1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-24-1996

ACLU NJ v. Black Horse Pike Regional Bd. of

Education

Precedential or Non-Precedential:

Docket 94-5233

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"ACLU NJ v. Black Horse Pike Regional Bd. of Education" (1996). 1996 Decisions. Paper 182.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/182
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 No. 94-5233 

 THE AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY, 

 ON BEHALF OF ITS MEMBERS; AND EDWARD ROSS 

 v. 

 BLACK HORSE PIKE REGIONAL BOARD OF EDUCATION; 

 HIGHLAND REGIONAL HIGH SCHOOL; FRANK PALATUCCI, 

 PRINCIPAL IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES 

 Appellants 

 

 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, Circuit Judges. 

 

 Reargued In Banc: October 25, 1995 

 Before: SLOVITER, Chief Judge, BECKER, STAPLETON, 

 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 Appellants 
 

 OPINION OF THE COURT 

McKEE, Circuit Judge. 

 We are asked to decide whether a policy adopted by the Black 

Horse Pike Regional Board of Education that allows a vote of the 

senior class to determine if prayer will be included in high 

school graduation ceremonies is constitutional. For the reasons 

that follow we hold that this policy is inconsistent with the 

First Amendment of the United States Constitution. Accordingly, 

we will affirm, but modify, the permanent injunction issued by 

the district court. 

 I. FACTUAL BACKGROUND 

 The Black Horse Pike Regional Board of Education (the 

"School Board" or "Board") has had a longstanding tradition of 

including a nonsectarian invocation and benediction in high 

school graduation ceremonies. These prayers have historically 

been delivered by local clergy on a rotating basis in an attempt 

to afford different denominations the opportunity to be 

represented. 

 In May of 1993, the School Board decided to reconsider this 

policy because of the Supreme Court's decision in Lee 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 Superintendent of 

Schools tendered a policy entitled "Religion at Graduation 

Exercises" IKFD ("Version A") for the Board's consideration. 

Version A prohibited all prayer at graduation ceremonies. 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 963, 972 (5th 

Cir. 1992). The court in Jones had upheld a public school policy 

that allowed students to determine for themselves whether or not 

a prayer would be delivered at their graduation. 

 Two policies were presented to the Board at its May 23, 1993 

meeting. One version allowed graduating students to 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 parents [could] be 

asked to think silently about what has been and what is to come 

for each graduate." App. at 144. A group of students who had 

previously asked to address the Board on this issue attended the 

meeting and spoke in favor of Version D. At the conclusion of 

the meeting, the Board unanimously adopted Version D. That 

policy, as finally adopted, allowed the senior class 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 Exercises," and 

the text began as follows: 
 After reading recent decisions of the United 

 States Supreme Court and interpretations of 

 those decisions, the Board of Education 

 concludes the long standing practice of 

 conducting invocation and benediction prayer 

 at graduation ceremonies and at other school 

 functions is proper and legal under the 

 following conditions: 

 

 1. The Board of Education, administration 

 and staff of the schools shall not endorse, 

 organize or in any way promote prayer at 

 school functions. 

 

 2. In the spirit of protected speech, the 

 pupils in attendance must choose to have 

 prayer conducted. Such prayer must be 

 performed by a student volunteer 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 . . . provides pupils with 

an opportunity to choose prayer, a moment of reflection, or 

nothing at all." Version D of Policy IKFD further required that 

printed programs for the graduation include a disclaimer 

explaining that any presentation that may be given at 

commencement did not reflect the views of the School Board, the 

School District, administrators, staff, or other students. 

 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 would be taken 

of the senior class, and how the balloting would be conducted. 

The vote was taken the next day and produced the following 

results: 128 students voted for prayer, 120 for reflection/moment 

of silence, and 20 voted to have neither. Students then 

volunteered to deliver the graduation prayer, and the 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 speak at the 

graduation to discuss safe sex and condom distribution. 

Principal Palatucci denied Ross' request explaining that the time 

constraints of the ceremony would not permit a keynote speaker, 

and that the topic requested was not generally one discussed at 

graduation ceremonies. 

 II. PROCEDURAL HISTORY 
 On June 18, 1993, the ACLU and Edward Ross filed a Complaint 

in the District Court for the District of New Jersey, in which 

they asked the court to enjoin any student-led prayer at 

graduation. The Complaint alleged that the proposed prayer 

violated the First Amendment of the United States Constitution 

and Article I, Paragraph 4 of the New Jersey Constitution. 

 By Order entered June 24, 1993, the district court 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 from 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 entered an order that 

stated in part: 

 [T]he graduation ceremony is a school 

 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 perspective, 

 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, their 

 agents and employees, and all those acting in 

 concert with them are hereby enjoined from 

 conducting a school sponsored graduation 

 ceremony that includes a prayer whether it 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 March 29, 1994, 

the district court entered a final order, consistent with the 

aforementioned order of this court, reversing the court's 

previous denial of the preliminary injunction. The district 

court permanently enjoined the School Board from "conducting a 

school-sponsored graduation ceremony that include[d] prayer, 

whether it be an invocation, a benediction or a prayer in any 

other form." App. at 210. On April 28, 1994, the School Board 

filed this appeal. The matter is now before this court in banc. 

 III. OUR SCOPE OF REVIEW We review a district 

court's decision to grant or deny a 

permanent injunction under an abuse of discretion standard. 

International Union, UAW v. Mack Trucks, Inc., 820 F.2d 91, 94 
(3d Cir. 1987). "An abuse of discretion exists where the 

district court's decision rests upon a clearly erroneous finding 

of fact, an errant conclusion of law, or an improper application 

of law to fact." Id. at 95. 

