Appeals court strikes Florida school district’s policy on graduation prayers

Thursday, May 13, 1999

A group of students and parents in a Florida school district has won its first victory in a legal battle to invalidate a school policy that permits senior students to decide if there should be prayer during graduation ceremonies.

Since the early 1990s, several students and parents in the Duval County Public School system in Jacksonville, Fla., have criticized the policy as an overt attempt by school officials to allow prayer at graduation ceremonies.

A three-judge panel of the 11th U.S. Circuit Court Appeals voted 2-1 yesterday that the policy, referred to as “Graduation Prayers,” was unconstitutional as written. The majority opinion took the Duval County school officials and their attorneys to task for attempting to circumvent federal court precedent by permitting school-sponsored prayer at graduation ceremonies.

The 11th Circuit cited the U.S. Supreme Court's 1992 decision in Lee v. Wiseman as reason for striking down the Duval graduation-prayer policy. In Lee, the high court invalidated a Rhode Island public school policy that permitted principals to invite members of the clergy to offer invocations and benedictions at graduation ceremonies. In doing so, the high court concluded in part that public school officials could not constitutionally force religious exercises upon students during graduation.

“The overriding issue in this case is whether the Duval County school system's policy, which allows graduating students to vote on the decision whether to have unrestricted opening and closing messages that students deliver at graduation ceremonies, effectively dissociates any prayer that may occur at the graduation ceremonies from the state's control,” wrote Chief Judge Joseph W. Hatchett for the majority. “Our review of Lee and cases from other circuits leads us to the conclusion that the delegation of the decision regarding a 'prayer' or 'message' to the vote of graduating students does not erase the imprint of the state from graduation prayer. Further, the Duval County school system developed this policy as an attempt to circumvent Lee and continue the practice of prayer, and to permit sectarian and proselytizing prayer, at graduation ceremonies.”

The ACLU of Florida had argued before the 11th Circuit that Duval County school officials had construed the policy solely to continue allowing school-sponsored prayer at graduation.

Hatchett agreed with the ACLU's argument, noting that the district's superintendent had originally ordered all schools to cease directing prayer at graduation under Lee, and then devised the “Graduation Prayers” policy to “circumvent Lee's prohibition of school-sponsored prayer at graduation ceremonies.”

Richard A. Mullaney and Ernst D. Mueller, attorneys for the Duval school district, argued before the 11th Circuit that the graduation-prayer policy was created for secular reasons — to allow student free speech at graduation ceremonies. The attorneys, moreover, claimed that Duval principals did not solicit particular messages or review the messages. “In sum, there is no institutional sponsorship of the message here,” the attorneys argued in a brief submitted before the 11th Circuit.

Hatchett, however, said such arguments were unpersuasive and cited testimony of school board members who patently said the policy “was to provide an option that might allow the 'longstanding tradition' of graduation prayer to survive the prohibitions of that Supreme Court decision.”

“Thus, we find that the school system believed it could give a 'wink and a nod' to controlling Establishment Clause jurisprudence through attempting to delegate to the majority/plurality vote of students what it could not do on its own — permit and sponsor sectarian and proselytizing prayer at graduation ceremonies,” Hatchett wrote. “The Establishment Clause simply does not allow this.”

Hatchett also concluded that the Duval policy was nothing more than an attempt to allow majoritarian rule that would coerce students into participation. Again citing Lee, Hatchett wrote that as a minimum it was beyond dispute that “the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise.”

The Duval policy, Hatchett said, would apply pressure to students to join in religious prayer. Hatchett also noted that in 1993 graduation ceremonies, seniors at 10 of the 17 Duval County high schools opted for religious prayer.

“The Duval County school system's graduation policy, and the school's control over the graduation ceremony, require students to remain silent and perhaps even stand for the duration of the message,” Hatchett wrote. “Thus, because the school system devised this system so that prayer could occur at graduation ceremonies, this coerced participation violates the Establishment Clause. Further, because the graduation speaker under the Duval County school system's policy won an elective contest to speak, the audience is much more aware that the views expressed are those of the majority and, according to Lee, the audience faces even greater compulsion to participate.”

Judge Stanley Marcus filed a dissenting opinion in which he chastised the majority for coming “perilously close to pronouncing an absolute rule that would excise all private religious expression from a public graduation ceremony, no matter how neutral the process of selecting the speaker may have been, nor how autonomous the speaker was in crafting his message.”

The 11th Circuit majority, however, sided with the 3rd U.S. Circuit Court of Appeals in determining that public school graduation ceremonies “have not been regarded, either by law or tradition, as public fora where a multiplicity of views on any given topic, secular or religious, can be expressed and exchanged.” In 1995, the 3rd Circuit ruled in ACLU of New Jersey v. Black Horse Pike that a public school policy that permitted students to vote on whether to have prayer at graduation violated the separation of church and state.

Andrew Kayton, the Florida ACLU's legal director, expressed relief that Duval's policy had finally been invalidated. Last May, a federal judge upheld the policy as constitutional.

“This has been a long-fought litigation and has taken a long time to get an appellate ruling on the merits,” Kayton said. “The U.S. Circuit Court of Appeals is made up of fairly conservative judges, and to have that court rule as it did is pretty significant for our position.”

D. Gray Thomas, a Jacksonville attorney who argued against the Duval policy on behalf of the ACLU of Florida, praised the panel's ruling as one that vindicated First Amendment principles.

“Part of the message that is sent by this ruling is that when it comes to matters of fundamental rights covered by our Bill of Rights, the majority does not rule,” Thomas said. “The federal court found that the primary effect of the Duval policy was to advance religion, that it was enacted to advance religion, that it conveyed a state endorsement of religion and that it coerced students to participate in religious exercise.”

Attorneys for the school district could seek a review of the decision in Adler v. Duval County School Board by the entire 11th Circuit. Ernest D. Mueller and Richard A. Mullaney, attorneys representing the school district, did not return calls from the First Amendment Center. The Florida Times-Union, a Jacksonville daily paper, reported today that School Board Chairwoman Linda Sparks had announced that she wanted the 11th Circuit decision appealed.