Adler v. Duval County School Board

KRAVITCH, Senior Circuit Judge,

dissenting, in which BARKETT, Circuit Judge, joins:

I agree with the majority that the Supreme Court’s decisions in Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992), and Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971), control this case. I disagree, however, with the majority’s application of those decisions to the facts of this case. The majority articulately defends the constitutionality of the Du-val County graduation policy, but the analysis is flawed by an unwillingness to look beyond the policy’s terms. A broader, more contextual appraisal leads me to conclude.that the Duval County policy violates the Establishment Clause of the First Amendment. Therefore, I respectfully dissent.

In Lee, 505 U.S. at 586, 112 S.Ct. at 2655, the Supreme Court held a graduation ceremony unconstitutional because (1) school officials were overly involved "with the delivery of a prayer, and (2) audience members were in effect required to participate in a formal religious exercise. Admittedly, the link between the Duval County policy and resulting prayer at graduation ceremonies is not as direct as in Lee. But although the Duval County school administration may have distanced itself from prayer offered during graduation ceremonies, it did not disconnect itself from religious expression. Nor does the policy mitigate the influences that coerce audience members to participate in prayers offered at graduation.

Athough Lee presents a specific example of an Establishment Clause violation, Lemon, 403 U.S. at 612-13, 91 S.Ct. at 2111, still provides the general Establishment Clause test. The Duval County policy runs afoul of the Lemon test because its only credible purpose is to maximize the chance that prayer will continue to play a prominent role in Duval County graduations. Furthermore, the policy’s “primary effect” is to advance religion. The policy communicates an endorsement of religion both because it leads to more religious expression in the opening and closing messages than all other types of speech, and because its purpose is apparent to any reasonable observer aware of its terms, the graduation traditions in Duval County, and the events leading to the policy’s creation.

Invoking the ideals of free student expression and referencing the public forum doctrine do not cleanse the Duval County policy of its constitutional defects. Allowing a student majority to do what the school administration could not offends our constitutional scheme of individual rights. Nor does the policy promote free expression or render the graduation ceremony equally available for any sort of speech'— not when it allows for only one speaker, and a speaker chosen by majority vote at that.

In addition to disagreeing with the majority’s facial analysis of the Duval County policy,! take issue with the conclusion that the plaintiffs Waived their as-applied claims. After analyzing the Duval County policy under both Lee and Lemon, and critiquing the majority’s public forum analogy, this dissent concludes with a brief examination of the procedural posture of the case and the district court’s order advancing the trial on the merits.

A. Lee v. Weisman

The starting point for the analysis of the Duval County policy is Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992), because it is the only Supreme Court case involving prayer at public school graduation ceremonies. In Lee, a *1092principal invited a rabbi to give a prayer at the school’s graduation ceremony and provided a pamphlet suggesting an appropriate tone and possible content for the presentation. Id. at 581, 112 S.Ct. at 2652. The Supreme Court found it unnecessary to apply the Lemon analysis in Lee because two “dominant facts” rendered the rabbi’s prayer so clearly unconstitutional. Id. at 586, 112 S.Ct. at 2655. First, “[t]he government involvement with religious activity [was] pervasive, to the point of creating a state-sponsored and state-directed religious exercise in a public school.” Id. at 587, 112 S.Ct. at 2655. Second, “the State, in a school setting, in effect required participation in a religious exercise.” Id. at 594, 112 S.Ct. at 2659. The majority purports to evaluate Duval County’s policy in light of the standards enunciated in Lee, but it both understates the degree of state direction relevant for the first prong of the Lee analysis and effectively writes Lee’s second “dominant fact,” coerced participation, out of the opinion by conflating it with the state’s control over the religious exercise itself.

1. State Control

In Lee, state actors made the decision to include an invocation and benediction in the graduation ceremony, selected the speaker, and suggested an appropriate tone for the message. Id. at 587-88, 112 S.Ct. at 2655-56. These elements of state involvement are of constitutional import because they “made it clear that the graduation prayers bore the imprint of the State.” Id. at 590, 112 S.Ct. at 2657. Admittedly, the Duval County policy is not as egregious as the practice scrutinized in Lee. The state involvement with prayers offered through the operation of the policy, however, is still too extensive to comport with the Establishment Clause.

In its own search for state involvement, the majority focuses on the student standing alone at the podium delivering an uncensored message, but ignores how she got there. A broader inquiry reveals that the state directs the exercise of prayer at Du-val County high school graduations because: (1) the programmatic constraints imposed by the graduation policy promote religious expression, especially given the context surrounding the policy’s promulgation, (2) the election of a student to deliver the opening or closing “message” is state action, and (3) the vote for student speaker is based on the expected content of the candidate’s message.

According to the majority, “[t]he School Board ... does not suggest in any way ... that the graduating class consider religious or any other criteria in deciding whether to have a student message or in selecting a particular student speaker.” The policy does not permit the school administration to remain passive, however, and the policy’s terms do encourage the senior class to consider religious criteria in planning the opening and closing.

Under the terms of the policy, it is the high school administration that organizes elections for the graduation program. The policy only allows for student input concerning the beginning and end of the-ceremony — portions of the program appropriate for a limited range of speech. The policy also dictates that the opening and closing messages last no more than two minutes, further limiting the types of speech possible. The constraints of the policy itself provide clues about the type of message the school administration had in mind. In case students need more of a hint, however, history provides one. Until the year the policy went into effect, Duval County high school graduations had opened and closed with a prayer. As the district court noted, “[invocations and benedictions have been traditional and are therefore familiar if not expected at high school graduation ceremonies” in Duval County. Adler v. Duval County Seh. Bd., 851 F.Supp. 446, 453 n. 9 (M.D.Fla.1994).

Moreover, the senior class vote is itself attributable to the state. The majority concludes otherwise because it views the students as making all of the “central” *1093decisions regarding the opening and closing message. This logic undervalues the power of the policy’s terms to influence the students’ choices; it also treats the graduation “message” as if it were an independent event, rather than the opening and closing segment of a more substantial occasion, the graduation ceremony. This narrow perspective permits the majority to ignore the fact that the Duval County policy gives students control over only a tiny fraction of the graduation ceremony as a whole.1

The actions of a private party can be attributed to the state if they are taken in exercise of a right or privilege rooted in state authority, and if the private party can “in all fairness” be described as a state actor. See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 620, 111 S.Ct. 2077, 2082-83, 114 L.Ed.2d 660 (1991). Clearly, the student vote satisfies the first part of this analysis: but for the policy, the student vote would not occur. Before the policy went into effect, students may have had input, but ultimately the school administration decided whether to have a formal opening and closing segment of the graduation ceremony, and if so, what to include in those portions of the program.

