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Published in 110 HARV. L. REV. 781 (1997). Copyright 1997 Harvard Law Review Associates.


Despite the Supreme Court's 1992 holding in Lee v. Weisman that state-sponsored prayer during a public school graduation ceremony violates the Establishment Clause, the issue of graduation prayer has recently resurfaced. Seeking to avoid Lee's prohibition, school boards have allowed students to decide by majority vote whether prayer will occur at graduation. The Third Circuit recently held, however, that these state-authorized student referenda regarding prayer violate the Establishment Clause. In ACLU v. Black Horse Pike Regional Board of Education, the court properly recognized the danger that popular votes could pose to the protections of the Establishment Clause, yet wisely stopped short of forbidding all forms of graduation prayer.

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