Appendix — Adler v. Duval County School Board
Supreme Court brief2001
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Supreme Court, U.S.
F I L En
01 287 auc - 82001
No. OFFICE OF THE CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
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
(VOLUME Il)
Wm. J. Sheppard, Esquire Alan B. Morrison, Esquire
COUNSEL OFRECORD Public Citizen Litigation Group
D. Gray Thomas, Esquire 1600 20" Street, N.W.
Sheppard, White and Washington, D.C. 20009
Thomas, P.A. (202) 588-7720
215 Washington Street
Jacksonville, Florida 32202
(904) 356-9661
COUNSEL FOR PETITIONERS
August 8, 2001
TABLE OF CONTENTS
Panel Opinion of the Eleventh Circuit
Court of Appeals
dated May 11,1999 ..................
Order of the United States District Court,
Middle District of Florida,
Gated May 27,1906 ..........ciccescn-
Order of the United States District Court,
Middle District of Florida,
cS ee
Order of the Eleventh Circuit Court
of Appeals, Granting Motion for
Rehearing, dated June 3, 1999 ..........
Order of the Eleventh Circuit Court
of Appeals, Denying Petition for
Rehearing, dated April 17,2000 ........
Table 1 - Summary of Certain Exhibits
to Memorandum of law in
Support of Plaintiffs’ Motion for
Preliminary Injunction ................
Memorandum from Vicki Reynolds
to All High School Principals
Regarding Graduation Prayers,
NE I Dy BD ok Sa hice awnebassass
PUBLISH
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
5/11/99
THOMAS K. KAHN
CLERK
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 98-2709
D.C. Docket No. 98-460-Civ-J-10C
EMILY ADLER, individually; on behalf
of herself and all persons similarly situated,
SETH FINCK, individually; on behalf of
himself and all persons similarly situated, et al.,
Plaintiffs-Appellants,
versus
DUVAL COUNTY SCHOOL BOARD,
DUVAL COUNTY PUBLIC SCHOOL DISTRICT,
Defendants-Appellees.
140a
No. 98-2720
D.C. Docket No. 98-460-Civ-J-10C
EMILY ADLER, individually; on behalf
of herself and all persons similarly situated,
SETH FINCK, individually; on behalf of
himself and all persons similarly situated, et al.,
Plaintiffs-Appellees,
versus
SUSAN BOLES, as parent & next friend of
Rebecca Boles, a minor child and on behalf
of all public school students within the Duval
County Public School District,
Movants-Appellants.
Appeals from the United States District Court
for the Middle District of Florida
(May 11, 1999)
Before HATCHETT, Chief Judge, MARCUS, Circuit Judge,
and KRAVITCH, Senior Circuit Judge.
HATCHETT, Chief Judge:
es
Appellants, students of various grade levels in the
Duval County, Florida school system, challenge the Duval
County school system's policy of permitting graduating
students to vote on whether to have unrestricted student-
led messages at the beginning and closing of graduation
ceremonies as facially and as-applied violative of the
Establishment Clause. We hold that this policy facially
violates the Establishment Clause, reverse the district court's
denial of appellants’ motion for pre injunction and dismissal
on the merits and remand for further proceedings consistent
with this opinion.
I. BACKGROUND
Prior to 1993, public schools in Duval County, Florida,
permitted religious officials to conduct formal prayers
during graduation exercises. The Supreme Court, however,
ruled in 1992 that school-sponsored prayer at public school
graduation ceremonies violated the Establishment Clause.
Lee v. Weisman, 505 U.S. 577 (1992). Following Lee, Duval
County Public School Superintendent Larry Zenke, at the
direction of Vicky Reynolds (the school system’s Liaison for
Legal Affairs), issued a memorandum instructing all school
officials in the Duval County school system to end the
practice of having prayer at graduation ceremonies.’
'The memorandum (dated July 22, 1992) read, “This
memorandum is to remind you that due to the recent Supreme Court
Ruling in Lee v. Weisman, there should be no prayer, benediction, or
invocation at any graduation ceremonies.
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Soon after issuing this memorandum, the school system
began receiving input from students and members of the
community regarding ways to continue prayer at
graduation ceremonies despite the Lee decision.’ Reynolds
*For example, Calvin Carr, the High School Director for First
Baptist Church in Jacksonville, wrote the following letter (dated March 3,
1993) to Reynolds:
Thank you for being patient with me as I continue to
“fish” for ways to incorporate prayer in our graduation
ceremonies. I want you to know that I see it as a
tragedy to allow one year to go by without having
prayers - something that's been done in our country for
over one hundred years.
I am enclosing a copy of a bulletin that has been
published from the Center for American law and
justice. In that publication they allege that the Lee vs.
Weisman case only stops school officials from inviting
clergy to give prayers. Evidently Justice Kennedy
made it clear for the majority that the court's decision
was limited to the particular facts before the court (id.
at 2655). Thus, any change from the factual situation
presented in Lee might alter the resulting opinion of
the court.
Also, it points out that one Federal Appeals Court has
already ruled that a majority of students can do what
the state acting on its own cannot do to incorporate
prayer in public school graduation ceremonies. Vicky,
I'm not trying to be a ‘stick-in-the-mud.’ I just want to
find a legal way our young people can have prayer at
their graduations. It is going to-be a sad day when we
wipe them out of Duval County. Please help me to
understand these rulings in this bulletin and I greatly
appreciate your concern and help.
Other evidence of this community pressure includes a memorandum that
Reynolds circulated entitled “Legal Opinion-Graduation Prayer” to
143a
a
and Superintendent Zenke met to decide whether they
could change the school system’s policy of no prayer at
graduation ceremonies because of this input and the Fifth
Circuit's decision in Jones v. Clear Creek Indep. Sch. Dist.,
977 F.2d 963 (5th Cir. 1992), cert. denied, 508 U.S. 967 (1993).
Thereafter, Reynolds, under the supervision of
Superintendent Zenke, circulated the following
memorandum dated May 5,1993, referenced "Graduation
Prayers," to all high school principals in the Duval County
school system:
You will recall that after the 1992 Supreme Court
case of Lee v. Wiseman, [sic] you received a
memorandum from me instructing that because of
the decision, we would no longer be able to have
prayers at graduation ceremonies. Most of you
have recently been bombarded with information,
as have I regarding whether or not student
initiated and led prayers are acceptable based upon
a recent Fifth Circuit opinion. The purpose of this
memorandum is to give you some guidelines on
this issue if the graduating students at your school
Duval County School Board Members that stated:
For about a month my office has been receiving calls from
principals asking for guidance as to the status of prayers at
graduation. Students and parents had been informing them
that there had been a change m the status due to a recent Court
case and that student-led and initiated prayer was now
acceptable.
———T --oeee
l44a
desire to have some type of brief opening and/or
closing message by a student.
This area of the law is far from clear at this time, and we
have been threatened by lawsuits from both sides on the
issue depending on what action we take. The key to the Lee
yv. Wiseman [sic] decision was that the prayer given at that
graduation ceremony was directed and initiated by the
school system, which made it unconstitutional, rather 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 opening and/or closing message,
not to exceed two minutes, at high school
graduation exercises shall rest with the discretion of
the graduating senior class;
N
The opening and/or closing message shall be given
by a student volunteer, in the graduating senior
class, chosen by the graduating senior class as a
whole;
3. If the graduating senior class chooses to use an
opening and/or closing message, the content of that
message shall be prepared by the student volunteer
and shall not be monitored or otherwise reviewed
by Duval County School Board, its officers or
employees;
145a
The purpose of these guidelines is to allow
the students to direct their own graduation
message without monitoring or review by
school officials.
After issuance of this memorandum, the Duval
County School Board met to decide whether they could
adopt a policy allowing a "moment of silence" at graduation
ceremonies. In their discussion of the "moment of silence"
policy, the School Board members also discussed the
guidelines set forth in the Reynolds memorandum, and the
permissibility of prayer at graduation ceremonies. The
School Board voted the “moment of silence” policy down,
in part to allow the guidelines in the Reynolds
memorandum to stand, and in part based upon their
understanding of Wallace v. Jaffree, 472 U.S. 38 (1985).°
>At the June 1, 1993 meeting in which the School Board
considered the “moment of silence” policy, the School Board members
voted the policy down 4-3. The comments of those School Board
members that opposed the moment of silence, however, show that their
intention in denying a moment of silence was to permit the individual
schools to utilize the guidelines from the Reynolds memorandum.
Parker: But in good conscience I cannot vote to allow our '93
graduating class to have a few minutes of silent meditation
when we all know that in the past some one has prayed out
loud to thank the Lord for the 12 great and successful years in
school during this period of time. And now we want silence....
I think that our school principals should be allowed to work
out a non-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 fives.
Buckley: If we leave it [the Reynolds memorandum] as it is
146a
The School Board never voted specifically on the guidelines
set forth in the Reynolds memorandum; “that
we have not told anybody to do anything or prevented them
from doing anything. And that's what I feel we should do. ff
we pass this motion as it is on the floor we are putting
ourselves into it and saying you shall not pray. You shall have
a moment of silent meditation and therefore we are injecting
ourselves into what is happening at graduation. And I think
the only way we can keep ourselves clear on this thing is to
keep ourselves out of what happens in this area of the
graduation ceremony.
Corwin: God is not going away. Neither is our godly
heritage for which American patriots sacrificed their lives and
fortune from the time of the American revolution through
Desert Storm. Americans who believe this have rights, too.
The free public education system in America is based on the
principles of good citizenship. I truly believe that this Board is
dedicated to the premise that acceptable standards of conduct
be formed in our students including self respect and respect
for others regardless of race or religion. 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.
Jordan: In 1962, the Bible went out of the school and in 1992-
93 the bullets come in. You don't have to be a brain surgeon to
figure out that where we're going in America, black and white,
rich and poor, Hispanics, Asians, what have you, our security
is threatened. There is an old saying if you like what you're
getting, keep doing what you're doing. And how long is it
going to be before someone challenges that the class of '93 is
unconstitutional because the class of '93 is named after the
year of our Lord, 1993? Now how absurd are we going to take
these special interest groups that are fanning their particular
agenda at the expense of the best interest of this country? Mr.
Chairman, | plan to vote for the administration plan and
against the proposal that’s on the table.
147a
memorandum was left in force with the acquiescence or
tacit approval of the Board as its official policy governing
the 1993 commencement exercises.” Adler v. Duval County
Sch. Bd., 851 F. Supp. 446,449 (M.D. Fla. 1993) (Adler I).
High school principals in Duval County thereafter
began implementing the guidelines in the Reynolds
memorandum through delegating decision-making
authority to graduating senior students at each school to
determine: (1) whether they should allow student messages
at the opening and/or closing of the graduation ceremony;
and (2) who should give these messages. See Adler I, 851 F.
Supp. at 449 n.4 (describing how each individual school
delegated this decision-making authority). With regard to
the 1993 graduation ceremonies, seniors at 10 of the 17
Duval county high schools opted for messages that
constituted various forms of religious prayer. The seniors at
the remaining 7 schools opted either for no message or for
messages that were entirely secular. As the parties have not
had the opportunity to develop the record fully for
graduation ceremonies following 1993, it is unclear how
subsequent graduating classes conducted the message
portions of their graduation ceremonies.*
‘Appellants have submitted the programs from Duval County
High School graduations for years subsequent to 1993. Some of these
programs indicate that student “leaders” or “chaplains” gave
“messages,” “invocations” and “benedictions” at these ceremonies.
148a
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II. PROCEDURAL HISTORY
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 through a judgment that declared the policy
unconstitutional and enjoined the Duval County School
Board from permitting prayers at high school graduation
ceremonies, and additionally sought 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) (Adler II). The
Adler II court also held that the students waived their
damages claim on appeal. See Adler I, 112 F.3d at 1480-81.
Appellants brought the instant action in May 1998
against the Duval County school system again alleging that
the policy embodied in the Reynolds memorandum
*These “original” plaintiffs consisted of the following students:
Emily Adler, Laura Jaffa and Robin Zion. Robin Rand later joined the
action.
149a
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 from permitting, conducting or
sponsoring any religious exercises, prayer and instruction
within the Duval County Public School District including
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, advanced the case on
the merits because the action "presents precisely the same
claims predicated upon the same constitutional theories or
contentions [as Adler I]; and ... counsel stipulated that the
operative facts remain unchanged." Adler v. Duval County
Sch. Bd., No. 98-460-CIV-J-10C (M.D. Fla. May 27,1998).
The district court denied appellants' motion for preliminary
injunction and entered final judgment in favor of the Duval
County School Board, holding that the law had not evolved
in appellants’ favor and that high school graduation
ceremonies were designated, limited public fora.
*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, as mother of Rachel
Finck, planning to graduate from Stanton College Preparatory School in
1999, Aaron Finck, planning to graduate from Stanton College
Preparatory School in2000 and Duval County Public School student
Benjamin Finck; 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.
150a
Ill. ISSUE
The issue we discuss is whether the Duval County
school system’s policy of permitting graduating students to
vote to have unrestricted student-led messages at the
beginning and closing of graduation ceremonies is facially
violative of the Establishment Clause.’
IV. DISCUSSION
A. Framework of Analysis
The Establishment Clause of the First Amendment
states that "Congress shall make no law respecting an
establishment of religion. . . ." U.S. Const. Amend. I.° The
first problem that we must confront is the framework of
analysis to use in determining whether a policy that permits
students to vote on whether to have uncensored student-led
messages at public school graduations violates the
Establishment Clause. The long-established three-prong
test for analyzing Establishment Clause challenges
’ Appellants also allege that the district court abused its
discretion in consolidating the merits of their claim with the hearing on
their motion for preliminary injunction. As appellants consented to this
consolidation, we find no abuse of discretion.
’The Establishment Clause applies to the states through the
Fourteen Amendment. See Everson v. Board of Educ. of Ewing, 330 U.S.
1,8 (1947); Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). As long as
state action is present, a lack of statutory authorization does not limit the
reach of the Establishment Clause. See Jager v. Douglas County Sch.
Dist., 862 F.2d 824, 828 n.7 (11™ Cir.), cert. deriied, 490 U.S. 1090 (1989).
15la
enunciated in Lemon v. Kurtzman provides that to survive
an alleged violation of the Establishment Clause, the
challenged statute or policy must (1) have a secular
purpose; (2) have a principal or primary effect that neither
advances nor inhibits religion; and (3) not foster excessive
entanglement with religion. See 403 U.S. 602, 612-13 (1971).
In Lee v. Weisman, the Court declined to apply the Lemon
test in holding that a policy of school-sponsored prayer at
public school graduation violated the Establishment Clause,
and instead found that the following "dominant facts"
controlled their decision: (1) state officials directed the
performance of a formal religious exercise at graduation
ceremonies; and (2) even for those students who objected to
the religious exercise, their attendance and participation in
the state-sponsored religious activity “are in a fair and real
sense obligatory, though the school district does not require
attendance as a condition for receipt of the diploma.” See
Lee, 505 U.S. at 586.
