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. e du/thir dc ir c uit_1996/182UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 94-5233

THE AMERICAN CIVIL LIBERTIES UNION OF NEW J ERSEY, ON BEHALF OF ITS MEMBERS; AND EDWARD RO SS

v.

BLACK HORSE PIKE REGIONAL BOARD OF EDUCAT ION; HIGHLAND REGIONAL HIGH SCHOOL; FRANK PALAT UCCI,

PRINCIPAL IN HIS OFFICIAL AND INDIVIDUAL CAP ACITIES

Appell ants

On Appeal From the United States District Court for the District of New Jersey (D.C. Civ. No. 93-cv-02651)

Argued: January 23, 1995

Before: MANSMANN, HUTCHINSON and McKEE, Circu it Judges.

Reargued In Banc: October 25, 1995

Before: SLOVITER, Chief Judge, BECKER, STAP LETON, MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, McKEE, and SAROKIN, Circuit Judges.

(Filed May 24, 1996)

JAMES KATZ, ESQUIRE (ARGUED) Tomar, Simonoff, Adourian & O'Brien

41 South Haddon Avenue Haddonfield, NJ 08033 Counsel for Appellees

JOHN D. WADE, ESQUIRE (ARGUED) Ferreri & Wade, P.C. 1250 Chews Landing Road Laurel Springs, NJ 08021 Counsel for AppellantsOPINION OF THE COURT

McKEE, Circuit Judge. We are asked to decide whether a policy adopte d by the Black Horse Pike Regional Board of Education that allows a vote of the senior class to determine if prayer will be include d in high school graduation ceremonies is constitutional. Fo r the reasons that follow we hold that this policy is inconsisten t with the

First Amendment of the United States Constitution. Accordingly, we will affirm, but modify, the permanent injunctio n issued by

the district court.

I. FACTUAL BACKGROUND The Black Horse Pike Regional Board of Educati on (the "School Board" or "Board") has had a longstanding t radition of including a nonsectarian invocation and benediction in high school graduation ceremonies. These prayers have h istorically been delivered by local clergy on a rotating basis in an attempt to afford different denominations the opportunity t o be represented. In May of 1993, the School Board decided to re consider this policy because of the Supreme Court's decision in L ee v. Weisman, 505 U.S. 577 (1992), wherein the Court invalidated a public school's practice of including prayer in graduation ceremonies. As part of the Board's reexamination, the Superinte ndent of Schools tendered a policy entitled "Religion at Gra duation Exercises" IKFD ("Version A") for the Board's consi deration. Version A prohibited all prayer at graduation cerem onies. The Board rejected that policy and directed the school administration to prepare a second version that would parallel the holding of Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 96 3, 972 (5th Cir. 1992). The court in Jones had upheld a public school policy

that allowed students to determine for themselves w hether or not a prayer would be delivered at their graduation. Two policies were presented to the Board at it s May 23, 1993 meeting. One version allowed graduating students t o decide whether prayer would be included in the graduation ceremony as well as the nature of any such prayer ("Version D") . The other proposal would not have allowed "prayer" but would have allowed a "moment of reflection, during which pupils and pare nts [could] be asked to think silently about what has been and wha t is to come for each graduate." App. at 144. A group of stude nts who had previously asked to address the Board on this issue attended the meeting and spoke in favor of Version D. At the co nclusion of the meeting, the Board unanimously adopted Version D. That policy, as finally adopted, allowed the senior clas s officers to conduct a poll of the graduating class to determine whether seniors wanted "prayer, a moment of reflection, or nothing at all" to be included in their graduation ceremony. App. at 180. The policy was entitled, "Religion at Graduation Ex ercises," and the text began as follows:After reading recent decisions of the United

States Supreme Court and interp retations of those decisions, the Board of E ducation concludes the long standing pra ctice of conducting invocation and bened iction prayer at graduation ceremonies and at other school functions is proper and legal u nder the following conditions:

1. The Board of Education, ad ministration

and staff of the schools shall not endorse, organize or in any way promote prayer at

school functions.

2. In the spirit of protectedspeech, the pupils in attendance must choos e to have prayer conducted. Such prayer m ust be performed by a student voluntee r and may not be conducted by a member of the clergy or

staff.

Policy IKFD, Version D, App. at 180. The policy also allowed the students to decide how they would determine what form of prayer, if any, would be given at graduation, "so long as the process [was] conducted by duly elected class officers and the survey . . . provide s pupils with an opportunity to choose prayer, a moment of reflec tion, or nothing at all." Version D of Policy IKFD further required that printed programs for the graduation include a discl aimer explaining that any presentation that may be given at

commencement did not reflect the views of the Schoo l Board, the School District, administrators, staff, or other st udents. On June 3, 1993, Principal Frank Palatucci of the Highland Regional High School explained the Board's decision to the students during the morning announcements over the school public address system. After he explained the policy, he introduced the senior class president who explained that a poll wo uld be taken of the senior class, and how the balloting would be conducted. The vote was taken the next day and produced the fo llowing results: 128 students voted for prayer, 120 for ref lection/moment of silence, and 20 voted to have neither. Students then volunteered to deliver the graduation prayer, and t he senior class officers selected the senior class recording secretary from among those volunteers. On June 9, Edward Ross, a member of the senior class, approached Principal Palatucci and requested that a representative from the ACLU also be permitted to s peak at the graduation to discuss safe sex and condom distribut ion. Principal Palatucci denied Ross' request explaining that the time constraints of the ceremony would not permit a keyn ote speaker, and that the topic requested was not generally one discussed at graduation ceremonies.

II. PROCEDURAL HISTORYOn June 18, 1993, the ACLU and Edward Ross fil ed a Complaint

in the District Court for the District of New Jerse y, in which they asked the court to enjoin any student-led pray er at graduation. The Complaint alleged that the propose d prayer

violated the First Amendment of the United States C onstitution and Article I, Paragraph 4 of the New Jersey Consti tution. By Order entered June 24, 1993, the district c ourt denied plaintiffs' request for a preliminary injunction. The court concluded that the proposed prayer was appropriate because it was given under circumstances that distinguished it fro m the prohibited prayer in Lee v. Weisman. The following day the plaintiffs filed an emergency appeal to this court where a twojudge panel reversed the district court and enteredan order that stated in part: [T]he graduation ceremony is a schoo l sponsored event; the fact that the school board has chosen to delegate the decision regarding one segment of the ceremony to the members of the graduating class does not alter that sponsorship, does not diminish the effect of a prayer on students who do not share the same or any religious perspecti ve, and does not serve to distinguish, in any material way, the facts of this case from the facts of Lee v. Weisman, U.S. , 112 S. Ct. 2649 (1992);

. . .

Now, therefore, . . . appellees, the ir agents and employees, and all those actin g in concert with them are hereby enjoined fro m conducting a school sponsored graduation ceremony that includes a prayer whether i t be an invocation, a benediction or a prayer in any other form. App. at 199-200. Thereafter, the School Board filed a motion in this court to vacate the preliminary injunction. That motion was denied. Additional motions were subsequently filed both in this court and in the United States Supreme Court. Finally, on Ma rch 29, 1994, the district court entered a final order, consisten t with the aforementioned order of this court, reversing the c ourt's previous denial of the preliminary injunction. The district court permanently enjoined the School Board from "c onducting a school-sponsored graduation ceremony that include[d ] prayer, whether it be an invocation, a benediction or a pra yer in any other form." App. at 210. On April 28, 1994, the School Board filed this appeal. The matter is now before this c ourt in banc.

