American Civil Liberties Union v. Black Horse Pike Regional Board of Education

Opinions of the United

1996 Decisions States Court of Appeals

for the Third Circuit

5-24-1996

ACLU NJ v. Black Horse Pike Regional Bd. of

Education

Precedential or Non-Precedential:

Docket 94-5233

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 94-5233

THE AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY,

ON BEHALF OF ITS MEMBERS; AND EDWARD ROSS

v.

BLACK HORSE PIKE REGIONAL BOARD OF EDUCATION;

HIGHLAND REGIONAL HIGH SCHOOL; FRANK PALATUCCI,

PRINCIPAL IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES

Appellants

On Appeal From the United States District Court

for the District of New Jersey

(D.C. Civ. No. 93-cv-02651)

Argued: January 23, 1995

Before: MANSMANN, HUTCHINSON and McKEE, Circuit Judges.

Reargued In Banc: October 25, 1995

Before: SLOVITER, Chief Judge, BECKER, STAPLETON,

MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD, ALITO,

ROTH, LEWIS, McKEE, and SAROKIN, Circuit Judges.

(Filed May 24, 1996)

JAMES KATZ, ESQUIRE (ARGUED)

Tomar, Simonoff, Adourian & O'Brien

41 South Haddon Avenue

Haddonfield, NJ 08033

Counsel for Appellees

JOHN D. WADE, ESQUIRE (ARGUED)

Ferreri & Wade, P.C.

1250 Chews Landing Road

Laurel Springs, NJ 08021

Counsel for Appellants

OPINION OF THE COURT

McKEE, Circuit Judge.

We are asked to decide whether a policy adopted by the Black

Horse Pike Regional Board of Education that allows a vote of the

senior class to determine if prayer will be included in high

school graduation ceremonies is constitutional. For the reasons

that follow we hold that this policy is inconsistent with the

First Amendment of the United States Constitution. Accordingly,

we will affirm, but modify, the permanent injunction issued by

the district court.

I. FACTUAL BACKGROUND

The Black Horse Pike Regional Board of Education (the

"School Board" or "Board") has had a longstanding tradition of

including a nonsectarian invocation and benediction in high

school graduation ceremonies. These prayers have historically

been delivered by local clergy on a rotating basis in an attempt

to afford different denominations the opportunity to be

represented.

In May of 1993, the School Board decided to reconsider this

policy because of the Supreme Court's decision in Lee v. Weisman,

505 U.S. 577 (1992), wherein the Court invalidated a public

school's practice of including prayer in graduation ceremonies.

As part of the Board's reexamination, the Superintendent of

Schools tendered a policy entitled "Religion at Graduation

Exercises" IKFD ("Version A") for the Board's consideration.

Version A prohibited all prayer at graduation ceremonies. The

Board rejected that policy and directed the school administration

to prepare a second version that would parallel the holding of

Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963, 972 (5th

Cir. 1992). The court in Jones had upheld a public school policy

that allowed students to determine for themselves whether or not

a prayer would be delivered at their graduation.

Two policies were presented to the Board at its May 23, 1993

meeting. One version allowed graduating students to decide

whether prayer would be included in the graduation ceremony as

well as the nature of any such prayer ("Version D"). The other

proposal would not have allowed "prayer" but would have allowed a

"moment of reflection, during which pupils and parents [could] be

asked to think silently about what has been and what is to come

for each graduate." App. at 144. A group of students who had

previously asked to address the Board on this issue attended the

meeting and spoke in favor of Version D. At the conclusion of

the meeting, the Board unanimously adopted Version D. That

policy, as finally adopted, allowed the senior class officers to

conduct a poll of the graduating class to determine whether

seniors wanted "prayer, a moment of reflection, or nothing at

all" to be included in their graduation ceremony. App. at 180.

The policy was entitled, "Religion at Graduation Exercises," and

the text began as follows:

After reading recent decisions of the United

States Supreme Court and interpretations of

those decisions, the Board of Education

concludes the long standing practice of

conducting invocation and benediction prayer

at graduation ceremonies and at other school

functions is proper and legal under the

following conditions:

1. The Board of Education, administration

and staff of the schools shall not endorse,

organize or in any way promote prayer at

school functions.

2. In the spirit of protected speech, the

pupils in attendance must choose to have

prayer conducted. Such prayer must be

performed by a student volunteer and may not

be conducted by a member of the clergy or

staff.

Policy IKFD, Version D, App. at 180.

The policy also allowed the students to decide how they

would determine what form of prayer, if any, would be given at

graduation, "so long as the process [was] conducted by duly

elected class officers and the survey . . . provides pupils with

an opportunity to choose prayer, a moment of reflection, or

nothing at all." Version D of Policy IKFD further required that

printed programs for the graduation include a disclaimer

explaining that any presentation that may be given at

commencement did not reflect the views of the School Board, the

School District, administrators, staff, or other students.

On June 3, 1993, Principal Frank Palatucci of the Highland

Regional High School explained the Board's decision to the

students during the morning announcements over the school public

address system. After he explained the policy, he introduced the

senior class president who explained that a poll would be taken

of the senior class, and how the balloting would be conducted.

The vote was taken the next day and produced the following

results: 128 students voted for prayer, 120 for reflection/moment

of silence, and 20 voted to have neither. Students then

volunteered to deliver the graduation prayer, and the senior

class officers selected the senior class recording secretary from

among those volunteers.

On June 9, Edward Ross, a member of the senior class,

approached Principal Palatucci and requested that a

representative from the ACLU also be permitted to speak at the

graduation to discuss safe sex and condom distribution.

Principal Palatucci denied Ross' request explaining that the time

constraints of the ceremony would not permit a keynote speaker,

and that the topic requested was not generally one discussed at

graduation ceremonies.

II. PROCEDURAL HISTORY

On June 18, 1993, the ACLU and Edward Ross filed a Complaint

in the District Court for the District of New Jersey, in which

they asked the court to enjoin any student-led prayer at

graduation. The Complaint alleged that the proposed prayer

violated the First Amendment of the United States Constitution

and Article I, Paragraph 4 of the New Jersey Constitution.

By Order entered June 24, 1993, the district court denied

plaintiffs' request for a preliminary injunction. The court

concluded that the proposed prayer was appropriate because it was

given under circumstances that distinguished it from the

prohibited prayer in Lee v. Weisman. The following day the

plaintiffs filed an emergency appeal to this court where a two-

judge panel reversed the district court and entered an order that

stated in part:

[T]he graduation ceremony is a school

sponsored event; the fact that the school

board has chosen to delegate the decision

regarding one segment of the ceremony to the

members of the graduating class does not

alter that sponsorship, does not diminish the

effect of a prayer on students who do not

share the same or any religious perspective,

and does not serve to distinguish, in any

material way, the facts of this case from the

facts of Lee v. Weisman, U.S. , 112 S.

Ct. 2649 (1992);

. . .

Now, therefore, . . . appellees, their

agents and employees, and all those acting in

concert with them are hereby enjoined from

conducting a school sponsored graduation

ceremony that includes a prayer whether it be

an invocation, a benediction or a prayer in

any other form.

App. at 199-200.

Thereafter, the School Board filed a motion in this court to

vacate the preliminary injunction. That motion was denied.

Additional motions were subsequently filed both in this court and

in the United States Supreme Court. Finally, on March 29, 1994,

the district court entered a final order, consistent with the

aforementioned order of this court, reversing the court's

previous denial of the preliminary injunction. The district

court permanently enjoined the School Board from "conducting a

school-sponsored graduation ceremony that include[d] prayer,

whether it be an invocation, a benediction or a prayer in any

other form." App. at 210. On April 28, 1994, the School Board

filed this appeal. The matter is now before this court in banc.

III. OUR SCOPE OF REVIEW We review a district

court's decision to grant or deny a

permanent injunction under an abuse of discretion standard.

International Union, UAW v. Mack Trucks, Inc., 820 F.2d 91, 94

(3d Cir. 1987). "An abuse of discretion exists where the

district court's decision rests upon a clearly erroneous finding

of fact, an errant conclusion of law, or an improper application

of law to fact." Id. at 95.

In this case, the district court did not render a decision

on the merits as to whether plaintiffs were entitled to a

permanent injunction. Instead, the district court granted a

permanent injunction solely because it believed it was bound to

do so by the law of the case in light of the emergency ruling of

a two-judge panel of this court granting plaintiffs' motion for a

preliminary injunction. As the district court expressly stated

in its order:

Additional hearings or new evidence might

have put a different cast on the issues, but

as the record has not been augmented since

the motion for a preliminary injunction, we

feel constrained to enter a final judgment in

accordance with the Third Circuit's order of

June 25, 1993. We make it clear that the

opinion of the Court remains that expressed

in the oral opinion of June 24, 1993.