Members of the Court and other commentators have
questioned the continued vitality of the Lemon test.’ In
“See, e.g., Board of Educ. of Kiryas Joel v. Grumet, 512 US. 687,
721(1994) (O'Connor, J., concurring) (“the slide away from Lemon’s
unitary approach is well under way.”); Lee, 505 U.S. at 587 ({“ we] can
decide the case without reconsidering the general constitutional
framework by which public schools’ efforts to accommodate religion are
measured. Thus, we do not accept the invitation... to reconsider our
decision in Lemon v. Kurtzman.”); Allegheny v. American Civil Liberties
Union, 492 U.S. 573, 655-56 (1989) (Kennedy, J., concurring in part and
dissenting in part) (questioning the Court's continued adherence to the
Lemon test); Wallace v. Jaffree, 472 U.S. 38,112 (1985) (Rehnquist, J.,
dissenting) (stating that the Lemon test "has no basis in the history of the
152a
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Lamb’s Chapel v. Center Moriches Sch. Dist. the Court
stated that it had not overruled Lemon. 508 U.S. 384, 395
n.7 (1993) (“we return to the reality that there is a proper
way to inter an established decision and Lemon, however
frightening it might be to some, has not been overruled.”).
Additionally, the en banc court in Chabad-Lubavitch of
Georgia v. Miller held that "although [Lemon] has been
criticized severely, it still controls our Establishment Clause
inquiry." 5 F.3d 1383, 1388 (11th Cir. 1993) (en banc); see
also Bown v. Gwinnett County Sch. Dist., 112 F.3d 1464,
1468-74 (11th Cir. 1997) (applying Lemon). Thus, we will
conduct our Establishment Clause inquiry of the Duval
County school system’s policy under both Lee and Lemon.
As the district court's final order for our review concludes
that Adler I, granting summary judgment in favor of Duval
County, remained the proper decision, we review this case
de novo. See Taylor v. Food World, Inc., 133 F.3d 1419,1422
(11th Cir. 1998). We also take note of the Court's warning
that "the constitutional rights of children...can neither be
nullified openly and directly by [the] state...nor nullified
indirectly by [it] through evasive schemes...whether
attempted ‘ingeniously or ingenuously.'" Gilmore v. City
Montgomery, 417 U.S. 556, 568 (1974) (quoting Cooper v.
Aaron, 358 U.S. 1, 17 (1958)).
3 amendment it seeks to interpret, is difficult to apply and yields’
unprincipled results."); Kent Greenwald, Quo Vadis: The Status and
Prospects of "Tests" Under the Religion Clauses, 1995 Sup. Ct Rev. 323,
361 (1996) (“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
abandoned Lemon.”).
153a
B. Lee v. Weisman
In Lee v. Weisman, the Court analyzed the policy of the
public school system in Providence, Rhode Island, that
permitted school principals to invite members of the clergy
to offer invocation and benediction prayers at formal
graduation ceremonies for middle and high schools. See
Lee, 505 U.S. at 580. In particular, the principal at Nathan
Bishop Middle School invited a rabbi to offer the invocation
and benediction at the school's graduation ceremony in
1989. The principal provided the rabbi with a pamphlet
entitled “Guidelines for Civic Occasions” that the National
Conference of Christians and Jews had prepared and
advised the rabbi that the prayer should be nonsectarian.
See Lee, 505 U.S. at 581. The Court found that the school
held the graduation on its premises, the students “enter as a
group in a processional, subject to the direction of teachers
and school officials, and sit together, apart from their
families" and that the students "stood for the Pledge of
Allegiance and remained standing during the rabbi's
prayers." Lee, 505 U.S. at 583.
The Court ruled that this policy of permitting prayer at
public school graduation ceremonies was
unconstitutional under the Establishment Clause, stating:
These dominant facts mark and control the
confines of our decision: State officials direct the
performance of a formal religious exercise at
promotional and graduation ceremonies for
154a
secondary schools. Even for those students who
object to the religious exercise, their attendance and
participation in the state-sponsored religious
activity are in a fair and real sense obligatory,
though the school district does not require
attendance as a condition for receipt of the
diploma.
Lee, 505 U.S. at 586. The high school principal's
involvement in composing and directing a formal prayer
exercise led the Court to hold the prayer “bore the imprint
of the state” and to conclude that the state's involvement in
the prayer created a "state-sponsored and state-directed
religious exercise in a school." Lee, 505 U.S. at 587, 590.
Thus, for purposes of our analysis under Lee we shall
examine: (1) the state's control of the graduation
ceremonies; and (2) the student's coerced participation in
the graduation ceremonies.
1. State Control
The overriding issue in this case is whether the Duval
County school system's policy, which allows graduating
students to vote on the decision whether to have
unrestricted opening and dosing messages that students
deliver at graduation ceremonies.,effectively dissociates any
prayer that may occur at the graduation ceremonies from
the state's control. Although this case is distinguishable
from Lee, where high school principals chose a member of
the clergy to deliver a prayer, the fact that the entanglement
155a
is less obvious or intrusive does not save the school
system's policy from a facial violation of the Establishment
Clause.'” Our review of Lee and cases from other circuits
leads us to the conclusion that the delegation of the decision
regarding a "prayer'or "message" to the vote of graduating
students does not erase the imprint of the state from
graduation prayer. Further, the Duval County school
system developed this policy as an attempt to circumvent
Lee and continue the practice of prayer, and to permit
sectarian and proselytizing prayer, at graduation
ceremonies.
The Duval County school system exerted tremendous
control over the graduation ceremonies, in that the
individual schools and the School Board: rented the
facilities for the graduation; told the graduating students
what they should wear; decided when the graduating
students and audience could sit and stand; decided the
sequence of events at the graduation; and designed and
printed the program for the ceremonies. As the Lee Court
observed, "[a]t a high school graduation, teachers and
“In Engel v. Vitale, the Court spoke of less direct state control
‘or Establishment Clause purposes:
The Establishment Clause, unlike the Free Exercise Clause,
does not depend upon any showing of direct governmental
compulsion and is violated by the enactment of laws which
establish an official religion whether those laws operate
directly to coerce nonobserving individuals or not.
370 U.S. 421,430 (1962).
156a
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." Lee, 505 U.S. at 597. The individual schools'
decisions not to censor the messages that the elected
students gave at the beginning and closing of the
graduation ceremonies fails to erase the overwhelming
control that the schools exerted over the remainder of the
graduation ceremony. In fact, students decided whether to
have a message at graduation and who to deliver that
message "only because school officials agreed to let them
decide that one question." American Civil Liberties Union.
of New Jersey v. Black Horse Pike Reg’| Bd. of Educ., 84
F.3d 1471, 1479 (3d Cir. 1995) (en banc.).
The Ninth Circuit in Doe v. Madison Sch. Dist No. 321
analyzed a school district's policy that permitted a school to
invite four students, according to their academic class
standing, to speak at their graduation ceremony, with the
school administration barred from editing or censoring the
students’ remarks. See 147 F.3d 832, 834 (9th Cir. 1998),
withdrawn and reh’g granted, 165 F.3d 1265 (9th Cir. 1999).
The Doe court held that the policy was distinguishable from
Lee:
First, students - not clergy - deliver the
presentations. Second, these student speakers are
selected by academic performance, a purely neutral
and secular criterion. Third, once chosen, these
157a
individual students have autonomy over content;
the school does not require the recitation of a
prayer, but rather leaves it up to the student
whether to deliver “an address, poem, reading,
song, musical presentation, prayer, or any other
pronouncement.”
Doe, 147 F.3d at 835. The Doe court took note of Justice
Souter's concurring opinion in Lee that two other Justices
had joined, which stated:
If the State had chosen its graduation day speakers
according to wholly secular criteria, and if one of
those speakers (not a state actor) had individually
chosen to deliver religious message, it would have
been harder to attribute an endorsement of religion
to the State.
Doe, 147 F.3d at 835 (quoting Lee, 505 US. at 630 n.8
(Souter, J., concurring)). The court held that this policy
survived Lee for "when a state uses a secular criteria for
selecting graduating speakers and then permits the speaker
to decide for herself what to say, the speech does not bear
the imprimatur of the State." Doe, 147 F.3d at 836.
We find Doe to be distinguishable on two points. The
Doe court relied on the neutral selection of student speakers
on the basis of their academic standing and the schools
policy to permit those speakers to make a private choice
about what to say. See Doe, 147 F.3d at 835 n.5
158a
een
ae
(emphasizing the private character of any decision to pray
or speak on religious topics through the graduation
program’s printed disclaimer). This reasoning merely
recognizes what the Court has made clear: “there is a crucial
difference between government speech endorsing religion,
which the Establishment Clause forbids, and private speech
endorsing religion, which the Free Speech and Free Exercise
Clauses protect.” Board of Educ. of Westside Community
Sch v. Mergens, 496 U.S. 226, 250 (1990) (plurality opinion).
What the Doe court did not decide, however, is the
following question:
Can school boards allow students to decide by
majority vote to have religious exercises at
graduation? Such practice, as one commentator
explained, creates a "danger that a majority will
bring intimidating pressures to bear in favor of a
particular religion," a danger that is not present
when a school chooses a speaker through a neutral
method and allows her to speak freely.
Doe, 147 F.3d at 836 n.7 (quoting Recent Case, 110 Harv. L.
Rev. 781, 783 (1997)) (internal citations omitted). The Duval
County policy permits graduating students to decide
through majority / plurality vote whether a student
volunteer shall give a message. Another distinguishing
point is that the Duval County school system’s policy
restricts these messages to no longer than two minutes at
the beginning and closing of the graduation ceremony. The
Doe policy does not reveal the sequence in which the four
159a
speakers spoke, but indicates that each of the four speakers
spoke under the same circumstances. See Doe v. Madison
Sch. Dist. No. 321, 7 F. Supp.2d 1110, 1112 (D. Idaho 1997),
aff'd, 147 F.3d 832 (9th Cir. 1998). The Duval County school
system's policy thus exerts more control over the student
speakers.
The Third Circuit en banc in Black Horse Pike
considered a policy that permitted students to vote on the
direct question of whether to have prayer at their
graduation ceremonies, and held that such a policy violated
the Establishment Clause. 84 F.3d at 1477-88." The Black
Horse Pike court took particular offense to the requirement
‘to have us recognize a right in that plurality to [permit
verbal prayer at graduation ceremonies], and ignore the
right of others to worship in a different manner, or in no
mariner at all." Black Horse Pike, 84 F.3d at 1477. Instead,
the Black Horse Pike court held that “[a]n permissible
practice can not be transformed into a constitutionally
"The policy, in pertinent part, allowed for prayer under the
following conditions:
1. The Board of Education, administration and staff of the
schools shall not endorse, organize or in any way promote
prayers at school functions.
2. In the spirit of protected speech, the pupils in attendance
must choose to have prayer conducted. Such prayer must be
performed by a student volunteer and may not be conducted
by a member of the clergy or staff.
Black Horse Pike, 84 F.3d at 1475.
160a
acceptable one by putting a democratic process to an
improper use." Black Horse Pike, 84 F.3d at 1477; see also
Board of Educ. of Kiryas Joel, 512 U.S. at 698-700 (holding
that the state cannot transform a practice that tends to
establish religion into a secular one through delegating
some aspect of the practice to nongovernmental actors);
Harris v. Joint Sch. Dist. No. 241, 41 F.3d 447,455 (9th Cir.
1994) ("elected officials cannot absolve themselves of a
constitutional duty by delegating their responsibilities to a
nongovernmental entity."), vacated as moot, 115 S. Ct. 2604
(1995). As the Lee court stated, "[w]hile in some societies
the wishes of the majority might prevail, the Establishment
Clause of the First Amendment is addressed to this
contingency and rejects the balance urged upon us." 505
USS. at 596.
Although the policy that the Black Horse Pike court
analyzed is distinguishable because the students voted on
the direct question of prayer, its analysis of the policy's
attempt to dissociate prayer from the state's imprint is
persuasive. When we analyze the Duval County school
system’s policy, we find evidence of the policy's intent to
permit prayer: (1) Reynolds and Superintendent Zenke
originally instructed all schools to stop directing prayer at
graduation ceremonies under Lee and devised the current
policy after pressure to develop a way to circumvent Lee's
prohibition of school-sponsored prayer at graduation
ceremonies; (2) they entitled the memorandum embodying
the policy “Graduation Prayers” ; (3) the School Board voted
down a moment of silence to permit these guidelines to
l6la
remain in place; and (4) unlike a valedictory address, a two-
minute “message” at the beginning or end of a graduation
ceremony is more likely to result in prayer.” Thus, we find
that the school system believed it could give a “wink and a
nod" to controlling Establishment Clause jurisprudence
through attempting to delegate to the majority / plurality
vote of students what it could not do on its own - permit
and sponsor sectarian and proselytizing prayer at
graduation ceremonies. The Establishment Clause simply
does not allow this. As the Court stated in West Virginia
State Board of Educ. v. Barnette,
The very purpose of a Bill of Rights was to
withdraw certain subjects from the vicissitudes of
political controversy, to place them beyond the
reach of majorities and officials and to establish
them as legal principles to be applied by the courts.
One's . . fundamental rights may not be submitted
to vote; they depend on the outcome of no election.
319 U.S. 624, 638 (1943).
We also consider these students state actors for
Establishment Clause purposes. In Evans v. Newton, the
Court held that the line between private and state action “is
The Adler I court realized that messages at the opening and
closing of a graduation ceremony would likely lead to prayer when it
stated that “[i]nvocations and benedictions have been traditional and are
therefore familiar if not expected at high school graduation ceremonies.”
Adler I, 851 F.Supp. at 453 n.9.
162a
not always easy to determine" and that "[c]onduct that is
formally 'private' may become so entwined with
governmental policies or so impregnated with a
governmental character as to become subject to the
constitutional limitations placed on state action." 382 U.S.
296, 299 (1966). The Evans Court also explained that when
the state permits private groups or individuals to exercise
governmental functions, the group or individual then must
be subject to constitutional limits. See Evans, 382 U.S. at
299; see also Burton v. Wilmington Parking Auth., 365 U.S.
715, 725 (1961) (holding that when the state is a joint
participant in the activity, the activity “cannot be
considered to have been so 'purely private’ as to fall without
the scope of the Fourteenth Amendment”); Harris, 41 F.3d
at 455 ("[w]hen the senior class is given plenary power over
a state-sponsored, state-controlled event such as a high
school graduation, it is just as constrained by the
Constitution as the state would be."). Accordingly, even the
elected student speaker's independent choice of a topic is a
choice fairly attributable to the state and, just as publically-
elected school board president could not make a “private
decision” to lead the public schools in a recitation of a
prayer every morning, neither may the senior class's elected
representative make a private decision to do the same thing
from the graduation podium. See, e.g., Berger v. Rensselaer
Cent. Sch. Corp., 982 F.2d 1160,1167 (7th Cir.) ("[iJmagine
that the Gideons came to ... schools ... every morning to lead
students in prayer. Is there any doubt that such morning
prayers would be permissible ... no matter that the prayers
were led by non-school employees?") (internal citations
omitted), cert. denied, 508 U.S. 911 (1993).
