*

Judge Susan H. Black did not participate in this decision. 

 **Senior U.S. Circuit Judge Phyllis A. Kravitch elected to participate in this decision pursuant to 28 U.S.C.

§ 46(c). 

Emily ADLER, individually; on behalf of herself and all persons similarly situated, Seth Finck,

individually; on behalf of himself and all persons similarly situated, et al., Plaintiffs-Appellants,

v.

DUVAL COUNTY SCHOOL BOARD, Duval County Public School District, Defendants-Appellees.

Emily Adler, individually; on behalf of herself and all persons similarly situated, Seth Finck,

individually; on behalf of himself and all persons similarly situated, et al., Plaintiffs-Appellees,

v.

Susan Boles, as parent & next friend of Rebecca Boles, a minor child and on behalf of all public school

students within the Duval County Public School District, Movants-Appellants.

Nos. 98-2709, 98-2720.

United States Court of Appeals,

Eleventh Circuit.

March 15, 2000.

Appeals from the United States District Court for the Middle District of Florida. (No. 98-00460-CV-J-10C),

Wm. Terrell Hodges, Judge.

Before ANDERSON, Chief Judge, TJOFLAT, EDMONDSON, COX, BIRCH, DUBINA, CARNES,

BARKETT, HULL, MARCUS and WILSON, Circuit Judges,*

 and KRAVITCH, Senior Circuit Judge.**

MARCUS, Circuit Judge:

At issue today is whether the Duval County, Florida school system's policy of permitting graduating

students to vote on whether to select a student to deliver a message wholly of her own choosing at the

beginning or closing of a high school graduation ceremony violates the Establishment Clause. Because the

Duval County policy unambiguously recognizes the "crucial difference between government speech

endorsing religion, which the Establishment Clause forbids, and private speech [ ] [that may contain a

prayerful message], which the Free Speech and Free Exercise Clauses protect," Board of Educ. v. Mergens,

496 U.S. 226, 250, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990) (emphasis added), we find the policy
 1

The memorandum, dated July 22, 1992, read, "[t]his memorandum is to remind you that due to the recent

Supreme Court Ruling in Lee v. Weisman, there should be no prayer, benediction, or invocation at any

graduation ceremonies." 

2

constitutional on its face and affirm the judgment of the district court. The total absence of state involvement

in deciding whether there will be a graduation message, who will speak, or what the speaker may say

combined with the student speaker's complete autonomy over the content of the message convinces us that

the message delivered, be it secular or sectarian or both, is not state-sponsored. To conclude otherwise would

come perilously close to announcing 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 be, nor how

autonomous the speaker may be in crafting her message.

I.

The facts of this case are straightforward, uncontroverted, and laid out fully by the district court in

Adler v. Duval County Sch. Bd., 851 F.Supp. 446, 448 (M.D.Fla.1994) ("Adler I "). Invocations,

benedictions, and other religious prayers or messages were traditionally offered, by clergy and others, at

public high school commencement ceremonies in the Duval County School District. In 1992, the Supreme

Court in Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992), held that a Providence,

Rhode Island high school principal, acting in accord with school board policy, violated the Establishment

Clause by inviting a local clergyman to deliver a nonsectarian prayer at graduation. In response to Lee, the

Duval County Superintendent, Larry Zenke, at the behest of Vicki R. Reynolds, the school district's legal

affairs officer, issued a memorandum instructing all school officials in the Duval County school system that

no "prayer, benediction, or invocation" should be offered at "any graduation ceremonies."1

In the ensuing months, Superintendent Zenke received a number of letters from students and members

of the community discussing the graduation policy. Some of these letters suggested that student-initiated,

student-led prayer might be constitutional under Lee, and Zenke directed Reynolds to further research the

issue. Reynolds later advised Zenke that it would be constitutional to allow student-initiated, student-led
3

prayer during the graduation ceremony so long as the administration and faculty were not involved in the

decision-making process. Zenke then authorized Reynolds to issue another memorandum (the "Reynolds

Memorandum"), dated May 5, 1993, to all area high school principals. The memorandum was entitled

"Graduation Prayers" and stated:

You will recall that after the 1992 Supreme court case of Lee v. Wiseman [sic], you received a

memorandum from me instructing that because of the decision, we would no longer be able to have

prayers at graduation ceremonies. Most of you have recently been bombarded with information, as

have I, regarding whether or not student initiated and led prayers are acceptable based upon a recent

Fifth Circuit opinion. The purpose of this memorandum is to give you some guidelines on this issue

if the graduating students at your school desire to have some type of brief opening and/or closing

message by a student.

This area of the law is far from clear at this time, and we have been threatened by lawsuits from both

sides on the issue depending on what action we take. The key to the Lee v. Wiseman [sic] decision

was that the prayer given at that graduation ceremony was directed and initiated by the school

system, which made it unconstitutional, rather than by permissive student choice and initiative. With

that premise in mind, the following guidelines may be of some assistance:

1. The use of a brief opening and/or closing message, not to exceed two minutes, at high school

graduation exercises shall rest within the discretion of the graduating senior class;

2. The opening and/or closing message shall be given by a student volunteer, in the graduating senior

class, chosen by the graduating senior class as a whole;

3. If the graduating senior class chooses to use an opening and/or closing message, the content of that

message shall be prepared by the student volunteer and shall not be monitored or otherwise reviewed

by Duval County School Board [sic], its officers or employees;

The purpose of these guidelines is to allow students to direct their own graduation message without

monitoring or review by school officials.

This policy never was directly voted on or debated by the School Board.

Instead, at a June 1, 1993 School Board meeting, a motion was made to substitute a "moment of

silence" for any student-initiated messages that might otherwise be given pursuant to the graduation policy

announced in the Reynolds Memorandum. The motion failed by a vote of four to three. As a result, the

Reynolds Memorandum was "left in force with the acquiescence or tacit approval of the Board as its official

policy governing the 1993 commencement exercises." Adler I, 851 F.Supp. at 449. In 1993 under this policy,

student speakers, at ten of seventeen high school graduation ceremonies, delivered some form of religious
 2

These "original" plaintiffs consisted of the following students: Leslie Adler, Laura Jaffa, and Robin Zion.

Doug Rand later joined the action. Karen Adler and Robin Rand, the mothers of Leslie Adler and Doug

Rand, were named as plaintiffs to bring the claims of their minor children. 

 3

Appellants in the instant action include: Emily Adler, a June 1998 graduate of Mandarin High School;

Seth Finck, a June 1998 graduate of Stanton College Preparatory School; Stella Finck, mother of Duval

4

message. Notably, at the other seven graduations, there were no student messages at all or the messages were

entirely secular in character. There is no tabulation in the record of comparable statistics for subsequent

graduations.

In June 1993, various Duval County public school students sued the Duval County school system,

alleging that the policy embodied in the Reynolds Memorandum constituted an establishment of religion and

infringed on their free exercise of religion. These students sought equitable relief declaring the policy

unconstitutional and enjoining the Duval County School Board from permitting prayers at high school

graduation ceremonies as well as money damages. The students also sought to certify their action as a class

action.2

 The district court denied the motion to certify the class and granted summary judgment in favor of

the Duval County school system, holding that its policy was constitutional. See Adler I, 851 F.Supp. at 451-

56. The students appealed, and a panel of this court found that because the students had all graduated, their

claims for declaratory and injunctive relief were moot. See Adler v. Duval County Sch. Bd., 112 F.3d 1475,

1477-78 (11th Cir.1997) [hereinafter Adler II ]. The Adler II court also held that the students waived their

damages claims on appeal. See Adler II, 112 F.3d at 1480-81. The Reynolds Memorandum thus remained

the operative high school graduation policy for Duval County.

In May 1998, Appellants brought the instant action against the Duval County school system, again

alleging that the policy embodied in the Reynolds Memorandum constituted an establishment of religion and

infringed on their free exercise of religion. Appellants sought preliminary and permanent injunctive relief

against the Duval County School Board to prevent it from permitting, conducting, or sponsoring any religious

exercises or prayer and instruction within the Duval County Public School District, including at School

Board-sponsored graduation ceremonies. Appellants also sought monetary damages and class certification.3
County public school students Rachel Finck, who was scheduled to graduate from Stanton College

Preparatory School in 1999, Aaron Finck, who was scheduled to graduate from Stanton College Preparatory

School in 2000, and Benjamin Finck, a Duval County public school student; Roberta Nord, mother of Duval

County public school students Lucy Nord, age 9, and Tyler Hurley, age 12; and Jonathon Rand, a June 1998

graduate of Stanton College Preparatory School. 

 4

We construe this appeal as the appeal of a final judgment strictly pertaining to the facial constitutionality

of the Duval County graduation policy. We do not address any potential "as-applied" claims raised below

by Appellants. This result is driven by the procedural history of the case. Initially, Appellants sought a

preliminary injunction in addition to their facial and as-applied claims on the merits. At the pretrial hearing

on the preliminary injunction, the district court indicated that it thought that Appellant's claims on the merits

should be consolidated with the preliminary injunction motion because the claims were duplications of earlier

claims it had evaluated in Adler I. The district court asked whether any operative facts had changed and the

parties stipulated that there had been no substantive changes. As the district court explained:

This is, for all practical purposes, the second time this case has appeared before this court.

In 1994 a similar group of Plaintiffs represented by the same counsel sought the same

injunctive relief with respect to high school graduation or commencement ceremonies then

scheduled to be conducted in the spring of that year. I decided at that time that the Plaintiffs'

constitutional rights were not infringed. This action presents precisely the same claims

predicated upon the same constitutional theories or contentions; and, at today's hearing,

counsel stipulated that the operative facts remain unchanged. The only factual difference

is that a new series of graduation ceremonies is scheduled for 1998. The present case was

filed for the purpose of relitigating the issue upon the contention of Plaintiffs' counsel that

the law has now evolved in their favor as manifested by [ ] [several] intervening decisions....

5

The district court, at the hearing on Appellants' motion for a preliminary injunction and with the consent of

the parties, consolidated the merits of Appellants' claims with Appellants' preliminary injunction motion

pursuant to Federal Rule of Civil Procedure 65(a)(2). The district court then denied Appellants' motion for

preliminary injunction and entered final judgment in favor of the Duval County School Board.

Appellants filed a motion for expedited appeal and a panel of this Court heard oral argument on

November 16, 1998. The panel reversed the district court's judgment and remanded for further proceedings.

On June 3, 1999, we vacated this opinion and granted rehearing en banc.

II.

The central issue presented is whether the Duval County school system's policy of permitting a

graduating student, elected by her class, to deliver an unrestricted message of her choice at the beginning

and/or closing of graduation ceremonies is facially violative of the Establishment Clause.4

 Close attention
See Adler v. Duval County Sch. Bd., No. 98-460-CIV-J-10C (M.D.Fla. May 27, 1998) (internal

citation omitted) (emphasis added). The district court then took judicial notice of its opinion in Adler

I and consolidated the action on the merits with Appellants' motion for preliminary injunction.

Finally, the district court distinguished the intervening decisions cited by Appellants and concluded:

[T]he proper decision in this case is dictated by the decision I reached in Adler I, and that the

application for preliminary injunctive relief should be denied now as it was then.

Furthermore, as counsel agreed during today's hearing, there is no just reason in fact or law

as to why the action should not be advanced on the merits and consolidated with the hearing

of the instant application so that final judgment may be entered and the controversy may

proceed to the Court of Appeals.

Id. (emphasis added). Both parties consented to the consolidation and Appellants did not object to

the effect this consolidation would have on their as-applied claims. Because of the consolidation,

discovery was truncated as to the policy's application and effect for graduation ceremonies after 1993

and Appellants' as-applied claims were never fully developed or litigated below. Appellants' consent

to the district court's consolidation constituted a knowing waiver of their as-applied claims,

circumscribing the action and the district court's final judgment to the facial constitutionality of the

graduation policy. See Warehouse Groceries Management, Inc. v. SAV-U-Warehouse Groceries,

Inc., 624 F.2d 655, 657-58 (5th Cir.1980) (noting that district court, pursuant to Federal Rule of Civil

Procedure 65(a)(2), may properly consolidate the merits of a case with a preliminary injunction

hearing so long as parties are given adequate notice); Fenstermacher v. Philadelphia Nat'l Bank, 493

F.2d 333, 337 (3rd Cir.1974) (noting that party's failure to object to district court's consolidation of

the merits with a preliminary injunction hearing constituted a waiver of any defects stemming from

the consolidation because the party had "acquiesced in the procedure followed in the district court").

We therefore restrict our review today to the facial constitutionality of the graduation policy. 

6

to the operative features of the Duval County policy yields the conclusion that the policy is constitutional on

its face. Simply put, the selection of a graduation student speaker by a secular criterion (not controlled by

the state) to deliver a message (not restricted in content by the state) does not violate the Establishment Clause

merely because an autonomous student speaker may choose to deliver a religious message. See Lee, 505 U.S.

at 630 n. 8, 112 S.Ct. 2649, 120 L.Ed.2d 467 (Souter, J., concurring) (observing that "[i]f the State had chosen

its graduation day speakers according to wholly secular criteria, and if one of those speakers (not a state actor)

had individually chosen to deliver a religious message, it would have been harder to attribute an endorsement

of religion to the State") (citing Witters v. Washington Dep't of Servs. for the Blind, 474 U.S. 481, 106 S.Ct.

748, 88 L.Ed.2d 846 (1986)).

Establishment Clause jurisprudence calls for the difficult task of separating a student's private

message, which may be religious in character, from a state-sponsored religious message, protecting the former
 5

While the Lemon test has drawn considerable criticism from both Members of the Court and legal

commentators, see, e.g., Board of Educ. v. Grumet, 512 U.S. 687, 721, 114 S.Ct. 2481, 129 L.Ed.2d 546

(1994) (O'Connor, J., concurring) (noting that "the slide away from Lemon 's unitary approach is well under

way"); Kent Greenawalt, Quo Vadis: The Status and Prospects of "Tests" Under the Religion Clauses, 1995

Sup.Ct. Rev. 323, 361 (1996) (declaring that "now that Lemon lacks any defenders on the Court, other judges

would perform a shallow exercise were they to continue to apply its terms. They should recognize that the

Supreme Court has definitely abandoned Lemon."), it is still binding precedent, see Lamb's Chapel v. Center

Moriches Union Free Sch. Dist., 508 U.S. 384, 395 n. 7, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993) (stating that

"we return to the reality that there is a proper way to inter an established decision and Lemon, however

frightening it might be to some, has not been overruled"); see also Chabad-Lubavitch of Georgia v. Miller,

5 F.3d 1383, 1388 (11th Cir.1993) (en banc) (explaining that "[a]lthough [the Lemon test] has been criticized

severely, it still controls our Establishment Clause inquiry"); Bown v. Gwinnett County Sch. Dist., 112 F.3d

1464, 1468-74 (11th Cir.1997) (applying Lemon ). 

7

and prohibiting the latter. This determination is of "necessity one of line-drawing," see Lee, 505 U.S. at 598,

112 S.Ct. 2649, 120 L.Ed.2d 467, "sometimes quite fine, based on the particular facts of each case,' "

Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 847, 115 S.Ct. 2510, 132 L.Ed.2d 700

(1995) (O'Connor, J., concurring). Indeed, our courts have recognized that "at graduation time and

throughout the course of the education process, there will be instances when religious values, religious

practices, and religious persons will have some interaction with the public schools and their students." See

Lee, 505 U.S. at 598-99, 112 S.Ct. 2649, 120 L.Ed.2d 467 (citing Board of Educ. v. Mergens, 496 U.S. 226,

110 S.Ct. 2356, 110 L.Ed.2d 191 (1990)). But at the core of Establishment Clause jurisprudence is the notion

that the state may not favor, endorse, or oppose the propagation of religious doctrine by its citizens. In this

case, the absence of state involvement in each of the central decisions—whether a graduation message will

be delivered, who may speak, and what the content of the speech may be—insulates the School Board's policy

from constitutional infirmity on its face.

