Appendix — Adler v. Duval County School Board

Supreme Court, U.S.

S\ FILED

Ss’

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99187 O MAY 222000

No. _ OFFICE OE THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1999

EMILY ADLER, et al.,

Petitioners,

vs.

DUVAL COUNTY SCHOOL BOARD, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

Wm. J. Sheppard, Esquire

COUNSEL OF RECORD

D. Gray Thomas, Esquire

Sheppard, White and Thomas, P.A.

215 Washington Street

Jacksonville, Florida 32202

(904) 356-9661

COUNSEL FOR PETITIONERS

May 16, 2000

\OU PY

TABLE OF CONTENTS

En Banc Opinion of the Eleventh Circuit

Court of Appeals, dated

PT CT CETTE LE EEE L SULT la

Panel Opinion of the Eleventh Circuit

Court of Appeals, dated May 11,1999 ......... 78a

Order of the United States District Court,

Middle District of Florida, dated

DO Ao Secs teak vckned sss daeckes dei 165a

Order of the United States District Court,

Middle District of Florida, dated

SE NUE 65 Fiche ene Hd sd eneesdiiness ... 168a

Order of the Eleventh Circuit Court

of Appeals, Granting Motion for

Rehearing, dated June 3, 1999 ................ 191a

Order of the Eleventh Circuit Court

of Appeals, Denying Petition for

Rehearing, dated April 17, 2000 .............. 194a

Memorandum from Vicki Reynolds

to All High School Principals

Regarding Graduation Prayers,

: QR Ns A ba irs ond Se vtncecvdeed ns 196a

[PUBLISH]

FILED

U.S. COURT OF APPEALS

MAR 15, 2000

THOMAS K. KAHN

CLERK

IN THE UNITED STATES COURT

OF APPEALS |

FOR THE ELEVENTH CIRCUIT

No. 98-2709

D. C. Docket No. 98-460-CIV-J-10C

‘ EMILY ADLER, individually; on behalf

of herself and all persons similarly situated,

SETH FINCK, individually; on of

himself and all persons similarly situated, et al.,

Plaintiffs-Appellants,

versus

DUVAL COUNTY SCHOOL BOARD,

DUVAL COUNTY PUBLIC SCHOOL DISTRICT,

Defendants-Appellees.

No. 98-2720

D.C. Docket No. 98-460-CIV-J-10C

EMILY ADLER, individually; on behalf

of herself and all persons similarly situated,

SETH FINCK, individually; on of

himself and all persons similarly situated, et al.,

Plaintiffs-Appellees,

la

versus

SUSAN BOLES, as parent & next friend of

Rebecca Boles, a minor child and on behalf

of all public school students within the Duval

County Public School District,

Movants-Appellants.

Appeal from the United States District Court

for the Middle District of Florida

(March 15, 2000)

Before ANDERSON, Chief Judge, TTOFLAT, EDMONDSON,

COX, BIRCH, DUBINA, C , BARKETT, HULL,

MARCUS, WILSON, Circuit Judges, and KRAVITCH, Senior

Circuit Judge.

MARCUS, Circuit Judge:

At issue today is whether the Duval County, Florida

school system’s policy of permitting graduating students to

vote on whether to select a student to deliver a message

wholly of her own choosing at the beginning or closing of a

high school graduation ceremony violates the Establishment

Clause. Because the Duval County policy unambiguously

recognizes the “crucial difference between government

speech endorsing religion, which the Establishment Clause

forbids, and private speech [] [that may contain a prayerful

message], which the Free Speech and Free Exercise Clauses

"Judge Susan H. Black did not participate in this decision.

“Senior U.S. Circuit Judge Phyllis A. Kravitch elected to

participate in this decision pursuant to 28 U.S.C. § 46(c).

2a

protect,” Board of Educ. v. Mergens, 496 U.S. 226, 250, 110

S.Ct. 2356, 110 L.Ed.2d 191 (1990) (emphasis added), we find

the policy constitutional on its face and affirm the judgment

of the district court. The total absence of state involvement

in deciding whether there will be a graduation message,

who will speak, or what the speaker may say combined

with the student speaker’s complete autonomy over the

content of the message convinces us that the message

delivered, be it secular or sectarian or both, is not state-

sponsored. To conclude otherwise would come perilously

close to announcing an absolute rule that would excise all

private religious expression from a public graduation

ceremony, no matter how neutral the process of selecting

the speaker may be, nor how autonomous the speaker may

be in crafting her message.

I.

The facts of this case are straightforward,

uncontroverted, and laid out fully by the district court in

Adler v. Duval County Sch. Bd., 851 F. Supp. 446, 448 (M.D.

Fla. 1994) (“Adler I”). Invocations, benedictions, and other

religious prayers or messages were traditionally offered, by

clergy and others, at public high school commencement

ceremonies in the Duval County School District. In 1992,

the Supreme Court in Lee v. Weisman, 505 U.S. 577, 112

S.Ct. 2649, 120 L.Ed.2d 467 (1992), held that a Providence,

Rhode Island high school principal, acting in accord with

school board policy, violated the Establishment Clause by

inviting a local clergyman to deliver a nonsectarian prayer

at graduation. In response to Lee, the Duval County

Superintendent, Larry Zenke, at the behest of Vicki R.

Reynolds, the school district's legal affairs officer, issued a

memorandum instructing all school officials in the Duval

County school system that no“ prayer, benediction, or

3a

invocation” should be offered at “any graduation

ceremonies.”

In the ensuing months, Superintendent Zenke received

a number of letters from students and members of the

community discussing the graduation policy. Some of these

letters suggested that student-initiated, student-led prayer

might be constitutional under Lee, and Zenke directed

Reynolds to further research the issue. Reynolds later

advised Zenke that it would be constitutional to allow

student-initiated, student-led prayer during the graduation

ceremony so long as the administration and faculty were

not involved in the decision-making process. Zenke then

authorized Reynolds to issue another memorandum (the

“Reynolds Memorandum’), dated May 5, 1993, to all area

high school principals. The memorandum was entitled

“Graduation Prayers” and stated:

You will recall that after the 1992 Supreme court

case of Lee v. Wiseman [sic], you received a

memorandum from me instructing that because of

« _ the decision, we would no longer be able to have

rayers at graduation ceremonies. Most of you

ve recently been bombarded with information,

as have I, regarding whether or not student

initiated and led prayers are acceptable based u

a recent Fifth Circuit opinion. The p of thi

memorandum is to give you some guidelines on

this issue if the graduating students at your school

desire to have some type of brief opening and/or

closing message by a student.

This area of the law is far from clear at this time,

and we have been threatened by lawsuits from

‘The memorandum, dated July 22, 1992, read, "[t]his memorandum is to

remind you that due to the recent Supreme Court Ruling in Lee v. Weisman,

there should be no prayer, benediction, or invocation at any graduation

ceremonies."

4a

both sides on the issue depending on what action

we take. The key to the Lee v. Wiseman [sic]

decision was that the prayer given at that

sagen ceremony was directed and initiated by

e school system, which made it unconstitutional,

rather than by permissive student choice and

initiative. With that premise in mind, the

following guidelines may be of some assistance:

1. The use of a brief —— and/or closin

two

message, not to excee minutes, at high school

graduation exercises shall rest within the discretion

of the graduating senior class;

2. The opening and/or closing message shall be

given by a student volunteer, in the graduatin

senior class, chosen by the graduating senior class

as a whole;

3. If the graduating senior class chooses to use an

cpening and/or closing ——- the content of

at message shall be prepared by the student

volunteer and shall not be monitored or otherwise

reviewed by Duval County School Board [sic], its

officers or employees;

The purpose of these guidelines is to allow

students to direct their own graduation message

without monitoring or review by school officials.

This policy never was directly voted on or debated by the

School Board.

Instead, at a June 1, 1993 School Board meeting, a

motion was made to substitute a “moment of silence” for

any student-initiated messages that might otherwise be

given pursuant to the graduation policy announced in the

Reynolds Memorandum. The motion failed by a vote of

four to three. As a result, the Reynolds Memorandum was

~ “left in force with the acquiescence or tacit approval of the

Board as its official policy governing the 1993

commencement exercises.” Adler I, 851 F.Supp. at 449. In

5a 4

1993 under this policy, student speakers, at ten of seventeen

high school graduation ceremonies, delivered some form of

religious message. Notably, at the other seven graduations,

there were no student messages at all or the messages were

entirely secular in character. There is no tabulation in the

record of comparable statistics for subsequent graduations.

In June 1993, various Duval County public school

students sued the Duval County school system, alleging

that the policy embodied in the Reynolds Memorandum

constituted an establishment of religion and infringed on

their free exercise of religion. These students sought

equitable relief declaring the policy unconstitutional and

enjoining the Duval County School Board from permitting

prayers at high school graduation ceremonies as well as

money damages. The students also sought to certify their

action as a class action.” The district court denied the

motion to certify the class and granted summary judgment

in favor of the Duval County school system, holding that its

policy was constitutional. See Adler I, 851 F.Supp. at 451-56.

The students appealed, and a panel of this court found that

because the students had all graduated, their claims for

declaratory and injunctive relief were moot. See Adler v.

Duval County Sch. Bd., 112 F.3d 1475, 1477-78 (11th

Cir.1997) [hereinafter Adler IT]. The Adler II court also held

that the students waived their damages claims on appeal.

See Adler II, 112 F.3d at 1480-81. The Reynolds

Memorandum thus remained the operative high school

graduation policy for Duval County.

These” original” plaintiffs consisted of the following students: Leslie Adler,

Laura Jaffa, and Robin Zion. Doug Rand later joined the action. Karen Adler

and Robin Rand, the mothers of Leslie Adler and Doug Rand, were named

as plaintiffs to bring the claims of their minor children.

6a

In May 1998, Appellants brought the instant action

against the Duval County school system, again alleging that

the policy embodied in the Reynolds Memorandum

constituted an establishment of religion and infringed on

their free exercise of religion. Appellants sought

preliminary and permanent injunctive relief against the

Duval County School Board to prevent it from permitting,

conducting, or sponsoring any religious exercises or prayer

and instruction within the Duval County Public School

District, including at School Board-sponsored graduation

ceremonies. Appellants also sought monetary damages and

class certification.’ The district court, at the hearing on

Appellants’ motion for a preliminary injunction and with

the consent of the parties, consolidated the merits of

Appellants’ claims with Appellants’ preliminary injunction

motion pursuant to Federal Rule of Civil Procedure 65(a)(2).

The district court then denied Appellants’ motion for

preliminary injunction and entered final judgment in favor

of the Duval County School Board.

Appellants filed a motion for expedited appeal and a

panel of this Court heard oral argument on November 16,

1998. The panel reversed the district court’s judgment and

remanded for further proceedings. On June 3, 1999, we

vacated this opinion and granted rehearing en banc.

3 Appellants in the instant action include: Emily Adler, a June 1998 graduate

of Mandarin High School; Seth Finck, a June 1998 graduate of Stanton

College Preparatory School; Stella Finck, mother of Duval County public

school students Rachel Finck, who was scheduled to graduate from Stanton

College Preparatory School in 1999, Aaron Finck, who was scheduled to

graduate from Stanton College Preparatory School in 2000, and Benjamin

Finck, a Duval County public school student; Roberta Nord, mother of

Duval County public school students Lucy Nord, age 9, and Tyler Hurley,

age 12; and Jonathon Rand, a June 1998 graduate of Stanton College

Preparatory School.

7a

Il.

The central issue presented is whether the Duval

County school system’s policy of permitting a graduating

student, elected by her class, to deliver an unrestricted

message of her choice at the beginning and/or closing of

graduation ceremonies is facially violative of the

Establishment Clause.*

*We construe this appeal as the appeal of a final judgment strictly pertaining

to the facial constitutionality of the Duval County graduation policy. We do

not address any potential “as-applied” claims raised below by Appellants.

This result is driven by the procedural history of the case. Initially,

Appellants sought a preliminary injunction in addition to their facial and as-

applied claims on the merits. At the pretrial hearing on the preliminary

injunction, the district court indicated that it thought that Appellant's claims

on the merits should be consolidated with the preliminary injunction motion

because the claims were duplications of earlier claims it had evaluated in

AdlerI. The district court asked whether any operative facts had changed

and the parties stipulated that there had been no substantive changes. As

the district court explained:

This is, for all practical purposes, the second time this case has

appeared before this court. In 1994 a similar group of

Plaintiffs represented by the same counsel sought the same

injunctive relief with respect to high school graduation or

commencement ceremonies then scheduled to be conducted

in the spring of that year. I decided at that time that the

Plaintiffs’ constitutional rights were not infringed. This

cathoneel, Se

graduation ceremonies is scheduled for 1998. The present case

was filed for the purpose of relitigating the issue upon the

contention of Plaintiffs’ counsel that the law has now evolved

in their favor as manifested by [] [several] intervening

decisions. . . .

See Adler v. Duval County Sch. Bd., No. 98- 460-CIV-J-10C (M.D.Fla. May 27,

1998) (internal citation omutted) (emphasis added). The district court then took

judicial notice of its opinion in Adler I and consolidated the action on the merits

8a

Close attention to the operative features of the Duval

County policy yields the conclusion that the policy is

constitutional on its face. Simply put, the selection of a

graduation student speaker by a secular criterion (not

controlled by the state) to deliver a message (not restricted

in content by the state) does not violate the Establishment

Clause merely because an autonomous student speaker may

choose to deliver a religious message. See Lee, 505 U.S. at

630 n.8, 112 S.Ct. 2649 (Souter, J., concurring) (observing

that “[i]f the State had chosen its graduation day speakers

with Appellants’ motion for preliminary injunction. Finally, the district court

distinguished the intervening decisions cited by Appellants and concluded:

[T]he proper decision in this case is dictated by the decision I

reached in Adler I, and that the application for preliminary

injunctive relief should be denied now as it was then.

Furthermore, as counsel agreed during today’s hearing, there

is no just reason in fact or law as to why the action should not

be advanced on the merits and consolidated with the hearing

of the instant application so that final judgment may be

entered and the controversy may proceed to the Court of

Appeals.

Id. (emphasis added). Both parties consented to the consolidation and Appellants

did not object to the effect this consolidation would have on their as-applied

claims. Because of the consolidation, discovery was truncated as to the policy’s

application and effect for graduation ceremonies after 1993 and Appellants’ as-

applied claims were never fully developed or litigated below. Appellants’ consent

to the district court’s consolidation constituted a knowing waiver of their as-

applied claims, circumscribing the action and the district court’s final judgment

to the facial ee of the graduation policy. See W

V-U-W. +» 624 F.2d 655, 657-58 Gth

Cir. 1980) (noting am district court, pursuant to Federal Rule of Civil Procedure

65(a)(2), raay properly consolidate the merits of a case with a preliminary

injunction hearing so long as parties are given adequate notice); Fenstermacher v.

Philadelphia Nat'l Bank, 493 F.2d 333, 337 (3rd Cir. 1974) (noting that party’s

failure to object to district court’s consolidation of the merits with a preliminary

injunction hearing constituted a waiver of any defects stemming from the

consolidation because the party had “acquiesced in the procedure followed in the

district court”). We therefore restrict our review today to the facial

constitutionality of the graduation policy.]

9a

according to wholly secular criteria, and if one of those

speakers (not a state actor) had individually chosen to

deliver a religious message, it would have been harder to

attribute an endorsement of religion to the State”) (citing

Witters v. Washington Dep't of Servs. for the Blind, 474 U.S.

481, 106 S.Ct. 748, L.Ed.2d 846 (1986)).

Establishment Clause jurisprudence calls for the

difficult task of separating a student's private message,

which may be religious in character, from a state-sponsored

religious message, protecting the former and prohibiting the

latter. This determination is of “necessity one of line-

drawing,” see Lee, 505 US. at 598, 112 S.Ct. 2649,

“sometimes quite fine, based on the particular facts of each

case,” Rosenberger v. Rector and Visitors of the Univ. of

Va., 515 U.S. 819, 847, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995)

(O’Connor, J., concurring). Indeed, our courts have

recognized that “at graduation time and throughout the

course of the education process, there will be instances

when religious values, religious practices, and religious

persons will have some interaction with the public schools

and their students.” See Lee, 505 U.S. at 598-99, 112 S.Ct.

2649 (citing Board of Educ. v. Mergens, 496 U.S. 226, 110

S.Ct. 2356, 110 L.Ed.2d 191 (1990)). But at the core of

Establishment Clause jurisprudence is the notion that the

state may not favor, endorse, or oppose the propagation of

religious doctrine by its citizens. In this case, the absence of

state involvement in each of the central decisions—whether

a graduation message will be delivered, who may speak,

and what the content of the speech may be—insulates the

School Board’s policy from constitutional infirmity on its

face.