We also find the reliance of the district court and the
Duval County school system upon the Fifth Circuit's
reasoning in Jones v. Clear Creek Indep. School Dist. to be
unpersuasive. See Adler I, 851 F. Supp. at 456. The policy
in Jones is similar to the one at bar, with the primary
difference being that the Jones guidelines instructed that the
invocation and benediction "shall be nonsectarian and
nonproselytizing.” See Jones v. Clear Creek Indep. Sch.
Dist., 930 F.2d 416, 417 (5th Cir. 1991), vacated, 505 U.S. 1215
(1992). The Jones court held that the policy “does not
unconstitutionally endorse religion if it submits the decision
of graduation invocation content, if any, to the majority vote
of the senior class.” Jones, 977 F.2d at 969. The court
premised its holding on the idea that “a graduating high
school senior who participates in the decision as to whether
her graduation will include an invocation by a fellow
student volunteer will understand that any religious
references are the result of student, not government,
choice.” Jones, 977 F.2d at 969. The district court in Adler |
followed this reasoning, stating that "the participants clearly
understand that the student messages are just that student
messages that are divorced entirely from any governmental
‘The other major differences between the two policies are that:
(1) the Jones policy referred to invocations” and “benedictions,” while the
Duval County policy referred to “opening and closing messages”; and (2)
the senior class principal in Jones had the power to advise and counsel
the senior class. Jones, 930 F.2d at 417.
164a
on
or institutional sponsorship." Adler I, 851 F. Supp. at 456.
We disagree. Based on our analysis above, the state cannot
erase its control over or endorsement of prayer at a public
school graduation through delegation of one portion of the
graduation ceremony to the majority /plurality vote of
students. Further, we believe (as we shall discuss further in
the “coerced participation” factor) that a reasonable student
will not realize that student-elected sectarian and
proselytizing prayerful messages at graduation ceremonies
are divorced from state sponsorship and instead, realizing
the views to be that of the majority, will feel coerced to
participate in them.
Additionally, the Fifth Circuit clarified its
Establishment Clause jurisprudence in Doe v. Santa Fe
Indep. Sch. Dist., in which it held that a Jones graduation
policy that did not contain the limitation that invocations
and benedictions be nonsectarian and nonproselytizing
violated the Establishment Clause. See Santa Fe, 168 F.3d
806, 816 (5th Cir. 1999)."* The court held that Jones ‘did not
The Santa Fe court also held that a policy of prayer at high
school football games also violated the Establishment Clause. See Santa
Fe, 168 F.3d at 824. The graduation ceremony policy that the court
reviewed is as follows:
The board has chosen to permit the graduating senior class,
with the advice and counsel of the senior class principal or
designee, to elect by secret ballot to choose whether an
invocation and benediction shall be a part of the graduation
exercise. If so chosen, the class shall elect by secret ballot, from
a list of student volunteers, students to deliver invocations and
benedictions for the purpose of solemnizing their graduation
165a
hold that a policy is insulated from constitutional scrutiny
under the Establishment Clause merely because it permits,
rather than requires, religious speech when selected and
given by students," and that the content restrictions were
“central” to Jones's holding. Santa Fe, 168 F.3d at 815-16.
Although the Santa Fe court bypassed a formal Lee analysis,
it held that
when the school “permits” sectarian and
proselytizing prayers - which, by definition, are
designed to reflect, and even convert others to, a
particular religious viewpoint and which... do not
serve (and even run counter to) the permissible
secular purpose of solemnizing an event - such
‘permission" undoubtedly conveys a message not
only that the government endorses religion, but
that it endorses a particular form of religion.
Santa Fe, 168 F.3d at 817-18. As the Duval County
school system’s policy in fact “permits” sectarian and
proselytizing prayers, it is therefore distinguishable from
Jones and fits within Santa Fe's holding. Further, Santa Fe
holds that a school’s delegation to students the decision
whether to have some type of “message” at a graduation
ceremonies.
See Santa Fe, 168 F.3d at 811-12. The policy also had a “fallback,” which
provided that if a court enjoins the school district from enforcing the
policy, then it would utilize the nonsectarian and nonproseltyzing
limitation. See Santa Fe, 168 F.3d at 811-12.
166a
ceremony does not insulate the school from constitutional
scrutiny.
We hold that the state's control over nearly all aspects
of the graduation ceremony, and the choices of a student-
elected representative, subjects the ceremony to the limits of
the Constitution. We further hold that this policy does not
dissociate student-initiated sectarian and proselytizing
prayer at a school-controlled graduation ceremony from the
imprint of the state under Lee, and that the state's
endorsement of the prayer subjects it to a facial violation of
the Establishment Clause. Accordingly, we hold that the
control that the Duval County school system exercised is
sufficient to satisfy the state control “dominant fact” under
Lee.
2. Coerced Participation
The second “dominant fact” under Lee is an easier
issue. “It is beyond dispute that, at a minimum, the
Constitution guarantees that government may not coerce
anyone to support or participate in religion or its exercise
...." Lee 505 U.S. at 587. The Lee Court discussed coerced
participation at a graduation ceremony as follows:
The undeniable fact is that the school district's
supervision and control of a high school
graduation ceremony places public pressure, as
well as peer pressure, on attending students to
stand as a group or, at least, maintain respectful
167a
silence during the invocation and benediction.
This pressure, though subtle and indirect, can be as
real as any overt compulsion.... But forthe —
dissenter of high school age, who has a reasonable
perception that she is being forced by the State to
pray in a manner her conscience will not allow, the
injury is not less real.
Lee, 505 U.S. at 593. Because a student's attendance at his or
her graduation ceremony is "in a fair and real sense
obligatory," the Lee court held that students “had no real
alternative which would have allowed [them] to avoid the
fact or appearance of participation [in prayer].” Lee, 505
U.S. at 586, 588. Additionally, "[t]he prayer exercises ... are
especially improper because the State has in every practical
sense compelled attendance and participation in an explicit
religious exercise at an event of singular importance to
every student, one the objecting student had no real
alternative to avoid." Lee, 505 U.S. at 598.
The Duval County school system's graduation policy,
and the school’s control over the graduation ceremony,
require students to remain silent and perhaps even stand for
the duration of the message. Thus, because the school
system devised this system so that prayer could occur at
graduation ceremonies, this coerced participation violates
the Establishment Clause. The Court stated in Engel that
"[w]hen the power, prestige and financial support of
government is placed behind a particular religious belief,
the indirect pressure upon religious minorities to conform
168a
to the prevailing officially approved religion is plain."
Engel, 370 U.S. at 431. Further, because the graduation
speaker under the Duval County school system's policy
won an elective contest to speak, the audience is much more
aware that the views expressed are those of the majority
and, according to Lee the audience faces even greater
compulsion to participate. See, e.g., Black Horse Pike, 84
F.3d at 1481 ("[the First Amendment] is not a sword that can
be used to compel others to join in a religious observance at
a state sponsored event."). The Lee Court emphasized the
importance of graduation as a "once-in-a-lifetime" event and
that “[t]he Constitution forbids the State to exact religious
conformity from a student as the price of attending her own
high school graduation.” Lee, 505 U.S. at 596. Thus, we
hold that the Duval County school system's policy coerces
objecting students to participate in prayer, thereby
satisfying Lee's coerced participation "dominant fact."
C. Lemon v. Kurtzman
We next analyze the Duval County school system's
policy under the three-prong Lemon test. Under Lemon. we
must ask whether: (1) the Duval County school system had
a secular purpose for adopting the policy; (2) the policy’s
primary effect is one that neither advances nor inhibits
religion; and (3) the policy does not result in an excessive
entanglement of government with religion. See Lemon, 403
US. at 612-13. The Duval County school system’s policy
violates the Establishment Clause if it fails to meet any of
169a
these criteria. See Edwards v. Aguillard, 482 U.S. 578,585
(1987).
1. Secular Purpose
The first prong of the Lemon test requires us to
determine whether the challenged policy has a “clearly
secular purpose.” Wallace, 472 U.S. 38,56 (1985). We must
ask “whether [the] government's actual purpose is to
endorse or disapprove of religion.” Wallace, 472 U.S. at 56
(internal quotations omitted); See also Lynch v. Donnelly,
465 U.S. 668, 690-91 (1984) ("[secular purpose] is not
satisfied, however, by the mere existence of some secular
purpose, however dominated by religious purposes.);
Church of Scientology Flag Serv. Org., Inc. v. City of
Clearwater, 2 F.3d 1514,1527 (11th Cir. 1993) (“no legislative
recitation of a supposed secular purpose can blind us to an
enactment's pre-eminent purpose.”) (internal quotations
and citations omitted), cert. denied, 513 U.S. 807 (1994).
Although the policy’s purpose need not be exclusively
secular, it must be sincere and not a sham. Edwards, 482
USS. at 586-87.
The appellants presented the following evidence to
show that the Duval County school system’s policy did not
have a clearly secular purpose: (1) the Duval County school
system drafted this policy in response to community
support for prayer at graduation ceremonies and as an
attempt to "fish" for ways around Lee; (2) Reynolds entitled
the memorandum that enunciated this policy "Graduation
170a
Prayer"; and (3) the comments of the School Board members
evidence their intent that instead of a moment of silence, the
individual schools should adopt the policy to permit
graduating students to engage in prayer. In Jager v.
Douglas County Sch. Dist., this court held that a policy that
permits religious invocations at public high school football
games "by definition serve[s] religious purposes" and
therefore does not have a secular purpose. See 862 F.2d 824,
829-30 (11th Cir.), cert. denied, 490 U.S. 1090 (1989). The
Jager decision dictates that when a public school policy's
actual purpose is religious - even intrinsically religious - the
policy violates the secular purpose requirement under
Lemon. See lager, 862 F.2d at 830 (discussing cases that
conclude that “an intrinsically religious practice cannot
meet the secular purpose prong of the Lemon test”).
The district court erred in failing to follow Jager. See
Adler I, 851 F. Supp. at 452 n.8 (questioning the value of
Jager). We hold that the policy, both on its face and based
upon the history surrounding its inception, has an actual
purpose to permit prayer - including sectarian and
proselytizing prayer - at graduation ceremonies. See Santa
Fe, 168 F.3d at 816 (holding that a policy that permits
sectarian and proselytizing prayers has "a purpose which is
the antithesis of secular."). In fact, prayers were the direct
consequence of this policy, as the Duval County school
system’s 1992 policy - that directly outlawed prayer would
have banned them. See Black Horse Pike, 84 F.3d at 1479-80
(“[t]he text of [the policy] was adopted in response to Lee.
The Board's avowed purpose in reexamining its policy was
17la
to provide an option that might allow the ‘longstanding
tradition’ of graduation prayer to survive the prohibitions of
that Supreme Court decision."). Thus, the policy violates the
secular purpose requirement under Lemon. See Jaffree v.
Wallace, 705 F.2d 1526,1534 (11th Cir. 1983) ("[rjecognizing
that prayer is the quintessential religious practice implies
that no secular purpose can be satisfied."), aff'd, 472 U.S. 38
(1985).
We also take exception with the district court's
conclusion that graduation ceremonies are “designated,
limited public fora.” Adler 1, 851 F. Supp. at 454. The
district court held that
[t]raditionally, the ceremonies are held at the
coliseum, away from the school campuses, and
virtually the entire program is given over to public
speech making by the valedictorian and other
leaders of the graduating class, and by community
leaders who are invited to give the principal
commencement address.
Adler I, 851 F. Supp. at 454. We agree with the Black Horse
Pike court that “[h]igh school graduation ceremonies have
not been regarded, either by law or tradition, as public fora
where a multiplicity of views on any given topic, secular or
religious, can be expressed and exchanged.” Black Horse
Pike, 84 F.3d at 1478; see also Doe, 147 F.3d at 838 (“the
graduation ceremony is not a public forum”). The
individual schools exert great control over the graduation
172a
ceremonies and the policy did not broaden the right of
students to speak at the graduation ceremonies. Instead,
only students that the majority selected could give a brief
opening and closing message. "No matter what message a
minority of students may wish to convey, the graduation
forum is dosed to them." Harris, 41 F.3d at 457. Because the
graduation ceremony is not a public forum, we hold that the
district court's reliance on public forum cases - and their
corresponding requirement of strict scrutiny review is
incorrect.”°
‘The Adler I court relied upon Chabad-Lubavitch, a case in
which the en banc court reversed the denial of a group's request to erect a
menorah in the Rotunda of Georgia's Capitol Building. See Chabad-
Lubavitch, 5 F.3d at 1385-86. The court specifically found that “[o]ver the
past decade, Georgia has opened the Rotunda to Georgia's citizenry for
their expressive activities both secular and religious in nature.” Chabad-
Lubavitch, 5 F.3d at 1386. The Chabad-Lubavitch court was careful to
distinguish itself from Jager, because "Jager involved state-sponsored
religious speech in a nonpublic forum; quite different from the private
religious speech in a public forum in the instant case." ChabadLubavich 5
F.3d at 1393 n-16. A high school graduation ceremony is not “open” to its
participants for expressive activity, and the policy's permitting two
elected student representatives to give a message does not transform the
graduation ceremony into a designated public forum. See also Alabama
Educ. Television Comm. v. Forbes, 118 S. Ct. 1633,1642 (1998) (“[a]
designated public forum is not created when the government allows
selective access for individual speakers rather than general access for a
class of speakers."). We also hold that a public school graduation
ceremony is not a “limited public forum” because limited public forums
“are those areas that the government has created for use by the public as
places for expressive activity.” Gay Lesbian Bisexual Alliance v. Pryor,
110 F.3d 1543, 1548 (11th Cir. 1997) (citing Perry Educ. Ass'n. v. Perry
Local Educators’ Ass'n., 460 U.S. 37, 45 (1983)); see also Santa Fe, 168 F.3d
at 821 (“even though the government may designate a forum only for
particular speakers or for the discussion of particular topics ... [the school
district's] restrictions so shrink the pool of potential speakers and topics
that the graduation ceremony cannot possibly be characterized as a
173a
2. Primary Effect
Even if we assume that the Duval County school
system's policy survives the first Lemon prong, we also
hold that the policy is facially unconstitutional because it
fails the primary effect prong. The primary effect prong
requires us to ask “whether, irrespective of [the]
government's actual purpose, the practice under review in
fact conveys a message of endorsement or disapproval [of
religion]." Wallace, 472 U.S. at 56 n.42 (quoting Lynch, 465
U.S. at 690)). We must use the viewpoint of the "reasonable
observer" to determine if the principal or primary effect of
the policy is one “that neither advances nor inhibits
religion.” Lemon, 403 U.S. at 612. In undertaking this
analysis, we must also be mindful that this consideration is
especially important in the context of public school children.
