Religious invocations, including sectarian prayer, are popular components of high school graduation ceremonies across America. Many Christians expect their religion to be part of graduation ceremonies and don't care that not all students are Christians, much less that both Christian and non-Christian students and parents might object to religion being inserted into an official government function. Many courts agree with the dissenters and have ruled religious invocations as unconstitutional.
The Black Horse Pike Regional Board of Education had a tradition of including nonsectarian but religious invocations and benedictions with high school graduation ceremonies. At one time, these prayers were given by local clergy on a rotating basis. After the decision in Lee v. Weisman made such practices unconstitutional, a new policy was adopted which was in line with what the Fifth Circuit Court found constitutional in Jones v. Clear Creek: students would vote on whether or not to have prayers at graduation.
On June 18, 1993, the ACLU and Edward Ross filed a Complaint in the District Court for the District of New Jersey, in which they asked the court to halt such student-led prayer at graduation.
The Third Circuit Court rejected the school board's arguments that this issue was primarily one of students free speech rights simply because the students had voted on what to do:
An impermissible practice can not be transformed into a constitutionally acceptable one by putting a democratic process to an improper use. There should be no question "that the electorate as a whole, whether by referendum or otherwise, could not order [governmental] action violative of the [Constitution], and the [government] may not avoid the strictures of [the Constitution] by deferring to the wishes or objections of some fraction of the body politic."
As the court noted, high school graduation ceremonies are not treated like a public forum where a multiplicity of views on a topic - secular and/or religious - can be discussed. For example, the school board refused a request to have a representative from the ACLU come and speak about safe sex and wouldn't even consider submitting that topic to a student vote. Although the Court agreed that this particular decision was appropriate, it did emphasize the fact that speeches at the ceremonies were government-approved speeches, not simply private speeches at a public forum.
The Court also noted the fact that the degree of government involvement is important:
Graduation at Highland Regional High School, like graduation at nearly any other school, is a school sponsored event. School officials decide the sequence of events and the order of speakers on the program, and ceremonies are typically held on school property at no cost to the students. The atmosphere at Highland's graduations is characterized by order and uniformity. School officials necessarily "retain a high degree of control over the precise contents of the program, the speeches, the timing, the movements, the dress, and the decorum of the students."
Principal Palatucci testified before the district court that any student who attempted to give an unscheduled address at graduation in contravention of administrative direction would be arrested if police were available, even if a majority of the graduating students had previously approved. The district court carefully questioned the principal about what he would do if a majority of the student body, without administrative approval, voted to have a speaker who would not be included in the program but would be introduced by the valedictorian and allowed to give a one minute speech. The principal responded: "I couldn't allow that to happen. . . . If I have a police officer, I have her arrested."
Clearly, the involvement of the school - and that means the government - is not netural, limited or uninstrusive. Everything that happens has the clear stamp of approval from government officials, and that included any prayers. Just because officials have delegated some responsibility to students does not mean that they have also abandoned responsibility for what the students do and for what the speakers ultimately say.
It was also important to the Court's decision that dissenters at the graduation would feel compelled to participate in the religious ceremonies:
The objector's presence at his or her graduation compels participation in the religious observance decreed by the results of the poll... This, the Constitution does not allow What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.
Graduating students were required either to accept a model of worship dictated by a plurality or majoritiy of students or stay away from their own graduation and thus miss out on one of the most significant events in their lives.
This decision reinforced all of the important lessons from Lee v. Weisman: that the government is involved in every aspect of what happens at graduation ceremonies and cannot pretend that it is not officially sanctioning prayer, and that students should not be compelled to conform to a particular form of religious worship in order to attend their own graduation.
The decision also relied upon a principle later used by the Supreme Court in Santa Fe v. Doe, namely that students cannot vote to violate the rights of a minority of other students.
In this decision, the judges specifically rejected the arguments offered by the Fifth Circuit Court when they approved a similar policy in Jones v. Clear Creek.