Whether a private party can “in all fairness” be described as a state actor depends on whether the party’s actions are “governmental in character.” See id. at 621, 111 S.Ct. at 2083. Relevant to this analysis are: “the extent to which the actor relies on governmental assistance and benefits; whether the actor is performing a traditional governmental function; and whether the injury caused is aggravated in a unique way by the incidents of governmental authority.” Id. at 621-22, 111 S.Ct. at 2083 (citations omitted). Considered in light of these three factors, the student decisions made pursuant to the Duval County policy are “governmental in character.”

First, the students vote not merely with the cooperation of the school authorities but at the behest of school district policy. They do so on school property, and the assistance or cooperation of the principal and faculty with administering the election must be presumed. Furthermore, students vote about a message that will be delivered at an event sponsored and controlled by the school.

Second, planning public school graduation ceremonies is a traditional governmental function. The Supreme Court noted in Lee that “teachers and principals must and do retain a high degree of control over the precise contents of the program, the speeches, the timing, the movements, the dress, and the decorum of the students.” 505 U.S. at 597, 112 S.Ct. at 2660. Before the policy went into effect, the Duval County school administration had the power to plan every aspect of the graduation ceremonies, including the open*1094ing and closing, and the policy does not divest the administration of control over the graduation ceremonies generally.

Finally, prayers recited during the opening and closing portions of the ceremony have an injurious effect precisely because of the state association with the event. Most people properly perceive their everyday encounters with others’ religious expression as an incidental requirement of life in a diverse society, rather than as a burden or attack on their own beliefs. See Lee, 505 U.S. at 628, 112 S.Ct. at 2677 (Souter, Stevens, & O’Connor, JJ., concurring). It is government participation in religious expression that offends the First Amendment because of its power to influence the inherently personal nature of religious faith, potentially coercing religious minorities or even coopting mainstream sects. See id. at 591-92, 112 S.Ct. at 2657-58; see also id. at 608-09, 112 S.Ct. at 2666 (Blackmun, Stevens, & O’Connor, JJ., concurring).

The student vote satisfies the criteria for state action described in Edmonson, and other cases have identified state action in a similar context. These cases stand for the proposition that when government delegates authority over a portion of a public operation to an ostensibly private actor, but retains ultimate control over the larger operation, the exercise of the delegated authority is attributable to the state. Administering elections, for example, is a state function. Although states can give political parties and private associations a role in choosing candidates to appear on the ballot, the private entities’ fulfillment of that role is state action. See Terry v. Adams, 345 U.S. 461, 469, 73 S.Ct. 809, 813, 97 L.Ed. 1152 (1953); Smith v. Allwright, 321 U.S. 649, 663, 64 S.Ct. 757, 765, 88 L.Ed. 987 (1944). The state cannot escape its responsibility to maintain an electoral system that comports with the Constitution by allowing non-governmental entities to control part of the electoral system. See Terry, 345 U.S. at 469, 73 S.Ct. at 813.

These rules do not only apply to fundamental governmental operations such as elections. For example, after a city has managed a park for a period of time, it cannot continue to maintain the facilities but avoid the Fourteenth Amendment’s mandate to integrate by appointing private trustees to oversee the park. See Evans v. Newton, 382 U.S. 296, 301, 86 S.Ct. 486, 489, 15 L.Ed.2d 373 (1966). The park in Evans had acquired “momentum” as a public facility, and the city remained “entwined” in its operation. It was of no consequence that the trustees with official authority were not public employees, because “when private individuals or groups are endowed by the state with powers or functions governmental in nature, they become agencies or instrumentalities of the State and subject to its constitutional limitations.”2 Id. at 299, 86 S.Ct. at 488.

So it is with Duval County’s public high school graduation ceremonies, which have always been state-sponsored events. Through the graduation policy, the school administration delegates one decision to the senior class, but in all other ways “remains entwined in the management [and] control” of the graduation ceremonies. Id. at 301, 86 S.Ct. at 489.

The fact that the policy requires the senior class to exercise its decision-making authority through a majoritarian vote does not change the analysis. “One’s ... fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 1185-86, 87 L.Ed. 1628 (1943). After all, “[t]he very purpose of the Bill of -Rights was to withdraw certain subjects from the vicissitudes of political eontrover-*1095sy, to place them beyond the reach of majorities.” 3 Id. at 638, 63 S.Ct. at 1185.

To further distance the state from the actual content of the opening and closing' messages, the majority emphasizes that the senior class votes for a speaker, not a particular speech. The majority concludes that the selection of the student speaker is made in a content-neutral manner. It requires a logical leap, however, to move from the student speaker’s limited autonomy to craft the graduation message to the conclusion that the senior class chooses the speaker without considering what she is going to say.

It is more realistic to acknowledge that students vote based on the anticipated content of the candidates’ graduation message. Unlike typical elected offices with numerous responsibilities or strictly honorary positions such as the homecoming queen mentioned in the majority opinion, the graduation speaker is elected to carry out one very specific task: she must deliver a single speech that lasts less than two minutes. If the school board does not expect students to vote based on how they anticipate the candidates will perform that one responsibility, then why have an election at all? 4

Factoring the content of the speech into the choice of speaker is problematic because the choice is attributable to the state and because the terms of the policy influence the choice as well. Furthermore, given the pervasive state involvement in public school graduation, abstaining from censorship is not enough to sever the state’s association with speech made at the ceremony. To effectively disconnect itself from that speech, the state must be able to articulate secular, neutral criteria for selecting the speaker that are not related to the content of the speech.

This is the rule suggested by the Ninth Circuit’s decision in Doe v. Madison Sch. Dist. No. 321, 147 F.3d 832 (9th Cir.1998), vacated as moot, 177 F.3d 789 (9th Cir.1999) (en banc). The majority finds the Duval County policy similar to the policy in Doe, but it is the differences that are instructive. Under the policy at issue in Doe, a minimum of four student speakers were selected strictly on the basis of their academic standing to deliver any sort of address they wanted.5 See id. at 835. *1096There was no opportunity to influence the types of speeches given, because there was no discretion in choosing the speakers. The authorities could also disconnect themselves from the content of the student speakers’ speech because the speakers were chosen not for the views their peers or teachers hoped they would espouse, but on the basis of a non-content based objective criterion (class standing) related to the graduation ceremony’s purpose of celebrating student achievement.

Although the Duval County policy does not mandate that a prayer be offered at every graduation, it nonetheless keeps the state heavily involved in the choices regarding the ceremonies’ opening and closing. The policy not only allows, but in some ways encourages, the choice of prayer. Although subtler and more indirect than the practice at issue in Lee, the Duval County policy contains the same elements of state involvement with religious expression.