We measure the facial constitutionality of the policy against both the standards enunciated by the

Supreme Court in Lee, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467, the Court's only occasion to directly

examine the issue of school prayer at a public high school graduation, and the more general Establishment

Clause test articulated in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).5

A.
8

In Lee, the Supreme Court scrutinized the Providence, Rhode Island public school system policy of

permitting middle and high school principals to invite clerics to offer invocation and benediction prayers at

formal high school graduation ceremonies. See Lee, 505 U.S. at 580, 112 S.Ct. 2649, 120 L.Ed.2d 467. In

particular, the Court considered the 1989 graduation at Nathan Bishop Middle School where the principal

invited a local rabbi to offer a religious invocation and benediction at the school's graduation ceremony. The

principal also provided the rabbi with a pamphlet entitled "Guidelines for Civic Occasions," prepared by the

National Conference of Christians and Jews, and advised the rabbi that the prayer should be nonsectarian.

See id. at 581, 112 S.Ct. 2649, 120 L.Ed.2d 467.

In declaring the school system policy unconstitutional under the Establishment Clause, the Supreme

Court pointed at two "dominant facts" as marking the boundaries of its decision: first, the Providence school

officials ordained and directed the performance of a religious exercise by deciding to include prayer in the

graduation ceremony, by selecting a clergyman to deliver the prayer, and by providing the clergyman with

guidelines informing the content of the prayer; and second, pressure was exerted on students to attend

graduation and conform with their peers by either standing as a group or remaining in respectful silence

during the invocation and benediction. Id. at 586-88, 112 S.Ct. 2649, 120 L.Ed.2d 467. What the Supreme

Court found striking and troubling about Lee was that the government clearly directed a formal religious

exercise—albeit in the form of a nonsectarian prayer—under such circumstances as to oblige the participation

of many who objected. As Justice Kennedy wrote for the majority:

These dominant facts mark and control the confines of our decision: State officials 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.

Id. at 586, 112 S.Ct. 2649, 120 L.Ed.2d 467. There can be little doubt, then, that in Lee, the Providence,

Rhode Island school system ordained and established a religious exercise at a graduation ceremony, and that

the graduation prayer delivered by a rabbi was in every sense endorsed and supported by the state.
9

In striking contrast, under the Duval County graduation policy, however, neither the School Board

nor its principals may ordain, direct, establish, or endorse a religious prayer or message of any kind. Indeed,

by the very terms of the policy, a religious message may not even be offered at graduation. The Duval

County policy explicitly divorces school officials from the decision-making process as to whether any

message—be it religious or not—may be delivered at graduation at all. Moreover, decisional control over

the most crucial elements of the graduation policy rests with the students and not the state. According to the

policy, school officials merely allow a graduating class to decide by an election whether to have a "brief

opening and/or closing message" at graduation. If the class votes to have a message, it elects a student

volunteer to deliver the message. That student is then free to deliver a message "not monitored or otherwise

reviewed" in any way by the school. Under the policy, the School Board and its agents have no control over

who will draft the message (if there be any message at all) or what its content may be. The School Board also

does not suggest in any way, let alone require, that the graduating class consider religious or any other criteria

in deciding whether to have a student message or in selecting a particular student speaker. And most notably,

if the graduating class chooses to have a message, the content of the message shall be prepared by the student

speaker alone and no one else. The Duval County School Board is expressly prohibited by the very terms

of its policy from influencing or editing the message in any way.

These operational features distinguish the Duval County policy from approximating even an arguably

similar level of state control to the graduation policy struck down in Lee. Unlike the Providence policy in Lee,

the Duval County policy, in no way, authorizes a school to "direct the performance of a formal religious

exercise." Lee, 505 U.S. at 586, 112 S.Ct. 2649, 120 L.Ed.2d 467. And unlike a direct student plebiscite on

graduation prayer, not even the senior class exercises control over the content of the graduation message.

That decision rests solely with the elected student speaker—with neither the senior class nor the school

exercising any sort of editorial oversight. Therefore, on the face of the policy itself, the students

unambiguously understand that any student message is utterly divorced from any state sponsorship.
10

Lee does not stand for the proposition that all religious expression, even the private religious

expression of an elected student speaker, must be excised from public high school graduation ceremonies.

Rather, Lee prohibits the state from ordaining, directing, endorsing, or sponsoring a religious message at such

ceremonies but not from adopting neutral secular policies which simply permit the possibility of private

religious expression. See id., 505 U.S. at 589, 112 S.Ct. 2649, 120 L.Ed.2d 467 (observing that "[t]he First

Amendment's Religion Clauses mean that religious beliefs and religious expression are too precious to be

either proscribed or prescribed by the State"); id. at 604-05, 112 S.Ct. 2649, 120 L.Ed.2d 467 (Blackmun,

concurring) (explaining that "[t]he Establishment Clause proscribes public schools from 'conveying or

attempting to convey a message that religion or a particular religious belief is favored or preferred' ") (quoting

County of Allegheny v. Greater Pittsburgh ACLU, 492 U.S. 573, 593, 109 S.Ct. 3086, 106 L.Ed.2d 472

(1989)); see also Agostini v. Felton, 521 U.S. 203, 231, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (noting that

there is no advancement of religion where "aid is allocated on the basis of neutral, secular criteria that neither

favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a

nondiscriminatory basis"); Rosenberger, 515 U.S. at 839, 115 S.Ct. 2510, 132 L.Ed.2d 700 (stating that "[a]

central lesson of our decisions is that a significant factor in upholding governmental programs in the face of

Establishment Clause attack is their neutrality towards religion"); Grumet, 512 U.S. at 696, 114 S.Ct. 2481,

129 L.Ed.2d 546 (declaring that " '[a] proper respect for both the Free Exercise and the Establishment Clauses

compels the State to pursue a course of "neutrality" toward religion' ") (quoting Committee for Public Educ.

& Religious Liberty v. Nyquist, 413 U.S. 756, 792-93, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973)); Chandler v.

James, 180 F.3d 1254, 1258-59 (11th Cir.1999) (noting that "ordinarily religious speech by private parties

cannot establish religion, even if it occurs in a public institution, such as a school") (citation omitted).

 The School Board's policy is perfectly consistent with the theme of neutrality in Establishment

Clause jurisprudence. As Justice Souter explained in his concurrence in Lee:

While the Establishment Clause's concept of neutrality is not self-revealing, our recent cases have

invested it with specific content: the State may not favor or endorse either religion generally over
 6

For purposes of our decision, we find it unnecessary to decide whether the Duval County graduation

policy creates a "designated public forum"or a "nonpublic forum" as these terms have come to be defined by

our public forum caselaw. See Arkansas Educ. Tele. Comm'n v. Forbes, 523 U.S. 666, 118 S.Ct. 1633, 1641-

43, 140 L.Ed.2d 875 (1998). We rely on public forum doctrine only in so far as it informs Establishment

Clause jurisprudence regarding principles of state endorsement and neutral accommodation towards private

religious speech. 

11

nonreligion or one religion over others. This principle against favoritism and endorsement has

become the foundation of Establishment Clause jurisprudence, ensuring that religious belief is

irrelevant to every citizen's standing in the political community....

Lee, 505 U.S. at 627, 112 S.Ct. 2649, 120 L.Ed.2d 467 (internal citations omitted). No feature of the Duval

County policy favors or endorses religion. The graduation policy is simply content-neutral, and allows an

autonomous elected speaker, selected by her class, to deliver a religious or secular message on an equal basis.

In one sense, the policy can be analogized to a line of open forum cases in which the Supreme Court

has held that neutral secular policies that merely accommodate religion or individual free exercise rights do

not amount to an unconstitutional state endorsement of religion.6

 First, in Widmar v. Vincent, 454 U.S. 263,

102 S.Ct. 269, 70 L.Ed.2d 440 (1981), the Court struck down a University of Missouri regulation that denied

"equal access" to school facilities for religious groups as a violation of the Free Speech Clause. Id. at 274-75,

102 S.Ct. 269, 70 L.Ed.2d 440. In so ruling, the Court explained that an "open forum" policy, which

permitted access to both religious and secular student groups in a neutral manner, did not offend the

Establishment Clause because "an open forum in a public university does not confer any imprimatur of state

approval on religious sects or practices" anymore than such a policy " 'committed [the University] to the goals

of the Students for a Democratic Society, the Young Socialist Alliance,' or any other group eligible to use its

facilities." Id. at 274, 102 S.Ct. 269, 70 L.Ed.2d 440 (citation omitted).

The Supreme Court extended this reasoning to public secondary schools in Mergens. There, the

Court upheld the constitutionality of the Equal Access Act, 20 U.S.C. § 4071 et seq., which explicitly codified

the reasoning of Widmar by prohibiting public secondary schools in receipt of federal funds from denying

student access to "limited open forum[s]" on the basis of the religious content of their speech. Mergens, 496
12

U.S. at 235, 110 S.Ct. 2356, 110 L.Ed.2d 191. The Court elaborated a core tenet of its neutrality

jurisprudence in the process:

[T]here is a crucial difference between government speech endorsing religion, which the

Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free

Exercise Clauses protect. We think that secondary school students are mature enough and are likely

to understand that a school does not endorse or support student speech that it merely permits on a

nondiscriminatory basis.... Although a school may not itself lead or direct a religious club, a school

that permits a student-initiated and student-led religious club to meet after school, just as it permits

any other student group to do, does not convey a message of state approval or endorsement of the

particular religion.

Id. at 250-52, 110 S.Ct. 2356, 110 L.Ed.2d 191. In recent years, the Court has reaffirmed this principle by

finding that the inclusion of private religious groups in "open forums" through neutral selection principles

does not violate the Establishment Clause or constitute a state endorsement of religion. See Capitol Square

Review & Advisory Bd. v. Pinette, 515 U.S. 753, 763, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) (plurality

opinion) (concluding that the allowance of a private religious display in an open public forum, selected by

the same application process and on the same terms as other private displays, did not amount to state

endorsement); Rosenberger, 515 U.S. at 832, 115 S.Ct. 2510, 132 L.Ed.2d 700 (holding that a public

university subsidy for a religious student organization's publication costs, under a program that funded other

student organization publications through neutral selection criteria, did not violate the Establishment Clause);

Lamb's Chapel, 508 U.S. at 395, 113 S.Ct. 2141, 124 L.Ed.2d 352 (finding that a policy, which allowed

private student religious groups equal after-school access to school property through neutral secular criteria,

would not violate the Establishment Clause).

 These cases strongly suggest that a policy, like the Duval County graduation policy, which provides

an opportunity for student-selected, student-initiated private expression through a neutral selection criterion,

does not violate the Establishment Clause simply because the venue is equally available for religious or

secular expression. Government neutrality towards religion is all that is required by the Establishment

Clause. And it is worth emphasizing that while the state must be neutral and cannot advance or endorse

religion, similarly, it need not, indeed it cannot, act in a hostile manner in the face of private religious speech
 7

The other federal circuit cases that have considered student-led, student-initiated prayer at graduation are

of limited assistance. All of these cases involve direct student plebiscites on graduation prayer. Of these

cases, Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963 (5th Cir.1992), is the only one which has

permitted students to vote directly on whether to have prayer at graduation. In Jones, the Fifth Circuit upheld

the Clear Creek, Texas school district's policy allowing graduating students to vote whether student

volunteers would deliver "nonsectarian and nonproselytizing" invocations at graduation. The court found:

that the Clear Creek policy (1) reserved to the students the decision whether to have an invocation, (2)

precluded anyone but a student volunteer from delivering an invocation, and (3) placed less psychological

coercion on the student audience than the prayers given in Lee because students were aware that any prayers

given represented the will of their peers. See id. at 970-71.

Both the Third and Ninth Circuits have come to an opposite conclusion. In ACLU of New

Jersey v. Black Horse Pike Regional Bd. of Educ., 84 F.3d 1471 (3d Cir.1996) (en banc), the Third

Circuit, sitting en banc, held as unconstitutional a school board's policy that permitted the senior class

to vote on whether to include a prayer at high school graduation ceremonies. See id. at 1477-88. The

policy in Black Horse Pike allowed senior class officers to conduct a poll of the graduating class to

13

publically uttered. See Lee, 505 U.S. at 598, 112 S.Ct. 2649, 120 L.Ed.2d 467 (observing that "[a] relentless

and all-pervasive attempt to exclude religion from every aspect of public life could itself become inconsistent

with the Constitution") (citation omitted); Zorach v. Clauson, 343 U.S. 306, 314, 72 S.Ct. 679, 96 L.Ed. 954

(1952) (stating that "we find no constitutional requirement which makes it necessary for government to be

hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence").

In essence, this case is substantially like Doe v. Madison Sch. Dist. No. 321, 147 F.3d 832 (9th

Cir.1998), vacated on other grounds, 177 F.3d 789 (9th Cir.1999) (en banc) (vacating for mootness because

the student plaintiffs already had graduated). In Doe, the Ninth Circuit examined a graduation policy which

mirrors Duval County's policy in its neutrality. The Doe policy allowed for a minimum of four student

graduation speakers to be selected according to their academic standing. If a student accepted the speaking

invitation, she could choose to deliver an "address, poem, reading, song, musical presentation, prayer, or any

other pronouncement"—the content, of which, she alone controlled. Doe, 147 F.3d at 835. The Doe court

upheld the constitutionality of the policy against a facial challenge on Establishment Clause grounds and

distinguished Lee. It explained that graduation speech does not bear the imprimatur of the state when the

speaker is a student, not a cleric; the student speaker is selected on neutral and secular criteria; and the

student has complete autonomy over content. Doe, 147 F.3d at 835-36.7
determine, by plurality vote, whether seniors wanted " 'prayer, a moment of reflection, or nothing at

all' " to be included in their graduation ceremony. Id. at 1475 (citation omitted). In Harris v. Joint

Sch. Dist. No. 241, 41 F.3d 447 (9th Cir.1994), vacated as moot, 515 U.S. 1154, 115 S.Ct. 2604, 132

L.Ed.2d 849 (1995), high school students themselves, pursuant to a school district policy, planned

every aspect of their graduation, without interference from school officials, and voted by written

ballot on whether or not to have prayer. The Harris court found that the state involvement in the case

was pervasive enough to offend Establishment Clause concerns, noting that "[t]he message of the

speakers is [ ] chosen by the majority; the relevant speakers are instructed to pray." Id. at 456-57.

In contrast to each of these policies, Duval County students vote on whether to have a

message of unspecified content delivered by a student. This is a meaningful distinction.

