Adler v. Duval Cty. School Board , 174 F.3d 1236 ( 1999 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
________________________________ ELEVENTH CIRCUIT
05/11/99
No. 98-2709 THOMAS K. KAHN
________________________________ CLERK
D.C. Docket No. 98-460-Civ-J-10C
EMILY ADLER, individually; on behalf
of herself and all persons similarly situated,
SETH FINCK, individually; on behalf of
himself and all persons similarly situated, et al.,
Plaintiffs-Appellants,
versus
DUVAL COUNTY SCHOOL BOARD,
DUVAL COUNTY PUBLIC SCHOOL DISTRICT,
Defendants-Appellees.
----------------------------------------------------------------------------------------
________________________________
No. 98-2720
________________________________
D.C. Docket No. 98-460-Civ-J-10C
EMILY ADLER, individually; on behalf
of herself and all persons similarly situated,
SETH FINCK, individually; on behalf of
himself and all persons similarly situated, et al.,
Plaintiffs-Appellees,
versus
SUSAN BOLES, as parent & next friend of
Rebecca Boles, a minor child and on behalf
of all public school students within the Duval
County Public School District,
Movants-Appellants.
_________________________________________________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________________________________________________
(May 11, 1999)
Before HATCHETT, Chief Judge, MARCUS, Circuit Judge, and KRAVITCH, Senior Circuit
Judge.
HATCHETT, Chief Judge:
2
Appellants, students of various grade levels in the Duval County, Florida school system,
challenge the Duval County school system’s policy of permitting graduating students to vote on
whether to have unrestricted student-led messages at the beginning and closing of graduation
ceremonies as facially and as-applied violative of the Establishment Clause. We hold that this
policy facially violates the Establishment Clause, reverse the district court’s denial of appellants’
motion for preliminary injunction and dismissal on the merits and remand for further
proceedings consistent with this opinion.
I. BACKGROUND
Prior to 1993, public schools in Duval County, Florida, permitted religious officials to
conduct formal prayers during graduation exercises. The Supreme Court, however, ruled in
1992 that school-sponsored prayer at public school graduation ceremonies violated the
Establishment Clause. Lee v. Weisman, 505 U.S. 577 (1992). Following Lee, Duval County
Public School Superintendent Larry Zenke, at the direction of Vicky Reynolds (the school
system’s Liaison for Legal Affairs), issued a memorandum instructing all school officials in the
Duval County school system to end the practice of having prayer at graduation ceremonies.1
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.2 Reynolds and Superintendent Zenke met to decide
1
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.”
2
For example, Calvin Carr, the High School Director for First Baptist Church in
Jacksonville, wrote the following letter (dated March 3, 1993) to Reynolds:
3
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
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 Duval County School Board Members that stated:
For about a month my office has been receiving calls from principals
asking for guidance as to the status of prayers at graduation. Students and parents
had been informing them that there had been a change in the status due to a recent
Court case and that student-led and initiated prayer was now acceptable.
4
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 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:
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, 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.
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
5
Wallace v. Jaffree, 472 U.S. 38 (1985).3 The School Board never voted specifically on the
3
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-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.
Buckley: If we leave it [the Reynolds memorandum] as it is we have not told
anybody to do anything or prevented them from doing anything. And that’s what
I feel we should do. If we pass this motion as it is on the floor we are putting
ourselves into it and saying you shall not pray. You shall have a moment of silent
meditation and therefore we are injecting ourselves into what is happening at
graduation. And I think the only way we can keep ourselves clear on this thing is
to keep ourselves out of what happens in this area of the graduation ceremony.
Corwin: God is not going away. Neither is our godly heritage for which
American patriots sacrificed their lives and fortune from the time of the American
revolution through Desert Storm. Americans who believe this have rights, too.
The free public education system in America is based on the principles of good
citizenship. I truly believe that this Board is dedicated to the premise that
acceptable standards of conduct be formed in our students including self respect
and respect for others regardless of race or religion. 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
6
guidelines set forth in the Reynolds memorandum; “that 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.4
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
these special interest groups that are fanning their particular agenda at the
expense of the best interest of this country? Mr. Chairman, I plan to vote for the
administration plan and against the proposal that’s on the table.
