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,
v.
DUVAL COUNTY SCHOOL BOARD, Duval County Public School District, Defendants-Appellees.
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,
v.
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.
Nos. 98-2709, 98-2720.
United States Court of Appeals,
Eleventh Circuit.
March 15, 2000.
Appeals from the United States District Court for the Middle District of Florida. (No. 98-00460-CV-J-10C),
Wm. Terrell Hodges, Judge.
Before ANDERSON, Chief Judge, TJOFLAT, EDMONDSON, COX, BIRCH, DUBINA, CARNES,
BARKETT, HULL, MARCUS and WILSON, Circuit Judges,* and KRAVITCH, Senior Circuit Judge.**
MARCUS, Circuit Judge:
At issue today is whether the Duval County, Florida school system's policy of permitting graduating
students to vote on whether to select a student to deliver a message wholly of her own choosing at the
beginning or closing of a high school graduation ceremony violates the Establishment Clause. Because the
Duval County policy unambiguously recognizes the "crucial difference between government speech
endorsing religion, which the Establishment Clause forbids, and private speech [ ] [that may contain a
prayerful message], which the Free Speech and Free Exercise Clauses protect," Board of Educ. v. Mergens,
496 U.S. 226, 250, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990) (emphasis added), we find the policy
*
Judge Susan H. Black did not participate in this decision.
**
Senior U.S. Circuit Judge Phyllis A. Kravitch elected to participate in this decision pursuant to 28 U.S.C.
§ 46(c).
constitutional on its face and affirm the judgment of the district court. The total absence of state involvement
in deciding whether there will be a graduation message, who will speak, or what the speaker may say
combined with the student speaker's complete autonomy over the content of the message convinces us that
the message delivered, be it secular or sectarian or both, is not state-sponsored. To conclude otherwise would
come perilously close to announcing an absolute rule that would excise all private religious expression from
a public graduation ceremony, no matter how neutral the process of selecting the speaker may be, nor how
autonomous the speaker may be in crafting her message.
I.
The facts of this case are straightforward, uncontroverted, and laid out fully by the district court in
Adler v. Duval County Sch. Bd., 851 F.Supp. 446, 448 (M.D.Fla.1994) ("Adler I "). Invocations,
benedictions, and other religious prayers or messages were traditionally offered, by clergy and others, at
public high school commencement ceremonies in the Duval County School District. In 1992, the Supreme
Court in Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992), held that a Providence,
Rhode Island high school principal, acting in accord with school board policy, violated the Establishment
Clause by inviting a local clergyman to deliver a nonsectarian prayer at graduation. In response to Lee, the
Duval County Superintendent, Larry Zenke, at the behest of Vicki R. Reynolds, the school district's legal
affairs officer, issued a memorandum instructing all school officials in the Duval County school system that
no "prayer, benediction, or invocation" should be offered at "any graduation ceremonies."1
In the ensuing months, Superintendent Zenke received a number of letters from students and members
of the community discussing the graduation policy. Some of these letters suggested that student-initiated,
student-led prayer might be constitutional under Lee, and Zenke directed Reynolds to further research the
issue. Reynolds later advised Zenke that it would be constitutional to allow student-initiated, student-led
1
The memorandum, dated July 22, 1992, read, "[t]his memorandum is to remind you that due to the recent
Supreme Court Ruling in Lee v. Weisman, there should be no prayer, benediction, or invocation at any
graduation ceremonies."
2
prayer during the graduation ceremony so long as the administration and faculty were not involved in the
decision-making process. Zenke then authorized Reynolds to issue another memorandum (the "Reynolds
Memorandum"), dated May 5, 1993, to all area high school principals. The memorandum was entitled
"Graduation Prayers" and stated:
You will recall that after the 1992 Supreme court case of Lee v. Wiseman [sic], you received a
memorandum from me instructing that because of the decision, we would no longer be able to have
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 [sic], its officers or employees;
The purpose of these guidelines is to allow students to direct their own graduation message without
monitoring or review by school officials.
This policy never was directly voted on or debated by the School Board.
Instead, at a June 1, 1993 School Board meeting, a motion was made to substitute a "moment of
silence" for any student-initiated messages that might otherwise be given pursuant to the graduation policy
announced in the Reynolds Memorandum. The motion failed by a vote of four to three. As a result, the
Reynolds Memorandum was "left in force with the acquiescence or tacit approval of the Board as its official
policy governing the 1993 commencement exercises." Adler I, 851 F.Supp. at 449. In 1993 under this policy,
student speakers, at ten of seventeen high school graduation ceremonies, delivered some form of religious
3
message. Notably, at the other seven graduations, there were no student messages at all or the messages were
entirely secular in character. There is no tabulation in the record of comparable statistics for subsequent
graduations.
In June 1993, various Duval County public school students sued the Duval County school system,
alleging that the policy embodied in the Reynolds Memorandum constituted an establishment of religion and
infringed on their free exercise of religion. These students sought equitable relief declaring the policy
unconstitutional and enjoining the Duval County School Board from permitting prayers at high school
graduation ceremonies as well as money damages. The students also sought to certify their action as a class
action.2 The district court denied the motion to certify the class and granted summary judgment in favor of
the Duval County school system, holding that its policy was constitutional. See Adler I, 851 F.Supp. at 451-
56. The students appealed, and a panel of this court found that because the students had all graduated, their
claims for declaratory and injunctive relief were moot. See Adler v. Duval County Sch. Bd., 112 F.3d 1475,
1477-78 (11th Cir.1997) [hereinafter Adler II ]. The Adler II court also held that the students waived their
damages claims on appeal. See Adler II, 112 F.3d at 1480-81. The Reynolds Memorandum thus remained
the operative high school graduation policy for Duval County.
In May 1998, Appellants brought the instant action against the Duval County school system, again
alleging that the policy embodied in the Reynolds Memorandum constituted an establishment of religion and
infringed on their free exercise of religion. Appellants sought preliminary and permanent injunctive relief
against the Duval County School Board to prevent it from permitting, conducting, or sponsoring any religious
exercises or prayer and instruction within the Duval County Public School District, including at School
Board-sponsored graduation ceremonies. Appellants also sought monetary damages and class certification.3
2
These "original" plaintiffs consisted of the following students: Leslie Adler, Laura Jaffa, and Robin Zion.
Doug Rand later joined the action. Karen Adler and Robin Rand, the mothers of Leslie Adler and Doug
Rand, were named as plaintiffs to bring the claims of their minor children.
3
Appellants in the instant action include: Emily Adler, a June 1998 graduate of Mandarin High School;
Seth Finck, a June 1998 graduate of Stanton College Preparatory School; Stella Finck, mother of Duval
4
The district court, at the hearing on Appellants' motion for a preliminary injunction and with the consent of
the parties, consolidated the merits of Appellants' claims with Appellants' preliminary injunction motion
pursuant to Federal Rule of Civil Procedure 65(a)(2). The district court then denied Appellants' motion for
preliminary injunction and entered final judgment in favor of the Duval County School Board.
Appellants filed a motion for expedited appeal and a panel of this Court heard oral argument on
November 16, 1998. The panel reversed the district court's judgment and remanded for further proceedings.
On June 3, 1999, we vacated this opinion and granted rehearing en banc.
II.
The central issue presented is whether the Duval County school system's policy of permitting a
graduating student, elected by her class, to deliver an unrestricted message of her choice at the beginning
and/or closing of graduation ceremonies is facially violative of the Establishment Clause.4 Close attention
County public school students Rachel Finck, who was scheduled to graduate from Stanton College
Preparatory School in 1999, Aaron Finck, who was scheduled to graduate from Stanton College Preparatory
School in 2000, and Benjamin Finck, a Duval County public school student; Roberta Nord, mother of Duval
County public school students Lucy Nord, age 9, and Tyler Hurley, age 12; and Jonathon Rand, a June 1998
graduate of Stanton College Preparatory School.
4
We construe this appeal as the appeal of a final judgment strictly pertaining to the facial constitutionality
of the Duval County graduation policy. We do not address any potential "as-applied" claims raised below
by Appellants. This result is driven by the procedural history of the case. Initially, Appellants sought a
preliminary injunction in addition to their facial and as-applied claims on the merits. At the pretrial hearing
on the preliminary injunction, the district court indicated that it thought that Appellant's claims on the merits
should be consolidated with the preliminary injunction motion because the claims were duplications of earlier
claims it had evaluated in Adler I. The district court asked whether any operative facts had changed and the
parties stipulated that there had been no substantive changes. As the district court explained:
This is, for all practical purposes, the second time this case has appeared before this court.
In 1994 a similar group of Plaintiffs represented by the same counsel sought the same
injunctive relief with respect to high school graduation or commencement ceremonies then
scheduled to be conducted in the spring of that year. I decided at that time that the Plaintiffs'
constitutional rights were not infringed. This action presents precisely the same claims
predicated upon the same constitutional theories or contentions; and, at today's hearing,
counsel stipulated that the operative facts remain unchanged. The only factual difference
is that a new series of graduation ceremonies is scheduled for 1998. The present case was
filed for the purpose of relitigating the issue upon the contention of Plaintiffs' counsel that
the law has now evolved in their favor as manifested by [ ] [several] intervening decisions....