2. Coerced Participation in a Religious Exercise

The second dominant fact in Lee was that the state in effect compelled the graduating students’ participation in a religious exercise. See 505 U.S. at 586, 112 S.Ct. at 2655. Coerced participation in a religious exercise is a separate and distinct issue from that of who controls the religious exercise. According to the Supreme Court, this coerced participation in prayer represents the injury suffered by dissenting students. See Lee, 505 U.S. at 594, 112 5.Ct. at 2659.

Writing about this second dominant fact, the Lee Court stated: “The sole question presented is whether a religious exercise may be conducted at a graduation ceremony where, as we have found, young graduates who object are induced to conform.” Id. at 599, 112 S.Ct. at 2661. The majority here refuses to address that question. Instead, it holds that whether the school administration coerces student participation in a religious exercise “is largely determined by the measure of state control over the message at a graduation ceremony, rather than state control over the ceremony itself.” The majority cites no authority for this interpretation, which essentially reads the “second dominant fact” out of Lee and disregards much of that decision’s analysis.6

The majority’s interpretation also ignores the relationship between the Free Exercise and Establishment Clauses of the First Amendment. “The Free Exercise Clause embraces a freedom of conscience and worship,” and the Establishment Clause is “[t]he method for protecting [that] freedom of worship and freedom of conscience in religious matters.” Id. at 591, 112 S.Ct. at 2657. When the government requires an individual to participate in a religious exercise, it impinges that individual’s freedom of conscience and worship, even if the government is not conducting the religious service itself.

Three factors contributed to the coercion of student participation in prayer in Lee. First, attendance for seniors is in effect mandatory because graduation is a significant right of passage in our society. See id. at 595, 112 S.Ct. at 2659. Second, “[a]t a high school graduation, teachers and principals must and do retain a high degree of control over the precise contents of the program, the speeches, the timing, *1097the movements, the dress, and the decorum of the students.” Id. at 597, 112 S.Ct. at 2660. Finally, adolescents are susceptible to peer pressure, and the pressure to conform “is strongest in matters of social convention.” Id. at 593, 112 S.Ct. at 2659.

These coercive elements are as present at Duval County graduation ceremonies under the policy at issue in this case as they were at the Providence, Rhode Island, graduation scrutinized in Lee. Graduation is a central life event for teenagers in north Florida. School authorities set the dress code and prescribe appropriate behavior for seniors. Often, students are required to remain silent or even stand for the ceremonies’ opening and closing messages. The Duval County policy exacerbates peer pressure, because would-be dissenters know that the majority of their classmates chose the student speaker. Finally, the policy heightens the social pressure to participate by allowing religious expression at a formal, ceremonial stage of the graduation. The audience remains seated and passive through much of the graduation, including speeches by the valedictorian and invited dignitaries, but the opening and closing call for participation of some sort.7 According to Lee, even an understated gesture such as standing or remaining respectfully silent is a constitutionally significant degree of participation. See id. at 593, 112 S.Ct. at 2658. Students cannot be expected to express dissent in this environment, with the obligation of polite participation and the school authorities’ control over student decorum.

B. The Lemon Test

Lee is an obvious point of departure for evaluating the Graduation Policy because it is the most factually similar Supreme Court case, but it did not establish a new test for the Establishment Clause, and the Supreme Court did not state that the facts of Lee represent the boundary between what is and what is not constitutional. Lemon still provides the framework for evaluating a statute or policy’s compliance with the Establishment Clause; it is the heart of the analysis.

Lemon requires that: (1) the Duval County school system have a secular purpose for adopting the policy; (2) the policy’s primary effect neither advances nor inhibits religion; and (3) the policy does not result in excessive government entanglement with religion. See Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). The Duval County policy would violate the Establishment Clause if it fails to meet even one of these criteria, see Edwards v. Aguillard, 482 U.S. 578, 585, 107 S.Ct. 2573, 2577, 96 L.Ed.2d 510 (1987), but it falls short on two grounds: the policy has no genuine secular purpose, and its primary effect is to advance religion.

1. The Purpose of the Duval County Policy is Pre-Eminently Religious

Applying the first prong of the Lemon test, we determine whether the challenged policy has a “clearly secular purpose” or “whether [the] government’s actual purpose is to endorse or disapprove of religion.” Wallace v. Jaffree, 472 U.S. 38, 56, 105 S.Ct. 2479, 2489, 86 L.Ed.2d 29 (1985). We must be deferential to the government’s articulation of the purpose behind a policy, and that policy need not be exclusively or even predominantly secular. See Edwards, 482 U.S. at 586-87, 107 S.Ct. at 2579; Wallace, 472 U.S. at 56, 105 S.Ct. at 2489. We must not, however, shirk our responsibility of judicial review. If a policy’s “pre-eminent purpose” is religious, or if the proffered secular justifications for *1098the policy are insincere, then the policy violates the Establishment Clause. See Edwards, 482 U.S. at 586-87, 107 S.Ct. at 2579; Lynch v. Donnelly, 465 U.S. 668, 690-91, 104 S.Ct. 1355, 1368-69, 79 L.Ed.2d 604 (1984) (O’Connor, J., concurring); Stone v. Graham, 449 U.S. 39, 41, 101 S.Ct. 192, 193-94, 66 L.Ed.2d 199 (1980); Church of Scientology Flag Serv. Org. v. City of Clearwater, 2 F.3d 1514, 1527 (11th Cir.1993). This is the case with the Duval County policy. The dominant reason for its passage was to keep prayer in graduation ceremonies; the secular justifications embraced by the majority are at best incidental effects of the policy.

The context surrounding the creation of the policy, the policy’s terms, and the policy’s title all suggest its predominantly religious purpose. The chronology of events leading up to the graduation policy is particularly telling. Until 1992 Duval County consistently opened and closed its schools’ graduation ceremonies with prayer. Responding to the Lee decision in 1992, the school administration directed that future graduations could not include prayer. The administration then came under pressure from students and the community to find a way to retain prayer in the ceremonies. Before the next school year’s graduation ceremonies, the administration created a new policy. That policy delegated decisions about the graduation ceremonies’ opening and closing to students while lifting the restriction on religious expression. Finding a predominantly religious purpose behind the new policy in this context requires no speculation but only common sense.

Aspects of the new policy itself betray the purpose of maximizing the chance that prayer would be included in future graduation ceremonies without directly mimicking the school officials’ actions proscribed by Lee. The policy only involves the opening and closing segments of the graduation ceremonies — the portions of the program historically dedicated to prayer. The policy also carefully restricts opening and closing messages to two minutes, a short period amenable to a limited range of speech that includes prayer. Finally, the policy dictates that decisions about the two minute opening and closing be made by majo-ritarian vote, limiting the opportunity for innovation and variety.