III. OUR SCOPE OF REVIEW W e review a district court's decision to grant or deny a permanent injunction under an abuse of discretion s tandard. International Union, UAW v. Mack Trucks, Inc., 820 F.2d 91, 94(3d Cir. 1987). "An abuse of discretion exists whe re the

district court's decision rests upon a clearly erro neous finding of fact, an errant conclusion of law, or an imprope r application

of law to fact." Id. at 95. In this case, the district court did not rende r a decision on the merits as to whether plaintiffs were entitle d to a permanent injunction. Instead, the district court granted a permanent injunction solely because it believed it was bound to do so by the law of the case in light of the emerge ncy ruling of a two-judge panel of this court granting plaintiffs ' motion for a preliminary injunction. As the district court expr essly stated

in its order: Additional hearings or new evidence might have put a different cast on the issues, but as the record has not been augmented sinc e the motion for a preliminary injunction, we feel constrained to enter a final judgmen t in

accordance with the Third Circuit's order of June 25, 1993. We make it clear that the opinion of the Court remains that express ed in the oral opinion of June 24, 1993. However, due regard for our "hierarchical federal judicial system," particularly wh ere the reviewing panel has had the same reco rd as the Court, requires us to respect the findings of the Third Circuit. Order of March 29, 1994, at 3 (citations omitted). The district court erred in concluding that it was so bound. The two-judge panel assessed the merits on an emerg ency basis under the standard for the granting of a preliminar y injunction -- a standard which differs from the standard for g ranting a permanent injunction. Its decision to grant a prel iminary injunction was based on an assessment of the likeli hood that plaintiffs would succeed on the merits, and neither constitutes nor substitutes for an actual finding that plaintif fs havesucceeded on the merits and are entitled to permanent relief. Indeed, there is no evidence in the record that the district court ever applied the legal standard for granting a permanentinjunction or otherwise based its decision upon an assessment of

the merits of the case. It is well-established, however, that "if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason." Helve ring v. Gowran, 302 U.S. 238, 245 (1937); see also Erie Telecommunications, Inc. v. City of Erie, 853 F.2d 1084, 1089 n.10 (3d Cir. 1988). We will therefore proceed to address the merits of this matter to determine whether, despite the district court's error, the permanent injunction was properl y issued on some other ground.

IV. DISCUSSION A. The Free Speech Rights of Students The Board relies upon the student referendum i n an attempt to define the instant controversy as one impacting upon thestudents' right of free speech as opposed to a disp ute over the

constitutionality of prayer at a public high school graduation. Version D of Policy IKFD does state: "[i]n the spir it of protected free speech, the pupils in attendance mus t choose to have prayer conducted," App. at 180. However, Ver sion D allowed the 128 seniors who wanted verbal prayer at their g raduation to impose their will upon 140 of their fellow classmat es who did not. The Board's position would have us recognize a right in that plurality to do so, and ignore the right of ot hers to worship in a different manner, or in no manner at a ll. This we

can not do because "the individual freedom of consc ience protected by the First Amendment embraces the right to select any religious faith or none at all." Wallace v. Jaffre e, 472 U.S. 38, 52 (1985). Therefore, the Board's emphasis on voting majorities is misplaced. "While in some societies the wishes of the majority might prevail, the Establishment Claus e of the First Amendment is addressed to this contingency and reje cts the balance urged upon us." Lee, 505 U.S. at 596. Just as the right to speak and the right to refrain from speaking are compl ementary components of a broader concept of individual freedom of mind, so also the in dividual's

freedom to choose his own creedis the counterpart of his right to ref rain from accepting the creed established by the majority.

Wallace, 472 U.S. at 52. An impermissible practice can not be transform ed into a constitutionally acceptable one by putting a democr atic process to an improper use. There should be no question "t hat the electorate as a whole, whether by referendum or oth erwise, could not order [governmental] action violative of the [C onstitution], and the [government] may not avoid the strictures o f [the Constitution] by deferring to the wishes or objecti ons of some fraction of the body politic." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 448 (1985) (citation o mitted). A policy that does this can not be legitimized by arg uing that it promotes the free speech of the majority. The First Amendment protec ts speech and religion by quite different mec hanisms. Speech is protected by insuring its full expression . . . . The method f or protecting freedom of worship and freedom of conscience in religious matters is quite t he reverse. .

. . The Free Exercise Clause em braces a

freedom of conscience and worsh ip that has close parallels in the speech p rovisions of the First Amendment, but the Es tablishment Clause is a specific prohibitio n on forms of state intervention in religious affairs with no precise counterpart in the s peech provisions.Lee, 505 U.S. at 591.

Although it is necessary to reconcile one's ow n preferences to the results of a referendum when choosing one's representatives or voting upon legislative matters, the First Amendment does not allow one's religious preference s to be compromised in this manner. The very purpose of a Bill of R ights was to withdraw certain subjects from the vicissitudes of political contr oversy, to place them beyond the reach of majorities and

officials and to establish them as legal principles to be applied by the courts. One's . . . fundamental rights may no t be submitted to vote; they depend on the out come of no

elections.

Board of Educ. v. Barnette, 319 U.S. 624, 638 (1943). High school graduation ceremonies have not bee n regarded, either by law or tradition, as public fora where a multiplicity of views on any given topic, secular or religious, can be expressed and exchanged. School officials at Highl and did not allow a representative of the ACLU to speak about " safe sex" and condom distribution at graduation, as requested by one of the graduating seniors. The question was not submittedto referendum of the graduating seniors because the principal und erstandably determined that the proposed topic was not suitable for graduation. We do not suggest that the school's re sponse to this request was inappropriate. However, we do note tha t the response illustrates the degree of control the administratio n retained over student speech at graduation. Version D was n ot intended to broaden the rights of students to speak at graduati on, nor to convert the graduation ceremony into a public forum . Cf. Capitol Square Review and Advisory Bd. v. Pinette, U.S. , 115 S. Ct. 2440, 2450 (1995) ("Religious expression cannot vio late the Establishment Clause where it (1) is purely private and (2) occurs in a traditional or designated public forum, publicly announced and open to all on equal terms."). Accordingly, we fail to see how this particula r policy, addressed only to providing an option for continuin g prayer at graduation after Lee, can be legitimized as promoti ng the free speech rights of the students.

B. Lee v. Weisman The degree of control that school officials re tained over the speech that would be permitted at graduation is also relevant under Lee v. Weisman, 505 U.S. 577 (1992). There, the principal of a public middle school invited a rabbi to delive r the invocation and benediction at the school's graduati on, in accordance with school district practice. The prin cipal gave the rabbi a pamphlet containing guidelines to be follow ed in giving public prayers at civic occasions and told the rabb i that the prayers should be non-sectarian. Id. at 581. The graduation ceremony at which the prayers were given was held o n school property, and the parties stipulated that attendanc e at theceremony was voluntary. After the processional, th e students

remained standing for the Pledge of Allegiance, andfor the rabbi's very brief invocation. In ruling the prayer unconstitutional, the Sup reme Court emphasized:

These dominant facts mark and contro l the confines of our decision: [1] State officials direct the performance of a for mal religious exercise at promotional and graduation ceremonies for secondary schoo ls. [2] 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 distr ict does not require attendance as a conditio n for receipt of the diploma. Id. at 586. Accordingly, we must examine (1) the s tate's control of the graduation ceremony, and (2) the students' c oerced participation in the ceremony here. (1) The School Board argues that the student refer endum here significantly distinguishes this case from Lee. We disagree. It is, of course, true that the state's entanglement w ith the graduation prayer in Lee was more obvious, pronounc ed, and

intrusive than the School District's involvement he re. In Lee, the principal decided prayer would be included in t he ceremony, chose the clergy person who would give the prayer, and even determined part of the content of the prayer by giv ing the invited clergy guidelines for the substance of the prayer. Id.at 587. It is no wonder then, that the resulting prayer "bore the imprint of the State." Id. at 590. Although the state's involvement here is certa inly less evident, the student referendum does not erase the state's imprint from this graduation prayer. Graduation at Highland Regional High School, like graduation at nearly any other school, is a school sponsored event. School officials deci de the sequence of events and the order of speakers on the program, and ceremonies are typically held on school property at no cost to the students. App. at 118-26. The atmosphere at H ighland's graduations is characterized by order and uniformit y. School officials necessarily "retain a high degree of cont rol over the precise contents of the program, the speeches, the timing, the movements, the dress, and the decorum of the studen ts." Lee, 505 U.S. at 597. Principal Palatucci testified before the district court that any student who attempted to give an uns cheduled address at graduation in contravention of administr ative direction would be arrested if police were availabl e, even if a majority of the graduating students had previously approved. The district court carefully questioned the principal a bout what he would do if a majority of the student body, without administrative approval, voted to have a speaker wh o would not be included in the program but would be introduced by the valedictorian and allowed to give a one minute spee ch. Theprincipal responded: "I couldn't allow that to happ en. . . . If I

have a police officer, I have her arrested." App. at 125. Thus,

the school officials' involvement and control is no t as limited, unintrusive, or neutral as the School Board suggest s. Delegation of one aspect of the ceremony to a plurality of

students does not constitute the absence of school officials' control over the graduation. Students decided the question of prayer at graduation only because school officials agreed to let them decide that one question. Although the delega tion here may appear to many to be no more than a neutral means o f deciding whether prayer should be included in the graduation , it does not

insulate the School Board from the reach of the Fir st Amendment. "[C]ourts must keep in mind both the fundamental pl ace held by

the Establishment Clause in our constitutional sche me and the myriad, subtle ways in which the Establishment Clau se values can be eroded." Lynch v. Donnelly, 465 U.S. 668, 694 ( 1984) (O'Connor, J., concurring). Furthermore, the text of Version D affirms tha t it was adopted in response to Lee. The Board's avowed pur pose in reexamining its policy was to provide an option tha t might allow the "longstanding tradition" of graduation prayer t o survive the prohibitions of that Supreme Court decision. We be lieve that the control exercised by state officials here, though d ifferent in degree than was present in Lee, is not sufficiently distinct to require a different result under the "first dominan t fact" of

