Florida judge denies ACLU attempt to ban student prayer during graduation

Thursday, May 28, 1998

Once again, a federal judge in Florida has decided students in Duval County schools can choose to give a religious message during graduation speeches.

U.S. District Judge William Terrell Hodges ruled today that Duval County guidelines permitting student speech—religious or secular—at graduation ceremonies do not subvert the First Amendment's establishment clause. Terrell ruled in 1994 that the county's guidelines were constitutional and subsequently his decision was upheld by the 11th U.S. Circuit.

Today's ruling was in response to a lawsuit filed last week by the American Civil Liberties Union of Florida. The lawsuit asked Hodges to declare the county's guidelines unconstitutional and issue an order preventing students graduating next week from the county's 17 schools from inserting religious messages into any graduation speeches.

Hodges concluded that the suit was similar to the one he decided in 1994.

“This is, for all practical purposes, the second time this case has appeared before this court,” Hodges wrote. As he ruled previously, the Duval County guidelines do not violate the First Amendment because “the School Board had a primarily secular purpose” in enacting the guidelines.

D. Gray Thomas, one of the ACLU-affiliated attorneys, said the group will “take appropriate action” and file an appeal.

At the hearing regarding the school district's guidelines, Thomas and William Sheppard, also an ACLU-affiliated attorney, argued that prayer is “pervasive at graduation ceremonies,” and that “certain fundamental rights” are not subjected to majority rule.

Ernst Mueller, the school board's attorney, said the district's guidelines had not changed since 1994 and said he was pleased Hodges' opinion did not, either.

“I thought that the judge's opinion last time was right on the mark and threaded the needle between the establishment clause and the speech rights of the students,” Mueller said. “The guidelines permit a two-minute comment by the students without input by the board or school officials. It certainly would be absurd to let everyone have a free voice except the students making the comments.”

The Liberty Counsel, an Orlando-based conservative religious-rights group, filed court papers arguing that district students have the right to include religious messages in their graduation speeches.

“I'm pleased the judge denied the ACLU injunction and upheld his previous ruling,” Mat Staver, president of the Liberty Counsel, said. “And I'm pleased because it protects students' rights to free speech at graduation, whether the speech is secular or sacred, profane or profound.”

Staver said he is confident the appeals court will uphold Hodges' ruling.

“I think the policy is constitutional,” he said. “It creates a limited public forum that is somewhat unique because it promises no prior review by school officials. Within that context, I don't think it could be any clearer that the district has created a limited forum for student expression.”

Hodges' ruling comes a day after a federal appeals court for the 9th Circuit ruled that a public school policy that permits top students in each senior class to determine whether to include a prayer in graduation speeches is constitutional. The states affected by the 9th Circuit ruling are: California, Oregon, Washington, Idaho, Nevada, Montana, Arizona, Alaska and Hawaii.