Finally, there is the title of the memorandum announcing the new policy: Graduation Prayer. The attorney who drafted the memorandum obviously understood the reason for the policy, but the majority of this court chooses to ignore the evidence. Instead, it relies on the maxim that it is improper to use a statute’s title to inform the plain meaning of the statute’s language. In all the cases cited by the majority, however, the courts had to interpret the meaning of statutes in order to apply them correctly.8 In this case, on the other hand, the question is why the school administration created the policy.

Moreover, “Graduation Prayer” is not simply the name of a bill or a title chosen during the codification process: it is the title of the memorandum announcing and explaining the new policy to the principals who would have to administer it. The Graduation Prayer memorandum was written at the behest of the school Superintendent by the attorney who crafted the policy.9 Certainly the title and text of the memorandum could provide insight into the policy’s instrumental goals.

*1099The memorandum begins with two paragraphs devoted to prayers at graduation and the discord following Lee. This analysis concludes with an explanation of the “key to the Lee v. Wiseman [sic] decision,” and then, “[w]ith that premise in mind,” segues into the provisions of the new policy. The policy’s operational terms carefully avoid mention of prayer, but the memorandum as a whole makes clear that the choice of a title was far from incongruous.

The majority makes much of the “plain” and “facially neutral” language of the policy itself. Adopting the terminology “opening or closing message” in the wake of Lee, however, appears as subterfuge, a “sham,” see Edwards, 482 U.S. at 587, 107 S.Ct. at 2579, given the tradition of beginning and ending graduation with prayer. In the words of Shakespeare: “What’s in a name? That which we call a rose / By any other name would smell as sweet.”10

Unconvinced, the majority suggests three possible secular purposes for the policy: First, that the policy “afford[s] graduating students an opportunity to direct their own graduation ceremony;” second, that it permits free expression; and finally that the policy “allows students to solemnize graduation.” None of these possibilities withstands close scrutiny.

It is hard to accept that the Duval County school administration crafted the policy to empower students, both because the policy does so in such a constrained manner and because there is scant evidence that the administration-was interested in promoting student leadership or autonomy as ends in themselves. The policy does conclude with the statement, “[t]he purpose of these guidelines is to allow students to direct their own graduation message without monitoring or review by school officials,” but the majority places more significance on the statement than it can bear.11 The statement expresses the “purpose” of the policy in terms of what it does, rather than why it was created. And as mentioned above, the memorandum begins with two paragraphs about school prayer and instructs the reader to consider the terms of the policy with that discussion in mind. The sentence about student direction, without any accompanying elaboration, appears “tacked on” to the end of the memorandum.

This secular purpose inserted in the text might still be credible if there were any other indication that the administration had been considering the benefits of expanded student speech and self-governance before the intense interest in graduation prayer arose following Lee. Although the record is replete with evidence that students and community members pressed school officials to retain prayer in the graduation ceremonies, however, there is no evidence that officials were promoting, or that students were demanding, a larger role planning the graduation program and more student speech generally.12

*1100Finally, the Duval County policy enhances student control over the graduation ceremony in only the most limited sense. The senior class cannot choose to have a group deliver a message, and it cannot select a non-student speaker. The speaker’s options are limited, because the policy restricts the message to two minutes at the beginning or end of the ceremony. Interestingly, the policy does not ensure that other student presentations during the graduation will be uncensored. In fact, principals often review valedictory speeches in Duval County.13 Although the school administration can promote student expression incrementally, the graduation policy’s stringent constraints and the choice to relinquish to students only the planning for the opening and closing suggest that student autonomy and free expression were not the policy’s true purposes.

The majority also suggests that solemnizing graduation ceremonies may have been the purpose behind the Duval County policy, but the policy actually reduces the potential for solemnization. Until the policy went into effect, an opening and closing prayer at every graduation ceremony served a solemnizing function. Now, however, the opening and closing are optional, and for each graduation, students have to choose anew whether to even have a message. Moreover, the majority is quick to emphasize that the policy leaves the content of the opening and closing messages, should the senior class decide to have them, unfettered. If the choice of messages is as wide-ranging as the majority would have us believe, however, many of the possibilities would serve no solemnizing function.14 With its new policy, Duval County moved from having a solemnizing opening and closing message at every graduation ceremony to the possibility of having, if not a prayer, either no message or a message that undermines the solemnity of the occasion.

Moreover, solemnization is not a valid purpose for a policy purportedly giving students unfettered control over the content of a speech. As already noted, prayer is one of a limited subset of messages with a solemnizing effect. To the extent the school administration wanted and expected students to opt for solemnizing messages, it is likely the administration had prayer in mind. This is an illegitimate purpose under Lemon; public officials cannot encourage prayer, because even if prayer has secondary secular benefits, the promotion of prayer is first and foremost the promotion of religion. See ACLU of N.J. v. Black Horse Pike Reg’l Bd. of Educ., 84 F.3d 1471, 1485 (3d Cir.1996); Harris v. *1101Joint Sch. Dist. No. 241, 41 F.3d 447, 458 (9th Cir.1994), vacated with directions to dismiss as moot, 515 U.S. 1154, 115 S.Ct. 2604, 132 L.Ed.2d 849 (1995); Jager v. Douglas County Sch. Dist., 862 F.2d 824, 829-30 (11th Cir.1989).

Finally, by the majority’s own logic, solemnization should not be considered as a possible purpose for the graduation policy. The majority chides Appellants for looking beyond the text of the Graduation Prayer memorandum, but solemnization appears nowhere in the policy’s terms or the memorandum’s prefatory paragraphs. Hypothetical justifications for a state law or action are not enough to satisfy the Lemon test; courts must look for the actual purpose. See Wallace, 472 U.S. at 56, 105 S.Ct. at 2489. In this case, that search leads only to the promotion of religion.

2. The Primary Effect of the Duval County Policy is to Advance Religion

A governmental policy fails the second prong of the Lemon analysis if it has the primary effect of endorsing religion. See County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 592-94, 109 S.Ct. 3086, 3100-01, 106 L.Ed.2d 472 (1989). Endorsement occurs if a reasonable observer would believe the policy conveys a message favoring (or disfavoring) religion. See id., 492 U.S. at 597, 109 S.Ct. at 3103 (Blackmun & Stevens, JJ.); id. at 691-92, 109 S.Ct. at 3121 (O’Connor, Brennan, & Stevens, JJ., concurring); School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 390, 105 S.Ct. 3216, 3226, 87 L.Ed.2d 267 (1985), amended on other grounds, Agostini v. Felton, 521 U.S. 203, 236, 117 S.Ct. 1997, 2016, 138 L.Ed.2d 391 (1997); Lynch, 465 U.S. at 691-92, 104 S.Ct. at 1369 (O’Connor, J., concurring). Such a conclusion is possible either if a policy tangibly benefits a religious cause more than any other, or if the observer would believe that a desire to promote religion led to the policy.