5
to the operative features of the Duval County policy yields the conclusion that the policy is constitutional on
its face. Simply put, the selection of a graduation student speaker by a secular criterion (not controlled by
the state) to deliver a message (not restricted in content by the state) does not violate the Establishment Clause
merely because an autonomous student speaker may choose to deliver a religious message. See Lee, 505 U.S.
at 630 n. 8, 112 S.Ct. 2649, 120 L.Ed.2d 467 (Souter, J., concurring) (observing that "[i]f the State had chosen
its graduation day speakers according to wholly secular criteria, and if one of those speakers (not a state actor)
had individually chosen to deliver a religious message, it would have been harder to attribute an endorsement
of religion to the State") (citing Witters v. Washington Dep't of Servs. for the Blind, 474 U.S. 481, 106 S.Ct.
748, 88 L.Ed.2d 846 (1986)).
Establishment Clause jurisprudence calls for the difficult task of separating a student's private
message, which may be religious in character, from a state-sponsored religious message, protecting the former
See Adler v. Duval County Sch. Bd., No. 98-460-CIV-J-10C (M.D.Fla. May 27, 1998) (internal
citation omitted) (emphasis added). The district court then took judicial notice of its opinion in Adler
I and consolidated the action on the merits with Appellants' motion for preliminary injunction.
Finally, the district court distinguished the intervening decisions cited by Appellants and concluded:
[T]he proper decision in this case is dictated by the decision I reached in Adler I, and that the
application for preliminary injunctive relief should be denied now as it was then.
Furthermore, as counsel agreed during today's hearing, there is no just reason in fact or law
as to why the action should not be advanced on the merits and consolidated with the hearing
of the instant application so that final judgment may be entered and the controversy may
proceed to the Court of Appeals.
Id. (emphasis added). Both parties consented to the consolidation and Appellants did not object to
the effect this consolidation would have on their as-applied claims. Because of the consolidation,
discovery was truncated as to the policy's application and effect for graduation ceremonies after 1993
and Appellants' as-applied claims were never fully developed or litigated below. Appellants' consent
to the district court's consolidation constituted a knowing waiver of their as-applied claims,
circumscribing the action and the district court's final judgment to the facial constitutionality of the
graduation policy. See Warehouse Groceries Management, Inc. v. SAV-U-Warehouse Groceries,
Inc., 624 F.2d 655, 657-58 (5th Cir.1980) (noting that district court, pursuant to Federal Rule of Civil
Procedure 65(a)(2), may properly consolidate the merits of a case with a preliminary injunction
hearing so long as parties are given adequate notice); Fenstermacher v. Philadelphia Nat'l Bank, 493
F.2d 333, 337 (3rd Cir.1974) (noting that party's failure to object to district court's consolidation of
the merits with a preliminary injunction hearing constituted a waiver of any defects stemming from
the consolidation because the party had "acquiesced in the procedure followed in the district court").
We therefore restrict our review today to the facial constitutionality of the graduation policy.
6
and prohibiting the latter. This determination is of "necessity one of line-drawing," see Lee, 505 U.S. at 598,
112 S.Ct. 2649, 120 L.Ed.2d 467, "sometimes quite fine, based on the particular facts of each case,' "
Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 847, 115 S.Ct. 2510, 132 L.Ed.2d 700
(1995) (O'Connor, J., concurring). Indeed, our courts have recognized that "at graduation time and
throughout the course of the education process, there will be instances when religious values, religious
practices, and religious persons will have some interaction with the public schools and their students." See
Lee, 505 U.S. at 598-99, 112 S.Ct. 2649, 120 L.Ed.2d 467 (citing Board of Educ. v. Mergens, 496 U.S. 226,
110 S.Ct. 2356, 110 L.Ed.2d 191 (1990)). But at the core of Establishment Clause jurisprudence is the notion
that the state may not favor, endorse, or oppose the propagation of religious doctrine by its citizens. In this
case, the absence of state involvement in each of the central decisions—whether a graduation message will
be delivered, who may speak, and what the content of the speech may be—insulates the School Board's policy
from constitutional infirmity on its face.
We measure the facial constitutionality of the policy against both the standards enunciated by the
Supreme Court in Lee, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467, the Court's only occasion to directly
examine the issue of school prayer at a public high school graduation, and the more general Establishment
Clause test articulated in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).5
A.
5
While the Lemon test has drawn considerable criticism from both Members of the Court and legal
commentators, see, e.g., Board of Educ. v. Grumet, 512 U.S. 687, 721, 114 S.Ct. 2481, 129 L.Ed.2d 546
(1994) (O'Connor, J., concurring) (noting that "the slide away from Lemon 's unitary approach is well under
way"); Kent Greenawalt, Quo Vadis: The Status and Prospects of "Tests" Under the Religion Clauses, 1995
Sup.Ct. Rev. 323, 361 (1996) (declaring that "now that Lemon lacks any defenders on the Court, other judges
would perform a shallow exercise were they to continue to apply its terms. They should recognize that the
Supreme Court has definitely abandoned Lemon."), it is still binding precedent, see Lamb's Chapel v. Center
Moriches Union Free Sch. Dist., 508 U.S. 384, 395 n. 7, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993) (stating that
"we return to the reality that there is a proper way to inter an established decision and Lemon, however
frightening it might be to some, has not been overruled"); see also Chabad-Lubavitch of Georgia v. Miller,
5 F.3d 1383, 1388 (11th Cir.1993) (en banc) (explaining that "[a]lthough [the Lemon test] has been criticized
severely, it still controls our Establishment Clause inquiry"); Bown v. Gwinnett County Sch. Dist., 112 F.3d
1464, 1468-74 (11th Cir.1997) (applying Lemon ).
7
In Lee, the Supreme Court scrutinized the Providence, Rhode Island public school system policy of
permitting middle and high school principals to invite clerics to offer invocation and benediction prayers at
formal high school graduation ceremonies. See Lee, 505 U.S. at 580, 112 S.Ct. 2649, 120 L.Ed.2d 467. In
particular, the Court considered the 1989 graduation at Nathan Bishop Middle School where the principal
invited a local rabbi to offer a religious invocation and benediction at the school's graduation ceremony. The
principal also provided the rabbi with a pamphlet entitled "Guidelines for Civic Occasions," prepared by the
National Conference of Christians and Jews, and advised the rabbi that the prayer should be nonsectarian.
See id. at 581, 112 S.Ct. 2649, 120 L.Ed.2d 467.
In declaring the school system policy unconstitutional under the Establishment Clause, the Supreme
Court pointed at two "dominant facts" as marking the boundaries of its decision: first, the Providence school
officials ordained and directed the performance of a religious exercise by deciding to include prayer in the
graduation ceremony, by selecting a clergyman to deliver the prayer, and by providing the clergyman with
guidelines informing the content of the prayer; and second, pressure was exerted on students to attend
graduation and conform with their peers by either standing as a group or remaining in respectful silence
during the invocation and benediction. Id. at 586-88, 112 S.Ct. 2649, 120 L.Ed.2d 467. What the Supreme
Court found striking and troubling about Lee was that the government clearly directed a formal religious
exercise—albeit in the form of a nonsectarian prayer—under such circumstances as to oblige the participation
of many who objected. As Justice Kennedy wrote for the majority:
These dominant facts mark and control the confines of our decision: State officials direct the
performance of a formal religious exercise at promotional and graduation ceremonies for secondary
schools. Even for those students who object to the religious exercise, their attendance and
participation in the state-sponsored religious activity are in a fair and real sense obligatory, though
the school district does not require attendance as a condition for receipt of the diploma.
Id. at 586, 112 S.Ct. 2649, 120 L.Ed.2d 467. There can be little doubt, then, that in Lee, the Providence,
Rhode Island school system ordained and established a religious exercise at a graduation ceremony, and that
the graduation prayer delivered by a rabbi was in every sense endorsed and supported by the state.
8
In striking contrast, under the Duval County graduation policy, however, neither the School Board
nor its principals may ordain, direct, establish, or endorse a religious prayer or message of any kind. Indeed,
by the very terms of the policy, a religious message may not even be offered at graduation. The Duval
County policy explicitly divorces school officials from the decision-making process as to whether any
message—be it religious or not—may be delivered at graduation at all. Moreover, decisional control over
the most crucial elements of the graduation policy rests with the students and not the state. According to the
policy, school officials merely allow a graduating class to decide by an election whether to have a "brief
opening and/or closing message" at graduation. If the class votes to have a message, it elects a student
volunteer to deliver the message. That student is then free to deliver a message "not monitored or otherwise
reviewed" in any way by the school. Under the policy, the School Board and its agents have no control over
who will draft the message (if there be any message at all) or what its content may be. The School Board also
does not suggest in any way, let alone require, that the graduating class consider religious or any other criteria
in deciding whether to have a student message or in selecting a particular student speaker. And most notably,
if the graduating class chooses to have a message, the content of the message shall be prepared by the student
speaker alone and no one else. The Duval County School Board is expressly prohibited by the very terms
of its policy from influencing or editing the message in any way.
These operational features distinguish the Duval County policy from approximating even an arguably
similar level of state control to the graduation policy struck down in Lee. Unlike the Providence policy in Lee,
the Duval County policy, in no way, authorizes a school to "direct the performance of a formal religious
exercise." Lee, 505 U.S. at 586, 112 S.Ct. 2649, 120 L.Ed.2d 467. And unlike a direct student plebiscite on
graduation prayer, not even the senior class exercises control over the content of the graduation message.
That decision rests solely with the elected student speaker—with neither the senior class nor the school
exercising any sort of editorial oversight. Therefore, on the face of the policy itself, the students
unambiguously understand that any student message is utterly divorced from any state sponsorship.
9
Lee does not stand for the proposition that all religious expression, even the private religious
expression of an elected student speaker, must be excised from public high school graduation ceremonies.