The Fifth Circuit recently revisited the issue of student-initiated prayer in Doe v. Santa Fe

Indep. Sch. Dist., 168 F.3d 806 (5th Cir.), cert. granted in part, --- U.S. ----, 120 S.Ct. 494, 145

L.Ed.2d 381 (1999). There, the Fifth Circuit examined what it considered to be the holding of

Jones—"that student-selected, student-given, nonsectarian, nonproselytizing invocations and

benedictions at high school graduation ceremonies" are constitutional—and concluded that the

constitutionality of a student-selected, student-led prayer policy depends on its "nonsectarian and

nonproselytizing" features. Id. at 816-19. The Santa Fe court also struck down a school policy

which allowed student-led, student-initiated prayer before high school football games. The Supreme

Court recently has granted certiorari in Santa Fe. However, the Court has limited its review to

whether student-led, student initiated prayer at football games violates the Establishment Clause. The

Court did not grant certiorari on the constitutionality of the Santa Fe graduation policy. Appellants

cite Santa Fe for the proposition that a policy which "permits" sectarian and proselytizing prayers

is facially unconstitutional. As discussed in greater detail infra, this argument proves too much and

is offensive to the Constitution. The Duval County policy, of course, permits sectarian and

proselytizing prayers because it places no limitations, either secular or sectarian, on the content of

a graduation message. A policy of free expression is far more consonant with the commands of the

First Amendment than is a policy of censorship. See, e.g., Mergens, 496 U.S. at 253, 110 S.Ct. 2356

(stating that "a denial of equal access to religious speech might well create greater entanglement

problems in the form of invasive monitoring to prevent religious speech at meetings at which such

speech might occur"); Santa Fe, 168 F.3d at 829-35 (Jolly, J., dissenting). 

14

Appellants, however, advance two arguments for why we should regard a student-selected graduation

speaker, who is selected through a wholly neutral process and who is given complete autonomy over the

content of her speech, as a public, state-sponsored speaker. First, they contend that by providing the platform

and opportunity, the state has created a sufficient link to the student speaker to convert the student's private

speech into public, state-sponsored speech. Second, they suggest that the majoritarian process of selecting

the speaker shrouds the otherwise private speech of a student with the imprint of the state. The first

argument—that by providing the platform, the speech becomes public—goes too far. The second
15

argument—that the speaker somehow garners state authority by virtue of the plebiscite—has no logical

rationale.

First, we reject the notion that the religious content of any speech at a graduation ceremony is

attributable to the school merely because of the school's sponsorship of the event or its control over the

graduation's schedule, timing, decorum, or sequence of events. The Supreme Court did not suggest in Lee

that school sponsorship of the graduation event, standing alone, was sufficient to find the Providence policy

unconstitutional, or it would have banned all religious expression at graduation. If Appellants were right on

this point, graduation speakers as diverse as athletes, politicians, academics, entertainers, and maybe even

judges would bear the imprimatur of the state because they were handpicked by the school (or, in our case,

elected by the senior class) to speak at an event over which the school has great control. Schools then would

have to prevent these speakers from discussing a religious topic, engaging in prayer, or imploring the

guidance of the Lord, to ensure no Establishment Clause violation and protect themselves from 42 U.S.C. §

1983 liability should an audience member perceive the school to be endorsing the speaker's religious message.

Indeed, the same logic would apply to a student graduation speaker selected by other neutral criteria such as

academic achievement. But a graduation free of all religious expression, compelled by the school's

sponsorship of the event, is not required by the Establishment Clause.

Even if we accept that the Duval County School Board exerted overwhelming control over the

graduation ceremony in terms of the event's sequence, venue, dress, and facilities, it is clear that it did not

have control over the elements which are most crucial in the Establishment Clause calculus: the selection of

the messenger, the content of the message, or most basically, the decision whether or not there would be a

message in the first place. It is beyond imagination to say that everyone on the platform at a high school

graduation ceremony, including a local politician or celebrity, is a state speaker merely because the state has

provided the platform, onto which private individuals may be invited to share their privately-held views.

Such views do not become the state's views merely by being uttered at a state event on a state platform.
16

Otherwise, each "open forum" case in which the Supreme Court found that granting religious groups access

to generally available public facilities or benefits through neutral selection criteria was not an unconstitutional

state endorsement of religion would be wrongly decided. See Pinette, 515 U.S. at 762-70, 115 S.Ct. 2440,

132 L.Ed.2d 650; id. at 772-83, 115 S.Ct. 2440, 132 L.Ed.2d 650 (O' Connor, J., concurring in the

judgment); id. at 783-94, 115 S.Ct. 2440, 132 L.Ed.2d 650 (Souter, J., concurring in the judgment);

Rosenberger, 515 U.S. at 839-46, 115 S.Ct. 2510, 132 L.Ed.2d 700; Lamb's Chapel, 508 U.S. at 395-97, 113

S.Ct. 2141, 124 L.Ed.2d 352; Mergens, 496 U.S. at 248-53, 110 S.Ct. 2356, 110 L.Ed.2d 191; Widmar, 454

U.S. at 271-79, 102 S.Ct. 269, 70 L.Ed.2d 440. For by Appellants' logic, the mere provision of a

state-controlled forum or subsidy to private speakers automatically converts private speech into government

speech.

In addition, a per se rule that all speech on a state-controlled platform is state speech, raises core free

expression concerns and would likely run afoul of the Free Exercise and Free Speech clauses. See Chandler,

180 F.3d at 1261 (stating that "[b]ecause genuinely student-initiated religious speech is private speech

endorsing religion, it is fully protected by both the Free Exercise and Free Speech Clauses of the

Constitution") (emphasis added). Even if we were to construe a graduation ceremony as a "nonpublic forum,"

Duval County students still would possess free speech rights there. The Supreme Court has consistently held

that in nonpublic fora the government may not engage in viewpoint discrimination. See Cornelius v. NAACP

Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 806, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985) (finding that

"[c]ontrol over access to a nonpublic forum can be based on subject matter and speaker identity so long as

the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral

") (emphasis added); Perry Educ. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 46, 103 S.Ct. 948, 74

L.Ed.2d 794 (1983) (observing that "the state may reserve [ ] [a nonpublic] forum for its intended purposes,

communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress

expression merely because public officials oppose the speaker's view"). The Court has also concluded that
17

religion is a viewpoint which, for First Amendment purposes, may provide "a specific premise, a perspective,

a standpoint from which a variety of subjects may be discussed and considered." Rosenberger, 515 U.S. at

831, 115 S.Ct. 2510, 132 L.Ed.2d 700.

Presumably, a student's religious perspective would inform his views on a variety of subjects

ordinarily dealt with at graduation such as expressing gratitude to his family or religious community,

reflecting on the meaning of his school experience, or defining his future goals. The extremely personal and

subjective nature of such views helps to explain why the School Board policy yields private rather than public

speech. To unnecessarily classify student speakers as government actors could render Duval County students

powerless to express religiously-inspired or religiously-influenced opinions at graduation. It also would

effectively compel the Duval County School Board, if it wants to have any speech on topics where religion

might motivate opinion or mould perspective, to engage in viewpoint discrimination, "an egregious form of

content discrimination," Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510, 132 L.Ed.2d 700, in the name of

secular purity.

The expression of religious beliefs, which are sacred to some listeners, may be offensive to others.

Appellants' desire to insulate students and other attendants at graduation from the offense that they may well

experience at hearing religious expression with which they strongly disagree is altogether understandable.

Graduation ceremonies are designed to be joyous occasions for the celebration of student achievement. But

the Constitution does not prohibit the exercise of offensive speech at graduation ceremonies, religious or

otherwise; it only prohibits state expressions of religion. While the School Board is under no compulsion

to provide an opportunity for free expression by one or more students at a graduation ceremony, the

Constitution certainly does not prohibit the School Board from doing so. The occasional tolerance of speech

we may deem offensive is one price we pay for the First Amendment and our democratic traditions.

Second, we reject the claim that allowing students to vote for a graduation message and to select the

student speakers automatically places the imprint of the state on the student speakers' privately-crafted
18

messages. Appellants' leap of logic, taking a selected student representative and, without explanation, turning

her into a state actor by virtue of a democratic student vote, strains credulity. At most, a student speaker

selected by a class vote is a representative of the student body, not an official of the state. She has no power

or authority or official capacity to inform, carry out, or guide state policy. It is wholly unconvincing to argue

that the student becomes a state actor because she was chosen by her peers, unless each high school student

individually is considered to be a state actor, or somehow the students, acting in concert, come to be vested

with the power of the state.

Consider two examples. First, consider the case of the selection of a Homecoming Queen. While

she may be selected by a vote, or plebiscite of the entire senior class, the Homecoming Queen cannot be

characterized as a state actor, or a representative of the state, merely because she holds a "public" position

and sits atop the Homecoming float. Imagine, second, the example of replacing the traditional valedictory

address with the practice of affording the students of the graduating class the opportunity to select the

graduation student speaker through a vote by the entire class. In this hypothetical, the student speaker is

selected, not by the School Board on the basis of grades, but by the students on the basis of student

choice—be it popularity, ability to entertain, achievement in athletics, or for some other reason. Again, it

strains reason and common sense to suggest that, by virtue of her selection by the majority of the senior high

school class, the student speaker becomes a mouthpiece of the state. Both examples suggest that the senior

class's act of voting does not, in any way, turn the senior class vote into state action, nor turn the chosen

student into a state actor. Because Duval County policy utilizes this same methodology, affording the

students of the senior class the opportunity to vote whether or not to have a message and to select a student

speaker, in a wholly secular way, the graduation message vote is no more vested with the imprimatur of the

state than are the votes for graduation class speaker or Homecoming Queen.

While the line between "what is 'private' action and what is 'state' action is not always easy to

determine," Appellants have in no way proven that the students' private conduct has become so "entwined
19

with government policies" or so "impregnated with governmental character" as to become subject to the

constitutional limitations placed on state action. Evans v. Newton, 382 U.S. 296, 299, 86 S.Ct. 486, 15

L.Ed.2d 373 (1966) (citing Burton v. Wilmington Parking Auth., 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45

(1961)). All of the policy's central decisions—who speaks, whether there will be a speaker, and what the

content of the speech may be—are uncontrolled by the state. Indeed, the Duval County policy itself states

that its purpose is "to allow students to direct their own graduation message without monitoring or review

by school officials." The mere delegation of decision-making to pick a speaker alone does not place the

state's imprint on a graduation prayer delivered by an autonomous student speaker who is free to give a

message of unrestricted content.

In fact, the state's only involvement in the graduation message is to provide students with the

opportunity to vote, to impose a time limit of two minutes, and to direct that the message be delivered at the

beginning and/or closing of the ceremony. If the senior class were asked to vote whether to have a student

deliver a poem or sing a song at their graduation exercise, under the same time and sequence restraints of the

Duval County graduation message policy, that act still would involve the selection of a private, autonomous

speaker through a neutral criterion. The Duval County policy does nothing more. It simply creates a neutral

mechanism whereby the students can elect to have an unrestricted message and select a student speaker.

These facts do not establish that the state has so insinuated itself into the decision so as to transform

an elected student's private speech into an utterance of the state. Where the student is chosen in a neutral and

secular way and where the student is allowed complete autonomy over the message, the student's speech is

her own.

B.

The other dominant fact of Lee—whether Duval County students are coerced "to support or

participate in religion or its exercise" by the School Board policy, 505 U.S. at 587, 112 S.Ct. 2649, 120

L.Ed.2d 467—is largely determined by the measure of state control over the message at a graduation
20

ceremony, rather than state control over the ceremony itself. We do not quarrel with the Court's suggestion

in Lee that students feel compelled to attend graduation, see id. at 593-97, 112 S.Ct. 2649, 120 L.Ed.2d 467,

and that schools "retain a high degree of control" over graduation ceremonies, id. at 597, 112 S.Ct. 2649, 120

L.Ed.2d 467. But these conclusions do not suffice to decide the issue of coercion under these circumstances.

The focus must be on whether the state has endorsed the message in an appreciable manner, which, when

combined with the inherent nature of the graduation ceremony, obliges students to participate in a religious

exercise. See Lee, 505 U.S. at 594, 112 S.Ct. 2649, 120 L.Ed.2d 467 (explaining that "[t]he injury caused

by the government's action ... is that the State, in a school setting, in effect required participation in a religious

exercise").

Here, neither the Duval County schools nor the graduating senior classes even decide if a religious

prayer or message will be delivered, let alone "require" or "coerce" the student audience to participate in any

privately-crafted message. While schools may make private religious speech their own by endorsing it,

schools do not endorse all speech that they do not censor. We cannot assume, as Appellants do, that Duval

County seniors will interpret the school's failure to censor a private student message for religious content as

an endorsement of that message—particularly where the students are expressly informed as part of the

election process that they may select a speaker who alone will craft any message. While there may be

pressures on students to attend graduation and conform with their peers, see Lee, 505 U.S. at 593-95, 112

S.Ct. 2649, 120 L.Ed.2d 467, the state's complete control over a religious exercise, essential to Lee's holding,

see id. at 590, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (finding that "[t]he degree of school

involvement here made it clear that the graduation prayers bore the imprint of the State ..."); id. at 597, 505

U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (noting that "the state-imposed character of an invocation and

benediction by clergy selected by the school combine to make the prayer a state-sanctioned religious exercise

..."), is conspicuously absent here. Moreover, whatever majoritarian pressures are attendant to a student-led

prayer pursuant to a direct student plebiscite on prayer are not facially presented by the Duval County policy.
21

Appellants also assume that allowing the senior class to vote whether to have a graduation "message"

unrestricted in content and to select an autonomous student speaker will have the effect of coercing any

chosen speaker into placating the majority's religious sensibilities by offering a sectarian message of which

the majority approves. This argument is highly remote and speculative. Even the scant record before us

suggests an opposite conclusion. While ten of the graduation messages delivered pursuant to the policy

involved some sort of religious content, the other seven Duval County graduations either had no student

message or a wholly secular message. In the second place, this argument would be far better suited to an

as-applied challenge, where the record has been properly developed, rather than to a facial challenge. A facial

challenge to be successful "must establish that no set of circumstances exists under which the Act would be

valid." United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (emphasis

added). Appellants' argument simply ignores the plain text of the policy which only permits graduating

students to decide through a vote whether a student volunteer shall give a message of her choice. No religious

result is preordained under the policy. On its face, the policy is constitutional under Lee.

III.

We reach the same conclusion when the graduation policy is measured against the three-part Lemon

test. Under Lemon, we must evaluate whether: first, the policy has a secular purpose; second, the policy has

a primary effect that neither advances nor inhibits religion; and finally, the policy fosters an excessive

government entanglement with religion. See Lemon, 403 U.S. at 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745.

A.

We begin with the policy's purpose. Lemon requires that a statute must have "a secular legislative

purpose." 403 U.S. at 612, 91 S.Ct. 2105, 29 L.Ed.2d 745. A statute will only violate this prong if it is

"entirely motivated by a purpose to advance religion." Wallace v. Jaffree, 472 U.S. 38, 56, 105 S.Ct. 2479,

86 L.Ed.2d 29 (1985); see also Bowen v. Kendrick, 487 U.S. 589, 602, 108 S.Ct. 2562, 101 L.Ed.2d 520

(1988) (stating that a court "may invalidate a statute only if it is motivated wholly by an impermissible
22

purpose") (citations omitted); Lynch v. Donnelly, 465 U.S. 668, 680, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984)

(observing that "[t]he Court has invalidated legislation or governmental action on the ground that a secular

purpose was lacking, but only when it has concluded there was no question that the statute or activity was

motivated wholly by religious considerations"). A statute may satisfy Lemon 's first prong even if it is

"motivated in part by a religious purpose." Wallace, 472 U.S. at 56, 105 S.Ct. 2479, 86 L.Ed.2d 29.