Lee. (2) "[T]here are heightened concerns with protecti ng freedom of conscience from subtle coercive pressure in the ele mentary and secondary public schools." Lee. 505 U.S. at 592. We find no

difference whatsoever between the coercion in Lee a nd the coercion here. A high school graduation is disting uishable from forums such as a legislative session where prayer h as been upheld. See Marsh v. Chambers, 463 U.S. 783, 795 ( 1983). Legislators "may presumably absent themselves from such public and ceremonial exercises without incurring any pena lty, direct or indirect." School Dist. of Abington Twnshp v. Sche mpp, 374 U.S. 203, 299-300 (1963) (Brennan, J., concurring). The same cannot be said of students at their high school graduation

. "The fact that attendance at the graduation ce remonies is voluntary in a legal sense does not save the religi ous exercise." Lee, 505 U.S. at 596. The objector's presence at h is or her graduation compels participation in the religious o bservance decreed by the results of the poll that is sanction ed under Version D. This, the Constitution does not allow. What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their relig ious practices, in a school context may appear to

the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.

. . . The undeniable fact is that theschool district's supervision a nd control of

a high school graduation ceremo ny places public pressure, as well as pee r pressure, on attending students to stand as a group or, at least, maintain respectful sile nce during the

Invocation and Benediction. Th is pressure, though subtle and indirect, can be as real as any overt compulsion. . . . [F] or the dissenter of high school age, w ho has a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow, the injury is . .

. real.

Id. at 592-93. Even the appearance of pa rticipation should be avoided in this setting. Id. at 588 (students "hadno real alternative which would have allowed [them] to avoi d the fact or appearance of participation"). Here, the hypothetical dissenter in Lee is rep laced by 140 students who voted not to have a formal prayer at t heir public high school graduation. The Board's policy would h ave required each of those 140 students to participate (or at th e very least maintain respectful silence) as others engaged in s tudent-led worship. "It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coe rce anyone to support or participate in religion or its exercise. " Id. at 587. Here, as in Lee, "[t]he prayer exercises . . . are especially improper because the State has in every practical s ense compelled attendance and participation in an explicit religio us exercise at an event of singular importance to every student, o ne the objecting student had no real alternative to avoid. " Id. at 598. Students at Highland had to either conform to the m odel of worship commanded by the plurality or absent themse lves from graduation and thereby forego one of the most impor tant events in their lives. That is an improper choice to force u pon dissenting

students. [T]o say a teenage student has a real cho ice not to attend her high school graduation is formalistic in the extreme. . . . Everyon e knows that in our society and in our cult ure high school graduation is one of life's m ost significant occasions. A school rule whi ch excuses attendance is beside the point.

Id. at 595. "The Constitution forbids the State to exact religious conformity from a student as the price of attending his own high school graduation." Id. at 596. The First Amendment is a shield that prohibits the state from interfering with a person's right to worship a s he or she pleases. It is not a sword that can be used to compel others to join in a religious observance at a state sponsoredevent. "The First Amendment has lost much if the religious foll ower and the atheist are no longer to be judicially regarded as entitled to equal justice under law." Zorach v. Clauson, 343 U .S. 306, 320(1952) (Black, J., dissenting).

The sole question presented is whether a religious exercise may be condu cted at a graduation ceremony in circumst ances where . . . young graduates who object are induced to conform. No holding by th[e Su preme Court] suggests a school can persuade or compel a student to participate in a rel igious exercise. That is being done h ere, and it is forbidden by the Establishment Clause of the

First Amendment.

Lee, 505 U.S. at 599. It is, of course, true that the often referenc ed "wall of separation" between church and state has recently b een described as more "metaphor" than reality. However, even if the "wall" is more metaphor than mortar, it is sufficiently unyie lding to prevent prayer from being included as a formal part of the graduation ceremony under Version D of Policy IKFD.

The disclaimer required under Version D does h elp to recapture some of the separation between church andstate that has been obscured by the state's control over the g raduation. However, the Board cannot sanction coerced particip ation in a religious observance merely by disclaiming responsi bility for the content of the ceremony. Given the protections inhe rent in the First Amendment, it is quite possible that parents of some graduating seniors chose public education precisely so that their children would not be compelled to follow the relig ious beliefs of others. Yet, that is exactly what Version D all ows. We recognize that the Court of Appeals for t he Fifth Circuit has reached a result contrary to the one we reach today. See Jones v. Clear Creek Indep. Sch. Dist., 977 F.2 d 963 (5th Cir. 1992), cert. denied, 113 S. Ct. 2950 (1993). Indeed, as stated earlier, the administration at Highland prom ulgated Version D pursuant to the Board's instruction to de velop a policy that would parallel the holding of Jones. We are n ot, however, persuaded by that court's analysis. Jones also inv olved a challenge to a policy that allowed students to deci de if they wanted prayer at a public school's graduation cerem ony. The Jones court upheld the policy while acknowledging t hat "the practical result of [its] decision, viewed in light of Lee, is that a majority of students can do what the State a cting on its own cannot do to incorporate prayer in public high school graduation ceremonies." Id. at 972. That court recently reaffirmed that ruling in Ingebretsen v. Jackson Public Sch. Dist., No. 94-60631, 1996 WL 20 5, *6 (5th Cir. Jan. 10, 1996) (affirming an order that enjoin ed enforcement of a Mississippi statute allowing prayer at compuls ory and noncompulsory school events, "except as to nonsecta rian, nonproselytizing student initiated voluntary prayer at high school commencement as condoned by Jones . . . ."). In Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402 (5th Cir . 1995), the court again addressed the limits of school prayer i n publicschools, but in the context of extra-curricular act ivities for

which students received academic credit. The court held that the school district's practice of allowing its employee s to initiate or merely participate in prayers at basketball game s and basketball practices was unconstitutional. The cou rt distinguished Jones by noting that graduation praye r occurred at a "once-in-a-lifetime event that could be appropria tely marked with a prayer," that the students in Jones were mat ure seniors, and "that the challenged prayer was to be non-secta rian and nonproselytizing." Id. at 406-07. We are not persuaded by these distinctions. L ee clearly

established that the "once-in-a-lifetime event" doe s not justify allowing a public school to authorize collective pr ayer under the circumstances of that case. To the contrary, the s ignificance of that "once-in-a-lifetime" event weighed heavily in favor of invalidating the prayer. It was precisely because graduation was

a "once-in-a-lifetime" event that students were den ied the option of foregoing the ceremony to avoid compromising the ir religious scruples. See Lee, 505 U.S. at 595-96. Similarly, the Court in Lee was not convinced that the maturity level of hi gh school

students immunized them from the coercion endemic i n coerced participation. Id. at 593 ("[F]or the dissenter of high school age, who has a reasonable perception that she is be ing forced by the State to pray in a manner her conscience will n ot allow, the injury is no less real."). Indeed, few would doubt the influence of peer pressure upon children in high school. Fur thermore, we are not inclined to alter our analysis merely becau se Version D does not expressly allow proselytization. See Coun ty of Allegheny v. ACLU, Greater Pittsburgh Chp., 492 U.S . 573, 606-09. Instead, we find the reasoning of the Court of Appeals for

the Ninth Circuit in Harris v. Joint Sch. Dist. No. 241, 41 F.3d 447 (9th Cir. 1994) to be more persuasive. There, plaintiffs challenged a school district's policy of allowing g raduating seniors to vote on whether prayer should be include d in their graduation ceremony. The court concluded that the challenged practice violated the Establishment Clause even tho ugh any graduation prayer would have to be initiated, selec ted, and delivered by students.

