So there wasn’t any jurisdiction over these practices by the Supreme Court until the middle of the 20th century.
Second, there had been conflicts in America back to the middle of the 19th century about religious ceremonies in public schools – Protestants versus Catholics.
It would be very unusual in a commencement to give students that authority, unless it was part of some elaborate plan in which the administration was involved, in which case the administration would be responsible for the content of what was said by that outside speaker. Forum: What are the rules for a public university or a private university, and then let’s consider the members of a third category – the military academies?
Lupu: The cases so far about public universities have permitted nonsectarian invocations at universities on the theory that students are older or less impressionable and therefore less subject to coercion or of having a feeling of coercion. That’s coercion, and, likewise, a supper prayer at the Virginia Military Institute was recently held unconstitutional.
But because was focused on coercion, the courts that have addressed this public university issue have been able to distinguish the cases and essentially treat public university commencements as not very different from other public ceremonies – the inaugurations of presidents or mayors or governors, for example – where sometimes, likewise, there will be an invocation or benediction, which we have tended to permit in this culture, including in the law, as somehow serving a kind of ceremonial – historical ceremonial – function. The commencement prayers have this quality of ceremony because they are marking commencement – the same way inaugurations are ceremonies – but when it’s a daily exercise, it doesn’t feel ceremonial the same way.
So the university commencement is sort of the bridge case between the high school commencement (prayer not allowed) and the inauguration (prayer allowed). It feels like it’s being made part of your ordinary and regular life to say the supper prayer.That’s the backdrop for the school prayer cases in the early 1960s.This was the deal that the courts made: We’re not going to pay for your separate schools.You had this kind of Protestant religious expression in the schools.And Catholics protested this and said, “We need to start our own schools; would you please pay for it?If coercion is the operative theory here, then perhaps that distinction is sensible. People did not have to eat, but they had to attend.If the operative theory is the government should not have a religious voice, which is a stronger, more sweeping theory, there’s no reason to treat university commencements differently from high school commencements. All the cadets were there, and there would be a prayer recitation – not a commencement, right?Spring is the season for school graduations, and graduation ceremonies play a featured role in the national debate over the place of religion in public education.Is a clergyman’s benediction at a public school event a violation of the separation of church and state? If you had started with the principal or someone else who is without doubt an employee, agent or representative of the school or the school board – that might be the principal, that might be the chairman of the school board or some other public official, such as a mayor, or someone who is there to preside – then I would say it’s quite straightforward — not based on those 1960s cases alone, but based on a 1992 decision called . Lupu: There’s more than one way to answer that question. It was that anyone who is at the ceremony is going to feel compelled to participate. To say “submitting to it” would be too strong, but that’s what they’re being asked to do.And the conventional pattern was that it was a Protestant prayer or Protestant Bible reading that was going on in the public schools in a great many states.And in a great many places authorities thought of it as nonsectarian because all Protestants could comfortably say it.