See Edwards, 482 U.S. at 583-84.
The primary effect of the Duval County school system
policy is to permit prayer at graduation ceremonies. Before
1992, schools in Duval County coordinated prayer at
graduation ceremonies. After Lee, Superintendent Zenke
and Reynolds instructed schools no longer to permit prayer
at their graduation ceremonies. After pressure from the
community and the Fifth Circuit's Jones decision,
Superintendent Zenke and Reynolds released a
memorandum entitled "Graduation Prayer" that permitted
public forum - limited or otherwise - at least not with fingers crossed or
tongue in cheek.”). The Duval County school system did not establish its
graduation ceremonies for public use; instead, it chose all of the speakers
except the elected student(s).
174a
ee ——
students to decide through majority / plurality vote whether
to have student-led “messages” at the beginning and
closing of graduation ceremonies. In 1992, 10 of the 17
graduation ceremonies had student prayer. A reasonable
observer at a graduation ceremony would believe that the
‘Graduation Prayer" policy conveys an endorsement of
prayer - as the schools in the Duval County school system
did openly prior to 1992 - which advances religion. See
laffree, 705 F.2d at 1534-35 ("[t]he primary effect of prayer is
the advancement of one's religious beliefs."); Santa Fe, 168
F.3d at 818 (holding that schools permitting sectarian and
proselytizing prayers “undoubtedly conveys a message not
only that the government endorses religion, but that it
endorses a particular form of religion.”). Further, the policy
can place those attending graduation ceremonies “in the
position of participating in a group prayer,” which also
violates the primary effect prong of Lemon. See Jager, 862
F.2d at 831.
3. Entanglement
Because the policy dearly fails the first two prongs of
emon, we need not engage in an analysis of Lemon's third
Lemon,
“entanglement” prong.
V. CONCLUSION
Based on the foregoing, we hold that the Duval County
school system's policy of permitting graduating students to
decide, through majority / plurality vote, whether to have
175a
student representatives give unrestricted messages at the
beginning and closing of graduation ceremonies facially
violates the Establishment Clause under Lee and Lemon.
Therefore, we reverse the district court's judgment in favor
of appellees, and we remand this case so that: (1) appellants
can pursue discovery on the events at graduations after 1993
for their as-applied challenge and damages; (2) the district
court may consider the motions of intervenors; and (3) the
district court may undertake further proceedings consistent
with this opinion.”
REVERSED and REMANDED.
'®For purposes of the appellants' as-applied challenge on
remand, we direct the district court to consider, along with newly-
discovered evidence, the record evidence of school-directed prayer at
graduation ceremonies. The limited record shows that many of the
programs from school graduations indicate that "chaplains" gave
"invocations" and "benedictions" during which the graduation programs
directed the audience to stand. Additional record evidence shows that
speakers at some of the graduation exercises were not selected using
wholly secular criteria and students voted directly on the question of
whether to have prayer at graduation ceremonies. In one instance, a
faculty member delivered a prayer. Evidence of this sort clearly violates
Lee.
176a
KRAVITCH, Senior Circuit Judge, Specially Concurring:
I concur in both the reasoning and result of the majority
opinion; on its face, the policy of the Duval County School
Board violates the Establishment Clause of the First
Amendment as the Supreme Court has interpreted it in both
Lee v. Weisman, 505 U.S. 577, 112 S. Ct. 2649 (1992) and
Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105 (1971).
Contrary to the dissent's characterizations, the grounds of
the majority opinion are quite narrow, and I write separately
only to emphasize the particular points that I believe dictate
the outcome of today's decision.
I. Lee v. Weisman
As the majority opinion succinctly observes, the
Supreme Court rested its decision in Lee on two "dominant
facts": (1) “[s]tate officials direct[ed] the performance of a
formal religious exercise” and (2) even for objecting students
“attendance and participation in the state-sponsored
religious activity [were] in a fair and real sense obligatory.”
Lee 505 U.S. at 586, 112 S. Ct. at 2655. In Lee, a high school
principal decided to include a prayer at graduation, selected
a local rabbi to deliver the prayer, and instructed the rabbi
that the prayer be nonsectarian, giving him a copy of
"Guidelines for Civic Occasions" to assist him in choosing
appropriate material. Id. at 581, 112 S. Ct. at 2652. It was
this unabashed state involvement in composing and
directing a formal prayer exercise that led the Court to find
that the prayer "bore the imprint of the State," id. at 590, 112
S. Ct. at 2657, and to conclude that the principal's practice
created a "state sponsored and state-directed religious
177a
I
exercise in a public school," id. at 581, 112 S. Ct. at 2655. As
the Lee Court held that the prayer, delivered from the
podium during the graduation ceremony, constituted a
formal religious exercise, the difficult question in the present
case is whether a student speaker's decision to pray under
similar circumstances is attributable to the state.
Under most circumstances, the Establishment Clause
presents no obstacle to a student's decision to pray on school
premises or during a school event. Contrary to popular
belief, the courts never have interpreted the Establishment
Clause to prohibit any individual student from praying, for
example, before a meal or before a test.’ The dissent suggests
that the majority comes "perilously close" to adopting such a
course of action in the context of public high school
graduations, Dissent at 1, but this case presents no occasion
to rewrite settled Establishment Clause jurisprudence, and
today's decision neither aspires to nor achieves that result.’
'See generally Daniel N. McPherson, Student-Initiated Religious
Expression in the Public Schools: The Need for a Wider Opening in the
Schoolhouse Gate, 30 Creighton L. Rev. 393 (1997) (discussing the
“flagpole prayer” where students spontaneously congregate to pray).
In particular, I object to the dissent’s contention that the
majority opinion would outlaw all private religious expression at a
graduation, see Dissent at 1, and the suggestion that our decision
prevents a speaker from discussing religion themes or thoughts, id. at 9,
31-32 & n.8. Our decision today, as the Supreme Court's decision in Lee,
concerns prayer - a formal religious exercise - delivered at the state's
direction from the podium at a high school graduation. See Lee, 505 US.
at 586 & 89, 112S. Ct. at 2655 & 56 (describing prayer as a formal
religious exercise); lager v. Douglas County Sch. Dist., 862 F.2d 824,830
178a
The majority opinion acknowledges that, under some
circumstances, a student's individual decision to pray from
the podium at a high school graduation may be
constitutional. Cf. Doe v. Madison Sch. Dist. No. 321, 147
F.3d 832 (9th Cir. 1998) (upholding a policy that permitted
the top four students to speak on any topic of their choosing
without state approval), withdrawn & reh'g granted, 165
F.3d 1265 (9th Cir. Mar. 19, 1999).’ As the parties to this case
have emphasized, the Establishment Clause applies only to
the federal and state governments and has no effect on
prayer that genuinely is private in character. The majority
opinion recounts - in convincing detail - why the Duval
County School Board's policy produces speech of a public
rather than private character, and | will not repeat that
analysis here.*
(11th Cir. 1989) (explaining that prayer is the quintessential religious
practice). I find nothing in the majority opinion that supports the
dissent's concerns regarding such extreme further implications or
consequences.
*We need not decide today whether the now-vacated Madison
decision was correct or even persuasive. Nor must we conjure up a host
of hypothetical circumstances under which the Madison panel's
reasoning would be more or less convincing. Today's opinion properly
limits the scope of our decision to the circumstances of the policy
presently under review.
‘Although the policy sets forth secular criteria for selecting
speakers, even the limited record presently available includes disturbing
allegations and evidence that the speakers who addressed the audience at
graduation ceremonies pursuant to the policy were not selected
according to wholly secular criteria and, in at least one case, was not a
student but a member of the faculty. As the majority opinion observes,
179a
I acknowledge that the Fifth Circuit’s decision in Jones
v. Clear Creek Indep. Sch. Dist., 977 F.2d 963 (5th Cir. 1992),
which holds that "a majority of students can do what the
State acting on its own cannot do to incorporate prayer in
public high school graduation ceremonies," is at odds with
the reasoning of our opinion today. Id. at 972. In my view,
the Jones decision to uphold a student vote to include prayer
at a high school graduation, and in particular the specific
language quoted above, strains the boundaries of Lee and
conflicts with the Supreme Court's decision in West Virginia
State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S. Ct.
1178, 1185-86 (1943) (explaining that the protections of the
Bill of Rights are not subject to waiver on the basis of a
majority vote). Moreover, to the extent Lee requires us to
evaluate considerations of psychological coercion, it seems
to me that a prayer from the lips of a popularly elected
student representative is far more likely to coerce audience
participation than one from a member of the clergy selected
by the school principal.
H. The Continuing Relevance of Lemon v. Kurtzman
Although the Supreme Court's Lemon decision has been
the target of much academic and judicial criticism, Lemon
remains the law of the land and of this circuit. See Maj. Op.
at 12 (citing Lamb's Chapel v. Center Moriches Union Free
Sch. _Dist., 508 U.S. 384,395 n.7,113 S. Ct. 2141,2148 n.7
conduct of that nature plainly falls within the Supreme Court's
proscriptions in Lee.
180a
—
(1993); Chabad-Lubavitch v. Miller, 5 F.3d 1383,1388 & n8
(11th Cir. 1993)).? Notwithstanding Lemon’s continued
vitality as part of our general Establishment Clause
jurisprudence, it is not immediately obvious that we still
should apply Lemon's analysis, in addition to the more
specifically applicable analysis in Lee in case that involve
prayer at high school graduations. Upon examination,
however, I am convinced that Lemon remains binding law
even in this particular area.°
Beginning with the Supreme Court's four opinions in
Lee, I note that the only opinion that declares the Lemon test
irrelevant to the issues at hand is that of the dissent.” See
*The Supreme Court has continued to apply Lemon by name
and did so as recently as two terms ago. See Agostini v. Felton, sates, Sh
—__, 117S. Ct. 1997, 2015 (1 997). Following the Court's lead, we also
have continued to apply the Lemon test in Establishment Clause cases.
See Bown v. Gwinnett County Sch. Dist., 112 F.3d 1464,1468 (11th Cir.
1997).
*As the majority explains, to survive scrutiny under the Lemon
test, the challenged policy must (1) have a secular purpose; (2) have a
principal or primary effect that neither advances nor inhibits religion;
and (3) not foster excessive government entanglement with religion. See
Lemon, 403 U.S. at 612-13, 91S. Ct at 2111 (1971).
’Two of these same dissenters (Justices Scalia and Thomas), as
well as Justice Kennedy, expressed concern about the Court's opinion in
Lamb's Chapel, joined by two of the Lee dissenters (Justices Rehnquist
and White), which “resurrected” Lemon. See Lamb's Chapel, 508 US. at
395 & n.7,113 S. Ct. at 2148 & n.7 (applying Lemon and adding that the
Court has not overruled the case); id. at 397,113 S. Ct at 2149 (Kennedy, J.,
181la
Lee, 505 U.S. at 644, 112 S. Ct. at 2685 (Scalia, J., dissenting).
Although Justice Kennedy's majority opinion recounts the
analysis of the district and circuit courts, both of which
declared the policy in question unconstitutional under the
Lemon test, the opinion pointedly sidesteps Lemon.’ Rather
than accepting the invitation of both the petitioning school
principal and the Solicitor General to overrule or modify
Lemon, the majority declared that it need not address the
case because the state involvement in the prayer and
coercion present in Lee made it an easy case that the Court
could "decide without reconsidering the general
constitutional framework by which public schools’ efforts to
accommodate religion are measured." Lee, 505 U.S. at
587,112 S. Ct at 2655. By suggesting that the Establishment
concurring in judgment) (calling the majority's citation of Lemon
“unsettling” and “unnecessary”); id. at 398,113 S. Ct at 2149 (Scalia, J.,
dissenting) (likening Lemon to a "ghoul in a late-night horror movie that
repeatedly sits up in its grave ... after being repeatedly killed and
buried”). More significantly, Justice Scalia subsequently has conceded
error in his eulogy for Lemon and has observed (albeit with considerable
dismay) that, despite the Court's recent fondness for deciding
Establishment Clause cases without reference to Lemon, the lower courts
are not free to ignore the case because they may not discard Supreme
Court precedent at will. See Board of Educ. of Kiryas Joel Village Sch.
Dist. v. Grumet, 512 U.S. 687,750-51,114 S. Ct 2481,2515 (1994) (Scalia, J.,
dissenting).
Justice Blackmun’s concurring opinion traces the evolution of
the Court's Establishment Clause case law, including the development of
the Lemon test, and declares that nothing in the majority opinion conflicts
with the established jurisprudence. See Lee, 505 U.S. at 600-04,112S. Ct
at 2662-64 (Blackmun, J., concurring). Justice Souter's concurrence also
cites Lemon with approval but does not address the continued viability of
the test. Id. at 627,112 S. Ct. at 2676 (Souter, J., concurring). Justices
Stevens and O'Connor joined both concurrences.
182a
Publisher’s Note:
Page(s) YK @ missing in original document
Horse Pike dissenters agreed that deference to precedent
required the court to apply Lemon in addition to Lee. Id. at
1493 (Mansmann, J., dissenting). The Ninth and Seventh
Circuits also have assumed, without discussion, that the
Lemon test continues to apply to graduation prayer cases
and have applied Lemon in addition to Lee. See Doe v.
Madison Sch. Dist. No. 321, 147 F.3d 832, 836-38 (9th Cir.
1998), withdrawn & reh'g granted, No. 97-35642,1999 WL
160831,165 F.3d 1265 (9th Cir. Mar. 19, 1999); Harris v. Joint
Sch. Dist. No. 241, 41 F.3d 447,457-58 (9th Cir.), vacated «
moot, 515 U.S. 1154, 115 S. Ct. 2604 (1994); id. at 460 n.4
(Wright, J., dissenting) (disagreeing with the result but
noting the applicability of the Lemon test); Tanford v. Brand,
104 F.3d 982,986 (7th Cir. 1997) (applying Lemon in addition
to Lee in a challenge to prayer at a university graduation).
Similarly, the district court in this case applied both Lemon
and Lee. See Adler v. Duval County Sch. Bd., 851 F. Supp.
446,450-51 (M.D. Fla. 1994) (“Adler I’). In short, although
some courts and individual judges have disagreed over
what manner of prayer the Supreme Court's precedents
might permit at a public graduation, to our knowledge no
court nor single judge has published an opinion that even
suggests that Lemon is no longer applicable to cases
involving graduation prayer or that Lee presents the only
acceptable or relevant analysis.
