1. Commencement, Prayers, and End-of-Year Events
Wayne Oppito, Esq.
Foundation for Educational Administration
We are pleased to bring you this FEA-developed program as an NJPSA member benefit.

2. Issues that arise which complicate senior year are the prom, class trips, graduation, prayer, benedictions, and invocations. The following is intended to assist the members in planning for Commencement.

3. Proms and Graduation Ceremony
This is the time of year when the Commissioner of Education receives a number of cases involving students who have been barred from attending the prom, participating in a class trip, or walking in a graduation ceremony.

4. Generally, the actions of the school district are most times upheld
Generally, the actions of the school district are most times upheld. However, there are occasions when the parents or students prevail.

5. In a Manchester Twp BOE matter involving the prom…
The ALJ found that the record did not support a finding that the boy was a safety risk to those attending the prom. He noted that police officers would be at the prom.

6. The ALJ held that the equities, in terms of money, time, expectation and energy, weighed in the girls’ favor.

7. The ALJ stated that “[g]iven the importance of the prom to this generation of students, the equities clearly favor the petitioners, and with security being what it was described to be at the prom, I think any risk is clearly outweighed by the harm imposed upon both petitioners in these proceedings.”

8. In Woodbury BOE, a student had a lengthy disciplinary history…
The student was placed in an alternate education setting. After removal from the alternative school, the district placed the student on homebound instruction which was successfully completed.

9. The superintendent determined not to permit the student to walk at graduation and the mother appealed to the Commissioner.

10. The ALJ permitted the student to walk at graduation
The ALJ permitted the student to walk at graduation. He found that the board’s decision was based on the student being terminated from alternative school, however, the criminal charges underlying the termination had been dismissed.

11. The above cases emphasize that although participation in graduation or the prom are privileges, rather than rights, school administrators must comply with certain due process requirements before revoking these privileges.

12. The school district should always notify the student and the parents what the student has allegedly done or did not do. The student and the parents should be given an opportunity to give the student’s side of the story.

13. The punishment should be in line with the student handbook and should be consistently applied. There should be an appeal process to the superintendent and eventually, the board of education.

14. Benedictions and Invocations

15. The Third Circuit Court of Appeals issued a decision concerning whether a school district may permit student led prayer at its graduation ceremony.

16. In ACLU v. Black Horse Pike Reg. Bd. of Ed
In ACLU v. Black Horse Pike Reg. Bd. of Ed., the Court held that the school district’s policy of permitting the high school senior class to vote on whether or not to conduct a student- led prayer at graduation violates the First Amendment of the Constitution.

17. The “Establishment Clause” guarantees that the government shall not establish a state religion or give preference to one religion over another or preference to religion over non-religion.

18. The “Free Exercise Class” safeguards an individual’s right to practice his/her religion (within parameters that need not be elaborated here).

19. Lemon v. Kurtzman
The three-pronged Lemon Test for a questioned program or practice will be permitted if:
it has a secular purpose;
the primary effect neither advances nor inhibits religion; and
it does not foster excessive entanglement between the government and religion.

20. Lee v. Weisman
The Supreme Court affirmed the lower courts’ holdings that the practice was unconstitutional but did not render its decision by applying the Lemon Test.

21. Rather, the Court analyzed this matter using other criteria:
the establishment clause prohibits state intervention in religious activities;
the principal and school district are extensions of the state;

22. students could reasonably associate the invocation and benediction as participation in religion, rather than respect for religion; and
the state (school district) may not subject students to the dilemma of either participating in or protesting against the program.

23. The Court determined that by virtue of attending graduation, students were compelled to participate in religious activities. The Court rejected the school district’s argument that attendance at graduation is voluntary and thus there is no compulsion to participate.

24. The Court affirmed the decisions of the law courts that prayers performed by the clergy at graduation violate the “Establishment Clause.”

25. The Court in Lee left unanswered the question of student-led prayer at graduation. The Fifth Circuit Court of Appeals addressed this issue in Jones v. Clear Creek Independent School District.

26. In Jones, the court upheld the school district’s policy of having a nonsectarian prayer given as an invocation at high school graduation ceremonies by student volunteers. Inclusion of the prayer at graduation was at the discretion of the senior class, with approval of the high school principal.

27. The court decided that:
the policy had a secular purpose (to solemnize the graduation ceremony);
the policy did not excessively “entangle” government and religion; and

28. the policy did not significantly advance religion
the policy did not significantly advance religion. Accordingly, the Fifth Circuit ruled that student- initiated prayer is permissible.

29. Based on the Clear Creek decision, the Black Horse Pike, New Jersey Board of Education adopted a policy permitting the senior class to determine whether seniors wanted prayer, a moment of reflection, or nothing at all to be included in their graduation ceremony. A plurality of seniors voted to have a student-led prayer.

30. The Third Circuit sitting as a whole, determined that the Board’s policy of allowing the senior class to determine whether prayer would be included in the class graduation ceremonies was unconstitutional.

31. The Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise. The individual freedom of religion protected by the First Amendment embraces the right to select any religious faith or none at all.

32. The Third Circuit held that the Fifth Circuit’s contrary result, based on the concept that this was a once-in-a- lifetime event, was unpersuasive. The uniqueness of the event does not justify allowing a public school to authorize collective prayer.

33. The significance of the graduation ceremony weighed heavily in favor of invalidating the prayer because students were denied the option of foregoing the ceremony to avoid compromising their religious scruples.

34. Prayer presented by the clergy at graduation is unconstitutional and not permissible.

35. Student-initiated prayer at graduation in New Jersey is not permissible, as a result of the decision in Black Horse Pike Regional.

36. In Lee, the Supreme Court left no doubt that it remains unconstitutional to have a “moment of silence” offered by the clergy at graduation. It is not decided as to whether a student- initiated moment of silence at graduation is permissible.

37. Left unanswered is the permissibility of baccalaureate ceremonies for graduating public school students. Since attendance at these ceremonies is strictly optional, there might not be the same expectation of attendance which would apply to graduation itself.

38. However, public school administrators are advised to avoid school sponsorship of what clearly is a religious ceremony. It is strongly recommended that the public schools not sponsor baccalaureates.

39. It is the better choice to hold baccalaureates away from school property with sponsorship by some outside organization who can invite the graduating class.

40. For more information about training opportunities, contact Jay Doolan:
Foundation for Educational Administration
12 Centre Drive
Monroe Township, NJ 08831