Moreover, the Supreme Court has instructed us to be "deferential to a State's articulation of a secular

purpose," Edwards v. Aguillard, 482 U.S. 578, 586, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987), particularly

where "a legislature expresses a plausible secular purpose" for a policy or action, Wallace, 472 U.S. at 74,

105 S.Ct. 2479, 86 L.Ed.2d 29 (O'Connor, J., concurring in the judgment). We respect that purpose unless

it is insincere or a "sham," Edwards, 482 U.S. at 586-87, 107 S.Ct. 2573, 96 L.Ed.2d 510; Bown, 112 F.3d

at 1468, or the statute at issue has a "preeminent purpose" which is "plainly religious in nature," Stone v.

Graham, 449 U.S. 39, 41, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (per curiam); see also Edwards, 482 U.S.

at 591, 107 S.Ct. 2573, 96 L.Ed.2d 510; Wallace, 472 U.S. at 56-60, 105 S.Ct. 2479, 86 L.Ed.2d 29. But

the Supreme Court has been reluctant to attribute an unconstitutional motive where a "plausible" secular

purpose may be discerned from the statute. Mueller v. Allen, 463 U.S. 388, 394-95 & n. 4, 103 S.Ct. 3062,

77 L.Ed.2d 721 (1983).

Additionally, "[i]nquiry into legislative purpose begins with interpreting the law itself." Church of

Scientology v. City of Clearwater, 2 F.3d 1514, 1527 (11th Cir.1993). That requires close attention be paid

to the plain language of the policy. For the most part, statutes which the Supreme Court has invalidated for

lack of secular purpose have openly favored religion or demonstrated a religious purpose on their face. See,

e.g., Edwards, 482 U.S. at 593, 107 S.Ct. 2573, 96 L.Ed.2d 510 (invalidating a Louisiana law that required

creationism to be discussed with evolution in public schools); Wallace, 472 U.S. at 57-58, 105 S.Ct. 2479,

86 L.Ed.2d 29 (overturning an Alabama statute that authorized a moment of silence because the state made

no attempt to justify the statute in terms of any secular purpose); Stone, 449 U.S. at 41, 101 S.Ct. 192, 66
23

L.Ed.2d 199 (striking down a Kentucky statute requiring the posting of the Ten Commandments in public

classrooms); Engel v. Vitale, 370 U.S. 421, 424, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962) (holding

unconstitutional a New York law authorizing state-directed daily classroom prayer in public schools).

In contrast, three secular purposes are plainly encompassed by the Duval County policy. First, the

Duval County policy, by its very words, articulates a secular purpose; namely, affording graduating students

an opportunity to direct their own graduation ceremony by selecting a student speaker to express a message.

By choosing whether to have a graduation message, and if so, the student speaker, the graduating class shares,

at least in part, in the civic responsibility of planning their graduation ceremony. See Jones, 977 F.2d at 966

(finding that "[a] meaningful graduation ceremony can provide encouragement to finish school and the

inspiration and self-assurance necessary to achieve after graduation, which are secular objectives").

Second, the School Board policy allows students to solemnize graduation as a seminal educational

experience. See Lynch, 465 U.S. at 693, 104 S.Ct. 1355, 79 L.Ed.2d 604 (O'Connor, J., concurring) (noting

"the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and

encouraging the recognition of what is worthy of appreciation in society"); see also Chaudhuri v. Tennessee,

130 F.3d 232, 236 (6th Cir.1997); Tanford v. Brand, 104 F.3d 982, 986 (7th Cir.1997); Jones, 977 F.2d at

966-67. This purpose is not drained of its secular character merely because the policy invites consideration

of meaning and values in the context of a graduation ceremony. And it would be very damaging to public

education if the Establishment Clause were to be seen as inhibiting any reflection by a student of transcendent

meaning and value in life, whether grounded in religion or not.

Finally, the School Board's policy also evinces an important and long accepted secular interest in

permitting student freedom of expression, whether the content of the expression takes a secular or religious

form. See Pinette, 515 U.S. at 760, 115 S.Ct. 2440, 132 L.Ed.2d 650 (noting that "[o]ur precedent establishes

that private religious speech, far from being a First Amendment orphan, is as fully protected under the Free

Speech Clause as secular private expression"); Mergens, 496 U.S. at 249, 110 S.Ct. 2356, 110 L.Ed.2d 191
24

(stating that "prevent[ing] discrimination against religious and other types of speech" has an "undeniably

secular" purpose.); Americans United For Separation of Church and State v. City of Grand Rapids, 980 F.2d

1538, 1543 (6th Cir.1992) (en banc) (explaining that a "policy of treating religious speech the same as all

other speech certainly serves a secular purpose").

Nevertheless, Appellants suggest that the policy has no true secular purpose and they posit three

arguments to show that any avowed secular purpose is actually a "sham." They claim first, that the School

Board promulgated the policy as a means to evade the strictures of Lee; second, that the policy's solely

sectarian purpose is established by the title of the Reynolds Memorandum, "Graduation Prayer"; and finally,

that comments made by some members of the School Board, notably after the policy had been promulgated

and distributed in Duval County, likewise evince a wholly sectarian purpose.

Before examining Appellants' specific claims, we first note that Appellants, without any case

authority, ignore the plain text of the policy and its explicitly stated secular purpose, as if there were none.

Appellants would divine a wholly sectarian purpose merely by looking at the antecedent history, the title, and

the post-enactment debate surrounding the graduation policy. While it is appropriate to consider both the

"legislative history and the specific sequence of events leading up to the adoption of the statute," it is, "of

course, necessary to examine the language of the statute on its face." Bown, 112 F.3d at 1469 (citing

Edwards, 482 U.S. at 594, 107 S.Ct. at 2583; Church of Scientology, 2 F.3d at 1527).

As for Appellants' first claim, Appellants cite no persuasive evidence that the Duval County policy

was promulgated to evade the strictures of Lee. Inferring the subjective motivations of policymakers is always

a tricky proposition. "[W]hile it is possible to discern the objective 'purpose' of a statute (i.e., the public good

at which its provisions appear to be directed), or even the formal motivation for a statute where that is

explicitly set forth, ... discerning the subjective motivation of those enacting the statute is, to be honest, almost

always an impossible task. The number of possible motivations, to begin with, is not binary, or indeed finite."

Edwards v. Aguillard, 482 U.S. 578, 636-37, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (Scalia, J., dissenting).
25

In this case, that task is made even more difficult because we have no record from which to fairly

infer the motivation of those who promulgated or distributed the policy. In so far as we attempt to divine

purpose from the decision-makers, "to the extent that the School Board was the institutional policy maker

(rather than Superintendent Zenke and/or Ms. Reynolds)," the district court found that the "purposes or

intentions of the members of the Board are unknown. No debate was had and no vote was taken on the

Reynolds Memorandum of May 5." Adler I, 851 F.Supp. at 451. To the extent that we focus on the motives

of Mr. Zenke or Ms. Reynolds, the district court found mixed motives or purposes—to permit students to

solemnize the event, to afford the student body the opportunity to select a messenger, who, in turn would,

with complete autonomy, choose a secular or sectarian message, and to afford the students the option of

having no message at all. See id. at 452.

Appellants offer no good reason to disturb the district court's findings which are grounded in the

facially neutral language of the Reynolds Memorandum. Appellants principally rely on the pre-policy

history. A review of the pertinent history, however, yields only the observations that prior to Lee Duval

County had a long tradition of clergymen offering prayers at commencement ceremonies, that in the wake

of Lee in 1992 the School Board terminated the practice, and that thereafter many members of the community

expressed strong views about the policy one way or the other. Appellants highlight the fact that some

community members wrote letters imploring Zenke and the Board to find a way to maintain the graduation

prayer tradition. It would be an especially dangerous practice if a court could somehow discern legislative

purpose, not from the text of the policy, nor from its explicitly stated purpose, nor even from a

decision-making body that has offered no debate from which to find purpose, but, rather, simply from the

controversy surrounding the subject and the heartfelt and often conflicting views expressed by many members

of the community.

In addition, the fact that the Reynolds Memorandum discusses Lee and the question of whether

student-initiated, student-led graduation prayer is constitutional does not establish that the policy's secular
26

purposes are a "sham." Edwards, 482 U.S. at 586-87, 107 S.Ct. 2573, 96 L.Ed.2d 510; Bown, 112 F.3d at

1468. There is nothing inappropriate about a school system attempting to understand its constitutional

obligations and to instruct school officials on how to comply with the law. The Reynolds Memorandum

simply explained that in spite of Lee the law was unclear on the student prayer issue and that the School

Board had been threatened with "lawsuits from both sides on the issue depending on what action" they took.

The memorandum, in no way, expressed a desire or preference for student prayer at graduation ceremonies.

It simply acknowledged that Lee forbade graduation prayers "directed and initiated by the school system"

rather than student-initiated, student-led prayers. Moreover, as the memorandum made clear, the policy's

stated purpose is plainly secular, "to allow students to direct their own graduation message without

monitoring or review by school officials," and its features are strictly content-neutral and equally

accommodating of secular and sectarian student messages. At worst, the memorandum can be read as

contemplating that student prayers could be offered pursuant to the graduation policy and that such

occurrences were not strictly forbidden by Lee. Such a supposition does not come close to rendering the

policy's secular purposes a sham.

Appellants next suggest that the title of the Reynolds Memorandum, "Graduation Prayer," supports

the conclusion that the School Board policy was driven solely by sectarian concerns. The title, however,

merely introduces the topic of debate within Duval County in the aftermath of Lee, rather than suggesting,

let alone compelling, the outcome of that debate. The title affixed to the Reynolds Memorandum does no

more than alert the reader to the general subject matter of the text; and it remains the language and substance

of the policy, rather than its title, that is controlling. It is altogether unnecessary to requisition the title to cast

doubt on the clear and unambiguous purpose of the policy. The crucial term "message" is fully defined by

the text of the policy, which provides that the decision whether to have a message is left to the students, that

the student body shall choose the student speaker, that the message is limited to two minutes in length, that

the message shall take place at the beginning and/or closing of the graduation ceremony, and, finally, that the
27

content of the message shall be prepared by the student speaker without monitoring or review by the School

Board. The title cannot take the place of a detailed review of the policy's facial provisions, let alone create

a wholly sectarian purpose out of a textually neutral pronouncement.

 Besides being unnecessary, use of the title to inform the plain meaning of the policy's language is

improper. Indeed, even if we were examining the title of a statute or legislative codification—and we are

doing far less than that here—the Supreme Court has warned that "the title of a statute and the heading of a

section cannot limit the plain meaning of the text. For interpretive purposes, they are of use only when they

shed light on some ambiguous word or phrase. They are but tools available for the resolution of a doubt. But

they cannot undo or limit that which the text makes plain." Brotherhood of R.R. Trainmen v. Baltimore &

Ohio R.R. Co., 331 U.S. 519, 528-29, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947). Both we and our predecessor

court have repeatedly employed this principle of statutory construction when interpreting the statutory text.

See, e.g., North Ala. Express, Inc. v. Interstate Commerce Comm'n, 971 F.2d 661, 664 (11th Cir.1992)

(declaring that " '[s]ection and chapter titles cannot alter the plain meaning of a statute; they can only assist

in clarifying ambiguity' ") (citation omitted); Scarborough v. Office of Personnel Management, 723 F.2d 801,

817 (11th Cir.1984) (noting that "reliance upon headings to determine the meaning of a statute is not a

favored method of statutory construction"); Rich v. Commissioner of Internal Revenue Serv., 250 F.2d 170,

175 (5th Cir.1957) (stating that "[t]he plain and unambiguous meaning of the text of the section cannot be

extended by its title or heading").

Finally, Appellants point to post-enactment comments of some members of the School Board made

at a June 1, 1993 meeting as evidence of the School Board's wholly sectarian purpose to permit graduating

students to pray. However, the district court observed that "[t]he motivation or intent of the Board relative

to the Reynolds Memorandum of May 5 is essentially unknown." Adler I, 851 F.Supp. at 452. No debate

was had and as far as the record reflects, no vote was taken on the Reynolds Memorandum. The June 1

comments were made almost a month after the policy was promulgated and distributed in the context of a
 8

Appellants cite to four post-enactment statements of School Board members to show that the School

Board intended to permit graduating students to engage in prayer. In fact, the statements to which the

Appellants refer generally buttress the conclusion that the School Board's policy was not a sham. Of those

four statements, only the statement of Board member Bill Parker can be characterized as advocating direct

school involvement with religion at graduation ceremonies. See Tr. of Duval County Sch. Bd. Meeting at

2 ("I think that our school principals should be allowed to work out a non-sectarian message with our student

chaplains, or a guest minister, rabbi or whatever that would be acceptable to all at this very important time

in our young people's lives."). The statements of Don Buckley and Nancy Corwin, while generally supportive

of religion, acknowledge that an intended effect of the policy is to insulate the content of messages from

school influence. See id. at 5 (Buckley) ("I think the only way we can keep ourselves clear on this thing is

to keep ourselves out of what happens in this area of the graduation ceremony."); (Corwin) ("I also believe

that the democratic process in which seniors were given the ability to choose which form of inspirational

message, if any, they wanted at their commencement was an appropriate one and I'm going to stand by it.").

Rather than betraying an illegitimate intent to ensure that prayer take place at graduation ceremonies, these

statements indicate that Buckley and Corwin perceived the School Board policy as disassociating the school

hierarchy from student messages. The fourth statement referenced by Appellants, that of Board member Stan

Jordan, was also supportive of the policy. See id. at 8 ("I plan to vote for the administration plan and against

the proposal that's on the table."). Taken as a whole, these utterances by School Board members constitute

recognition that the old regime of state-directed school prayer in Duval County had passed and been replaced

by a new regime over which they had far less control. 

28

proposal to replace student-initiated messages with a moment of silence. The motion failed and the policy

was left in force. At best, the vote can be viewed as a tacit endorsement of the Reynolds Memorandum.

Furthermore, a review of the School Board's comments at this meeting do not establish that the School Board

sought to direct or endorse graduation prayer via the Reynold Memorandum. The most one could say is that

the statement of one School Board member at the June 1 meeting could be characterized as advocating direct

school involvement with religion at graduation ceremonies.8

 Simply put, the post-enactment comments are

not sufficient to transform the policy's express secular purpose into a preeminently religious purpose.

More importantly, regardless of how these post hoc statements are interpreted, they cannot be

construed to override the policy's language articulating a clear secular purpose. See Bown, 112 F.3d at 1472.

Indeed in Bown, we had occasion to find that the legislative history of a Georgia statute (mandating a period

for quiet reflection in public schools), which contained some expressions of religious motives by several

legislators who voted for the Act, could not "override the express statutory language articulating a clear
 9

Appellants cite Jager v. Douglas County Sch. Dist., 862 F.2d 824 (11th Cir.1989), for the proposition that

a policy, whose actual purpose is to promote prayer or is "intrinsically religious," Id. at 830, cannot meet the

secular purpose prong of Lemon. But Jager does no more than state the obvious, that in order to meet Lemon

's first prong, a government policy must have a genuine secular purpose and not be a sham. See Edwards,

482 U.S. at 586-87, 107 S.Ct. 2573, 96 L.Ed.2d 510. If a policy's "actual purpose" is wholly religious then

Lemon 's secular purpose requirement is not satisfied. In Jager, we held that a school district's practice of

having representatives of student organizations deliver invocations prior to football games had as its

"preeminent purpose" the endorsement of Protestant Christianity. Id., 862 F.2d at 830. The only discretion

left to the students was the selection of who would pray. 