Finally, even were we to accept arguendo the dissent’s
suggestion that the Lemon test is inapplicable to cases
involving prayer at high school graduation and
"unnecessary" to evaluate Duval County's policy, Dissent at
184a
5, no authority suggests that we may ignore the underlying
principles of Lemon, developed in cases both before and
after the Supreme Court decided that case."” In 1947, almost
25 years before Lemon, the Supreme Court explained that
the Establishment Clause “means at least” that the state can
neither “force nor influence” its citizens to attend or refrain
from attending any church. Everson v. Board of Educ., 330
US. 1, 15, 67 S. Ct. 504, 511 (1947). Indeed, the Supreme
Court's holding in Lee easily could be read as nothing more
than a reaffirmation of that narrow principle: the state may
not coerce (or, more controversially, encourage) its citizens
to participate in formal religious exercises.
Similarly, in a case decided three years before Lemon,
the Supreme Court relied on the state's religious purpose in
enacting a statute to strike down a state law that the
teaching of evolution in public schools. See Epperson v.
Arkansas, 393 U.S. 97, 107-09 & n.16, 89 S. Ct. 266, 272-73 &
n.16 (1968) (quoting a campaign advertisement that
supported the statute). Although the state's motivation, "to
suppress the teaching of a theory which, it was thought,
‘denied’ the divine creation of man,” id. at 109, 89 S. Ct at
273, was more extreme than the school board's purpose here,
the difference is one only of degree; both practices violate
"See, e.g., Kent Greenawalt, Quo Vadis: The Status and
Prospects of “Tests” Under the Religion Clauses, 1995 Sup. Ct. Rev. 323,
361 (“What courts and lawyers should do instead [of applying Lemon] is
focus on narrower principles relevant for particular circumstances,
drawing these principles partly from the very Supreme Court cases
decided under the Lemon test”).
185a
Mei Peake 223 i NAAN. 20 MON NN a i Mec cai
the broader principle that the state may not act with the
primary purpose of advancing religion.
The Supreme Court repeatedly has reaffirmed this
principle in the years since Lemon by applying it in the
context of that framework. In Stone v. Graham, for example,
the Court rejected the Kentucky state legislature's “avowed”
secular purpose for posting the Ten Commandments in
public schools and declared the practice unconstitutional
because it found that the state's purpose was “plainly
religious in nature.” 449 U.S. 39, 41, 101 S. Ct. 192,194 (1980)
(per curiam). Similarly, in Wallace v. Jaffree, the Court twice
struck down Alabama laws requiring a moment of silence in
public schools because the legislature passed them solely for
religious purposes. See 472 U.S. 38, 105 S. Ct. 2479 (1985).
Finally, in Edwards v. Aguillard, the Court relied on its own
reading of a statute that constrained the teaching of
evolution in public schools and the statements of the state
legislator who sponsored the law to declare the state's
alleged secular purpose a sham. See 482 U.S. 578, 585-95 &
n.15, 107 S. Ct. 2573, 2578-83 & n.15 (1987). The Court struck
the law down because its primary purpose was to advance
religion and it therefore had no "clear secular purpose." Id.
at 585, 107 S. Ct. at 2573. See also Jager v. Douglas County
Sch. Dist. 862 F.2d 824, 829-30 (11th Cir. 1989) (dismissing
the state's asserted secular purpose and striking the state's
practice of permitting prayer over a public address system at
high school football games as unconstitutional because its
actual primary purpose was to advance religion).
186a
This case forces us to decide whether the school board
violated the Establishment Clause by attempting to make an
end-run around Lee when the board's policy has the dearly
evidenced, primary purpose and effect of advancing prayer
(and thus religion) at public graduations. The Supreme
Court's cases, both before and after Lemon, suggest that
such a policy cannot survive constitutional muster, and even
Justice Kennedy's majority opinion in Lee contains some
(albeit admittedly scant) support for the proposition that the
object of the state's exercise may not be to advance religion."
On the record available to us in this case, the evidence
convincingly demonstrates that the school board acted with
the purpose of permitting a student speaker to lead the
audience in prayer at high school graduations. In addition
to the historical backdrop and the contemporaneous
statements of policy makers,” the plain terms of the policy
"'The relevant passage provides:
The question is not the good faith of the school in
attempting to make the prayer acceptable to most
_ persons, but the legitimacy of its undertaking that
enterprise at all when the object is to produce a prayer
to be used in a formal religious exercise which
students, for all practical purposes, are obliged to
attend.
See Lee, 505 U.S. at 588-89,112 S. Ct. at 2656 (emphasis added).
"Neither the Supreme Court nor our own court has felt
compelled to ignore record evidence regarding historical realities or the
contemporary statements of policymakers in evaluating the religious
purpose of a particular policy under Lemon. See Aguillard, 482 US. at
585-95 & n.15,107 S. Ct. at 2578-83 & n. 15; Wallace v. Jaffree, 472 U.S. at
56-59,105 S. Ct at 2489-91; Church of Scientology v. City of Clearwater, 2
F.3d 1514,1527,1530-34 (11th Cir. 1993); majority notes, the district court
187a
indicate the school board's primary purpose to permit
prayer. The policy allows a two minute message at the
beginning and/or end of the ceremony; one need not be
clairvoyant to predict that prayer is the most natural
"message" this format is likely to produce. Indeed, one only
need be a historian; during the only year for which we have
evidence in the record, the policy produced student-led
prayer from the podiums of ten out of seventeen graduation
ceremonies. Under such circumstances, I believe that the
principles crafted in the cases discussed above require us to
hold the policy unconstitutional, without regard to Lee or
even specific citation to Lemon.
Having concluded that Lemon_v. Kurtzman has
survived as a matter of general Establishment Clause
jurisprudence and that the case's three-pronged analysis -or
at least the principles underlying that analysis -remains
relevant on the more particular question of prayer at public
high school graduations, it remains only to say that I agree
with the majority's application of the Lemon framework to
the facts of this case. In my view, the religious purpose and
effect of the school board's policy are plain in the record and
on the face of the policy; the policy, therefore, cannot stand.
committed error when it acknowledged that our decision in later relied
upon such evidence but ignored the case on this point in part because the
Jager panel was not unanimous. See Adler |, 851 F. Supp. at 452 n.8. just
as split decisions from the Supreme Court bind all lower courts, district
courts are not free to disregard circuit precedent on the ground that a
particular panel did not speak with one voice.
188a
MARCUS, Circuit judge, dissenting:
The court today holds that the Duval County school
system’s policy of permitting graduating students to vote on
whether to select a student to deliver an unrestricted
message at the opening or closing of a high school
graduation ceremony violates the Establishment Clause of
the First Amendment. The majority finds Duval County's
policy facially unconstitutional simply because the school
sponsors the ceremony and provides the platform and
opportunity for a student to deliver a message that may or
may not have any religious content. In the process, the
majority opinion has come perilously close to pronouncing
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 have
been, nor how autonomous the speaker was in crafting his
message. By somehow transforming a private speaker into a
state actor and a student's message into the state
establishment of religion, the majority has, I believe,
misapprehended the Supreme Court's Establishment Clause
jurisprudence, and has ignored the “crucial difference
between government speech endorsing religion, which the
Establishment Clause forbids, and private speech endorsing
religion, which the Free Speech and Free Exercise Clauses
protect." Board of Educ. v. Mergens, 496 U.'5. 226, 250 (1990)
(plurality opinion). I therefore, respectfully dissent.
189a
The central issue presented in this case is whether the
Establishment Clause dictates that every form of religious
expression be eliminated from graduation ceremonies, no
matter who may express it. The majority recognizes, as it
must, that the Supreme Court has never levied a per se ban
on all religious expression at high school graduation
ceremonies, and it appears to accept, at least in a general
way, that in the public school context, Establishment Clause
jurisprudence is of “necessity one of fine-drawing,” Lee v.
Weisman, 505 U.S. 577, 598 (1992), “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
(1995) (O'Connor, J., concurring). Indeed, the majority
opinion begins its discussion, as it must, with an
examination of Lee _v. Weisman, where the Court had
occasion to visit for the first time the question of school
prayer at a high school graduation ceremony. In Lee, Justice
Kennedy, writing for the majority, took special care 'to
recognize 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." Lee, 505 U.S. at 598-99 (citing Board of Educ. v.
Mergens, 496 U.S. 226 (1990)); see also id. at 630 n.8 (Souter,
J., concurring) (citing Witters v. on Washington Dept. of
Servs. for the Blind, 474 U.S. 481 (1986)).
Instead of purging graduation ceremonies of all prayer,
190a
Lee calls for the difficult task of separating a student's
private message, which may be religious in character, from
the school board's religious speech, protecting-the former
and prohibiting the latter. Close attention to the Duval
County policy leads me to the conclusion that the policy is
facially constitutional.
A.
The facts needed to measure the facial constitutionality
of the School Board's policy are straightforward,
uncontroverted, and laid out fully by the district court in
Adler v. Duval County School District, 851 F. Supp. 446
(M.D. Fla. 1994) (“Adler 1”), vacated as moot, 112 F.3d 1475
(11th Cir. 1997) (“Adler II”). Invocations, benedictions, and
'My views are based on Duval County's policy as written, not as
applied. "A facial challenge to a legislative Act is, of course, the most
difficult challenge to mount successfully, since the challenger must
establish that no set of circumstances exists under which the Act would
be valid." United States v. Salerno, 481 U.S. 739, 745 (1987). Whether
there are serious constitutional questions regarding the application of the
policy at certain graduation programs remains to be seen, but I do not
think we are in the best position to resolve these issues now. As I
understand the procedural history of the case, the district court's
consolidation of the action on the merits with the hearing on appellants’
motion for preliminary injunction prevented appellants from fully
developing the record for graduation ceremonies after 1993. On May 28,
1998, when it consolidated the action, the district court took judicial
notice of its opinion in Adler 1, 851 F. Supp. 446 (M.D. Fla. 1994). Because
the consolidation truncated discovery, the record consists almost entirely
of material derived from Adler I. This record is of little aid to the
appellants claiming money damages for injuries sustained at graduation
ceremonies in 1995 (Joshua Weihnacht), 1997 (Monica Juodvalkis), or
1998 (Emily Adler, Seth Finck, Jonathan Rand, and Bonnie Bear), because
19la °
ol pial ial ee ee
]
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, following the decision in Lee v. Weisman
(holding that a Providence, Rhode Island 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), the Duval
County Superintendent, Larry Zenke, instructed Vicki R.
Reynolds, the school district's legal affairs officer, to research
the issue further. Reynolds advised Superintendent Zenke
that it would be permissible for principals to allow student-
initiated and student-led prayer during graduation
ceremonies if the school authorities were not involved in the
decision-making process. See Adler I, 851 F. Supp. at 448.
On May 5, 1993, she issued a memorandum ("The
Reynolds Memorandum”) to all high school principals,
the manner in which the policy was applied in 1993 and 1994 has no
relevance to the appellants’ claims for money damages. In Adler II, 112
F.3d 1475 (11th Cir. 1997), we stated that "[wlhether [the students] are
entitled to damages depends entirely on the circumstances under which
the prayer was delivered at their graduation ceremony.” Id. at 1479-80.
Thus, in order to recover monetary damages, an appellant needs to
demonstrate that the prayer given at his or her graduation ceremony was
delivered in an unconstitutional ‘ashion, regardless of whether the policy
itself is unconstitutional. See id. at 1479. I don’t believe this analysis can
be made as the record now stands. Therefore, I agree with the majority
opinion that whether the policy passes facial constitutional muster or not,
the case should be remanded to allow appellants to pursue discovery on
events occurring after 1993, and to permit the district court to conduct a
factually based as-applied analysis. See, e.g., Bowen v. Kendrick, 487 US.
589,591 (1988).
192a
SSE
which remains the operative policy for student messages at
graduation ceremonies in the Duval County School District.
The Reynolds Memorandum provides in part:
You will recall that after the 1992 Supreme
court case of Lee v. Wiseman [sic], you received a
memorandum from me instruciing that because of
the decision, we would no longer be able to have
prayers at graduation ceremonies. Most of you
have recently been bombarded with information, as
have I regarding whether or not student initiated
and led prayers are acceptable based upon a recent
Fifth Circuit opinion. The purpose of this
memorandum is to give you some guidelines on
this issue if the graduating students at your school
desire to have some type of brief opening and/or
dosing message by a student.
This area of the law is far from clear at this
time, and we have been threatened by lawsuits
from both sides on the issue depending on what
action we take. The key to the Lee v. Wiseman [sic]
decision was that the prayer given at that
graduation ceremony was directed and initiated by
the school system, which made it unconstitutional,
rather than by permissive student choice and
initiative. With that premise in mind, the following
guidelines may be of some assistance:
193a
1. The use of a brief opening and/or closing
message, not to exceed two minutes, at high school
graduation exercises shall rest within the discretion
of the graduating senior class;
2. The opening and/or closing message shall be
given by a student volunteer, in the graduating
senior class, chosen by the graduating senior class
as a whole;
3. If the graduating senior class chooses to use an
opening and/or closing message, the content of
that message shall be prepared by the student
volunteer and shall not be monitored or otherwise
reviewed by Duval County School Board [sic], its
officers or employees;
The purpose of these guidelines is to allow
the students to direct their own graduation
message without monitoring or review by school
officials.
Id. at 449.
In 1993, under this policy, ten of seventeen high school
graduation ceremonies had some form of student delivered
religious message. At the other seven graduations, there
were no student messages at all or the messages were
entirely secular in character. See id. at 449-50. There is no
194a
tabulation in the record of comparable statistics for
subsequent graduations.
B.
Lee v. Weisman presents the analytical framework
against which to measure the Duval County policy, and
resort to Lemon v. Kurtzman, 403 U.S. 602 (1971), may be
unnecessary. But whether measured against the Lee
framework or Lemon, to my thinking, the policy passes
facial constitutional muster. In Lee, Justice Kennedy wrote
that "the controlling precedents as they relate to prayer and
religious exercise in primary and secondary public schools
compel the holding here that the policy of the City of
Providence is an unconstitutional one. We can decide the
case without reconsidering the general framework by which
public school efforts to accommodate religion are measured."
505 U.S. at 586-87. The conclusion that we should measure
the policy at issue by comparing it to the Lee analysis is
bolstered by the concurring opinions of Justices Blackmun
and Souter and the dissent of Justice Scalia. Notably, none
of the Justices employed the Lemon test in Lee.