4
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.
7
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.5 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 II, 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 constituted an
establishment of religion and infringed on their free exercise of religion.6 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
5
These “original” plaintiffs consisted of the following students: Emily Adler, Laura
Jaffa and Robin Zion. Robin Rand later joined the action.
6
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 in
2000 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.
8
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.
III. 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.7
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.8 The first problem that
7
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.
8
The Establishment Clause applies to the states through the Fourteenth 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
9
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 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.9 In Lamb’s Chapel v. Center Moriches Sch. Dist., the Court stated that it had not
not limit the reach of the Establishment Clause. See Jager v. Douglas County Sch. Dist., 862
F.2d 824, 828 n.7 (11th Cir.), cert. denied, 490 U.S. 1090 (1989).
9
See, e.g., Board of Educ. of Kiryas Joel v. Grumet, 512 U.S. 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 (“[w]e 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)
10
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 of Montgomery,
417 U.S. 556, 568 (1974) (quoting Cooper v. Aaron, 358 U.S. 1, 17 (1958)).
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
(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 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.”).
11
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 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 public 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
12
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 closing 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 is less obvious or intrusive does not save the
school system’s policy from a facial violation of the Establishment Clause.10 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
10
In Engel v. Vitale, the Court spoke of less direct state control for 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).
13
school graduation, teachers and principals must and do retain a high degree of control over the
precise contents of the program, the speeches, the timing, the movements, the dress, and the
decorum of the students.” 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’l 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 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
14
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 U.S. 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 school’s policy to
permit those speakers to make a private choice about what to say. See Doe, 147 F.3d at 835 n.5
(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
15
two minutes at the beginning and closing of the graduation ceremony. The Doe policy does not
reveal the sequence in which the four 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 1477-88.11 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 manner at all.” Black Horse Pike, 84 F.3d at 1477.
Instead, the Black Horse Pike court held that “[a]n impermissible practice can not be transformed
into a constitutionally 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
11
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.
16
one through delegating some aspect of the practice to non-governmental 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.” Lee, 505
U.S. 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 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.12 Thus, we find that the school system believed it could give a
“wink and a nod” to controlling Establishment Clause jurisprudence through attempting to
12
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.
17
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 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 a publically-
18
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.) (“[i]magine that the Gideons came
to . . . schools . . . every morning to lead students in prayer. Is there any doubt that such morning
prayers would be impermissible . . . 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).13 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 I followed this reasoning, stating that “the
13
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.
19
participants clearly understand that the student messages are just that – student messages that are
divorced entirely from any governmental 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).14 The court held that
Jones “did not hold that a policy is insulated from constitutional scrutiny under the
14
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 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.
20
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 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
21
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 silence
during the invocation and benediction. This pressure, though subtle and indirect,
can be as real as any overt compulsion. . . . But for the dissenter of high school
age, who has a reasonable perception that she is being forced by the State to pray
in a manner her conscience will not allow, the injury is 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 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,
22
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 U.S. at 612-13. The Duval County school system’s policy
violates the Establishment Clause if it fails to meet any of 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,
23
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 U.S. 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 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 Jager, 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
24
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 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) (“[r]ecognizing 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 I, 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 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.
25
“No matter what message a minority of students may wish to convey, the graduation forum is
closed 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.15
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
15
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 non-public forum; quite different from the private religious
speech in a public forum in the instant case.” Chabad-Lubavitch, 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 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).
26
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 schoolchildren. 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 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 Jaffree, 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 school’s 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.
27
3. Entanglement
Because the policy clearly fails the first two prongs of Lemon, we need not engage in an
analysis of Lemon’s third “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
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.16
REVERSED and REMANDED.
16
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.
28
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 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
29
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.1 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.2 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).3 As
1
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 “flagpole prayer” where students spontaneously congregate to pray).
