The Supreme Court recently denied certiorari for a Fourth Circuit case involving a rather rare school prayer situation - school prayer at an institution of higher learning.1 The Virginia Military Institute (VMI), a state-run military school in Lexington, Virginia, had a tradition of praying prior to their communal dinner each night. The Fourth Circuit upheld a district court opinion striking down the prayer as unconstitutional because it violated the Establishment Clause.2
The response to the Fourth Circuit's ruling was far-reaching, playing out in the newspapers and even in Congress. The Virginia Attorney General immediately vowed to appeal the decision to the Supreme Court, which he did.3 The superintendent of VMI, General Josiah Bunting, wrote an editorial in the Wall Street Journal, arguing for the benefits of the prayer and criticizing the district court for ignoring crucial facts.4 One of the dissenting judges wrote an editorial in the Richmond Times-Dispatch after rehearing was denied, arguing that the Fourth Circuit's ruling went too far, and that the prayer is "the most benign form of religious observance."5 Walter B. Jones, Jr., a Republican representative fromNorth Carolina and a member of the House Armed Services Committee, even introduced a bill that would protect the United States Naval Academy, which has a similar prayer, from the Fourth Circuit's ruling in Mellen.6
Over the past fifty-five years, the Supreme Court has heard several cases involving school prayer situations at elementary and secondary schools. The jurisprudence is not entirely consistent; over time, the Court has employed at least three different tests.7 However, there is no controlling jurisprudence regarding school prayer at public colleges or universities. As the Fourth Circuit noted, "the [United States Supreme] Court has never directly addressed whether the Establishment Clause forbids state-sponsored prayer at a public college or university."8 Perhaps that is partly because of the rarity of such situations, but also perhaps it is a situation which the Supreme Court has been unwilling to wade into. In 1997, both the Sixth and Seventh Circuits upheld prayer at graduation ceremonies of public universities.9 The Supreme Court likewise denied certiorari in both of those cases.10
School prayer at public colleges and universities presents an interesting nexus to review the Court's jurisprudence in the area. The Supreme Court has been fairly consistent in striking down school prayer at elementary and secondary schools, or at least in limiting the policies to very specific circumstances.11 Fear of the coercive nature of communal prayer at public schools is the common justification that seems to run throughout many of its decisions. In other words, the Court has been primarily worried that students at elementary and secondary schools are minors in a position of relative powerlessness and high impressionability.12 Yet, students at public colleges and universities are presumptively not minors, nor are they passive subjects. Marsh v. Chambers13 is the only Supreme Court decision regarding a similar policy where the participants (both willing and unwilling) were not minors. There, the Court upheld the Nebraska legislature's practice of opening sessions with a prayer.14 At a public college or university, would the Court be worried about "coercing" adults into praying? Would the Court be more willing to allow adults to exercise their reügious rights freely? Would the Court ignore any "coercion" concerns and strictly rule on establishment grounds?
The Court's current jurisprudence is extremely unhelpful prospectively. Not only has the Court employed several different tests, seemingly choosing on a whim which to apply, but each test demands an intensive review of the specific facts of each case, followed by rather tenuous conclusions. Indeed, although the Fourth Circuit seemed to think that VMFs prayer obviously violated the Constitution, it granted that General Bunting could reasonably have believed otherwise. …