Justice Blackmun, concurring in an opinion joined by
Justices Stevens and O’Connor, formulated the applicable
test in these terms: "[nJearly half a century of review and
refinement of Establishment Clause jurisprudence has
distilled one clear understanding: Government may neither
promote nor affiliate itself with any religious doctrine or
organization nor may it obtrude itself in the internal affairs
195a
of any religious institution." Id. at 599 (Blackmun, J.,
concurring). Justice Souter, also concurring in an opinion
joined by Justices Stevens and O’Connor, likewise did not
apply Lemon’s three-part test. For him the “principle
against favoritism and endorsement has become the
foundation of Establishment Clause jurisprudence, ensuring
that religious belief is irrelevant to every citizen’s standing
in the political community." Id. at 627 (Souter, J.,
concurring). Finally, dissenting, Justice Scalia, writing for
himself, Chief Justice Rehnquist, and Justices White and
Thomas, observed that the Court’s opinion had
demonstrated the "irrelevance of Lemon by essentially
ignoring it ... and the interment of that case may be the one
happy byproduct of the Court's otherwise lamentable
decision." Id. at 644 (Scalia, J., dissenting).
In Lee, 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; second,
pressure was exerted on students to attend graduation and
conform with their peers. See id. at 586-88. What the
Supreme Court found 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:
196a
These dominant facts mark and control the
confines of our decision: State officials direct the
performance of a formal religious exercise at
promotional and graduation ceremonies for
- secondary schools. Even for those students who
object to the religious exercise, their attendance and
participation in the state-sponsored religious
activity are in a fair and real sense obligatory,
though the school district does not require
attendance as a condition for receipt of the
diploma.
Id. at 586. 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.
The graduation prayer delivered by a rabbi was in every
sense the state's prayer.
In striking contrast, under the Duval County policy,
however, neither the School Board nor its principals may
ordain, establish or direct that a prayer or a message of any
kind shall be delivered at graduation. Indeed, the Duval
County policy explicitly divorces school officials from the
decision-making process as to whether any message -
religious or not - may be delivered at graduation.
Moreover, 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. According to
Duval County policy, school officials merely allow the
graduating class to decide whether or not to have a speaker
197a
deliver a message at graduation, and, if so, it's left to the
student body to select that speaker. Indeed, the special
concurrence concedes that the policy “sets forth secular
criteria for selecting speakers.” Special Concurrence at 3 n.4.
The School Board does not suggest in any way, let alone
require the graduating class to consider religious criteria or
any other criteria in deciding whether or not to have a
student speaker or in selecting the speaker. And most
notably for me, 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 prohibited by the very terms of its policy
from monitoring or otherwise reviewing the message in any
way. On the face of the policy, the students unambiguously
understand that any student message is utterly divorced
from School Board sponsorship. In short, I cannot conceive
of how a message delivered by a student under these
circumstances can be characterized as the state's message or
how a policy allowing the delivery of an autonomous
message can be seen as the state direction of prayer.
The Supreme Court struck down the policy in Lee
precisely because Providence school officials directed the
performance of a “formal religious exercise.” 505 U.S. at 586.
The Court did not suggest 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. The majority here
contends that the control exerted by the school district over
the graduation ceremonies affixes the imprimatur of the
198a
:
i
state on any religious message delivered by any student.
While the majority opinion acknowledges that Lee is
distinguishable from this case, it nevertheless concludes that
the Duval County School Board policy fails to erase the
imprint of the state from student messages at graduation
ceremonies. Lee does not support this rationale for finding
the School Board policy unconstitutional.
The majority's holding which, in essence, requires
schools to banish religion from all events in which there is
school control is far-reaching and goes further than the
Establishment Clause requires. Following the majority's
reasoning, the religious content of any speech at a
graduation ceremony is likely attributable to the school
merely because the school sponsors the event. As a result,
schools would have to prevent any speaker, including
speakers as diverse as athletes, politicians, academics,
entertainers, maybe even judges, from discussing a religious
topic or invoking the Lord's name, to ensure that no
audience member perceives that the school is endorsing the
speaker's religious message. By that logic, those speakers
would bear the imprimatur of the state simply because they
were selected by the school to speak at an event over which
the school has great control. But a graduation free of all
religious expression is not required by the Establishment
Clause. The Supreme Court has repeatedly held that
neutrality, not hostility, toward religious expression is
required by the Establishment Clause. Indeed in Lee the
Court recognized that "[t]he First Amendment's Religion
Clauses mean that religious beliefs and religious expression
199a
are too precious to be either proscribed or prescribed by the
State." 505 U.S. at 589: see also Agostini v. Felton, 521 U.S.
203, 231 (1997) (observing 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 _v. Rector and
Visitors of the Univ. of Va. 515 U.S. 819, 839 (1995) (“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.”); Board of Educ. v. Grumet, 512 U.S. 687, 696
(1994) (""A proper respect for both the Free Exercise and the
Establishment Clauses compels the State to pursue a course
m
of ‘neutrality’ toward religion." (quoting Committee for Pub.
Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 792-93
(1973)); Zorach v. Clauson, 343 U.S. 306, 314 (1952) ("[W]e
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.”). What the Establishment Clause bars is
state sponsorship of religion or prayer in the context of
public school graduation ceremonies.
How then, does the majority opinion, or the special
concurrence, propose to convert a private speaker who is
selected through a wholly neutral process, and who is given
complete autonomy over the content of her speech, into a
public, state sponsored speaker? Two basic arguments are
offered. First, the majority contends that by providing the
200a
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, both the
majority and the special concurrence suggest that the
process of selecting the speaker shrouds the otherwise
private speech with the imprint of the state. The first
argument - that by providing the platform, the speech
becomes public - goes too far. The second -- that the speaker
somehow gainers state authority by virtue of the plebiscite -
has no logical rationale.
Even ff we accept that the Duval County School Board
exerted “overwhelming control” over the graduation
ceremony, it is clear that it did not have control over the
elements which are most crucial in this calculus: the
selection of the messenger, the content of the message, or
most basically, the decision whether or not there would be a
message in the first place. On the face of the policy, the
students alone decide both whether there will be a message,
and, fi so, who the messenger will be. By suggesting that the
state has "directed" prayer, the special concurrence has
misapprehended the School Board policy. Special
Concurrence at 2-3 n.2. In essence, this case is
indistinguishable from Doe v. Madison School District No.
321,147 F.3d 832 (9th Cir. 1998), withdrawn & reh’g en banc
granted,165 F.3d 1265 (9th Cir. 1999), where the Ninth
Circuit held that graduation speech does not bear the
imprimatur of the state when the speaker is a student, not a
cleric, the student speaker is selected on neutral and secular
201a
criteria; and the student has complete autonomy over
content.’ See id. at 835-37.
*The other cases that have considered student-initiated prayer at
graduation are of limited assistance; none, except for Doe v. Madison
School District No. 321, examine a policy which mirrors Duval County's
in its neutrality. Notably, all of the other cases allow for students to vote
directly on whether or not to have prayer at graduation. These cases
either uphold or strike down such policies. Jones v. Clear Creek
Independent School District, 977 F.2d 963 (5th Cir. 1992), is the only case
which has permitted students to vote directly on whether to have prayer
at graduation. In the Fifth Circuit upheld the Clear Creek, Texas school
district's policy allowing students to decide if they wanted volunteers to
deliver "nonsectarian and nonproselytizing” invocations at graduation.
See id. at 965. The court found that the Clear Creek policy reserved to the
students the decision whether to have an invocation, precluded anyone
but a student volunteer from delivering an invocation, and placed less
psychological coercion on students than the prayers had on graduates in
Lee because students were aware that any prayers given represented the
win of their peers. See id. at 970-71.
The Fifth Circuit recently revisited the issue of student-irutiated
prayer in Doe v. Santa Fe Independent School District, 168 F.3d 806 (5th
Cir. 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 Clear Creek-type prayer policy depends on its “nonsectarian and
nonproselytizing” features. Santa Fe, 168 F.3d at 811. The majority
opinion relies on Santa Fe for the proposition that a policy which
"permits" sectarian and proselytizing prayers is a priori unconstitutional.
This argument proves too much and is offensive to the Constitution. The
Duval County policy, of course, permits 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., Board of Educ. v. Mergens, 496 U.S. 226, 253 (1990)
(plurality opinion) (“[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.”); Santa Fe, 168 F.3d at 824-28 (Jolly, J., dissenting).
202a
The majority insists that the delegation of
responsibilities to mongovernmental actors does not
altogether absolve the state of its constitutional duty. Stated
at so high an order of abstraction, I can readily accept that
premise. But the Duval County School Board in no way
delegated any state_authority to the students by providing
them the opportunity to decide ff they wanted a student
message, and to select a student speaker ff they so chose.
The majority has in no way proven that the students' private
conduct has become so "entwined with government policies"
and 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 (1966). In
fact, the state's only involvement in the message is to
In ACLU of New Jersey v. Black Horse Pike Regional Board of
Education, 84 F.3d 1471 (3d Cir. 1996) (en banc), the Third Circuit, sitting
en banc, held 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. Finally, in Harris v. Joint School District No. 241,
41 F.3d 447 (9th Cir. 1994), vacated as moot, 515 U.S. 1155 (1995), the high
school students voted by written ballot on whether or not to have prayer,
and, if the students voted for prayer, on whether a minister or a student
would say the prayer. See id. at 452-53. The Harris court found that the
state involvement in the case was pervasive enough to offend
Establishment Clause concerns. The court noted that “[t]he message of
the speakers is ... ctxosen 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 the critical distinction.
203a
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fists baby Nation it ea eC gS
provide students with the opportunity to vote, and to
impose a time limit of two minutes. Neither of these facts
establishes that the state has so insinuated itself into the
decision that it can transform private speech into an
utterance of the state. Nevertheless, the majority opinion
goes so far as to suggest that the student's topical choice,
which everyone concedes is made in a purely autonomous
manner, is still attributable to the state, and says that this
control cannot be erased through delegation of one portion
of the ceremony. The majority opinion assumes what it
cannot prove - that utterances made on a state platform are
automatically transformed from private into public speech.
It is beyond my 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 private speech does not become the state's
merely by being uttered at a state event on a state platform.’
Simply providing a platform on a neutral basis is not enough to
convert private action into state action. Ina series of cases granting
religious groups acess to generally available facilities or benefits, i-e.,
"open forum" cases, the Supreme Court has suggested that the mere
location or platform of religious speech is insufficient to transform
private speech into the state's speech. The Court has, on numerous
occasions, rejected the argument that the Establishment Clause allows
restrictions on access by religious organizations to government programs
or premises, otherwise open to all groups. By providing students who
hold religious views with the same opportunity to enjoy generally
available facilities and benefits, schools act neutrally. See Rosenberger v.
Rector and Visitors of the Univ. of Va., 515 U.S. 819, 832 (1995) (holding
that the University of Virginia violated the Free Speech Clause when it
204a
~_
The Duval County policy permits graduating students
to decide through majority / plurality vote whether a student
volunteer shall deliver a message. It does not direct what
the message will be. The state here coerces nothing - it
merely offers to students the opportunity to vote for or
against a message, but does not compel the answer. The
majority opinion takes a neutral process and an autonomous
speaker and recasts it as an arm of state coercion, even
though there is no preordained religious result.
Nevertheless, the majority and the special concurrence
would proscribe a policy that on its face plainly allows a
student to select her own message, fearful that on occasion
that message may be a prayerful one. It is worth repeating,
however, that while the state cannot advance religion,
similarly, it cannot act in a hostile manner in the face of
private religious speech publically uttered. See Capital
Square Review and Advisory Bd. v. Pinette, 515 US. 753, 760
refused to pay for a religious student organization's publication costs
under a program that funded other student organization publications);
Lamb's Chapel v. Center Moriches Union Free Sch. Dist, 508 U.S. 384, 395
(1993) (striking down as violative of the Free Speech Clause a school
district regulation authors use of school property for political, social civic,
or recreational uses but denying religious groups the same access); Board
of Educ. v. Mergens, 496 U.S. 226,235 (1990) (upholding Equal Access Act
prohibiting public secondary schools which have a ‘limited open forum’
from denying access to students who wish to meet in that forum ‘on the
basis of the religious, political, philosophical or other content of the
speech at such meetings"); Widmar v. Vincent, 454 U.S. 263, 273-74 (1981)
(holding that a university regulation denying religious groups access to
school facilities violated the Free Speech Clause; any benefits to religion
by providing “equal access” to facilities would be "incidental").
205a
rot MMII
(1995). If a per se rule is erected, that all speech on a
platform is state speech, this rule would run afoul of the Free
Exercise and Free Speech clauses.* If the senior class were
asked to vote whether to have a student deliver a poem, or
perhaps sing a song, at a graduation exercise, that act is still
the selection of a private speaker through neutral criteria.
The Duval County policy creates the mechanism whereby
the students could elect to have a message and select the
speaker and nothing more.
The majority and the special concurrence reason that the
policy's delegation to students of the power to vote for a
graduation speaker renders that speaker - by virtue of the
vote - a state actor. It is this leap of logic, taking the selected
student representative and, without explanation, turning her
into a state actor, which cannot be sustained. In his
concurrence in Lee v. Weisman, Justice Souter said that:
‘Duval County students possess Free Speech rights, even in a
nonpublic forum such as a graduation ceremony. The Supreme Court
has held that in nonpublic fora the government may not engage m
viewpoint discrimination. See Cornelius v. NAACP Legal Defense and
Educ. Fund, Inc., 473 U.S. 788,806 (1985) (“Control 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.”); Perry Educ. Ass'n v.
Perry Local Educators’ Assn, 460 U.S. 37, 46 (1983) (A “state may reserve
[nonpublic] forum for its intended purposes ... 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
stated that religion provides “a specific premise, a perspective, a
standpoint from which a variety of subjects may be discussed and
considered.” Rosenberger, 515 U.S. at 831.
206a
If the State had chosen its graduation day
speakers according to wholly secular criteria, and if
one of these 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.
505 U.S. 577, 631 (1992) (Souter, J., concurring). In Adler,
where the state has not even chosen the private speaker, we
have even less than this. See also Doe v. Madison Sch. Dist.
No. 321, 147 F.3d at 836 (“[W]hen a state uses a secular
criterion for selecting graduation speakers and then permits
the speaker to decide for herself what to say, the speech does
not bear the imprimatur of the State.”)
The argu:.:ent is now that the student messenger is a
state actor because the democratic process of voting by
public school students somehow converts the selected
speaker into a public official. But this student is, at most, a
representative of the student body, not an official of the
state. She is in no way analogous, as the majority opinion
suggests, to the School Board president who is, unlike the
student, a publically-elected official. She has no power or
authority or official capacity to inform, carry out, or guide
state policy. It remains 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.
207a
I offer two examples. First, consider the case of the
selection of a Homecoming Queen. While she may be
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. It strains reason 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' 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, in a wholly secular way, the
opportunity to vote whether or not to have a message and to
select a student speaker, this vote is no more vested with the
imprimatur of the state than are the votes for graduation
class speaker or Homecoming Queen.