29

secular purpose."9 Id. Here, we have even far less evidence of a sectarian policy purpose on the part of the

School Board or their principals.

In sum, whether standing alone or in concert, the three pieces of evidence cited by Appellants cannot

strip the policy of a secular purpose. No matter what an individual board member may have hoped—and they

said nothing on the record about codifying this policy—Duval County's policy is facially neutral and

undeniably evinces a secular purpose. That is enough to pass constitutional muster under the first prong of

Lemon.

B.

As for whether the policy has the primary effect of advancing religion, we conclude that because the

policy, on its face, allows a student message on any topic of the student's choice it satisfies the second prong

of Lemon. The Duval County School Board policy is content-neutral and does not mandate or even

encourage that a graduation prayer will be uttered. As the district court found, the implementation of the

policy may result in no graduation prayer at all. See Adler I, 851 F.Supp. at 454. While it is undoubtably true

that an autonomous student speaker could read a prayer at graduation under the policy, it is equally true that

the same speaker may opt for a wholly secular message instead. It would require a strain of the term

"primary" to suggest that a content-neutral forum policy, which accommodates private sectarian and secular

speech on an equal basis, has the "primary" or "principal" effect of advancing religion.

Moreover, we believe that a student's private choice to deliver a religious message at graduation is

a religious effect attributable to the student rather than to the facial terms of the Duval County policy. As the
30

Supreme Court has explained, "to have forbidden 'effects' under Lemon, it must be fair to say that the

government itself has advanced religion through its own activities and influence." Corporation of Presiding

Bishop of Church of Jesus Christ Latter-Day Saints v. Amos, 483 U.S. 327, 337, 107 S.Ct. 2862, 97 L.Ed.2d

273 (1987). Here, the policy strips the School Board of any authority over the central decisions—who speaks,

whether there will be a speaker, and what the content of the speech may be. Indeed, in order to ensure that

no one perceives any student's religious utterance as being the state's prayer, the policy explicitly divorces

any student message from School Board sponsorship by specifically stating that any message will be

"prepared by the student volunteer and shall not be monitored or otherwise reviewed" by the School Board

or its employees. This language acts as an overt disclaimer, further distancing the state from the student

message.

Our conclusion is amply supported by Supreme Court caselaw. The Court, under Lemon, repeatedly

has upheld facially neutral programs that permit individuals to support religion through their own private

choices. See, e.g., Agostini, 521 U.S. at 223-232, 117 S.Ct. 1997, 138 L.Ed.2d 391 (upholding New York

program of sending public school teachers into parochial schools to provide remedial education where aid

was made available to religious and secular beneficiaries on a nondiscriminatory basis); Zobrest, 509 U.S.

at 8-12, 113 S.Ct. 2462, 125 L.Ed.2d 1 (sustaining section of Individual with Disabilities Act providing

disabled children with aid regardless of whether a child attends a sectarian institution); Witters, 474 U.S. at

488, 106 S.Ct. 748, 88 L.Ed.2d 846 (holding that Establishment Clause was not violated when the state paid

a blind student's tuition at a Christian college through a generally-applicable aid program because any public

aid that reached religious institutions under the program was "a result of the genuinely independent and

private choices of aid recipients"); Mueller v. Allen, 463 U.S. at 399, 103 S.Ct. 3062, 77 L.Ed.2d 721

(upholding a state tax deduction for specified educational expenses, and characterizing any such aid to

religion as being "only as a result of numerous, private choices of individual parents of school-age children").

The Duval County policy allows elected student speakers the freedom to privately choose a graduation
 10Recently, in Agostini, the Court merged the second and third Lemon prongs because "the factors we use

to assess whether an entanglement is 'excessive' are similar to the facts we use to examine 'effect.' " Id., 521

U.S. at 232, 117 S.Ct. 1997. 

31

message of an either secular, sectarian, or mixed nature. We therefore find that the Duval County policy does

not have a primary effect of advancing religion.

C.

For many of the same reasons, we conclude that the School Board's policy does not excessively

entangle the Board with religion in violation of the third part of the Lemon test.10 The policy remains facially

neutral with respect to religion, requiring only that graduation messages be voted on by students, and

composed and directed by a student speaker. By its very terms, the policy explicitly prohibits any review of

the student message at all. Undoubtedly, the School Board would find itself far more entangled with religion

if it attempted to eradicate all religious content from student messages than if it maintained a meaningful

policy of studied neutrality. See Mergens, 496 U.S. at 253, 110 S.Ct. 2356, 110 L.Ed.2d 191 (stating that "a

denial of equal access to religious speech might well create greater entanglement problems in the form of

invasive monitoring to prevent religious speech at meetings at which such speech might occur"); Widmar,

454 U.S. at 272 n. 11, 102 S.Ct. 269, 70 L.Ed.2d 440 (noting that schools who adopt open-forum policies for

private secular and religious groups equally "would risk greater 'entanglement' by attempting to enforce its

exclusion of 'religious worship' and 'religious speech' "); Chabad-Lubavitch, 5 F.3d at 1389; Jager, 862 F.2d

at 831.

Implicit in Appellants' rationale is the need for school censorship if schools are to allow students the

opportunity to speak at graduation at all. At the core of Appellants' position is the claim that the state's

control over nearly all aspects of the graduation ceremony automatically imputes all private speech to the

state. But the degree of control that schools generally exert over high school graduation ceremonies is

unlikely to diminish because graduation ceremonies are, by their nature, highly choreographed. Appellants'

position therefore would leave school officials with only two choices: either eliminate student speech
 11There is no easy or precise guideline for school officials to follow when excising student speech of

religious content. The constitutional definition of religion is expansive; it encompasses "all sincere religious

beliefs which are based upon a power or being, or upon a faith, to which all else is subordinate or upon which

all else is ultimately dependent" and "which occupies in the life of its possessor a place parallel to that filled

by [ ] God." United States v. Seeger, 380 U.S. 163, 176, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965). Moreover, the

beliefs "need not be acceptable, logical, consistent, or comprehensible to others." Thomas v. Review Bd., 450

U.S. 707, 714, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981). Moreover, if the School Board's censorship was not

"rigorous" enough to prevent religion from creeping into graduation ceremonies, a policy of allowing even

monitored student speech still would be subject to constitutional attack. 

32

altogether or retain student speech, subject to censorship by school authorities. If school officials choose the

latter course, they will be left with the unenviable task of identifying the religious content in student speeches

for excision prior to graduation or of interrupting renegade graduation speakers who resort to sectarian

speech.11 If, however, they choose the former, they will have deprived the graduation class of any role in

shaping its high school graduation and they will have banned all private student expression. The

Establishment Clause requires no such Hobson's choice. What it does require is a recognition of the critical

difference between a private statement of religious values and a religious utterance endorsed by the state. The

Duval County School Board's policy, on its face, does no more than recognize this distinction.

IV.

Based on the foregoing, we hold that the Duval County school system's policy of permitting

graduating students to decide through a vote whether to have an unrestricted student graduation message at

the beginning and/or closing of graduation ceremonies does not facially violate the Establishment Clause.

We therefore affirm the judgment of the district court.

AFFIRMED.

KRAVITCH, Senior Circuit Judge, dissenting, in which BARKETT, Circuit Judge, joins:

I agree with the majority that the Supreme Court's decisions in Lee v. Weisman, 505 U.S. 577, 112

S.Ct. 2649, 120 L.Ed.2d 467 (1992), and Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111,

29 L.Ed.2d 745 (1971), control this case. I disagree, however, with the majority's application of those

decisions to the facts of this case. The majority articulately defends the constitutionality of the Duval County
33

graduation policy, but the analysis is flawed by an unwillingness to look beyond the policy's terms. A

broader, more contextual appraisal leads me to conclude that the Duval County policy violates the

Establishment Clause of the First Amendment. Therefore, I respectfully dissent.

In Lee, 505 U.S. at 586, 112 S.Ct. at 2655, the Supreme Court held a graduation ceremony

unconstitutional because (1) school officials were overly involved with the delivery of a prayer, and (2)

audience members were in effect required to participate in a formal religious exercise. Admittedly, the link

between the Duval County policy and resulting prayer at graduation ceremonies is not as direct as in Lee. But

although the Duval County school administration may have distanced itself from prayer offered during

graduation ceremonies, it did not disconnect itself from religious expression. Nor does the policy mitigate

the influences that coerce audience members to participate in prayers offered at graduation.

Although Lee presents a specific example of an Establishment Clause violation, Lemon, 403 U.S. at

612-13, 91 S.Ct. at 2111, still provides the general Establishment Clause test. The Duval County policy runs

afoul of the Lemon test because its only credible purpose is to maximize the chance that prayer will continue

to play a prominent role in Duval County graduations. Furthermore, the policy's "primary effect" is to

advance religion. The policy communicates an endorsement of religion both because it leads to more

religious expression in the opening and closing messages than all other types of speech, and because its

purpose is apparent to any reasonable observer aware of its terms, the graduation traditions in Duval County,

and the events leading to the policy's creation.

Invoking the ideals of free student expression and referencing the public forum doctrine do not

cleanse the Duval County policy of its constitutional defects. Allowing a student majority to do what the

school administration could not offends our constitutional scheme of individual rights. Nor does the policy

promote free expression or render the graduation ceremony equally available for any sort of speech-not when

it allows for only one speaker, and a speaker chosen by majority vote at that.
34

In addition to disagreeing with the majority's facial analysis of the Duval County policy, I take issue

with the conclusion that the plaintiffs waived their as-applied claims. After analyzing the Duval County

policy under both Lee and Lemon, and critiquing the majority's public forum analogy, this dissent concludes

with a brief examination of the procedural posture of the case and the district court's order advancing the trial

on the merits.

A. Lee v. Weisman

The starting point for the analysis of the Duval County policy is Lee v. Weisman, 505 U.S. 577, 112

S.Ct. 2649, 120 L.Ed.2d 467 (1992), because it is the only Supreme Court case involving prayer at public

school graduation ceremonies. In Lee, a principal invited a rabbi to give a prayer at the school's graduation

ceremony and provided a pamphlet suggesting an appropriate tone and possible content for the presentation.

Id. at 581, 112 S.Ct. at 2652. The Supreme Court found it unnecessary to apply the Lemon analysis in Lee

because two "dominant facts" rendered the rabbi's prayer so clearly unconstitutional. Id. at 586, 112 S.Ct.

at 2655. First, "[t]he government involvement with religious activity [was] pervasive, to the point of creating

a state-sponsored and state-directed religious exercise in a public school." Id. at 587, 112 S.Ct. at 2655.

Second, "the State, in a school setting, in effect required participation in a religious exercise." Id. at 594, 112

S.Ct. at 2659. The majority purports to evaluate Duval County's policy in light of the standards enunciated

in Lee, but it both understates the degree of state direction relevant for the first prong of the Lee analysis and

effectively writes Lee 's second "dominant fact," coerced participation, out of the opinion by conflating it with

the state's control over the religious exercise itself.

1. State Control

In Lee, state actors made the decision to include an invocation and benediction in the graduation

ceremony, selected the speaker, and suggested an appropriate tone for the message. Id. at 587-88, 112 S.Ct.

at 2655-56. These elements of state involvement are of constitutional import because they "made it clear that

the graduation prayers bore the imprint of the State." Id. at 590, 112 S.Ct. at 2657. Admittedly, the Duval
35

County policy is not as egregious as the practice scrutinized in Lee. The state involvement with prayers

offered through the operation of the policy, however, is still too extensive to comport with the Establishment

Clause.

In its own search for state involvement, the majority focuses on the student standing alone at the

podium delivering an uncensored message, but ignores how she got there. A broader inquiry reveals that the

state directs the exercise of prayer at Duval County high school graduations because: (1) the programmatic

constraints imposed by the graduation policy promote religious expression, especially given the context

surrounding the policy's promulgation, (2) the election of a student to deliver the opening or closing

"message" is state action, and (3) the vote for student speaker is based on the expected content of the

candidate's message.

According to the majority, "[t]he School Board ... does not suggest in any way ... that the graduating

class consider religious or any other criteria in deciding whether to have a student message or in selecting a

particular student speaker." The policy does not permit the school administration to remain passive, however,

and the policy's terms do encourage the senior class to consider religious criteria in planning the opening and

closing.

Under the terms of the policy, it is the high school administration that organizes elections for the

graduation program. The policy only allows for student input concerning the beginning and end of the

ceremony-portions of the program appropriate for a limited range of speech. The policy also dictates that the

opening and closing messages last no more than two minutes, further limiting the types of speech possible.

The constraints of the policy itself provide clues about the type of message the school administration had in

mind. In case students need more of a hint, however, history provides one. Until the year the policy went

into effect, Duval County high school graduations had opened and closed with a prayer. As the district court

noted, "[i]nvocations and benedictions have been traditional and are therefore familiar if not expected at high
 1

Both the Ninth and the Third Circuits have recognized that student decisions concerning particular aspects

of their graduation ceremonies are attributable to the state. See ACLU of N.J. v. Black Horse Pike Reg'l Bd.

of Educ., 84 F.3d 1471 (3d Cir.1996); Harris v. Joint Sch. Dist. No. 241, 41 F.3d 447 (9th Cir.1994), vacated

with directions to dismiss as moot, 515 U.S. 1154, 115 S.Ct. 2604, 132 L.Ed.2d 849 (1995). These courts

both focused on the graduation ceremony as a whole. They noted that the school administration is ultimately

responsible for the graduation ceremonies, and that "the seniors have authority to make decisions regarding

graduation only because the school allows them to have it." Harris, 41 F.3d at 454; see also, Black Horse

Pike, 84 F.3d at 1479. They also acknowledged the school's extensive involvement with other details of the

graduation ceremony. See Black Horse Pike, 84 F.3d at 1479; Harris, 41 F.3d at 454. Only the Fifth Circuit

has held that a student vote regarding prayer cannot be attributed to the state, see Jones v. Clear Creek Indep.

Sch. Dist., 977 F.2d 963, 970-71 (5th Cir.), vacated, 505 U.S. 1215, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992),

but that holding is in tension with the more recent case of Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806

(5th Cir.1999), cert. granted in part, --- U.S. ----, 120 S.Ct. 494, 145 L.Ed.2d 381 (1999). In Santa Fe, the

Fifth Circuit held that allowing proselytizing prayers at graduation violated the First Amendment, even

though the senior class selected the speaker. 168 F.3d at 817. 

36

school graduation ceremonies" in Duval County. Adler v. Duval County Sch. Bd., 851 F.Supp. 446, 453 n.

9 (M.D.Fla.1994).

Moreover, the senior class vote is itself attributable to the state. The majority concludes otherwise

because it views the students as making all of the "central" decisions regarding the opening and closing

message. This logic undervalues the power of the policy's terms to influence the students' choices; it also

treats the graduation "message" as if it were an independent event, rather than the opening and closing

segment of a more substantial occasion, the graduation ceremony. This narrow perspective permits the

majority to ignore the fact that the Duval County policy gives students control over only a tiny fraction of

the graduation ceremony as a whole.1

The actions of a private party can be attributed to the state if they are taken in exercise of a right or

privilege rooted in state authority, and if the private party can "in all fairness" be described as a state actor.