However, due regard for our "hierarchical

federal judicial system," particularly where

the reviewing panel has had the same record

as the Court, requires us to respect the

findings of the Third Circuit.

Order of March 29, 1994, at 3 (citations omitted).

The district court erred in concluding that it was so bound.

The two-judge panel assessed the merits on an emergency basis

under the standard for the granting of a preliminary injunction

-- a standard which differs from the standard for granting a

permanent injunction. Its decision to grant a preliminary

injunction was based on an assessment of the likelihood that

plaintiffs would succeed on the merits, and neither constitutes

nor substitutes for an actual finding that plaintiffs havesucceeded on the

merits and are entitled to permanent relief.

Indeed, there is no evidence in the record that the district

court ever applied the legal standard for granting a permanentinjunction

or otherwise based its decision upon an assessment of

the merits of the case.

It is well-established, however, that "if the decision below

is correct, it must be affirmed, although the lower court relied

upon a wrong ground or gave a wrong reason." Helvering v.

Gowran, 302 U.S. 238, 245 (1937); see also Erie

Telecommunications, Inc. v. City of Erie, 853 F.2d 1084, 1089

n.10 (3d Cir. 1988). We will therefore proceed to address the

merits of this matter to determine whether, despite the district

court's error, the permanent injunction was properly issued on

some other ground.

IV. DISCUSSION

A. The Free Speech Rights of Students

The Board relies upon the student referendum in an attempt

to define the instant controversy as one impacting upon the

students' right of free speech as opposed to a dispute over the

constitutionality of prayer at a public high school graduation.

Version D of Policy IKFD does state: "[i]n the spirit of

protected free speech, the pupils in attendance must choose to

have prayer conducted," App. at 180. However, Version D allowed

the 128 seniors who wanted verbal prayer at their graduation to

impose their will upon 140 of their fellow classmates who did

not. The Board's position would have us recognize a right in

that plurality to do so, and ignore the right of others to

worship in a different manner, or in no manner at all. This we

can not do because "the individual freedom of conscience

protected by the First Amendment embraces the right to select any

religious faith or none at all." Wallace v. Jaffree, 472 U.S.

38, 52 (1985). Therefore, the Board's emphasis on voting

majorities is misplaced. "While in some societies the wishes of

the majority might prevail, the Establishment Clause of the First

Amendment is addressed to this contingency and rejects the

balance urged upon us." Lee, 505 U.S. at 596.

Just as the right to speak and the right to

refrain from speaking are complementary

components of a broader concept of individual

freedom of mind, so also the individual's

freedom to choose his own creed is the

counterpart of his right to refrain from

accepting the creed established by the

majority.

Wallace, 472 U.S. at 52.

An impermissible practice can not be transformed into a

constitutionally acceptable one by putting a democratic process

to an improper use. There should be no question "that the

electorate as a whole, whether by referendum or otherwise, could

not order [governmental] action violative of the [Constitution],

and the [government] may not avoid the strictures of [the

Constitution] by deferring to the wishes or objections of some

fraction of the body politic." City of Cleburne v. Cleburne

Living Center, 473 U.S. 432, 448 (1985) (citation omitted). A

policy that does this can not be legitimized by arguing that it

promotes the free speech of the majority.

The First Amendment protects speech and

religion by quite different mechanisms.

Speech is protected by insuring its full

expression . . . . The method for protecting

freedom of worship and freedom of conscience

in religious matters is quite the reverse. .

. . The Free Exercise Clause embraces a

freedom of conscience and worship that has

close parallels in the speech provisions of

the First Amendment, but the Establishment

Clause is a specific prohibition on forms of

state intervention in religious affairs with

no precise counterpart in the speech

provisions.

Lee, 505 U.S. at 591.

Although it is necessary to reconcile one's own preferences

to the results of a referendum when choosing one's

representatives or voting upon legislative matters, the First

Amendment does not allow one's religious preferences to be

compromised in this manner.

The very purpose of a Bill of Rights was to

withdraw certain subjects from the

vicissitudes of political controversy, to

place them beyond the reach of majorities and

officials and to establish them as legal

principles to be applied by the courts. One's

. . . fundamental rights may not be submitted

to vote; they depend on the outcome of no

elections.

Board of Educ. v. Barnette, 319 U.S. 624, 638 (1943).

High school graduation ceremonies have not been regarded,

either by law or tradition, as public fora where a multiplicity

of views on any given topic, secular or religious, can be

expressed and exchanged. School officials at Highland did not

allow a representative of the ACLU to speak about "safe sex" and

condom distribution at graduation, as requested by one of the

graduating seniors. The question was not submitted to referendum

of the graduating seniors because the principal understandably

determined that the proposed topic was not suitable for

graduation. We do not suggest that the school's response to this

request was inappropriate. However, we do note that the response

illustrates the degree of control the administration retained

over student speech at graduation. Version D was not intended to

broaden the rights of students to speak at graduation, nor to

convert the graduation ceremony into a public forum. Cf. Capitol

Square Review and Advisory Bd. v. Pinette, U.S. , 115 S. Ct.

2440, 2450 (1995) ("Religious expression cannot violate the

Establishment Clause where it (1) is purely private and (2)

occurs in a traditional or designated public forum, publicly

announced and open to all on equal terms.").

Accordingly, we fail to see how this particular policy,

addressed only to providing an option for continuing prayer at

graduation after Lee, can be legitimized as promoting the free

speech rights of the students.

B. Lee v. Weisman

The degree of control that school officials retained over

the speech that would be permitted at graduation is also relevant

under Lee v. Weisman, 505 U.S. 577 (1992). There, the principal

of a public middle school invited a rabbi to deliver the

invocation and benediction at the school's graduation, in

accordance with school district practice. The principal gave the

rabbi a pamphlet containing guidelines to be followed in giving

public prayers at civic occasions and told the rabbi that the

prayers should be non-sectarian. Id. at 581. The graduation

ceremony at which the prayers were given was held on school

property, and the parties stipulated that attendance at the

ceremony was voluntary. After the processional, the students

remained standing for the Pledge of Allegiance, and for the

rabbi's very brief invocation.

In ruling the prayer unconstitutional, the Supreme Court

emphasized:

These dominant facts mark and control

the confines of our decision: [1] State

officials direct the performance of a formal

religious exercise at promotional and

graduation ceremonies for secondary schools.

[2] Even for those students who object to the

religious exercise, their attendance and

participation in the state sponsored

religious activity are in a fair and real

sense obligatory, though the school district

does not require attendance as a condition

for receipt of the diploma.

Id. at 586. Accordingly, we must examine (1) the state's control

of the graduation ceremony, and (2) the students' coerced

participation in the ceremony here.

(1)

The School Board argues that the student referendum here

significantly distinguishes this case from Lee. We disagree. It

is, of course, true that the state's entanglement with the

graduation prayer in Lee was more obvious, pronounced, and

intrusive than the School District's involvement here. In Lee,

the principal decided prayer would be included in the ceremony,

chose the clergy person who would give the prayer, and even

determined part of the content of the prayer by giving the

invited clergy guidelines for the substance of the prayer. Id.at 587. It

is no wonder then, that the resulting prayer "bore

the imprint of the State." Id. at 590.

Although the state's involvement here is certainly less

evident, the student referendum does not erase the state's

imprint from this graduation prayer. Graduation at Highland

Regional High School, like graduation at nearly any other school,

is a school sponsored event. School officials decide the

sequence of events and the order of speakers on the program, and

ceremonies are typically held on school property at no cost to

the students. App. at 118-26. The atmosphere at Highland's

graduations is characterized by order and uniformity. School

officials necessarily "retain a high degree of control over the

precise contents of the program, the speeches, the timing, the

movements, the dress, and the decorum of the students." Lee, 505

U.S. at 597. Principal Palatucci testified before the district

court that any student who attempted to give an unscheduled

address at graduation in contravention of administrative

direction would be arrested if police were available, even if a

majority of the graduating students had previously approved. The

district court carefully questioned the principal about what he

would do if a majority of the student body, without

administrative approval, voted to have a speaker who would not be

included in the program but would be introduced by the

valedictorian and allowed to give a one minute speech. The

principal responded: "I couldn't allow that to happen. . . . If I

have a police officer, I have her arrested." App. at 125. Thus,

the school officials' involvement and control is not as limited,

unintrusive, or neutral as the School Board suggests.