Rather, Lee prohibits the state from ordaining, directing, endorsing, or sponsoring a religious message at such
ceremonies but not from adopting neutral secular policies which simply permit the possibility of private
religious expression. See id., 505 U.S. at 589, 112 S.Ct. 2649, 120 L.Ed.2d 467 (observing that "[t]he First
Amendment's Religion Clauses mean that religious beliefs and religious expression are too precious to be
either proscribed or prescribed by the State"); id. at 604-05, 112 S.Ct. 2649, 120 L.Ed.2d 467 (Blackmun,
concurring) (explaining that "[t]he Establishment Clause proscribes public schools from 'conveying or
attempting to convey a message that religion or a particular religious belief is favored or preferred' ") (quoting
County of Allegheny v. Greater Pittsburgh ACLU, 492 U.S. 573, 593, 109 S.Ct. 3086, 106 L.Ed.2d 472
(1989)); see also Agostini v. Felton, 521 U.S. 203, 231, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (noting that
there is no advancement of religion where "aid is allocated on the basis of neutral, secular criteria that neither
favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a
nondiscriminatory basis"); Rosenberger, 515 U.S. at 839, 115 S.Ct. 2510, 132 L.Ed.2d 700 (stating that "[a]
central lesson of our decisions is that a significant factor in upholding governmental programs in the face of
Establishment Clause attack is their neutrality towards religion"); Grumet, 512 U.S. at 696, 114 S.Ct. 2481,
129 L.Ed.2d 546 (declaring that " '[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 Public Educ.
& Religious Liberty v. Nyquist, 413 U.S. 756, 792-93, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973)); Chandler v.
James, 180 F.3d 1254, 1258-59 (11th Cir.1999) (noting that "ordinarily religious speech by private parties
cannot establish religion, even if it occurs in a public institution, such as a school") (citation omitted).
The School Board's policy is perfectly consistent with the theme of neutrality in Establishment
Clause jurisprudence. As Justice Souter explained in his concurrence in Lee:
While the Establishment Clause's concept of neutrality is not self-revealing, our recent cases have
invested it with specific content: the State may not favor or endorse either religion generally over
10
nonreligion or one religion over others. This 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....
Lee, 505 U.S. at 627, 112 S.Ct. 2649, 120 L.Ed.2d 467 (internal citations omitted). No feature of the Duval
County policy favors or endorses religion. The graduation policy is simply content-neutral, and allows an
autonomous elected speaker, selected by her class, to deliver a religious or secular message on an equal basis.
In one sense, the policy can be analogized to a line of open forum cases in which the Supreme Court
has held that neutral secular policies that merely accommodate religion or individual free exercise rights do
not amount to an unconstitutional state endorsement of religion.6 First, in Widmar v. Vincent, 454 U.S. 263,
102 S.Ct. 269, 70 L.Ed.2d 440 (1981), the Court struck down a University of Missouri regulation that denied
"equal access" to school facilities for religious groups as a violation of the Free Speech Clause. Id. at 274-75,
102 S.Ct. 269, 70 L.Ed.2d 440. In so ruling, the Court explained that an "open forum" policy, which
permitted access to both religious and secular student groups in a neutral manner, did not offend the
Establishment Clause because "an open forum in a public university does not confer any imprimatur of state
approval on religious sects or practices" anymore than such a policy " 'committed [the University] to the goals
of the Students for a Democratic Society, the Young Socialist Alliance,' or any other group eligible to use its
facilities." Id. at 274, 102 S.Ct. 269, 70 L.Ed.2d 440 (citation omitted).
The Supreme Court extended this reasoning to public secondary schools in Mergens. There, the
Court upheld the constitutionality of the Equal Access Act, 20 U.S.C. § 4071 et seq., which explicitly codified
the reasoning of Widmar by prohibiting public secondary schools in receipt of federal funds from denying
student access to "limited open forum[s]" on the basis of the religious content of their speech. Mergens, 496
6
For purposes of our decision, we find it unnecessary to decide whether the Duval County graduation
policy creates a "designated public forum"or a "nonpublic forum" as these terms have come to be defined by
our public forum caselaw. See Arkansas Educ. Tele. Comm'n v. Forbes, 523 U.S. 666, 118 S.Ct. 1633, 1641-
43, 140 L.Ed.2d 875 (1998). We rely on public forum doctrine only in so far as it informs Establishment
Clause jurisprudence regarding principles of state endorsement and neutral accommodation towards private
religious speech.
11
U.S. at 235, 110 S.Ct. 2356, 110 L.Ed.2d 191. The Court elaborated a core tenet of its neutrality
jurisprudence in the process:
[T]here 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. We think that secondary school students are mature enough and are likely
to understand that a school does not endorse or support student speech that it merely permits on a
nondiscriminatory basis.... Although a school may not itself lead or direct a religious club, a school
that permits a student-initiated and student-led religious club to meet after school, just as it permits
any other student group to do, does not convey a message of state approval or endorsement of the
particular religion.
Id. at 250-52, 110 S.Ct. 2356, 110 L.Ed.2d 191. In recent years, the Court has reaffirmed this principle by
finding that the inclusion of private religious groups in "open forums" through neutral selection principles
does not violate the Establishment Clause or constitute a state endorsement of religion. See Capitol Square
Review & Advisory Bd. v. Pinette, 515 U.S. 753, 763, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) (plurality
opinion) (concluding that the allowance of a private religious display in an open public forum, selected by
the same application process and on the same terms as other private displays, did not amount to state
endorsement); Rosenberger, 515 U.S. at 832, 115 S.Ct. 2510, 132 L.Ed.2d 700 (holding that a public
university subsidy for a religious student organization's publication costs, under a program that funded other
student organization publications through neutral selection criteria, did not violate the Establishment Clause);
Lamb's Chapel, 508 U.S. at 395, 113 S.Ct. 2141, 124 L.Ed.2d 352 (finding that a policy, which allowed
private student religious groups equal after-school access to school property through neutral secular criteria,
would not violate the Establishment Clause).
These cases strongly suggest that a policy, like the Duval County graduation policy, which provides
an opportunity for student-selected, student-initiated private expression through a neutral selection criterion,
does not violate the Establishment Clause simply because the venue is equally available for religious or
secular expression. Government neutrality towards religion is all that is required by the Establishment
Clause. And it is worth emphasizing that while the state must be neutral and cannot advance or endorse
religion, similarly, it need not, indeed it cannot, act in a hostile manner in the face of private religious speech
12
publically uttered. See Lee, 505 U.S. at 598, 112 S.Ct. 2649, 120 L.Ed.2d 467 (observing that "[a] relentless
and all-pervasive attempt to exclude religion from every aspect of public life could itself become inconsistent
with the Constitution") (citation omitted); Zorach v. Clauson, 343 U.S. 306, 314, 72 S.Ct. 679, 96 L.Ed. 954
(1952) (stating that "we find no constitutional requirement which makes it necessary for government to be
hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence").
In essence, this case is substantially like Doe v. Madison Sch. Dist. No. 321, 147 F.3d 832 (9th
Cir.1998), vacated on other grounds, 177 F.3d 789 (9th Cir.1999) (en banc) (vacating for mootness because
the student plaintiffs already had graduated). In Doe, the Ninth Circuit examined a graduation policy which
mirrors Duval County's policy in its neutrality. The Doe policy allowed for a minimum of four student
graduation speakers to be selected according to their academic standing. If a student accepted the speaking
invitation, she could choose to deliver an "address, poem, reading, song, musical presentation, prayer, or any
other pronouncement"—the content, of which, she alone controlled. Doe, 147 F.3d at 835. The Doe court
upheld the constitutionality of the policy against a facial challenge on Establishment Clause grounds and
distinguished Lee. It explained that graduation speech does not bear the imprimatur of the state 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. Doe, 147 F.3d at 835-36.7
7
The other federal circuit cases that have considered student-led, student-initiated prayer at graduation are
of limited assistance. All of these cases involve direct student plebiscites on graduation prayer. Of these
cases, Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963 (5th Cir.1992), is the only one which has
permitted students to vote directly on whether to have prayer at graduation. In Jones, the Fifth Circuit upheld
the Clear Creek, Texas school district's policy allowing graduating students to vote whether student
volunteers would deliver "nonsectarian and nonproselytizing" invocations at graduation. The court found:
that the Clear Creek policy (1) reserved to the students the decision whether to have an invocation, (2)
precluded anyone but a student volunteer from delivering an invocation, and (3) placed less psychological
coercion on the student audience than the prayers given in Lee because students were aware that any prayers
given represented the will of their peers. See id. at 970-71.
Both the Third and Ninth Circuits have come to an opposite conclusion. In ACLU of New
Jersey v. Black Horse Pike Regional Bd. of Educ., 84 F.3d 1471 (3d Cir.1996) (en banc), the Third
Circuit, sitting en banc, held as unconstitutional a school board's policy that permitted the senior class
to vote on whether to include a prayer at high school graduation ceremonies. See id. at 1477-88. The
policy in Black Horse Pike allowed senior class officers to conduct a poll of the graduating class to
13
Appellants, however, advance two arguments for why we should regard a student-selected graduation
speaker, who is selected through a wholly neutral process and who is given complete autonomy over the
content of her speech, as a public, state-sponsored speaker. First, they contend that by providing the platform
and opportunity, the state has created a sufficient link to the student speaker to convert the student's private
speech into public, state-sponsored speech. Second, they suggest that the majoritarian process of selecting
the speaker shrouds the otherwise private speech of a student with the imprint of the state. The first
argument—that by providing the platform, the speech becomes public—goes too far. The second
determine, by plurality vote, whether seniors wanted " 'prayer, a moment of reflection, or nothing at
all' " to be included in their graduation ceremony. Id. at 1475 (citation omitted). In Harris v. Joint
Sch. Dist. No. 241, 41 F.3d 447 (9th Cir.1994), vacated as moot, 515 U.S. 1154, 115 S.Ct. 2604, 132
L.Ed.2d 849 (1995), high school students themselves, pursuant to a school district policy, planned
every aspect of their graduation, without interference from school officials, and voted by written
ballot on whether or not to have prayer. The Harris court found that the state involvement in the case
was pervasive enough to offend Establishment Clause concerns, noting that "[t]he message of the
speakers is [ ] chosen by the majority; the relevant speakers are instructed to pray." Id. at 456-57.