We measure the facial constitutionality of the policy

against both the standards enunciated by the Supreme

Court in Lee, 505 U.S. 577, 112 S.Ct. 2649, the Court’s only

occasion to directly examine the issue of school prayer at a

10a

public high school graduation, and the more general

Establishment Clause test articulated in Lemon v.

Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745

(1971).°

A.

In Lee, the Supreme Court scrutinized the Providence,

Rhode Island public school system policy of permitting

middle and high school principals to invite clerics to offer

invocation and benediction prayers at formal high school

graduation ceremonies. See Lee, 505 U.S. at 580, 112 S.Ct.

2649. In particular, the Court considered the 1989

graduation at Nathan Bishop Middle School where the

principal invited a local rabbi to offer a religious invocation

and benediction at the school’s graduation ceremony. The

principal also provided the rabbi with a pamphlet entitled

“Guidelines for Civic Occasions,” prepared by the National

Conference of Christians and Jews, and advised the rabbi

*While the Lemon test has drawn considerable criticism from both Members

of the Court and legal commentators, see, e.g., Board of Educ. v. Grumet,

512 U.S. 687, 721, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994) (O'Connor, J.,

concurring) (noting that “the slide away pee Lemon's unitary approach is

well under way"); Kent Greenawalt,

of “Tests” Under the Religion Clauses, 1995 Sup. Ct. Rev. 323, 361 (1996)

(declaring that “now that Lemon lacks any defenders on the Court, other

judges would perform a shallow exercise were they to continue to apply its

terms. They should recognize that the Supreme Court has definitely

Pyne Lemon."), it is still binding precedent, see Lamb's Chapel v.

F 508 U.S. 384, 395 n.7,113 S.Ct. 2141,

124 L.Ed.2d 352 (1993) (stating that "we return to the reality that there is a -

proper way to inter an established decision and Lemon, however

Steering, 1 CAD SS Re eae Se See see _also

lav 5 F.3d 1383, 1388 (11th Cir.1993) (en

banc) explaining that "[a]lthough [the Lemon test] has been criticized

severely, it still controls our Establishment Clause inquiry"); Bown v.

Gwinnett County Sch. Dist. 112 F.3d 1464, 1468- 74 (11th Cir.1997)

(applying Lemon).

lla

that the prayer should be nonsectarian. See id. at 581, 112

S.Ct. 2649.

In declaring the school system policy unconstitutional

under the Establishment Clause, the Supreme Court pointed

at two “dominant facts” as marking the boundaries of its

decision: first, the Providence school officials ordained and

directed the performance of a religious exercise by deciding

to include prayer in the graduation ceremony, by selecting a

clergyman to deliver the prayer, and by providing the

clergyman with guidelines informing the content of the

prayer; and second, pressure was exerted on students to

attend graduation and conform with their peers by either

standing as a group or remaining in respectful silence

during the invocation and benediction. Id. at 586-88, 112

S.Ct. 2649. What the Supreme Court found striking and

troubling about Lee was that the government clearly

directed a formal religious exercise~albeit in the form of a

nonsectarian prayer—under such circumstances as to oblige

the participation of many who objected. As Justice

Kennedy wrote for the majority:

These dominant facts mark and control the

confines of our decision: State officials direct the

ormance 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 on el

attendance as a condition for receipt of the

diploma.

Id. at 586, 112 S.Ct. 2649. There can be little doubt, then,

that in Lee, the Providence, Rhode Island school system

ordained and established a religious exercise at a

graduation ceremony, and that the graduation prayer

12a

delivered by a rabbi was in every sense endorsed and

supported by the state. ;

In striking contrast, under the Duval County

graduation policy, however, neither the School Board nor its

principals may ordain, direct, establish, or endorse a

religious prayer or message of any kind. Indeed, by the

very terms of the policy, a religious message may not even

be offered at graduation. The Duval County policy

explicitly divorces school officials from the decision-making

process as to whether any message—be it religious or not-

may be delivered at graduation at all. Moreover, decisional

control over the most crucial elements of the graduation

policy rests with the students and not the state. According

to the policy, school officials merely allow a graduating

class to decide by an election whether to have a “brief

opening and/or closing message” at graduation. If the class

votes to have a message, it elects a student volunteer to

deliver the message. That student is then free to deliver a

“message “not monitored or otherwise reviewed” in any way

by the school. Under the policy, the School Board and its

agents have no control over who will draft the message (if

there be any message at all) or what its content may be.

The School Board also does not suggest in any way, let

alone require, that the graduating class consider religious or

any other criteria in deciding whether to have a student

message or in selecting a particular student speaker. And

most notably, if the graduating class chooses to have a

message, the content of the message shall be prepared by

the student speaker alone and no one else. The Duval

County School Board is expressly prohibited by the very

terms of its policy from influencing or editing the message

in any way.

These operational features distinguish the Duval

County policy from approximating even an arguably similar

level of state control to the graduation policy struck down

13a

in Lee. Unlike the Providence policy in Lee, the Duval

County policy, in no way, authorizes a school to “direct the

performance of a formal religious exercise.” Lee, 505 U.S. at

586, 112 S.Ct. 2649. And unlike a direct student plebiscite

on graduation prayer, not even the senior class exercises

control over the content of the graduation message. That

decision rests solely with the elected student speaker— with

neither the senior class nor the school exercising any sort of

editorial oversight. Therefore, on the face of the policy

itself, the students unambiguously understand that any

student message is utterly divorced from any state

sponsorship.

Lee does not stand for the proposition that all religious

expression, even the private religious expression of an

elected student speaker, must be excised from public high

school graduation ceremonies. Rather, Lee prohibits the

state from ordaining, directing, endorsing, or sponsoring a

religious message at such ceremonies but not from adopting

neutral secular policies which simply permit the possibility

of private religious expression. See id., 505 U.S. at 589, 112

S.Ct. 2649 (observing that “[t]he First Amendment's

Religion Clauses mean that religious beliefs and religious

expression are too precious to be either proscribed or

prescribed by the State”); id. at 604-05 (Blackmun,

concurring) (explaining that “[t]he Establishment Clause

proscribes public schools from ‘conveying or attempting to

convey a message that religion or a particular religious

belief is favored or preferred’”) (quoting County of

Alleghany v. Greater Pittsburgh ACLU, 492 U.S. 573, 593,

109 S.Ct. 3086, 106 L.Ed.2d. 472 (1989)); see also Agostini v.

Felton, 521 U.S. 203, 231, 117 S.Ct. 1997, 138 L.Ed.2d 391

(1997) (noting that there is no advancement of religion

where “aid is allocated on the basis of neutral, secular

criteria that neither favor nor disfavor religion, and is made

available to both religious and secular beneficiaries on a

nondiscriminatory basis”); Rosenberger, 515 U.S. at 839, 115

14a

S.Ct. 2510 (stating that “[a] central lesson of our decisions is

that a significant factor in upholding governmental

programs in the face of Establishment Clause attack is their

neutrality towards religion”); Grumet, 512 US. at 696, 114

S.Ct. 2481 (declaring that “’[a] proper respect for both the

Free Exercise and the Establishment Clauses compels the

Nyquist, 413 U.S. 756, 792-93, 93 S.Ct. 2955, 31 L.Ed.2d 948

(1973)); Chandler v. James, 180 F.3d 1254, 1258-59 (11th Cir.

1999) (noting that “ordinarily religious speech by private

parties cannot establish religion, even if it occurs in a public

institution, such as a school”) (citation omitted).

The School Board's policy is perfectly consistent with

the theme of neutrality in Establishment Clause

jurisprudence. As Justice Souter explained in his

concurrence in Lee:

While the Establishment Clause’s concept of

neutrality is not self-revealing, our recent cases

have invested it with specific content: the State

may not favor or endorse either religion generally

over nonreligion or one religion over others. This

rinciple against favoritism and endorsement has

ome the foundation of Establishment Clause

jurisprudence, ensuring that religious belief is

irrelevant to every citizen’s standing in the political

community. ...

Lee, 505 U.S. at 627, 112 S.Ct. 2649 (internal citations

omitted). No feature of the Duval County policy favors or

endorses religion. The graduation policy is simply content-

neutral, and allows an autonomous elected speaker, selected

by her class, to deliver a religious or secular message on an

equal basis.

In one sense, the policy can be analogized to a line of

open forum cases in which the Supreme Court has held that

15a

neutral secular policies that merely accommodate religion

or individual free exercise rights do not amount to an

unconstitutional state endorsement of religion.° First, in

Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d

440 (1981), the Court struck down a University of Missouri

regulation that denied “equal access” to school facilities for

religious groups as a violation of the Free Speech Clause.

Id. at 274-75, 102 S.Ct. 269. In so ruling, the Court explained

that an “open forum” policy, which permu.ted access to both

religious and secular student groups in a neutral manner,

did not offend the Establishment Clause because “an open

forum in a public university does not confer any

imprimatur of state approval on religious sects or practices”

anymore than such a policy “’committed [the University] to

the goals of the Students for a Democratic Society, the

Young Socialist Alliance,’ or any other group eligible to use

its facilities.” Id, at 274, 102 S.Ct. 269 (citation omitted).

The Supreme Court extended this reasoning to public

secondary schools in Mergens. There, the Court upheld the

constitutionality of the Equal Access Act, 20 U.S.C. § 4071 et

seq., which explicitly codified the reasoning of Widmar by

prohibiting public secondary schools in receipt of federal

funds from denying student access to “limited open

forum{s]” on the basis of the religious content of their

speech. Mergens, 496 U.S. at 235, 110 S.Ct. 2356. The Court

elaborated a core tenet of its neutrality jurisprudence in the

process: |

For purposes of our decision, we find it unnecessary to decide whether the

Duval County graduation policy creates a “designated public forum” or a

“nonpublic forum” as these terms have come to be defined by our public

forum caselaw. See Arkansas Educ. Tele. Comm'n v. Forbes, 523 U.S. 666,

118 S.Ct. 1633, 1641-43, 140 L.Ed.2d 875 (1998). We rely on public forum

doctrine only in so far as it informs Establishment Clause jurisprudence

regarding principles of state endorsement and neutral accommodation

towards private religious speech.

16a

[T]here is a crucial difference between government

ee endorsing religion, which the

tablishment Clause forbids, and pcvets speech

endorsing religion, which the Free and Free

Exercise Clauses protect. We think that second

school students are mature enough and are likely

to understand that a school does not endorse or

support student speech that it merely its ona

nondiscriminatory basis. ... Although a school

may not itself lead or direct a religious club, a

school that permits a student-initiated and

student-led religious club to meet after school, just

as it permits any other student group to do, does

not convey a message of state — or

endorsement of the particular religion.

Id. at 250-52, 110 S.Ct. 2356. In recent years, the Court has

reaffirmed this principle by finding that the inclusion of

private religious groups in “open forums” through neutral

selection principles does not violate the Establishment

Clause or constitute a state endorsement of religion. See

Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S.

753, 763, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) (plurality

opinion) (concluding that the allowance of a private

religious display in an open public forum, selected by the

same application process and on the same terms as other

private displays, did not amount to state endorsement);

Rosenberger, 515 US. at 832, 115 S.Ct. 2510 (holding that a

public university subsidy for a religious student

organization's publication costs, under a program that

funded other student organization publications through

neutral selection criteria, did not violate the Establishment

Clause); Lamb’s Chapel, 508 U.S. at 395, 113 S.Ct. 2141

(finding that a policy, which allowed private student

religious groups equal after-school access to school

property through neutral secular criteria, would not violate

the Establishment Clause).

These cases strongly suggest that a policy, like the

Duval County graduation policy, which provides an

17a

opportunity for student-selected, student-initiated private

expression through a neutral selection criterion, does not

violate the Establishment Clause simply because the venue

is equally available for religious or secular expression.

Government neutrality towards religion is all that is

required by the Establishment Clause. And it is worth

emphasizing that while the state must be neutral and cannot

advance or endorse religion, similarly, it need not, indeed it

cannot, act in a hostile manner in the face of private

religious speech publically uttered. See Lee, 505 U.S. at 598,

112 S.Ct. 2649 (observing that “[a] relentless and all-

pervasive attempt to exclude religion from every aspect of

public life could itself become inconsistent with the

Constitution’) (citation omitted); Zorach v. Clauson, 343

US. 306, 314, 72 S.Ct. 679, 96 L.Ed. 954 (1952) (stating that

“we find no constitutional requirement which makes it

necessary for government to be hostile to religion and to

throw its weight against efforts to widen the effective scope

of religious influence”).

In essence, this case is substantially like Doe v. Madison

Sch. Dist. No. 321, 147 F.3d 832 (9th Cir. 1998), vacated on

other grounds, 177 F.3d 789 (9th Cir. 1999) (en banc)

(vacating for mootness because the student plaintiffs

already had graduated). In Doe, the Ninth Circuit

examined a graduation policy which mirrors Duval

County’s policy in its neutrality. The Doe policy allowed

for a minimum of four student graduation speakers to be

selected according to their academic standing. If a student

accepted the speaking invitation, she could choose to

deliver an “address, poem, reading, song, musical

presentation, prayer, or any other pronouncement” — the

content, of which, she alone controlled. Doe, 147 F.3d at

835. The Doe court upheld the constitutionality of the

policy against a facial challenge on Establishment Clause

grounds and distinguished Lee. It explained that

graduation speech does not bear the imprimatur of the state

18a

when the speaker is a student, not a cleric; the student

speaker is selected on neutral and secular criteria; and the

student has complete autono:y over content. Doe, 147

F.3d at 835-36.’

"The other federal circuit cases that have considered student-led, student-

initiated prayer at graduation are of limited assistance. All of these cases

involve direct student plebiscites on graduation prayer. Of these cases, Jones

v. Clear Creek Indep. Sch. Dist,, 977 F.2d 963 (5th Cir. 1992), is the only one

which has permitted students to vote directly on whether to have prayer at

graduation. In Jones, the Fifth Circuit upheld the Clear Creek, Texas school

district's policy allowing graduating students to vote whether student

volunteers would deliver “ nonsectarian and nonproselytizing” invocations

at graduation. The court found: that the Clear Creek policy (1) reserved to

the students the decision whether to have an invocation, (2) precluded

anyone but a student volunteer from delivering an invocation, and (3)

placed less psychological coercion on the student audience than the prayers

given in Lee because students were aware that any prayers given

represented the will of their peers. See id. at 970-71.

Both the Third and Ninth Circuits have come to an opposite

conclusion. In ACLU of New Jersey v. Black Ho i i

Educ., 84 F.3d 1471 (3d Cir. 1996) (en banc), the Third Circuit, sitting en

banc, held as unconstitutional a school board’s policy that permitted the

senior class to vote on whether to include a prayer at high school graduation

ceremonies. See id. at 1477-88. The policy in Black Horse Pike allowed

senior class officers to conduct a poll of the graduating class to determine,

by plurality vote, whether seniors wanted “’ prayer, a moment of reflection,

or nothing at all’” to be included in their graduation ceremony. Id. at 1475

(citation omitted). In Harris v. Joint Sch. Dist. No. 241, 41 F3d- 447 (9th Cir.

1994), vacated as moot, 515 U.S. 1154, 115 S.Ct. 2604, 132 L.Ed.2d 849 (1995),

high school students themselves, pursuant to a school district policy,

planned every aspect of their graduation, without interference from school

officials, and voted by written ballot on whether or not to have prayer. The

Harris court found that the state involvement in the case was pervasive

enough to offend Establishment Clause concerns, noting that “ [t]he message

of the speakers is [] chosen by the majority; the relevant speakers are

instructed to pray.” Id. at 456-57.

In contrast to each of these policies, Duval County students vote on

whether to have a message of unspecified content delivered by a student.

This is a meaningful distinction.

19a

Appellants, however, advance two arguments for why

we should regard a student-selected graduation speaker,

who is selected through a wholly neutral process and who

is given complete autonomy over the content of her speech,

as a public, state-sponsored speaker. First, they contend

that by providing the platform and opportunity, the state

has created a sufficient link to the student speaker to

convert the student’s private speech into public, state-

sponsored speech. Second, they suggest that the

_ Majoritarian process of selecting the speaker shrouds the

otherwise private speech of a student with the imprint of

the state. The first argument—that by providing the

The Fifth Circuit recently revisited the issue of student-initiated

prayer in Doe v. Santa Fe Indep. Sch. Dist, 168 F.3d 806 (6th Cir.),

118 S.Ct. 494 (1999). There, the Fifth Circuit examined

what it considered to be the holding of Jones—“that student-selected,

student-given, nonsectarian, nonproselytizing invocations and benedictions

at high school graduation ceremonies” are constitutional—and concluded

that the constitutionality of a student-selected, student-led prayer policy

depends on its “nonsectarian and nonproselytizing” features. Id. at 816-19.