 In this case, the district court did not render a decision 

on the merits as to whether plaintiffs were entitled 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 emergency ruling of 

a two-judge panel of this court granting plaintiffs' motion for a 

preliminary injunction. As the district court expressly 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 since 

 the motion for a preliminary injunction, we 

 feel constrained to enter a final judgment in 

 accordance with the Third Circuit's order of 

 June 25, 1993. We make it clear that the

 opinion of the Court remains that expressed 

 in the oral opinion of June 24, 1993. 

 However, due regard for our "hierarchical

 federal judicial system," particularly where 

 the reviewing panel has had the same record 

 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 emergency basis 

under the standard for the granting of a preliminary injunction 

-- a standard which differs from the standard for granting a 

permanent injunction. Its decision to grant a preliminary 

injunction was based on an assessment of the likelihood that 

plaintiffs would succeed on the merits, and neither constitutes 

nor substitutes for an actual finding that plaintiffs 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." Helvering 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 properly issued on 

some other ground. 

 IV. DISCUSSION 

 A. The Free Speech Rights of Students 

 The Board relies upon the student referendum in an attempt 

to define the instant controversy as one impacting upon the 
students' right of free speech as opposed to a dispute over the 

constitutionality of prayer at a public high school graduation. 

Version D of Policy IKFD does state: "[i]n the spirit of 

protected free speech, the pupils in attendance must choose to 

have prayer conducted," App. at 180. However, Version D allowed 

the 128 seniors who wanted verbal prayer at their graduation to 

impose their will upon 140 of their fellow classmates who did 

not. The Board's position would have us recognize a right in 

that plurality to do so, and ignore the right of others to 

worship in a different manner, or in no manner at all. This we 

can not do because "the individual freedom of conscience 

protected by the First Amendment embraces the right to select any 

religious faith or none at all." Wallace v. Jaffree, 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 Clause of the First 

Amendment is addressed to this contingency and rejects 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 complementary 

 components of a broader concept of individual 

 freedom of mind, so also the individual's 

 freedom to choose his own creed is the 

 counterpart of his right to refrain from 

 accepting the creed established by the 

 majority. 

 

Wallace, 472 U.S. at 52. 

 An impermissible practice can not be transformed into a 

constitutionally acceptable one by putting a democratic process 

to an improper use. There should be no question "that the 

electorate as a whole, whether by referendum or otherwise, could 

not order [governmental] action violative of the [Constitution], 

and the [government] may not avoid the strictures of [the 

Constitution] by deferring to the wishes or objections of some 

fraction of the body politic." City of Cleburne v. Cleburne 

Living Center, 473 U.S. 432, 448 (1985) (citation omitted). A 

policy that does this can not be legitimized by arguing that it 

promotes the free speech of the majority. 

 The First Amendment protects speech and 

 religion by quite different mechanisms. 

 Speech is protected by insuring its full 

 expression . . . . The method for protecting 

 freedom of worship and freedom of conscience 

 in religious matters is quite the reverse. . 

 . . The Free Exercise Clause embraces a 

 freedom of conscience and worship that has 

 close parallels in the speech provisions of 

 the First Amendment, but the Establishment 

 Clause is a specific prohibition on forms of 

 state intervention in religious affairs with 

 no precise counterpart in the speech 

 provisions. 

 
Lee, 505 U.S. at 591. 

 Although it is necessary to reconcile one's own 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 preferences to be 

compromised in this manner. 

 The very purpose of a Bill of Rights was to 

 withdraw certain subjects from the 

 vicissitudes of political controversy, 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 not be submitted 

 to vote; they depend on the outcome of no 

 elections. 

 

 Board of Educ. v. Barnette, 319 U.S. 624, 638 (1943). 

 High school graduation ceremonies have not been 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 Highland 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 submitted to referendum 

of the graduating seniors because the principal understandably 

determined that the proposed topic was not suitable for 

graduation. We do not suggest that the school's response to this 

request was inappropriate. However, we do note that the response 

illustrates the degree of control the administration retained 

over student speech at graduation. Version D was not intended to 

broaden the rights of students to speak at graduation, 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 violate 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 particular policy, 

addressed only to providing an option for continuing prayer at 

graduation after Lee, can be legitimized as promoting the free 

speech rights of the students. 

 B. Lee v. Weisman 

 The degree of control that school officials retained 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 deliver the 

invocation and benediction at the school's graduation, in 

accordance with school district practice. The principal gave the 

rabbi a pamphlet containing guidelines to be followed in giving 

public prayers at civic occasions and told the rabbi that the 

prayers should be non-sectarian. Id. at 581. The graduation 

ceremony at which the prayers were given was held on school 

property, and the parties stipulated that attendance at the 
ceremony was voluntary. After the processional, the students 

remained standing for the Pledge of Allegiance, and for the 

rabbi's very brief invocation. 

 In ruling the prayer unconstitutional, the Supreme Court 

emphasized: 

 These dominant facts mark and control 

 the confines of our decision: [1] State 

 officials direct the performance of a formal 

 religious exercise at promotional and 

 graduation ceremonies for secondary schools. 

 [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 district 

 does not require attendance as a condition 

 for receipt of the diploma. 

Id. at 586. Accordingly, we must examine (1) the state's control 

of the graduation ceremony, and (2) the students' coerced 

participation in the ceremony here. 

 (1) 

 The School Board argues that the student referendum here 

significantly distinguishes this case from Lee. We disagree. It 

is, of course, true that the state's entanglement with the 

graduation prayer in Lee was more obvious, pronounced, and 

intrusive than the School District's involvement here. In Lee, 

the principal decided prayer would be included in the ceremony, 

chose the clergy person who would give the prayer, and even 

determined part of the content of the prayer by giving 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 certainly 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 decide 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 Highland's 

graduations is characterized by order and uniformity. School 

officials necessarily "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." Lee, 505 

U.S. at 597. Principal Palatucci testified before the district 

court that any student who attempted to give an unscheduled 

address at graduation in contravention of administrative 

direction would be arrested if police were available, even if a 

majority of the graduating students had previously approved. The 

district court carefully questioned the principal about what he 

would do if a majority of the student body, without

administrative approval, voted to have a speaker who would not be 

included in the program but would be introduced by the 

valedictorian and allowed to give a one minute speech. The 
principal responded: "I couldn't allow that to happen. . . . If I 

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

the school officials' involvement and control is not as limited, 

unintrusive, or neutral as the School Board suggests. 