The majority discounts the possibility that a facially neutral policy could have the primary effect of advancing religion. One must look beyond the text of a policy, however, to determine its likely effects. The analysis “requires courts to examine the history, language, and administration of a particular statute to determine whether it operates as an endorsement of religion.” Wallace, 472 U.S. at 74, 105 S.Ct. at 2499 (O’Connor, J., concurring in the judgment); see also Allegheny, 492 U.S. at 629, 109 S.Ct. at 3120 (O’Connor, Brennan, & Stevens, JJ., concurring in part and concurring in the judgment). This analysis reveals that both the policy itself, viewed in terms of the events leading up to its creation, and the prayers that result from it convey a message of religious endorsement.

Seen in context, the Duval County policy betrays a preference for religious expression despite the seeming neutrality of its terms. It is worth repeating a few details from the analysis of the policy’s purpose. The chronology of events leading to the policy and the public pressure to keep prayer as part of the high school graduation ceremonies may not be conclusive evidence, but they inform the reasonable observer’s understanding of the policy’s purpose. The title of the policy itself, the bulk of the memorandum announcing it, and the fact that the policy only applies to the portion of the graduation ceremony traditionally reserved for prayer are even more telling. Together, these details have the effect of communicating to the reasonable observer that the Duval County authorities favored the inclusion of prayer in future graduation ceremonies.

The interpretation of the school principals reinforces this conclusion. The principals were the first recipients of the Graduation Prayer memorandum, the policy’s first “reasonable observers.” The principals were responsible for implementing the new policy; how they did so reveals their understanding of its meaning and purpose. *1102In 1993 many principals allowed direct votes on whether to have a prayer during the graduation ceremony.15 In other schools, officials directly asked the senior class chaplain to deliver a message during graduation.16 Since 1993 it has been common for the official graduation programs to list the student speaker as Chaplain, and to use the religious terms “invocation” and “benediction” instead of “opening” and “closing message.” 17 These programs are printed before the graduation ceremony without the benefit of reviewing the student’s speech.

Beyond an observer’s conclusions about the school administration’s motives lies the policy’s tangible result: it leads to more prayer at public events. Before the policy took effect, the Superintendent had responded to Lee by proscribing the traditional opening and closing graduation prayers. The new policy provided a mechanism to reestablish prayer in those portions of the ceremony. In the policy’s first year, ten out of seventeen schools opted for some sort of prayer, meaning that it led to more prayer than all other forms of speech combined. And the inherent effect of prayer is to advance the religious beliefs of the speaker.18 See Black Horse Pike, 84 F.3d at 1487; Harris, 41 F.3d at 458. The fact that prayers delivered as a result of the policy occur at a stage of the graduation ceremony carrying the strongest imprint of the state further exacerbates this impermissible effect.

*1103 C. The Public Forum, Doctrine

Without deciding whether Duval County graduation ceremonies are public fora, the majority suggests that the public forum doctrine supports the constitutionality of the policy at issue in this case. I reject the analogy. According to the majority, the government does,not control a private speaker’s speech in a public forum, and private speech cannot convey a message of state endorsement. This may be an accurate statement of the law,19 but it is of little use in this case, because Duval County’s graduation ceremonies have none of the public forum’s characteristics. In Lee v. Weisman, the Supreme Court noted that school authorities maintain close control over the program and speeches at graduation ceremonies.20 505 U.S. 577, 597, 112 S.Ct. 2649, 2660, 120 L.Ed.2d 467 (1992). This assumption is understandable, because graduation ceremonies have-never beeh considered public fora. See ACLU of N.J. v. Black Horse Pike Reg’l Bd. of Educ., 84 F.3d 1471, 1478 (3d Cir.1996); Jones v. Clear Creek Indep. Sch. Dist., 930 F.2d 416, 418 (5th Cir.1991), vacated on other grounds, 505 U.S. 1215, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992); Doe v. Madison Sch. Dist. No. 321, 147 F.3d 832, 838 (9th Cir.1998), vacated as moot, 177 F.3d 789 (9th Cir.1999) (en banc).

Public fora are places permitting broad access for the expression of diverse views. See Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 3449, 87 L.Ed.2d 567 (1985); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 954-55, 74 L.Ed.2d 794 (1983). See, e.g., Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 757-58; 115 S.Ct. 2440, 2444, 132 L.Ed.2d 650 (1995). The “marketplace of ideas” governs in public fora, which serve an important role both in facilitating the exchange of viewpoints and in providing a safe venue for new and marginalized ideas.

Duval County certainly did not create a public forum by allowing a single student to deliver an uncensored opening or closing message. An essential characteristic of public fora is that they permit extensive public participation, or at least general access to the relevant class of potential speakers. See Arkansas Educ. Television Comm’n v. Forbes, 523 U.S. 666, 118 S.Ct. 1633, 1641-43, 140 L.Ed.2d 875 (1998); Cornelius, 473 U.S. at 802-04, 105 S.Ct. at 3449-50; Perry Educ. Ass’n, 460 U.S. at 47, 103 S.Ct. at 956; Greer v. Spock, 424 U.S. 828, 838 n. 10, 96 S.Ct. 1211, 1217 n. 10, 47 L.Ed.2d 505 (1976). The majority cites a number of cases permitting religious groups to use school facilities or funds, or public parks, but their holdings *1104depended on the fact that use of the fora by a “broad spectrum” of groups eliminated any potential message of endorsement or preference for religion.21 See Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 839-42, 115 S.Ct. 2510, 2521-23, 132 L.Ed.2d 700 (1995); Capitol Square, 515 U.S. at 762-63, 115 S.Ct. at 2447; Board of Educ. of Westside Community Sch. v. Mergens, 496 U.S. 226, 252, 110 S.Ct. 2356, 2373, 110 L.Ed.2d 191 (1990) (O’Connor, J., plurality opinion); Widmar v. Vincent, 454 U.S. 263, 274, 102 S.Ct. 269, 277, 70 L.Ed.2d 440 (1981).