Delegation of one aspect of the ceremony to a plurality of

students does not constitute the absence of school officials'

control over the graduation. Students decided the question of

prayer at graduation only because school officials agreed to let

them decide that one question. Although the delegation here may

appear to many to be no more than a neutral means of deciding

whether prayer should be included in the graduation, it does not

insulate the School Board from the reach of the First Amendment.

"[C]ourts must keep in mind both the fundamental place held by

the Establishment Clause in our constitutional scheme and the

myriad, subtle ways in which the Establishment Clause values can

be eroded." Lynch v. Donnelly, 465 U.S. 668, 694 (1984)

(O'Connor, J., concurring).

Furthermore, the text of Version D affirms that it was

adopted in response to Lee. The Board's avowed purpose in

reexamining its policy was to provide an option that might allow

the "longstanding tradition" of graduation prayer to survive the

prohibitions of that Supreme Court decision. We believe that the

control exercised by state officials here, though different in

degree than was present in Lee, is not sufficiently distinct to

require a different result under the "first dominant fact" of

Lee.

(2)

"[T]here are heightened concerns with protecting freedom of

conscience from subtle coercive pressure in the elementary and

secondary public schools." Lee. 505 U.S. at 592. We find no

difference whatsoever between the coercion in Lee and the

coercion here. A high school graduation is distinguishable from

forums such as a legislative session where prayer has been

upheld. See Marsh v. Chambers, 463 U.S. 783, 795 (1983).

Legislators "may presumably absent themselves from such public

and ceremonial exercises without incurring any penalty, direct or

indirect." School Dist. of Abington Twnshp v. Schempp, 374 U.S.

203, 299-300 (1963) (Brennan, J., concurring). The same cannot

be said of students at their high school graduation.

"The fact that attendance at the graduation ceremonies is

voluntary in a legal sense does not save the religious exercise."

Lee, 505 U.S. at 596. The objector's presence at his or her

graduation compels participation in the religious observance

decreed by the results of the poll that is sanctioned under

Version D. This, the Constitution does not allow.

What to most believers may seem nothing more

than a reasonable request that the

nonbeliever respect their religious

practices, in a school context may appear to

the nonbeliever or dissenter to be an attempt

to employ the machinery of the State to

enforce a religious orthodoxy.

. . . The undeniable fact is that the

school district's supervision and control of

a high school graduation ceremony places

public pressure, as well as peer pressure, on

attending students to stand as a group or, at

least, maintain respectful silence during the

Invocation and Benediction. This pressure,

though subtle and indirect, can be as real as

any overt compulsion. . . . [F]or the

dissenter of high school age, who has a

reasonable perception that she is being

forced by the State to pray in a manner her

conscience will not allow, the injury is . .

. real.

Id. at 592-93. Even the appearance of participation should be

avoided in this setting. Id. at 588 (students "had no real

alternative which would have allowed [them] to avoid the fact or

appearance of participation").

Here, the hypothetical dissenter in Lee is replaced by 140

students who voted not to have a formal prayer at their public

high school graduation. The Board's policy would have required

each of those 140 students to participate (or at the very least

maintain respectful silence) as others engaged in student-led

worship. "It is beyond dispute that, at a minimum, the

Constitution guarantees that government may not coerce anyone to

support or participate in religion or its exercise." Id. at 587.

Here, as in Lee, "[t]he prayer exercises . . . are especially

improper because the State has in every practical sense compelled

attendance and participation in an explicit religious exercise at

an event of singular importance to every student, one the

objecting student had no real alternative to avoid." Id. at 598.

Students at Highland had to either conform to the model of

worship commanded by the plurality or absent themselves from

graduation and thereby forego one of the most important events in

their lives. That is an improper choice to force upon dissenting

students.

[T]o say a teenage student has a real choice

not to attend her high school graduation is

formalistic in the extreme. . . . Everyone

knows that in our society and in our culture

high school graduation is one of life's most

significant occasions. A school rule which

excuses attendance is beside the point.

Id. at 595. "The Constitution forbids the State to exact

religious conformity from a student as the price of attending his

own high school graduation." Id. at 596.

The First Amendment is a shield that prohibits the state

from interfering with a person's right to worship as he or she

pleases. It is not a sword that can be used to compel others to

join in a religious observance at a state sponsored event. "The

First Amendment has lost much if the religious follower and the

atheist are no longer to be judicially regarded as entitled to

equal justice under law." Zorach v. Clauson, 343 U.S. 306, 320

(1952) (Black, J., dissenting).

The sole question presented is whether a

religious exercise may be conducted at a

graduation ceremony in circumstances where .

. . young graduates who object are induced to

conform. No holding by th[e Supreme Court]

suggests a school can persuade or compel a

student to participate in a religious

exercise. That is being done here, and it is

forbidden by the Establishment Clause of the

First Amendment.

Lee, 505 U.S. at 599.

It is, of course, true that the often referenced "wall of

separation" between church and state has recently been described

as more "metaphor" than reality. However, even if the "wall" is

more metaphor than mortar, it is sufficiently unyielding to

prevent prayer from being included as a formal part of the

graduation ceremony under Version D of Policy IKFD.

The disclaimer required under Version D does help to

recapture some of the separation between church and state that

has been obscured by the state's control over the graduation.

However, the Board cannot sanction coerced participation in a

religious observance merely by disclaiming responsibility for the

content of the ceremony. Given the protections inherent in the

First Amendment, it is quite possible that parents of some

graduating seniors chose public education precisely so that their

children would not be compelled to follow the religious beliefs

of others. Yet, that is exactly what Version D allows.

We recognize that the Court of Appeals for the Fifth

Circuit has reached a result contrary to the one we reach today.

See Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963 (5th

Cir. 1992), cert. denied, 113 S. Ct. 2950 (1993). Indeed, as

stated earlier, the administration at Highland promulgated

Version D pursuant to the Board's instruction to develop a policy

that would parallel the holding of Jones. We are not, however,

persuaded by that court's analysis. Jones also involved a

challenge to a policy that allowed students to decide if they

wanted prayer at a public school's graduation ceremony. The

Jones court upheld the policy while acknowledging that "the

practical result of [its] decision, viewed in light of Lee, is

that a majority of students can do what the State acting on its

own cannot do to incorporate prayer in public high school

graduation ceremonies." Id. at 972.

That court recently reaffirmed that ruling in Ingebretsen v.

Jackson Public Sch. Dist., No. 94-60631, 1996 WL 205, *6 (5th

Cir. Jan. 10, 1996) (affirming an order that enjoined enforcement

of a Mississippi statute allowing prayer at compulsory and

noncompulsory school events, "except as to nonsectarian,

nonproselytizing student initiated voluntary prayer at high

school commencement as condoned by Jones . . . ."). In Doe v.

Duncanville Indep. Sch. Dist., 70 F.3d 402 (5th Cir. 1995), the

court again addressed the limits of school prayer in public

schools, but in the context of extra-curricular activities for

which students received academic credit. The court held that the

school district's practice of allowing its employees to initiate

or merely participate in prayers at basketball games and

basketball practices was unconstitutional. The court

distinguished Jones by noting that graduation prayer occurred at

a "once-in-a-lifetime event that could be appropriately marked

with a prayer," that the students in Jones were mature seniors,

and "that the challenged prayer was to be non-sectarian and non-

proselytizing." Id. at 406-07.

We are not persuaded by these distinctions. Lee clearly

established that the "once-in-a-lifetime event" does not justify

allowing a public school to authorize collective prayer under the

circumstances of that case. To the contrary, the significance of

that "once-in-a-lifetime" event weighed heavily in favor of

invalidating the prayer. It was precisely because graduation was

a "once-in-a-lifetime" event that students were denied the option

of foregoing the ceremony to avoid compromising their religious

scruples. See Lee, 505 U.S. at 595-96. Similarly, the Court in

Lee was not convinced that the maturity level of high school

students immunized them from the coercion endemic in coerced

participation. Id. at 593 ("[F]or the dissenter of high school

age, who has a reasonable perception that she is being forced by

the State to pray in a manner her conscience will not allow, the

injury is no less real."). Indeed, few would doubt the influence

of peer pressure upon children in high school. Furthermore, we

are not inclined to alter our analysis merely because Version D

does not expressly allow proselytization. See County of

Allegheny v. ACLU, Greater Pittsburgh Chp., 492 U.S. 573, 606-09.