We cannot allow the school dist rict's delegate to make decisions that the school

district cannot make. When the senior class is given plenary power over a s tate- sponsored, state-controlled eve nt such as high school graduation, it is j ust as constrained by the Constitution as the state

would be.

Id. at 455. The court noted that faculty members and admin istrators still supervised and controlled the graduation cere mony, and the

school district assumed the cost of the event. Thu s, the state's

involvement offended the Establishment Clause. Id. at 454-55. "[T]hat school officials cannot divest themselves o f constitutional responsibility by allowing the stude nts to make crucial decisions should not be surprising. . . . Electedofficials cannot avoid constitutional mandates by p utting them to

a majority vote." Id. at 455. Indeed, if the vita lity of our fundamental liberties turned upon their ability to inspire the support of a majority, the longevity of our "inalie nable rights" would be controlled by the ebb and flow of politica l and social passion.

C. Lemon v. Kurtzman In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Supreme Court announced a three part test to determine if a gover nment practice offends the Establishment Clause. Under Lemon, a g overnment practice regarding religion will not offend the Est ablishment Clause if: (1) it has a secular purpose; (2) its pr incipal or primary effect neither advances nor inhibits religi on; and (3) it does not create an excessive entanglement of the go vernment with religion. Id. at 612-13. "The" Lemon test has bee n referred to as one test, although the case itself suggests that it is a compilation of several approaches that have been us ed in conducting an inquiry under the Establishment Claus e. Justice O'Connor has observed that "setting forth a unitary test for a broad set of cases may sometimes do more harm than good. . . . Lemon has, with some justification, been criticizedon this score." Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 114 S. Ct. 2481, 2499 (1994) (O'Connor, J., concurring); id. at 2500 (O'Connor, J., concurring) ("[I]t seems to me that

the case law will better be able to evolve . . . if it is freed from the Lemon test's rigid influence."). Neverthe less, the framework of Lemon remains. Wallace, 472 U.S. at 6 3 (Powell, J., concurring) ("Lemon v. Kurtzman identifies standard s that have proved useful in analyzing case after case both in our decisions and in those of other courts. It is the only coher ent test a majority of the Court has ever adopted.") (citation omitted); seealso Committee for Public Educ. and Religious Liberty v. Nyquist, 413 U.S. 756, 772 (1973) (applying the "now well-de fined threepart test" of Lemon) and Kiryas Joel, 114 S. Ct. at 2495 (Blackmun, J., concurring) ("I remain convinced of the general validity of the basic principles stated in Lemon, w hich have guided this Court's Establishment Clause decisions in over 30

cases."). The Lemon test has been the subject of critica l debate in recent years, and its continuing vitality has been called into question by members of the Supreme Court and by its noticeable absence from the analysis in some of the Court's re cent decisions (including Lee). Nevertheless, Lemon remains the l aw of the land, and we are obligated to consider it until ins tructed otherwise by a majority of the Supreme Court. See Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 535 (1983) ("only [the Supreme] Court may overrule one of its precedents" and until such occurs, precedent "is still good law "). (1) A Secular Purpose The Board argues that Version D has the secula r purpose of recognizing the students' rights to free speech andtheir desire to solemnize the occasion. As we noted earlier, th e Board's proclamation of the purpose of promoting free speec h must be viewed in context with the policy's emphasis on pro viding anoption that would allow prayer to be delivered at g raduation

after Lee. "Law reaches past formalism." Lee, 505 U.S. a t 595. We have already explained why the Board's assertion of the secular purpose of free speech does not control. See supra part IV.A. "`Graduation ceremonies have never served as forums for public debate or discussions, or as a forum through which to allow varying groups to voice their views.'" Brody v. Sp ang, 957 F.2d 1108, 1118 (3d Cir. 1992) (citation omitted). Vers ion D is no different in this respect. Principal Palatucci's t estimony as to his readiness to arrest any student who might attempt to speak at graduation without prior approval of the administra tion (even if the graduates have approved) demonstrates the degre e to which Version D is intended to further the secular purpos e of free speech. Prayer is, of course, religious speech, see En gel v. Vitale, 370 U.S. 421, 424-25 (1962). However, the constitu tional guarantee of free speech does not secularize Versio n D's attempt to preserve "the long standing practice of conducti ng invocation and benediction prayer at graduation ceremonies." The Superintendent of Schools testified that when stude nts were previously allowed to speak at graduation, their sp eeches had to be reviewed and approved by a faculty adviser or ot her school official; students were not allowed to speak on wha tever topic they chose and the content of student speeches -- e ven when authorized -- was monitored. App. at 132-33. Yet, Version D prohibits school officials from reviewing the conte nt of any student-led prayer that may be given. This "hands- off" approach only applies to religious speech, and is in stark c ontrast to the possibility of arrest that confronts a student who gives a secular presentation without prior authorization. The dualism is, however, consistent with the Board's desire to avoid one of the obstacles that invalidated the prayer in Lee (t he administration's control over the content of the pr ayer). In addition, Version D permits a student to gi ve a sectarian, proselytizing address. If a student wer e to decide to give such an address after a student referendum "au thorized" verbal prayer, the administration could not halt it without violating its own policy. If this were to occur, a proselytizing prayer (perhaps even degrading other religions) wou ld be delivered in a forum controlled by the School Board . "A system which secures the right to proselytize religious . . . causes must also guarantee the concomitant right to declin e to foster such concepts." Wallace, 472 U.S. at 51. Version D fails to

achieve this balance. The Board also argues that the inclusion of pr ayer solemnizes the graduation, but we are unable to und erstand why graduation would be any less solemn if students wer e not permitted to vote for prayer, a moment of silence o r no observance at graduation. Surely students who grad uate in a year where students may chose to have no prayer at all w ould think their graduation to be a solemn event, and it is do ubtful that the Board would disagree with that assessment. The Supreme Court has approved religious invocations to solemnize the opening oflegislative sessions, see Marsh, 463 U.S. at 795 (1 983) (a

context easily distinguishable from a public high s chool graduation as noted supra). The Court has also uph eld religious references such as the "governmental declaration of Thanksgiving as a public holiday; printing `In God We Trust' on coins; and opening court sessions with `God save the United St ates and this honorable court.'" Lynch, 465 U.S. at 693 (O'Conno r, J., concurring). However, we do not think the policy b efore us can be saved merely by the Board proclaiming that the p olicy serves a solemnizing purpose. See Stone v. Graham, 449 U.S. 39, 41 (1980) (posting the Ten Commandments on the walls of publi c school classrooms violated the purpose prong of Lemon desp ite the state's avowed secular purposes of teaching the val ues conveyed by the Ten Commandments and demonstrating their con nection to the legal system); see also Schempp, 374 U.S. at 223-24

. Furthermore, assuming arguendo that Version D serves the secular purpose of solemnizing one's graduation, we believe it does so in a constitutionally impermissible manner. Students who are devoutly religious may feel that prayer is not something that should be put to a vote. Such students may even ha ve a religious objection to such a vote and may, therefore, refuse to vote out of religious conviction. Version D puts such stude nts on the horns of an impossible dilemma by forcing them to c hose between doing violence to their own religious beliefs and v oting, or abstaining and thereby risking that their forbearan ce may provide the margin of victory for those with a different re ligious preference. Regardless of how the referendum comes out, this state policy has forced such a student into an impo ssible, and impermissible, choice. Accord Engel, 370 U.S. at 4 31-32 ("The Establishment Clause thus stands as an expression o f principle on the part of the Founders of our Constitution that r eligion is too personal, too sacred, too holy, to permit its `unha llowed perversion' by [the State]."). Still other student s may face a similar predicament because they are atheists and r efuse to vote out of conscience -- as is their right. Such a Hob son's choice "sends a message to nonadherents that they are outs iders, not full members of the political community . . . ." L ynch, 465 U.S. at 688 (O'Connor, J., concurring). The Constitutio n forbids that message, just as it forbids the procedure authorize d by this policy. (2) The Endorsement of Religion Under the second prong of Lemon, a government practice can neither advance, nor inhibit religion. This means that a challenged practice must "not have the effect of co mmunicating a message of government endorsement or disapproval of religion." Lemon, 403 U.S. at 692. This endorsement test has at times been characterized as part and parcel of the Lemon test, and at other times as separate and apart from it. Whether "the endorsement test" is part of the inquiry under Lemo n or a separate inquiry apart from it, the import of the t est is the same. We must determine whether, under the totalit y of the circumstances, the challenged practice conveys a me ssage favoring or disfavoring religion. "The question under endor sement analysis, in short, is whether a reasonable observe r would viewsuch longstanding practices as a disapproval of his or her