In contrast to each of these policies, Duval County students vote on whether to have a
message of unspecified content delivered by a student. This is a meaningful distinction.
The Fifth Circuit recently revisited the issue of student-initiated prayer in Doe v. Santa Fe
Indep. Sch. Dist., 168 F.3d 806 (5th Cir.), cert. granted in part, --- U.S. ----, 120 S.Ct. 494, 145
L.Ed.2d 381 (1999). There, the Fifth Circuit examined what it considered to be the holding of
Jones—"that student-selected, student-given, nonsectarian, nonproselytizing invocations and
benedictions at high school graduation ceremonies" are constitutional—and concluded that the
constitutionality of a student-selected, student-led prayer policy depends on its "nonsectarian and
nonproselytizing" features. Id. at 816-19. The Santa Fe court also struck down a school policy
which allowed student-led, student-initiated prayer before high school football games. The Supreme
Court recently has granted certiorari in Santa Fe. However, the Court has limited its review to
whether student-led, student initiated prayer at football games violates the Establishment Clause. The
Court did not grant certiorari on the constitutionality of the Santa Fe graduation policy. Appellants
cite Santa Fe for the proposition that a policy which "permits" sectarian and proselytizing prayers
is facially unconstitutional. As discussed in greater detail infra, this argument proves too much and
is offensive to the Constitution. The Duval County policy, of course, permits 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., Mergens, 496 U.S. at 253, 110 S.Ct. 2356
(stating that "a denial of equal access to religious speech might well create greater entanglement
problems in the form of invasive monitoring to prevent religious speech at meetings at which such
speech might occur"); Santa Fe, 168 F.3d at 829-35 (Jolly, J., dissenting).
14
argument—that the speaker somehow garners state authority by virtue of the plebiscite—has no logical
rationale.
First, we reject the notion that the religious content of any speech at a graduation ceremony is
attributable to the school merely because of the school's sponsorship of the event or its control over the
graduation's schedule, timing, decorum, or sequence of events. The Supreme Court did not suggest in Lee
that school sponsorship of the graduation event, standing alone, was sufficient to find the Providence policy
unconstitutional, or it would have banned all religious expression at graduation. If Appellants were right on
this point, graduation speakers as diverse as athletes, politicians, academics, entertainers, and maybe even
judges would bear the imprimatur of the state because they were handpicked by the school (or, in our case,
elected by the senior class) to speak at an event over which the school has great control. Schools then would
have to prevent these speakers from discussing a religious topic, engaging in prayer, or imploring the
guidance of the Lord, to ensure no Establishment Clause violation and protect themselves from 42 U.S.C. §
1983 liability should an audience member perceive the school to be endorsing the speaker's religious message.
Indeed, the same logic would apply to a student graduation speaker selected by other neutral criteria such as
academic achievement. But a graduation free of all religious expression, compelled by the school's
sponsorship of the event, is not required by the Establishment Clause.
Even if we accept that the Duval County School Board exerted overwhelming control over the
graduation ceremony in terms of the event's sequence, venue, dress, and facilities, it is clear that it did not
have control over the elements which are most crucial in the Establishment Clause calculus: the selection of
the messenger, the content of the message, or most basically, the decision whether or not there would be a
message in the first place. It is beyond imagination to say that everyone on the platform at a high school
graduation ceremony, including a local politician or celebrity, is a state speaker merely because the state has
provided the platform, onto which private individuals may be invited to share their privately-held views.
Such views do not become the state's views merely by being uttered at a state event on a state platform.
15
Otherwise, each "open forum" case in which the Supreme Court found that granting religious groups access
to generally available public facilities or benefits through neutral selection criteria was not an unconstitutional
state endorsement of religion would be wrongly decided. See Pinette, 515 U.S. at 762-70, 115 S.Ct. 2440,
132 L.Ed.2d 650; id. at 772-83, 115 S.Ct. 2440, 132 L.Ed.2d 650 (O' Connor, J., concurring in the
judgment); id. at 783-94, 115 S.Ct. 2440, 132 L.Ed.2d 650 (Souter, J., concurring in the judgment);
Rosenberger, 515 U.S. at 839-46, 115 S.Ct. 2510, 132 L.Ed.2d 700; Lamb's Chapel, 508 U.S. at 395-97, 113
S.Ct. 2141, 124 L.Ed.2d 352; Mergens, 496 U.S. at 248-53, 110 S.Ct. 2356, 110 L.Ed.2d 191; Widmar, 454
U.S. at 271-79, 102 S.Ct. 269, 70 L.Ed.2d 440. For by Appellants' logic, the mere provision of a
state-controlled forum or subsidy to private speakers automatically converts private speech into government
speech.
In addition, a per se rule that all speech on a state-controlled platform is state speech, raises core free
expression concerns and would likely run afoul of the Free Exercise and Free Speech clauses. See Chandler,
180 F.3d at 1261 (stating that "[b]ecause genuinely student-initiated religious speech is private speech
endorsing religion, it is fully protected by both the Free Exercise and Free Speech Clauses of the
Constitution") (emphasis added). Even if we were to construe a graduation ceremony as a "nonpublic forum,"
Duval County students still would possess free speech rights there. The Supreme Court has consistently held
that in nonpublic fora the government may not engage in viewpoint discrimination. See Cornelius v. NAACP
Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 806, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985) (finding that
"[c]ontrol over access to a nonpublic forum can be based on subject matter and speaker identity so long as
the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral
") (emphasis added); Perry Educ. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 46, 103 S.Ct. 948, 74
L.Ed.2d 794 (1983) (observing that "the state may reserve [ ] [a nonpublic] forum for its intended purposes,
communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress
expression merely because public officials oppose the speaker's view"). The Court has also concluded that
16
religion is a viewpoint which, for First Amendment purposes, may provide "a specific premise, a perspective,
a standpoint from which a variety of subjects may be discussed and considered." Rosenberger, 515 U.S. at
831, 115 S.Ct. 2510, 132 L.Ed.2d 700.
Presumably, a student's religious perspective would inform his views on a variety of subjects
ordinarily dealt with at graduation such as expressing gratitude to his family or religious community,
reflecting on the meaning of his school experience, or defining his future goals. The extremely personal and
subjective nature of such views helps to explain why the School Board policy yields private rather than public
speech. To unnecessarily classify student speakers as government actors could render Duval County students
powerless to express religiously-inspired or religiously-influenced opinions at graduation. It also would
effectively compel the Duval County School Board, if it wants to have any speech on topics where religion
might motivate opinion or mould perspective, to engage in viewpoint discrimination, "an egregious form of
content discrimination," Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510, 132 L.Ed.2d 700, in the name of
secular purity.
The expression of religious beliefs, which are sacred to some listeners, may be offensive to others.
Appellants' desire to insulate students and other attendants at graduation from the offense that they may well
experience at hearing religious expression with which they strongly disagree is altogether understandable.
Graduation ceremonies are designed to be joyous occasions for the celebration of student achievement. But
the Constitution does not prohibit the exercise of offensive speech at graduation ceremonies, religious or
otherwise; it only prohibits state expressions of religion. While the School Board is under no compulsion
to provide an opportunity for free expression by one or more students at a graduation ceremony, the
Constitution certainly does not prohibit the School Board from doing so. The occasional tolerance of speech
we may deem offensive is one price we pay for the First Amendment and our democratic traditions.
Second, we reject the claim that allowing students to vote for a graduation message and to select the
student speakers automatically places the imprint of the state on the student speakers' privately-crafted
17
messages. Appellants' leap of logic, taking a selected student representative and, without explanation, turning
her into a state actor by virtue of a democratic student vote, strains credulity. At most, a student speaker
selected by a class vote is a representative of the student body, not an official of the state. She has no power
or authority or official capacity to inform, carry out, or guide state policy. It is wholly unconvincing to argue
that the student becomes a state actor because she was chosen by her peers, unless each high school student
individually is considered to be a state actor, or somehow the students, acting in concert, come to be vested
with the power of the state.
Consider two examples. First, consider the case of the selection of a Homecoming Queen. While
she may be selected by a vote, or plebiscite of the entire senior class, the Homecoming Queen cannot be
characterized as a state actor, or a representative of the state, merely because she holds a "public" position
and sits atop the Homecoming float. Imagine, second, the example of replacing the traditional valedictory
address with the practice of affording the students of the graduating class the opportunity to select the
graduation student speaker through a vote by the entire class. In this hypothetical, the student speaker is
selected, not by the School Board on the basis of grades, but by the students on the basis of student
choice—be it popularity, ability to entertain, achievement in athletics, or for some other reason. Again, it
strains reason and common sense to suggest that, by virtue of her selection by the majority of the senior high
school class, the student speaker becomes a mouthpiece of the state. Both examples suggest that the senior
class's act of voting does not, in any way, turn the senior class vote into state action, nor turn the chosen
student into a state actor. Because Duval County policy utilizes this same methodology, affording the
students of the senior class the opportunity to vote whether or not to have a message and to select a student
speaker, in a wholly secular way, the graduation message vote is no more vested with the imprimatur of the
state than are the votes for graduation class speaker or Homecoming Queen.
