Caps, gowns and prayer lawsuits (updated)


As spring turns to summer, it’s the time for shaved-ice snow cones, cool dips in the swimming pool, hot nights at the ballpark … and steamy legal battles over whether prayer is allowed at high school graduation ceremonies.

For much of the last week, a federal lawsuit over whether prayer would be allowed as seniors at a Texas high school donned caps and gowns made headlines in the Lone Star State and nationally. With each turn of the crank (read: each new development in the case), I grew more frustrated with the lack of specific reporting on the legal arguments on each side. Most of the reports I read acted as if this were the first time anyone had ever sued over a high school graduation prayer. I really don’t think that’s the case.

The Texas case burst into the headlines when a federal judge banned prayer at the ceremony — a decision quickly appealed by the school district and lambasted by the state’s governor and attorney general. The top of the San Antonio Express News report on the ruling:

At this year’s graduation ceremony for students of Medina Valley High School, publicly uttered prayer is out — but individual references to a higher being are allowed.

Such was the ruling Tuesday from Chief U.S. District Judge Fred Biery in a lawsuit filed by Christa and Danny Schultz on behalf of one of their sons, who is one of the 238 seniors who will graduate Saturday from the school in Castroville.

The Schultz family is agnostic and says a son who graduated in 2009 was wrongly subjected to school-sponsored prayer, something the school district has repeatedly allowed despite long-standing legal precedent that bars it.

That lede makes clear that the judge’s ruling contained some nuance. However, the story never quotes directly from the order or explains precisely what the judge allowed and prohibited. Neither does the newspaper provide a link to the pdf of the actual ruling — much to my dismay. (Update: Thanks to Kate Shellnut for pointing out this link where the Express News did link to the documents!)

Moreover, the third paragraph refers to “long-standing legal precedent” but provides no details to confirm that assertion. By reading this particular news story, it’s obvious that prayers are banned at high school graduations.

Or maybe not. I was pleased Sunday to see a front-page story in The Tennessean by Godbeat writer Bob Smietana that seems much more cognizant of the murky legal waters on this issue:

Some things are clearly banned — such as teacher-led prayer or allowing an outside group, like the Gideons, to hand out Bibles.

Other things — like having students pray or mention God during a graduation speech or holding school events in a church — have been banned by some courts and allowed by others.

“The terrible answer that no one wants to hear is that everything depends on the context,” Haynes said. “These things can’t be answered in black and white.”

In a follow-up story, the San Antonio paper interviewed a valedictorian fighting for the right to pray in her graduation address. While the first report said individual references to a higher being were allowed, the second story reported:

Hildenbrand, 18 , wants to be able to pray and mention terms or phrases barred by Biery’s order — to include “amen” and “in the name of Jesus” in the speech, said Erin Leu , an attorney with the Liberty Institute.

Biery’s order, issued Tuesday, says the Schultzes are “likely to succeed on the merits of their claim that the inclusion of prayers at Medina Valley High School graduation ceremonies violates the establishment clause of the First Amendment.” It also ordered the district to not include the terms “invocation” and “benediction” in the graduation program, and prohibits speakers from uttering certain phrases that would encourage the crowd to join in prayer.

A Reuters report on the ruling included this section:

Texas Attorney General Greg Abbott on Wednesday asked a federal appeals court to overturn the order.

“This is part of an ongoing attempt to purge God from the public setting, while at the same time demanding from the court increased yielding to all things agnostic and atheistic,” Abbott said.

He said Congress begins each session with a prayer to God, and Biery’s ruling would allow a student to “bend over in honor of Mecca,” but not lead a prayer to the Christian God.

But again, this report does not quote the judge’s ruling directly, so it’s difficult for a reader to discern what he actually ruled.

Fox News provided a bit of specificity:

The judge did grant students permission to make the sign of the cross, wear religious garb or kneel to face Mecca. But that’s not good enough for some students at the high school.

On Friday, an appeals court reversed the judge’s ruling. Students who attended the ceremony “heard prayers aplenty,” and the majority seemed quite pleased by that, the Express News reported.

Meanwhile, and maybe it’s just me, the journalistic nitty-gritty on the legal battle that just occurred seems vague, confusing and totally lacking in context to understand it.

Until the next graduation season …

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About Bobby Ross Jr.

Bobby Ross Jr. is an award-winning reporter and editor with a quarter-century of professional experience. A former religion editor for The Oklahoman and religion writer for The Associated Press, Ross serves as chief correspondent for the The Christian Chronicle. He has reported from 47 states and 11 countries and was honored as the Religion Newswriters Association's 2013 Magazine Reporter of the Year.

  • Kate Shellnutt

    There were several stories posted on that the reporter continued to update on this issue.