 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 delegation here may 

appear to many to be no more than a neutral means of deciding 

whether prayer should be included in the graduation, it does not 

insulate the School Board from the reach of the First Amendment. 

"[C]ourts must keep in mind both the fundamental place held by 

the Establishment Clause in our constitutional scheme and the 

myriad, subtle ways in which the Establishment Clause values can 

be eroded." Lynch v. Donnelly, 465 U.S. 668, 694 (1984) 

(O'Connor, J., concurring). 

 Furthermore, the text of Version D affirms that it was 

adopted in response to Lee. The Board's avowed purpose in 

reexamining its policy was to provide an option that might allow 

the "longstanding tradition" of graduation prayer to survive the 

prohibitions of that Supreme Court decision. We believe that the 

control exercised by state officials here, though different in 

degree than was present in Lee, is not sufficiently distinct to 

require a different result under the "first dominant fact" of 

Lee. 

 (2) 

 "[T]here are heightened concerns with protecting freedom of 

conscience from subtle coercive pressure in the elementary and 

secondary public schools." Lee. 505 U.S. at 592. We find no 

difference whatsoever between the coercion in Lee and the 

coercion here. A high school graduation is distinguishable from 

forums such as a legislative session where prayer has 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 penalty, direct or 

indirect." School Dist. of Abington Twnshp v. Schempp, 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 ceremonies is 

voluntary in a legal sense does not save the religious exercise." 

Lee, 505 U.S. at 596. The objector's presence at his or her 

graduation compels participation in the religious observance 

decreed by the results of the poll that is sanctioned 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 religious 

 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 the 
 school district's supervision and control of 

 a high school graduation ceremony places 

 public pressure, as well as peer pressure, on 

 attending students to stand as a group or, at 

 least, maintain respectful silence during the 

 Invocation and Benediction. This pressure, 

 though subtle and indirect, can be as real as 

 any overt compulsion. . . . [F]or the 

 dissenter of high school age, who 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 participation should be 

avoided in this setting. Id. at 588 (students "had no real 

alternative which would have allowed [them] to avoid the fact or 

appearance of participation"). 

 Here, the hypothetical dissenter in Lee is replaced by 140 

students who voted not to have a formal prayer at their public 

high school graduation. The Board's policy would have required 

each of those 140 students to participate (or at the very least 

maintain respectful silence) as others engaged in student-led 

worship. "It is beyond dispute that, at a minimum, the 

Constitution guarantees that government may not coerce 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 sense compelled 

attendance and participation in an explicit religious exercise at 

an event of singular importance to every student, one the 

objecting student had no real alternative to avoid." Id. at 598. 

Students at Highland had to either conform to the model of 

worship commanded by the plurality or absent themselves from 

graduation and thereby forego one of the most important events in 

their lives. That is an improper choice to force upon dissenting 

students. 

 [T]o say a teenage student has a real choice 

 not to attend her high school graduation is 

 formalistic in the extreme. . . . Everyone 

 knows that in our society and in our culture 

 high school graduation is one of life's most 

 significant occasions. A school rule which 

 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 as 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 sponsored event. "The 

First Amendment has lost much if the religious follower 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 conducted at a 

 graduation ceremony in circumstances where . 

 . . young graduates who object are induced to 

 conform. No holding by th[e Supreme Court] 

 suggests a school can persuade or compel a 

 student to participate in a religious 

 exercise. That is being done here, 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 referenced "wall of 

separation" between church and state has recently been described 

as more "metaphor" than reality. However, even if the "wall" is 

more metaphor than mortar, it is sufficiently unyielding 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 help to 

recapture some of the separation between church and state that 

has been obscured by the state's control over the graduation. 

However, the Board cannot sanction coerced participation in a 

religious observance merely by disclaiming responsibility for the 

content of the ceremony. Given the protections inherent 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 religious beliefs 

of others. Yet, that is exactly what Version D allows. 

 We recognize that the Court of Appeals for the Fifth 

Circuit has reached a result contrary to the one we reach today. 

See Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963 (5th 

Cir. 1992), cert. denied, 113 S. Ct. 2950 (1993). Indeed, as 

stated earlier, the administration at Highland promulgated 

Version D pursuant to the Board's instruction to develop a policy 

that would parallel the holding of Jones. We are not, however, 

persuaded by that court's analysis. Jones also involved a 

challenge to a policy that allowed students to decide if they 

wanted prayer at a public school's graduation ceremony. The 

Jones court upheld the policy while acknowledging that "the 

practical result of [its] decision, viewed in light of Lee, is 

that a majority of students can do what the State acting 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 205, *6 (5th 

Cir. Jan. 10, 1996) (affirming an order that enjoined enforcement 

of a Mississippi statute allowing prayer at compulsory and 

noncompulsory school events, "except as to nonsectarian, 

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 in public 
schools, but in the context of extra-curricular activities for 

which students received academic credit. The court held that the 

school district's practice of allowing its employees to initiate 

or merely participate in prayers at basketball games and 

basketball practices was unconstitutional. The court 

distinguished Jones by noting that graduation prayer occurred at 

a "once-in-a-lifetime event that could be appropriately marked 

with a prayer," that the students in Jones were mature seniors, 

and "that the challenged prayer was to be non-sectarian and nonproselytizing." Id. at 406-07. 