While the line between "what is 'private' action and what is 'state' action is not always easy to
determine," Appellants have in no way proven that the students' private conduct has become so "entwined
18
with government policies" or so "impregnated with governmental character" as to become subject to the
constitutional limitations placed on state action. Evans v. Newton, 382 U.S. 296, 299, 86 S.Ct. 486, 15
L.Ed.2d 373 (1966) (citing Burton v. Wilmington Parking Auth., 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45
(1961)). All of the policy's central decisions—who speaks, whether there will be a speaker, and what the
content of the speech may be—are uncontrolled by the state. Indeed, the Duval County policy itself states
that its purpose is "to allow students to direct their own graduation message without monitoring or review
by school officials." The mere delegation of decision-making to pick a speaker alone does not place the
state's imprint on a graduation prayer delivered by an autonomous student speaker who is free to give a
message of unrestricted content.
In fact, the state's only involvement in the graduation message is to provide students with the
opportunity to vote, to impose a time limit of two minutes, and to direct that the message be delivered at the
beginning and/or closing of the ceremony. If the senior class were asked to vote whether to have a student
deliver a poem or sing a song at their graduation exercise, under the same time and sequence restraints of the
Duval County graduation message policy, that act still would involve the selection of a private, autonomous
speaker through a neutral criterion. The Duval County policy does nothing more. It simply creates a neutral
mechanism whereby the students can elect to have an unrestricted message and select a student speaker.
These facts do not establish that the state has so insinuated itself into the decision so as to transform
an elected student's private speech into an utterance of the state. Where the student is chosen in a neutral and
secular way and where the student is allowed complete autonomy over the message, the student's speech is
her own.
B.
The other dominant fact of Lee—whether Duval County students are coerced "to support or
participate in religion or its exercise" by the School Board policy, 505 U.S. at 587, 112 S.Ct. 2649, 120
L.Ed.2d 467—is largely determined by the measure of state control over the message at a graduation
19
ceremony, rather than state control over the ceremony itself. We do not quarrel with the Court's suggestion
in Lee that students feel compelled to attend graduation, see id. at 593-97, 112 S.Ct. 2649, 120 L.Ed.2d 467,
and that schools "retain a high degree of control" over graduation ceremonies, id. at 597, 112 S.Ct. 2649, 120
L.Ed.2d 467. But these conclusions do not suffice to decide the issue of coercion under these circumstances.
The focus must be on whether the state has endorsed the message in an appreciable manner, which, when
combined with the inherent nature of the graduation ceremony, obliges students to participate in a religious
exercise. See Lee, 505 U.S. at 594, 112 S.Ct. 2649, 120 L.Ed.2d 467 (explaining that "[t]he injury caused
by the government's action ... is that the State, in a school setting, in effect required participation in a religious
exercise").
Here, neither the Duval County schools nor the graduating senior classes even decide if a religious
prayer or message will be delivered, let alone "require" or "coerce" the student audience to participate in any
privately-crafted message. While schools may make private religious speech their own by endorsing it,
schools do not endorse all speech that they do not censor. We cannot assume, as Appellants do, that Duval
County seniors will interpret the school's failure to censor a private student message for religious content as
an endorsement of that message—particularly where the students are expressly informed as part of the
election process that they may select a speaker who alone will craft any message. While there may be
pressures on students to attend graduation and conform with their peers, see Lee, 505 U.S. at 593-95, 112
S.Ct. 2649, 120 L.Ed.2d 467, the state's complete control over a religious exercise, essential to Lee's holding,
see id. at 590, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (finding that "[t]he degree of school
involvement here made it clear that the graduation prayers bore the imprint of the State ..."); id. at 597, 505
U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (noting that "the 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 conspicuously absent here. Moreover, whatever majoritarian pressures are attendant to a student-led
prayer pursuant to a direct student plebiscite on prayer are not facially presented by the Duval County policy.
20
Appellants also assume that allowing the senior class to vote whether to have a graduation "message"
unrestricted in content and to select an autonomous student speaker will have the effect of coercing any
chosen speaker into placating the majority's religious sensibilities by offering a sectarian message of which
the majority approves. This argument is highly remote and speculative. Even the scant record before us
suggests an opposite conclusion. While ten of the graduation messages delivered pursuant to the policy
involved some sort of religious content, the other seven Duval County graduations either had no student
message or a wholly secular message. In the second place, this argument would be far better suited to an
as-applied challenge, where the record has been properly developed, rather than to a facial challenge. A facial
challenge to be successful "must establish that no set of circumstances exists under which the Act would be
valid." United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (emphasis
added). Appellants' argument simply ignores the plain text of the policy which only permits graduating
students to decide through a vote whether a student volunteer shall give a message of her choice. No religious
result is preordained under the policy. On its face, the policy is constitutional under Lee.
III.
We reach the same conclusion when the graduation policy is measured against the three-part Lemon
test. Under Lemon, we must evaluate whether: first, the policy has a secular purpose; second, the policy has
a primary effect that neither advances nor inhibits religion; and finally, the policy fosters an excessive
government entanglement with religion. See Lemon, 403 U.S. at 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745.
A.
We begin with the policy's purpose. Lemon requires that a statute must have "a secular legislative
purpose." 403 U.S. at 612, 91 S.Ct. 2105, 29 L.Ed.2d 745. A statute will only violate this prong if it is
"entirely motivated by a purpose to advance religion." Wallace v. Jaffree, 472 U.S. 38, 56, 105 S.Ct. 2479,
86 L.Ed.2d 29 (1985); see also Bowen v. Kendrick, 487 U.S. 589, 602, 108 S.Ct. 2562, 101 L.Ed.2d 520
(1988) (stating that a court "may invalidate a statute only if it is motivated wholly by an impermissible
21
purpose") (citations omitted); Lynch v. Donnelly, 465 U.S. 668, 680, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984)
(observing that "[t]he Court has invalidated legislation or governmental action on the ground that a secular
purpose was lacking, but only when it has concluded there was no question that the statute or activity was
motivated wholly by religious considerations"). A statute may satisfy Lemon 's first prong even if it is
"motivated in part by a religious purpose." Wallace, 472 U.S. at 56, 105 S.Ct. 2479, 86 L.Ed.2d 29.
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, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987), particularly
where "a legislature expresses a plausible secular purpose" for a policy or action, Wallace, 472 U.S. at 74,
105 S.Ct. 2479, 86 L.Ed.2d 29 (O'Connor, J., concurring in the judgment). We respect that purpose unless
it is insincere or a "sham," Edwards, 482 U.S. at 586-87, 107 S.Ct. 2573, 96 L.Ed.2d 510; Bown, 112 F.3d
at 1468, or the statute at issue has a "preeminent purpose" which is "plainly religious in nature," Stone v.
Graham, 449 U.S. 39, 41, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (per curiam); see also Edwards, 482 U.S.
at 591, 107 S.Ct. 2573, 96 L.Ed.2d 510; Wallace, 472 U.S. at 56-60, 105 S.Ct. 2479, 86 L.Ed.2d 29. But
the Supreme Court has been reluctant to attribute an unconstitutional motive where a "plausible" secular
purpose may be discerned from the statute. Mueller v. Allen, 463 U.S. 388, 394-95 & n. 4, 103 S.Ct. 3062,
77 L.Ed.2d 721 (1983).
Additionally, "[i]nquiry into legislative purpose begins with interpreting the law itself." Church of
Scientology v. City of Clearwater, 2 F.3d 1514, 1527 (11th Cir.1993). That requires close attention be paid
to the plain language of the policy. For the most part, statutes which the Supreme Court has invalidated for
lack of secular purpose have openly favored religion or demonstrated a religious purpose on their face. See,
e.g., Edwards, 482 U.S. at 593, 107 S.Ct. 2573, 96 L.Ed.2d 510 (invalidating a Louisiana law that required
creationism to be discussed with evolution in public schools); Wallace, 472 U.S. at 57-58, 105 S.Ct. 2479,
86 L.Ed.2d 29 (overturning an Alabama statute that authorized a moment of silence because the state made
no attempt to justify the statute in terms of any secular purpose); Stone, 449 U.S. at 41, 101 S.Ct. 192, 66
22
L.Ed.2d 199 (striking down a Kentucky statute requiring the posting of the Ten Commandments in public
classrooms); Engel v. Vitale, 370 U.S. 421, 424, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962) (holding
unconstitutional a New York law authorizing state-directed daily classroom prayer in public schools).
In contrast, three secular purposes are plainly encompassed by the Duval County policy. First, the
Duval County policy, by its very words, articulates a secular purpose; namely, affording graduating students
an opportunity to direct their own graduation ceremony by selecting a student speaker to express a message.
By choosing whether to have a graduation message, and if so, the student speaker, the graduating class shares,
at least in part, in the civic responsibility of planning their graduation ceremony. See Jones, 977 F.2d at 966
(finding that "[a] meaningful graduation ceremony can provide encouragement to finish school and the
inspiration and self-assurance necessary to achieve after graduation, which are secular objectives").