particular religious choices . . . ." Allegheny, 49 2 U.S. at 631 (O'Connor, J., concurring). Thus, the viewpoint of the reasonable observer (adherent or nonadherent) helps us to determine if the "principal or primary effect [is] one that neither advances nor inhibits religion." Lemon, 40 4 U.S. at 612; see also School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 390 (1985). In any such inquiry, "the `history and ubi quity' of a practice is relevant because it provides part of th e context in

which a reasonable observer evaluates whether a cha llenged governmental practice conveys a message of endorsem ent of religion." Id. at 630. The importance of the context of a challenged practice is illustrated by comparing the holding of the Court i n Lynch with the holding in Allegheny. In Lynch, the Court heldthat a city did not offend the Establishment Clause by includin g a creche depicting the Nativity scene, along with other figu res and decorations traditionally associated with Christmas , in its Christmas display in a private park in the downtown shopping district. 465 U.S. at 687. In addition to figures associated with the Nativity scene, the creche contained "a Sa nta Claus house, reindeer . . ., candy-striped poles, a Chris tmas tree," and numerous other figures including a clown, eleph ant and teddy bear. Id. at 671. Notwithstanding the religious s ignificance of the creche, the Court reasoned that "[w]hen viewed in the proper context of the Christmas Holiday season, it is appa rent that . . . the inclusion of the creche is [not] a purposeful or surreptitious effort to express some kind of subtle governmental advocacy of a particular religious message." Id. a t 680. The Court felt that the creche "depict[ed] the historic al origins of this traditional event long recognized as a Nationa l Holiday."

Id. In Allegheny, the Court again addressed the constitutionality of a creche displayed as part of a city's holiday celebration. There, unlike in Lynch, the c reche was located on the Grand Staircase of the county courth ouse. 492 U.S. at 578. The display was also surrounded by a fence and poinsettia floral frame and included small evergree n trees, but unlike the display in Lynch, did not include figure s of Santa Claus, reindeer, or other decorations traditionally associated with the secular aspects of Christmas. Id. at 580- 81. The Court

noted that the location of the creche on the Grand Staircase of the Allegheny County Courthouse -- "the `main' and `most beautiful part' of the building that is the seat of county government," id. at 599 -- would make it almost imp ossible for any reasonable viewer to "think that it occupie[d] this location without the support and approval of the government. " Id. at 599- 600. Accordingly, the Court ruled that the display was an impermissible endorsement of religion under Lemon. Lynch teaches that government m ay celebrate

Christmas in some manner and fo rm, but not in a way that endorses Christian d octrine. Here, Allegheny County has tran sgressed this

line. It has chosen to celebra te Christmasin a way that has the effect of endorsing a

patently Christian message: Glo ry to God for

the birth of Jesus Christ. Und er Lynch, and the rest of our cases, nothing more is required to demonstrate a viola tion of the

Establishment Clause.

Id. at 601-02. However, the Court upheld the city's display o f a Chanukah menorah placed next to a Christmas tree and a sign saluting liberty, all of which were located just outside the City-County Building. Id. at 620-21. In doing so, the Court r easoned: [T]he relevant question for Establishment Clause purposes is whether the combined display of the tree, the sign, and the menorah has the effect of endorsing both Christian and Jewish faiths, or rather si mply recognizes that both Christmas and Chanuk ah are part of the same winter-holiday seaso n, which has attained a secular status in ou r society. Of the two interpretations of t his particular display, the latter seems far more plausible . . . . Id. at 616. Accordingly, the reasonable observer w ould not necessarily interpret the display as an endorsement of Christianity and Judaism. We can not say the same of Version D. Viewing it in context with the "longstanding tradition" it attempts to pe rpetuate after Lee would certainly leave the reasonable nonadheren t with the impression that his or her religious choices were d isfavored. This is particularly true where, as here, prayer wo uld have been conducted at graduation based upon a plurality even though a majority of seniors voted not to have prayer. Although it is true that Version D does not re quire the view that prevails in any given year to prevail in subse quent years, it is nonetheless true that the effect of the parti cular prayer that is offered in any given year will be to advanc e religion and coerce dissenting students. See Jaffree v. Wallace , 705 F.2d 1526, 1534-35 (11th Cir.) ("The primary effect of p rayer is the advancement of one's religious beliefs."), reh'g de nied, 713 F.2d 614 (11th Cir. 1983), aff'd, 466 U.S. 924 (1984). The Constitution's "prohibition against governmental en dorsement of religion `preclude[s] government from conveying or attempting to convey a message that religion or a particular reli gious belief is favored or preferred.'" Allegheny, 492 U.S. at 593 (quoting Wallace v. Jaffree, 472 U.S. at 70); see also Texas Monthly, Inc. v. Bullock 489 U.S. 1, 27, 28 (1989) (Blackmun, J., concurring in the judgment) ("government may not favor religious belief over disbelief" or adopt a "preference for the dissemina tion of religious ideas"). The disclaimer that is required by Version D d oes weigh in favor of the Board's position under a Lemon analysi s. However, it does not weigh so heavily as to neutralize the c ounterweight of the advantage the policy gives religious speech over secular speech. Despite the printed disclaimer, the reason able observerhere could not help but conclude that the Board fav ors the

inclusion of prayer. "[N]ot every law that confers an `indirect,' ` remote,' or `incidental' benefit upon [religion] is, for that r eason alone, constitutionally invalid." Nyquist, 413 U.S. at 77 1 (citation omitted). However, Version D provides a benefit th at is neither "indirect," "remote," nor "incidental." The Suprem e Court has never countenanced a practice that requires some me mbers of a community to subordinate their religious preference s to those of a majority. Rather, "[t]he Establishment Clause, a t the very least, prohibits government from appearing to take a position on questions of religious belief or from `making adher ence to a religion relevant in any way to a person's standing in the political community.'" Allegheny, 492 U.S. at 593- 94 (quoting Lynch, 465 U.S. at 687 (O'Connor, J., concurring)). Although the Supreme Court has allowed certain accommodations to religion, see Corporation of Chur ch of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 336-37 (1987) (upholding law exempting religious employers from T itle VII); Zorach, 343 U.S. at 314-15 (upholding statutory "re leased time" program whereby public schools release students dur ing the school day to receive off-site religious education), "acco mmodation is not a principle without limits." Kiryas Joel, 114 S. Ct. at 2492. The Supreme Court "[has] never hinted that a n otherwise unconstitutional delegation of political power to a religious group could be saved as a religious accommodation." Id. at 2493. As Justice Souter explained in Lee: Religious students cannot complain t hat omitting prayers from their graduation ceremony would, in any realistic sense, 'burden' their spiritual callings. To be sure, many of them invest this rite of passage with spiritual significance, but they may express their religious feelings abou t it before and after the ceremony. They may even organize a privately sponsored baccalaure ate if they desire the company of like-minded students. Because they accordingly have no need for the machinery of the State to af firm their beliefs, the government's sponsorsh ip of prayer at the graduation ceremony is m ost reasonably understood as an official endorsement of religion . . . . 505 U.S. at 629-30 (Souter, J., concurring). Whatever accommodation may require, it is clea r that government neutrality toward religion still is the hallmark of the Religion Clauses. See Kiryas Joel, 114 S. Ct. at 2487 ("A proper respect for both the Free Exercise and the E stablishment Clauses compels the State to pursue a course of `ne utrality' toward religion, favoring neither one religion over others nor religious adherents collectively over nonadherents. ") (internal quotations and citation omitted). Version D can no t be justified

as an accommodation because it seeks to accommodate the preference of some at the expense of others and the reby crossesthe required line of neutrality. "The First Amendm ent . . .

gives no one the right to insist that in pursuit of their own

interests others must conform their conduct to his own religious necessities." Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 710 (1985) (internal quotations and citation omitte d). (3) Excessive Entanglement With Religi on The third prong of the Lemon test -- no excess ive entanglement of government with religion -- is a mu ch closer question. As noted earlier, the state's involvemen t here is far less than the entanglement that was present in Lemo n. However, because we find that Version D of Policy IKFD viola tes the first two prongs Lemon, we need not determine if it also violates the third prong.