 We are not persuaded by these distinctions. Lee clearly 

established that the "once-in-a-lifetime event" does not justify 

allowing a public school to authorize collective prayer under the 

circumstances of that case. To the contrary, the significance 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 denied the option 

of foregoing the ceremony to avoid compromising their religious 

scruples. See Lee, 505 U.S. at 595-96. Similarly, the Court in 

Lee was not convinced that the maturity level of high school 

students immunized them from the coercion endemic in coerced 

participation. Id. at 593 ("[F]or the dissenter of high school 

age, who 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 no less real."). Indeed, few would doubt the influence 

of peer pressure upon children in high school. Furthermore, we 

are not inclined to alter our analysis merely because Version D 

does not expressly allow proselytization. See County 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 graduating 

seniors to vote on whether prayer should be included in their 

graduation ceremony. The court concluded that the challenged 

practice violated the Establishment Clause even though any 

graduation prayer would have to be initiated, selected, and 

delivered by students. 

 We cannot allow the school district's 

 delegate to make decisions that the school 

 district cannot make. When the senior class 

 is given plenary power over a state- 

 sponsored, state-controlled event such as 

 high school graduation, it is just as 

 constrained by the Constitution as the state 

 would be. 

 Id. at 455. 

 The court noted that faculty members and administrators 

still supervised and controlled the graduation ceremony, and the 

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

involvement offended the Establishment Clause. Id. at 454-55. 

"[T]hat school officials cannot divest themselves of 

constitutional responsibility by allowing the students to make 

crucial decisions should not be surprising. . . . Elected 
officials cannot avoid constitutional mandates by putting them to 

a majority vote." Id. at 455. Indeed, if the vitality of our 

fundamental liberties turned upon their ability to inspire the 

support of a majority, the longevity of our "inalienable rights" 

would be controlled by the ebb and flow of political 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 government practice 

offends the Establishment Clause. Under Lemon, a government 

practice regarding religion will not offend the Establishment 

Clause if: (1) it has a secular purpose; (2) its principal or 

primary effect neither advances nor inhibits religion; and (3) it 

does not create an excessive entanglement of the government with 

religion. Id. at 612-13. "The" Lemon test has been referred to 

as one test, although the case itself suggests that it is a 

compilation of several approaches that have been used in 

conducting an inquiry under the Establishment Clause. 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 criticized on 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."). Nevertheless, the 

framework of Lemon remains. Wallace, 472 U.S. at 63 (Powell, J., 

concurring) ("Lemon v. Kurtzman identifies standards that have 

proved useful in analyzing case after case both in our decisions 

and in those of other courts. It is the only coherent 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-defined 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, which have 

guided this Court's Establishment Clause decisions in over 30 

cases."). 

 The Lemon test has been the subject of critical 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 recent decisions 

(including Lee). Nevertheless, Lemon remains the law of the 

land, and we are obligated to consider it until instructed 

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 secular purpose of 

recognizing the students' rights to free speech and their desire 

to solemnize the occasion. As we noted earlier, the Board's 

proclamation of the purpose of promoting free speech must be 

viewed in context with the policy's emphasis on providing an 
option that would allow prayer to be delivered at graduation 

after Lee. 

 "Law reaches past formalism." Lee, 505 U.S. at 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. Spang, 957 F.2d 

1108, 1118 (3d Cir. 1992) (citation omitted). Version D is no 

different in this respect. Principal Palatucci's testimony as to 

his readiness to arrest any student who might attempt to speak at 

graduation without prior approval of the administration (even if 

the graduates have approved) demonstrates the degree to which 

Version D is intended to further the secular purpose of free 

speech. 

 Prayer is, of course, religious speech, see Engel v. Vitale, 

370 U.S. 421, 424-25 (1962). However, the constitutional 

guarantee of free speech does not secularize Version D's attempt 

to preserve "the long standing practice of conducting invocation 

and benediction prayer at graduation ceremonies." The 

Superintendent of Schools testified that when students were 

previously allowed to speak at graduation, their speeches had to 

be reviewed and approved by a faculty adviser or other school 

official; students were not allowed to speak on whatever topic 

they chose and the content of student speeches -- even when 

authorized -- was monitored. App. at 132-33. Yet, Version D 

prohibits school officials from reviewing the content of any 

student-led prayer that may be given. This "hands-off" approach 

only applies to religious speech, and is in stark contrast 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 (the 

administration's control over the content of the prayer). 

 In addition, Version D permits a student to give a 

sectarian, proselytizing address. If a student were to decide to 

give such an address after a student referendum "authorized" 

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) would 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 decline 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 prayer 

solemnizes the graduation, but we are unable to understand why 

graduation would be any less solemn if students were not 

permitted to vote for prayer, a moment of silence or no 

observance at graduation. Surely students who graduate in a year 

where students may chose to have no prayer at all would think 

their graduation to be a solemn event, and it is doubtful that 

the Board would disagree with that assessment. The Supreme Court 

has approved religious invocations to solemnize the opening of 
legislative sessions, see Marsh, 463 U.S. at 795 (1983) (a 

context easily distinguishable from a public high school 

graduation as noted supra). The Court has also upheld 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 States and this 

honorable court.'" Lynch, 465 U.S. at 693 (O'Connor, J., 

concurring). However, we do not think the policy before us can 

be saved merely by the Board proclaiming that the policy serves a 

solemnizing purpose. See Stone v. Graham, 449 U.S. 39, 41 (1980) 

