# Appendix — Adler v. Duval County School Board

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1470%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 801

## Text

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

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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
revi

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1470%3A2. Public record. Not legal advice.