2
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 religious 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 U.S. at 586 & 89, 112 S. Ct. at 2655 & 56 (describing prayer as a formal religious
exercise); Jager v. Douglas County Sch. Dist., 862 F.2d 824, 830 (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.
3
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
30
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 I will not repeat that analysis here.4
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.
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.
4
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, conduct of that nature plainly falls within the
Supreme Court's proscriptions in Lee.
31
II. 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 (1993); Chabad-Lubavitch v. Miller, 5 F.3d 1383, 1388 & n.8 (11th Cir. 1993)).5
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 cases that involve prayer at high school
graduations. Upon examination, however, I am convinced that Lemon remains binding law even
in this particular area.6
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.7 See Lee, 505 U.S. at
5
The Supreme Court has continued to apply Lemon by name and did so as recently as
two terms ago. See Agostini v. Felton, __ U.S. __, 117 S. Ct. 1997, 2015 (1997). 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).
6
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, 91 S. Ct. at 2111 (1971).
7
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
U.S. 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., 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
32
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.8 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 Clause problems implicated in the practice at issue in Lee were so obvious
as to compel the result, the majority opinion seems to require (or at least permit) courts to apply the
general Lemon framework in more difficult cases in which the state's involvement and coercion are
not as plain.
Indeed, every court that has addressed the issue of prayer at graduation since Lee has
assumed this conclusion and has applied both the Lee and Lemon analyses. In Jones v. Clear Creek
Indep. Sch. Dist., a case the Supreme Court remanded in light of Lee, for example, the Fifth Circuit
decided that a full reconsideration of the case required the court to apply the three-pronged test of
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).
8
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, 112 S. 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.
33
Lemon in addition to considering the implications of Lee. See 977 F.2d 963, 966 & n.8 (5th Cir.
1992) (quoting Lynch v. Donnelly, 465 U.S. 668, 679, 104 S. Ct. 1355, 1362 (1984) for the
proposition that the Court is “'unwilling to be confined to any single test or criterion in this sensitive
area'”) (internal punctuation omitted).9 The Third Circuit, writing en banc, took a more forceful
view of the question and specifically stated that because Lemon was still good law the court was
bound to apply it despite its conspicuous absence from the Lee analysis. See ACLU v. Black Horse
Pike Reg. Bd. of Educ., 84 F.3d 1471, 1484 (3d Cir. 1996) (en banc). Even the Black 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 as 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
9
The Fifth Circuit reaffirmed the continued applicability and relevance of the Lemon
test in school prayer cases, in addition to the analysis in Lee, in Ingebretsen v. Jackson Public
School Dist., 88 F.3d 274, 278-79 (5th Cir. 1996), in Doe v. Duncanville Indep. School Dist., 70
F.3d 402 (5th Cir. 1995), and again in Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806 (5th Cir.
1999).
34
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 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.10
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 U.S. 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 criminalized 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
10
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.”)
35
here, the difference is one only of degree; both practices violate 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).
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 clearly 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
36
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.11 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,12 the plain terms of the policy 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.
11
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).
12
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 U.S. at585-95 & 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); Jager, 872 F.2d at 829-30. As the majority notes, the district court committed error when
it acknowledged that our decision in Jager relied upon such evidence but ignored the case on this
point in part because the Jager panel was not unanimous. See Adler I, 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.
37
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.
38
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.S. 226, 250
(1990) (plurality opinion). I, therefore, respectfully dissent.
I.
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
39
“necessity one of line-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. Washington Dep’t of Servs. for the
Blind, 474 U.S. 481 (1986)).
Instead of purging graduation ceremonies of all prayer, 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.
40
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 I”), vacated as moot, 112 F.3d 1475(11th Cir. 1997) (“Adler II”).1 Invocations, benedictions, and other religious prayers or messages
were traditionally offered by clergy and others at public high school commencement ceremonies in
the Duval County School District. In 1992, following the decision in Lee v. Weisman (holding that
a Providence, Rhode Island school principal, acting in accord with school board policy, violated the
1
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 I, 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 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 “[w]hether [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 fashion,
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 U.S.