The Santa Fe court also struck downa school policy which allowed student-

led, student-initiated prayer before high school football games. The

Supreme Court recently has granted certiorari in Santa Fe. However, the

Court has limited its review to whether student-led, student initiated prayer

at football games violates the Establishment Clause. The Court did not grant

certiorari on the constitutionality of the Santa Fe graduation policy.

Appellants cite Santa Fe for the proposition that a policy which “ permits”

sectarian and proselytizing prayers is facially unconstitutional. As discussed

in greater detail infra, this argument proves too much and is offensive to the

Constitution. The Duval County policy, of course, permits secta*ian and

proselytizing prayers because it places no limitations, either secular or

sectarian, on the content of a graduation message. A policy of free

expression is far more consonant with the commands of the First .

Amendment than is a policy of censorship. See, e.g., Mergens, 496 U.S. at

253 (stating that “a denial of equal access to religious speech might well

create greater entangiement problems in the form of invasive monitoring to

prevent religious speech at meetings at which such speech might occur”);

Santa Fe, 168 F.3d at 829-35 (Jolly, J., dissenting).

20a

platform, the speech becomes public—goes too far. The

second argument-that the speaker somehow garners state

authority by virtue of the plebiscite—has no logical rationale.

First, we reject the notion that the religious content of

any speech at a graduation ceremony is attributable to the

school merely because of the school’s sponsorship of the

event or its control over the graduation’s schedule, timing,

decorum, or sequence of events. The Supreme Court did

not suggest in Lee that school sponsorship of the graduation

event, standing alone, was sufficient to find the Providence

policy unconstitutional, or it would have banned all .

religious expression at graduation. If Appellants were right

on this point, graduation speakers as diverse as athletes,

politicians, academics, entertainers, and maybe even judges

would bear the imprimatur of the state because they were

handpicked by the school (or, in our case, elected by the

senior class) to speak at an event over which the school has

great control. Schools then would have to prevent these

speakers from discussing a religious topic, engaging in

prayer, or imploring the guidance of the Lord, to ensure no

Establishment Clause violation and protect themselves from

42 U.S.C. § 1983 liability should an audience member

perceive the school to be endorsing the speaker’s religious

message. Indeed, the same logic would apply to a student

graduation speaker selected by other neutral criteria such as

academic achievement. But a graduation free of all religious

expression, compelled by the school’s sponsorship of the

event, is not required by the Establishment Clause.

Even if we accept that the Duval County School Board

exerted overwhelming control over the graduation

ceremony in terms of the event's sequence, venue, dress,

and facilities, it is clear that it did not have control over the

elements which are most crucial in the Establishment

Clause calculus: the selection of the messenger, the content

of the message, or most basically, the decision whether or

21a

not there would be a message in the first place. It is beyond

imagination to say that everyone on the platform at a high

school graduation ceremony, including a local politician or

celebrity, is a state speaker merely because the state has

provided the platform, onto which private individuals may

be invited to share their privately-held views. Such views

do not become the state’s views merely by being uttered at a

state event on a state platform. Otherwise, each “open

forum” case in which the Supreme Court found that

granting religious groups access to generally available

public facilities or benefits through neutral selection criteria

was not an unconstitutional state endorsement of religion

would be wrongly decided. See Pinette, 515 U.S. at 762-70,

115 S.Ct. 2440; id. at 772-83, 115 S.Ct. 2440 (O’ Connor, J.,

concurring in the judgment); id. at 783-94, 115 S.Ct. 2440

(Souter, J., concurring in the judgment); Rosenberger, 515

US. at 839-46, 115 S.Ct. 2510; Lamb’s Chapel, 508 U.S. at

395-97, 113 S.Ct. 2441; Mergens, 496 U.S. at 248-53, 110 S.Ct.

2356; Widmar, 454 U.S. at 271-79, 102 S.Ct. 269. For by

Appellants’ logic, the mere provision of a state-controlled

forum or subsidy to private speakers automatically converts

private speech into government speech.

In addition, a per se rule that all speech on a state-

controlled platform is state speech, raises core free

expression concerns and would likely run afoul of the Free

Exercise and Free Speech clauses. See Chandler, 180 F.3d at

1261 (stating that “[b]ecause genuinely student-initiated

religious speech is private speech endorsing religion, it is

fully protected by both the Free Exercise and Free Speech

Clauses of the Constitution”) (emphasis added). Even if we

were to construe a graduation ceremony as a “nonpublic

forum,” Duval County students still would possess free

speech rights there. The Supreme Court has consistently

held that in: nonpublic fora the Pc may not engage

in viewpoint discrimination. See

Defense & Educ. Fund, Inc, 473 U.S. 788, 806, 105 S.Ct. 3439,

22a

87 L.Ed.2d 567 (1985) (finding that “[c]ontrol over access to

a nonpublic forum can be based on subject matter and

speaker identity so long as the distinctions drawn are

reasonable in light of the purpose served by the forum and

are viewpoint neutral”) (emphasis added); Perry Educ.

Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 46, 103

S.Ct. 948, 74 L.Ed.2d 794 (1983) (observing that “the state

may reserve [] [a nonpublic] forum for its intended

purposes, communicative or otherwise, as long as the

regulation on speech is reasonable and not an effort to

suppress expression merely because public officials oppose

the speaker’s view”). The Court has also concluded that

religion is a viewpoint which, for First Amendment

purposes, may provide “a specific premise, a perspective, a

standpoint from which a variety of subjects may be

discussed and considered.” Rosenberger, 515 U.S. at 831,

115 S.Ct. 2510.

Presumably, a student's religious perspective would

inform his views on a variety of subjects ordinarily dealt

with at graduation such as expressing gratitude to his

family or religious community, reflecting on the meaning of

his school experience, or defining his future goals. The

extremely personal and subjective nature of such views

helps to explain why the School Board policy yields private

rather than public speech. To unnecessarily classify student

speakers as government actors could render Duval County

students powerless to express religiously-inspired or

religiously-influenced opinions at graduation. It also would

effectively compel the Duval County School Board, if it

‘wants to have any speech on topics where religion might

motivate opinion or mould perspective, to engage in

viewpoint discrimination, “an egregious form of content

discrimination,” Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510,

in the name of secular purity.

23a

The expression of religious beliefs, which are sacred to

some listeners, may be offensive to others. Appellants’

desire to insulate students and other attendants at

graduation from the offense that they may well experience

at hearing religious expression with which they strongly

disagree is altogether understandable. Graduation

ceremonies are designed to be joyous occasions for the

celebration of student achievement. But the Constitution

does not prohibit the exercise of offensive speech at

graduation ceremonies, religious or otherwise; it only

prohibits state expressions of religion. While the School

Board is under no compulsion to provide an opportunity for

free expression by one or more students at a graduation

ceremony, the Constitution certainly does not prohibit the

School Board from doing so. The occasional tolerance of

speech we may deem offensive is one price we pay for the

First Amendment and our democratic traditions.

Second, we reject the claim that allowing students to

vote for a graduation message and to select the student

speakers automatically places the imprint of the state on the

student speakers’ privately-crafted messages. Appellants’

leap of logic, taking a selected student representative and,

without explanation, turning her into a state actor by virtue

of a democratic student vote, strainsjcredulity. At most, a

stulent speaker selected by a class vote is a representative

of the student body, not an official of the state. She has no

power or authority or official capacity to inform, carry out, —-

or guide state policy. It is wholly unconvincing to argue

that the student becomes a state actor because she was

chosen by her peers, unless each high school student

individually is considered to be a state actor, or somehow

the students, acting in concert, come to be vested with the

power of the state.

Consider two examples. First, consider the case of the

selection of a Homecoming Queen. While she may be

24a

selected by a vote, or plebiscite of the entire senior class, the

Homecoming Queen cannot be characterized as a state

actor, or a representative of the state, merely because she

holds a “public” position and sits atop the Homecoming

float. Imagine, second, the example of replacing the

traditional valedictory address with the practice of

affording the students of the graduating class the

opportunity to select the graduation student speaker

through a vote by the entire class. In this hypothetical, the

student speaker is selected, not by the School Board on the

basis of grades, but by the students on the basis of student

choice - be it popularity, ability to entertain, achievement in

athletics, or for some other reason. Again, it strains reason

and common sense to suggest that, by virtue of her selection

by the majority of the senior high school class, the student

speaker becomes a mouthpiece of the state. Both examples

suggest that the senior class’s act of voting does not, in any

way, turn the senior class vote into state action, nor turn the

chosen student into a state actor. Because Duval County

policy utilizes this same methodology, affording the

students of the senior class the opportunity to vote whether

or not to have a message and to select a student speaker, in

a wholly secular way, the graduation message vote is no

more vested with the imprimatur of the state than are the

votes for graduation class speaker or Homecoming Queen.

While the line between “what is ‘private’ action and

what is ‘state’ action is not always easy to determine,”

Appellants have in no way proven that the students’ private

conduct has become so “entwined with government

policies” or so “impregnated with governmental character”

as to become subject to the constitutional limitations placed

on state action. Evans v. Newton, 382 U.S. 296, 299, 86 S.Ct.

486, 15 L.Ed.2d 373 (1966) (citing

365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45

(1961)). All of the policy’s central decisions—who speaks,

whether there will be a speaker, and what the content of the

25a

speech may be~are uncontrolled by the state. Indeed, the

Duval County policy itself states that its purpose is “to

allow students to direct their own graduation message

without monitoring or review by school officials.” The

mere delegation of decision-making to pick a speaker alone

does not place the state’s imprint on a graduation prayer

delivered by an autonomous student speaker who is free to

give a message of unrestricted content.

In fact, the state’s only involvement in the graduation

message is to provide students with the opportunity to vote,

to impose a time limit of two minutes, and to direct that the

message be delivered at the beginning and/or closing of the

ceremony. If the senior class were asked to vote whether to

have a student deliver a poem or sing a song at their

graduation exercise, under the same time and sequence

restraints of the Duval County graduation message policy,

that act still would involve the selection of a private,

autonomous speaker through a neutral criterion. The Duval

County policy does nothing more. It simply creates a

neutral mechanism whereby the students can elect to have

an unrestricted message and select a student speaker.

These facts do not establish that the state has so

insinuated itself into the decision so as to transform an

elected student's private speech into an utterance of the

state. Where the student is chosen in a neutral and secular

way and where the student is allowed complete autonomy

over the message, the student's speech is her own.

B.

The other dominant fact of Lee-whether Duval County

students are coerced “to support or participate in religion or

its exercise” by the School Board policy, 505 U.S. at 587, 112

S.Ct. 2649-—is largely determined by the measure of state

control over the message at a graduation ceremony, rather

26a

than state control over the ceremony itself. We do not

quarrel with the Court's suggestion in Lee that students feel

compelled to attend graduation, see id. at 593-97, 112 S.Ct.

2649, and that schools “retain a high degree of control” over

graduation ceremonies, id. at 597, 112 S.Ct. 2649. But these

conclusions do not suffice to decide the issue of coercion

under these circumstances. The focus must be on whether

the state has endorsed the message in an appreciable

manner, which, when combined with the inherent nature of

the graduation ceremony, obliges students to participate in

a religious exercise. See Lee, 505 US. at 594, 112 S.Ct. 2649

(explaining that “[t]he injury caused by the government's

action . . . is that the State, in a school setting, in effect

required participation in a religious exercise”).

Here, neither the Duval County schools nor the

graduating senior classes even decide if a religious prayer or

message will be delivered, let alone “require” or “coerce”

the student audience to participate in any privately-crafted

message. While schools may make private religious

speech their own by endorsing it, schools do not endorse all

speech that they do not censor. We cannot assume, as

Appellants do, that Duval County seniors will interpret the

school’s failure to censor a private student message for

religious content as an endorsement of that message—

particularly where the students are expressly informed as

part of the election process that they may select a speaker

who alone will craft any message. While there may be

pressures on students to attend graduation and conform

with their peers, see Lee, 505 U.S. at 593-95, 112 S.Ct. 2649,

the state’s complete control over a religious exercise,

essential to Lee’s holding, see id. at 590, 112 S.Ct. 2649

(finding that “[t]he degree of school involvement here made

it clear that the graduation prayers bore the imprint of the

State ...”); id. at 597, 112 S.Ct. 2649 (noting that “the state-

imposed character of an invocation and benediction by

clergy selected by the school combine to make the prayer a

27a

state-sanctioned religious exercise . . .”), is conspicuously

absent here. Moreover, whatever majoritarian pressures are

attendant to a student-led prayer pursuant to a direct

student plebiscite on prayer are not facially presented by the

Duval County policy.

Appellants also assume that allowing the senior class

to vote whether to have a graduation “message”

unrestricted in content and to select an autonomous student

speaker will have the effect of coercing any chosen speaker

into placating the majority’s religious sensibilities by

offering a sectarian message of which the majority

approves. This argument is highly remote and speculative.

Even the scant record before us suggests an opposite

conclusion. While ten of the graduation messages delivered

pursuant to the policy involved some sort of religious

content, the other seven Duval County graduations either

had no student message or a wholly secular message. In the

second place, this argument would be far better suited to an

as-applied challenge, where the record has been properly

developed, rather than to a facial challenge. A facial

challenge to be successful “must establish that no set of

circumstances exists us der which the Act would be valid.”

United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95

‘ L.Ed.2d 697 (1987) (emphasis added). Appellants’

argument simply ignores the plain text of the policy which

only permits graduating students to decide through a vote

whether a student volunteer shall give a message of her

choice. No religious result is preordained under the policy.

On its face, the policy is constitutional under Lee.

Il.

We reach the same conclusion when the graduation

policy is measured against the three-part Lemon test.

Under Lemon, we must evaluate whether: first, the policy

has a secular purpose; second, the policy has a primary

28a

effect that neither advances nor inhibits religion; and

finally, the policy fosters an excessive government

entanglement with religion. See Lemon, 403 U.S. at 612-13,

91 S.Ct. 2105.

A.

We begin with the policy’s purpose. Lemon requires

that a statute must have “a secular legislative purpose.”

403 U.S. at 612, 91 S.Ct. 2105. A statute will only violate this

prong if it is “entirely motivated by a purpose to advance

religion.” Wallace v. Jaffree, 472 U.S. 38, 56, 105 S.Ct. 2479,

86 L.Ed.2d 29 (1985); see also Bowen v. Kendrick, 487 U.S.

589, 602, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988) (stating that

a court “may invalidate a statute only if it is motivated

wholly by an impermissible purpose”) (citations omitted);

Lynch v. Donnelly, 465 U.S. 668, 680, 104 S.Ct. 1355, 79

L.Ed.2d 604 (1984) (observing that “[t]he 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”).

A statute may satisfy Lemon's first prong even if it is

“motivated in part by a religious purpose.” Wallace, 472

US. at 56, 105 S.Ct. 2479.

Moreover, the Supreme Court has instructed us to be

Be nie tn toa State’ s articulation of a secular purpose,”

v. 482 U.S. 578, 586, 107 S.Ct. 2573, 96

LEd.2d 510 (1987), particularly where “a legislature

expresses a plausible secular purpose” for a policy or action,

Wallace, 472 US. at 74, 105 S.Ct. 2479 (O'Connor, J.,

concurring in the judgment). We respect that purpose

unless it is insincere or a “sham,” Edwards, 482 U.S. at

586-87, 107 S.Ct. 2573; Bown, 112 F.3d at 1468, or the statute

at issue has a “ preeminent purpose” which is “plainly

religious in nature,” Stone v. Graham, 449 U.S. 39, 41, 101

29a

S.Ct. 192, 66 L.Ed.2d 199 (1980) (per curiam); see also

Edwards, 482 US. at 591, 107 S.Ct. 2573; Wallace, 472 U.S.

at 56-60, 105 S.Ct. 2479. But the Supreme Court has been

reluctant to attribute an unconstitutional motive where a

“plausible” secular purpose may be discerned from the

statute. Mueller v. Allen, 463 U.S. 388, 394-95 & n. 4, 103

S.Ct. 3062, 77 L.Ed.2d 721 (1983).

Additionally, “[i]nquiry into legislative purpose begins

with interpreting the law itself.” Church of Scientology v.

City of Clearwater, 2 F.3d 1514, 1527 (11th Cir. 1993). That

requires close attention be paid to the plain language of the

policy. For the most part, statutes which the Supreme Court

has invalidated for lack of secular purpose have openly

favored religion or demonstrated a religious purpose on

their face. See, e.g., Edwards, 482 U.S. at 593, 107 S.Ct. 2573

(invalidating a Louisiana law that required creationism to

be discussed with evolution in public schools); Wallace, 472

US. at 57-58, 105 S.Ct. 2479 (overturning an Alabama

statute that authorized a moment of silence because the

state made no attempt to justify the statute in terms of any

secular purpose); Stone, 449 U.S. at 41, 101 S.Ct. 192

(striking down a Kentucky statute requiring the posting of

the Ten Commandments in public classrooms); Engel v.