V. CONCLUSION In closing, we emphasize the difficulty posed by the issue that we confront here and the intensity and sinceri ty of persons on both sides. Issues of religion touch litigants and interested

observers of the law as few other issues can. For example, one of the students who opposed Version D testified bef ore the district court that he received threatening letters in his school locker and threatening telephone calls at home afte r coming forward in this case. App. at 93. References to, and images of, religion are to be found throughout this society. See Zorach, 343 U.S. at 3 13-14. Yet, the prevalence of religious beliefs and imagery can not erode the state's obligation to protect the entire spectrum o f religious preferences from the most pious worshipper to the m ost committed atheist. Those preferences are the business of the individual, not the state nor the public schools it maintains. The First Amendment does not allow the state to erect a polic y that only respects religious views that are popular because t he largest majority can not be licensed to impose its religiou s preferences upon the smallest minority. We need not now address the parameters of thes e prohibitions beyond the precise questions raised by the specific policy before us. The district court's order enjoined the School Board "from conducting a school-sponsored graduation ceremony t hat includes a prayer, whether it be an invocation, a benediction or a prayer in any other form." App. at 210. In context, we unde rstand the district court's order to foreclose a school-sponso red graduation service involving an invocation, benediction or pra yer pursuant to Policy IKFD Version D. As so read, we affirm th e judgment of

the district court.

ACLU v. Black Horse Pike Regional Board of Educatio n, etc., No.

94-5233

MANSMANN, Circuit Judge, dissenting, joined by Jud ges Nygaard,

Alito and Roth.I must dissent because I believe the issue squ arely before

us, whether student-initiated, -directed and -compo sed prayer at high school graduation violates the First Amendment , requires that we examine the application of both the Establi shment Clause and the free exercise/free speech right, balancing the graduates' free exercise and speech rights against any compell ing state interest which might otherwise justify impinging th ese guarantees. In placing these interests on the balance scal e, I am concerned, however, that an approach which exaggera tes and emphasizes the Court's Establishment Clause tests w ould be fragmented and would tend to imply that the First Amendment religion clauses embody contradictory and irreconci lable principles. The Court's free exercise jurisprudenc e clearly suggests that a separation policy which overextends into the domain of free exercise and free speech must be sus pect. The Establishment Clause should not be read to prohibit activity which the Free Exercise Clause protects. Board of Educ. v. Mergens, 496 U.S. 226, 250 (1990) ("there is a cruc ial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech en dorsing religion, which the Free Speech and Free Exercise C lauses protect"). Thus, I would analyze the present case in light of the fact that while the state may not establish a r eligion, it must not also disadvantage or discriminate against studentreligious activity, nor imply that religion, or religious act s, are disfavored. In light of the Establishment Clause's broad p urpose to serve the free exercise of religion, I would hold t hat here the narrowly fact-bound holding of Lee v. Weisman, 112 S. Ct. 2649 (1992), does not preclude such student directed, co mposed and delivered prayer as an integral segment of the grad uation ceremony, where there is not, by policy, virtually any school administration or faculty involvement. In addition , applying the Court's three-part Establishment Clause analysis ar ticulated in Lemon v. Kurtzman, 403 U.S. 602 (1971), I would hol d that the defendants' challenged activity also meets the Lemo n test as to compliance with the Establishment Clause. Finally, I would conclude that the state has not articulated any compelling interest to countermand the graduates' rights of fr ee exercise and free expression. Thus, I would reverse the per manent injunction issued against the defendants.

I. In Lee v. Weisman, the Court held that Lee, a middle school principal who decided to include prayer in the grad uation ceremony for Deborah Weisman, chose a rabbi to offe r the prayer, gave the rabbi guidelines on the content of the pra yer, and

advised the rabbi that the invocation should be non -sectarian, made choices attributable to the state. Moreover, the Court held that Lee's advice concerning the content of the rab bi's prayer constituted direct state control. These findings, combined with the Court's finding that the school's supervision a nd control ofhigh school graduation subtlely coerced graduates t o stand in

respectful silence during the invocation, rendered the state action unconstitutional, despite the fact that part icipation in the prayer or in the graduation ceremony itself was voluntary. 112 S. Ct. at 2655-56. Emphasizing that the partic ular facts in the case were outcome-determinative, the Court stat ed:

These dominant facts mark and control the conf ines of our decision: State officials direct the perf ormance of a formal religious exercise at promotional and graduation ceremonies for secondary schools. Even for those students who object to the religious exe rcise, their attendance and participation in the stat e- sponsored religious activity are in a fair andreal sense obligatory, though the school district d oes not require attendance as a condition for receipt of the diploma.

112 S. Ct. at 2655. Adverting to the "heightened concerns with pro tecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools," id. at 26 58, the Court asserted that the effort on the part of the school official to "monitor prayer will be perceived by the students a s inducing a participation they might otherwise reject." Id. at 2657. The Court declined to apply the factors it earlier set forth in Lemon v. Kurtzman, or to explicitly reconsider the status of that

decision. Because of the highly fact-sensitive nature of the Leedecision, I cannot induce from the Court's reasoning any broad constitutional principle which bans prayer at all h igh school graduation ceremonies, regardless of the manner in which the decision to include prayer is made or implemented. Indeed, Leebids us to scrutinize and to distinguish the facts of each cas e. In Lee the Court found the following, working in ta ndem, to constitute state sponsorship: 1) The high school principal, a state actor, made a

unilateral decision to include an invocation and be nediction in the graduation ceremony; 2) The high school principal, a state actor, made a unilateral decision with regard to the selection of a clergyman to offer the invocation and benediction; and 3) The high school principal, a state actor, actively

influenced and monitored the content of the invocat ion and benediction to be given.

The case before us contains neither the indici a of state action nor the particular facts which were outcome- determinative in Lee. Here the graduates are entirely entrusted with the decision to include or not to include a graduation invocation. The graduates maintain control throughout the decis ional process and without the active or surreptitious influence o r monitoring by school officials. Policy IKFD precludes the inv itation of a clergyman to deliver any invocation. No school off icial may influence or monitor the content of the prayer. Th e polling instrument itself is neutral. The government pract ice inquestion here is not a decision to include prayer a t graduation;

nor is it the practice of monitoring or influencing the content of a graduation prayer. The government practice at issue here is the highly democratic one of allowing the graduatin g class to vote on the issue of graduation prayer while mainta ining an official stance of strict neutrality throughout the entire process. Hence, none of the decisions made by the graduating class concerning graduation prayer can be attribute d to the state

and the Establishment Clause is therefore not even implicated. I do not find anything in Lee which would compel a holding that policy IKFD is unconstitutional. The majority expresses concern over the degree of control exercised by the school: 1) when it rejected a stu dent's request for a "safe sex" speaker at graduation, and 2) when the principal stated that he would not permit an unscheduled spea ker. Certainly the school, without violating the neutral ity principles of Lemon, could restrict all speeches as to time an d indeed as to appropriateness -- here, to "solemnizing" speech; P olicy IKFD's subject matter and speaker restrictions do not cons titute viewpoint expression or suppression.

I would follow the lead of our sister court of appeals in Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 96 3 (5th Cir. 1992), a graduation prayer case factually similar t o the case before us. In Jones, the Supreme Court vacated the Fifth Circuit's judgment and remanded the case for furthe r consideration in light of the Court's decision in L ee v. Weisman, which the Court decided subsequent to the Fifth Cir cuit's first determination. Upon reconsideration, the Fifth Cir cuit held that Lee did not invalidate Clear Creek's graduation andinvocation policy, which did not mandate prayer or any invocat ion, but merely permitted graduation prayer to be delivered by a graduate if the graduating class so chose. Moreover, in Jon es the resolution in question permitted a school official to offer "advice and counsel" to the graduating class in the decision whether to include an invocation at graduation. Th is single fact, which is absent in the case before us, placed the Jonescase even closer to the constitutional boundary established i n Lee than the case before us. Nevertheless, the Fif th Circuit held that Clear Creek exercised significantly less control over the invocation content than did the school principa l in Lee v. Weisman, noting that Clear Creek did not solicit in vocations, but merely refused to accept sectarian or proselytizing invocations.