Duval County, however, has implemented no “open microphone” policy at its graduation ceremonies. The graduation policy permits only one speaker at the opening and closing, so there can be no diversity of views communicated in the messages. Selecting speakers through a majority vote also runs counter to the notion of “general access” necessary for a public forum and limits the possibility that the resulting speech will offer a fresh perspective to the audience. When the student speaker delivers the opening or closing message at a Duval County graduation, she is largely preaching to the converted.22

D. Appellants’ As-Applied Claims

During the hearing for a preliminary injunction, the district court raised the possibility of advancing the trial on the merits pursuant to Federal Rule of Civil Procedure 65(a)(2).23 In an order dated the same day, the court did so, consolidating the trial on the merits with the preliminary injunction hearing and entering final judgment for the Duval County School Board. The majority claims Appellants waived their as-applied claims by consenting to the consolidation. This interpretation of Rule 65(a)(2), however, is without support in the case law or the record from the district court.

If a party consents to a Rule 65(a)(2) consolidation, it cannot later complain about the consequences — the limited time to prepare and the curtailed opportunity for discovery. See Fenstermacher v. Philadelphia Nat’l Bank, 493 F.2d 333, 337 (3d Cir.1974). But the majority cites no case for the proposition that advancing the trial on the merits eliminates claims that would have benefitted from thorough discovery. Instead, a court enters final judgment on all claims after a Rule 65(a)(2) consolidation based on whatever limited evidence is before it at that time.

*1105Nothing in the district court order advancing the trial on the merits or in the transcript of the preliminary injunction hearing suggests that the judge or the parties intended otherwise. No one disputes that in their complaint the Appellants pleaded facts pertaining to graduation ceremonies between 1993 and 1997 and included an as-applied claim.24 Immediately after broaching the possibility of a Rule 65(a)(2) consolidation at the preliminary injunction hearing, the district judge acknowledged that Appellants had a claim for damages.25 At no time during the hearing did the judge suggest he was dismissing the as-applied claims as waived.

In its order advancing the trial on the merits, the district court directed the Clerk to enter final judgment for the Defendants without distinguishing between the facial and as-applied claims.26 The order made scant reference to the facts of the case, and the assertion in the order that Appellants’ counsel “stipulated that the operative facts remain[ed] unchanged”27 since 1994 is unsupported by the record. In fact, during the preliminary injunction hearing the Appellants’ counsel made substantial reference to the evidentiary exhibits already filed with the court and expressed the need for further discovery.28 The order focused on whether the law had changed since 1994, when the same district judge upheld the constitutionality of the graduation policy in an earlier lawsuit, see Adler v. Duval County Sch. Bd., 851 F.Supp. 446 (M.D.Fla.1994), and the court concluded that it had not. Given its interpretation of Establishment Clause and Free Speech jurisprudence, the details of the graduation ceremonies in Duval County seemed unimportant.

Appellants did not waive their as-applied challenge to the graduation policy; the district court entered judgment for the Appellees on that claim. This may or may not have been the correct disposition, because the district court did not have a thorough record of the policy’s application.

There is a difference between having a thin record, however, and having no evidence at all. Appellants filed dozens of graduation programs from the years 1994-1998 and the affidavit of Karen Adler in support of their motion for a preliminary injunction in this case,29 and the district court also took judicial notice of the record from the earlier case concerning the Duval County policy.30 The record includes the transcript of sectarian prayers delivered at graduation ceremonies as well as official programs that contained printed prayers, referred to the “student message” as an “invocation,” and indicated that ministers have continued to deliver prayers at some *1106Duval County graduations long after Lee.31 In fact, Appellants maintain that, although they would welcome the opportunity for more discovery, the record supports a reversal in their favor on all claims.

The procedural posture of this case is awkward at best. It is understandable that both the district court and this court would want to focus, without complications, on the important question of the graduation policy’s facial constitutionality. It is not right, however, for the as-applied claim of Duval County students to disappear without a trace.

Conclusion

Duval County has not adopted a blanket approach of neutrality toward religion or eliminated school sponsorship and control over graduation ceremonies. Rather, the policy at issue in this case evinces a desire to maintain the graduation ceremony’s traditional invocation and benediction in the wake of Lee. The policy does not explicitly mention religion and does not require any speech at all, but its terms nonetheless promote religious expression. To be more specific, the policy encourages the delivery of a prayer during a stage of the graduation ceremony when the content seems most “official” and when officials’ control over audience participation is at its highest.

This violates the Constitution. The Establishment Clause bars the government from encouraging religious expression, either overtly or subtly, and from conveying a message, intentional or not, of endorsement for religious speech.32 Moreover, the policy utilizes the vote to further its purpose, and in so doing corrupts the most cherished of democracy’s tools. For the government cannot delegate the authority to do what it could not do itself, and constitutional rights are not subject to the whims of an electoral majority. For the foregoing reasons, I dissent from the majority’s opinion.

. Both the Ninth and the Third Circuits have recognized that student decisions concerning particular aspects of their graduation ceremonies are attributable to the state. See ACLU of N.J. v. Black Horse Pike Reg’l Bd. of Educ., 84 F.3d 1471 (3d Cir.1996); Harris v. Joint Sch. Dist. No. 241, 41 F.3d 447 (9th Cir.1994), vacated with directions to dismiss as moot, 515 U.S. 1154, 115 S.Ct. 2604, 132 L.Ed.2d 849 (1995). These courts both focused on the graduation ceremony as a whole. They noted that the school administration is ultimately responsible for the graduation ceremonies,’ and that "the seniors have authority to make decisions regarding graduation only because the school allows them to have it.” Harris, 41 F.3d at 454; see also Black Horse Pike, 84 F.3d at 1479. They also acknowledged the school’s extensive involvement with other details of the graduation ceremony. See Black Horse Pike, 84 F.3d at 1479; Harris, 41 F.3d at 454. Only the Fifth Circuit has held that a student vote regarding prayer cannot be attributed to the state, see Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963, 970-71 (5th Cir.), vacated, 505 U.S. 1215, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992), but that holding is in tension with the more recent case of Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806 (5th Cir.1999), cert. granted in part, - U.S. -, 120 S.Ct. 494, 145 L.Ed.2d 381 (1999). In Santa Fe, the Fifth Circuit held that allowing proselytizing prayers at graduation violated the First Amendment, even though the senior class selected the speaker. 168 F.3d at 817.

. Indeed, even if all maintenance and title to the land were in private hands, the park’s management would have to comply with the Constitution because "the predominant character and purpose of [the] park are municipal.” Evans, 382 U.S. at 302, 86 S.Ct. at 490.