Vitale, 370 U.S. 421, 424, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962)

(holding unconstitutional a New York law authorizing

state-directed daily classroom prayer in public schools).

In contrast, three secular purposes are plainly

encompassed by the Duval County policy. First, the Duval

County policy, by its very words, articulates a secular

purpose; namely, affording graduating students an

opportunity to direct their own graduation ceremony by

selecting a student speaker to express a message. By

choosing whether to have a graduation message, and if so,

the student speaker, the graduating class shares, at least in

part, in the civic responsibility of planning their graduation

30a

ceremony. See Jones, 977 F.2d at 966 (finding that “[a]

meaningful graduation ceremony can provide

encouragement to finish school and the inspiration and self-

assurance necessary to achieve after graduation, which are

secular objectives”).

Second, the School Board policy allows students to

solemnize graduation as a seminal educational experience.

See Lynch, 465 U.S. at 693, 104 S.Ct. 1355 (O’Connor, J.,

concurring) (noting “the legitimate secular purposes of

solemnizing public occasions, expressing confidence in the

future, and encouraging the recognition of what is worthy

of appreciation in society”); see also Chaudhuri v.

Tennessee, 130 F.3d 232, 236 (6th Cir.1997); Tanford v.

Brand, 104 F.3d 982, 986 (7th Cir.1997); Jones, 977 F.2d at

966-67. This purpose is not drained of its secular character

merely because the policy invites consideration of meaning

and values in the context of a graduation ceremony. And it

would be very damaging to public education if the

Establishment Clause were to be seen as inhibiting any

reflection by a student of transcendent meaning and value

in life, whether grounded in religion or not.

Finally, the School Board’s policy also evinces an

important and long accepted secular interest in permitting

student freedom of expression, whether the content of the

expression takes a secular or religious form. See Pinette, 515

US. at 760, 115 S.Ct. 2440 (noting that “[o]ur precedent

establishes that private religious speech, far from being a

First Amendment orphan, is as fully protected under the

Free Speech Clause as secular private expression” );

: Mergens, 496 US. at 249, 110 S.Ct. 2356 (stating that

“prevent[ing] discrimination against religious and other

Feet of "ce has an Ravancertncays: 4 secular” he a );

City of Grand Rapids, 980 F.2d 1538, 1543 (6th Cir. 1992) (en

banc) (explaining that a “policy of treating religious speech

3la

the same as all other speech certainly serves a secular

purpose”).

Nevertheless, Appellants suggest that the policy has no

true secular purpose and they posit three arguments to

show that any avowed secular purpose is actually a “sham.”

They claim first, that the School Board promulgated the

policy as a means to evade the strictures of Lee; second, that

the policy’s solely sectarian purpose is established by the

title of the Reynolds Memorandum, “Graduation Prayer”;

and finally, that comments made by some members of the

School Board, notably after the policy had been

promulgated and distributed in Duval County, likewise

evince a wholly sectarian purpose.

Before examining Appellants’ specific claims, we first

note that Appellants, without any case authcvity, ignore the

plain text of the policy and its explicitly stated secular

purpose, as if there were none. Appellants would divine a

wholly sectarian purpose merely by looking at the

antecedent history, the title, and the post-enactment debate

surrounding the graduation policy. While it is appropriate

to consider both the “legislative history and the specific

sequence of events leading up to the adoption of the

statute,” it is, “of course, necessary to examine the language

of the statute on its face.” Bown, 112 F.3d at 1469 (citing

Edwards, 482 U.S. at 594, 107 S.Ct. at 2583; Church of

Scientology, 2 F.3d at 1527).

As for Appellants’ first claim, Appellants cite no

persuasive evidence that the Duval County policy was

promulgated to evade the strictures of Lee. Inferring the

subjective motivations of policymakers is always a tricky

proposition. “[W]hile it is possible to discern the objective

‘purpose’ of a statute (i.e., the public good at which its

provisions appear to be directed), or even the formal

motivation for a statute where that is explicitly set forth, ...

32a

discerning the subjective motivation of those enacting the

statute is, to be honest, almost always an impossible task.

The number of possible motivations, to begin with, is not

binary, or indeed finite.” Edwards v. Aguillard, 482 U.S.

578, 636-37, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (Scalia, J.,

dissenting).

In this case, that task is made even more difficult

because we have no record from which to fairly infer the

motivation of those who promulgated or distributed the

policy. In so far as we attempt to divine purpose from the

decision-makers, “to the extent that the School Board was

the institutional policy maker (rather than Superintendent

Zenke and/or Ms. Reynolds),” the district court found that

the “purposes or intentions of the members of the Board are

unknown. No debate was had and no vote was taken on

the Reynolds Memorandum of May 5.” Adler I, 851 F.Supp.

at 451. To the extent that we focus on the motives of Mr.

Zenke or Ms. Reynolds, the district court found mixed

motives or purposes—to permit students to solemnize the

event, to afford the student body the opportunity to select a

messenger, who, in turn would, with con:plete autonomy,

choose a secular or sectarian message, and to afford the

students the option of having no message at all. See id. at

452.

Appellants offer no good reason to disturb the district

court's findings which are grounded in the facially neutral

language of the Reynolds Memorandum. Appellants

principally rely on the pre-policy history. A review of the

pertinent history, however, yields only the observations that

prior to Lee Duval County had a long tradition of

clergymen offering prayers at commencement ceremonies,

that in the wake of Lee in 1992 the School Board terminated

the practice, and that thereafter many members of the

community expressed strong views about the policy one

way or the other. Appellants highlight the fact that some

33a

community members wrote letters imploring Zenke and the

Board to find a way to maintain the graduation prayer

tradition. It would be an especially dangerous practice if a

court could somehow discern legislative purpose, not from

the text of the policy, nor from its explicitly stated purpose,

nor even from a decision-making body that has offered no

debate from which to find purpose, but, rather, simply from

the controversy surrounding the subject and the heartfelt

and often conflicting views expressed by many members of

the community.

In addition, the fact that the Reynolds Memorandum

discusses Lee and the question of whether student-initiated,

_ student-led graduation prayer is constitutional does not

establish that the policy’s secular purposes are a “sham.”

Edwards, 482 U.S. at 586-87, 107 S.Ct. 2573; Bown, 112 F.3d

at 1468. There is nothing inappropriate about a school

system attempting to understand its constitutional

obligations and to instruct school officials on how to comply

with the law. The Reynolds Memorandum simply

explained that in spite of Lee the law was unclear on the

student prayer issue and that the School Board had been

threatened with “lawsuits from both sides on the issue

depending on what action” they took. The memorandum,

in no way, expressed a desire or preference for student

prayer at graduation ceremonies. It simply acknowledged

that Lee forbade graduation prayers “directed and initiated

by the school system” rather than student-initiated, student-

led prayers. Moreover, as the memorandum made clear, the

policy’s stated purpose is plainly secular, “to allow students

to direct their own graduation message without monitoring

or review by school officials,” and its features are strictly

content-neutral and equally accommodating of secular and

sectarian student messages. At worst, the memorandum

can be read as contemplating that student prayers could be

offered pursuant to the graduation policy and that such

occurrences were not strictly forbidden by Lee. Such a

34a

supposition does not come close to rendering the policy's

secular purposes a sham.

Appellants next suggest that the title of the Reynolds

Memorandum, “Graduation Prayer,” supports the

conclusion that the School Board policy was driven solely

by sectarian concerns. The title, however, merely

introduces the topic of debate within Duval County in the

aftermath of Lee, rather than suggesting, let alone

compelling, the outcome of that debate. The title affixed to

the Reynolds Memorandum does no more than alert the

reader to the general subject matter of the text; and it

remains the language and substance of the policy, rather

than its title, that is controlling. It is altogether unnecessary

to requisition the title to cast doubt on the clear and

unambiguous purpose of the policy. The crucial term

“message” is fully defined by the text of the policy, which

provides that the decision whether to have a message is left

to the students, that the student body shall choose the

student speaker, that the message is limited to two minutes

in length, that the message shall take place at the beginning

and/or closing of the graduation ceremony, and, finally,

that the content of the message shall be prepared by the

student speaker without monitoring or review by the School

Board. The title cannot take the place of a detailed review of

the policy's facial provisions, let alone create a wholly

sectarian purpose out of a textually neutral pronouncement.

Besides being unnecessary, use of the title to inform the

plain meaning of the policy’s language is improper. Indeed,

even if we were examining the title of a statute or legislative

codification—and we are doing far less than that here— the

Supreme Court has warned that “the title of a statute and

the heading of a section cannot limit the plain meaning of

the text. For interpretive purposes, they are of use only

when they shed light on some ambiguous word or phrase.

They are but tools available for the resolution of a doubt.

35a

But they cannot undo or limit that which the text re

plain.” E R bu, V. Ba & Ohi

RR. Co., 331 US. 519, 528-29, 67 S.Ct 1387, 91 LEd. 1646

(1947). Both we and our predecessor court have repeatedly

employed this principle of statutory construction when

interpreting the statutory text. See, e.g., North Ala. Express,

Inc. v. Interstate Commerce Comm’‘n, 971 F.2d 661, 664 (11th

Cir.1992) (declaring that “’[s]ection and chapter titles cannot

alter the plain meaning of a statute; they can only assist in

clarifying ambiguity”) (citation omitted); Scarborough v.

723 F.2d 801, 817 (11th

Cir.1984) (noting that “reliance upon headings to determine

the meaning of a statute is not a favored method of

statutory construction”); Rich v. Commissioner of Internal

Revenue Serv., 250 F.2d 170, 175 (5th Cir.1957) (stating that

“[t]he plain and unambiguous meaning of the text of the

section cannot be extended by its title or heading”).

Finally, Appellants point to post-enactment comments

of some members of the School Board made at a June 1, 1993

meeting as evidence of the School Board’s wholly sectarian

purpose to permit graduating students to pray. However,

the district court observed that “[t]he motivation or intent of

the Board relative to the Reynolds Memorandum of May 5

is essentially unknown.” Adler I, 851 F.Supp. at 452. No

debate was had and as far as the record reflects, no vote was

taken on the Reynolds Memorandum. The June 1

comments were made almost a month after the policy was

promulgated and distributed in the context of a proposal to

replace student-initiated messages with a moment of

silence. The motion failed and the policy was left in force.

At best, the vote can be viewed as a tacit endorsement of the

Reynolds Memorandum. Furthermore, a review of the

School Board’s comments at this meeting do not establish

that the School Board sought to direct or endorse

graduation prayer via the Reynold Memorandum. The

most one could say is that the statement of one School

36a

Board member at the June 1 meeting could be characterized

as advocating direct school involvement with religion at

graduation ceremonies.’ Simply put, the post-enactment

comments are not sufficient to transform the policy’s

express secular purpose into a preeminently religious

purpose.

More importantly, regardless of how these post hoc

statements are interpreted, they cannot be construed to

override the policy’s language articulating a clear secular

purpose. See Bown, 112 F.3d at 1472. Indeed in Bown, we

8 ppellants cite to four post-enactment statements of School Board members

to show that the School Board intended to permit graduating students to

engage in prayer. In fact, the statements to which the Appellants refer

generally buttress the conclusion that the School Board's policy was not a

sham. Of those four statements, only the statement of Board member Bill

Parker can be characterized as advocating direct school involvement with

religion at graduation ceremonies. See Tr. of Duval County Sch. Bd.

Meeting at 2 ("I think that our school principals should be allowed to work

outa non-sectarian message with our student chaplains, or a guest minister,

rabbi or whatever that would be acceptable to all at this very important time

in our young people's lives."). The statements of Don Buckley and Nancy

Corwin, while generally supportive of religion, acknowledge that an

intended effect of the policy is to insulate the content of messages from

school influence. See_id. at 5 (Buckley) ("I think the only way we can keep

ourselves clear on this thing is to keep ourselves out of what happens in this

area of the graduation ceremony."); (Corwin) ("I also believe that the

democratic process in which seniors were given the ability to choose which

form of inspirational message, if any, they wanted at their commencement

was an appropriate one and I'm going. to stand by it."). Rather than

betraying an illegitimate intent to ensure that prayer take place at

graduation ceremonies, these statements indicate that Buckley and Corwin

perceived the School Board policy as disassociating the school hierarchy

from student messages. The fourth statement referenced by Appellants, that

of Board member Stan Jordan, was also supportive of the policy. See id. at

8 ("I plan to vote for the administration plan and against the proposal that's

on the table."). Taken as a whole, these utterances by School Board members

constitute recognition that the old regime of state-directed school prayer in

Duval County had passed and been replaced by a new regime over which

they had far less control.

37a

had occasion to find that the legislative history of a Georgia

statute (mandating a period for quiet reflection in public

schools), which contained some expressions of religious

motives by several legislators who voted for the Act, could

not “override the express statutory language articulating a

clear secular purpose.”’ Id. Here, we have even far less

evidence of a sectarian policy purpose on the part of the

School Board or their principals.

In sum, whether standing alone or in concert, the three

pieces of evidence cited by Appellants cannot strip the

policy of a secular purpose. No matter what an individual

board member may have hoped—and they said nothing on

the record about codifying this policy~Duval County’s

policy is facially neutral and undeniably evinces a secular

purpose. That is enough to pass constitutional muster

under the first prong of Lemon.

B.

As for whether the policy has the primary effect of

advancing religion, we conclude that because the policy, on

its face, allows a student message on any topic of the

student's choice it satisfies the second prong of Lemon. The

* Appellants cite Jager v. Douglas County Sch. Dist., 862 F.2d 824 (11th

Cir.1989), for the proposition that a policy, whose actual purpose is to

promote prayer or is “intrinsically religious,” Id. at 830, cannot meet the

secular purpose prong of Lemon. But Jager does no more than state the

obvious, that in order to meet Lemon's first prong, a government policy

must have a genuine secular purpose and not be a sham. See Edwards, 482

U.S. at 586-87, 107 S.Ct. 2573. If a policy's “actual purpose” is wholly

religious then Lemon's secular purpose requirement is not satisfied. In

Jager, we held that a school district's practice of having representatives of

student organizations deliver invocations prior to football games had as its

“preeminent purpose” the endorsement of Protestant Christianity. Id., 862

F.2d at 830. The only discretion left to the students was the selection of who

would pray.

38a

r

Duval County School Board policy is content-neutral and

does not mandate or even encourage that a graduation

prayer will be uttered. As the district court found, the

implementation of the policy may result in no graduation

prayer at all. See Adler I, 851 F.Supp. at 454. While it is

undoubtably true that an autonomous student speaker

could read a prayer at graduation under the policy, it is

equally true that the same speaker may opt for a wholly

secular message instead. It would require a strain of the

term “primary” to suggest that a content-neutral forum

policy, which accommodates private sectarian and secular

speech on an equal basis, has the “primary” or “ principal”

effect of advancing religion.

Moreover, we believe that a student's private choice to

deliver a religious message at graduation is a religious effect

attributable to the student rather than to the facial terms of

the Duval County policy. As the Supreme Court has

explained, “to have forbidden ‘effects’ under Lemon, it

must be fair to say that the government itself has advanced

religion through its own activities and arerrs 3

Latter-Day Saints v. Amos, 483 US. 327, 337, 107 S.Ct 2862,

97 L.Ed.2d 273 (1987). Here, the policy strips the School

Board of any authority over the central decisions— who

speaks, whether there will be a speaker, and what the

content of the speech may be. Indeed, in order to ensure

that no one perceives any student's religious utterance as

being the state’s prayer, the policy explicitly divorces any

student message from School Board sponsorship by

specifically stating that any message will be “prepared by

the student volunteer and shall not be monitored or

otherwise reviewed” by the School Board or its employees.

This language acts as an overt disclaimer, further distancing

the state from the student message.

39a

Our conclusion is amply supported by Supreme Court

caselaw. The Court, under Lemon, repeatedly has upheld

facially neutral programs that permit individuals to support

religion through their own private choices.

521 US. at 223-232, 117 S.Ct. 1997 (upholding New

York program of sending public school teachers into

parochial schools to provide remedial education where aid

was made available to religious and secular beneficiaries on

a nondiscriminatory basis); Zobrest, 509 US. at 8-12, 113

S.Ct. 2462 (sustaining section of Individual with Disabilities

Act providing disabled children with aid regardless of

whether a child attends a sectarian institution); Witters, 474

US. at 488, 106 S.Ct. 748 (holding that Establishment Clause

was not violated when the state paid a blind student's

tuition at a Christian college through a generaily-applicable

aid program because any public aid that reached religious

institutions under the program was “a result of the

genuinely independent and private choices of aid

recipients”); Mueller v. Allen, 463 U.S. at 399, 103 S.Ct. 3062

(upholding a state tax deduction for specified educational

expenses, and characterizing any such aid to religion as

being “only as a result of numerous, private choices of

individual parents of school-age children”). The Duval

County policy allows elected student speakers the freedom

to privately choose a graduation message of an either

secular, sectarian, or mixed nature. We therefore find that

the Duval County policy does not have a primary effect of

advancing religion.

oe

For many of the same reasons, we conclude that the

School Board’s policy does not excessively entangle the

Board with religion in violation of the third part of the

Lemon test.” The policy remains facially neutral with

respect to religion, requiring only that graduation messages

be voted on by students, and composed and directed by a

student speaker. By its very terms, the policy explicitly

prohibits any review of the student message at all.