It is hard to understand how the principal, school board,
or state has sponsored or directed the student speaker's
actions when all of the central decisions - who speaks,
208a
a te
whether there will be a speaker, and what the content of the
speech is - are uncontrolled by the state. Delegation of
decision-making to pick a private speaker alone does not
place the state's imprint on graduation prayer. The
delegation provided to the students - whether or not to have
a student message - can in no way be seen as the delegation
to a nongovernmental actor of some aspect of a practice
which tends to establish religion Where the student is
chosen in a neutral and secular way and where the student is
allowed complete autonomy over the message, the majority's
position is untenable.
te
The other dominant fact of Lee whether Duval County
students are coerced "to support or participate in religion or
its exercise," 505 U.S. at 587, by the School Board policy, is
largely determined by the measure of state control over the
message at a graduation ceremony, rather than state control
over the ceremony itself. I do not quarrel with the
observations made in Lee, that students feel compelled to
attend graduation, see id. at 595, and that schools “retain a
high degree of control” over graduation ceremonies, id. at
597. But these conclusions do not suffice to decide the issue
of coercion. 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, induces students to participate in a religious
exercise.
209a
at es
BRS itn tad tee eee vied
SLRs Mac To
Schools may make private religious speech their own by
endorsing it, but schools do not endorse all speech that they
do not censor. See Board of Educ. v. Mergens, 496 U.S. 226,
250 (1990) (plurality opinion). We need not assume, as the
majority does, that Duval County seniors will interpret the
school's failure to censor a student message for religious
content as an endorsement of that message. As we have
noted, the students clearly understand, by the very terms o=
the Duval County policy, that any student message is utterly
divorced from any School Board sponsorship. While there
may still be pressures on students to attend graduation and
conform with their peers, the state's control over a religious
exercise, essential to Lee's holding, see 505 U.S. at 590 (“The
degree of school involvement here made it clear that the
graduation prayers bore the imprint of the state . . . ."); id. at
597 ("[T]he state-imposed character of an invocation and
benediction by clergy selected by the school combine to
make the prayer a state-sanctioned religious exercise...."), is
absent here.
Il.
While the majority opinion seems to acknowledge that
the Duval County School Board policy should be measured
against the framework of Lee - - a view I wholly share - - it
also undertakes a brief analysis of the policy under Lemon v.
Kurtzman. Even if we assume that Lemon provides the
appropriate analytical vehicle against which to measure the
Duval County School Board policy, the policy still
withstands facial constitutional challenge. Under the Lemon
210a
test, the policy must have a secular purpose, it may not have
a primary effect that either advances or inhibits religion, and
it must not foster an excessive government entanglement
with religion. See Lemon v. Kurtzman, 403 U.S. 602,612-13
(1971). I believe that the School Board policy, on its face, has
a secular purpose and violates neither of Lemon's
proscriptions.
A.
The majority and the special concurrence can discern no
secular purpose in the Duval County School Board policy,
brushing aside without comment the purpose explicitly
stated in the policy, “to allow the students to direct their
own graduation message without monitoring or review by
school officials.” Likewise, it ignores the two secular
purposes recognized by the district court “to solemnize the
occasion and to observe and protect the right of free speech”
of the student speaker. Adler I, 851 F. Supp. at 453.
Since Lemon provides that a statute must have “a
secular legislative purpose,” 403 U.S. at 612 (emphasis
added), a statute will only violate the Establishment Clause
if it is “entirely motivated by a purpose to advance religion,"
Wallace v. Jaffree, 472 U.S. 38, 56 (1985); see also Bowen v.
Kendrick, 487 U.S. 589, 602 (1988) (a court “may invalidate a
statute only if it is motivated wholly by an impermissible
purpose”); Lynch v. Donnelly, 465 U.S. 668, 680 (1984) ("The
Court has invalidated legislation or governmental action on ~
the ground that a secular purpose was lacking, but only
21la
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 U.S. at 56.
Moreover, the Supreme Court has instructed us to be
“deferential to a State's articulation of a secular purpose,”
Edwards v. Aguillard, 482 U.S. 578, 586 (1987), particularly
where "a legislature expresses a plausible secular purpose"
for a policy or action, Wallace, 472 U.S. at 74-75 (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; Bown v. Gwinnett County Sch. Dist. 112 F.3d 1464,1468
(11th Cir. 1997), or where the statute at issue has a
"preeminent purpose" which is “plainly religious in nature,”
Stone v. Graham, 449 U.S. 39, 41 (1980) (per curiam); see also
Edwards, 482 U.S. at 591; Wallace, 472 U.S. at 56-60. 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 (1983).
Additionally, “inquiry into legislative purpose begins
with interpreting the law itself.” Church of Scientology v.
City of Clearwater, 2 F.3d 1514,1527 (11th Cir. 1993). 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 (invalidating a Louisiana law that
212a
required creationism to be discussed with evolution in
public schools); Wallace, 472 U.S. at 57-58 (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 (striking
down a Kentucky statute requiring the posting of the Ten
Commandments in public classrooms); Engel v. Vitale, 370
U.S. 421, 424 (1962) (holding unconstitutional a New York
law authorizing state-directed daily classroom prayer in
public schools).
Three secular purposes are plainly encompassed by this
policy. First, the Duval County policy, on its face, affords
graduating students an opportunity to direct their own
graduation ceremony by selecting a student speaker to
express a message. | do not understand how this purpose of
allowing students to share in the decision-making process
concerning the shape of their own graduation is denuded of
a legitimate secular purpose, simply because an autonomous
student speaker chosen by neutral criteria may express a
prayerful message. The majority presumably would admit a
legitimate secular purpose if the School Board had decided
to allow students of the graduating class to select the student
graduation speaker through class vote rather than by class
rank. Doing so allows the graduating high school seniors to
share civic responsibility in shaping their ceremony. The
Duval County School Board has done no more here.
Moreover, the School Board policy evinces another
legitimate secular purpose in allowing students to solemnize
213a
the event as a se educational experience. See Chaudhuri v.
Tennessee, 130 F.3d 232, 236 (6th Cir. 1997); Tanford v.
Brand, 104 F.3d 982, 986 (7th Cir. 1997); Jones v. Clear Creek
Indep. Sch. Dist., 977 F.2d 963,966-67 (5th Cir. 1992); cf.
Lynch v. Donnelly, 465 U.S. 668, 693 (1984) (O’Connor, J.,
concurring). This purpose is not vitiated 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 Capital
Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 760
(1995) (“Our 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.”); Board of Educ. v. Mergens, 496.S. 226, 249
(1990) (plurality opinion) ("[P]revent[ing] discrimination
against religious and other types of speech" has an
“undeniably secular” purpose); Americans United For
Separation of Church and State v. City of Grand Rapids, 980
F.2d 1538,1543 (6th Cir. 1992) (en banc) (“[A] policy of
treating religious speech the same as all other speech
certainly serves a secular purpose.”). 7
214a
Nevertheless, the majority opinion and_ special
concurrence suggest that the policy has no "clear" or
"legitimate" secular purpose, and posit three pieces of
evidence to show that any avowed secular purpose is
actually a “sham.” First, the majority says that the School
Board promulgated the policy as a means to evade the
strictures of Lee; second, the policy's solely sectarian
purpose is said to be established by examining the title of the
Reynolds Memorandum, “Graduation Prayer”; and finally,
the majority suggests that comments made by some
members of the School Board, notably after the policy had
been promulgated and distributed in Duval County,
likewise evinces a wholly sectarian purpose.
In the process of erecting this argument, the majority
opinion, without any authority, ignores the text of the policy
and its explicitly stated secular purpose, as if there were
none. The majority would divine a wholly sectarian purpose
merely by looking at the antecedent history, the title, and the
post-enactment debate. 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. A review of
the pertinent history, however, yields only the observations
that Duval County had a long tradition of clergymen
offering prayers at commencement ceremonies, that in the
215a
eee io |
ple ALTE ea LAAT 8 0 cr chord © Seine
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. "[W]Jhile it is possible to discern the
objective “purpose” of a statute (ie., 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, . . . 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 (1987) (Scalia, J., dissenting).
In this case 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 complete autonomy,
choose a secular or sectarian message, and to afford the |
students the option of having no message at all. See id. at
452. The majority opinion offers no reason to disturb the
216a
district court's findings which are grounded in the facially
neutral language of the Reynolds Memorandum.
The majority opinion also suggests 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 along 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; but 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
217a
Pier wees eam muerte Une
PE EL RE le
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. But they
cannot undo or limit that which the text makes plain."
Brotherhood of R.R. Trainmen v. Baltimore & Ohio R. Co.,
331 U.S. 519, 528-29 (1947). The Eleventh Circuit and its
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)
(“Section and chapter titles cannot alter the plain meaning of
a statute; they can only assist in ambiguity.”); Scarborough
v. Office of Personnel Management, 723 F.2d 801, 817 (11th
Cir. 1984) (“[R]eliance upon heading 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) ("[T]he plain and
unambiguous meaning of the text of the section cannot be
extended by its title or heading.").
Finally, the majority opinion points 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
218a
Memorandum of May 5 is essentially unknown.” Adler |
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 1st 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. The most one could say is that
the statement of one Board member at the June 1st meeting
could be characterized as advocating direct school
involvement with religion at graduation ceremonies.’
*The majority opinion offers 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 majority refers 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 out a 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 the court, that of Board member Stan Jordan, was also
219a
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 v. Gwinnett County Sch. Dist., 112 F.3d
1464,1472 (11th Cir. 1997). Indeed in Bown, this Circuit 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 for voting for the Act, could not "override the
express statutory language articulating a dear secular
purpose." Id.°
supportive of the policy.See id. at 8 (“1 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.
The majority opinion’s reliance on Jager v. Douglas County
School District, 862 F.2d 824 (11th Cir. 1989), as controlling or at least
informing the secular purpose inquiry in this case is misplaced. It cites
Jager for the proposition that when a policy's “actual purpose” is
religious, or “intrinsically religious,” id. at 830, it 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 v. Aguillard,
482 U.S. 578, 586-87 (1987). 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
220a
In sum, whether standing alone or in concert, the three
pieces of evidence cited by the majority 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
Lemon.
B.
As for whether the policy has the primary effect of
advancing religion, I do not see how a policy that on its face
strips the School Board of any authority over the central
decisions - - who speaks, whether there will be a speaker, or
what the content of the speech may be - =can have the
primary effect of advancing religion in any way. See Doe v.
Madison Sch. Dist. No. 321, 147 F.3d 832, 835 (9th Cir.
1998), withdrawn & rehg en banc granted, 165 F.3d 1265 (9th
Cir. 1999). As the district court found, the implementation of
the policy may result in no prayer at all. Adler I, 851 F.
Supp. at 454. 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.
student organizations deliver invocations prior to football games had as
its “preeminent purpose” the endorsement of Protestant Christianity. 862
F.2d at 830. The only discretion left to the students was the selection of
who would pray.
221a
seats en
cities sie reas
The Duval County School Board policy does not
guarantee that a prayer will be uttered or that religion will
be aided; any such result is wholly dependent on a private
actor making an autonomous decision to deliver a prayerful
message. The Supreme Court has repeatedly upheld facially
neutral programs that may permit an individual to support
religion. See, e.g., Agostini v. Felton, 521 U.S. 203, 223-232
(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
v. Catalina Foothills Sch. Dist. 509 U.S. 1, 8-12 (1993)
(sustaining section of Individual with Disabilities Act
providing disabled children with aid regardless of whether a
child attends a sectarian institution); Witters v. Washington
Dep't of Servs. for the Blind, 474 U.S. 481, 487-89 (1986)
(holding that Establishment Clause not violated when the
state paid a blind student's tuition at a Christian college
through a generally-applicable aid program, and observing
that aid reach a religious institutions “only as a result of the
genuinely independent and private choices of aid
recipients”); Mueller v. Allen, 463 U.S. 388, 397-99 (1983)
(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").
ad
For many of the same reasons, | would find 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
Board of Educ. v. Mergens, 496 U.S. 226, 253 (1990) (plurality
opinion); Widmar v. Vincent, 454 U.S. 263, 272 n.11 (1981);
Chabad-Lubavitch v. Miller, 5 F.3d 1383,1389 (11th Cir. 1993)
(en banc); Jager v. Douglas County Sch. _Dist., 862 F.2d
824,831 (11th Cir. 1989).
While the majority today holds only that the Duval
County School Board's policy is facially unconstitutional,
implicit in its 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 the court's holding is "the
state's control over nearly all aspects of the graduation
ceremony." But the degree of control that schools generally
exert over high school graduation ceremonies is unlikely to
because graduation ceremonies are, by their nature, highly
choreographed. The majority opinion therefore leaves
school officials with only two choices: either eliminate
student speech altogether or retain student speech, subject to
223a
siden —-
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;’ 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. For me, 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 has done no more than that I would, therefore, affirm
the judgment of the district court.
’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 subordinated 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 (1965). Moreover the belief “need not be acceptable logical,
consistent, or comprehensible to others." Thomas v. Review Bd., 450 U.S.
707, 714 (1981). Indeed, if the School Board's censorship is not “rigorous”
enough and thereby allows religion to creep into graduation ceremonies,
a policy of allowing monitored student speech may still be subject to
constitutional attack
224a
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
EMILY ADLER, etc., et al.,
Plaintiffs
-VS- Case No. 98-460-CIV-J-10C
THE DUVAL COUNTY SCHOOL
BOARD and THE DUVAL COUNTY
PUBLIC SCHOOL DISTRICT,
Defendants.
/
ORDER DENYING APPLICATION
FOR PRELIMINARY INJUNCTION,
ADVANCING THE CAUSE ON ITS
MERITS, AND DIRECTING THE ENTRY OF
[JUDGMENT
In this action the Plaintiffs seek the entry of a
preliminary injunction prohibiting the Defendants "from
sponsoring and conducting religious exercises during high
school graduation ceremonies throughout the Duval Public
School District..." (Verified Complaint, Doc. 1, p.1). A
hearing on the motion was conducted today in open Court.
For the reasons that follow, the Court had decided that the
application for a preliminary injunction should be denied,
that the case on its merits should be advanced and
consolidated with the hearing for application of preliminary
injunctive relief pursuant to Rule 65(a)(2) of the Federal
225a
Soy —
PA Hak aap Reb ai CANE rete! sn arthCey
Rules of Civil Procedure, and that Final Judgment should be
entered in favor of the Defendants.’
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.
Adler v. Duval County School Board, 851 F. Supp. 446 (M.D.
Fla. 1994), appeal dismissed as moot, 112 F.3d 1475 (11th Cir.
1997). This action presents precisely the same claims
predicated upon the same constitutional theories or
contentions; and, at today's hearing, counsel stipulated that
the operative facts remain unchanged.” The only factual
difference is that a new series of graduation ceremonies is
scheduled for 1998. The present case was filed for the
purpose of relitigating the issue based upon the contention
of Plaintiffs' counsel that the law has now evolved in their
favor as manifested by the intervening decisions in ACLU of
New Jersey _v. Black Horse Pike Regional Board of
Education, 84 F.3d 1471 (3d Cir. 1996), en banc; Harris v.