977 F.2d at 971. The court noted that the resoluti on merely tolerated nonsectarian, non-proselytizing prayer, b ut neither required nor favored it. Id. By contrast, Black Horse's policy for prayer a t graduation

ceremonies is more liberal in that it extends the s cope of its toleration to include even sectarian prayer, if the graduates so choose. I believe that in this way Policy IKFD comports with the First Amendment's prohibition against the inhibitio n of the practice of religion or of free expression, while a t the same time precludes even the remote possibility of an es tablishment of religion by virtue of its uncompromising neutrality

. I would also find the element of psychological coercion,which the Lee Court presumed and the majority stres ses, to be

absent where the graduating seniors have participat ed in the decision regarding prayer at graduation. There cou ld not be any confusion on the part of the reasonable graduating senior, who has been made aware of the senior class poll and ha s been invited to participate, with regard to whether the result o f that poll represents an official opinion of the state or the will of the senior class. Furthermore, although Lee failed to emphasize the distinction between high school graduates and the r est of the younger, less mature high school student body, prio r Supreme Court caselaw has acknowledged that post-secondary school students are less easily coerced than younger stude nts. See, e.g., Board of Educ. of Westside Community Schools v. Mergens, 496 U.S. 226, 235-37, 250 (1990) ("university stude nts are . . . less impressionable than younger students") (citing Widmar v. Vincent, 454 U.S. 263, 274, n.14 (1981)). The grad uation ceremony itself is a public ritual symbolic of the graduates' passage into responsible young adulthood, and is sy nchronized, more or less, with other official acknowledgements of adult initiation, such as conference of the right to vote and the responsibility of males to register for the draft. In addition to the relative level of maturity of the senior class, the very nature of graduation, which elevate s the studentto the status of graduate, must be considered. Although t he student/graduate distinction did not countermand th e other various facts which the Court in Lee weighed agains t graduation prayer, I believe that the graduation ceremony sett ing is significantly different in nature from the classroo m setting, and in the absence of other offending factors, warrants a less restrictive approach to religion. Certainly the co ntested activity does not involve the curriculum of the sch ool; nor does the graduation ceremony implicate the teacher-stude nt relationship concerning the transmission of knowled ge from the former to the latter. Thus, the concerns which the Court has expressed in those cases where some form of religio n has been injected into the school curriculum are not directl y operative here. See, e.g., Edwards v. Aguillard, 482 U.S. 57 8 (1987) (teaching of scientific evidence supporting creatio n theory); Wallace v. Jaffree, 472 U.S. 38 (1985) (moment of s ilence at beginning of each school day); Stone v. Graham, 449 U.S. 39 (1980) (posting of Ten Commandments on classroom wa lls); Abington School Dist. v. Schempp, 374 U.S. 203 (1963) (Bible reading over PA system before classes); Engel v. Vitale, 370 U.S . 421 (1962) (mandated recitation of official state prayer each day in public schools); Illinois ex rel. McCollum v. Board of Edu cation, 333 U.S. 203 (1948) (weekly religious instruction in pu blic school buildings during school hours by members of clergy)

. I do not share the majority's confidence in th e Ninth Circuit's holding in Harris v. Joint Sch. Dist. No. 241, 41 F.3d 447 (9th Cir. 1994), cert. granted, vacated and rem anded, ___ U.S. ___, 115 S. Ct. 2604, 132 L.ED.2d 849 (1995). Following the precedent set by an earlier Ninth Circuit case, Col lins v. Chandler Unified Sch. Dist., 644 F.2d 759 (9th Cir. ), cert. denied, 454 U.S. 863 (1981), the court in Harris he ld that "theschool ultimately controls [the graduation] event" and hence

cannot avoid state involvement so as to implicate t he Establishment Clause as interpreted under Lee. 41 F.3d at 454.

The court further held that the seniors' decision r egarding prayer was per se tainted with official sanction be cause the seniors derived their decisional authority from the delegation of official school authority and because "the school u nder[wrote] the [graduation] event" by providing the use of the school building. Id. In my view, this holding would prec lude virtually all prayer at a public high school graduation cerem ony, a holding which unnecessarily and without warrant extends the holding of

Lee. I am also concerned that the Ninth Circuit fa iled to distinguish the classroom setting from the graduati on setting, and the student from the graduate. 41 F.3d at 458. I find no precedent supporting the Ninth Circuit's position t hat public high school seniors "enter[] the domain of the Esta blishment Clause," id., and are precluded from independently choosing to communally express their gratitude to God, invoke t he divine presence or seek God's blessing, as part of their g raduation ceremony. Since all aspects of the graduation pray er decision are at the discretion of the graduating senior clas s, I would hold that Policy IKFD does not unconstitutionally e stablish a religion under Lee.

II. I agree with the majority that the Lemon test is still precedential, although from the start it has been t he focus of critical debate, including the irony that its appli cation encourages the federal courts to regulate in an are a for which the First Amendment was designed to insure against any government interference. I part company in that I believe tha t Policy IKFD does not violate any one of the three elements of Lemon.

A. In order to pass the first prong of the Lemon test, Policy IKFD need not be shown to be exclusively secular. Lynch v. Donnelly, 465 U.S. 668, 681 n.6 (1984); Wallace v. Jaffree, 472 U.S. at 64 (Powell, J., concurring). Furthermore, accommodation of religion or religious practice in general helps to preserve the mediating institutions of the public morals, a secular civic good. Hence, accommodation itself serves a secular purpose. A valid secular purpose is not constitutionally compr omised when there are incidental, even substantial, benefits to religion. Lynch, 465 U.S. at 680 (citing Everson v. Board of Education, 330 U.S. 1 (1947); Board of Education v. Allen, 392 U.S . 236 (1968); Walz v. Tax Commission, 397 U.S. 664 (1970); Tilton v. Richardson, 403 U.S. 672 (1971)). To determine a secular purpose, the Court gene rally has exercised deference with regard to stated legislati ve or policy purpose, and will find a sham secular purpose only when there can be no question that the challenged conduct establis hes, or tends to establish, a religion. Aguilar v. Felton, 473 U .S. 402, 416- 17 (1985) (Powell, J., concurring); Lynch, 465 U.S. at 680 ("The Court has invalidated legislation or governmental a ction on theground 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.") (ci ting Stone v. Graham, 449 U.S. at 41; Epperson v. Arkansas, 393 U .S. 97, 107-09 (1968); Abington School Dist. v. Schempp, 374 U.S. at 223-24; Engel v. Vitale, 370 U.S. at 424-25); see also Edwa rds v. Aguillard, 482 U.S. at 586-87. Policy IKFD expressly states, "[i]n the spirit of protected free speech, the pupils in attendance must choose t o have prayer . . . ." (emphasis added). In addition to this exp ress secular purpose of promoting the free speech of the graduat ing seniors, the school asserts that Policy IKFD serves the vali d secular purpose of permitting the graduates to solemnize th e occasion of their graduation through ceremonial prayer. The co ncern should not be, as the majority expresses it, that graduati on would not be less solemn without the vote. The importance of ceremonial prayer is that the Court has acknowledged that it i ndeed serves the valid secular purpose of solemnization. See, e .g., Lynch, 465 U.S. at 693 (O'Connor, J., concurring); County of Allegheny v. Greater Pittsburgh ACLU, 492 U.S. 573, 595-96 n. 46 (1989); Engel v. Vitale, 370 U.S. at 435 n.21 (1962); see a lso Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d at 966-67. As the district court noted in the present cas e, Policy IKFD serves yet a third secular purpose which is educati onal, albeit not curriculum-related, in that the process of inde pendently coordinating and resolving the issue of graduation prayer permits the prospective graduates to gain firsthand insight into the effects of current constitutional jurisprudence on their public behavior, and is itself an exercise in responsible citizenship. Moreover, the challenged activity here cannot be deemed to cause those graduates who are opponents of prayer a t graduation, for the many different reasons cited by the majorit y, to feel that they are not fully incorporated into the commu nity. To the contrary, every graduate under Policy IKFD is fully invited to partake in the community via the right to vote on t he issue of school prayer, and each individual graduate, regard less of his or her position on the issue, has an equal opportunity to influence the graduation ceremony. Here the challenged activ ity is a democratic exercise. There is no guarantee that th e view that prevails in any given year will prevail in the foll owing year. The reasonably tolerant graduate, knowing of his or her opportunity to partake in the class poll, cannot re asonably be thought to conclude that the state is establishing religion if prayer prevails in the poll in any given year. The non-endorsing language of Policy IKFD, the explicit mandatory dis claimer, and the neutrality of the polling instrument itself, wo uld lead me to hold that the effect of Policy IKFD is not principa lly or primarily to advance religion. On the other hand, an absolute prohibition on ceremonial prayer at graduation woul d, in my view, violate the Free Exercise Clause by unduly inhibiti ng the practice of religion, and would also implicate the free speech guarantees of the First Amendment. Given the school's highly credible express sec ular motivations and neutrality of purpose as regards re ligion, bothwritten into Policy IKFD and argued before us, I wo uld find that

