## Facts

- A regional public school board had a longstanding practice of including a nonsectarian invocation and benediction at high school graduation, delivered by local clergy.
- After the Supreme Court invalidated clergy-led graduation prayer in *Lee v. Weisman*, the board reconsidered its graduation policy.
- The superintendent proposed a policy that would prohibit all prayer at graduation; the board rejected it.
- The board adopted a policy (“Religion at Graduation Exercises,” Version D) modeled on a student-vote approach used elsewhere.
- Under Version D, the senior class would vote whether to include an opening and/or closing “message” at graduation and could choose its nature (including prayer); students would also select the student speaker.
- The ACLU of New Jersey and a student challenged the policy, asserting that it subjected dissenters to a majoritarian religious exercise at a school-sponsored, milestone event.
- After emergency and permanent injunctive proceedings, a permanent injunction barred implementation of the policy; the school board appealed.

## Issues

1. Whether a public school’s policy allowing a majority vote of the senior class to decide whether to include prayer or a religious message at graduation constitutes state action attributable to the school.
2. Whether the policy violates the Establishment Clause by coercing attendance at, or participation in, a religious exercise at a school-sponsored graduation.
3. Whether delegating the decision and delivery to students cures Establishment Clause concerns of endorsement and governmental involvement.

## Decision

- The Third Circuit (en banc) held the policy unconstitutional under the Establishment Clause.
- The court affirmed the permanent injunction against enforcement of the graduation-message policy, with modifications to the injunction’s wording.
- The court rejected the argument that student voting and student delivery transformed any resulting prayer into purely private speech.

## Legal Principles

- A graduation ceremony is a school-sponsored event; where the school structures the forum and retains control over the program, religious messages permitted through that structure are attributable to the state.
- The government may not accomplish indirectly through delegation what it is forbidden to do directly under the Establishment Clause.
- A majoritarian vote cannot be used to determine whether dissenting students will be exposed to a religious exercise at an official school event; constitutional rights are not subject to majority rule.
- Graduation’s social and practical pressures can create unconstitutional coercion when a religious exercise is placed within the ceremony, forcing dissenters to choose between attending graduation and avoiding a religious practice they oppose.
- A reasonable observer would perceive a school-created voting mechanism authorizing prayer at graduation as placing the school’s imprimatur on the religious exercise, constituting impermissible endorsement.
- Establishment Clause analysis may consider coercion, endorsement, and purpose/effect concerns in light of the totality of circumstances surrounding the school’s policy and the event.

## Conclusion

The court invalidated a school board policy that permitted a student-majority vote to authorize prayer or other religious messages at graduation, holding that the school’s structured delegation and sponsorship made any resulting prayer state action that unconstitutionally coerced and endorsed religious exercise at a public school ceremony.


Am. Civ. Liberties Union of N.J. v. Black Horse Pike Reg'l Bd. of Educ., 84 F.3d 1471 (3d Cir. 1996) (en banc)