Second, the School Board policy allows students to solemnize graduation as a seminal educational
experience. See Lynch, 465 U.S. at 693, 104 S.Ct. 1355, 79 L.Ed.2d 604 (O'Connor, J., concurring) (noting
"the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and
encouraging the recognition of what is worthy of appreciation in society"); see also Chaudhuri v. Tennessee,
130 F.3d 232, 236 (6th Cir.1997); Tanford v. Brand, 104 F.3d 982, 986 (7th Cir.1997); Jones, 977 F.2d at
966-67. This purpose is not drained of its secular character merely because the policy invites consideration
of meaning and values in the context of a graduation ceremony. And it would be very damaging to public
education if the Establishment Clause were to be seen as inhibiting any reflection by a student of transcendent
meaning and value in life, whether grounded in religion or not.
Finally, the School Board's policy also evinces an important and long accepted secular interest in
permitting student freedom of expression, whether the content of the expression takes a secular or religious
form. See Pinette, 515 U.S. at 760, 115 S.Ct. 2440, 132 L.Ed.2d 650 (noting that "[o]ur precedent establishes
that private religious speech, far from being a First Amendment orphan, is as fully protected under the Free
Speech Clause as secular private expression"); Mergens, 496 U.S. at 249, 110 S.Ct. 2356, 110 L.Ed.2d 191
23
(stating that "prevent[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) (explaining that a "policy of treating religious speech the same as all
other speech certainly serves a secular purpose").
Nevertheless, Appellants suggest that the policy has no true secular purpose and they posit three
arguments to show that any avowed secular purpose is actually a "sham." They claim first, that the School
Board promulgated the policy as a means to evade the strictures of Lee; second, that the policy's solely
sectarian purpose is established by the title of the Reynolds Memorandum, "Graduation Prayer"; and finally,
that comments made by some members of the School Board, notably after the policy had been promulgated
and distributed in Duval County, likewise evince a wholly sectarian purpose.
Before examining Appellants' specific claims, we first note that Appellants, without any case
authority, ignore the plain text of the policy and its explicitly stated secular purpose, as if there were none.
Appellants would divine a wholly sectarian purpose merely by looking at the antecedent history, the title, and
the post-enactment debate surrounding the graduation policy. While it is appropriate to consider both the
"legislative history and the specific sequence of events leading up to the adoption of the statute," it is, "of
course, necessary to examine the language of the statute on its face." Bown, 112 F.3d at 1469 (citing
Edwards, 482 U.S. at 594, 107 S.Ct. at 2583; Church of Scientology, 2 F.3d at 1527).
As for Appellants' first claim, Appellants cite no persuasive evidence that the Duval County policy
was promulgated to evade the strictures of Lee. Inferring the subjective motivations of policymakers is always
a tricky proposition. "[W]hile it is possible to discern the objective 'purpose' of a statute (i.e., the public good
at which its provisions appear to be directed), or even the formal motivation for a statute where that is
explicitly set forth, ... discerning the subjective motivation of those enacting the statute is, to be honest, almost
always an impossible task. The number of possible motivations, to begin with, is not binary, or indeed finite."
Edwards v. Aguillard, 482 U.S. 578, 636-37, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (Scalia, J., dissenting).
24
In this case, that task is made even more difficult because we have no record from which to fairly
infer the motivation of those who promulgated or distributed the policy. In so far as we attempt to divine
purpose from the decision-makers, "to the extent that the School Board was the institutional policy maker
(rather than Superintendent Zenke and/or Ms. Reynolds)," the district court found that the "purposes or
intentions of the members of the Board are unknown. No debate was had and no vote was taken on the
Reynolds Memorandum of May 5." Adler I, 851 F.Supp. at 451. To the extent that we focus on the motives
of Mr. Zenke or Ms. Reynolds, the district court found mixed motives or purposes—to permit students to
solemnize the event, to afford the student body the opportunity to select a messenger, who, in turn would,
with 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.
Appellants offer no good reason to disturb the district court's findings which are grounded in the
facially neutral language of the Reynolds Memorandum. Appellants principally rely on the pre-policy
history. A review of the pertinent history, however, yields only the observations that prior to Lee Duval
County had a long tradition of clergymen offering prayers at commencement ceremonies, that in the wake
of Lee in 1992 the School Board terminated the practice, and that thereafter many members of the community
expressed strong views about the policy one way or the other. Appellants highlight the fact that some
community members wrote letters imploring Zenke and the Board to find a way to maintain the graduation
prayer tradition. It would be an especially dangerous practice if a court could somehow discern legislative
purpose, not from the text of the policy, nor from its explicitly stated purpose, nor even from a
decision-making body that has offered no debate from which to find purpose, but, rather, simply from the
controversy surrounding the subject and the heartfelt and often conflicting views expressed by many members
of the community.
In addition, the fact that the Reynolds Memorandum discusses Lee and the question of whether
student-initiated, student-led graduation prayer is constitutional does not establish that the policy's secular
25
purposes are a "sham." Edwards, 482 U.S. at 586-87, 107 S.Ct. 2573, 96 L.Ed.2d 510; Bown, 112 F.3d at
1468. There is nothing inappropriate about a school system attempting to understand its constitutional
obligations and to instruct school officials on how to comply with the law. The Reynolds Memorandum
simply explained that in spite of Lee the law was unclear on the student prayer issue and that the School
Board had been threatened with "lawsuits from both sides on the issue depending on what action" they took.
The memorandum, in no way, expressed a desire or preference for student prayer at graduation ceremonies.
It simply acknowledged that Lee forbade graduation prayers "directed and initiated by the school system"
rather than student-initiated, student-led prayers. Moreover, as the memorandum made clear, the policy's
stated purpose is plainly secular, "to allow students to direct their own graduation message without
monitoring or review by school officials," and its features are strictly content-neutral and equally
accommodating of secular and sectarian student messages. At worst, the memorandum can be read as
contemplating that student prayers could be offered pursuant to the graduation policy and that such
occurrences were not strictly forbidden by Lee. Such a supposition does not come close to rendering the
policy's secular purposes a sham.
Appellants next suggest that the title of the Reynolds Memorandum, "Graduation Prayer," supports
the conclusion that the School Board policy was driven solely by sectarian concerns. The title, however,
merely introduces the topic of debate within Duval County in the aftermath of Lee, rather than suggesting,
let alone compelling, the outcome of that debate. The title affixed to the Reynolds Memorandum does no
more than alert the reader to the general subject matter of the text; and it remains the language and substance
of the policy, rather than its title, that is controlling. It is altogether unnecessary to requisition the title to cast
doubt on the clear and unambiguous purpose of the policy. The crucial term "message" is fully defined by
the text of the policy, which provides that the decision whether to have a message is left to the students, that
the student body shall choose the student speaker, that the message is limited to two minutes in length, that
the message shall take place at the beginning and/or closing of the graduation ceremony, and, finally, that the
26
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.R. Co., 331 U.S. 519, 528-29, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947). Both we and our predecessor
court have repeatedly employed this principle of statutory construction when interpreting the statutory text.
See, e.g., North Ala. Express, Inc. v. Interstate Commerce Comm'n, 971 F.2d 661, 664 (11th Cir.1992)
(declaring that " '[s]ection and chapter titles cannot alter the plain meaning of a statute; they can only assist
in clarifying ambiguity' ") (citation omitted); Scarborough v. Office of Personnel Management, 723 F.2d 801,
817 (11th Cir.1984) (noting that "reliance upon headings to determine the meaning of a statute is not a
favored method of statutory construction"); Rich v. Commissioner of Internal Revenue Serv., 250 F.2d 170,
175 (5th Cir.1957) (stating that "[t]he plain and unambiguous meaning of the text of the section cannot be
extended by its title or heading").
Finally, Appellants point to post-enactment comments of some members of the School Board made
at a June 1, 1993 meeting as evidence of the School Board's wholly sectarian purpose to permit graduating
students to pray. However, the district court observed that "[t]he motivation or intent of the Board relative
to the Reynolds Memorandum of May 5 is essentially unknown." Adler I, 851 F.Supp. at 452. No debate
was had and as far as the record reflects, no vote was taken on the Reynolds Memorandum. The June 1
comments were made almost a month after the policy was promulgated and distributed in the context of a
27
proposal to replace student-initiated messages with a moment of silence. The motion failed and the policy
was left in force. At best, the vote can be viewed as a tacit endorsement of the Reynolds Memorandum.
Furthermore, a review of the School Board's comments at this meeting do not establish that the School Board
sought to direct or endorse graduation prayer via the Reynold Memorandum. The most one could say is that
the statement of one School Board member at the June 1 meeting could be characterized as advocating direct
school involvement with religion at graduation ceremonies.8 Simply put, the post-enactment comments are
not sufficient to transform the policy's express secular purpose into a preeminently religious purpose.
More importantly, regardless of how these post hoc statements are interpreted, they cannot be
construed to override the policy's language articulating a clear secular purpose. See Bown, 112 F.3d at 1472.
Indeed in Bown, we had occasion to find that the legislative history of a Georgia statute (mandating a period
for quiet reflection in public schools), which contained some expressions of religious motives by several
legislators who voted for the Act, could not "override the express statutory language articulating a clear
8
Appellants cite to four post-enactment statements of School Board members to show that the School
Board intended to permit graduating students to engage in prayer. In fact, the statements to which the
Appellants refer generally buttress the conclusion that the School Board's policy was not a sham. Of those
four statements, only the statement of Board member Bill Parker can be characterized as advocating direct
school involvement with religion at graduation ceremonies. See Tr. of Duval County Sch. Bd. Meeting at
2 ("I think that our school principals should be allowed to work 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 Appellants, that of Board member Stan
Jordan, was also supportive of the policy. See id. at 8 ("I plan to vote for the administration plan and against
the proposal that's on the table."). Taken as a whole, these utterances by School Board members constitute
recognition that the old regime of state-directed school prayer in Duval County had passed and been replaced
by a new regime over which they had far less control.