Instead, we find the reasoning of the Court of Appeals for

the Ninth Circuit in Harris v. Joint Sch. Dist. No. 241, 41 F.3d

447 (9th Cir. 1994) to be more persuasive. There, plaintiffs

challenged a school district's policy of allowing graduating

seniors to vote on whether prayer should be included in their

graduation ceremony. The court concluded that the challenged

practice violated the Establishment Clause even though any

graduation prayer would have to be initiated, selected, and

delivered by students.

We cannot allow the school district's

delegate to make decisions that the school

district cannot make. When the senior class

is given plenary power over a state-

sponsored, state-controlled event such as

high school graduation, it is just as

constrained by the Constitution as the state

would be.

Id. at 455.

The court noted that faculty members and administrators

still supervised and controlled the graduation ceremony, and the

school district assumed the cost of the event. Thus, the state's

involvement offended the Establishment Clause. Id. at 454-55.

"[T]hat school officials cannot divest themselves of

constitutional responsibility by allowing the students to make

crucial decisions should not be surprising. . . . Elected

officials cannot avoid constitutional mandates by putting them to

a majority vote." Id. at 455. Indeed, if the vitality of our

fundamental liberties turned upon their ability to inspire the

support of a majority, the longevity of our "inalienable rights"

would be controlled by the ebb and flow of political and social

passion.

C. Lemon v. Kurtzman

In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Supreme Court

announced a three part test to determine if a government practice

offends the Establishment Clause. Under Lemon, a government

practice regarding religion will not offend the Establishment

Clause if: (1) it has a secular purpose; (2) its principal or

primary effect neither advances nor inhibits religion; and (3) it

does not create an excessive entanglement of the government with

religion. Id. at 612-13. "The" Lemon test has been referred to

as one test, although the case itself suggests that it is a

compilation of several approaches that have been used in

conducting an inquiry under the Establishment Clause. Justice

O'Connor has observed that "setting forth a unitary test for a

broad set of cases may sometimes do more harm than good. . . .

Lemon has, with some justification, been criticized on this

score." Board of Educ. of Kiryas Joel Village Sch. Dist. v.

Grumet, 114 S. Ct. 2481, 2499 (1994) (O'Connor, J., concurring);

id. at 2500 (O'Connor, J., concurring) ("[I]t seems to me that

the case law will better be able to evolve . . . if it is freed

from the Lemon test's rigid influence."). Nevertheless, the

framework of Lemon remains. Wallace, 472 U.S. at 63 (Powell, J.,

concurring) ("Lemon v. Kurtzman identifies standards that have

proved useful in analyzing case after case both in our decisions

and in those of other courts. It is the only coherent test a

majority of the Court has ever adopted.") (citation omitted); seealso

Committee for Public Educ. and Religious Liberty v. Nyquist,

413 U.S. 756, 772 (1973) (applying the "now well-defined three-

part test" of Lemon) and Kiryas Joel, 114 S. Ct. at 2495

(Blackmun, J., concurring) ("I remain convinced of the general

validity of the basic principles stated in Lemon, which have

guided this Court's Establishment Clause decisions in over 30

cases.").

The Lemon test has been the subject of critical debate in

recent years, and its continuing vitality has been called into

question by members of the Supreme Court and by its noticeable

absence from the analysis in some of the Court's recent decisions

(including Lee). Nevertheless, Lemon remains the law of the

land, and we are obligated to consider it until instructed

otherwise by a majority of the Supreme Court. See Thurston Motor

Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 535 (1983)

("only [the Supreme] Court may overrule one of its precedents"

and until such occurs, precedent "is still good law").

(1) A Secular Purpose

The Board argues that Version D has the secular purpose of

recognizing the students' rights to free speech and their desire

to solemnize the occasion. As we noted earlier, the Board's

proclamation of the purpose of promoting free speech must be

viewed in context with the policy's emphasis on providing an

option that would allow prayer to be delivered at graduation

after Lee.

"Law reaches past formalism." Lee, 505 U.S. at 595. We

have already explained why the Board's assertion of the secular

purpose of free speech does not control. See supra part IV.A.

"`Graduation ceremonies have never served as forums for public

debate or discussions, or as a forum through which to allow

varying groups to voice their views.'" Brody v. Spang, 957 F.2d

1108, 1118 (3d Cir. 1992) (citation omitted). Version D is no

different in this respect. Principal Palatucci's testimony as to

his readiness to arrest any student who might attempt to speak at

graduation without prior approval of the administration (even if

the graduates have approved) demonstrates the degree to which

Version D is intended to further the secular purpose of free

speech.

Prayer is, of course, religious speech, see Engel v. Vitale,

370 U.S. 421, 424-25 (1962). However, the constitutional

guarantee of free speech does not secularize Version D's attempt

to preserve "the long standing practice of conducting invocation

and benediction prayer at graduation ceremonies." The

Superintendent of Schools testified that when students were

previously allowed to speak at graduation, their speeches had to

be reviewed and approved by a faculty adviser or other school

official; students were not allowed to speak on whatever topic

they chose and the content of student speeches -- even when

authorized -- was monitored. App. at 132-33. Yet, Version D

prohibits school officials from reviewing the content of any

student-led prayer that may be given. This "hands-off" approach

only applies to religious speech, and is in stark contrast to the

possibility of arrest that confronts a student who gives a

secular presentation without prior authorization. The dualism

is, however, consistent with the Board's desire to avoid one of

the obstacles that invalidated the prayer in Lee (the

administration's control over the content of the prayer).

In addition, Version D permits a student to give a

sectarian, proselytizing address. If a student were to decide to

give such an address after a student referendum "authorized"

verbal prayer, the administration could not halt it without

violating its own policy. If this were to occur, a proselytizing

prayer (perhaps even degrading other religions) would be

delivered in a forum controlled by the School Board. "A system

which secures the right to proselytize religious . . . causes

must also guarantee the concomitant right to decline to foster

such concepts." Wallace, 472 U.S. at 51. Version D fails to

achieve this balance.

The Board also argues that the inclusion of prayer

solemnizes the graduation, but we are unable to understand why

graduation would be any less solemn if students were not

permitted to vote for prayer, a moment of silence or no

observance at graduation. Surely students who graduate in a year

where students may chose to have no prayer at all would think

their graduation to be a solemn event, and it is doubtful that

the Board would disagree with that assessment. The Supreme Court

has approved religious invocations to solemnize the opening of

legislative sessions, see Marsh, 463 U.S. at 795 (1983) (a

context easily distinguishable from a public high school

graduation as noted supra). The Court has also upheld religious

references such as the "governmental declaration of Thanksgiving

as a public holiday; printing `In God We Trust' on coins; and

opening court sessions with `God save the United States and this

honorable court.'" Lynch, 465 U.S. at 693 (O'Connor, J.,

concurring). However, we do not think the policy before us can

be saved merely by the Board proclaiming that the policy serves a

solemnizing purpose. See Stone v. Graham, 449 U.S. 39, 41 (1980)

(posting the Ten Commandments on the walls of public school

classrooms violated the purpose prong of Lemon despite the

state's avowed secular purposes of teaching the values conveyed

by the Ten Commandments and demonstrating their connection to the

legal system); see also Schempp, 374 U.S. at 223-24.

Furthermore, assuming arguendo that Version D serves the

secular purpose of solemnizing one's graduation, we believe it

does so in a constitutionally impermissible manner. Students who

are devoutly religious may feel that prayer is not something that

should be put to a vote. Such students may even have a religious

objection to such a vote and may, therefore, refuse to vote out

of religious conviction. Version D puts such students on the

horns of an impossible dilemma by forcing them to chose between

doing violence to their own religious beliefs and voting, or

abstaining and thereby risking that their forbearance may provide

the margin of victory for those with a different religious

preference. Regardless of how the referendum comes out, this

state policy has forced such a student into an impossible, and

impermissible, choice. Accord Engel, 370 U.S. at 431-32 ("The

Establishment Clause thus stands as an expression of principle on

the part of the Founders of our Constitution that religion is too

personal, too sacred, too holy, to permit its `unhallowed

perversion' by [the State]."). Still other students may face a

similar predicament because they are atheists and refuse to vote

out of conscience -- as is their right. Such a Hobson's choice

"sends a message to nonadherents that they are outsiders, not

full members of the political community . . . ." Lynch, 465 U.S.

at 688 (O'Connor, J., concurring). The Constitution forbids that

message, just as it forbids the procedure authorized by this

policy.

