ACLU seeks court order to block prayer at graduation

Tuesday, May 26, 1998

For the second time in four years the American Civil Liberties Union of Florida is seeking a court action to prevent prayers at graduation in a school district near Jacksonville.

Wednesday morning, U.S. District Judge William Terrell Hodges will decide again whether Duval County School guidelines that permit student speech–religious or secular–at graduation ceremonies violate the separation of church and state. In 1994, Hodges ruled the district's guidelines did not violate the First Amendment and on appeal the 11th U.S. Circuit upheld those guidelines.

Last week, represented by the ACLU of Florida, three students and two parents filed another suit—similar to the one ruled on in 1994—seeking an injunction to stop the school board's practice of allowing students to offer graduation prayers.

The Liberty Counsel, an Orlando-based conservative religious rights organization, has filed a motion seeking to intervene on behalf of other district students claiming they have a First Amendment right to say prayers during graduation ceremonies. The nonprofit organization followed the same strategy in the first ACLU challenge.

Mathew Staver, president of the Liberty Counsel, said that the school board's guidelines allow students to make secular or sectarian graduation statements without pre-review by school officials.

“This is a message policy, not a prayer policy,” Staver said. “It is different than the other policies that have been litigated nationwide.

“The ACLU claims to be concerned about free speech, yet they are asking the court to censor student speech. This exact issue has already been litigated and decided in favor of students, who have the right to decide whether to give a religious or secular message. We will do everything in our power to guarantee that students' free-speech rights are not oppressed,” he said.

In the 1994 ruling, Hodges stated that the school board's policy did not violate the First Amendment's establishment clause because it set up a public forum for students at graduation and any attempts to censor their speech—religious or otherwise—would implicate the free-speech clause of the First Amendment.

The ACLU then appealed the decision to the 11th U.S. Circuit Court of Appeals. The appeals court dismissed the case as moot since the students who brought the suit had graduated. For the new suit, the ACLU is representing both seniors and younger students and arguing that regardless of when they graduate, the school district's policy on student speech at graduation will continue to incite unconstitutional action.

Staver said he believed Hodges would find the ACLU's complaint insufficient again.

“The school board has uniquely opened up a forum for student expression,” he said. “And for the school to censor out religious messages or aspects would violate the establishment clause and also the free-exercise clause rights of the students.”

D. Gray Thomas, one of the ACLU-affiliated attorneys who will argue against the policy, said that graduation ceremonies remain a school event with little room for sectarian messages.

“Part of the problem is that graduation ceremonies are inherently school-controlled,” Thomas said. “Any sort of religious message coming from the podium sends the clear impression that the message is endorsed by the state.”

Staver says it is specious to suggest graduation audiences would understand a student-given religious message as a government endorsement of religion.

“The history of the graduation ceremonies suggests that a reasonable student would not impute a religious-based speech to the school or state,” Staver said.

In 1992, the U.S. Supreme Court invalidated Rhode Island laws permitting public school principals to invite clergy members to give prayers at middle school or high school graduation ceremonies. A majority of the court ruled that the school officials' involvement in allowing graduation prayer flouted the First Amendment's separation of church and state.

“The degree of school involvement here made it clear that the graduation prayers bore the imprint of the State, and thus put school-age children who objected in an untenable position,” wrote Justice Anthony Kennedy for the majority in Lee v. Weisman.

Nonetheless, Kennedy noted that not all religious messages during graduation ceremonies can be legally prohibited.

“A relentless and all-pervasive attempt to exclude religion from every aspect of public life could itself become inconsistent with the Constitution,” wrote Kennedy. “We recognize that, at graduation time and throughout the course of the educational process, there will be instances when religious values, religious practices, and religious persons will have some interaction with the public schools and their students.”

Howard Simon, executive director of Florida's ACLU, said transferring the decision to have prayer to students does not make the situation anymore palatable.

“Sectarian prayers at public school commencements are constitutionally inappropriate and insensitive to the increasing diversity of the school population,” Simon said. “The school board cannot impose prayer on public school ceremony, and they cannot evade their constitutional responsibilities by claiming that they have simply transferred that authority to a designated student 'chaplain.'”

The school district's graduations will be June 1-4. Thomas of the ACLU said it was likely the judge would issue a decision tomorrow.