in application, whereas GCSD’s revised policy was “both neutral and passive.”
Citing Peck v. Upshur Cnty. Bd. of Educ., 155 F.3d 274 (4th Cir. 1998), the district court emphasized, “[T]he Supreme Court has never held that the mere fact that private religious speech occurs during school hours is sufficient to render it state speech.” It rejected the plaintiffs’ argument that the fact that three schools in GCSD had included prayer or religiously themed speech in their ceremonies were “representative of the kind of ratio that suggests unconstitutionality in practice.” It also pointed out that “these occurrences are incident to the prior policy, whose application is enjoined by agreement and judicial order.”
In order to determine if the revised policy steers a course of neutrality, that neither encourages nor discourages religion, the district court applied the three-prong Lemon test which seeks to determine: (1) if the defendant had a secular purpose for adopting its present position on prayer at District graduations; (2) if the position’s primary effect is one that neither advances nor inhibits religion; and (3) if the position does not result in an excessive entanglement of government with religion.
In regard to the first prong the court concluded: “[GCSD’s] position on religious content at graduations straddles this precarious constitutional fence with near perfect symmetry. It does not endorse and yet stops just nigh of disavowal, the step, further, the plaintiffs beg.” As to the primary effect prong, it found there was no evidence the revised policy convenes a message of endorsement. The court observed, “The new position, however, is so finely weighted, in balance, that literally the only additional protection would be complete proscription of all religious comment, which is impermissible as stated.” Finally, it found the policy did not lead to entanglement with religion. It stressed that under the policy schools were required to avoid involvement in any decision of any individual student to include any religious point of view.
According to the district court, GCSD’s “position is entirely consistent with the Supreme Court’s and Fourth Circuit’s declarations that: ‘There is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.’” It found that the revised policy successfully navigated the narrow waters of the First Amendment without running aground on the shoals of the Establishment, Free Exercise or Free Speech clauses.
The district court applauded GCSD’s revised policy, in conclusion saying:
The new practice of the defendant is constitutional. But, plaintiffs are affirmed. Not in their full request for legal remedy but in their aspiration for equal liberty. For too long school districts have cleverly resisted, with every manner of contortion, the force of Establishment jurisprudence to justifiably eliminate all state-sponsored rite. At least one has gotten it exactly right.
American Humanist Ass’n v. South Carolina Dep’t of Educ., No. 13-2471 (D.S.C. May 18, 2015)
[Editor’s Note: In February 2015, Legal Clips summarized an article in the Atlanta Journal-Constitution reporting that the parents of two students at Swainsboro Primary School (SPS) had filed suit against Emanuel County (GA) school system, alleging that school officials are allowing teachers to lead daily prayers in the classroom. The parents, who are members of Freedom From Religion Foundation (FFRF), allege that their children are being proselytized and coerced by their teachers to participate in the prayers.
In November 2014, Legal Clips summarized an article in the Gazette reporting Alliance Defending Freedom (ADF) had filed a federal lawsuit against Academy School District 20 (ASD20) on behalf of Chase Windebank, a student at Pine Creek High School (PCHS), alleging that PCHS officials are violating the constitutionally guaranteed right to engage in religious speech. Windebank claims that he was told by school officials that he and other students may no longer get together to pray and discuss religious topics during an open period in the school day known as “seminar.”]