    Here’s one that did include a sidebar with links to all the court documents themselves:
    Valedictorian joins in prayer fight

  • Bobby

    thanks, Kate!

  • sallyr

    This is a complicated and unclear area of the law, with so many permutations that it’s not surprising that journalists have trouble sorting it out.

    One reason it’s complex is that student speakers have a free speech right which then gets balanced against a supreme court-recognized audience right not to be “subjected” to prayers at school events. Supposedly, hearing someone praying at school events amounts to establishment of religion and is too divisive. But balancing tests are extremely subjective and fact intensive, so it’s hard to generalize about how this balance should be struck.

    Schools are treated differently from other government entities that involve only adults because kids are supposedly more vulnerable to religious preaching (adults can ignore it). Context and wording can change the outcome, which is why the courts have these crazy distinctions about what they forbid and permit, and different federal circuits interpret the confusing Supreme Court opinions differently.

    So really, the fact that the stories are confusing just reflects the state of the law – it’s a total mess and the Supreme Court is not going to clarify it anytime soon.

  • Jim Kelly

    I agree with you Bobby that it was very frustrating to read the articles regarding prayer at high school graduations in Texas. I was left wondering what the legal arguments were and specifically why the courts ruled the way they did.

    Although Constitutional law can be confusing and complex, with each case different in some respect, I believe the U.S. Supreme Court has spoken on this subject and it’s very clear.

    (Santa Fe Independent School District v Doe, 530 U.S. 290 (2000))

    I have a feeling we won’t have to wait until next cap and gown season before we hear more news regarding this Texas case. If so, I hope the articles won’t leave me scratching my head and scrambling to glean bits of information here and there.

  • Dave

    I’ve gotten used to school officials ignorant that there is case law on this subject. But journalists?

  • Ray Ingles

    You missed the case of Damon Fowler, who received death threats and was disowned by his parents over his complaining about graduation prayers. And then, at the actual graduation, well…

    It was in Louisiana, I suppose, but I’d figure it’s relevant.

  • sallyr

    The Santa Fe case forbids schools to have a policy of having student led prayers over the loud speaker at football games. The court said this was gov’t endorsed prayer.

    That’s different from having students give a speech at graduation (as all schools do) in which they mention the things that are important to them – including God, prayer, etc. That’s more like private “self-expression” of the student, and doesn’t necessarily amount to “gov’t pressure” to join in prayer. That’s the balance the courts are trying to strike – and they are rather paranoid and overly sensitive in the way they do so.

  • Jim Kelly

    sallyr – perhaps you should take a course in Constitutional law before you explain case law in your post. Your lack of knowledge in this area is apparent. We all have our opinions regarding this issue, but the Supreme Court has spoken, whether we like it or not. Santa Fe applies to Medina and I predict we will see more about this case shortly.

  • sallyr

    Jim, That’s quite interesting – I teach Constitutional Law and the First Amendment, and have done so for 10 years. Santa Fe applies to cases in which a school sytem has a policy of students using school equipment for an approved prayer at football games = gov’t endorsement of prayer. A student speaker at a graduation is not in the same position – the purpose and context of the speech is taken into account in determining whether what the student says is “private speech” or “gov’t speech”. Feel free to sign up for my course this coming semester! Maybe you will learn something.

  • Bob Wright

    SallyR is correct that context makes all the difference. If a student wants to thank God for her success, or say “This is the prayer that saw me through the tough times… (insert prayer)” – that is not controlled by Santa Fe. The state can’t single out religious topics and say they are the only things a kid can’t mention.

    Only if the student said something like – “Please now join me in saying the Lord’s Prayer” would Santa Fe clearly come into play. And even then there’d be a different balancing test applied (though it would likely be forbidden).

    But there’s no use trying to argue all this in com boxes and articles – there are too many factors that get weighed, and too much uncertainty.

  • Jim Kelly

    SallyR, since your post makes it clear that you are not a law professor, perhaps you teach at a high school? Private v. government-sponsored speech was the issue in Santa Fe. The Court concluded it was government-sponsored speech. Had the Court determined it was private speech there would have been a different outcome. That goes without saying.

    FYI SallyR, using school equipment had nothing to do with the Court’s decision, that was merely a fact in the case. It was the policy of the school endorsing prayer at school functions that made it government-sponsored, therefore unconstituional. I’ll say it again – Santa Fe applies to Medina.

    And Bob Wright, you are correct that discussing such a complex issue is difficult in these little boxes.

  • Bobby

    I was out all day on a quick reporting trip to Joplin, so just seeing the comments. Jim, I’d encourage you to keep your comments focused on the issues and not make statements questioning the knowledge of specific posters. No need at all to make judgments about specific posters’ knowledge. In other words, challenge the constitutional law, not the person making the statement. Since the comments in question have received responses, I’m not going to delete them. But I will next time.