(2) The Endorsement of Religion

Under the second prong of Lemon, a government practice can

neither advance, nor inhibit religion. This means that a

challenged practice must "not have the effect of communicating a

message of government endorsement or disapproval of religion."

Lemon, 403 U.S. at 692. This endorsement test has at times been

characterized as part and parcel of the Lemon test, and at

other times as separate and apart from it. Whether "the

endorsement test" is part of the inquiry under Lemon or a

separate inquiry apart from it, the import of the test is the

same. We must determine whether, under the totality of the

circumstances, the challenged practice conveys a message favoring

or disfavoring religion. "The question under endorsement

analysis, in short, is whether a reasonable observer would view

such longstanding practices as a disapproval of his or her

particular religious choices . . . ." Allegheny, 492 U.S. at 631

(O'Connor, J., concurring). Thus, the viewpoint of the

reasonable observer (adherent or nonadherent) helps us to

determine if the "principal or primary effect [is] one that

neither advances nor inhibits religion." Lemon, 404 U.S. at 612;

see also School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 390

(1985). In any such inquiry, "the `history and ubiquity' of a

practice is relevant because it provides part of the context in

which a reasonable observer evaluates whether a challenged

governmental practice conveys a message of endorsement of

religion." Id. at 630.

The importance of the context of a challenged practice is

illustrated by comparing the holding of the Court in Lynch with

the holding in Allegheny. In Lynch, the Court held that a city

did not offend the Establishment Clause by including a creche

depicting the Nativity scene, along with other figures and

decorations traditionally associated with Christmas, in its

Christmas display in a private park in the downtown shopping

district. 465 U.S. at 687. In addition to figures associated

with the Nativity scene, the creche contained "a Santa Claus

house, reindeer . . ., candy-striped poles, a Christmas tree,"

and numerous other figures including a clown, elephant and teddy

bear. Id. at 671. Notwithstanding the religious significance of

the creche, the Court reasoned that "[w]hen viewed in the proper

context of the Christmas Holiday season, it is apparent that . .

. the inclusion of the creche is [not] a purposeful or

surreptitious effort to express some kind of subtle governmental

advocacy of a particular religious message." Id. at 680. The

Court felt that the creche "depict[ed] the historical origins of

this traditional event long recognized as a National Holiday."

Id.

In Allegheny, the Court again addressed the

constitutionality of a creche displayed as part of a city's

holiday celebration. There, unlike in Lynch, the creche was

located on the Grand Staircase of the county courthouse. 492

U.S. at 578. The display was also surrounded by a fence and

poinsettia floral frame and included small evergreen trees, but

unlike the display in Lynch, did not include figures of Santa

Claus, reindeer, or other decorations traditionally associated

with the secular aspects of Christmas. Id. at 580-81. The Court

noted that the location of the creche on the Grand Staircase of

the Allegheny County Courthouse -- "the `main' and `most

beautiful part' of the building that is the seat of county

government," id. at 599 -- would make it almost impossible for

any reasonable viewer to "think that it occupie[d] this location

without the support and approval of the government." Id. at 599-

600. Accordingly, the Court ruled that the display was an

impermissible endorsement of religion under Lemon.

Lynch teaches that government may celebrate

Christmas in some manner and form, but not in

a way that endorses Christian doctrine.

Here, Allegheny County has transgressed this

line. It has chosen to celebrate Christmas

in a way that has the effect of endorsing a

patently Christian message: Glory to God for

the birth of Jesus Christ. Under Lynch, and

the rest of our cases, nothing more is

required to demonstrate a violation of the

Establishment Clause.

Id. at 601-02.

However, the Court upheld the city's display of a Chanukah

menorah placed next to a Christmas tree and a sign saluting

liberty, all of which were located just outside the City-County

Building. Id. at 620-21. In doing so, the Court reasoned:

[T]he relevant question for Establishment

Clause purposes is whether the combined

display of the tree, the sign, and the

menorah has the effect of endorsing both

Christian and Jewish faiths, or rather simply

recognizes that both Christmas and Chanukah

are part of the same winter-holiday season,

which has attained a secular status in our

society. Of the two interpretations of this

particular display, the latter seems far more

plausible . . . .

Id. at 616. Accordingly, the reasonable observer would not

necessarily interpret the display as an endorsement of

Christianity and Judaism.

We can not say the same of Version D. Viewing it in context

with the "longstanding tradition" it attempts to perpetuate after

Lee would certainly leave the reasonable nonadherent with the

impression that his or her religious choices were disfavored.

This is particularly true where, as here, prayer would have been

conducted at graduation based upon a plurality even though a

majority of seniors voted not to have prayer.

Although it is true that Version D does not require the view

that prevails in any given year to prevail in subsequent years,

it is nonetheless true that the effect of the particular prayer

that is offered in any given year will be to advance religion and

coerce dissenting students. See Jaffree v. Wallace, 705 F.2d

1526, 1534-35 (11th Cir.) ("The primary effect of prayer is the

advancement of one's religious beliefs."), reh'g denied, 713 F.2d

614 (11th Cir. 1983), aff'd, 466 U.S. 924 (1984). The

Constitution's "prohibition against governmental endorsement of

religion `preclude[s] government from conveying or attempting to

convey a message that religion or a particular religious belief

is favored or preferred.'" Allegheny, 492 U.S. at 593 (quoting

Wallace v. Jaffree, 472 U.S. at 70); see also Texas Monthly, Inc.

v. Bullock 489 U.S. 1, 27, 28 (1989) (Blackmun, J., concurring in

the judgment) ("government may not favor religious belief over

disbelief" or adopt a "preference for the dissemination of

religious ideas").

The disclaimer that is required by Version D does weigh in

favor of the Board's position under a Lemon analysis. However,

it does not weigh so heavily as to neutralize the counterweight

of the advantage the policy gives religious speech over secular

speech. Despite the printed disclaimer, the reasonable observer

here could not help but conclude that the Board favors the

inclusion of prayer.

"[N]ot every law that confers an `indirect,' `remote,' or

`incidental' benefit upon [religion] is, for that reason alone,

constitutionally invalid." Nyquist, 413 U.S. at 771 (citation

omitted). However, Version D provides a benefit that is neither

"indirect," "remote," nor "incidental." The Supreme Court has

never countenanced a practice that requires some members of a

community to subordinate their religious preferences to those of

a majority. Rather, "[t]he Establishment Clause, at the very

least, prohibits government from appearing to take a position on

questions of religious belief or from `making adherence to a

religion relevant in any way to a person's standing in the

political community.'" Allegheny, 492 U.S. at 593-94 (quoting

Lynch, 465 U.S. at 687 (O'Connor, J., concurring)).

Although the Supreme Court has allowed certain

accommodations to religion, see Corporation of Church of Jesus

Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 336-37 (1987)

(upholding law exempting religious employers from Title VII);

Zorach, 343 U.S. at 314-15 (upholding statutory "released time"

program whereby public schools release students during the school

day to receive off-site religious education), "accommodation is

not a principle without limits." Kiryas Joel, 114 S. Ct. at

2492. The Supreme Court "[has] never hinted that an otherwise

unconstitutional delegation of political power to a religious

group could be saved as a religious accommodation." Id. at 2493.

As Justice Souter explained in Lee:

Religious students cannot complain that

omitting prayers from their graduation

ceremony would, in any realistic sense,

'burden' their spiritual callings. To be

sure, many of them invest this rite of

passage with spiritual significance, but they

may express their religious feelings about it

before and after the ceremony. They may even

organize a privately sponsored baccalaureate

if they desire the company of like-minded

students. Because they accordingly have no

need for the machinery of the State to affirm

their beliefs, the government's sponsorship

of prayer at the graduation ceremony is most

reasonably understood as an official

endorsement of religion . . . .

505 U.S. at 629-30 (Souter, J., concurring).

Whatever accommodation may require, it is clear that

government neutrality toward religion still is the hallmark of

the Religion Clauses. See Kiryas Joel, 114 S. Ct. at 2487 ("A

proper respect for both the Free Exercise and the Establishment

Clauses compels the State to pursue a course of `neutrality'

toward religion, favoring neither one religion over others nor

religious adherents collectively over nonadherents.") (internal

quotations and citation omitted). Version D can not be justified

as an accommodation because it seeks to accommodate the

preference of some at the expense of others and thereby crosses

the required line of neutrality. "The First Amendment . . .

gives no one the right to insist that in pursuit of their own

interests others must conform their conduct to his own religious

necessities." Estate of Thornton v. Caldor, Inc., 472 U.S. 703,

710 (1985) (internal quotations and citation omitted).