Undoubtedly, the School Board would find itself far more

entangled with religion if it attempted to eradicate all

religious content from student messages than if it

maintained a meaningful policy of studied neutrality. See

Mergens, 496 U.S. at 253, 110 S.Ct. 2356 (stating that “a

denial of equal access to religious speech might well create

greater entanglement problems in the form of invasive

monitoring to prevent religious speech at meetings at which

such speech might occur”); Widmar, 454 U.S. at 272 n. 11,

102 S.Ct. 269 (noting that schools who adopt open-forum

policies for private secular and religious groups equally

“would risk greater ‘entanglement’ by attempting to enforce

its exclusion of ‘religious worship’ and ‘religious speech’”);

Chabad-Lubavitch, 5 F.3d at 1389; Jager, 862 F.2d at 831.

Implicit in Appellants’ rationale is the need for school

censorship if schools are to allow students the opportunity

to speak at graduation at all. At the core of Appellants’

position is the claim that the state’s control over nearly all

aspects of the graduation ceremony automatically imputes

all private speech to the state. But the degree of control that

schools generally exert over high school graduation

ceremonies is unlikely to diminish because graduation

ceremonies are, by their nature, highly choreographed.

Appellants’ position therefore would leave school officials

with only two choices: either eliminate student speech

Recently, in Agostini, the Court merged the second and third Lemon

prongs because “the factors we use to assess whether an entanglement is

‘excessive’ are similar to the facts we use to examine ‘effect.’” Id, 521 US. at

232.

4la

altogether or retain student speech, subject to censorship by

school authorities. If school officials choose the latter

course, they will be left with the unenviable task of

identifying the religious content in student speeches for

excision prior to graduation or of interrupting renegade

graduation speakers who resort to sectarian speech.” If,

however, they choose the former, they will have deprived

the graduation class of any role in shaping its high school

graduation and they will have banned all private student

expression. The Establishment Clause requires no such

Hobson's choice. What it does require is a recognition of

the critical difference between a private statement of

religious values and a religious utterance endorsed by the

state. The Duval County School Board’s policy, on its face,

does. no more than recognize this distinction.

Ill.

Based on the foregoing, we hold that the Duval County

school system’s policy of permitting graduating students to

decide through a vote whether to have an unrestricted

student graduation message at the beginning and/or

closing of graduation ceremonies does not facially violate

' There is no easy or precise guideline for school officials to follow when

excising student speech of religious content. The constitutional definition

of religion is expansive; it encompasses “all sincere religious beliefs which

are based upon a power or being, or upon a faith, to which all else is

subordinate or upon which all else is ultimately dependent” and “which

occupies in the life of its possessor a place parallel to that filled by [ ] God.”

United States v. Seeger, 380 U.S. 163, 176,85S.Ct. 850,3 L.Ed.2d 733 (1965).

Moreover, the beliefs “need not be acceptable, logical, consistent, or

comprehensible to others.” Thomas v. Review Bd., 450 U.S. 707, 714, 101

S.Ct. 1425, 67 L.Ed.2d 624 (1981). Moreover, if the School Board’s censorship

was not “rigorous” enough to prevent religion from creeping into

graduation ceremonies, a policy of allowing even monitored student speech

still would be subject to constitutional attack.

42a

the Establishment Clause. We therefore affirm the

judgment of the district court.

AFFIRMED.

43a

KRAVITCH, Senior Circuit Judge, dissenting, in which

BARKETT, Circuit Judge, joins:

I agree with the majority that the Supreme Court's

decisions in Lee v. Weisman, 505 U.S. 577, 112 S. Ct. 2649

(1992), and Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.

Ct. 2105, 2111 (1971), control this case. I disagree, however,

with the majority’s application of those decisions to the facts

of this case. The majority articulately defends the

constitutionality of the Duval County graduation policy, but

the analysis is flawed by an unwillingness to look beyond

the policy’s terms. A broader, more contextual appraisal

leads me to conclude that the Duval County policy violates

the Establishment Clause of the First Amendment.

Therefore, I respectfully dissent.

In Lee, 505 U.S. at 586, 112 S. Ct. at 2655, the Supreme

Court held a graduation ceremony unconstitutional because

(1) school officials were overly involved with the delivery of

a prayer, and (2) audience members were in effect required

to participate in a formal religious exercise. Admittedly, the

link between the Duval County policy and resulting prayer

at graduation ceremonies is not as direct as in Lee. But

although the Duval County school administration may have

distanced itself from prayer offered during graduation

ceremonies, it did not disconnect itself from religious

expression. Nor does the policy mitigate the influences that

coerce audience members to participate in prayers offered at

graduation.

Although Lee presents a specific example of an

Establishment Clause violation, Lemon, 403 U.S. at 612-13,

91S. Ct. at 2111, still provides the general Establishment

Clause test. The Duval County policy runs afoul of the

Lemon test because its only credible purpose is to maximize

the chance that prayer will continue to play a prominent

roie in Duval County graduations. Furthermore, the

44a

policy’s “primary effect” is to advance religion. The policy

communicates an endorsement of religion both because it

leads to more religious expression in the opening and

closing messages than all other types of speech, and because

its purpose is apparent to any reasonable observer aware of

its terms, the graduation traditions in Duval County, and

the events leading to the policy’s creation.

Invoking the ideals of free student expression and

referencing the public forum doctrine do not cleanse the

Duval County policy of its constitutional defects. Allowing

a student majority to do what the school administration

could not offends our constitutional scheme of individual

rights. Nor does the policy promote free expression or

render the graduation ceremony equally available for any

sort of speech-not when it allows for only one speaker, and

a speaker chosen by majority vote at that.

In addition to disagreeing with the majority's facial

analysis of the Duval County policy, I take issue with the

conclusion that the plaintiffs waived their as-applied claims.

After analyzing the Duval County policy under both Lee

and Lemon, and critiquing the majority’s public forum

analogy, this dissent concludes with a brief examination of

the procedural posture of the case and the district court's

order advancing the trial on the merits.

A. Lee v. Weisman

The starting point for the analysis of the Duval County

policy is Lee v. Weisman, 505 U.S. 577, 112 S. Ct. 2649

(1992), because it is the only Supreme Court case involving

prayer at public school graduation ceremonies. In Lee, a

principal invited a rabbi to give a prayer at the school’s

graduation ceremony and provided a pamphlet suggesting

an appropriate tone and possible content for the

presentation. Id. at 581,112 S. Ct. at 2652. The Supreme

45a

Court found it unnecessary to apply the Lemon analysis in

Lee because two “dominant facts” rendered the rabbi’s

prayer so clearly unconstitutional. Id. at 586, 112 S. Ct. at

2655. First, “[t]he government involvement with religious

activity [was] pervasive, to the point of creating a state-

sponsored and state-directed religious exercise in a public

school.” Id. at 587, 112 S. Ct. at 2655. Second, “the State, in

a school setting, in effect required participation in a

religious exercise.” Id. at 594, 112S. Ct. at 2659. The

majority purports to evaluate Duval County’s policy in light

of the standards enunciated in Lee, but it both understates

the degree of state direction relevant for the first prong of

the Lee analysis and effectively writes Lee’s second

“dominant fact,” coerced participation, out of the opinion

by conflating it with the state’s control over the religious

exercise itself.

1. State Control

In Lee, state actors made the decision to include an

invocation and benediction in the graduation ceremony,

selected the speaker, and suggested an appropriate tone for

the message. Id. at 587-88, 112 S. Ct. at 2655-56. These

elements of state involvement are of constitutional import

because they “made it clear that the graduation prayers bore

the imprint of the State.” Id. at 590, 112 S. Ct. at 2657.

Admittedly, the Duval County policy is not as egregious as

the practice scrutinized in Lee. The state involvement with

prayers offered through the operation of the policy,

however, is still too extensive to comport with the

Establishment Clause.

In its own search for state involvement, the majority

focuses on the student standing alone at the podium

delivering an uncensored message, but ignores how she got

there. A broader inquiry reveals that the state directs the

exercise of prayer at Duval County high school graduations

46a

because: (1) the programmatic constraints imposed by the

graduation policy promote religious expression, especially

given the context surrounding the policy’s promulgation, ~

(2) the election of a student to deliver the opening or closing

“message” is state action, and (3) the vote for student

speaker is based on the expected content of the candidate’s

message.

According to the majority, “[t]he School Board . . . does

not suggest in any way .. . that the graduating class

consider religious or any other criteria in deciding whether

to have a student message or in selecting a particular

student speaker.” The policy does not permit the school

administration to remain passive, however, and the policy’s

terms do encourage the senior class to consider religious

criteria in planning the opening and closing.

Under the terms of the policy, it is the high school

administration that organizes elections for the graduation

program. The policy only allows for student input

concerning the beginning and end of the ceremony-portions

of the program appropriate for a limited range of speech.

The policy also dictates that the opening and closing

messages last no more than two minutes, further limiting

the types of speech possible. The constraints of the policy

itself provide clues about the type of message the school

administration had in mind. In case students need more of

a hint, however, history »ovides one. Until the year the

policy went into effect, Duval County high school

graduations had opened and closed with a prayer. As the

district court noted, “[iJnvocations and benedictions have

been traditional and are therefore familiar if not expected at

high school graduation ceremonies” in Duval County.

Adler v. Duval County Sch. Bd., 851 F. Supp. 446, 453 n.9

(M.D. Fla. 1994).

47a

Moreover, the senior class vote is itself attributable to

the state. The majority concludes otherwise because it

views the students as making all of the “central” decisions

regarding the opening and closing message. This logic

undervalues the power of the policy’s terms to influence the

students’ choices; it also treats the graduation “message” as

if it were an independent event, rather than the opening and

closing segment of a more substantial occasion, the

graduation ceremony. This narrow perspective permits the

majority to ignore the fact that the Duval County policy

gives students control over only a tiny fraction of the

graduation ceremony as a whole.’

The actions of a private party can be attributed to the

state if they are taken in exercise of « right or privilege

rooted in state authority, and if the private party can “in all

fairness” be described as a state actor. See Edmonson v.

' Both the Ninth and the Third Circuits have recognized that student

decisions concerning particular aspects of their graduation ceremonies are

attributable to the state. See ACLU of N.. v. Black Horse Pike Reg’1 Bd. of

Educ., 84 F.3d 1471 (3d Cir. 1996); slanria x. labas Gh Tileh, Sa A, & F.3d

447 (9th Cir. 1994), vacate th directions to dismiss as moot, 515 U.S. 1154,

115 S.Ct. 2604 (1995). These courts both beweed on the graduation

ceremony as a whole. They noted that the school administration is

ultimately responsible for the graduation ceremonies, and that “the seniors

have authority to make decisions regarding graduation only because the

school allows them to have it.” Harris, 41 F.3d at 454; see also, Black Horse

Pike, 81 F.3d at 1479. They also acknowledged the school’s extensive

involvement with other details of the graduation ceremony. See Black Horse

Pike, 81 F.3d at 1479; Harris, 41 F.3d at 454. Only the Fifth Circuit has held

that a student vote regarding prayer cannot be attributed to the state, see

v 977 F.2d 963, 970-71 (5th Cir.),

vacated, 505 U.S. 1215, 1125. Ct. 3020 (1992), but that holding is in tension

with the more recent case of Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806

(5th Cir. 1999), cert. granted in part 120 S. Ct. 494 (Nov. 15, 1999). In Santa

Fe, the Fifth Circuit held that allowing proselytizing prayers at graduation

violated the First Amendment, even though the senior class selected the

speaker. 168 F.3d at 817.

48a

Leesville Concrete Co., 500 U.S. 614, 620, 111 S. Ct. 2077,

2082-83 (1991). Clearly, the student vote satisfies the first

part of this analysis: but for the policy, the student vote

would not occur. Before the policy went into effect,

students may have had input, but ultimately the school

administration decided whether to have a formal opening

and closing segment of the graduation ceremony, and if so,

what to include in those portions of the program.

Whether a private party can “in all fairness” be

described as a state actor depends on whether the party’s

actions are “governmental in character.” See id. at 621,111

S. Ct. at 2083. Relevant to this analysis are: “the extent to

which the actor relies on governmental assistance and

benefits; whether the actor is performing a traditional

governmental function; and whether the injury caused is

aggravated in a unique way by the incidents of

governmental authority.” Id. at 621-22, 111 S. Ct. at 2083

(citations omitted). Considered in light of these three

factors, the student decisions made pursuant to the Duval

County policy are “governmental in character.”

First, the students vote not merely with the cooperation

of the school authorities but at the behest of school district

policy. They do so on school property, and the assistance or

cooperation of the principal and faculty with administering

the election must be presumed. Furthermore, studerits vote

about a message that will be delivered at an event

sponsored and controlled by the school.

Second, planning public school graduation ceremonies

is a traditional governmental function. The Supreme Court

noted in Lee that “teachers and principals must and do

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.” 505 U.S. at 597,

49a

112 S. Ct. at 2660. Before the policy went into effect, the

Duval County school administration had the power to plan

every aspect of the graduation ceremonies, including the

opening and closing, and the policy does not divest the

administration of control over the graduation ceremonies

generally.

Finally, prayers recited during the opening and closing

portions of the ceremony have an injurious effect precisely

because of the state association with the event. Most people

properly perceive their everyday encounters with others’

religious expression as an incidental requirement of life in a

diverse society, rather than as a burden or attack on their

own beliefs. See Lee, 305 U.S. at 628, 112 S. Ct. at 2677

(Souter, Stevens, & O’Connor, JJ., concurring). It is

government participation in religious expression that offends

the First Amendment because of its power to influence the

inherently personal nature of religious faith, potentially

coercing religious minorities or even coopting mainstream

sects. See id. at 591-92, 112 S. Ct. 2657-58; see also id. at 608-

09, 112 S. Ct. at 2666 (Blackmun, Stevens, & O’Connor, JJ.,

concurring).

The student vote satisfies the criteria for state action

described in Edmonson, and other cases have identified

state action in a similar context. These cases stand for the

proposition that when government delegates authority over

a portion of a public operation to an ostensibly private

actor, but retains ultimate control over the larger operation,

the exercise of the delegated authority is attributable to the

state. Administering elections, for example, is a state

function. Although states can give political parties and

private associations a role in choosing candidates to appear

on the ballot, the private entities’ fulfillment of that role is

state action. See Terry v. Adams, 345 U.S. 461, 469, 73S. Ct.

809, 813 (1953); Smith v. Allwright, 321 U.S. 649, 663, 64 S.

Ct. 757, 765 (1944). The state cannot escape its responsibility

50a

to maintain an electoral system that comports with the

Constitution by allowing non-governmental entities to

control part of the electoral system. See Terry, 345 US. at

469, 73 S. Ct. at 813.

These rules do not only apply to fundamental

governmental operations such as elections. For example,

after a city has managed a park for a period of time, it

cannot continue to maintain the facilities but avoid the

Fourteenth Amendment's mandate to integrate by

appointing private trustees to oversee the park. See Evans

v. Newton, 382 U.S. 296, 301, 86 S. Ct. 486, 489 (1966). The

park in Evans had acquired “momentum” as a public

facility, and the city remained “entwined” in its operation.

It was of no consequence that the trustees with official

authority were not public employees, because “when

private individuals or groups are endowed by the state with

powers or functions governmental in nature, they become

agencies or instrumentalities of the State and subject to its

constitutional limitations.”? Id. at 299, 86 S. Ct. at 488.

So it is with Duval County’s public high school

graduation ceremonies, which have always been state-

sponsored events. Through the graduation policy, the

school administration delegates one decision to the senior

class, but in all other ways “remains entwined in the

management [and] control” of the graduation ceremonies.

Id. at 301, 86 S. Ct. at 489.

The fact that the policy requires the senior class to

exercise its decision-making authority through a

? Indeed, even if all maintenance and title to the land were in private hands,

the park’s management would have to comply with the Constitution

because “the predominant character and purpose of [the] park are

municipal.” Evans, 382 U.S. at 302, 86S. Ct. at 490.

5la

majoritarian vote does not change the analysis. “One’s.. .

fundamental rights may not be submitted to vote; the

depend on the outcome of no elections.” West Virginia

State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S. Ct.

