The Intersection of Religion and Schools at Graduation: Not a Stop Sign, but Proceed with Caution

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As graduation approaches, questions about how prayer and religion intersect with school ceremonies inevitably come up.  Some questions have fairly clear answers.

  • Can a district hold graduation in a church?  Generally, no. For example, in Doe v. Elmbrook Sch. Dist., a federal district court clearly stated that this practice would be impermissible.  You don’t want to be the Nebraska test case.

  • Can a district invite members of the clergy, or direct a student or staff member to begin the graduation ceremony with a prayer?  No. The United States Supreme Court held that this practice was unlawful in Lee v. Weisman.

Unfortunately, many questions about religious expression in schools do not have clear answers. A recent case before the Court of Appeals for the Seventh Circuit is a great example of how courts analyze the questions that fall into that gray area.  In Freedom from Religion Found., Inc. v. Concord Cmty. Schools, the court closely examines a “Christmas Spectacular.” While it is not a graduation case, it does a good job laying out the tests courts use when looking at the intersection of religion and school functions.

In Concord the school district had a long standing tradition of performing a Christmas program that involved a student-performed nativity scene and several songs focused on the Christmas holiday from the traditional Christian perspective.  After receiving complaints from parents, and being sued by the Freedom from Religion Foundation due to the substance of the program, the district modified the show. At this point the case becomes a tale of two Christmas programs. The Court held that first program, which generated the initial complaints, was pretty clearly out of bounds. The program was focused on the story and birth of Jesus “to the point that it was hard to distinguish it from many Christmas Eve church services.”  The modified program, then became the fighting issue.

The court examined whether or not the district violated the First Amendment by looking for three things: endorsement of religion, coercion of the audience and students to conform to a religion, or an unlawful religious purpose.  


To assess whether or not an endorsement of a religion or a particular religious belief has occurred, the court looked to the “totality of the circumstances surrounding the challenged conduct from the perspective of a reasonable observer.”  To perform this analysis, the court looked at the changes to the program. The new program included new songs. “Ani Ma’amin” and “Harambee” were added to recognize and celebrate Hanukkah and Kwanzaa. The nativity scene was shortened from twenty minutes to two minutes.  Students were no longer asked and/or required to play characters in the nativity. A reading from the New Testament was taken out. Many of the Christmas songs remained, but in the context of the entire show, which included secular songs, and songs from other religions, the program was not “ratifying a religious message.”


The coercion test was used to disqualify the two “easy” cases mentioned above.  The prayer at the beginning of a graduation in Wiseman was considered coercive due to the pressure to support or participate in the prayer and therefore to participation in the religion.  In Elmbrook, conducting a graduation in a church was considered coercive because it placed the captive audience of a school ceremony in a proselytizing environment.  In Concord, the court found that although the district had a captive audience, “there was no religious activity in which performers or audience members had to partake.”  The fact that some audience members were “reflecting on a religious hymn,” was not enough to amount to coercion of other audience members. The court made a point of saying that most of them were probably just on their cell phones anyway!

Unlawful Religious Purpose

The three stated purposes of the Christmas Spectacular were to provide cultural education to students, entertain the audience, and provide learning opportunities to performing arts students.  The court wrote, “[t]his would have been an easier case if the Christmas Spectacular had devoted a more proportionate amount of stage time to other holidays.” The court went on to state that there is no minimum number of songs required from each religion, but that the program as performed did show a clear preference toward Christmas.  The court liked the other two goals much better, because they articulated a non-religious purpose. For example, clearly there was a pedagogical purpose because students learned music, choreography, and costume design. They also had to organize props, sets, and put on the performance to a large crowd.

The plaintiffs, “concede[d] that these legitimate purposes are reasons to have a winter performance in general,” but argued that a legitimate purpose did not allow the school to perform the religious elements of the presentation.  However, the court found, “the Establishment Clause does not require schools to tailor their conduct narrowly to the stated aim. It mandates only that a religious purpose cannot be the primary motivation.” Because the court found that the religious aspects of the Christmas Spectacular were not the primary motivation for the performance, the performance as a whole was deemed to not violate the First Amendment.


Since the courts have multiple tests that can be applied to a variety of situations, it’s incredibly difficult to come up with a strict set of guidelines that are guaranteed to satisfy every judge.  But there are some basic questions you can ask to do a First Amendment Assessment:

  1. Is the district endorsing a specific religion?  What would an objective outsider say, without the typical pressures of community sentiment and tradition?

  2. Do students and parents have a choice when it comes to participation in any religious activities?  Has the district placed a captive audience into a religious environment?

  3. Is the purpose of the district’s activity to engage in religious conduct?  Or is the district focused on student learning and/or the entertainment of spectating patrons of varying religions or no religions at all?

These basic questions should point the district in the right direction when trying to determine if the district activity is appropriate, or if you are flirting with a First Amendment violation.  As always, if you have any questions on these issues don’t hesitate to contact Karen, Steve, Bobby, or Tim; or your district’s attorney.