Federal appeals court vacates decision barring prayer at Florida graduations

Friday, June 4, 1999

On its own initiative a federal appeals court has decided to vacate a decision by one of its own three-judge panels that recently barred prayer at high school graduation ceremonies in a Florida public school district.

In mid-May a three-judge panel of the 11th U.S. Circuit Court of Appeals voted 2-1 to invalidate a Duval County Public School System policy called “Graduation Prayers.” The policy permitted senior high school students to decide if there should be prayer during graduation ceremonies.

Chief Judge Joseph W. Hatchett, writing for the majority, said the school district policy was created to subvert a U.S. Supreme Court ruling in Lee v. Wiseman, which barred a Rhode Island public school district from inviting clergy to give prayers at high school graduation ceremonies.

“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 no its own — permit and sponsor sectarian and proselytizing prayer at graduation ceremonies,” Hatchett wrote. “The Establishment Clause simply does not allow this.”

Hatchett retired on May 14, only days after issuing the decision.

A majority of the 11th Circuit yesterday voted to vacate the panel's decision and rehear the case. The court's action reinstates a ruling by a lower federal judge that found the policy did not advance religion and was constitutional. In May 1998 U.S. District Court Judge William Terrell Hodges blocked attempts by the state affiliate of the American Civil Liberties Union to halt the tradition of sectarian prayers at Duval County high school graduations. The ACLU has represented Duval County parents who have challenged the sectarian prayers as a violation of the separation of church and state.

Duval County School Board Chairwoman Linda Sparks praised the federal appeals court's action.

“It looks like God has parted the Red Sea and we are going to get graduation messages for our seniors,” Sparks told The Florida Times-Union, a Jacksonville daily paper.

The Duval County case has been closely watched by civil rights advocates in Alabama, Georgia and Florida, the three states covered by the 11th Circuit's jurisdiction.

Pamela Sumners, an ACLU attorney in Alabama who has successfully fought legal battles against a state law permitting government-sponsored prayers in the public schools, called the 11th Circuit's action “very unusual.”

“I would say that certainly the parents challenging the Florida graduation school policy should regard the court's action as terribly troubling,” Sumners said.

Andrew Kayton, the Florida ACLU's legal director, expressed disappointment in the decision to rehear the case.

“The haste in which this order was issued might be viewed as a bit unseemly,” Kayton said. “The timing is such that it falls right between the retirement of Hatchett, who wrote the majority for the panel, and occurrence of high school graduation ceremonies in Duval County. A lot of people may feel that the purpose of this order was directly to insure that prayer went forward at graduation ceremonies.”

Kayton added that “prayer at graduation ceremonies has been a tradition in Jacksonville for a large part of the century and the community takes umbrage at being told that such prayer is unconstitutional.”

Hatchett's opinion noted that in 1993 the overwhelming majority of Duval County high schools included Christian prayer in their graduation ceremonies and also took to task the school district's attorneys for trying to find a way to ensure prayer would remain after the Supreme Court's ruling in Lee.