Policy IKFD easily passes the secular purpose test. The ACLU's assertions that Policy IKFD cannot satisfy this pro ng of Lemonbecause prayer is per se religious and that ceremonial pray er may not be utilized for purposes of solemnization o r freedom of expression where wholly secular means are available , go far beyond the requirements of the first prong of Lemon , which does not require that a secular purpose be achieved via exclusively secular means. Furthermore, the means employed by the school towards its secular end pursuant to Policy IKFD is not itself intrinsically religious. Student polling is a whol ly secular activity, and the result of the poll in question is the expression of the graduating class, not the school district.

B. With respect to the second prong of the Lemon test, I agree that the test asks whether the challenged activity "in fact conveys a message of endorsement or disapproval." Lynch, 465 U.S. at 690. While it is solidly established that the government is precluded from favoring one particular religious denomination over another, or from establishing an official stat e religion, I

note that the members of the Court divide as to whe ther the Establishment Clause precludes the government from conveying a message that it endorses or encourages religion in a generic sense, or especially acknowledges or accommodates t he broad Judeo-Christian heritage of our civil and social or der. This division persists despite the Court's attempt to in terpret comprehensively the Establishment Clause in Everson v. Board of Education, 330 U.S. 1, 15-16 (1947), holding that t he First Amendment prohibits the federal and state governmen ts from offering non-preferential aid to all religions and from levying any tax to support any religious activity or instit ution. See, e.g., Wallace, 472 U.S. at 70 (O'Connor, J., concur ring) ("[The endorsement test] does preclude government from con veying or attempting to convey a message that religion or a p articular religious belief is favored or preferred"); but cf. Wallace, 472 U.S. at 98 (Rehnquist, J., dissenting) ("[Madison] did not see [the First Amendment] as requiring neutrality on th e part of government between religion and irreligion."); Zora ch v. Clauson, 343 U.S. 306, 313 (1952) ("We are a religious peopl e whose institutions presuppose a Supreme Being."); Marsh v . Chambers, 463 U.S. 783, 792 (1983) ("To invoke Divine guidanc e on a public body . . . is not . . . an `establishment' . . . or a step toward establishment; it is simply a tolerable acknowledge ment of beliefs widely held among the people of this Countr y."); Lynch, 465 U.S. at 673 (The Constitution "affirmatively ma ndates accommodation, not merely tolerance, of all religio ns, and forbids hostility toward any . . . . `[C]allous ind ifference' . . . was never intended by the Establishment Clause . . . . [and] would bring us into `war with our national traditio n as embodied in the First Amendment's guaranty of the free exerc ise of religion.'" (citations omitted)). In Mergens, the Supreme Court unequivocally held that: The Establishment Clause does not license gove rnment totreat religion and those who teach or practice it,

simply by virtue of their status as such, as s ubversive of American ideals and therefore subject to un ique

disabilities.

Mergens, 496 U.S. at 248. See also Rosenberger v. Rector & Visitors of University of Va., 115 S. Ct. 2510, 252 2 (1995) (where government program is neutral toward religio n (as Policy IKFD is), restrictions on religious speech are not justified by the Establishment Clause); such viewpoint discrimin ation risks fostering hostility to religion, undermining the ve ry neutrality of the Establishment Clause requires, id. at 2525. The First Amendment does not condemn legislati on or official policy that has the effect of assisting religion ge nerally; the First Amendment itself gives religion an exceptiona lly protected status. It does not necessitate an interpretation inhospitable to religion where religion may not be acknowledged in any public arena. Such an interpretation runs counter to the notion of neutrality and denigrates religion in violation of the Free Exercise Clause. See Lynch v. Donnelly, 465 U.S. 6 68, 673 (1983) (the Constitution does not "require the complete se paration of church and state; it affirmatively mandates accommo dation, not merely tolerance, of all religions, and forbids hos tility towards any . . . . Indeed . . . such hostility would brin g us into `war

with our national tradition as embodied in the Firs t Amendment's guaranty of the free exercise of religion.'"). Neu trality may be achieved through a policy, such as Policy IKFD, tha t is as hospitable to religion as it is to irreligion. The majority's "reasonable nonadherent" could not be confused into thinking that "his or her religious c hoices were disfavored." Opinion at 33. Policy IKFD mandates an explicit and unequivocal disclaimer, one that covers not onl y the official position of the school but also the views of any of the particular graduates, on the graduation program in the event the student body votes for the inclusion of prayer at t he graduation ceremony. Moreover, the outright ban on graduatio n prayer that the majority espouses would make a reasonable religionist believe that his or her exercise of religion was di sfavored by the state, especially against the pervasive backdro p of a century and a half of prayer at such gatherings.

C. Because I find that the first two Lemon prongs are not violated, I (unlike the majority) must move to the third prong, whether Policy IKFD fosters excessive institutional entanglement

between the church and the state. Lemon discusses two ways in which entanglement can be excessive. Entanglement may be implicated when a state policy or legislative act d raws the state into an intimate and continual monitoring or overse eing of religious matters. 403 U.S. at 614-22. Entangleme nt may also be implicated where a state policy or legislative act creates an abnormal potential for political divisiveness. 403 U.S. at 622. The Court has indicated, however, that political di visiveness alone will not create an entanglement. Lynch, 465 U.S. at 684(". . . this Court has not held that political divi siveness alone

can serve to invalidate otherwise permissible condu ct"). The Court has also recognized that "[e]ntanglement is a question of kind and degree." Lynch, 465 U.S. at 684. I find nothing in Policy IKFD which resembles the enduring entanglement identified in Lemon. By design Policy IKFD creates a virtual total absence of administrative entanglem ent of any sort. With regard to political divisiveness, Polic y IKFD involves absolutely no sponsorship or subsidy to an y religious institution or related organization. There is noth ing in the record which would suggest that Policy IKFD engende rs or will engender so high a degree of political divisiveness as to pose "a threat to the normal political process." Lemon, 40 3 U.S. at 622 (citations omitted). On the other hand, I would no t attribute the political divisiveness, to whatever extent it m ay or may not exist, which this lawsuit itself engenders, to Poli cy IKFD. SeeLynch, 465 U.S. at 684-85 ("A litigant cannot, by the very act of commencing a lawsuit, . . . create the appearance o f divisiveness and then exploit it as evidence of entanglement.") I do not find any evidence of excessive entanglement and am thus satisfied that Policy IKFD satisfies all three prongs of the Lemon test.

III. In closing, I must challenge the majority's vi ew that "the prevalence of religious beliefs and imagery cannot erode the state's obligation to protect the entire spectrum o f religious preferences from the most pious worshipper to the m ost committed atheist." Opinion at 37. The Free Exercise Clause guarantees against the interference of the state in expressive and associational religious activity. The free speech clause is a related, but more generic, guarantee for a broad ra nge of expressive and associational activity. It is well- acknowledged that neither clause offers unlimited protection for such activities. It is equally well-acknowledged that t he state may not impinge the interests of free exercise and free speech without proffering a compelling state interest and demonstrating the necessity of its restrictive action. Aside from the ACLU's assertion that Policy IK FD establishes or tends to establish a religion, it offers no comp elling reason, constitutional or otherwise, for a permanent injunc tion against a senior class' free choice to express thanks through its own prayer at a graduation ceremony. Thus, I believe t he free exercise and free expression interests of the gradu ating class of Highland Regional High School must prevail.