See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 620, 111 S.Ct. 2077, 2082-83, 114 L.Ed.2d 660

(1991). Clearly, the student vote satisfies the first part of this analysis: but for the policy, the student vote

would not occur. Before the policy went into effect, students may have had input, but ultimately the school

administration decided whether to have a formal opening and closing segment of the graduation ceremony,

and if so, what to include in those portions of the program.
37

Whether a private party can "in all fairness" be described as a state actor depends on whether the

party's actions are "governmental in character." See id. at 621, 111 S.Ct. at 2083. Relevant to this analysis

are: "the extent to which the actor relies on governmental assistance and benefits; whether the actor is

performing a traditional governmental function; and whether the injury caused is aggravated in a unique way

by the incidents of governmental authority." Id. at 621-22, 111 S.Ct. at 2083 (citations omitted). Considered

in light of these three factors, the student decisions made pursuant to the Duval County policy are

"governmental in character."

First, the students vote not merely with the cooperation of the school authorities but at the behest of

school district policy. They do so on school property, and the assistance or cooperation of the principal and

faculty with administering the election must be presumed. Furthermore, students vote about a message that

will be delivered at an event sponsored and controlled by the school.

Second, planning public school graduation ceremonies is a traditional governmental function. The

Supreme Court noted in Lee that "teachers and principals must and do retain a high degree of control over

the precise contents of the program, the speeches, the timing, the movements, the dress, and the decorum of

the students." 505 U.S. at 597, 112 S.Ct. at 2660. Before the policy went into effect, the Duval County

school administration had the power to plan every aspect of the graduation ceremonies, including the opening

and closing, and the policy does not divest the administration of control over the graduation ceremonies

generally.

Finally, prayers recited during the opening and closing portions of the ceremony have an injurious

effect precisely because of the state association with the event. Most people properly perceive their everyday

encounters with others' religious expression as an incidental requirement of life in a diverse society, rather

than as a burden or attack on their own beliefs. See Lee, 505 U.S. at 628, 112 S.Ct. at 2677 (Souter, Stevens,

& O'Connor, JJ., concurring). It is government participation in religious expression that offends the First

Amendment because of its power to influence the inherently personal nature of religious faith, potentially
 2

Indeed, even if all maintenance and title to the land were in private hands, the park's management would

have to comply with the Constitution because "the predominant character and purpose of [the] park are

municipal." Evans, 382 U.S. at 302, 86 S.Ct. at 490. 

38

coercing religious minorities or even coopting mainstream sects. See id. at 591-92, 112 S.Ct. at 2657-58;

see also id. at 608-09, 112 S.Ct. at 2666 (Blackmun, Stevens, & O'Connor, JJ., concurring).

The student vote satisfies the criteria for state action described in Edmonson, and other cases have

identified state action in a similar context. These cases stand for the proposition that when government

delegates authority over a portion of a public operation to an ostensibly private actor, but retains ultimate

control over the larger operation, the exercise of the delegated authority is attributable to the state.

Administering elections, for example, is a state function. Although states can give political parties and private

associations a role in choosing candidates to appear on the ballot, the private entities' fulfillment of that role

is state action. See Terry v. Adams, 345 U.S. 461, 469, 73 S.Ct. 809, 813, 97 L.Ed. 1152 (1953); Smith v.

Allwright, 321 U.S. 649, 663, 64 S.Ct. 757, 765, 88 L.Ed. 987 (1944). The state cannot escape its

responsibility to maintain an electoral system that comports with the Constitution by allowing

non-governmental entities to control part of the electoral system. See Terry, 345 U.S. at 469, 73 S.Ct. at 813.

These rules do not only apply to fundamental governmental operations such as elections. For

example, after a city has managed a park for a period of time, it cannot continue to maintain the facilities but

avoid the Fourteenth Amendment's mandate to integrate by appointing private trustees to oversee the park.

See Evans v. Newton, 382 U.S. 296, 301, 86 S.Ct. 486, 489, 15 L.Ed.2d 373 (1966). The park in Evans had

acquired "momentum" as a public facility, and the city remained "entwined" in its operation. It was of no

consequence that the trustees with official authority were not public employees, because "when private

individuals or groups are endowed by the state with powers or functions governmental in nature, they become

agencies or instrumentalities of the State and subject to its constitutional limitations."2

 Id. at 299, 86 S.Ct.

at 488.
 3

Under the majority's reasoning, student councils could, without prompting, vote to decorate each

classroom with the Ten Commandments or to have a student volunteer begin each school day by reading a

prayer over the public address system. In one sense the policy at issue in this case poses more of a

constitutional problem than these examples. The student council's decisions would at least be genuinely

student-initiated, but here the opportunity for an opening and closing message is created by the school

administration and the vote is organized and influenced by school officials. Local government could

undermine minority and individual rights in a similar fashion. In County of Allegheny v. ACLU Greater

Pittsburgh Chapter, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989), the Supreme Court held that

permitting the display of a creche in the Grand Staircase of a county courthouse violated the First

Amendment. The majority's view here suggests that a town council in a religiously observant and

overwhelmingly Christian community could bypass the holding in Allegheny by sponsoring an election each

year for volunteer committees to decorate town hall in mid-December or in the weeks following the secular

holiday of Mardi Gras. Such a procedure, however, would not alter the city's control over town hall or

eliminate the symbolic connection between the religious decorations and the town government. 

39

So it is with Duval County's public high school graduation ceremonies, which have always been

state-sponsored events. Through the graduation policy, the school administration delegates one decision to

the senior class, but in all other ways "remains entwined in the management [and] control" of the graduation

ceremonies. Id. at 301, 86 S.Ct. at 489.

The fact that the policy requires the senior class to exercise its decision-making authority through a

majoritarian vote does not change the analysis. "One's ... fundamental rights may not be submitted to vote;

they depend on the outcome of no elections." West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624,

638, 63 S.Ct. 1178, 1185-86, 87 L.Ed. 1628 (1943). After all, "[t]he very purpose of the Bill of Rights was

to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach

of majorities."3

 Id. at 638, 63 S.Ct. at 1185.

To further distance the state from the actual content of the opening and closing messages, the majority

emphasizes that the senior class votes for a speaker, not a particular speech. The majority concludes that the

selection of the student speaker is made in a content-neutral manner. It requires a logical leap, however, to

move from the student speaker's limited autonomy to craft the graduation message to the conclusion that the

senior class chooses the speaker without considering what she is going to say.

It is more realistic to acknowledge that students vote based on the anticipated content of the

candidates' graduation message. Unlike typical elected offices with numerous responsibilities or strictly
 4

Certainly some students will vote based on criteria such as the popularity of the candidates. We cannot

assume, however, that this will be the norm. It is worth noting that the Duval County policy imposes no

limits on campaigning. 

 5

The policy in Doe did not limit the duration of the students' speech nor restrict it to a segment of the

graduation program uniquely appropriate for, and traditionally devoted to, prayer. See id. at 834. Unlike the

Duval County policy, nothing about the policy in Doe encouraged the student speakers to choose to deliver

a prayer. If anything, requiring a minimum of four speakers minimizes the risk that the school administration

promotes any particular type of message through the policy. 

40

honorary positions such as the homecoming queen mentioned in the majority opinion, the graduation speaker

is elected to carry out one very specific task: she must deliver a single speech that lasts less than two minutes.

If the school board does not expect students to vote based on how they anticipate the candidates will perform

that one responsibility, then why have an election at all?4

Factoring the content of the speech into the choice of speaker is problematic because the choice is

attributable to the state and because the terms of the policy influence the choice as well. Furthermore, given

the pervasive state involvement in public school graduation, abstaining from censorship is not enough to sever

the state's association with speech made at the ceremony. To effectively disconnect itself from that speech,

the state must be able to articulate secular, neutral criteria for selecting the speaker that are not related to the

content of the speech.

This is the rule suggested by the Ninth Circuit's decision in Doe v. Madison Sch. Dist. No. 321, 147

F.3d 832 (9th Cir.1998), vacated as moot, 177 F.3d 789 (9th Cir.1999) (en banc). The majority finds the

Duval County policy similar to the policy in Doe, but it is the differences that are instructive. Under the

policy at issue in Doe, a minimum of four student speakers were selected strictly on the basis of their

academic standing to deliver any sort of address they wanted.5

 See id. at 835. There was no opportunity to

influence the types of speeches given, because there was no discretion in choosing the speakers. The

authorities could also disconnect themselves from the content of the student speakers' speech because the

speakers were chosen not for the views their peers or teachers hoped they would espouse, but on the basis
 6

The Supreme Court did not state in Lee whether either one of the "dominant facts" would constitute a

violation of the Establishment Clause by itself, or whether the government needs to both direct a religious

exercise and coerce participation in that religious practice. By deciding that coerced participation only exists

if the government controls the religious exercise, the majority in this case answers the question, but in quick

fashion. We need not address the relationship between the two dominant facts, because we conclude that both

are present in the Duval County policy. It is worth reiterating, however, that the Supreme Court identified

41

of a non-content based objective criterion (class standing) related to the graduation ceremony's purpose of

celebrating student achievement.

Although the Duval County policy does not mandate that a prayer be offered at every graduation, it

nonetheless keeps the state heavily involved in the choices regarding the ceremonies' opening and closing.

The policy not only allows, but in some ways encourages, the choice of prayer. Although subtler and more

indirect than the practice at issue in Lee, the Duval County policy contains the same elements of state

involvement with religious expression.

2. Coerced Participation in a Religious Exercise

The second dominant fact in Lee was that the state in effect compelled the graduating students'

participation in a religious exercise. See 505 U.S. at 586, 112 S.Ct. at 2655. Coerced participation in a

religious exercise is a separate and distinct issue from that of who controls the religious exercise. According

to the Supreme Court, this coerced participation in prayer represents the injury suffered by dissenting

students. See Lee, 505 U.S. at 594, 112 S.Ct. at 2659.

Writing about this second dominant fact, the Lee Court stated: "The sole question presented is

whether a religious exercise may be conducted at a graduation ceremony where, as we have found, young

graduates who object are induced to conform." Id. at 599, 112 S.Ct. at 2661. The majority here refuses to

address that question. Instead, it holds that whether the school administration coerces student participation

in a religious exercise "is largely determined by the measure of state control over the message at a graduation

ceremony, rather than state control over the ceremony itself." The majority cites no authority for this

interpretation, which essentially reads the "second dominant fact" out of Lee and disregards much of that

decision's analysis.6
the injury to the student plaintiffs as the mandatory participation in a religious exercise, without making

reference to who conducted or controlled it. See Lee, 505 U.S. at 594, 112 S.Ct. at 2659. 

42

The majority's interpretation also ignores the relationship between the Free Exercise and

Establishment Clauses of the First Amendment. "The Free Exercise Clause embraces a freedom of

conscience and worship," and the Establishment Clause is "[t]he method for protecting [that] freedom of

worship and freedom of conscience in religious matters." Id. at 591, 112 S.Ct. at 2657. When the

government requires an individual to participate in a religious exercise, it impinges that individual's freedom

of conscience and worship, even if the government is not conducting the religious service itself.

Three factors contributed to the coercion of student participation in prayer in Lee. First, attendance

for seniors is in effect mandatory because graduation is a significant right of passage in our society. See id.

at 595, 112 S.Ct. at 2659. Second, "[a]t a high school graduation, teachers and principals must and do retain

a high degree of control over the precise contents of the program, the speeches, the timing, the movements,

the dress, and the decorum of the students." Id. at 597, 112 S.Ct. at 2660. Finally, adolescents are susceptible

to peer pressure, and the pressure to conform "is strongest in matters of social convention." Id. at 593, 112

S.Ct. at 2659.

These coercive elements are as present at Duval County graduation ceremonies under the policy at

issue in this case as they were at the Providence, Rhode Island, graduation scrutinized in Lee. Graduation is

a central life event for teenagers in north Florida. School authorities set the dress code and prescribe

appropriate behavior for seniors. Often, students are required to remain silent or even stand for the

ceremonies' opening and closing messages. The Duval County policy exacerbates peer pressure, because

would-be dissenters know that the majority of their classmates chose the student speaker. Finally, the policy

heightens the social pressure to participate by allowing religious expression at a formal, ceremonial stage of

the graduation. The audience remains seated and passive through much of the graduation, including speeches
 7

Duval County graduations bear out this observation. School officials typically ask the audience to stand

for the first few segments of the ceremony, including the "Invocation" or "Inspiration" and there often is a

song calling for more substantial participation. The audience then sits for the main body of the ceremony,

which includes speeches and the presentation of diplomas. See R2 (Memorandum of Law in Support of

Plaintiffs' Motion for Preliminary Injunction, Exs. 4-7, 8-19, 22, 25-28, 32-33, 37-40, 42-45). 

43

by the valedictorian and invited dignitaries, but the opening and closing call for participation of some sort.7

According to Lee, even an understated gesture such as standing or remaining respectfully silent is a

constitutionally significant degree of participation. See id. at 593, 112 S.Ct. at 2658. Students cannot be

expected to express dissent in this environment, with the obligation of polite participation and the school

authorities' control over student decorum.

B. The Lemon Test

Lee is an obvious point of departure for evaluating the Graduation Policy because it is the most

factually similar Supreme Court case, but it did not establish a new test for the Establishment Clause, and the

Supreme Court did not state that the facts of Lee represent the boundary between what is and what is not

constitutional. Lemon still provides the framework for evaluating a statute or policy's compliance with the

Establishment Clause; it is the heart of the analysis.

Lemon requires that: (1) the Duval County school system have a secular purpose for adopting the

policy; (2) the policy's primary effect neither advances nor inhibits religion; and (3) the policy does not

result in excessive government entanglement with religion. See Lemon v. Kurtzman, 403 U.S. 602, 612-13,

91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). The Duval County policy would violate the Establishment

Clause if it fails to meet even one of these criteria, see Edwards v. Aguillard, 482 U.S. 578, 585, 107 S.Ct.

2573, 2577, 96 L.Ed.2d 510 (1987), but it falls short on two grounds: the policy has no genuine secular

purpose, and its primary effect is to advance religion.

1. The Purpose of the Duval County Policy is Pre-Eminently Religious

Applying the first prong of the Lemon test, we determine whether the challenged policy has a "clearly

secular purpose" or "whether [the] government's actual purpose is to endorse or disapprove of religion."
44

Wallace v. Jaffree, 472 U.S. 38, 56, 105 S.Ct. 2479, 2489, 86 L.Ed.2d 29 (1985). We must be deferential to

the government's articulation of the purpose behind a policy, and that policy need not be exclusively or even

predominantly secular. See Edwards, 482 U.S. at 586-87, 107 S.Ct. at 2579; Wallace, 472 U.S. at 56, 105

S.Ct. at 2489. We must not, however, shirk our responsibility of judicial review. If a policy's "pre-eminent

purpose" is religious, or if the proffered secular justifications for the policy are insincere, then the policy

violates the Establishment Clause. See Edwards, 482 U.S. at 586-87, 107 S.Ct. at 2579; Lynch v. Donnelly,

465 U.S. 668, 690-91, 104 S.Ct. 1355, 1368-69, 79 L.Ed.2d 604 (1984) (O'Connor, J., concurring); Stone

v. Graham, 449 U.S. 39, 41, 101 S.Ct. 192, 193-94, 66 L.Ed.2d 199 (1980); Church of Scientology Flag

Serv. Org. v. City of Clearwater, 2 F.3d 1514, 1527 (11th Cir.1993). This is the case with the Duval County

policy. The dominant reason for its passage was to keep prayer in graduation ceremonies; the secular

justifications embraced by the majority are at best incidental effects of the policy.

