May 8, 2007

Ouachita Parish High School

Attn. Mr. Todd Guice, Principal

681 Hwy 594

Monroe, Louisiana 71203

Ouachita Parish School Board

Attn. Dr. Robert Webber, Superintendent

100 Bry Street

Monroe, Louisiana 71201

Attn:     Principal Guice and Superintendent Webber

Via:      Certified Mail Nos. 7006-0100-0004-6511-3408 & 7006-0100-0004-6511-3415

            Facsimile: (318) 338-2221 and (318) 343-9594

Re:       Open Letter: Student-Led Prayers at Graduation Ceremonies Highly Questionable

Dear Principal Guice and Superintendent Webber:

From recent news reports, it looks as though you are trying a shell game of "student-led prayers" to address legal problems with minister led graduation prayers in 2006, as pointed out in our letter of March 9, 2007[i].  On March 16, your counsel Elmer Noah responded on your behalf by saying, "...the circumstances complained of will not be repeated in this year's ceremony."  We understood that to mean a graduation where students and people of all faiths or no faith at all would feel welcome, but obviously, you had something else in mind. 

The ACLU believes that such "student-led" prayers violate the Establishment Clause just as much as do school sponsored or minister-led prayers.  By letting students vote on whether to have a prayer, you are, in effect, submitting religious freedom to a majority vote.  In so doing, you are undermining the First Amendment's mission to protect religious minorities and promote tolerance, which is your job. 

The courts have been highly skeptical of schemes involving voting mechanisms or other procedures that allow students to decide on the content of school-sponsored ceremonies.  In Santa Fe Indep. Sch Dist. v. Doe (2000), the Supreme Court struck down a school policy allowing students to vote on whether a student would present a "brief invocation and/or message" before football games and to elect a student from a list of student volunteers to deliver it.  Employing a rationale that suggested prayers of all kinds are impermissible at school-sponsored events, the Court held hat the invocation that was ultimately delivered was not "private speech" because the policy that authorized the remarks was adopted by school officials, the message took place on government property at a school-sponsored event, the election system ensured that minority views would not be heard, and students would be forced to decide between attending the event or being subjected to offensive speech. 

Taking the advice of former Secretary of Education Rod Paige on Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools instead of the courts may not be in your best interests.  The Guidance improperly asserts that students may be allowed to choose whether to have prayers at school sponsored events.

There have been several other cases involving "student- led" prayers.  Two federal courts, including one ruling in an ACLU case, held that schools may not leave it up to students to decide whether to include prayer at a graduation ceremony. (ACLU of New Jersey v. Black Horse Pike Regional Board of Education, 84 F.3d 1471, 3rd Cir. 1996; Harris v. Joint School District No. 241, 41 F.3d 447, 9th Cir. 1994, vacated as moot, 115 S. Ct. 2604, 1995). These courts stated that a school may not turn over to students the decision whether to conduct a prayer at a school-sponsored function when the school itself may not organize such a prayer.

Another federal court ruled that prayers are permissible at a high school graduation if voted for by the student body and presented by an elected student volunteer and if the prayer does not favor or promote any particular religion. (Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963, 5th Cir. 1992).  That puts religious freedom up to majority vote and requires school administrators to review and approve prayer language ahead of time.  If a school district allows students to give unreviewed remarks at school events, and then a student elects to present a sectarian or religiously proselytizing speech, the school district could face legal liability. 

The ACLU still believes Clear Creek conflicts with the Lee v. Weisman (1992) decision, but the Supreme Court refused to take the case on appeal.  Clear Creek remains the law in the Fifth Circuit, which includes Louisiana, but Santa Fe adds a wrinkle to that ruling.  Furthermore, the Fifth Circuit in 2001 struck down a state law permitting non-sectarian "student-initiated voluntary prayer" during student assemblies, student sporting events, and other school-related student events.  Interestingly enough, that case concerned the Ouachita Parish Schools, as well.  Before that lawsuit, fellow classmates called a student who refused to participate in a prayer circle a Satanist and a devil worshipper.  The school sanctioned an atmosphere of hostility and intolerance toward those who expressed disapproval with school endorsed religious practices.  Students in a minority were persecuted and made to feel like outsiders in their own school. 

Superintendent Webber and Principal Guice, the ACLU calls on you to keep graduation--a singularly significant event in the life of a student--inclusive, tolerant and welcoming to believers and non-believers alike.  If you choose otherwise, the ACLU will entertain a complaint from anyone in attendance to consider the legality of the activities on that day. 

Sincerely,

Joe Cook, Executive Director