(3) Excessive Entanglement With Religion

The third prong of the Lemon test -- no excessive

entanglement of government with religion -- is a much closer

question. As noted earlier, the state's involvement here is far

less than the entanglement that was present in Lemon. However,

because we find that Version D of Policy IKFD violates the first

two prongs Lemon, we need not determine if it also violates the

third prong.

V. CONCLUSION

In closing, we emphasize the difficulty posed by the issue

that we confront here and the intensity and sincerity of persons

on both sides. Issues of religion touch litigants and interested

observers of the law as few other issues can. For example, one

of the students who opposed Version D testified before the

district court that he received threatening letters in his school

locker and threatening telephone calls at home after coming

forward in this case. App. at 93.

References to, and images of, religion are to be found

throughout this society. See Zorach, 343 U.S. at 313-14. Yet,

the prevalence of religious beliefs and imagery cannot erode the

state's obligation to protect the entire spectrum of religious

preferences from the most pious worshipper to the most committed

atheist. Those preferences are the business of the individual,

not the state nor the public schools it maintains. The First

Amendment does not allow the state to erect a policy that only

respects religious views that are popular because the largest

majority can not be licensed to impose its religious preferences

upon the smallest minority.

We need not now address the parameters of these prohibitions

beyond the precise questions raised by the specific policy before

us. The district court's order enjoined the School Board "from

conducting a school-sponsored graduation ceremony that includes a

prayer, whether it be an invocation, a benediction or a prayer in

any other form." App. at 210. In context, we understand the

district court's order to foreclose a school-sponsored graduation

service involving an invocation, benediction or prayer pursuant

to Policy IKFD Version D. As so read, we affirm the judgment of

the district court.

ACLU v. Black Horse Pike Regional Board of Education, etc., No.

94-5233

MANSMANN, Circuit Judge, dissenting, joined by Judges Nygaard,

Alito and Roth.

I must dissent because I believe the issue squarely before

us, whether student-initiated, -directed and -composed prayer at

high school graduation violates the First Amendment, requires

that we examine the application of both the Establishment Clause

and the free exercise/free speech right, balancing the graduates'

free exercise and speech rights against any compelling state

interest which might otherwise justify impinging these

guarantees.

In placing these interests on the balance scale, I am

concerned, however, that an approach which exaggerates and

emphasizes the Court's Establishment Clause tests would be

fragmented and would tend to imply that the First Amendment

religion clauses embody contradictory and irreconcilable

principles. The Court's free exercise jurisprudence clearly

suggests that a separation policy which overextends into the

domain of free exercise and free speech must be suspect. The

Establishment Clause should not be read to prohibit activity

which the Free Exercise Clause protects. Board of Educ. v.

Mergens, 496 U.S. 226, 250 (1990) ("there is a crucial difference

between government speech endorsing religion, which the

Establishment Clause forbids, and private speech endorsing

religion, which the Free Speech and Free Exercise Clauses

protect"). Thus, I would analyze the present case in light of

the fact that while the state may not establish a religion, it

must not also disadvantage or discriminate against studentreligious

activity, nor imply that religion, or religious acts,

are disfavored.

In light of the Establishment Clause's broad purpose to

serve the free exercise of religion, I would hold that here the

narrowly fact-bound holding of Lee v. Weisman, 112 S. Ct. 2649

(1992), does not preclude such student directed, composed and

delivered prayer as an integral segment of the graduation

ceremony, where there is not, by policy, virtually any school

administration or faculty involvement. In addition, applying the

Court's three-part Establishment Clause analysis articulated in

Lemon v. Kurtzman, 403 U.S. 602 (1971), I would hold that the

defendants' challenged activity also meets the Lemon test as to

compliance with the Establishment Clause. Finally, I would

conclude that the state has not articulated any compelling

interest to countermand the graduates' rights of free exercise

and free expression. Thus, I would reverse the permanent

injunction issued against the defendants.

I.

In Lee v. Weisman, the Court held that Lee, a middle school

principal who decided to include prayer in the graduation

ceremony for Deborah Weisman, chose a rabbi to offer the prayer,

gave the rabbi guidelines on the content of the prayer, and

advised the rabbi that the invocation should be non-sectarian,

made choices attributable to the state. Moreover, the Court held

that Lee's advice concerning the content of the rabbi's prayer

constituted direct state control. These findings, combined with

the Court's finding that the school's supervision and control of

high school graduation subtlely coerced graduates to stand in

respectful silence during the invocation, rendered the state

action unconstitutional, despite the fact that participation in

the prayer or in the graduation ceremony itself was voluntary.

112 S. Ct. at 2655-56. Emphasizing that the particular facts in

the case were outcome-determinative, the Court stated:

These dominant facts mark and control the confines of

our decision: State officials direct the performance

of a formal religious exercise at promotional and

graduation ceremonies for secondary schools. Even for

those students who object to the religious exercise,

their attendance and participation in the state-

sponsored religious activity are in a fair and real

sense obligatory, though the school district does not

require attendance as a condition for receipt of the

diploma.

112 S. Ct. at 2655.

Adverting to the "heightened concerns with protecting

freedom of conscience from subtle coercive pressure in the

elementary and secondary public schools," id. at 2658, the Court

asserted that the effort on the part of the school official to

"monitor prayer will be perceived by the students as inducing a

participation they might otherwise reject." Id. at 2657. The

Court declined to apply the factors it earlier set forth in Lemon

v. Kurtzman, or to explicitly reconsider the status of that

decision.

Because of the highly fact-sensitive nature of the Leedecision, I

cannot induce from the Court's reasoning any broad

constitutional principle which bans prayer at all high school

graduation ceremonies, regardless of the manner in which the

decision to include prayer is made or implemented. Indeed, Leebids us to

scrutinize and to distinguish the facts of each case.

In Lee the Court found the following, working in tandem, to

constitute state sponsorship:

1) The high school principal, a state actor, made a

unilateral decision to include an invocation and benediction in

the graduation ceremony;

2) The high school principal, a state actor, made a

unilateral decision with regard to the selection of a clergyman

to offer the invocation and benediction; and

3) The high school principal, a state actor, actively

influenced and monitored the content of the invocation and

benediction to be given.

The case before us contains neither the indicia of state

action nor the particular facts which were outcome- determinative

in Lee. Here the graduates are entirely entrusted with the

decision to include or not to include a graduation invocation.

The graduates maintain control throughout the decisional process

and without the active or surreptitious influence or monitoring

by school officials. Policy IKFD precludes the invitation of a

clergyman to deliver any invocation. No school official may

influence or monitor the content of the prayer. The polling

instrument itself is neutral. The government practice in

question here is not a decision to include prayer at graduation;

nor is it the practice of monitoring or influencing the content

of a graduation prayer. The government practice at issue here is

the highly democratic one of allowing the graduating class to

vote on the issue of graduation prayer while maintaining an

official stance of strict neutrality throughout the entire

process. Hence, none of the decisions made by the graduating

class concerning graduation prayer can be attributed to the state

and the Establishment Clause is therefore not even implicated.

I do not find anything in Lee which would compel a holding that

policy IKFD is unconstitutional.

The majority expresses concern over the degree of control

exercised by the school: 1) when it rejected a student's request

for a "safe sex" speaker at graduation, and 2) when the principal

stated that he would not permit an unscheduled speaker.

Certainly the school, without violating the neutrality principles

of Lemon, could restrict all speeches as to time and indeed as to

appropriateness -- here, to "solemnizing" speech; Policy IKFD's

subject matter and speaker restrictions do not constitute

viewpoint expression or suppression.

I would follow the lead of our sister court of appeals in

Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963 (5th Cir.

1992), a graduation prayer case factually similar to the case

before us. In Jones, the Supreme Court vacated the Fifth

Circuit's judgment and remanded the case for further

consideration in light of the Court's decision in Lee v. Weisman,

which the Court decided subsequent to the Fifth Circuit's first

determination. Upon reconsideration, the Fifth Circuit held that

Lee did not invalidate Clear Creek's graduation and invocation

policy, which did not mandate prayer or any invocation, but

merely permitted graduation prayer to be delivered by a graduate

if the graduating class so chose. Moreover, in Jones the

resolution in question permitted a school official to offer

"advice and counsel" to the graduating class in the decision

whether to include an invocation at graduation. This single

fact, which is absent in the case before us, placed the Jonescase even

closer to the constitutional boundary established in

Lee than the case before us. Nevertheless, the Fifth Circuit

held that Clear Creek exercised significantly less control over

the invocation content than did the school principal in Lee v.