The context surrounding the creation of the policy, the policy's terms, and the policy's title all suggest

its predominantly religious purpose. The chronology of events leading up to the graduation policy is

particularly telling. Until 1992 Duval County consistently opened and closed its schools' graduation

ceremonies with prayer. Responding to the Lee decision in 1992, the school administration directed that

future graduations could not include prayer. The administration then came under pressure from students and

the community to find a way to retain prayer in the ceremonies. Before the next school year's graduation

ceremonies, the administration created a new policy. That policy delegated decisions about the graduation

ceremonies' opening and closing to students while lifting the restriction on religious expression. Finding a

predominantly religious purpose behind the new policy in this context requires no speculation but only

common sense.

Aspects of the new policy itself betray the purpose of maximizing the chance that prayer would be

included in future graduation ceremonies without directly mimicking the school officials' actions proscribed

by Lee. The policy only involves the opening and closing segments of the graduation ceremonies-the portions
 8

See Brotherhood of R.R. Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 525-26, 67 S.Ct. 1387,

1390-91, 91 L.Ed. 1646 (1947); North Ala. Express, Inc. v. Interstate Commerce Comm'n, 971 F.2d 661,

663-64 (11th Cir.1992); Scarborough v. Office of Personnel Management, 723 F.2d 801, 811-16 (11th

Cir.1984); Rich v. Commissioner of Internal Revenue Serv., 250 F.2d 170, 173-75 (5th Cir.1957). 

 9

In sharp contrast, numerous legislators influence the choice of statutory language, and titles are often

chosen for political effect rather than to accurately summarize a bill's purpose or content. 

45

of the program historically dedicated to prayer. The policy also carefully restricts opening and closing

messages to two minutes, a short period amenable to a limited range of speech that includes prayer. Finally,

the policy dictates that decisions about the two minute opening and closing be made by majoritarian vote,

limiting the opportunity for innovation and variety.

Finally, there is the title of the memorandum announcing the new policy: Graduation Prayer. The

attorney who drafted the memorandum obviously understood the reason for the policy, but the majority of

this court chooses to ignore the evidence. Instead, it relies on the maxim that it is improper to use a statute's

title to inform the plain meaning of the statute's language. In all the cases cited by the majority, however, the

courts had to interpret the meaning of statutes in order to apply them correctly.8

 In this case, on the other

hand, the question is why the school administration created the policy.

Moreover, "Graduation Prayer" is not simply the name of a bill or a title chosen during the

codification process: it is title of the memorandum announcing and explaining the new policy to the

principals who would have to administer it. The Graduation Prayer memorandum was written at the behest

of the school Superintendent by the attorney who crafted the policy.9

 Certainly the title and text of the

memorandum could provide insight into the policy's instrumental goals.

The memorandum begins with two paragraphs devoted to prayers at graduation and the discord

following Lee. This analysis concludes with an explanation of the "key to the Lee v. Wiseman [sic] decision,"

and then, "[w]ith that premise in mind," segues into the provisions of the new policy. The policy's operational

terms carefully avoid mention of prayer, but the memorandum as a whole makes clear that the choice of a title

was far from incongruous.
 10William Shakespeare, Romeo and Juliet, act 2, sc. 2. 

 11The Supreme Court looked beyond a similarly "self-serving" statement of purpose in a Kentucky statute

in Stone, 449 U.S. at 41, 101 S.Ct. at 193-94. The statute required that the Ten Commandments be posted

in each classroom and noted the " 'secular application of the Ten Commandments' " in their " 'adoption as the

fundamental legal code of Western Civilization and the Common Law of the United States.' " Id. at 41, 101

S.Ct. at 193 (quoting Ky.Rev.Stat. Ann. § 158.178 (Banks Baldwin 1980)). Despite the elucidation of a

legitimate educational rationale in the statute, the Court held that "[t]he pre-eminent purpose for posting the

Ten Commandments on schoolroom walls is plainly religious in nature." Id. at 41, 101 S.Ct. at 194. 

46

The majority makes much of the "plain" and "facially neutral" language of the policy itself. Adopting

the terminology "opening or closing message" in the wake of Lee, however, appears as subterfuge, a "sham,"

see Edwards, 482 U.S. at 587, 107 S.Ct. at 2579, given the tradition of beginning and ending graduation with

prayer. In the words of Shakespeare: "What's in a name? That which we call a rose / By any other name

would smell as sweet."10

Unconvinced, the majority suggests three possible secular purposes for the policy: First, that the

policy "afford[s] graduating students an opportunity to direct their own graduation ceremony;" second, that

it permits free expression; and finally that the policy "allows students to solemnize graduation." None of

these possibilities withstands close scrutiny.

It is hard to accept that the Duval County school administration crafted the policy to empower

students, both because the policy does so in such a constrained manner and because there is scant evidence

that the administration was interested in promoting student leadership or autonomy as ends in themselves.

The policy does conclude with the statement, "[t]he purpose of these guidelines is to allow students to direct

their own graduation message without monitoring or review by school officials," but the majority places more

significance on the statement than it can bear.11 The statement expresses the "purpose" of the policy in terms

of what it does, rather than why it was created. And as mentioned above, the memorandum begins with two

paragraphs about school prayer and instructs the reader to consider the terms of the policy with that discussion

in mind. The sentence about student direction, without any accompanying elaboration, appears "tacked on"

to the end of the memorandum.
 12I do not mean to suggest that the school administration was hostile to student involvement in planning

graduation ceremonies. Historically the student role in planning graduation varied from school to school.

Student leadership was quite strong at some schools, but school officials always had ultimate authority over

the graduation program. There simply is no evidence that interest in, or pressure for, student autonomy was

on the rise in 1992 and 1993. 

 13See R 1st Supp. Exs. (Reynolds Dep. at 21; Epting Dep. at 26-27; Lockett Dep. at 11). 

47

This secular purpose inserted in the text might still be credible if there were any other indication that

the administration had been considering the benefits of expanded student speech and self-governance before

the intense interest in graduation prayer arose following Lee. Although the record is replete with evidence

that students and community members pressed school officials to retain prayer in the graduation ceremonies,

however, there is no evidence that officials were promoting, or that students were demanding, a larger role

planning the graduation program and more student speech generally.12

Finally, the Duval County policy enhances student control over the graduation ceremony in only the

most limited sense. The senior class cannot choose to have a group deliver a message, and it cannot select

a non-student speaker. The speaker's options are limited, because the policy restricts the message to two

minutes at the beginning or end of the ceremony. Interestingly, the policy does not ensure that other student

presentations during the graduation will be uncensored. In fact, principals often review valedictory speeches

in Duval County.13 Although the school administration can promote student expression incrementally, the

graduation policy's stringent constraints and the choice to relinquish to students only the planning for the

opening and closing suggest that student autonomy and free expression were not the policy's true purposes.

The majority also suggests that solemnizing graduation ceremonies may have been the purpose

behind the Duval County policy, but the policy actually reduces the potential for solemnization. Until the

policy went into effect, an opening and closing prayer at every graduation ceremony served a solemnizing

function. Now, however, the opening and closing are optional, and for each graduation, students have to

choose anew whether to even have a message. Moreover, the majority is quick to emphasize that the policy

leaves the content of the opening and closing messages, should the senior class decide to have them,
 14Uninfluenced by the terms of the policy or the expectations of their teachers and colleagues, student

speakers could take the opportunity to criticize the principal, teachers, or cliquish classmates. Even an

innocent but unfocused or poorly delivered speech would not solemnize the event. A proselytizing prayer

would prove divisive rather than solemnizing as well. See Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806,

816 (5th Cir.1999), cert. granted in part, --- U.S. ----, 120 S.Ct. 494, 145 L.Ed.2d 381 (1999) ("[W]e cannot

fathom how permitting students to deliver sectarian and proselytizing prayers can possibly be interpreted as

furthering a solemnizing effect."). The majority cites three cases for the proposition that prayer can serve a

legitimate solemnizing function, but all three recognized that they were considering only non-sectarian,

non-proselytizing speech. See Chaudhuri v. Tennessee, 130 F.3d 232, 236-37 (6th Cir.1997), cert. denied,

523 U.S. 1024, 118 S.Ct. 1308, 140 L.Ed.2d 473 (1998); Tanford v. Brand, 104 F.3d 982, 983, 986 (7th

Cir.1997); Jones, 977 F.2d at 964-66. The majority also cites Justice O'Connor's concurrence in Lynch for

the more general proposition that religious expression can solemnize public occasions, but Justice O'Connor's

statement is qualified. "[G]overnment acknowledgments of religion," she writes, can "serve ... the legitimate

secular purpose[ ] of solemnizing public occasions," but her examples are all practices that "are not

understood as conveying government approval of particular religious beliefs." Lynch, 465 U.S. at 693, 104

S.Ct. at 1369-70. 

48

unfettered. If the choice of messages is as wide-ranging as the majority would have us believe, however,

many of the possibilities would serve no solemnizing function.14 With its new policy, Duval County moved

from having a solemnizing opening and closing message at every graduation ceremony to the possibility of

having, if not a prayer, either no message or a message that undermines the solemnity of the occasion.

Moreover, solemnization is not a valid purpose for a policy purportedly giving students unfettered

control over the content of a speech. As already noted, prayer is one of a limited subset of messages with a

solemnizing effect. To the extent the school administration wanted and expected students to opt for

solemnizing messages, it is likely the administration had prayer in mind. This is an illegitimate purpose under

Lemon; public officials cannot encourage prayer, because even if prayer has secondary secular benefits, the

promotion of prayer is first and foremost the promotion of religion. See ACLU of N.J. v. Black Horse Pike

Reg'l Bd. of Educ., 84 F.3d 1471, 1485 (3d Cir.1996); Harris v. Joint Sch. Dist. No. 241, 41 F.3d 447, 458

(9th Cir.1994), vacated with directions to dismiss as moot, 515 U.S. 1154, 115 S.Ct. 2604, 132 L.Ed.2d 849

(1995); Jager v. Douglas County Sch. Dist., 862 F.2d 824, 829-30 (11th Cir.1989).

Finally, by the majority's own logic, solemnization should not be considered as a possible purpose

for the graduation policy. The majority chides Appellants for looking beyond the text of the Graduation

Prayer memorandum, but solemnization appears nowhere in the policy's terms or the memorandum's prefatory
49

paragraphs. Hypothetical justifications for a state law or action are not enough to satisfy the Lemon test;

courts must look for the actual purpose. See Wallace, 472 U.S. at 56, 105 S.Ct. at 2489. In this case, that

search leads only to the promotion of religion.

2. The Primary Effect of the Duval County Policy is to Advance Religion

A governmental policy fails the second prong of the Lemon analysis if it has the primary effect of

endorsing religion. See County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 592-94,

109 S.Ct. 3086, 3100-01, 106 L.Ed.2d 472 (1989). Endorsement occurs if a reasonable observer would

believe the policy conveys a message favoring (or disfavoring) religion. See id., 492 U.S. at 597, 109 S.Ct.

at 3103 (Blackmun & Stevens, JJ.); id. at 691-92, 109 S.Ct. at 3121 (O'Connor, Brennan, & Stevens, JJ.,

concurring); School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 390, 105 S.Ct. 3216, 3226, 87 L.Ed.2d 267

(1985), amended on other grounds, Agostini v. Felton, 521 U.S. 203, 236, 117 S.Ct. 1997, 2016, 138 L.Ed.2d

391 (1997); Lynch, 465 U.S. at 691-92, 104 S.Ct. at 1369 (O'Connor, J., concurring). Such a conclusion is

possible either if a policy tangibly benefits a religious cause more than any other, or if the observer would

believe that a desire to promote religion led to the policy.

The majority discounts the possibility that a facially neutral policy could have the primary effect of

advancing religion. One must look beyond the text of a policy, however, to determine its likely effects. The

analysis "requires courts to examine the history, language, and administration of a particular statute to

determine whether it operates as an endorsement of religion." Wallace, 472 U.S. at 74, 105 S.Ct. at 2499

(O'Connor, J., concurring in the judgment); see also Allegheny, 492 U.S. at 629, 109 S.Ct. at 3120

(O'Connor, Brennan, & Stevens, JJ., concurring in part and concurring in the judgment). This analysis reveals

that both the policy itself, viewed in terms of the events leading up to its creation, and the prayers that result

from it convey a message of religious endorsement.

Seen in context, the Duval County policy betrays a preference for religious expression despite the

seeming neutrality of its terms. It is worth repeating a few details from the analysis of the policy's purpose.
 15See R 1st Supp. Exs. (Stone Dep. at 16; Johnson Dep. at 8; Hite Dep. at 18-19). 

 16See R 1st Supp. Exs. (Lockett Dep. at 11; Paulk Dep. at 20). 

 17Plaintiffs submitted copies of 45 graduation programs to the district court. Almost all use the terms

"invocation" and "benediction," and most list the student speaker as the class chaplain. See R2 (Memorandum

of Law in Support of Plaintiffs' Motion for Preliminary Injunction, Exs. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13,

14, 15, 16, 17, 18, 19, 22, 25, 26, 27, 28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 43, 44, 45). 

50

The chronology of events leading to the policy and the public pressure to keep prayer as part of the high

school graduation ceremonies may not be conclusive evidence, but they inform the reasonable observer's

understanding of the policy's purpose. The title of the policy itself, the bulk of the memorandum announcing

it, and the fact that the policy only applies to the portion of the graduation ceremony traditionally reserved

for prayer are even more telling. Together, these details have the effect of communicating to the reasonable

observer that the Duval County authorities favored the inclusion of prayer in future graduation ceremonies.

The interpretation of the school principals reinforces this conclusion. The principals were the first

recipients of the Graduation Prayer memorandum, the policy's first "reasonable observers." The principals

were responsible for implementing the new policy; how they did so reveals their understanding of its

meaning and purpose. In 1993 many principals allowed direct votes on whether to have a prayer during the

graduation ceremony.15 In other schools, officials directly asked the senior class chaplain to deliver a message

during graduation.16 Since 1993 it has been common for the official graduation programs to list the student

speaker as Chaplain, and to use the religious terms "invocation" and "benediction" instead of "opening" and

"closing message."17 These programs are printed before the graduation ceremony without the benefit of

reviewing the student's speech.

Beyond an observer's conclusions about the school administration's motives lies the policy's tangible

result: it leads to more prayer at public events. Before the policy took effect, the Superintendent had

responded to Lee by proscribing the traditional opening and closing graduation prayers. The new policy

provided a mechanism to reestablish prayer in those portions of the ceremony. In the policy's first year, ten

out of seventeen schools opted for some sort of prayer, meaning that it led to more prayer than all other forms
 18The majority argues that the student speaker's speech is private, and thus cannot violate Lemon 's second

prong. I believe the opening and closing messages can be attributed to the State, but the disagreement is not

dispositive here. The Fifth Circuit addressed this point cogently in Santa Fe, holding that, "The mere fact

that prayers are student-led or student-initiated, or both, does not automatically ensure that the prayers do not

transgress Lemon 's second prong.... [W]hen the school 'permits' sectarian and proselytizing prayers ... such

'permission' undoubtedly conveys a message not only that the government endorses religion, but that it

endorses a particular form of religion." 168 F.3d at 817-18. In a different context, the Seventh Circuit has

also held that private speech can violate Lemon 's primary effects prong if private expression is associated

with a government-controlled forum. See Freedom From Religion Found. v. City of Marshfield, 203 F.3d

487 (7th Cir.2000) (statue of Jesus on private land deemed part of surrounding public park for Establishment

Clause purposes). The next section, focusing on the public forum doctrine, discusses this issue more

thoroughly.