28
secular purpose."9 Id. Here, we have even far less evidence of a sectarian policy purpose on the part of the
School Board or their principals.
In sum, whether standing alone or in concert, the three pieces of evidence cited by Appellants cannot
strip the policy of a secular purpose. No matter what an individual board member may have hoped—and they
said nothing on the record about codifying this policy—Duval County's policy is facially neutral and
undeniably evinces a secular purpose. That is enough to pass constitutional muster under the first prong of
Lemon.
B.
As for whether the policy has the primary effect of advancing religion, we conclude that because the
policy, on its face, allows a student message on any topic of the student's choice it satisfies the second prong
of Lemon. The Duval County School Board policy is content-neutral and does not mandate or even
encourage that a graduation prayer will be uttered. As the district court found, the implementation of the
policy may result in no graduation prayer at all. See Adler I, 851 F.Supp. at 454. While it is undoubtably true
that an autonomous student speaker could read a prayer at graduation under the policy, it is equally true that
the same speaker may opt for a wholly secular message instead. It would require a strain of the term
"primary" to suggest that a content-neutral forum policy, which accommodates private sectarian and secular
speech on an equal basis, has the "primary" or "principal" effect of advancing religion.
Moreover, we believe that a student's private choice to deliver a religious message at graduation is
a religious effect attributable to the student rather than to the facial terms of the Duval County policy. As the
9
Appellants cite Jager v. Douglas County Sch. Dist., 862 F.2d 824 (11th Cir.1989), for the proposition that
a policy, whose actual purpose is to promote prayer or is "intrinsically religious," Id. at 830, cannot meet the
secular purpose prong of Lemon. But Jager does no more than state the obvious, that in order to meet Lemon
's first prong, a government policy must have a genuine secular purpose and not be a sham. See Edwards,
482 U.S. at 586-87, 107 S.Ct. 2573, 96 L.Ed.2d 510. If a policy's "actual purpose" is wholly religious then
Lemon 's secular purpose requirement is not satisfied. In Jager, we held that a school district's practice of
having representatives of student organizations deliver invocations prior to football games had as its
"preeminent purpose" the endorsement of Protestant Christianity. Id., 862 F.2d at 830. The only discretion
left to the students was the selection of who would pray.
29
Supreme Court has explained, "to have forbidden 'effects' under Lemon, it must be fair to say that the
government itself has advanced religion through its own activities and influence." Corporation of Presiding
Bishop of Church of Jesus Christ Latter-Day Saints v. Amos, 483 U.S. 327, 337, 107 S.Ct. 2862, 97 L.Ed.2d
273 (1987). Here, the policy strips the School Board of any authority over the central decisions—who speaks,
whether there will be a speaker, and what the content of the speech may be. Indeed, in order to ensure that
no one perceives any student's religious utterance as being the state's prayer, the policy explicitly divorces
any student message from School Board sponsorship by specifically stating that any message will be
"prepared by the student volunteer and shall not be monitored or otherwise reviewed" by the School Board
or its employees. This language acts as an overt disclaimer, further distancing the state from the student
message.
Our conclusion is amply supported by Supreme Court caselaw. The Court, under Lemon, repeatedly
has upheld facially neutral programs that permit individuals to support religion through their own private
choices. See, e.g., Agostini, 521 U.S. at 223-232, 117 S.Ct. 1997, 138 L.Ed.2d 391 (upholding New York
program of sending public school teachers into parochial schools to provide remedial education where aid
was made available to religious and secular beneficiaries on a nondiscriminatory basis); Zobrest, 509 U.S.
at 8-12, 113 S.Ct. 2462, 125 L.Ed.2d 1 (sustaining section of Individual with Disabilities Act providing
disabled children with aid regardless of whether a child attends a sectarian institution); Witters, 474 U.S. at
488, 106 S.Ct. 748, 88 L.Ed.2d 846 (holding that Establishment Clause was not violated when the state paid
a blind student's tuition at a Christian college through a generally-applicable aid program because any public
aid that reached religious institutions under the program was "a result of the genuinely independent and
private choices of aid recipients"); Mueller v. Allen, 463 U.S. at 399, 103 S.Ct. 3062, 77 L.Ed.2d 721
(upholding a state tax deduction for specified educational expenses, and characterizing any such aid to
religion as being "only as a result of numerous, private choices of individual parents of school-age children").
The Duval County policy allows elected student speakers the freedom to privately choose a graduation
30
message of an either secular, sectarian, or mixed nature. We therefore find that the Duval County policy does
not have a primary effect of advancing religion.
C.
For many of the same reasons, we conclude that the School Board's policy does not excessively
entangle the Board with religion in violation of the third part of the Lemon test.10 The policy remains facially
neutral with respect to religion, requiring only that graduation messages be voted on by students, and
composed and directed by a student speaker. By its very terms, the policy explicitly prohibits any review of
the student message at all. Undoubtedly, the School Board would find itself far more entangled with religion
if it attempted to eradicate all religious content from student messages than if it maintained a meaningful
policy of studied neutrality. See Mergens, 496 U.S. at 253, 110 S.Ct. 2356, 110 L.Ed.2d 191 (stating that "a
denial of equal access to religious speech might well create greater entanglement problems in the form of
invasive monitoring to prevent religious speech at meetings at which such speech might occur"); Widmar,
454 U.S. at 272 n. 11, 102 S.Ct. 269, 70 L.Ed.2d 440 (noting that schools who adopt open-forum policies for
private secular and religious groups equally "would risk greater 'entanglement' by attempting to enforce its
exclusion of 'religious worship' and 'religious speech' "); Chabad-Lubavitch, 5 F.3d at 1389; Jager, 862 F.2d
at 831.
Implicit in Appellants' rationale is the need for school censorship if schools are to allow students the
opportunity to speak at graduation at all. At the core of Appellants' position is the claim that the state's
control over nearly all aspects of the graduation ceremony automatically imputes all private speech to the
state. But the degree of control that schools generally exert over high school graduation ceremonies is
unlikely to diminish because graduation ceremonies are, by their nature, highly choreographed. Appellants'
position therefore would leave school officials with only two choices: either eliminate student speech
10
Recently, in Agostini, the Court merged the second and third Lemon prongs because "the factors we use
to assess whether an entanglement is 'excessive' are similar to the facts we use to examine 'effect.' " Id., 521
U.S. at 232, 117 S.Ct. 1997.
31
altogether or retain student speech, subject to censorship by school authorities. If school officials choose the
latter course, they will be left with the unenviable task of identifying the religious content in student speeches
for excision prior to graduation or of interrupting renegade graduation speakers who resort to sectarian
speech.11 If, however, they choose the former, they will have deprived the graduation class of any role in
shaping its high school graduation and they will have banned all private student expression. The
Establishment Clause requires no such Hobson's choice. What it does require is a recognition of the critical
difference between a private statement of religious values and a religious utterance endorsed by the state. The
Duval County School Board's policy, on its face, does no more than recognize this distinction.
IV.
Based on the foregoing, we hold that the Duval County school system's policy of permitting
graduating students to decide through a vote whether to have an unrestricted student graduation message at
the beginning and/or closing of graduation ceremonies does not facially violate the Establishment Clause.
We therefore affirm the judgment of the district court.
AFFIRMED.
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 Duval County
11
There is no easy or precise guideline for school officials to follow when excising student speech of
religious content. The constitutional definition of religion is expansive; it encompasses "all sincere religious
beliefs which are based upon a power or being, or upon a faith, to which all else is subordinate or upon which
all else is ultimately dependent" and "which occupies in the life of its possessor a place parallel to that filled
by [ ] God." United States v. Seeger, 380 U.S. 163, 176, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965). Moreover, the
beliefs "need not be acceptable, logical, consistent, or comprehensible to others." Thomas v. Review Bd., 450
U.S. 707, 714, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981). Moreover, if the School Board's censorship was not
"rigorous" enough to prevent religion from creeping into graduation ceremonies, a policy of allowing even
monitored student speech still would be subject to constitutional attack.
32
graduation policy, but the analysis is flawed by an unwillingness to look beyond the policy's terms. A
broader, more contextual appraisal leads me to conclude that the Duval County policy violates the
Establishment Clause of the First Amendment. Therefore, I respectfully dissent.
In Lee, 505 U.S. at 586, 112 S.Ct. at 2655, the Supreme Court held a graduation ceremony
unconstitutional because (1) school officials were overly involved with the delivery of a prayer, and (2)
audience members were in effect required to participate in a formal religious exercise. Admittedly, the link
between the Duval County policy and resulting prayer at graduation ceremonies is not as direct as in Lee. But
although the Duval County school administration may have distanced itself from prayer offered during
graduation ceremonies, it did not disconnect itself from religious expression. Nor does the policy mitigate
the influences that coerce audience members to participate in prayers offered at graduation.
Although Lee presents a specific example of an Establishment Clause violation, Lemon, 403 U.S. at
612-13, 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.