(posting the Ten Commandments on the walls of public school 

classrooms violated the purpose prong of Lemon despite the 

state's avowed secular purposes of teaching the values conveyed 

by the Ten Commandments and demonstrating their connection 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 have a religious 

objection to such a vote and may, therefore, refuse to vote out 

of religious conviction. Version D puts such students on the 

horns of an impossible dilemma by forcing them to chose between 

doing violence to their own religious beliefs and voting, or 

abstaining and thereby risking that their forbearance may provide 

the margin of victory for those with a different religious 

preference. Regardless of how the referendum comes out, this 

state policy has forced such a student into an impossible, and 

impermissible, choice. Accord Engel, 370 U.S. at 431-32 ("The 

Establishment Clause thus stands as an expression of principle on 

the part of the Founders of our Constitution that religion is too 

personal, too sacred, too holy, to permit its `unhallowed 

perversion' by [the State]."). Still other students may face a 

similar predicament because they are atheists and refuse to vote 

out of conscience -- as is their right. Such a Hobson's choice 

"sends a message to nonadherents that they are outsiders, not 

full members of the political community . . . ." Lynch, 465 U.S. 

at 688 (O'Connor, J., concurring). The Constitution forbids that 

message, just as it forbids the procedure authorized 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 communicating 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 Lemon or a 

separate inquiry apart from it, the import of the test is the 

same. We must determine whether, under the totality of the 

circumstances, the challenged practice conveys a message favoring 

or disfavoring religion. "The question under endorsement 

analysis, in short, is whether a reasonable observer would view 
such longstanding practices as a disapproval of his or her 

particular religious choices . . . ." Allegheny, 492 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, 404 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 ubiquity' of a 

practice is relevant because it provides part of the context in 

which a reasonable observer evaluates whether a challenged 

governmental practice conveys a message of endorsement of 

religion." Id. at 630. 

 The importance of the context of a challenged practice is 

illustrated by comparing the holding of the Court in Lynch with 

the holding in Allegheny. In Lynch, the Court held that a city 

did not offend the Establishment Clause by including a creche 

depicting the Nativity scene, along with other figures 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 Santa Claus 

house, reindeer . . ., candy-striped poles, a Christmas tree," 

and numerous other figures including a clown, elephant and teddy 

bear. Id. at 671. Notwithstanding the religious significance of 

the creche, the Court reasoned that "[w]hen viewed in the proper 

context of the Christmas Holiday season, it is apparent 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. at 680. The 

Court felt that the creche "depict[ed] the historical origins of 

this traditional event long recognized as a National 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 creche was 

located on the Grand Staircase of the county courthouse. 492 

U.S. at 578. The display was also surrounded by a fence and 

poinsettia floral frame and included small evergreen trees, but 

unlike the display in Lynch, did not include figures 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 impossible 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 may celebrate 

 Christmas in some manner and form, but not in 

 a way that endorses Christian doctrine. 

 Here, Allegheny County has transgressed this 

 line. It has chosen to celebrate Christmas 
 in a way that has the effect of endorsing a 

 patently Christian message: Glory to God for 

 the birth of Jesus Christ. Under Lynch, and 

 the rest of our cases, nothing more is 

 required to demonstrate a violation of the 

 Establishment Clause. 

 Id. at 601-02. 

 However, the Court upheld the city's display of 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 reasoned: 

 [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 simply 

 recognizes that both Christmas and Chanukah 

 are part of the same winter-holiday season, 

 which has attained a secular status in our 

 society. Of the two interpretations of this 

 particular display, the latter seems far more 

 plausible . . . . 

Id. at 616. Accordingly, the reasonable observer would 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 perpetuate after 

Lee would certainly leave the reasonable nonadherent with the 

impression that his or her religious choices were disfavored. 

This is particularly true where, as here, prayer would 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 require the view 

that prevails in any given year to prevail in subsequent years, 

it is nonetheless true that the effect of the particular prayer 

that is offered in any given year will be to advance religion and 

coerce dissenting students. See Jaffree v. Wallace, 705 F.2d 

1526, 1534-35 (11th Cir.) ("The primary effect of prayer is the 

advancement of one's religious beliefs."), reh'g denied, 713 F.2d 

614 (11th Cir. 1983), aff'd, 466 U.S. 924 (1984). The 

Constitution's "prohibition against governmental endorsement of 

religion `preclude[s] government from conveying or attempting to 

convey a message that religion or a particular religious 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 dissemination of 

religious ideas"). 

 The disclaimer that is required by Version D does weigh in 

favor of the Board's position under a Lemon analysis. However, 

it does not weigh so heavily as to neutralize the counterweight 

of the advantage the policy gives religious speech over secular 

speech. Despite the printed disclaimer, the reasonable observer 
here could not help but conclude that the Board favors the 

inclusion of prayer. 

 "[N]ot every law that confers an `indirect,' `remote,' or 

`incidental' benefit upon [religion] is, for that reason alone, 

constitutionally invalid." Nyquist, 413 U.S. at 771 (citation 

omitted). However, Version D provides a benefit that is neither 

"indirect," "remote," nor "incidental." The Supreme Court has 

never countenanced a practice that requires some members of a 

community to subordinate their religious preferences to those of 

a majority. Rather, "[t]he Establishment Clause, at the very 

least, prohibits government from appearing to take a position on 

questions of religious belief or from `making adherence 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 Church of Jesus 

Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 336-37 (1987) 

(upholding law exempting religious employers from Title VII); 

Zorach, 343 U.S. at 314-15 (upholding statutory "released time" 

program whereby public schools release students during the school 

day to receive off-site religious education), "accommodation is 

not a principle without limits." Kiryas Joel, 114 S. Ct. at 

2492. The Supreme Court "[has] never hinted that an 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 that 

 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 about it 

 before and after the ceremony. They may even 

 organize a privately sponsored baccalaureate 

 if they desire the company of like-minded

 students. Because they accordingly have no 

 need for the machinery of the State to affirm 

 their beliefs, the government's sponsorship 

 of prayer at the graduation ceremony is most 

 reasonably understood as an official 

 endorsement of religion . . . . 