.Under the majority’s reasoning, student councils could, without prompting, vote to decorate each classroom with the Ten Commandments or to have a student volunteer begin each school day by reading a prayer over the public address system. In one sense the policy at issue in this case poses more of a constitutional problem than these examples. The student council’s decisions would at least be genuinely student-initiated, but here the opportunity for an opening and closing message is created by the school administration and the vote is organized and influenced by school officials. Local government could undermine minority and individual rights in a similar fashion. In County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989), the Supreme Court held that permitting the display of a creche in the Grand Staircase of a county courthouse violated the First Amendment. The majority’s view here suggests that a town council in a religiously observant and overwhelmingly Christian community could bypass the holding in Allegheny by sponsoring an election each year for volunteer committees to decorate town hall in mid-December or in the weeks following the secular holiday of Mardi Gras. Such a procedure, however, would not alter the city’s control over town hall or eliminate the symbolic connection between the religious decorations and the town government.

. Certainly some students will vote based on criteria such as the popularity of the candidates. We cannot assume, however, that this will be the norm. It is worth noting that the Duval County policy imposes no limits on campaigning.

. The policy in Doe did not limit the duration of the students’ speech nor restrict it to a segment of the graduation program uniquely appropriate for, and traditionally devoted to, prayer. See id. at 834. Unlike the Duval County policy, nothing about the policy in Doe encouraged the student speakers to choose to deliver a prayer. If anything, requiring a minimum of four speakers minimizes the risk that the school administration promotes any particular type of message through the policy.

. The Supreme Court did not state in Lee whether either one of the “dominant facts” would constitute a violation of the Establishment Clause by itself, or whether the government needs to both direct a religious exercise and coerce participation in that religious practice. By deciding that coerced participation only exists if the government controls the religious exercise, the majority in this case answers the question, but in quick fashion. We need not address the relationship between the two dominant facts, because we conclude that both are present in the Duval County policy. It is worth reiterating, however, that the Supreme Court identified the injury to the student plaintiffs as the mandatory participation in a religious exercise, without making reference to who conducted or controlled it. See Lee, 505 U.S. at 594, 112 S.Ct. at 2659.

. Duval County graduations bear out this observation. School officials typically ask the audience to stand for the first few segments of the ceremony, including the "Invocation” or "Inspiration” and there often is a song calling for more substantial participation. The audience then sits for the main body of the ceremony, which includes speeches and the presentation of diplomas. See R2 (Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Injunction, Exs. 4-7, 8-19, 22, 25-28, 32-33, 37-40, 42-45).

. See Brotherhood of R.R. Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 525-26, 67 S.Ct. 1387, 1390-91, 91 L.Ed. 1646 (1947); North Ala. Express, Inc. v. Interstate Commerce Comm'n, 971 F.2d 661, 663-64 (11th Cir.1992); Scarborough v. Office of Personnel Management, 723 F.2d 801, 811-16 (11th Cir.1984); Rich v. Commissioner of Internal Revenue Serv., 250 F.2d 170, 173-75 (5th Cir.1957).

. In sharp contrast, numerous legislators influence the choice of statutory language, and tides are often chosen for political effect rather than to accurately summarize a bill’s purpose or content.

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

. The Supreme Court looked beyond a similarly "self-serving” statement of purpose in a Kentucky statute in Stone, 449 U.S. at 41, 101 S.Ct. at 193-94. The statute required that the Ten Commandments be posted in each classroom and noted the " ‘secular application of the Ten Commandments’ ” in their " 'adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.’ " Id. at 41, 101 S.Ct. at 193 (quoting Ky.Rev.Stat. Ann. § 158.178 (Banks Baldwin 1980)). Despite the elucidation of a legitimate educational rationale in the statute, the Court held that "[t]he pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature.” Id. at 41, 101 S.Ct. at 194.

.I do not mean to suggest that the school administration was hostile to student involvement in planning graduation ceremonies. Historically the student role in planning graduation varied from school to school. Student leadership was quite strong at some schools, but school officials always had ultimate authority over the graduation program. There simply is no evidence that interest in, or pressure for, student autonomy was on the rise in 1992 and 1993.

. See R 1st Supp. Exs. (Reynolds Dep. at 21; Epting Dep. at 26-27; Lockett Dep. at 11).

. Uninfluenced by the terms of the policy or the expectations of their teachers and colleagues, student speakers could take the opportunity to criticize the principal, teachers, or cliquish classmates. Even an innocent but unfocused or poorly delivered speech would not solemnize the event. A proselytizing prayer would prove divisive rather than solemnizing as well. See Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806, 816 (5th Cir. [1999]), cert. granted in part, - U.S. -, 120 S.Ct. 494, 145 L.Ed.2d 381 (1999) ("[W]e cannot fathom how permitting students to deliver sectarian and proselytizing prayers can possibly be interpreted as furthering a solemnizing effect.”). The majority cites three cases for the proposition that prayer can serve a legitimate solemnizing function, but all three recognized that they were considering only non-sectarian, non-proselytizing speech. See Chaudhuri v. Tennessee, 130 F.3d 232, 236-37 (6th Cir.1997), cert. denied, 523 U.S. 1024, 118 S.Ct. 1308, 140 L.Ed.2d 473 (1998); Tanford v. Brand, 104 F.3d 982, 983, 986 (7th Cir.1997); Jones, 977 F.2d at 964-66. The majority also cites Justice O’Con-nor’s concurrence in Lynch for the more general proposition that religious expression can solemnize public occasions, but Justice O’Connor’s statement is qualified. ”[G]ov-ernment acknowledgments of religion,” she writes, can "serve ... the legitimate secular purpose[] of solemnizing public occasions,” but her examples are all practices that "are not understood as conveying government approval of particular religious beliefs.” Lynch, 465 U.S. at 693, 104 S.Ct. at 1369-70.

. See R 1st Supp. Exs. (Stone Dep. at 16; Johnson Dep. at 8; Hite Dep. at 18-19).

. See R 1st Supp. Exs. (Lockett Dep. at 11; Paulk Dep. at 20).

. Plaintiffs submitted copies of 45 graduation programs to the district court. Almost all use the terms ''invocation” and "benediction,” and most list the student speaker as the class chaplain. See R2 (Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Injunction, Exs. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 22, 25, 26, 27, 28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 43, 44, 45).

. The majority argues that the student speaker’s speech is private, and thus cannot violate Lemon's second prong. I believe the opening and closing messages can be attributed to the State, but the disagreement is not dispositive here. The Fifth Circuit addressed this point cogently in Santa Fe, holding that, "The mere fact that prayers are student-led or student-initiated, or both, does not automatically ensure that the prayers do not transgress Lemon's second prong.... [W]hen the school 'permits’ sectarian and proselytizing prayers ... such 'permission' undoubtedly conveys a message not only that the government endorses religion, but that it endorses a particular form of religion.” 168 F.3d at 817-18. In a different context, the Seventh Circuit has also held that private speech can violate Lemon's primary effects prong if private expression is associated with a government-controlled forum. See Freedom From Religion Found. v. City of Marshfield, 203 F.3d 487 (7th Cir.2000) (statue of Jesus on private land deemed part of surrounding public park for Establishment Clause purposes). The next section, focusing on the public forum doctrine, discusses this issue more thoroughly.