1178, 1185-86 (1943). After all, “[t]he very purpose of the

Bill of Rights was to withdraw certain subjects from the

vicissitudes of political controversy, to place them beyond

the reach of majorities.”* Id., 63 S. Ct. at 1185.

To further distance the state from the actual content of

the opening and closing messages, the majority emphasizes

that the senior class votes for a speaker, not a particular

speech. The majority concludes that the selection of the

student speaker is made in a content-neutral manner. It

requires a logical leap, however, to move from the student

speaker's limited autonomy to craft the graduation message

to the conclusion that the senior class chooses the speaker

without considering what she is going to say.

> Under the majority's reasoning, student councils could, without

prompting, vote to decorate each classroom with the Ten Commandments

or to have a student volunteer begin each school day by reading a prayer

over the public address system. In one sense the policy at issue in this case

poses more of a constitutional problem than these examples. The student

council's decisions would at least be genuinely student-initiated, but here

the opportunity for an opening and closing message is created by the school

administration and the vote is organized and influenced by school officials.

Local government could undermine minority and individual rights in a

similar fashion. In v. i

Chapter, 492 U.S. 573, 109 S. Ct. 3086 (1989), the Supreme Court held that

permitting the display of a creche in the Grand Staircase of a county

courthouse violated the First Amendment. The majority's view here

suggests that a town council ina religiously observant and overwhelmingly

Christian community could bypass the holding in Allegheny by sponsoring

an election each year for volunteer committees to decorate town hall in mid-

December or in the weeks following the secular holiday of Mardi Gras.

Such a procedure, however, would not alter the city’s control over town hall

or eliminate the symbolic connection between the religious decorations and

the town government.

52a

It is more realistic to acknowledge that students vote

based on the anticipated content of the candidates’

graduation message. Unlike typical elected offices with

numerous responsibilities or strictly honorary positions

such as the homecoming queen mentioned in the majority

opinion, the graduation speaker is elected to carry out one

very specific task: she must deliver a single speech that lasts

less than two minutes. If the school board does not expect

students to vote based on how they anticipate the

candidates will perform that one responsibility, then why

have an election at all?

Factoring the content of the speech into the choice of

speaker is problematic because the choice is attributable to

the state and because the terms of the policy influence the

choice as well. Furthermore, given the pervasive state

involvement in public school graduation, abstaining from

censorship is not enough to sever the state’s association

with speech made at the ceremony. To effectively

disconnect itself from that speech, the state must be able to

articulate secular, neutral criteria for selecting the speaker

that are not related to the content of the speech.

This is the rule suggested by the Ninth Circuit's

decision in Doe v. Madison Sch. Dist. No. 321, 147 F.3d 832

(9th Cir. 1998), vacated as moot, 177 F.3d 789 (9th Cir. 1999)

(en banc). The majority finds the Duval County policy

similar to the policy in Doe, but it is the differences that are

instructive. Under the policy at issue in Doe, a minimum of

four student speakers were selected strictly on the basis of

their academic standing to deliver any sort of address they

* Certainly some students will vote based on criteria such as the

of the candidates. We cannot assume, however, that this will be the norm.

It is worth noting that the Duval County policy imposes no limits on

campaigning.

53a

wanted.° See id. at 835. There was no opportunity to

influence the types of speeches given, because there was no

discretion in choosing the speakers. The authorities could

also disconnect themselves from the content of the student

speakers’ speech because the speakers were chosen not for

the views their peers or teachers hoped they would espouse,

but on the basis of a non-content based objective criterion

(class standing) related to the graduation ceremony’s

purpose of celebrating student achievement.

Although the Duval County policy does not mandate

that a prayer be offered at every graduation, it nonetheless

keeps the state heavily involved in the choices regarding the

ceremonies’ opening and closing. The policy not only

allows, but in some ways encourages, the choice of prayer.

Although subtler and more indirect than the practice at

issue in Lee, the Duval County policy contains the same

elements of state involvement with religious expression.

EE a

The second dominant fact in Lee was that the state in

effect compelled the graduating students’ participation in a

religious exercise. See 505 U.S. at 586, 112 S. Ct. at 2655.

Coerced participation in a religious exercise is a separate

and distinct issue from that of who controls the religious

exercise. According to the Supreme Court, this coerced

participation in prayer represents the injury suffered by

* The policy in Doe did not limit the duration of the students’ speech nor

restrict it to a segment of the graduation program uniquely appropriate for,

and traditionally devoted to, prayer. See id. at 834. Unlike the Duval

County policy, nothing about the policy in Doe encouraged the student

speakers to choose to deliver a prayer. If anything, requiring a minimum of

four speakers minimizes the risk that the school administration promotes

any particular type of message through the policy.

54a

dissenting students. See Lee 505 U.S. at 594, 112 S. Ct. at

2659.

Writing about this second dominant fact, the Lee Court

stated: “The sole question presented is whether a religious

exercise may be conducted at a graduation ceremony where,

as we have found, young graduates who object are induced

to conform.” Id. at 599, 112 S. Ct. at 2661. The majority here

refuses to address that question. Instead, it holds that

whether the school administration coerces student

participation in a religious exercise “is largely determined

by the measure of state control over the message at a

graduation ceremony, rather than state control over the

ceremony itself.” The majority cites no authority for this

interpretation, which essentially reads the “second

dominant fact” out of Lee and disregards much of that

decision’s analysis.°

The majority's interpretation also ignores the

relationship between the Free Exercise and Establishment

Clauses of the First Amendment. “The Free Exercise Clause

embraces a freedom of conscience and worship,” and the

Establishment Clause is “[t]he method for protecting [that]

freedom of worship ai.d freedom of conscience in religious

° The Supreme Court did not state in Lee whether either one of the

“dominant facts” would constitute a violation of the Establishment Clause

by itself, or whether the government needs to both direct a religious exercise

and coerce participation in that religious practice. By deciding that coerced

participation only exists if the government controls the religious exercise,

the majority in this case answers the question, but in quick fashion. We

need not address the relationship between the two dominant facts, because

we conclude that both are present in the Duval County policy. It is worth

reiterating, however, that the Supreme Court identified the injury to the

student plaintiffs as the mandatory participation in a religious exercise,

without making reference to who conducted or controlled it. See Lee 505

US. at 594, 112 S. Ct. at 2659.

55a

matters.” Id. at 591, 112S. Ct. at 2657. When the

government requires an individual to participate in a

religious exercise, it impinges that individual’s freedom of

conscience and worship, even if the government is not

conducting the religious service itself.

Three factors contributed to the coercion of student

participation in prayer in Lee. First, attendance for seniors

is in effect mandatory because graduation is a significant

right of passage in our society. See id. at 595, 112 S. Ct. at

2659. Second, “[a]t a high school graduation, teachers and

principals must and do 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.” Id. at 597, 112 S. Ct. at 2660. Finally, adolescents

are susceptible to peer pressure, and the pressure to

conform “is strongest in matters of social convention.” Id.

at 593, 112 S. Ct. at 2659.

These coercive elements are as present at Duval County

graduation ceremonies under the policy at issue in this case

as they were at the Providence, Rhode Island, graduation

scrutinized in Lee. Graduation is a central life event for

teenagers in north Florida. School authorities set the dress

code and prescribe appropriate behavior for seniors. Often,

students are required to remain silent or even stand for the

ceremonies’ opening and closing messages. The Duval

County policy exacerbates peer pressure, because would-be

dissenters know that the majority of their classmates chose

the student speaker. Finally, the policy heightens the social

pressure to participate by allowing religious expression at a

formal, ceremonial stage of the graduation. The audience

remains seated and passive through much of the

graduation, including speeches by the valedictorian and

invited dignitaries, but the opening and closing call for

participation of some sort.’ According to Lee, even an

understated gesture such as standing or remaining

respectfully silent is a constitutionally significant degree of

participation. See id. at 593, 112 S. Ct. at 2658. Students

cannot be expected to express dissent in this environment,

with the obligation of polite participation and the school

authorities’ control over student decorum.

B. The Lemon Test

Lee is an obvious point of departure for evaluating the

Graduation Policy because it is the most factually similar

Supreme Court case, but it did not establish a new test for

the Establishment Clause, and the Supreme Court did not

state that the facts of Lee represent the boundary between

what is and what is not constitutional. Lemon still provides

the framework for evaluating a statute or policy's

compliance with the Establishment Clause; it is the heart of

the analysis.

Lemon requires that: (1) the Duval County school

system have a secular purpose for adopting the policy; (2)

the policy’s primary effect neither advances nor inhibits

religion; and (3) the policy does not result in excessive

government entanglement with religion. See Lemon v.

Kurtzman, 403 U.S. 602, 612-13, 91 S. Ct. 2105, 2111 (1971).

The Duval County policy would violate the Establishment

Clause if it fails to meet even one of these criteria, see

” Duval County graduations bear out this observation. School officials

typically ask the audience to stand for the first few segments of the

ceremony, including the “Invocation” or “Inspiration” and there often is a

song calling for more substantial participation. The audience then sits for

the main body of the ceremony, which includes speeches and the

presentation of diplomas. See R2 (Memorandum of Law in Support of

Plaintiffs’ Motion for Preliminary Injunction, Exs. 4-7, 8-19, 22, 25-28, 32-33,

37-40, 42-45).

57a

482 U.S. 578, 585, 107 S. Ct. 2573, 2577

(1987), but it falls short on two grounds: the policy has no

genuine secular purpose, and its primary effect is to

advance religion.

Applying the first prong of the Lemon test, we

determine whether the challenged policy has a “clearly

secular purpose” o r “whether [the] government's actual

purpose is to ain or disapprove of religion.” Wallace v.

Jaffree, 472 U.S. 38, 56, 105 S. Ct. 2479, 2489 (1985). We must

be deferential to the government's articulation of the

purpose behind a policy, and that policy need not be

exclusively or even predominantly secular. See Edwards,

482 U.S. at 586-87, 107 S. Ct. at 2579; Wallace, 472 U.S. at 56,

105 S. Ct. at 2489. We must not, however, shirk our

responsibility of judicial review. If a policy's “pre-eminent

purpose” is religious, or if the proffered secular

justifications for the policy are insincere, then the policy

violates the Establishment Clause. See Edwards, 482 U.S. at

586-87, 107 S. Ct. at 2579; Lynch v. Donnelly, 465 U.S. 668,

690-91, 104 S. Ct. 1355, 1268-69 (1984) (O’Connor, J.,

concurring); Stone v. Graham, 449 U.S. 39, 41, 101 S. Ct. 192,

193-94 (1980); Church of Scientology Flag Serv. Org. v. City

of Clearwater, 2 F.3d 1514, 1527 (11th Cir. 1993). This is the

case with the Duval County policy. The dominant reason

for its passage was to keep prayer in graduation ceremonies;

the secular justifications embraced by the majority are at

best incidental effects of the policy.

The context surrounding the creation of the policy, the

policy’s terms, and the policy’s title all suggest its

predominantly religious purpose. The chronology of events

leading up to the graduation policy is particularly telling.

Until 1992 Duval County consistently opened and closed its

58a

schools’ graduation ceremonies with prayer. Responding to

the Lee decision in 1992, the school administration directed

that future graduations could not include prayer. The

administration then came under pressure from students and

the community to find a way to retain prayer in the

ceremonies. Before the next school year’s graduation

ceremonies, the administration created a new policy. That

policy delegated decisions about the graduation

ceremonies’ opening and closing to students while lifting

the restriction on religious expression. Finding a

predominantly religious purpose behind the new policy in

this context requires no speculation but only common sense.

Aspects of the new policy itself betray the purpose of

maximizing the chance that prayer would be included in

future graduation ceremonies without directly mimicking

the school officials’ actions proscribed by Lee. The policy

only involves the opening and closing segments of the

graduation ceremonies-the portions of the program

historically dedicated to prayer. The policy also carefully

restricts opening and closing messages to two minutes, a

short period amenable to a limited range of speech that

includes prayer. Finally, the policy dictates that decisions

about the two minute opening and closing be made by

majoritarian vote, limiting the opportunity for innovation

and variety.

Finally, there is the title of the memorandum

announcing the new policy: Graduation Prayer. The

attorney who drafted the memorandum obviously

understood the reason for the policy, but the majority of this

court chooses to ignore the evidence. Instead, it relies on

the maxim that it is improper to use a statute’s title to

inform the plain meaning of the statute’s language. In all

the cases cited by the majority, however, the courts had to

interpret the meaning of statutes in order to apply them

59a

correctly.* In this case, on the other hand, the question is

why the school administration created the policy.

Moreover, “Graduation Prayer” is not simply the name

of a bill or a title chosen during the codification process: it is

title of the memorandum announcing and explaining the

new policy to the principals who would have to administer

it. The Graduation Prayer memorandum was written at the

behest of the school Superintendent by the attorney who

crafted the policy.’ Certainly the title and text of the

memorandum could provide insight into the policy's

instrumental goals.

The memorandum begins with two paragraphs

devoted to prayers at graduation and the discord following

Lee. This analysis concludes with an explanation of the

“key to the Lee v. Wiseman [sic] decision,” and then,

“[w]ith that premise in mind,” segues into the provisions of

the new policy. The policy’s operational terms carefully

avoid mention of prayer, but the memorandum as a whole

makes clear that the choice of a title was far from

incongruous.

The majority makes much of the “plain” and “facially

neutral” language of the policy itself. Adopting the

terminology “opening or closing message” in the wake of

519, oe 67 S. Ct. 1387, 1390-91 eer 5 Nesth Ale, Sheen ec. vy,

Interstate Commerce Comm'n, 971 F.2d 661, 663-64 (11th Cir. 192);

Scarborough... Office of Fereonnel Manasesnant, 725 F'2d 801, 811-16 (11th

Cir. 1984); Rich miss ternal Revenue Serv., 250 F.2d 170,

173-75 (5th Cir. 1957).

* In sharp contrast, numerous legislators influence the choice of statutory

language, and titles are often chosen for political effect rather than to

accurately summarize a bill’s purpose or content.

60a

Lee, however, appears as subterfuge, a “sham,” see

Edwards, 482 U.S. at 587, 107 S. Ct. at 2579, given the

tradition of beginning and ending graduation with prayer.

In the words of Shakespeare: “What's in a name? That

which we call a rose / By any other name would smell as

sweet.”°

Unconvinced, the majority suggests three possible

secular purposes for the policy: First, that the policy

“afford[s] graduating students an opportunity to direct their

own graduation ceremony;” second, that it permits free

expression; and finally that the policy “allows students to

solemnize graduation.” None of these possibilities

withstands close scrutiny.

It is hard to accept that the Duval County school

administration crafted the policy to empower students, both

because the policy does so in such a constrained manner

and because there is scant evidence that the administration

was interested in promoting student leadership or

autonomy as ends in themselves. The policy does conclude

with the statement, “[t]he purpose of these guidelines is to

allow students to direct their own graduation message

without monitoring or review by school officials,” but the

majority places more significance on the statement than it

can bear." The statement expresses the “purpose” of the

'° William Shakespeare, Romeo and Juliet, act 2, sc. 2.

'! The Supreme Court looked beyond a similarly “self-serving” statement

of purpose in a Kentucky statute in Stone, 449 U.S. at 41, 101 S. Ct. at 193-94.

The statute required that the Ten Commandments be posted in each

classroom and noted the “‘secular application of the Ten Commandments’”

in their “‘adoption as the fundamental legal code of Western Civilization

and the Common Law of the United States.’” Id. at 41, 101 S. Ct. at 195

(quoting Ky. Rev. Stat. Ann. § 158.178 (Banks Baldwin 1980). Despite the

6la

policy in terms of what it does, rather than why it was

created. And as mentioned above, the memorandum begins

with two paragraphs about school prayer and instructs the

reader to consider the terms of the policy with that

discussion in mind. The sentence about student direction,

without any accompanying elaboration, appears “tacked

on” to the end of the memorandum.

This secular purpose inserted in the text might still be

credible if there were any other indication that the

administration had been considering the benefits of

expanded student speech and self-governance before the

intense interest in graduation prayer arose following Lee.

Although the record is replete with evidence that students

and community members pressed school officials to retain

prayer in the graduation ceremonies, however, there is no

evidence that officials were promoting, or that students

were demanding, a larger role planning the graduation

program and more student speech generally.”

Finally, the Duval County policy enhances student

control over the graduation ceremony in only the most

limited sense. The senior class cannot choose to have a

elucidation of a legitimate educational rationale in the statute, the Court

held that “[t]he pre-eminent purpose for posting the Ten Commandinents

on schoolroom walls is plainly religious in nature.” Id, at 41, 101 S. Ct. at

194.