505 U.S. at 629-30 (Souter, J., concurring). 

 Whatever accommodation may require, it is clear 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 Establishment 

Clauses compels the State to pursue a course of `neutrality' 

toward religion, favoring neither one religion over others nor 

religious adherents collectively over nonadherents.") (internal 

quotations and citation omitted). Version D can not be justified 

as an accommodation because it seeks to accommodate the 

preference of some at the expense of others and thereby crosses 
the required line of neutrality. "The First Amendment . . . 

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 omitted). 

 (3) Excessive Entanglement With Religion 

 The third prong of the Lemon test -- no excessive 

entanglement of government with religion -- is a much closer 

question. As noted earlier, the state's involvement here is far 

less than the entanglement that was present in Lemon. However, 

because we find that Version D of Policy IKFD violates 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 sincerity 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 before the 

district court that he received threatening letters in his school 

locker and threatening telephone calls at home after 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 313-14. Yet, 

the prevalence of religious beliefs and imagery cannot erode the 

state's obligation to protect the entire spectrum of religious 

preferences from the most pious worshipper to the most 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 policy that only 

respects religious views that are popular because the largest 

majority can not be licensed to impose its religious preferences 

upon the smallest minority. 

 We need not now address the parameters of these 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 that includes a 

prayer, whether it be an invocation, a benediction or a prayer in 

any other form." App. at 210. In context, we understand the 

district court's order to foreclose a school-sponsored graduation 

service involving an invocation, benediction or prayer pursuant 

to Policy IKFD Version D. As so read, we affirm the judgment of 

the district court. 

 

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

94-5233 

MANSMANN, Circuit Judge, dissenting, joined by Judges Nygaard, 

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

us, whether student-initiated, -directed and -composed prayer at 

high school graduation violates the First Amendment, requires 

that we examine the application of both the Establishment Clause 

and the free exercise/free speech right, balancing the graduates' 

free exercise and speech rights against any compelling state 

interest which might otherwise justify impinging these 

guarantees. 

 In placing these interests on the balance scale, I am 

concerned, however, that an approach which exaggerates and 

emphasizes the Court's Establishment Clause tests would be 

fragmented and would tend to imply that the First Amendment 

religion clauses embody contradictory and irreconcilable 

principles. The Court's free exercise jurisprudence clearly 

suggests that a separation policy which overextends into the 

domain of free exercise and free speech must be suspect. 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 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"). Thus, I would analyze the present case in light of 

the fact that while the state may not establish a religion, it 

must not also disadvantage or discriminate against studentreligious 

activity, nor imply that religion, or religious acts, 

are disfavored. 

 In light of the Establishment Clause's broad purpose to 

serve the free exercise of religion, I would hold that here the 

narrowly fact-bound holding of Lee v. Weisman, 112 S. Ct. 2649 

(1992), does not preclude such student directed, composed and 

delivered prayer as an integral segment of the graduation 

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 articulated in 

Lemon v. Kurtzman, 403 U.S. 602 (1971), I would hold that the 

defendants' challenged activity also meets the Lemon 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 free exercise 

and free expression. Thus, I would reverse the permanent 

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 graduation 

ceremony for Deborah Weisman, chose a rabbi to offer the prayer, 

gave the rabbi guidelines on the content of the prayer, 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 rabbi's prayer 

constituted direct state control. These findings, combined with 

the Court's finding that the school's supervision and control of 
high school graduation subtlely coerced graduates to stand in 

respectful silence during the invocation, rendered the state 

action unconstitutional, despite the fact that participation in 

the prayer or in the graduation ceremony itself was voluntary. 

112 S. Ct. at 2655-56. Emphasizing that the particular facts in 

the case were outcome-determinative, the Court stated: 

 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. 

112 S. Ct. at 2655. 

 Adverting to the "heightened concerns with protecting 

freedom of conscience from subtle coercive pressure in the 

elementary and secondary public schools," id. at 2658, the Court 

asserted that the effort on the part of the school official to 

"monitor prayer will be perceived by the students as 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 high 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 case. 

In Lee the Court found the following, working in tandem, to 

constitute state sponsorship: 

 1) The high school principal, a state actor, made a 

unilateral decision to include an invocation and benediction 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 invocation and 

benediction to be given. 

 The case before us contains neither the indicia 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 decisional process 

and without the active or surreptitious influence or monitoring 

by school officials. Policy IKFD precludes the invitation of a 

clergyman to deliver any invocation. No school official may 

influence or monitor the content of the prayer. The polling 

instrument itself is neutral. The government practice in 
question here is not a decision to include prayer at 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 graduating class to 

vote on the issue of graduation prayer while maintaining 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 attributed 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 student's request 

for a "safe sex" speaker at graduation, and 2) when the principal 

stated that he would not permit an unscheduled speaker. 

Certainly the school, without violating the neutrality principles 

of Lemon, could restrict all speeches as to time and indeed as to 

appropriateness -- here, to "solemnizing" speech; Policy IKFD's 

subject matter and speaker restrictions do not constitute 

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 963 (5th Cir. 

1992), a graduation prayer case factually similar to the case 

before us. In Jones, the Supreme Court vacated the Fifth 

Circuit's judgment and remanded the case for further 

consideration in light of the Court's decision in Lee v. Weisman, 

which the Court decided subsequent to the Fifth Circuit's first 

determination. Upon reconsideration, the Fifth Circuit held that 

Lee did not invalidate Clear Creek's graduation and invocation 

policy, which did not mandate prayer or any invocation, but 

merely permitted graduation prayer to be delivered by a graduate 

if the graduating class so chose. Moreover, in Jones 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. This single 

fact, which is absent in the case before us, placed the Jonescase even 

closer to the constitutional boundary established in 

Lee than the case before us. Nevertheless, the Fifth Circuit 

held that Clear Creek exercised significantly less control over 

the invocation content than did the school principal in Lee v. 