In support of its conclusion, the majority cites a number of Supreme Court cases for the proposition that "facially neutral programs [permitting] individuals to support religion through their own private choices” are constitutional. Those cases all involve the extension of a public benefit to families with children in private schools — factual scenarios very different from Duval's graduation policy. Moreover, the programs at issue in those cases were constitutional because they did not influence [the] choice to send [their] children to religious schools. See Agostini v. Felton, 521 U.S. 203, 230-32, 117 S.Ct. 1997, 2014, 138 L.Ed.2d 391 (1997); Witters v. Washington Dep't of Servs. for the Blind, 474 U.S. 481, 488, 106 S.Ct. 748, 752, 88 L.Ed.2d 846 (1986); Mueller v. Allen, 463 U.S. 388, 398-99, 103 S.Ct. 3062, 3068-69, 77 L.Ed.2d 721 (1983). This was because the programs distributed their benefits neutrally and comprehensively. A related point is that every family was able to make its own choice about its children's schooling under the government programs. Both of these attributes are missing in our case. The constraints of the Duval County policy influence the decisions about the graduation message, pushing students to opt for prayer. Furthermore, there is only one graduation ceremony. "Each student is not allowed to have the graduation she wants. Instead, the decision is made by a majority of the senior class and imposed on a minority.” Harris, 41 F.3d at 456.

. In fact, five Justices have demonstrated an openness to the possibility that private speech in a public forum could violate the Establishment Clause. See Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 772, 115 S.Ct. 2440, 2451, 132 L.Ed.2d 650 (1995) (O'Connor, Souter, & Breyer, JJ., concurring in result); id. at 807, 115 S.Ct. at 2469 (Stevens, J., dissenting); id. at 817-18, 115 S.Ct. at 2474-75 (Ginsburg, J., dissenting). Only a plurality of the Court, in an opinion written by Justice Scalia, took the opposite view. See id. at 770, 115 S.Ct. at 2450. Even the Scalia plurality acknowledged that the government could unconstitutionally manipulate an ostensibly public forum to favor religious speech. See id. at 766, 115 S.Ct. at 2449.

The Seventh Circuit reached this same conclusion, determining that a majority of Justices had rejected a “per se" approach to Establishment Clause claims involving private speech in a public forum. See Freedom From Religion Found, 203 F.3d at 493-94. The Seventh Circuit went on to hold that a city's sale of land with a religious statue violated the Establishment Clause even under the Sca-lia plurality’s approach because it in effect granted preferential access to a public forum — the park surrounding the statue. See id. at 496.

. In Duval County for example, school officials often review the valedictorian’s speech, and they plan or approve the entire graduation program. See R 1st Supp. Exs. (Reynolds Dep. at 21; Epting Dep. at 26-27; Lock-ett Dep. at 11) (review of valedictory speeches); id. (Epting Dep. at 28-29; - Reynolds Dep. at 39; Stone Dep. at 9-10). The graduation policy allows these practices to continue.

. Furthermore, none involved speech at a government-sponsored and controlled event. The possibility that someone will conclude that the state is endorsing the content of a speech is much lower when the government allows an organization to use a classroom after school hours than when the government organizes a presentation and invites an audience. Certainly students could organize a private prayer meeting on school grounds before the official graduation ceremony, but that is not the issue here.

. It is true that in a public forum with open access and diverse expression, it would be difficult for the government to manipulate speech and there is little danger that an audience will believe the speech carries the government's imprimatur. This insight from public forum law, however, suggests a corollary , that highlights the graduation policy’s problems: at a non-public forum that is highly regulated by the government, there is both an elevated danger of government control over speech and a significant risk that the audience will associate the speech with the government.

.Federal Rule of Civil Procedure 65(a)(2) provides:

(2) Consolidation of Hearing With Trial on Merits. Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application [for a preliminary injunction]. Even when this consolidation is not ordered, any evidence received upon an application for a preliminary injunction which would be admissible upon the trial on the merits becomes part of the record on the trial and need not be repeated upon the trial. This subdivision (a)(2) shall be so construed and applied as to save to the parties any right they may have to trial by jury-

. See Rl, Tab 1 (Verified Complaint ¶¶ 24, 30, & at p. 14) (making factual allegations about graduation ceremonies between 1993 and 1997, raising an as-applied Establishment Clause claim, and praying for damages on behalf of students who graduated after 1993).

. The dialogue went as follows:

THE COURT: All right. The next question is why shouldn't I, under Rule 65(a)(2) of the Federal Rules of Civil Procedure, order that the consideration of this case on its merits be advanced to this stage procedurally and decide the case and send it on to the Court of Appeals?
MR. SHEPPARD: I think the Court certainly has that discretion. I think that it may be — well, I’ve said what I said.
THE COURT: Well, you have a damage claim. I understand that.
MR. SHEPPARD: Yes, sir. We would want to take some discovery with regard to that, would be my view.

See Rl, Tab 30, at 29 (Transcript of Hearing on Plaintiffs’ Motion for Preliminary Injunction).

. Rl, Tab 27 at 3-4.

. Id. at 2.

. See Rl, Tab 30, at 14-16, 29 (Transcript of Hearing on Plaintiffs' Motion for Preliminary Injunction).

. See R2 (Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Injunction, with 58 exhibits); Rl, Tab 12 (Adler Aff.).

. Rl, Tab 26 (Order on Various Motions).

. See R2 (Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Injunction, Exs. 4, 5, & 13 (religious expression printed in official program); 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 22, 25, 26, 27, 28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 43, 44, 45 (reference to "invocation,” "benediction,” or "chaplain” in the program); 30 (minister delivered prayer)).

. Nothing in this dissent suggests that all religious expression at a public high school graduation would run afoul of the Establishment Clause. Graduation ceremonies are state-sponsored events controlled by school officials, however, and to disconnect (rather than just distance) themselves from any religious views expressed by speakers, school officials must be able to articulate a neutral criterion for selecting speakers unrelated to the potentially religious content of their speech. This would ensure both that school officials do not use their influence over the graduation program to promote religious beliefs and that the audience does not view religious views expressed by speakers as state sanctioned. Thus, the valedictorian could thank God or share the role faith played in her life. Furthermore, religious expression that is not part of the graduation program raises no Establishment Clause concerns. Audience members could pray quietly in their seats, and students could organize a prayer service immediately before or after the graduation ceremony.