'2 1 do not mean to suggest that the school administration was hostile to

student involvement in planning graduation ceremonies. Historically the

student role in planning graduation varied from school to school. Student

leadership was quite strong at some schools, but school officials always had

ultimate authority over the graduation program. There simply is no

evidence that interest in, or pressure for, student autonomy was on the rise

in 1992 and 1993.

62a

group deliver a message, and it cannot select a non-student

speaker. The speaker's options are limited, because the

policy restricts the message to two minutes at the beginning

or end of the ceremony. Interestingly, the policy does not

ensure that other student presentations during the

graduation will be uncensored. In fact, principals often

review valedictory speeches in Duval County.” Although

the school administration can promote student expression

incrementally, the graduation policy's stringent constraints

and the choice to relinquish to students only the planning

for the opening and closing suggest that student autonomy

and free expression were not the policy's true purposes.

The majority also suggests that solemnizing graduation

ceremonies may have been the purpose behind the Duval

County policy, but the policy actually reduces the potential

for solemnization. Until the policy went into effect, an

opening and closing prayer at every graduation ceremony

served a solemnizing function. Now, however, the opening

and closing are optional, and for each graduation, students

have to choose anew whether to even have a message.

Moreover, the majority is quick to emphasize that the policy

leaves the content of the opening and closing messages,

should the senior class decide to have them, unfettered. If

the choice of messages is as wide-ranging as the majority

would have us believe, however, many of the possibilities

would serve no solemnizing function.” With its new policy,

'? See R 1st Supp. Exs. (Reynolds Dep. at 21; Epting Dep. at 26-27; Lockett

Dep. at 11).

” Uninfluenced by the terms of the policy or the expectations of their

teachers and colleagues, student speakers could take the opportunity to

criticize the principal, teachers, or cliquish classmates, Even an innocent but

unfocused or poorly delivered speech would not solemnize the event. A

proselytizing prayer would prove divisive rather than solemnizing as well.

63a

Dival County moved from having a solemnizing opening

and closing message at every graduation ceremony to the

possibility of having, if not a prayer, either no message or a

message that undermines the solemnity of the occasion.

Moreover, solemnization is not a valid purpose for a

policy purportedly giving students unfettered control over

the content of a speech. As already noted, prayer is one of a

limited subset of messages with a solemnizing effect. To the

extent the school administration wanted and expected

students to opt for solemnizing messages, it is likely the

administration had prayer in mind. This is an illegitimate

purpose under Lemon; public officials cannot encourage

prayer, because even if prayer has secondary secular

benefits, the promotion of prayer is first and foremost the

promotion of religion. See

ACLU of N.J. v. Black Horse

Pike Reg’] Bd. of Educ, 84 F.3d 1471, 1485 (3d Cir. 1996);

Harris v. Joint Sch. Dist. No. 241, 41 F.3d 447, 458 (9th Cir.

1994), vacated with directions to dismiss as moot, 515 U.S.

1154, 115 S. Ct. 2604 (1995);

Dist, 862 F.2d 824, 829-30 (11th Cir. 1989).

permitting students to deliver sectarian and proselytizing prayers can

possibly be interpreted as furthering a solemnizing effect.”). The majority

cites three cases for the proposition that prayer can serve a legitimate

solemnizing function, but all three recognized that they were considering

only non-sectarian, non- speech. See Chaudhuri v, Tennessee,

130 F 3d 232, 236-37 (6th Cir. 1997) cert. denied 523 U.S. 1024, 118S. Ct. 1308

(1998); Tanford v. Brand, 104 F.3d 982, 983, 986 (7th Cir. 1997); lones, 977

F.2d at 964-66. The majority also cites Justice O’Connor’s concurrence in

Lynch for the more general proposition that religious expression can

solemnize public occasions, but Justice O’Connor’s statement is qualified.

“[G]overnment acknowledgments of religion,” she writes, can “serve... the

legitimate secular purpose{] of solemnizing public occasions,” but her

examples are all practices that “are not understood as conveying

approval of particular religious beliefs.” Lynch 465 US. at 693,

104 S. Ct. at 1369-70.

64a

Finally, by the majority’s own logic, solemnization

should not be considered as a possible purpose for the

graduation policy. The majority chides Appellants for

looking beyond the text of the Graduation Prayer

memorandum, but solemnization appears nowhere in the

policy’s terms or the memorandum’s prefatory paragraphs.

Hypothetical justifications for a state law or action are not

enough to satisfy the Lemon test; courts must look for the

actual purpose. See Wallace, 472 US. at 56, 105 S. Ct. at

2489. In this case, that search leads only to the promotion of

religion.

2. The Pri f oli

Advance Religion

A governmental policy fails the second prong of the -

Lemon analysis if it has the primary effect of endorsing

religion. See

Pittsburgh Chapter, 492 U.S. 573, 592-94, 109 S. Ct. 3086,

3100-01 (1989). Endorsement occurs if a reasonable observer

would believe the policy conveys a message favoring (or

disfavoring) religion. See id., 492 U.S. at 597, 109 S. Ct. at

3103 (Blackmun & Stevens, JJ.); id. at 691-92, 109 S. Ct. at

3121 (O’Connor, Brennan, & Stevens, JJ., concurring); School

Dist. of Grand Rapids v —— 473 U.S. 373, 390, 105 S. Ct.

3216, 3226 (1985), n Agostini v.

Felton, 521 U.S. 203, —e 117 S. Ct. 1997, 2016 (1997); Lynch,

465 US. at 691-92, 104 S. Ct. at 1369 (O’Connor, J.,

concurring). Such a conclusion is possible either if a policy

tangibly benefits a religious cause more than any other, or if

the observer would believe that a desire to promote religion

led to the policy.

The majority discounts the possibility that a facially

neutral policy could have the primary effect of advancing

religion. One must look beyond the text of a policy,

however, to determine its likely effects. The analysis

65a

“requires courts to examine the history, language, and

administration of a particular statute to determine whether

it operates as an endorsement of religion.” Wallace, 472

US. at 74, 105 S. Ct. at 2499 (O’Connor, J., concurring in the

judgment); see also Allegheny, 492 U.S. at 629, 109 S. Ct. at

3120 (O’Connor, Brennan, & Stevens, JJ., concurring in part

and concurring in the judgment). This analysis reveals that

both the policy itself, viewed in terms of the events leading

up to its creation, and the prayers that result from it convey

a message of religious endorsement.

Seen in context, the Duval County policy betrays a

preference for religious expression despite the seeming

neutrality of its terms. It is worth repeating a few details

from the analysis of the policy’s purpose. The chronology

of events leading to the policy and the public pressure to

keep prayer as part of the high school graduation

ceremonies may not be conclusive evidence, but they inform

the reasonable observer’s understanding of the policy’s

purpose. The title of the policy itself, the bulk of the

memorandum announcing it, and the fact that the policy

only applies to the portion of the graduation ceremony

traditionally reserved for prayer are even more telling.

Together, these details have the effect of communicating to

the reasonable observer that the Duval County authorities

favored the inclusion of prayer in future graduation

ceremonies.

The interpretation of the school principals reinforces

_ this conclusion. The principals were the first recipients of

the Graduation Prayer memorandum, the policy’s first

“reasonable observers.” The principals were responsible for

implementing the new policy; how they did so reveals their

understanding of its meaning and purpose. In 1993 many

principals allowed direct votes on whether to have a prayer

66a

during the graduation ceremony.” In other schools,

officials directly asked the senior class chaplain to deliver a

message during graduation.” Since 1993 it has been

common for the official graduation programs to list the

student speaker as Chaplain, and to use the religious terms

“invocation” and “benediction” instead of “opening” and

“closing message.”"” These programs are printed before the

graduation ceremony without the benefit of reviewing the

student's speech.

Beyond an observer's conclusions about the school

administration’s motives lies the policy's tangible result: it

leads to more prayer at public events. Before the policy

took effect, the Superintendent had responded to Lee by

proscribing the traditional opening and closing graduation

prayers. The new policy provided a mechanism to

reestablish prayer in those portions of the ceremony. In the

policy’s first year, ten out of seventeen schools opted for

some sort of prayer, meaning that it led to more prayer than

all other forms of speech combined. And the inherent effect

'S See R 1st Supp. Exs. (Stone Dep. at 16; Johnson Dep. at 8; Hite Dep. at 18-

19).

23 See R 1st Supp. Exs. (Lockett Dep. at 11; Paulk Dep. at 20).

'7 Plaintiffs submitted copies of 45 graduation programs to the district court.

Almost all use the terms “invocation” and “benediction,” and most list the

student speaker as the class chaplain. See R2 (Memorandum of Law in

Support of Plaintiffs’ Motion for Preliminary Injunction, Exs. 1, 2, 3, 4, 5, 6,

7,8, 9,10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 22, 25, 26, 27, 28, 30, 31, 32, 33, 34,

35, 36, 37, 38, 39, 40, 43, 44, 45).

67a

of prayer is to advance the religious beliefs of the speaker.”

See Black Horse Pike, 84 F.3d at 1487; Harris, 41 F.3d at 458.

The fact that prayers delivered as a result of the policy occur

at a stage of the graduation ceremony carrying the strongest

'8 The majority argues that the student speaker's speech is private, and thus

cannot violate Lemon's second prong. I believe the opening and closing

messages can be attributed to the State, but the disagreement is not

dispositive here. The Fifth Circuit addressed this point cogently in Santa Fe,

holding that, “The mere fact that prayers are student-led or student-

initiated, or both, does not automatically ensure that the prayers donot

transgress Lemon's second prong. . . . [W]hen the school ‘permits’ sectarian

and proselytizing prayers . . . such ‘permission’ undoubtedly conveys a

message not only that the government endorses religion, but that it endorses

a particular form of religion.” 168 F.3d at 817-18. In a different context, the

Seventh Circuit has also held that private speech can violate Lemon's

primary effects prong if private expression is associated with a government-

controlled forum. See Freedom From Religion Found. v. City of Marshfield,

~— F.3d —, No. 99-1639, (7th Cir. Feb. 4, 2000) (statue of Jesus on private land

deemed part of surrounding public park for Establishment Clause

purposes). The next section, focusing on the public forum doctrine,

discusses this issue more thoroughly.

In support of its conclusion, the majority cites a number of Supreme

Court cases for the proposition that “ facially neutral programs [permitting]

individuals to support religion through their own private choices” are

constitutional. Those cases all involve the extension of a public benefit to

families with children in private schools factual scenarios very different

from Duval’s graduation policy. Moreover, the programs at issue in those

cases were constitutional because they did not influence families’ choice to

send their children to religious schools. See Agostini v. Felton, 521 U.S. 203,

230-32, 1175. Ct. 1997, 2014 (1997); Witters v. Washington Dep't of Servs. for

the Blind, 474 U.S. 481, 488, 106 S. Ct. 748, 752 (1986); Mueller v. Allen, 463

US. 388, 398-99, 103 S. Ct. 3062, 3068-69 (1983). This was because the

programs distributed their benefits neutrally and comprehensively. A

related point is that every family was able to make its own choice about its

children’s schooling under the government programs. Both of these

attributes are missing in our case. The constraints of the Duval County

policy influence the decisions about the graduation message, pushing

students to opt for prayer. Furthermore, there is only one graduation

ceremony. “Each student is not allowed to have the graduation she wants.

Instead, the decision is made by a majority of the senior class and imposed

ona minority.” Harris, 41 F.3d at 456.

68a

imprint of the state further exacerbates this impermissible

effect.

C. The Public Forum Doctrine

Without deciding whether Duval County graduation

ceremonies are public fora, the majority suggests that the

public forum doctrine supports the constitutionality of the

policy at issue in this case. I reject the analogy. According

to the majority, the government does not control a private

speaker's speech in a public forum, and private speech

cannot convey a message of state endorsement. This may

be an accurate statement of the law,”’ but it is of little use in

this case, because Duval County’s graduation ceremonies

have none of the public forum’s characteristics. In Lee v.

Weisman, the Supreme Court noted that school authorities

maintain close control over the program and speeches at

'9 In fact, five Justices have demonstrated an openness to the possibility that

private speech in a public forum could violate the Establishment Clause. See

Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 772, 115 S.

Ct. 2440, 2451 (1995) (O’Connor, Souter, & Breyer, JJ., concurring in result);

id. at 807, 115 S Ct. at 2469. (Stevens, J., dissenting); id. at 817-18, 115 S. Ct.

at 2474-75 (Ginsburg, J., dissenting). Only a plurality of the Court, in an

opinion written by Justice Scalia, took the opposite view. See id. at 770, 115

S. Ct. at 2450. Even the Scalia plurality acknowledged that the government

could unconstitutionally manipulate an ostensibly public forum to favor

religious speech. See id. at 766, 115 S. Ct. at 2449.

The Seventh Circuit reached this same conclusion, determining that

a majority of Justices had rejected a “per se” approach to Establishment

Clause claims involving private speech in a public forum. See Freedom

From Religion Found. The Seventh Circuit went on to hold that a city’s sale

of land with a religious statue violated the Establishment Clause even under

the Scalia plurality’s approach because it in effect granted preferential access

to a public forum-the park surrounding the statue. See id. at *8.

69a

graduation ceremonies.” 505 U.S. 577, 597, 112 S. Ct. 2649,

2660 (1992). This assumption is understandable, because

graduation ceremonies have never been considered public

fora. See ACLU of N.J. v. Black Horse Pike Reg’] Bd. of

Educ., 84 F.3d 1471, 1478 (3d Cir. 1996); Jones v. Clear Creek

Indep. Sch. Dist., 930 F.2d 416, 418 (5th Cir. 1991), vacated

on other grounds, 505 U.S. 1215, 112 S. Ct. 3020 (1992); Doe

v. Madison Sch. Dist. No. 321, 147 F.3d 832, 838 (9th Cir.

1998), vacated as moot, 177 F.3d 789 (9th Cir. 1999) (en

banc).

Public fora are places permitting coy access for the

expression of diverse views. See CP

Defense & Educ. Fund, Inc., 473 U.S. 788, 802, 105 S. Ct.

3439, 3449 (1985); v.

Educators’ Ass‘n, 460 U.S. 37, 45, 103 S. Ct. 948, 954-55

(1983). See, e.g., Capitol Square Review & Advisory Bd. v.

Pinette, 515 U.S. 753, 757-58, 115 S. Ct. 2440, 2444 (1995).

The “marketplace of ideas” governs in public fora, which

serve an important role both in facilitating the exchange of

viewpoints and in providing a safe venue for new and

marginalized ideas.

Duval County certainly did not create a public forum

by allowing a single student to deliver an uncensored

opening or closing message. An essential characteristic of

public fora is that they permit extensive public

participation, or at least general access to the relevant class

of potential speakers. See Arkansas Educ. Television

Comm’‘n v. Forbes, 523 U.S. 666, 118 S. Ct. 1633, 1641-43

20 In Duval County for example, school officials often review the

valedictorian’s speech, and they plan or approve the entire graduation

program. See R 1st Supp. Exs. (Reynolds Dep. at 21; Epting Dep. at 26-27;

Lockett Dep. at 11) (review of valedictory speeches); id. (Epting Dep. at 28-

29; Reynolds Dep. at 39; Stone Dep. at 9-10). The graduation policy allows

these practices to continue.

70a

(1998); Cornelius, 473 U.S. at 802-04, 105 S. Ct. at 3449-50;

: ‘n, 460 US. at 47, 103 S. Ct. at 956; Greer v.

Spock, 424 U.S. 828, 838 n.10, 96 S. Ct. 1211, 1217 n.10 (1976).

The majority cites a number of cases permitting religious

groups to use school facilities or funds, or public parks, but

their holdings depended on the fact that use of the fora by a

“broad spectrum” of groups eliminated any potential

message of endorsement or preference for religion.” See

r Vi Va., 515

U.S. 819, 839-42, 115 S. Ct. 2510, 2521-23 (1995); Capitol

Square, 515 U.S. at 762-63, 115 S. Ct. at 2447; Board of Educ. :

of the Westside Community Sch. v. Mergens, 496 U.S. 226,

|

:

252, 110 S. Ct. 2356, 2373 (1990) (O’Connor, J., plurality

opinion); Widmar v. Vincent, 454 U.S. 263, 274, 102 S. Ct.

269, 277 (1981).

Duval County, however, has implemented no “open

microphone” policy at its graduation ceremonies. The

graduation policy permits only one speaker at the opening

and closing, so there can be no diversity of views

communicated in the messages. Selecting speakers through

a majority vote also runs counter to the notion of “general

access” necessary for a public forum and limits the

possibility that the resulting speech will offer a fresh

perspective to the audience. When the student speaker

2! Furthermore, none involved speech at a government-sponsored and

controlled event. The possibility that someone will conclude that the state

is endorsing the content of a speech is much lower when the government

allows an organization to use a classroom after school hours than when the

government organizes a presentation and invites an audience.

students could organize a private prayer meeting on school grounds before

the official graduation ceremony, but that is not the issue here.