Weisman, noting that Clear Creek did not solicit invocations, but 

merely refused to accept sectarian or proselytizing invocations. 

977 F.2d at 971. The court noted that the resolution merely 

tolerated nonsectarian, non-proselytizing prayer, but neither 

required nor favored it. Id. 

 By contrast, Black Horse's policy for prayer at graduation 

ceremonies is more liberal in that it extends the scope 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 inhibition of the 

practice of religion or of free expression, while at the same 

time precludes even the remote possibility of an establishment 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 stresses, to be 

absent where the graduating seniors have participated in the 

decision regarding prayer at graduation. There could not be any 

confusion on the part of the reasonable graduating senior, who 

has been made aware of the senior class poll and has been invited 

to participate, with regard to whether the result of 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 rest of the 

younger, less mature high school student body, prior Supreme 

Court caselaw has acknowledged that post-secondary school 

students are less easily coerced than younger students. See, 

e.g., Board of Educ. of Westside Community Schools v. Mergens, 

496 U.S. 226, 235-37, 250 (1990) ("university students are . . . 

less impressionable than younger students") (citing Widmar v. 

Vincent, 454 U.S. 263, 274, n.14 (1981)). The graduation 

ceremony itself is a public ritual symbolic of the graduates' 

passage into responsible young adulthood, and is synchronized, 

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 elevates the studentto the 

status of graduate, must be considered. Although the 

student/graduate distinction did not countermand the other 

various facts which the Court in Lee weighed against graduation 

prayer, I believe that the graduation ceremony setting is 

significantly different in nature from the classroom setting, and 

in the absence of other offending factors, warrants a less 

restrictive approach to religion. Certainly the contested 

activity does not involve the curriculum of the school; nor does 

the graduation ceremony implicate the teacher-student 

relationship concerning the transmission of knowledge from the 

former to the latter. Thus, the concerns which the Court has 

expressed in those cases where some form of religion has been 

injected into the school curriculum are not directly operative 

here. See, e.g., Edwards v. Aguillard, 482 U.S. 578 (1987) 

(teaching of scientific evidence supporting creation theory); 

Wallace v. Jaffree, 472 U.S. 38 (1985) (moment of silence at 

beginning of each school day); Stone v. Graham, 449 U.S. 39 

(1980) (posting of Ten Commandments on classroom walls); 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 Education, 333 

U.S. 203 (1948) (weekly religious instruction in public school 

buildings during school hours by members of clergy). 

 I do not share the majority's confidence in the Ninth 

Circuit's holding in Harris v. Joint Sch. Dist. No. 241, 41 F.3d 

447 (9th Cir. 1994), cert. granted, vacated and remanded, ___ 

U.S. ___, 115 S. Ct. 2604, 132 L.ED.2d 849 (1995). Following the 

precedent set by an earlier Ninth Circuit case, Collins v. 

Chandler Unified Sch. Dist., 644 F.2d 759 (9th Cir.), cert. 

denied, 454 U.S. 863 (1981), the court in Harris held that "the 
school ultimately controls [the graduation] event" and hence 

cannot avoid state involvement so as to implicate the 

Establishment Clause as interpreted under Lee. 41 F.3d at 454. 

The court further held that the seniors' decision regarding 

prayer was per se tainted with official sanction because the 

seniors derived their decisional authority from the delegation of 

official school authority and because "the school under[wrote] 

the [graduation] event" by providing the use of the school 

building. Id. In my view, this holding would preclude virtually 

all prayer at a public high school graduation ceremony, a holding 

which unnecessarily and without warrant extends the holding of 

Lee. I am also concerned that the Ninth Circuit failed to 

distinguish the classroom setting from the graduation setting, 

and the student from the graduate. 41 F.3d at 458. I find no 

precedent supporting the Ninth Circuit's position that public 

high school seniors "enter[] the domain of the Establishment 

Clause," id., and are precluded from independently choosing to 

communally express their gratitude to God, invoke the divine 

presence or seek God's blessing, as part of their graduation 

ceremony. Since all aspects of the graduation prayer decision 

are at the discretion of the graduating senior class, I would 

hold that Policy IKFD does not unconstitutionally establish a 

religion under Lee. 

 II. 

 I agree with the majority that the Lemon test is still 

precedential, although from the start it has been the focus of 

critical debate, including the irony that its application 

encourages the federal courts to regulate in an area for which 

the First Amendment was designed to insure against any government 

interference. I part company in that I believe that 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 compromised 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 generally has 

exercised deference with regard to stated legislative or policy 

purpose, and will find a sham secular purpose only when there can 

be no question that the challenged conduct establishes, 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 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.") (citing 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 Edwards 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 to have prayer 

. . . ." (emphasis added). In addition to this express secular 

purpose of promoting the free speech of the graduating seniors, 

the school asserts that Policy IKFD serves the valid secular 

purpose of permitting the graduates to solemnize the occasion of 

their graduation through ceremonial prayer. The concern should 

not be, as the majority expresses it, that graduation would not 

be less solemn without the vote. The importance of ceremonial 

prayer is that the Court has acknowledged that it indeed 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 also Jones v. 

Clear Creek Indep. Sch. Dist., 977 F.2d at 966-67. 

 As the district court noted in the present case, Policy IKFD 

serves yet a third secular purpose which is educational, albeit 

not curriculum-related, in that the process of independently 

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 at graduation, 

for the many different reasons cited by the majority, to feel 

that they are not fully incorporated into the community. To the 

contrary, every graduate under Policy IKFD is fully invited to 

partake in the community via the right to vote on the issue of 

school prayer, and each individual graduate, regardless of his or 

her position on the issue, has an equal opportunity to influence 

the graduation ceremony. Here the challenged activity is a 

democratic exercise. There is no guarantee that the view that 

prevails in any given year will prevail in the following year. 