Weisman, noting that Clear Creek did not solicit invocations, but

merely refused to accept sectarian or proselytizing invocations.

977 F.2d at 971. The court noted that the resolution merely

tolerated nonsectarian, non-proselytizing prayer, but neither

required nor favored it. Id.

By contrast, Black Horse's policy for prayer at graduation

ceremonies is more liberal in that it extends the scope of its

toleration to include even sectarian prayer, if the graduates so

choose. I believe that in this way Policy IKFD comports with the

First Amendment's prohibition against the inhibition of the

practice of religion or of free expression, while at the same

time precludes even the remote possibility of an establishment of

religion by virtue of its uncompromising neutrality.

I would also find the element of psychological coercion,

which the Lee Court presumed and the majority stresses, to be

absent where the graduating seniors have participated in the

decision regarding prayer at graduation. There could not be any

confusion on the part of the reasonable graduating senior, who

has been made aware of the senior class poll and has been invited

to participate, with regard to whether the result of that poll

represents an official opinion of the state or the will of the

senior class. Furthermore, although Lee failed to emphasize the

distinction between high school graduates and the rest of the

younger, less mature high school student body, prior Supreme

Court caselaw has acknowledged that post-secondary school

students are less easily coerced than younger students. See,

e.g., Board of Educ. of Westside Community Schools v. Mergens,

496 U.S. 226, 235-37, 250 (1990) ("university students are . . .

less impressionable than younger students") (citing Widmar v.

Vincent, 454 U.S. 263, 274, n.14 (1981)). The graduation

ceremony itself is a public ritual symbolic of the graduates'

passage into responsible young adulthood, and is synchronized,

more or less, with other official acknowledgements of adult

initiation, such as conference of the right to vote and the

responsibility of males to register for the draft.

In addition to the relative level of maturity of the senior

class, the very nature of graduation, which elevates the studentto the

status of graduate, must be considered. Although the

student/graduate distinction did not countermand the other

various facts which the Court in Lee weighed against graduation

prayer, I believe that the graduation ceremony setting is

significantly different in nature from the classroom setting, and

in the absence of other offending factors, warrants a less

restrictive approach to religion. Certainly the contested

activity does not involve the curriculum of the school; nor does

the graduation ceremony implicate the teacher-student

relationship concerning the transmission of knowledge from the

former to the latter. Thus, the concerns which the Court has

expressed in those cases where some form of religion has been

injected into the school curriculum are not directly operative

here. See, e.g., Edwards v. Aguillard, 482 U.S. 578 (1987)

(teaching of scientific evidence supporting creation theory);

Wallace v. Jaffree, 472 U.S. 38 (1985) (moment of silence at

beginning of each school day); Stone v. Graham, 449 U.S. 39

(1980) (posting of Ten Commandments on classroom walls); Abington

School Dist. v. Schempp, 374 U.S. 203 (1963) (Bible reading over

PA system before classes); Engel v. Vitale, 370 U.S. 421 (1962)

(mandated recitation of official state prayer each day in public

schools); Illinois ex rel. McCollum v. Board of Education, 333

U.S. 203 (1948) (weekly religious instruction in public school

buildings during school hours by members of clergy).

I do not share the majority's confidence in the Ninth

Circuit's holding in Harris v. Joint Sch. Dist. No. 241, 41 F.3d

447 (9th Cir. 1994), cert. granted, vacated and remanded, ___

U.S. ___, 115 S. Ct. 2604, 132 L.ED.2d 849 (1995). Following the

precedent set by an earlier Ninth Circuit case, Collins v.

Chandler Unified Sch. Dist., 644 F.2d 759 (9th Cir.), cert.

denied, 454 U.S. 863 (1981), the court in Harris held that "the

school ultimately controls [the graduation] event" and hence

cannot avoid state involvement so as to implicate the

Establishment Clause as interpreted under Lee. 41 F.3d at 454.

The court further held that the seniors' decision regarding

prayer was per se tainted with official sanction because the

seniors derived their decisional authority from the delegation of

official school authority and because "the school under[wrote]

the [graduation] event" by providing the use of the school

building. Id. In my view, this holding would preclude virtually

all prayer at a public high school graduation ceremony, a holding

which unnecessarily and without warrant extends the holding of

Lee. I am also concerned that the Ninth Circuit failed to

distinguish the classroom setting from the graduation setting,

and the student from the graduate. 41 F.3d at 458. I find no

precedent supporting the Ninth Circuit's position that public

high school seniors "enter[] the domain of the Establishment

Clause," id., and are precluded from independently choosing to

communally express their gratitude to God, invoke the divine

presence or seek God's blessing, as part of their graduation

ceremony. Since all aspects of the graduation prayer decision

are at the discretion of the graduating senior class, I would

hold that Policy IKFD does not unconstitutionally establish a

religion under Lee.

II.

I agree with the majority that the Lemon test is still

precedential, although from the start it has been the focus of

critical debate, including the irony that its application

encourages the federal courts to regulate in an area for which

the First Amendment was designed to insure against any government

interference. I part company in that I believe that Policy

IKFD does not violate any one of the three elements of Lemon.

A.

In order to pass the first prong of the Lemon test, Policy

IKFD need not be shown to be exclusively secular. Lynch v.

Donnelly, 465 U.S. 668, 681 n.6 (1984); Wallace v. Jaffree, 472

U.S. at 64 (Powell, J., concurring). Furthermore, accommodation

of religion or religious practice in general helps to preserve

the mediating institutions of the public morals, a secular civic

good. Hence, accommodation itself serves a secular purpose. A

valid secular purpose is not constitutionally compromised when

there are incidental, even substantial, benefits to religion.

Lynch, 465 U.S. at 680 (citing Everson v. Board of Education, 330

U.S. 1 (1947); Board of Education v. Allen, 392 U.S. 236 (1968);

Walz v. Tax Commission, 397 U.S. 664 (1970); Tilton v.

Richardson, 403 U.S. 672 (1971)).

To determine a secular purpose, the Court generally has

exercised deference with regard to stated legislative or policy

purpose, and will find a sham secular purpose only when there can

be no question that the challenged conduct establishes, or tends

to establish, a religion. Aguilar v. Felton, 473 U.S. 402, 416-

17 (1985) (Powell, J., concurring); Lynch, 465 U.S. at 680 ("The

Court has invalidated legislation or governmental action on the

ground that a secular purpose was lacking, but only when it has

concluded there was no question that the statute or activity was

motivated wholly by religious considerations.") (citing Stone v.

Graham, 449 U.S. at 41; Epperson v. Arkansas, 393 U.S. 97, 107-09

(1968); Abington School Dist. v. Schempp, 374 U.S. at 223-24;

Engel v. Vitale, 370 U.S. at 424-25); see also Edwards v.

Aguillard, 482 U.S. at 586-87.

Policy IKFD expressly states, "[i]n the spirit of protected

free speech, the pupils in attendance must choose to have prayer

. . . ." (emphasis added). In addition to this express secular

purpose of promoting the free speech of the graduating seniors,

the school asserts that Policy IKFD serves the valid secular

purpose of permitting the graduates to solemnize the occasion of

their graduation through ceremonial prayer. The concern should

not be, as the majority expresses it, that graduation would not

be less solemn without the vote. The importance of ceremonial

prayer is that the Court has acknowledged that it indeed serves

the valid secular purpose of solemnization. See, e.g., Lynch,

465 U.S. at 693 (O'Connor, J., concurring); County of Allegheny

v. Greater Pittsburgh ACLU, 492 U.S. 573, 595-96 n.46 (1989);

Engel v. Vitale, 370 U.S. at 435 n.21 (1962); see also Jones v.

Clear Creek Indep. Sch. Dist., 977 F.2d at 966-67.

As the district court noted in the present case, Policy IKFD

serves yet a third secular purpose which is educational, albeit

not curriculum-related, in that the process of independently

coordinating and resolving the issue of graduation prayer permits

the prospective graduates to gain firsthand insight into the

effects of current constitutional jurisprudence on their public

behavior, and is itself an exercise in responsible citizenship.