71a

delivers the opening or closing message at a Duval County

graduation, she is largely preaching to the converted.”

D. Appellants’ As-Applied Claims

During the hearing for a preliminary injunction, the

district court raised the possibility of advancing the trial on

the merits pursuant to Federal Rule of Civil Procedure

65(a)(2).” in an order dated the same day, the court did so,

consolidating the trial on the merits with the preliminary

injunction hearing and entering final judgment for the

Duval County School Board. The majority claims

Appellants waived their as-applied claims by consenting to

”? Tt is true that ina public forum with open access and diverse expression,

it would be difficult for the government to manipulate speech and there is

little danger that an audience will believe the speech carries the

government's imprimatur. This insight from public forum law, however,

suggests a corollary that highlights the graduation policy’s problems: at a

non-public forum that is highly regulated by the government, there is both

an elevated danger of government control over speech and a significant risk

that the audience will associate the speech with the government.

?3 Federal Rule of Civil Procedure 65(a)(2) provides:

(2) Consolidation of Hearing With Tnal on Merits.

Before or after the commencement of the hearing of

an application for a preliminary injunction, the court

may order the trial of the action on the merits to be

advanced and consolidated with the hearing of the

application [for a preliminary injunction]. Even

when this consolidation is not ordered, any evidence

received upon an application for a preliminary

injunction which would be admissible upon the trial

on the merits becomes part of the record on the trial

and need not be repeated upon the trial. This

subdivision (a)(2) shall be so construed and applied

as to save to the parties any right they may have to

trial by jury.

72a

the consolidation. This interpretation of Rule 65(a)(2),

however, is without support in the case law or the record

from the district court.

If a party consents to a Rule 65(a)(2) consolidation, it

cannot later complain about the consequences-the limited

time to prepare and the curtailed opportunity for discovery.

See Fenstermacher v. Philadelphia Nat'l Bank, 493 F.2d 333,

337 (3d Cir. 1974). But the majority cites no case for the

proposition that advancing the trial on the merits eliminates

claims that would have benefitted from thorough discovery.

Instead, a court enters final judgment on all claims after a

Rule 65(a)(2) consolidation based on whatever limited

evidence is before it at that time.

Nothing in the district court order advancing the trial

on the merits or in transcript of the preliminary injunction

hearing suggests that the judge or the parties intended

otherwise. No one disputes that in their complaint the

Appellants pleaded facts pertaining to graduation

ceremonies between 1993 and 1997 and included an as-

applied claim.* Immediately after broaching the possibility

of a Rule 65(a)(2) consolidation at the preliminary injunction

hearing, the district judge acknowledged that Appellants

had a claim for damages.” At no time during the hearing

24 See R1, Tab 1 (Verified Cmplaint $f 24, 30, & at p.14) (making factual

allegations about graduation ceremonies between 1993 and 1997, raising an

as-applied Establishment Clause claim, and praying for damages on behalf

of students who graduated after 1993).

*> The dialogue went as follows:

THE COURT: All right. The next question is why shouldn’t I, under

Rule 65(a)(2) of the Federal Rules of Civil Procedure, order that the

consideration of this case on its merits be advanced to this stage

73a

did the judge suggest he was dismissing the as-applied

claims as waived.

In its order advancing the trial on the merits, the district

court directed the Clerk to enter final judgment for the

Defendants without distinguishing between the facial and

as-applied claims.” The order made scant reference to the

facts of the case, and the assertion in the order that

Appellants’ counsel “stipulated that the operative facts

remain[ed] unchanged”” since 1994 is unsupported by the

record. In fact, during the preliminary injunction hearing

the Appellants’ counsel made substantial reference to the

evidentiary exhibits already filed with the court and

expressed the need for further discovery.” The order

focused on whether the law had changed since 1994, when

the same district judge upheld the constitutionality of the

procedurally and decide the case and send it on to the Court of

Appeals?

MR. SHEPPARD: I think the Court certainly has that discretion. I think

that it may be-well, I've said what I said.

THE COURT: Well, you have a damage claim. I understand that.

MR.SHEPPARD: Yes, sir. We would want to take some discovery with

regard to that, would be my view.

See R1, Tab 30, at 29 (Transcript of Hearing on Plaintiffs’ Motion for

Preliminary Injunction).

26 R1, Tab 27 at 3-4.

” Id, at 2.

8 coe R1, Tab 30, at 14-16, 29 (Transcript of Hearing on Plaintiffs’ Motion for

Preliminary Injunction).

74a

graduation policy in an earlier lawsuit, see Adler v. Duval

County Sch. Bd., 851 F. Supp. 446 (M.D. Fla. 1994), and the

court concluded that it had not. Given its interpretation of

Establishment Clause and Free Speech jurisprudence, the

details of the graduation ceremonies in Duval County

seemed unimportant.

Appellants did not waive their as-applied challenge to

the graduation policy; the district court entered judgment

for the Appellees on that claim. This may or may not have

been the correct disposition, because the district court did

not have a thorough record of the policy’s application.

There is a difference between having a thin record,

however, and having no evidence at all. Appellants filed

dozens of graduation programs from the years 1994-1998

and the affidavit of Karen Adler in support of their motion

for a preliminary injunction in this case,” and the district

court also took judicial notice of the record from the earlier

case concerning the Duval County policy.” The record

includes the transcript of sectarian prayers delivered at

graduation ceremonies as well as official programs that

contained printed prayers, referred to the “student

message” as an “invocation,” and indicated that ministers

have continued to deliver prayers at some Duval County

graduations long after Lee.” In fact, Appellants maintain

- See R2 (Memorandum of Law in Support of Plaintiffs’ Motion for

Preliminary Injunction, with 58 exhibits); R1, Tab 12 (Adler Aff.).

© R1, Tab 26 (Order on Various Motions).

31 See R2 (Memorandum of Law in Support of Plaintiffs’ Motion for

Preliminary Injunction, Exs. 4, 5, & 13 (religious expression printed in

official program); 1, 2, 3, 4, 5, 6,7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 22,

75a

that, although they would welcome the opportunity for

more discovery, the record supports a reversal in their favor

on all claims. :

The procedural posture of this case is awkward at

best. It is understandable that both the district court and

this court would want to focus, without complications, on

the important question of the graduation policy’s facial

_constitutionality. It is not right, however, for the as-applied

claim of Duval County students to disappear without a

trace.

Conclusion

Duval County has not adopted a blanket approach of

neutrality toward religion or eliminated school sponsorship

and control over graduation ceremonies. Rather, the policy

at issue in this case evinces a desire to maintain the

graduation ceremony’s traditional invocation and

benediction in the wake of Lee. The policy does not

explicitly mention religion and does not require any speech

at all, but its terms nonetheless promote religious

expression. To be more specific, the policy encourages the

delivery of a prayer during a stage of the graduation

ceremony when the content seems most “official” and when

officials’ control over audience participation is at its highest.

This violates the Constitution. The Establishment

Clause bars the government from encouraging religious

expression, either overtly or subtly, and from conveying a

message, intentional or not, of endorsement for religious

25, 26, 27, 28, 30; 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 43, 44, 45 (reference to

“invocation,” “benediction,” or “chaplain” in the program); 30 (minister

delivered prayer). -

76a

speech.” Moreover, the policy utilizes the vote to further its

purpose, and in so doing corrupts the most cherished of

democracy’s tools. For the government cannot delegate the

authority to do what it could not do itself, and

constitutional rights are not subject to the whims of an

electoral majority. For the foregoing reasons, I dissent from

the majority’s opinion.

” Nothing in this dissent suggests that all religious expression at a public

high school graduation would run afoul of the Establishment Clause.

Graduation ceremonies are state-sponsored events controlled by school

officials, however, and to disconnect (rather than just distance) themselves

from any religious views expressed by speakers, school officials must be

able to articulate a neutral criterion for selecting speakers unrelated to the

potentially religious content of their speech. This would ensure both that

school officials do not use their influence over the graduation program to

promote religious beliefs and that the audience does not view religious

views expressed by speakers as state sanctioned. Thus, the valedictorian

could thank God or share the role faith played in her life. Furthermore,

religious expression that is not part of the graduation program raises no

Establishment Clause concerns. Audience members could pray quietly in

their seats, and students could organize a prayer service immediately before

or after the graduation ceremony.

77a

PUBLISH

FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

05/11/99

THOMAS K. KAHN

CLERK

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 98-2709

D.C. Docket No. 98-460-Civ-J-10C

EMILY ADLER, individually; on behalf

of herself and all persons similarly situated,

SETH FINCK, individually; on behalf of

himself and all persons similarly situated, et al.,

Plaintiffs-Appellants,

versus

DUVAL COUNTY SCHOOL BOARD,

DUVAL COUNTY PUBLIC SCHOOL DISTRICT,

Defendants-Appellees.

No. 98-2720

D.C. Docket No. 98-460-Civ-J-10C

EMILY ADLER, individually; on behalf

of herself and all persons similarly situated,

SETH FINCK, individually; on behalf of

himself and all persons similarly situated, et al.,

Plaintiffs-Appellees,

versus

SUSAN BOLES, as parent & next friend of

Rebecca Boles, a minor child and on behalf

of all public school students within the Duval

County Public School District, |

Movants-Appellants.

Appeals from the United States District Court

for the Middle District of Florida

(May 11, 1999)

Before HATCHETT, Chief Judge, MARCUS, Circuit Judge,

and KRAVITCH, Senior Circuit Judge.

HATCHETT, Chief Judge:

79a

Appellants, students of various grade levels in the

Duval County, Florida school system, challenge the Duval

County school system’s policy of permitting graduating

students to vote on whether to have unrestricted student-

led messages at the beginning and closing of graduation

ceremonies as facially and as-applied violative of the

Establishment Clause. We hold that this policy facially

violates the Establishment Clause, reverse the district

court's denial of appellants’ motion for preliminary

injunction and dismissal on the merits and remand for

further proceedings consistent with this opinion.

I. BACKGROUND

Prior to 1993, public schools in Duval County,

Florida, permitted religious officials to conduct formal

prayers during graduation exercises. The Supreme Court,

however, ruled in 1992 that school-sponsored prayer at

public school graduation ceremonies violated the

Establishment Clause. Lee v. Weisman, 505 U.S. 577 (1992).

Following Lee, Duval County Public School Superintendent

Larry Zenke, at the direction of Vicky Reynolds (the school

system’s Liaison for Legal Affairs), issued a memorandum

instructing all school officials in the Duval County school

system to end the practice of having prayer at graduation

ceremonies.’

‘The memorandum (dated July 22, 1992) read, “This

memorandum is to remind you that due to the recent Supreme Court

Ruling in Lee v. Weisman, there should be no prayer, benediction, or

invocation at any graduation ceremonies.”

80a

Soon after issuing this memorandum, the school

system began receiving input from students and members

of the community regarding ways to continue prayer at

graduation ceremonies despite the Lee decision.” Reynolds

"For example, Calvin Carr, the High School Director for First

Baptist Church in Jacksonville, wrote the following letter (dated March 3,

1993) to Reynolds:

Thank you for being patient with me as I continue to

“fish” for ways to incorporate prayer in our graduation

ceremonies. I want you to know that I see it as a

tragedy to allow one year to go by without having

prayers - something that’s been done in our country for

over one hundred years.

I am enclosing a copy of a bulletin that has been

published from the Center for American Law and

Justice. In that publication they allege that the Lee vs.

Weisman case only stops school officials from inviting

clergy to give prayers. Evidently Justice Kennedy

made it clear for the majority that the court's decision

was limited to the particular facts before the court (id.

at 2655). Thus, any change from the factual situation

presented in Lee might alter the resulting opinion of

the court.

Also, it points out that one Federal Appeals Court has

already ruled that a majority of students can do what

the state acting on its own cannot do to incorporate

prayer in public school graduation ceremonies. Vicky,

I’m not trying to be a ‘stick-in-the-mud.’ I just want to

find a legal way our young people can have prayer at

their graduations. It is going to be a sad day when we

wipe them out of Duval County. Please help me to

understand these rulings in this bulletin and I greatly

‘Bila

Nini it iad aie! el at

and Superintendent Zenke met to decide whether they

could change the school system’s policy of no prayer at

graduation ceremonies because of this input and the Fifth

Circuit's decision in Jones v. Clear Creek Indep. Sch. Dist.,

977 F.2d 963 (Sth Cir. 1992), cert. denied, 508 U.S. 967 (1993).

Thereafter, Reynolds, under the supervision of

Superintendent Zenke, circulated the following

memorandum dated May 5, 1993, referenced “Graduation

Prayers,” to all high school principals in the Duval County

school system:

You will recall that after the 1992 Supreme

Court case of Lee v. Wiseman, [sic] you

received a memorandum from me instructing

that because of the decision, we would no

longer be able to have prayers at graduation

ceremonies. Most of you have recently been

bombarded with information, as have I,

regarding whether or not student initiated

and led prayers are acceptable based upon a

recent Fifth Circuit opinion. The purpose of

appreciate your concern and help.

Other evidence of this community pressure includes a memorandum that

Reynolds circulated entitled “Legal Opinion-Graduation Prayer” to

Duval County School Board Members that stated:

For about a month my office has been receiving calls

from principals asking for guidance as to the status of

prayers at graduation. Students and parents had been

informing them that there had been a change in the

status due to a recent Court case and that student-led

and initiated prayer was now acceptable.

82a

this memorandum is to give you some

guidelines on this issue if the graduating

students at your school desire to have some

type of brief opening and/or closing message

by a student.

This area of the law is far from clear at this

time, and we have been threatened by

lawsuits from both sides on the issue

depending on what action we take. The key

to the Lee v. Wiseman [sic] decision was that

the prayer given at that graduation ceremony

was directed and initiated by the school

system, which made it unconstitutional,

rather than by permissive student choice and

initiative. With that premise in mind, the

following guidelines may be of some

assistance:

L. The use of a brief opening and/or closing

message, not to exceed two minutes, at high

school graduation exercises shall rest within

the discretion of the graduating senior class;

2. The opening and/or closing message shall be

given by a student volunteer, in the

graduating senior class, chosen by the

graduating senior class as a whole;

3. If the graduating senior class chooses to use

an opening and/or closing message, the

content of that message shall be prepared by

the student volunteer and shall not be

monitored or otherwise reviewed by Duval

County School Board, its officers or

employees;

DN ee Ce TE EE a ES ae ee ee ee eT a See ee ee

The purpose of these guidelines is to allow

the students to direct their own graduation

message without monitoring or review by

school officials.

After issuance of this memorandum, the Duval

County School Board met to decide whether they could

adopt a policy allowing a “moment of silence” at

graduation ceremonies. In their discussion of the “moment

of silence” policy, the School Board members also discussed

the guidelines set forth in the Reynolds memorandum, and

the permissibility of prayer at graduation ceremonies. The

School Board voted the “moment of silence” policy down,

in part to allow the guidelines in the Reynolds

memorandum to stand, and in part based upon their

understanding of Wallace v. Jaffree, 472 U.S. 38 (1985).

> At the June 1, 1993 meeting in which the School Board

considered the “momenit of silence” policy, the School Board members

voted the policy down 4-3. The comments of those School Board

members that opposed the moment of silence, however, show that their

intention in denying a moment of silence was to permit the individual

schools to utilize the guidelines from the Reynolds memorandum.

Parker: But in good conscience I cannot vote to allow

our ‘93 graduating class to have a few minutes of silent

meditation when we all know that in the past some one

has prayed out loud to thank the Lord for the 12 great

and successful years in school during this period of

time. And now we want silence .... 1 think that our

school principals should be allowed to work out a non-

sectarian message with our student chaplains, or a

guest minister, rabbi or whatever that would be

84a

acceptable to all at this very

important time in our young people’s lives.

Buckley: If we leave it [the Reynolds memorandum] as

it is we have not told anybody to do anything or

prevented them from doing anything. And that’s what

I feel we should do. If we pass this motion as it is on

the floor we are putting ourselves into it and saying

you Shall not pray. You shall have a moment of silent

meditation and therefore we are injecting ourselves

into what is happening at graduation. And I think the

only way we can keep ourselves clear on this thing is to

keep ourselves out of what happens in this area of the

graduation ceremony.

Corwin: God is not going away. Neither is our godly

heritage for which American patriots sacrificed their

lives and fortune from the time of the American

revolution through Desert Storm. Americans who

believe this have rights, too. The free public education

system in America is based on the principles of good

citizenship. I truly believe that this Board is dedicated

to the premise that acceptable standards of conduct be

formed in our students including self respect and

respect for others regardless of race or religion. | also

believe that the democratic process in which seniors

were given the ability to choose which form of

inspirational message, if any, they wanted at their

commencem

This text is long and has been trimmed here. Open the source document for the complete record.