The reasonably tolerant graduate, knowing of his or her 

opportunity to partake in the class poll, cannot reasonably 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 disclaimer, and 

the neutrality of the polling instrument itself, would lead me to 

hold that the effect of Policy IKFD is not principally or 

primarily to advance religion. On the other hand, an absolute 

prohibition on ceremonial prayer at graduation would, in my view, 

violate the Free Exercise Clause by unduly inhibiting the 

practice of religion, and would also implicate the free speech 

guarantees of the First Amendment. 

 Given the school's highly credible express secular 

motivations and neutrality of purpose as regards religion, both 
written into Policy IKFD and argued before us, I would find that 

Policy IKFD easily passes the secular purpose test. The ACLU's 

assertions that Policy IKFD cannot satisfy this prong of Lemonbecause 

prayer is per se religious and that ceremonial prayer 

may not be utilized for purposes of solemnization or 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 wholly 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 state religion, I 

note that the members of the Court divide as to whether 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 the broad 

Judeo-Christian heritage of our civil and social order. This 

division persists despite the Court's attempt to interpret 

comprehensively the Establishment Clause in Everson v. Board of 

Education, 330 U.S. 1, 15-16 (1947), holding that the First 

Amendment prohibits the federal and state governments from 

offering non-preferential aid to all religions and from levying 

any tax to support any religious activity or institution. See, 

e.g., Wallace, 472 U.S. at 70 (O'Connor, J., concurring) ("[The 

endorsement test] does preclude government from conveying or 

attempting to convey a message that religion or a particular 

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 the part of 

government between religion and irreligion."); Zorach v. Clauson, 

343 U.S. 306, 313 (1952) ("We are a religious people whose 

institutions presuppose a Supreme Being."); Marsh v. Chambers, 

463 U.S. 783, 792 (1983) ("To invoke Divine guidance on a public 

body . . . is not . . . an `establishment' . . . or a step toward 

establishment; it is simply a tolerable acknowledgement of 

beliefs widely held among the people of this Country."); Lynch, 

465 U.S. at 673 (The Constitution "affirmatively mandates 

accommodation, not merely tolerance, of all religions, and 

forbids hostility toward any . . . . `[C]allous indifference' . . 

. was never intended by the Establishment Clause . . . . [and] 

would bring us into `war with our national tradition as embodied 

in the First Amendment's guaranty of the free exercise of 

religion.'" (citations omitted)). In Mergens, the Supreme Court 

unequivocally held that: 

 The Establishment Clause does not license government to 
 treat religion and those who teach or practice it, 

 simply by virtue of their status as such, as subversive 

 of American ideals and therefore subject to unique 

 disabilities. 

Mergens, 496 U.S. at 248. See also Rosenberger v. Rector & 

Visitors of University of Va., 115 S. Ct. 2510, 2522 (1995) 

(where government program is neutral toward religion (as Policy 

IKFD is), restrictions on religious speech are not justified by 

the Establishment Clause); such viewpoint discrimination risks 

fostering hostility to religion, undermining the very neutrality 

of the Establishment Clause requires, id. at 2525. 

 The First Amendment does not condemn legislation or official 

policy that has the effect of assisting religion generally; the 

First Amendment itself gives religion an exceptionally 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. 668, 673 (1983) 

(the Constitution does not "require the complete separation of 

church and state; it affirmatively mandates accommodation, not 

merely tolerance, of all religions, and forbids hostility towards 

any . . . . Indeed . . . such hostility would bring us into `war 

with our national tradition as embodied in the First Amendment's 

guaranty of the free exercise of religion.'"). Neutrality may be 

achieved through a policy, such as Policy IKFD, that 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 choices were 

disfavored." Opinion at 33. Policy IKFD mandates an explicit 

and unequivocal disclaimer, one that covers not only 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 the graduation 

ceremony. Moreover, the outright ban on graduation prayer 

that the majority espouses would make a reasonable religionist 

believe that his or her exercise of religion was disfavored by 

the state, especially against the pervasive backdrop 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 draws the state 

into an intimate and continual monitoring or overseeing of 

religious matters. 403 U.S. at 614-22. Entanglement 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 divisiveness 

alone will not create an entanglement. Lynch, 465 U.S. at 684 
(". . . this Court has not held that political divisiveness alone 

can serve to invalidate otherwise permissible conduct"). 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 entanglement of any 

sort. With regard to political divisiveness, Policy IKFD 

involves absolutely no sponsorship or subsidy to any religious 

institution or related organization. There is nothing in the 

record which would suggest that Policy IKFD engenders or will 

engender so high a degree of political divisiveness as to pose "a 

threat to the normal political process." Lemon, 403 U.S. at 622 

(citations omitted). On the other hand, I would not attribute 

the political divisiveness, to whatever extent it may or may not 

exist, which this lawsuit itself engenders, to Policy IKFD. SeeLynch, 465 

U.S. at 684-85 ("A litigant cannot, by the very act of 

commencing a lawsuit, . . . create the appearance of 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 view that "the 

prevalence of religious beliefs and imagery cannot erode the 

state's obligation to protect the entire spectrum of religious 

preferences from the most pious worshipper to the most 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 range of 

expressive and associational activity. It is well-acknowledged 

that neither clause offers unlimited protection for such 

activities. It is equally well-acknowledged that the 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 IKFD establishes 

or tends to establish a religion, it offers no compelling reason, 

constitutional or otherwise, for a permanent injunction against a 

senior class' free choice to express thanks through its own 

prayer at a graduation ceremony. Thus, I believe the free 

exercise and free expression interests of the graduating class of 

Highland Regional High School must prevail.