Joint School District No. 241, 41 F.3d 447\9" Cir. 1994),
*A separate Order has been entered disposing of other pending
motions. >
“The Plaintiffs have filed a separate motion for the Court to take
judicial notice of the entire file in the earlier proceedings (Adler I).
226a
vacated as moot, 115 U.S. 1154, 115 S.Ct. 2604, 132 L.Ed.2d
849 (1995); and Chandler v. James, 958 F.Supp. 1150 (M.D.
Ala. 1997).
Both Harris and Chandler are clearly distinguishable
from this case. Both involved policies designed to permit
religious prayer during public school graduation
ceremonies. As I previously determined in this case
however, the challenged policy of the School Board had a
primary secular purpose. See Adler 1, 851 F.Supp. at 451-
452. The decision of the Third Circuit in Black Horse Pike is
more closely in point, but turned in large measure upon the
Court's determination that high school graduation
ceremonies are not limited public fora within the meaning of
the Supreme Court jurisprudence under the free speech
clause of the First Amendment. But see Brody v. Spang, 957
F.2d 1108 (3d. Cir. 1992), an earlier decision of the Third
Circuit upon which I relied in Adler 1, 851 F.Supp. at 454.
See also the dissent in Black Horse Pike, 84 F.3d at 1491, n.4.
I have concluded, therefore, that the proper decision
in this case is dictated by the decision I reached in Adler L
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 is 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.
227a
Accordingly, it is ORDERED and ADJUDGED:
3 That Plaintiffs' application for a preliminary
injunction is in all respects DENIED.
2. The trial of the action on the merits is advanced
and consolidated with the hearing of the application for a
preliminary injunction pursuant to Rule 65(a)(2), Federal
Rules of Civil Procedure, and the Clerk is directed to enter
final judgment in favor of the Defendants against the
Plaintiffs with costs to be assessed according to law.
IT ISSO ORDERED.
DONE and ORDERED at Jacksonville, Florida, this 27th
day of May, 1998.
/s/ W. Terrell Hodges
UNITED STATES DISTRICT JUDGE
c: Counsel of Record
228a
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
KAREN ADLER, etc., et al.,
Plaintiffs,
-Vs- Case No. 93-833 Civ-J-10
THE DUVAL COUNTY SCHOOL
et al.,
Defendants,
and
SHARON GREEN, etc., et al.,
Defendants-Intervenors.
/
— MEMORANDUM OPINION
AND ORDER ON MOTIONS FOR
SUMMARY JUDGMENT
This is an action brought under 42 U.S.C. § 1983 and the
First and Fourteenth Amendments to the United States
Constitution in which the Plaintiffs claim that their rights
under the Establishment Clause of the First Amendment
have been violated by the Defendants. Specifically, the
claim is that the Defendant school authorities have adopted
a policy that permits prayer at graduation exercises in the
public high schools of Duval County, Florida, and that such
229a
xuhi PLP eae Lae TaN Se whee ke re ee
policy violates the First Amendment prohibition against the
establishment of religion by the state.’
The Plaintiffs constitute a group of graduating seniors
and a parent of a graduating senior who brought this action
in early June, 1993, to enjoin the Duval County Public School
District from permitting religious invocations and
benedictions at the 1993 public high school graduation
ceremonies. The Plaintiffs also sought declaratory relief and
damages. Another group of students was granted leave to
intervene as Defendants, opposing the Plaintiffs' claims and
asserting their own First ‘Amends right of free —— at
graduation ceremonies.
On June 4,1993, after a hearing in open court, I orally
denied the Plaintiffs' motion for preliminary injunctive
relief, finding that the Plaintiffs' had failed to sustain their
burden of demonstrating a substantial likelihood of success
on the merits (Doc. 18). A renewed motion for injunctive
relief was also denied by written order entered the following
week (Doc. 32), and the 1993 graduation ceremonies at the
seventeen high schools within the Duval County school
district were conducted under the School Board's policy
'There is no dispute that jurisdiction exists under 28 U.S.C. §
1343(a)(3), or that the Defendants acted, and are acting, under color of state
law within the meaning of that statute and 42 U.S.C. § 1983.
*This decision was made largely on the authority of Jones v. Clear
Creek Independent School District, 977 F.2d 963 (5" Cir. 1992), cert. denied
__ U.S. ___, 113 S.Ct. 2950, 124 L.Ed.2d 697 (1993), a recently decided case
on closely analogous facts favoring the position of the Defendants.
230a
which is the subject of the constitutional challenge made in
this litigation. The case then proceeded. through the
discovery stage and is presently before the Court on the
parties' cross motions for summary judgment pursuant to
Rule 56 of the Federal Rules of Civil Procedure.
Upon due consideration, I have determined that there is
no genuine issue of material fact, that the case can be
decided on the existing record as a matter of law pursuant to
Rule 56, and that the Defendants are entitled to prevail on
the constitutional issues presented.’ It follows, for the
reasons explained below, that the plaintiffs' motion for
summary judgment will be denied, the Defendants' motion
and that of the Intervenors will be granted, and final
judgment will be entered accordingly.
BACKGROUND
Shortly after the Duval County high school graduation
ceremonies in early summer, 1992, the Supreme Court of the
United States decided Lee v. Weisman, _U.S.__, 112 S.Ct.
2649, 120 L.Ed.2d 467 (1992), holding that the Establishment
Clause of the First Amendment is violated whenever school
°A pretrial conference was conducted on the record on April 18,
1994. All counsel agreed that there is no genuine issue of material fact. The
only possible exception relates to the intention, motivation or purpose of the
Defendants in pursuing the disputed policy. For the reasons stated later in
the text, however, I have determined that this potential fact issue is not
material; or, even if it was material, if one accepts the Plaintiffs’ factual
assertions on the point it would not change the result
23la
officials, as state actors, plan for and arrange the making of
religious albeit “nonsectarian” prayer in the form of
invocations and benedictions at high school graduation
exercises. In response to that decision, Vicki R. Reynolds,
the Duval County School Board's legal liaison, at the
direction of Larry Zenke, Superintendent of Schools for the
Duval County public schools, wrote a memorandum to all
school principals in the county saying that “due to the recent
Supreme Court Ruling in Lee v. Weisman, there should be
no prayer, benediction, or invocation at any graduation
ceremonies.” Deposition of Larry Zenke, at 7-8 and at
Exhibit 1. Thereafter, Superintendent Zenke received a
number of letters suggesting that student-initiated and
student-led prayer might be constitutional. Deposition of
Larry Zenke, at 8-9. Accordingly, he directed Ms. Reynolds
to further research the issue. Id. She later advised
Superintendent Zenke that it would be appropriate for
principals to allow student-initiated and stucent-led prayer
during the graduation ceremony so long as_ the
administration and faculty were not involved in the decision
making process. Id. at 10-11. Accordingly, and again
pursuant to Superintendent Zenke's direction, Ms. Reynolds
issued to all high school principals another memorandum
dated May 5, 1993, entitled “Graduation Prayers” stating:
You will recall that after the 1992 Supreme
Court case of Lee v. Wiseman [sic], you received a
memorandum from me instructing that because of
~ the decision, we would no longer be able to have
prayers at graduation ceremonies. Most of you
232a
have recently been bombarded with information, as
have I, regarding whether or not student initiated
and led prayers are acceptable based upon a recent
Fifth Circuit Opinion. The purpose of this
memorandum is to give you some guidelines on
this issue if the graduating students at your school
desire to have some type of brief opening and/or
closing message by a student.
This area of the law is far from clear at this
time, and we have been threatened by lawsuits
from both sides on the issue depending on what
action we take. The key to the Lee v. Wiseman [sic]
decision was that the prayer given at that
graduation ceremony was directed and initiated by
the school system, which made it unconstitutional,
rather than by permissive student choice and
initiative. With that premise in mind, the following
guidelines may be of some assistance:
‘ The use of a brief opening and/or closing
message, not to exceed two minutes, at high
school graduation exercises shall rest within
the discretion of the graduating senior class;
2. The opening and/or closing message
shall be given by a student volunteer, in
the graduating senior class, chosen by
the graduating senior class as a whole;
233a
3. If the graduating senior class chooses to
use an opening and/or closing message,
the content of that message shall be
prepared by the student volunteer and
shall not be monitored or otherwise
reviewed by Duval County School Board
[sic], its officers or employees;
The purpose of these guidelines is to
allow the students to direct their own
graduation message without monitoring or
review by school officials.
Deposition of Larry Zenke, at Exhibit 3.
At a subsequent School Board meeting held on June 1,
1993, a motion was made to substitute a “moment of silence”
for any student initiated messages that might otherwise be
given pursuant to the guidelines or policy announced in Ms.
Reynolds' memorandum of May 5. That motion failed by a
vote of four to three; and, thus, while the Reynolds'
memorandum of May 5 was not itself the subject of any
specific vote by the Board, that memorandum was left in
force with the acquiescence or tacit approval of the Board as
its’ official policy governing the 1993 commencement
exercises. Moreover, it remains in effect and, unless altered
by Defendants or enjoined by this Court, will govern the
approaching ceremonies in 1994 as well.
234a
With respect to the 1993 ceremonies conducted after this
Court declined to enjoin implementation of the May 5
memorandum, the high school principals, in accordance
with the guidelines established the memorandum, delegated
decision making authority to graduating senior students at
each school respectively, to determine whether student
messages should be given at the opening and/or closing of
the graduation exercises.‘ At ten of the seventeen high
schools, it is undisputed that the students opted for
messages that constituted various forms of religious prayer.
At the remaining seven schools, however, it appears that
either no messages were given at all, or that any that were
given were entirely secular, having no religious aspects.
THE PARTIES' CONTENTIONS
Plaintiffs move for summary judgment and argue
that prayer during public school graduation ceremonies is
per se unconstitutional regardless of the manner in which
the decision to have prayer is made and how or by whom
“At some of the schools, the decision was delegated to one or more
of the senior class officers, or toa group of students who were in charge of
the graduation ceremony. See Depositions of Dr. Dalton Epting, Principal,
Mandarin High School, Doc. 95, at 17-19; Earlene T. Lockett, Principal,
Ribault Senior High School, Doc. 100, at 11; James H. Jaxon, Principal, Terry
Parker High School, Doc. 97 at 14; Ronell Poppel Principal, Ed White High
School, Doc. 102, at 18-20; David E. White, Principal, Wolfson High School,
Doc. 105, at 27-28. At other schools, the entire senior class student body was
involved in the decision making process. See Depositions of Steve Hite
Principal, Englewood High School, Doc. 96, at 18-20; Jimmy Johnson,
Principal William Raines High School, Doc. 98, at 8; Dr. Larry Paulk,
Principal Fletcher High School, Doc. 101, at 19; William L. Stone, Principal,
First Coast High School, Doc. 104, at 16.
235a
aia
the prayer is presented. Plaintiffs argue that the primary
purpose of the guidelines in the Reynolds' memorandum of
May 5 was to advance religion. Plaintiffs also argue that
delegating to the students the decision whether prayers are
to be included in graduation exercises does not insulate
Defendants from being “excessively entangled” with the
religious aspect of the graduation ceremony.
Defendants also move for summary judgment and
argue that the policy guidelines set out in May 5
memorandum had a secular purpose; that any prayers
delivered were student-initiated, student-written and
student delivered without monitoring or review by school
officials; and therefore, the policy as implemented lacked the
pervasive government involvement condemned in Lee and
in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29
L.Ed.2d 745 (1971). Defendants contend that the purpose of
the guidelines was to provide direction to school principals
concerning graduation messages without advancing or
inhibiting religion in any official sense condemned by the
Establishment Clause, and that allowing the students to
decide whether and what type of speech to have at
graduation does not excessively entangle the state with
religion. Defendants and the Intervenors further assert the
students’ constitutionally protected right to freedom of
expression at public high school graduations.
236a
DISCUSSION
_The First Amendment's mandate that "Congress shail
make no law respecting an establishment of religion, or
prohibiting the free exercise thereof" applies to the states
through the Fourteenth Amendment. Cantwell _v.
Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed.
1213 (1940). Pursuant to the Establishment Clause, the
government may not aid one religion, and all religions or
favor one religion over another. Everson v. Board of
Education of Ewing Township, 330 U.S. 1, 15, 67 S.Ct. 504,
511, 91 L.Ed.2d 711 (1947). For the last twenty years, the
United States Supreme Court has accomplished the often
excruciating task of keeping government and religion apart
by resorting to the three-pronged test set out in Lemon v.
Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1970).
“First, the statute [or policy] must have a secular legislative
purpose; second, its principal or primary effect must be one
that neither advances nor inhibits -religion; finally, the
Statute must not foster ‘an excessive government
entanglement with religion.” Id. at 612-13, 91 S.Ct. 2111-12
(citations omitted). Failure to meet any one of these tests
requires that the challenged statute or policy be stricken as
violative of the Establishment Clause.
Last term, however, in deciding Lee v. Weisman, 112
S.Ct. 2649 (1992), the Supreme Court did not engage in a
Lemon analysis. Rather, the Supreme Court pursued a fact-
sensitive “coercion” analysis. Id. at __, 112 S.Ct. at 2660.
The Court stated that it need not reconsider Lemon because
237a
of controlling precedents concerning prayer and religious
exercise in primary and secondary schools pointing the way
to resolution of the case before it without applying the
Lemon test. Id. at 112 S.Ct. at 2660. The Court stated that it
need not reconsider Lemon because of controlling
precedents concerning prayer and religious exercise in
primary and secondary schools pointing the way to
resolution of the case before it without applying the Lemon
test. Id. at 112 S.Ct. at 2655.° The Supreme Court's failure to
apply Lemon after Lee. See e.g, Sherman v. Community
Consol. Sch. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992), cert.
denied, __ U.S. ___, 113 S.Ct 2439,124 L.Ed.2d 658 (1993). In
Lamb's Chapel _v. Center Moriches Union Free School
District, however, the Court specifically declared that
Lemon “has not been overruled.” __ US. a ee
S.Ct. 2141, 2148 n.7,124 L.Ed.2d 352 (1993). See also Chabad-
Lubavitch of Georgia v. Miller, 5 F.2d 1383, 1388 (11th Cir.
1993) (en banc). Accordingly, it is appropriate to engage in
both a Lemon analysis and to apply the “coercion” test of
Lee.
A. LEMON APPLICATION
1. Secular Purpose
The Plaintiffs contend that the true purpose of the
Reynolds’ memorandum of May 5 was to preserve and
perpetuate prayer during graduation exercises. Thev
"The Supreme Court has decided Establishment Clause cases before
Lee without relving on the Lemon test. See, e.g, Lynchy. Donnelly. 465 US.
008, 079, LONS.Ct. 1255, 1302, 79 L_Ed.2d 604 (1984).
238a
contend that the guidelines set out in the memorandum
were prepared and distributed only after pressure was
brought to be
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