589, 591 (1988).
41
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, 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 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 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:
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
42
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
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 schools’ 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: “[n]early half a century of review and refinement of
43
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 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:
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.
44
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 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.
45
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 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
46
First Amendment’s Religion Clauses mean that religious beliefs and religious expression 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 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 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
47
argument -- that by providing the platform, the speech becomes public -- goes too far. The second --
that the speaker somehow garners state authority by virtue of the plebiscite -- has no logical
rationale.
Even if 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, if 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 criteria; and the student has complete
autonomy over content.2 See id. at 835-37.
2
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 Jones, 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 will of their peers. See id. at 970-71.
48
The majority insists that the delegation of responsibilities to nongovernmental 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 if they wanted a student
message, and to select a student speaker if they so chose. The majority has in no way proven that
the students’ private conduct has become so “entwined with government policies” and so
The Fifth Circuit recently revisited the issue of student-initiated 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 sectarian 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).
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 . . . chosen by the majority; the relevant
speakers are instructed to pray.” Id. at 456-57.
In contrast to each of these policies, Duval County students vote on whether to have a
message of unspecified content delivered by a student. This is the critical distinction.
49
“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 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.3
3
Simply providing a platform on a neutral basis is not enough to convert private action
into state action. In a series of cases granting religious groups access 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 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
authorizing 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)
50
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 U.S. 753, 760 (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.4 If the senior class were asked to vote whether to have a student deliver
(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”).
4
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 in 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’ Ass’n, 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
51
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:
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 argument 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
of subjects may be discussed and considered.” Rosenberger, 515 U.S. at 831.
52
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.
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, whether there will be
53
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 non-governmental 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.
C.
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.
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
of the Duval County policy, that any student message is utterly divorced from any School Board
54
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.
II.
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. Kurtman. 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 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
55
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 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).
56
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 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. I 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.
57
Moreover, the School Board policy evinces another legitimate secular purpose in allowing
students to solemnize the event as a seminal 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 U.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.”).
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
58
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 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]hile it is possible to discern the objective ‘purpose’ of a statute
(i.e., the public good at which its provisions appear to be directed), or even the formal motivation
for a statute where that is explicitly set forth, . . . 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).
59
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 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 alone compelling, the outcome of that debate. The title
affixed to the Reynolds Memorandum does no more than alert the reader to the general subject
matter of the text; 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,
60
that the message shall take place at the beginning and/or closing of the graduation ceremony, and,
finally, that the content of the message shall be prepared by the student speaker without monitoring
or review by the School Board. The title cannot take the place of a detailed review of the policy’s
facial provisions, let alone create a wholly sectarian purpose out of a textually neutral
pronouncement.
Besides being unnecessary, use of the title to inform the plain meaning of the policy’s
language is improper. Indeed even if we were examining the title of a statute or legislative
codification -- and we are doing far less than that here -- the Supreme Court has warned that “the
title of a statute and the heading of a section cannot limit the plain meaning of the text. For
interpretive purposes, they are of use only when they shed light on some ambiguous word or phrase.
They are but tools available for the resolution of a doubt. 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 clarifying
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.”).
61
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 Memorandum of May 5 is essentially
unknown.” Adler I, 851 F. Supp. at 452. No debate was had and as far as the record reflects, no
vote was taken on the Reynolds Memorandum. The June 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.5
5
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 supportive of the policy. See id. at 8 (“I plan to vote for the
administration plan and against the proposal that’s on the table.”). Taken as a whole these
utterances by School Board members constitute recognition that the old regime of state-directed
school prayer in Duval County had passed and been replaced by a new regime over which they
had far less control.
62
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 clear secular purpose.”6
Id.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.
6
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 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.
63
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 & reh’g 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.
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
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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”).
C.
For many of the same reasons, I 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 diminish 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
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student speech, subject to censorship by school authorities. If school officials choose the latter
course, they will be left with the unenviable task of identifying the religious content in student
speeches for excision;7 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.
7
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.
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