With high school graduation fast approaching, we are providing several recommended strategies for addressing common graduation-related legal issues.
Diplomas and “Walking” at Graduation
The end of the school year may usher in “senioritis” and senior pranks, tempting school officials to withhold a student’s diploma as a disciplinary action. But school officials who do so risk legal exposure because withholding an earned diploma deprives an individual of a constitutionally-protected property interest. In fact, some courts have ruled that a student who is awaiting an expulsion hearing but has completed the graduation requirements may still be entitled to a diploma.
While students generally have a right to a diploma upon completion of graduation requirements, there is no constitutional right to receive that diploma at the graduation ceremony. Further, students have no right to participate in or “walk” at the graduation ceremony. Like participation in prom and extra-curricular activities, walking across the graduation stage is a privilege.
If student misconduct results in discipline at the end of the school year, school officials have the discretion to revoke a student’s privilege to walk at graduation. To avoid backlash from students and parents for the imposition of these consequences, school officials should include a graduation participation policy in the student code of conduct or provide written notice of the policy to students and their parents as early as possible (e.g., in the student handbook at the start of the school year). That policy also should address whether students who have not timely completed graduation requirements may participate in graduation ceremonies in anticipation of earning a diploma.
Cap and Gown
A school can establish and enforce a non-discriminatory dress code for graduation so long as the dress code relates to legitimate pedagogical concerns. Courts have held that students must abide by published cap and gown requirements and, in one case, a “no jeans” policy, to attend the graduation ceremony. One court also upheld a dress code prohibiting decorated graduation caps. Refusal to comply with a published non-discriminatory dress code can justify excluding a student from the graduation ceremony.
Some schools provide separate gown colors for male and female students. We recommend allowing students to wear gown colors consistent with their gender identity or allowing all students to choose between two colors on a first-come, first-served basis. Arbitrary dress-code distinctions based on sex are frequently targeted in sex discrimination lawsuits.
Public schools cannot mandate or organize prayer at graduation ceremonies because such an act would violate the First Amendment’s Establishment Clause. The U.S. Supreme Court has specifically held that a clergy-led graduation invocation is unconstitutional school-sponsored prayer. The Supreme Court also declared unconstitutional a school’s process of allowing students to select one of their classmates to lead an organized prayer at school-sponsored events.
Individual students may attempt to incorporate religious content into valedictory or other graduation speeches. While student speech that is part of a school-sponsored event may bear the imprimatur of the school, censoring religious-themed content from a student’s graduation speech may violate the student’s First Amendment free speech rights. When confronting this issue, some courts have held that graduation prayer voluntarily initiated by a student without any school policy encouraging or organizing prayer is permissible and does not violate the Establishment Clause.
School officials should provide students with appropriate guidelines for the ceremony and include a disclaimer statement in the graduation ceremony program that the views expressed by student speakers do not necessarily represent the views of the school.