Moreover, the challenged activity here cannot be deemed to

cause those graduates who are opponents of prayer at graduation,

for the many different reasons cited by the majority, to feel

that they are not fully incorporated into the community. To the

contrary, every graduate under Policy IKFD is fully invited to

partake in the community via the right to vote on the issue of

school prayer, and each individual graduate, regardless of his or

her position on the issue, has an equal opportunity to influence

the graduation ceremony. Here the challenged activity is a

democratic exercise. There is no guarantee that the view that

prevails in any given year will prevail in the following year.

The reasonably tolerant graduate, knowing of his or her

opportunity to partake in the class poll, cannot reasonably be

thought to conclude that the state is establishing religion if

prayer prevails in the poll in any given year. The non-endorsing

language of Policy IKFD, the explicit mandatory disclaimer, and

the neutrality of the polling instrument itself, would lead me to

hold that the effect of Policy IKFD is not principally or

primarily to advance religion. On the other hand, an absolute

prohibition on ceremonial prayer at graduation would, in my view,

violate the Free Exercise Clause by unduly inhibiting the

practice of religion, and would also implicate the free speech

guarantees of the First Amendment.

Given the school's highly credible express secular

motivations and neutrality of purpose as regards religion, both

written into Policy IKFD and argued before us, I would find that

Policy IKFD easily passes the secular purpose test. The ACLU's

assertions that Policy IKFD cannot satisfy this prong of Lemonbecause

prayer is per se religious and that ceremonial prayer

may not be utilized for purposes of solemnization or freedom of

expression where wholly secular means are available, go far

beyond the requirements of the first prong of Lemon, which does

not require that a secular purpose be achieved via exclusively

secular means. Furthermore, the means employed by the school

towards its secular end pursuant to Policy IKFD is not itself

intrinsically religious. Student polling is a wholly secular

activity, and the result of the poll in question is the

expression of the graduating class, not the school district.

B.

With respect to the second prong of the Lemon test, I agree

that the test asks whether the challenged activity "in fact

conveys a message of endorsement or disapproval." Lynch, 465

U.S. at 690. While it is solidly established that the government

is precluded from favoring one particular religious denomination

over another, or from establishing an official state religion, I

note that the members of the Court divide as to whether the

Establishment Clause precludes the government from conveying a

message that it endorses or encourages religion in a generic

sense, or especially acknowledges or accommodates the broad

Judeo-Christian heritage of our civil and social order. This

division persists despite the Court's attempt to interpret

comprehensively the Establishment Clause in Everson v. Board of

Education, 330 U.S. 1, 15-16 (1947), holding that the First

Amendment prohibits the federal and state governments from

offering non-preferential aid to all religions and from levying

any tax to support any religious activity or institution. See,

e.g., Wallace, 472 U.S. at 70 (O'Connor, J., concurring) ("[The

endorsement test] does preclude government from conveying or

attempting to convey a message that religion or a particular

religious belief is favored or preferred"); but cf. Wallace, 472

U.S. at 98 (Rehnquist, J., dissenting) ("[Madison] did not see

[the First Amendment] as requiring neutrality on the part of

government between religion and irreligion."); Zorach v. Clauson,

343 U.S. 306, 313 (1952) ("We are a religious people whose

institutions presuppose a Supreme Being."); Marsh v. Chambers,

463 U.S. 783, 792 (1983) ("To invoke Divine guidance on a public

body . . . is not . . . an `establishment' . . . or a step toward

establishment; it is simply a tolerable acknowledgement of

beliefs widely held among the people of this Country."); Lynch,

465 U.S. at 673 (The Constitution "affirmatively mandates

accommodation, not merely tolerance, of all religions, and

forbids hostility toward any . . . . `[C]allous indifference' . .

. was never intended by the Establishment Clause . . . . [and]

would bring us into `war with our national tradition as embodied

in the First Amendment's guaranty of the free exercise of

religion.'" (citations omitted)). In Mergens, the Supreme Court

unequivocally held that:

The Establishment Clause does not license government to

treat religion and those who teach or practice it,

simply by virtue of their status as such, as subversive

of American ideals and therefore subject to unique

disabilities.

Mergens, 496 U.S. at 248. See also Rosenberger v. Rector &

Visitors of University of Va., 115 S. Ct. 2510, 2522 (1995)

(where government program is neutral toward religion (as Policy

IKFD is), restrictions on religious speech are not justified by

the Establishment Clause); such viewpoint discrimination risks

fostering hostility to religion, undermining the very neutrality

of the Establishment Clause requires, id. at 2525.

The First Amendment does not condemn legislation or official

policy that has the effect of assisting religion generally; the

First Amendment itself gives religion an exceptionally protected

status. It does not necessitate an interpretation inhospitable

to religion where religion may not be acknowledged in any public

arena. Such an interpretation runs counter to the notion of

neutrality and denigrates religion in violation of the Free

Exercise Clause. See Lynch v. Donnelly, 465 U.S. 668, 673 (1983)

(the Constitution does not "require the complete separation of

church and state; it affirmatively mandates accommodation, not

merely tolerance, of all religions, and forbids hostility towards

any . . . . Indeed . . . such hostility would bring us into `war

with our national tradition as embodied in the First Amendment's

guaranty of the free exercise of religion.'"). Neutrality may be

achieved through a policy, such as Policy IKFD, that is as

hospitable to religion as it is to irreligion.

The majority's "reasonable nonadherent" could not be

confused into thinking that "his or her religious choices were

disfavored." Opinion at 33. Policy IKFD mandates an explicit

and unequivocal disclaimer, one that covers not only the official

position of the school but also the views of any of the

particular graduates, on the graduation program in the event the

student body votes for the inclusion of prayer at the graduation

ceremony. Moreover, the outright ban on graduation prayer

that the majority espouses would make a reasonable religionist

believe that his or her exercise of religion was disfavored by

the state, especially against the pervasive backdrop of a century

and a half of prayer at such gatherings.

C.

Because I find that the first two Lemon prongs are not

violated, I (unlike the majority) must move to the third prong,

whether Policy IKFD fosters excessive institutional entanglement

between the church and the state. Lemon discusses two ways in

which entanglement can be excessive. Entanglement may be

implicated when a state policy or legislative act draws the state

into an intimate and continual monitoring or overseeing of

religious matters. 403 U.S. at 614-22. Entanglement may also be

implicated where a state policy or legislative act creates an

abnormal potential for political divisiveness. 403 U.S. at 622.

The Court has indicated, however, that political divisiveness

alone will not create an entanglement. Lynch, 465 U.S. at 684

(". . . this Court has not held that political divisiveness alone

can serve to invalidate otherwise permissible conduct"). The

Court has also recognized that "[e]ntanglement is a question of

kind and degree." Lynch, 465 U.S. at 684.

I find nothing in Policy IKFD which resembles the enduring

entanglement identified in Lemon. By design Policy IKFD creates

a virtual total absence of administrative entanglement of any

sort. With regard to political divisiveness, Policy IKFD

involves absolutely no sponsorship or subsidy to any religious

institution or related organization. There is nothing in the

record which would suggest that Policy IKFD engenders or will

engender so high a degree of political divisiveness as to pose "a

threat to the normal political process." Lemon, 403 U.S. at 622

(citations omitted). On the other hand, I would not attribute

the political divisiveness, to whatever extent it may or may not

exist, which this lawsuit itself engenders, to Policy IKFD. SeeLynch, 465

U.S. at 684-85 ("A litigant cannot, by the very act of

commencing a lawsuit, . . . create the appearance of divisiveness

and then exploit it as evidence of entanglement.") I do not find

any evidence of excessive entanglement and am thus satisfied that

Policy IKFD satisfies all three prongs of the Lemon test.

III.

In closing, I must challenge the majority's view that "the

prevalence of religious beliefs and imagery cannot erode the

state's obligation to protect the entire spectrum of religious

preferences from the most pious worshipper to the most committed

atheist." Opinion at 37. The Free Exercise Clause guarantees

against the interference of the state in expressive and

associational religious activity. The free speech clause is a

related, but more generic, guarantee for a broad range of

expressive and associational activity. It is well-acknowledged

that neither clause offers unlimited protection for such

activities. It is equally well-acknowledged that the state may

not impinge the interests of free exercise and free speech

without proffering a compelling state interest and demonstrating

the necessity of its restrictive action.

Aside from the ACLU's assertion that Policy IKFD establishes

or tends to establish a religion, it offers no compelling reason,

constitutional or otherwise, for a permanent injunction against a

senior class' free choice to express thanks through its own

prayer at a graduation ceremony. Thus, I believe the free

exercise and free expression interests of the graduating class of

Highland Regional High School must prevail.