33
In addition to disagreeing with the majority's facial analysis of the Duval County policy, I take issue
with the conclusion that the plaintiffs waived their as-applied claims. After analyzing the Duval County
policy under both Lee and Lemon, and critiquing the majority's public forum analogy, this dissent concludes
with a brief examination of the procedural posture of the case and the district court's order advancing the trial
on the merits.
A. Lee v. Weisman
The starting point for the analysis of the Duval County policy is Lee v. Weisman, 505 U.S. 577, 112
S.Ct. 2649, 120 L.Ed.2d 467 (1992), because it is the only Supreme Court case involving prayer at public
school graduation ceremonies. In Lee, a principal invited a rabbi to give a prayer at the school's graduation
ceremony and provided a pamphlet suggesting an appropriate tone and possible content for the presentation.
Id. at 581, 112 S.Ct. at 2652. The Supreme 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
34
County policy is not as egregious as the practice scrutinized in Lee. The state involvement with prayers
offered through the operation of the policy, however, is still too extensive to comport with the Establishment
Clause.
In its own search for state involvement, the majority focuses on the student standing alone at the
podium delivering an uncensored message, but ignores how she got there. A broader inquiry reveals that the
state directs the exercise of prayer at Duval County high school graduations 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, "[i]nvocations and benedictions have been traditional and are therefore familiar if not expected at high
35
school graduation ceremonies" in Duval County. Adler v. Duval County Sch. 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" decisions regarding the opening and closing
message. This logic undervalues the power of the policy's terms to influence the students' choices; it also
treats the graduation "message" as if it were an independent event, rather than the opening and closing
segment of a more substantial occasion, the graduation ceremony. This narrow perspective permits the
majority to ignore the fact that the Duval County policy gives students control over only a tiny fraction of
the graduation ceremony as a whole.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.
1
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.
36
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 opening
and closing, and the policy does not divest the administration of control over the graduation ceremonies
generally.
Finally, prayers recited during the opening and closing portions of the ceremony have an injurious
effect precisely because of the state association with the event. Most people properly perceive their everyday
encounters with others' religious expression as an incidental requirement of life in a diverse society, rather
than as a burden or attack on their own beliefs. See Lee, 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
37
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.
2
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.
38
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 controversy, 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
3
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.
39
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. There was no opportunity to
influence the types of speeches given, because there was no discretion in choosing the speakers. The
authorities could also disconnect themselves from the content of the student speakers' speech because the
speakers were chosen not for the views their peers or teachers hoped they would espouse, but on the basis
4
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.
5
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.
40
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 S.Ct. at 2659.
Writing about this second dominant fact, the Lee Court stated: "The sole question presented is
whether a religious exercise may be conducted at a graduation ceremony where, as we have found, young
graduates who object are induced to conform." Id. at 599, 112 S.Ct. at 2661. The majority here refuses to
address that question. Instead, it holds that whether the school administration coerces student participation
in a religious exercise "is largely determined by the measure of state control over the message at a graduation
ceremony, rather than state control over the ceremony itself." The majority cites no authority for this
interpretation, which essentially reads the "second dominant fact" out of Lee and disregards much of that
decision's analysis.6
6
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
41
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, the movements,
the dress, and the decorum of the students." Id. at 597, 112 S.Ct. at 2660. Finally, adolescents are susceptible
to peer pressure, and the pressure to conform "is strongest in matters of social convention." Id. at 593, 112
S.Ct. at 2659.
These coercive elements are as present at Duval County graduation ceremonies under the policy at
issue in this case as they were at the Providence, Rhode Island, graduation scrutinized in Lee. Graduation is
a central life event for teenagers in north Florida. School authorities set the dress code and prescribe
appropriate behavior for seniors. Often, students are required to remain silent or even stand for the
ceremonies' opening and closing messages. The Duval County policy exacerbates peer pressure, because
would-be dissenters know that the majority of their classmates chose the student speaker. Finally, the policy
heightens the social pressure to participate by allowing religious expression at a formal, ceremonial stage of
the graduation. The audience remains seated and passive through much of the graduation, including speeches
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.
42
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."
7
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).
43
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 the policy are insincere, then the policy
violates the Establishment Clause. See Edwards, 482 U.S. at 586-87, 107 S.Ct. at 2579; Lynch v. Donnelly,
465 U.S. 668, 690-91, 104 S.Ct. 1355, 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
44
of the program historically dedicated to prayer. The policy also carefully restricts opening and closing
messages to two minutes, a short period amenable to a limited range of speech that includes prayer. Finally,
the policy dictates that decisions about the two minute opening and closing be made by majoritarian vote,
limiting the opportunity for innovation and variety.
Finally, there is the title of the memorandum announcing the new policy: Graduation Prayer. The
attorney who drafted the memorandum obviously understood the reason for the policy, but the majority of
this court chooses to ignore the evidence. Instead, it relies on the maxim that it is improper to use a statute's
title to inform the plain meaning of the statute's language. In all the cases cited by the majority, however, the
courts had to interpret the meaning of statutes in order to apply them 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 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.
The memorandum begins with two paragraphs devoted to prayers at graduation and the discord
following Lee. This analysis concludes with an explanation of the "key to the Lee v. Wiseman [sic] decision,"
and then, "[w]ith that premise in mind," segues into the provisions of the new policy. The policy's operational
terms carefully avoid mention of prayer, but the memorandum as a whole makes clear that the choice of a title
was far from incongruous.
8
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).
9
In sharp contrast, numerous legislators influence the choice of statutory language, and titles are often
chosen for political effect rather than to accurately summarize a bill's purpose or content.
45
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.
10
William Shakespeare, Romeo and Juliet, act 2, sc. 2.
11
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.
46
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
Finally, the Duval County policy enhances student control over the graduation ceremony in only the
most limited sense. The senior class cannot choose to have a 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,
12
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.
13
See R 1st Supp. Exs. (Reynolds Dep. at 21; Epting Dep. at 26-27; Lockett Dep. at 11).
47
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. Joint Sch. Dist. No. 241, 41 F.3d 447, 458
(9th Cir.1994), vacated with directions to dismiss as moot, 515 U.S. 1154, 115 S.Ct. 2604, 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
14
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'Connor's concurrence in Lynch for
the more general proposition that religious expression can solemnize public occasions, but Justice O'Connor's
statement is qualified. "[G]overnment acknowledgments of religion," she writes, can "serve ... the legitimate
secular purpose[ ] of solemnizing public occasions," but her examples are all practices that "are not
understood as conveying government approval of particular religious beliefs." Lynch, 465 U.S. at 693, 104
S.Ct. at 1369-70.
48
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.
49
The chronology of events leading to the policy and the public pressure to keep prayer as part of the high
school graduation ceremonies may not be conclusive evidence, but they inform the reasonable observer's
understanding of the policy's purpose. The title of the policy itself, the bulk of the memorandum announcing
it, and the fact that the policy only applies to the portion of the graduation ceremony traditionally reserved
for prayer are even more telling. Together, these details have the effect of communicating to the reasonable
observer that the Duval County authorities favored the inclusion of prayer in future graduation ceremonies.
The interpretation of the school principals reinforces this conclusion. The principals were the first
recipients of the Graduation Prayer memorandum, the policy's first "reasonable observers." The principals
were responsible for implementing the new policy; how they did so reveals their understanding of its
meaning and purpose. In 1993 many principals allowed direct votes on whether to have a prayer 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
15
See R 1st Supp. Exs. (Stone Dep. at 16; Johnson Dep. at 8; Hite Dep. at 18-19).
16
See R 1st Supp. Exs. (Lockett Dep. at 11; Paulk Dep. at 20).
17
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).
50
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.
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
18
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 families' 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.
51
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 been 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
19
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. The Seventh Circuit went on to hold that a city's sale
of land with a religious statue violated the Establishment Clause even under the Scalia plurality's
approach because it in effect granted preferential access to a public forum—the park surrounding the
statue. See id. at ----.
20
In Duval County for example, school officials often review the valedictorian's speech, and they plan or
approve the entire graduation program. See R 1st Supp. Exs. (Reynolds Dep. at 21; Epting Dep. at 26-27;
Lockett Dep. at 11) (review of valedictory speeches); id. (Epting Dep. at 28-29; Reynolds Dep. at 39; Stone
Dep. at 9-10). The graduation policy allows these practices to continue.
52
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 depended on the fact that use of the fora by a "broad spectrum" of groups eliminated any
potential message of endorsement or preference for religion.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 Schools 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
21
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.
53
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.
22
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.
23
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.
54
Nothing in the district court order advancing the trial on the merits or in transcript of the preliminary
injunction hearing suggests that the judge or the parties intended otherwise. No one disputes that in their
complaint the Appellants pleaded facts pertaining to graduation ceremonies between 1993 and 1997 and
included an as-applied claim.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
24
See R1, Tab 1 (Verified Complaint WW 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).
25
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 R1, Tab 30, at 29 (Transcript of Hearing on Plaintiffs' Motion for Preliminary Injunction).
26
R1, Tab 27 at 3-4.
27
Id. at 2.
55
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 Duval 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.
28
See R1, Tab 30, at 14-16, 29 (Transcript of Hearing on Plaintiffs' Motion for Preliminary Injunction).
29
See R2 (Memorandum of Law in Support of Plaintiffs' Motion for Preliminary Injunction, with 58
exhibits); R1, Tab 12 (Adler Aff.).
30
R1, Tab 26 (Order on Various Motions).
31
See R2 (Memorandum of Law in Support of Plaintiffs' Motion for Preliminary Injunction, Exs. 4, 5, &
13 (religious expression printed in official program)); 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17,
18, 19, 22, 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).
56
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.
32
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.
57