In support of its conclusion, the majority cites a number of Supreme Court cases for the

proposition that "facially neutral programs [permitting] individuals to support religion through their

own private choices" are constitutional. Those cases all involve the extension of a public benefit to

families with children in private schools—factual scenarios very different from Duval's graduation

policy. Moreover, the programs at issue in those cases were constitutional because they did not

influence families' choice to send their children to religious schools. See Agostini v. Felton, 521 U.S.

203, 230-32, 117 S.Ct. 1997, 2014, 138 L.Ed.2d 391 (1997); Witters v. Washington Dep't of Servs.

for the Blind, 474 U.S. 481, 488, 106 S.Ct. 748, 752, 88 L.Ed.2d 846 (1986); Mueller v. Allen, 463

U.S. 388, 398-99, 103 S.Ct. 3062, 3068-69, 77 L.Ed.2d 721 (1983). This was because the programs

distributed their benefits neutrally and comprehensively. A related point is that every family was

able to make its own choice about its children's schooling under the government programs. Both of

these attributes are missing in our case. The constraints of the Duval County policy influence the

decisions about the graduation message, pushing students to opt for prayer. Furthermore, there is

only one graduation ceremony. "Each student is not allowed to have the graduation she wants.

Instead, the decision is made by a majority of the senior class and imposed on a minority." Harris,

41 F.3d at 456. 

51

of speech combined. And the inherent effect of prayer is to advance the religious beliefs of the speaker.18

See Black Horse Pike, 84 F.3d at 1487; Harris, 41 F.3d at 458. The fact that prayers delivered as a result

of the policy occur at a stage of the graduation ceremony carrying the strongest imprint of the state further

exacerbates this impermissible effect.

C. The Public Forum Doctrine

Without deciding whether Duval County graduation ceremonies are public fora, the majority suggests

that the public forum doctrine supports the constitutionality of the policy at issue in this case. I reject the

analogy. According to the majority, the government does not control a private speaker's speech in a public

forum, and private speech cannot convey a message of state endorsement. This may be an accurate statement
 19In fact, five Justices have demonstrated an openness to the possibility that private speech in a public

forum could violate the Establishment Clause. See Capitol Square Review & Advisory Bd. v. Pinette, 515

U.S. 753, 772, 115 S.Ct. 2440, 2451, 132 L.Ed.2d 650 (1995) (O'Connor, Souter, & Breyer, JJ., concurring

in result); id. at 807, 115 S.Ct. at 2469. (Stevens, J., dissenting); id. at 817-18, 115 S.Ct. at 2474-75

(Ginsburg, J., dissenting). Only a plurality of the Court, in an opinion written by Justice Scalia, took the

opposite view. See id. at 770, 115 S.Ct. at 2450. Even the Scalia plurality acknowledged that the government

could unconstitutionally manipulate an ostensibly public forum to favor religious speech. See id. at 766, 115

S.Ct. at 2449.

The Seventh Circuit reached this same conclusion, determining that a majority of Justices

had rejected a "per se" approach to Establishment Clause claims involving private speech in a public

forum. See Freedom From Religion Found. The Seventh Circuit went on to hold that a city's sale

of land with a religious statue violated the Establishment Clause even under the Scalia plurality's

approach because it in effect granted preferential access to a public forum—the park surrounding the

statue. See id. at ----. 

 20In Duval County for example, school officials often review the valedictorian's speech, and they plan or

approve the entire graduation program. See R 1st Supp. Exs. (Reynolds Dep. at 21; Epting Dep. at 26-27;

Lockett Dep. at 11) (review of valedictory speeches); id. (Epting Dep. at 28-29; Reynolds Dep. at 39; Stone

Dep. at 9-10). The graduation policy allows these practices to continue. 

52

of the law,19 but it is of little use in this case, because Duval County's graduation ceremonies have none of

the public forum's characteristics. In Lee v. Weisman, the Supreme Court noted that school authorities

maintain close control over the program and speeches at graduation ceremonies.20 505 U.S. 577, 597, 112

S.Ct. 2649, 2660, 120 L.Ed.2d 467 (1992). This assumption is understandable, because graduation

ceremonies have never been considered public fora. See ACLU of N.J. v. Black Horse Pike Reg'l Bd. of

Educ., 84 F.3d 1471, 1478 (3d Cir.1996); Jones v. Clear Creek Indep. Sch. Dist., 930 F.2d 416, 418 (5th

Cir.1991), vacated on other grounds, 505 U.S. 1215, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992); Doe v.

Madison Sch. Dist. No. 321, 147 F.3d 832, 838 (9th Cir.1998), vacated as moot, 177 F.3d 789 (9th Cir.1999)

(en banc).

Public fora are places permitting broad access for the expression of diverse views. See Cornelius v.

NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 3449, 87 L.Ed.2d 567 (1985);

Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 954-55, 74 L.Ed.2d 794

(1983). See, e.g., Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 757-58, 115 S.Ct. 2440,

2444, 132 L.Ed.2d 650 (1995). The "marketplace of ideas" governs in public fora, which serve an important
 21Furthermore, none involved speech at a government-sponsored and controlled event. The possibility that

someone will conclude that the state is endorsing the content of a speech is much lower when the government

allows an organization to use a classroom after school hours than when the government organizes a

presentation and invites an audience. Certainly students could organize a private prayer meeting on school

grounds before the official graduation ceremony, but that is not the issue here. 

53

role both in facilitating the exchange of viewpoints and in providing a safe venue for new and marginalized

ideas.

Duval County certainly did not create a public forum by allowing a single student to deliver an

uncensored opening or closing message. An essential characteristic of public fora is that they permit

extensive public participation, or at least general access to the relevant class of potential speakers. See

Arkansas Educ. Television Comm'n v. Forbes, 523 U.S. 666, 118 S.Ct. 1633, 1641-43, 140 L.Ed.2d 875

(1998); Cornelius, 473 U.S. at 802-04, 105 S.Ct. at 3449-50; Perry Educ. Ass'n, 460 U.S. at 47, 103 S.Ct.

at 956; Greer v. Spock, 424 U.S. 828, 838 n. 10, 96 S.Ct. 1211, 1217 n. 10, 47 L.Ed.2d 505 (1976). The

majority cites a number of cases permitting religious groups to use school facilities or funds, or public parks,

but their holdings depended on the fact that use of the fora by a "broad spectrum" of groups eliminated any

potential message of endorsement or preference for religion.21 See Rosenberger v. Rector & Visitors of the

Univ. of Va., 515 U.S. 819, 839-42, 115 S.Ct. 2510, 2521-23, 132 L.Ed.2d 700 (1995); Capitol Square, 515

U.S. at 762-63, 115 S.Ct. at 2447; Board of Educ. of Westside Community Schools v. Mergens, 496 U.S. 226,

252, 110 S.Ct. 2356, 2373, 110 L.Ed.2d 191 (1990) (O'Connor, J., plurality opinion); Widmar v. Vincent,

454 U.S. 263, 274, 102 S.Ct. 269, 277, 70 L.Ed.2d 440 (1981).

Duval County, however, has implemented no "open microphone" policy at its graduation ceremonies.

The graduation policy permits only one speaker at the opening and closing, so there can be no diversity of

views communicated in the messages. Selecting speakers through a majority vote also runs counter to the

notion of "general access" necessary for a public forum and limits the possibility that the resulting speech will
 22It is true that in a public forum with open access and diverse expression, it would be difficult for the

government to manipulate speech and there is little danger that an audience will believe the speech carries

the government's imprimatur. This insight from public forum law, however, suggests a corollary that

highlights the graduation policy's problems: at a non-public forum that is highly regulated by the

government, there is both an elevated danger of government control over speech and a significant risk that

the audience will associate the speech with the government. 

 23Federal Rule of Civil Procedure 65(a)(2) provides:

(2) Consolidation of Hearing With Trial on Merits. Before or after the commencement of

the hearing of an application for a preliminary injunction, the court may order the trial of the

action on the merits to be advanced and consolidated with the hearing of the application [for

a preliminary injunction]. Even when this consolidation is not ordered, any evidence

received upon an application for a preliminary injunction which would be admissible upon

the trial on the merits becomes part of the record on the trial and need not be repeated upon

the trial. This subdivision (a)(2) shall be so construed and applied as to save to the parties

any right they may have to trial by jury. 

54

offer a fresh perspective to the audience. When the student speaker delivers the opening or closing message

at a Duval County graduation, she is largely preaching to the converted.22

D. Appellants' As-Applied Claims

During the hearing for a preliminary injunction, the district court raised the possibility of advancing

the trial on the merits pursuant to Federal Rule of Civil Procedure 65(a)(2).23 In an order dated the same day,

the court did so, consolidating the trial on the merits with the preliminary injunction hearing and entering final

judgment for the Duval County School Board. The majority claims Appellants waived their as-applied claims

by consenting to the consolidation. This interpretation of Rule 65(a)(2), however, is without support in the

case law or the record from the district court.

If a party consents to a Rule 65(a)(2) consolidation, it cannot later complain about the

consequences-the limited time to prepare and the curtailed opportunity for discovery. See Fenstermacher v.

Philadelphia Nat'l Bank, 493 F.2d 333, 337 (3d Cir.1974). But the majority cites no case for the proposition

that advancing the trial on the merits eliminates claims that would have benefitted from thorough discovery.

Instead, a court enters final judgment on all claims after a Rule 65(a)(2) consolidation based on whatever

limited evidence is before it at that time.
 24See R1, Tab 1 (Verified Complaint WW 24, 30, & at p. 14) (making factual allegations about graduation

ceremonies between 1993 and 1997, raising an as-applied Establishment Clause claim, and praying for

damages on behalf of students who graduated after 1993). 

 25The dialogue went as follows:

THE COURT: All right. The next question is why shouldn't I, under Rule 65(a)(2) of the

Federal Rules of Civil Procedure, order that the consideration of this case on its merits be

advanced to this stage procedurally and decide the case and send it on to the Court of

Appeals?

MR. SHEPPARD: I think the Court certainly has that discretion. I think that it may

be—well, I've said what I said.

THE COURT: Well, you have a damage claim. I understand that.

MR. SHEPPARD: Yes, sir. We would want to take some discovery with regard to that,

would be my view.

See R1, Tab 30, at 29 (Transcript of Hearing on Plaintiffs' Motion for Preliminary Injunction). 

 26R1, Tab 27 at 3-4. 

 27Id. at 2. 

55

Nothing in the district court order advancing the trial on the merits or in transcript of the preliminary

injunction hearing suggests that the judge or the parties intended otherwise. No one disputes that in their

complaint the Appellants pleaded facts pertaining to graduation ceremonies between 1993 and 1997 and

included an as-applied claim.24 Immediately after broaching the possibility of a Rule 65(a)(2) consolidation

at the preliminary injunction hearing, the district judge acknowledged that Appellants had a claim for

damages.25 At no time during the hearing did the judge suggest he was dismissing the as-applied claims as

waived.

In its order advancing the trial on the merits, the district court directed the Clerk to enter final

judgment for the Defendants without distinguishing between the facial and as-applied claims.26 The order

made scant reference to the facts of the case, and the assertion in the order that Appellants' counsel "stipulated

that the operative facts remain[ed] unchanged"27 since 1994 is unsupported by the record. In fact, during the

preliminary injunction hearing the Appellants' counsel made substantial reference to the evidentiary exhibits
 28See R1, Tab 30, at 14-16, 29 (Transcript of Hearing on Plaintiffs' Motion for Preliminary Injunction).

 29See R2 (Memorandum of Law in Support of Plaintiffs' Motion for Preliminary Injunction, with 58

exhibits); R1, Tab 12 (Adler Aff.). 

 30R1, Tab 26 (Order on Various Motions). 

 31See R2 (Memorandum of Law in Support of Plaintiffs' Motion for Preliminary Injunction, Exs. 4, 5, &

13 (religious expression printed in official program)); 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17,

18, 19, 22, 25, 26, 27, 28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 43, 44, 45 (reference to "invocation,"

"benediction," or "chaplain" in the program); 30 (minister delivered prayer). 

56

already filed with the court and expressed the need for further discovery.28 The order focused on whether the

law had changed since 1994, when the same district judge upheld the constitutionality of the graduation

policy in an earlier lawsuit, see Adler v. Duval County Sch. Bd., 851 F.Supp. 446 (M.D.Fla.1994), and the

court concluded that it had not. Given its interpretation of Establishment Clause and Free Speech

jurisprudence, the details of the graduation ceremonies in Duval County seemed unimportant.

Appellants did not waive their as-applied challenge to the graduation policy; the district court entered

judgment for the Appellees on that claim. This may or may not have been the correct disposition, because

the district court did not have a thorough record of the policy's application.

There is a difference between having a thin record, however, and having no evidence at all.

Appellants filed dozens of graduation programs from the years 1994-1998 and the affidavit of Karen Adler

in support of their motion for a preliminary injunction in this case,29 and the district court also took judicial

notice of the record from the earlier case concerning the Duval County policy.30 The record includes the

transcript of sectarian prayers delivered at graduation ceremonies as well as official programs that contained

printed prayers, referred to the "student message" as an "invocation," and indicated that ministers have

continued to deliver prayers at some Duval County graduations long after Lee.31 In fact, Appellants maintain

that, although they would welcome the opportunity for more discovery, the record supports a reversal in their

favor on all claims.
 32Nothing in this dissent suggests that all religious expression at a public high school graduation would

run afoul of the Establishment Clause. Graduation ceremonies are state-sponsored events controlled by

school officials, however, and to disconnect (rather than just distance) themselves from any religious views

expressed by speakers, school officials must be able to articulate a neutral criterion for selecting speakers

unrelated to the potentially religious content of their speech. This would ensure both that school officials do

not use their influence over the graduation program to promote religious beliefs and that the audience does

not view religious views expressed by speakers as state sanctioned. Thus, the valedictorian could thank God

or share the role faith played in her life. Furthermore, religious expression that is not part of the graduation

program raises no Establishment Clause concerns. Audience members could pray quietly in their seats, and

students could organize a prayer service immediately before or after the graduation ceremony. 

57

The procedural posture of this case is awkward at best. It is understandable that both the district court

and this court would want to focus, without complications, on the important question of the graduation

policy's facial constitutionality. It is not right, however, for the as-applied claim of Duval County students

to disappear without a trace.

Conclusion

Duval County has not adopted a blanket approach of neutrality toward religion or eliminated school

sponsorship and control over graduation ceremonies. Rather, the policy at issue in this case evinces a desire

to maintain the graduation ceremony's traditional invocation and benediction in the wake of Lee. The policy

does not explicitly mention religion and does not require any speech at all, but its terms nonetheless promote

religious expression. To be more specific, the policy encourages the delivery of a prayer during a stage of

the graduation ceremony when the content seems most "official" and when officials' control over audience

participation is at its highest.

This violates the Constitution. The Establishment Clause bars the government from encouraging

religious expression, either overtly or subtly, and from conveying a message, intentional or not, of

endorsement for religious speech.32 Moreover, the policy utilizes the vote to further its purpose, and in so

doing corrupts the most cherished of democracy's tools. For the government cannot delegate the authority

to do what it could not do itself, and constitutional rights are not subject to the whims of an electoral majority.

For the foregoing reasons, I dissent from the majority's opinion.