Florida school district’s policy on graduation prayer goes before appeals court

Friday, May 7, 1999

The fate of a Jacksonville, Fla., public school district policy that permits high school students to vote on whether prayer or a secular message should be part of their graduation ceremonies is once again in the hands of a federal court.

The legal battle over the Duval County Public School policy began in the early 1990s. Several religious groups supporting the school district policy are pitted against the state affiliate of the American Civil Liberties Union.

The most recent challenge to the graduation-prayers policy was filed last year. In late May, a district judge found that the county's guidelines were created for secular reasons, did not advance religion, and therefore were constitutional.

The Florida ACLU asked the 11th U.S. Circuit Court of Appeals to invalidate the lower court's decision. The ACLU claims the school district policy is simply an effort to permit prayer at a compulsory school event in contravention of the U.S. Supreme Court's 1992 opinion in Lee v. Wiseman. The school district's attorneys and several conservative religious groups, such as the Orlando-based Liberty Counsel and the Christian Legal Society, counter that school district policy simply permits free speech on school grounds.

In Lee, Justice Anthony Kennedy wrote that state authorities “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.”

Before a three-judge panel of the 11th Circuit late last year, attorneys for the ACLU argued that following Lee, the Duval County School Board voted in 1993 to implement a policy allowing students to choose whether they should pray at commencement or not. Upon adopting the policy, one of the school board members said: “In 1962, the Bible went out of the school and in 1992-93 the bullets come in. You don't have to be a brain surgeon to figure that where we're going in America, black and white, rich and poor, Hispanics, Asians, what have you, our very security is threatened.”

Andrew Kayton, the Florida ACLU's legal director, said that the school district's policy was an effort to keep prayers in its schools.

“First, the clear evidence is that the real purpose of this policy, whatever its language may be, is to insure that graduation prayers are continued at commencement ceremonies in the county, in the wake of the Lee decision,” Kayton said.

In their brief filed before the 11th Circuit, the ACLU attorneys argue that the Duval policy “was implemented under its terms by the school board and its high school principals delegating to senior classes as a whole or to senior class officers the authority to decide by majoritarian methods whether prayer or other religious messages would be given at their graduation ceremonies.”

Moreover, the ACLU argues that the policy requires “graduates and audience members” to “stand during explicitly labeled invocations and benedictions, as well as other less explicitly labeled messages, most often delivered by senior class 'chaplains.' “

Attorneys for the school district, Richard A. Mullaney and Ernst D. Mueller, however, argued before the 11th Circuit that the policy lets students include a message, of any content, before commencement ceremonies.

“If the class as a whole determines it wants a message, the senior class as a whole chooses the student volunteer who will give the presentation,” the attorneys wrote in a brief submitted before the federal appeals court. “The senior chosen to give the message is to decide its contents himself, without any monitoring or review of the content by District employees.”

Kayton, however, says the challenge to the Duval policy has as much to do with its operation as it does the wording of the policy.

“This challenge is not simply to the policy on its face, but to its practical application,” Kayton said. “The extensive evidence in this case demonstrates that the policy has little purpose or effect other than to institute official prayer ceremonies at Duval school graduations. Usually the student speaker is identified as the chaplain and almost always the message is called an invocation or benediction.”

Duval's attorneys counter that the religious speech of students cannot constitutionally be banned from the school district's graduation ceremonies. Their arguments have been supported with friend-of-the-court briefs filed by the Christian Legal Society and the American Center for Law and Justice.

The ACLU has “failed to demonstrate that if a student decides to express religious sentiments at a high school graduation ceremony there will be any endangerment of the public safety,” the Duval attorneys argued before the 11th Circuit. “The maximum disruption which could be reasonably expected is that some in the audience may grumble aloud, feel uncomfortable or leave the room. The mere discomfort of some members of the audience in a high school graduation ceremony resulting from a brief religious expression fails to rise to a compelling interest which would justify this Court's issuance of an injunction that constitutes a prior restraint of free speech or religious speech.”

Kayton and the ACLU attorneys cited a 3rd U.S. Circuit Court of Appeals decision that found that high school graduation ceremonies “have not been regarded, either by law or tradition, as public fora where a multiplicity of views on any topic, secular or religious, can be expressed and exchanged.”

Moreover, the ACLU argues that religious speech at Duval County commencement ceremonies would carry “the endorsement and imprimatur of the state because it is directly fostered by state policy at a closely controlled state function” and therefore “the expression is simply not even private expression for constitutional purposes.”

Kayton said all parties involved would like to see a ruling on the Duval policy before graduation ceremonies this month.