                                                                     [PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT                 FILED
                           ________________________         U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                                                  MAR 15 2000
                                   No. 98-2709
                                                               THOMAS K. KAHN
                           ________________________                 CLERK
                        D. C. Docket No. 98-460-CIV-J-10C

EMILY ADLER, individually; on behalf
of herself and all persons similarly situated,
SETH FINCK, individually; on behalf of
himself and all persons similarly situated, et al.,

                                                       Plaintiffs-Appellants,

                                         versus

DUVAL COUNTY SCHOOL BOARD,
DUVAL COUNTY PUBLIC SCHOOL DISTRICT,

                                                       Defendants-Appellees.

                            ________________________

                                   No. 98-2720
                           ________________________
                         D.C. Docket No. 98-460-CIV-J-10C

EMILY ADLER, individually; on behalf
of herself and all persons similarly situated,
SETH FINCK, individually; on behalf of
himself and all persons similarly situated, et al.,

                                                       Plaintiffs-Appellees,
                                         versus
SUSAN BOLES, as parent & next friend of
Rebecca Boles, a minor child and on behalf
of all public school students within the Duval
County Public School District,

                                                           Movants-Appellants.
                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                           ______________________
                               (March 15, 2000)

Before ANDERSON, Chief Judge, TJOFLAT, EDMONDSON, COX, BIRCH,
DUBINA, CARNES, BARKETT, HULL, MARCUS, WILSON, Circuit Judges,* and
KRAVITCH, Senior Circuit Judge.**

MARCUS, Circuit Judge:

      At issue today is whether the Duval County, Florida school system’s policy

of permitting graduating students to vote on whether to select a student to deliver a

message wholly of her own choosing at the beginning or closing of a high school

graduation ceremony violates the Establishment Clause. Because the Duval

County policy unambiguously recognizes the “crucial difference between

government speech endorsing religion, which the Establishment Clause forbids,

and private speech [] [that may contain a prayerful message], which the Free


      *
       Judge Susan H. Black did not participate in this decision.
      **
        Senior U.S. Circuit Judge Phyllis A. Kravitch elected to participate in this
decision pursuant to 28 U.S.C. § 46(c).
                                          2
Speech and Free Exercise Clauses protect,” Board of Educ. v. Mergens, 496 U.S.

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

policy constitutional on its face and affirm the judgment of the district court. The

total absence of state involvement in deciding whether there will be a graduation

message, who will speak, or what the speaker may say combined with the student

speaker’s complete autonomy over the content of the message convinces us that the

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

conclude otherwise would come perilously close to announcing an absolute rule

that would excise all private religious expression from a public graduation

ceremony, no matter how neutral the process of selecting the speaker may be, nor

how autonomous the speaker may be in crafting her message.

                                          I.

      The facts of this case are straightforward, uncontroverted, and laid out fully

by the district court in Adler v. Duval County Sch. Bd., 851 F. Supp. 446, 448

(M.D. Fla. 1994) (“Adler I”). Invocations, benedictions, and other religious

prayers or messages were traditionally offered, by clergy and others, at public high

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

the Supreme Court in Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d

467 (1992), held that a Providence, Rhode Island high school principal, acting in


                                          3
accord with school board policy, violated the Establishment Clause by inviting a

local clergyman to deliver a nonsectarian prayer at graduation. In response to Lee,

the Duval County Superintendent, Larry Zenke, at the behest of Vicki R. Reynolds,

the school district’s legal affairs officer, issued a memorandum instructing all

school officials in the Duval County school system that no “prayer, benediction, or

invocation” should be offered at “any graduation ceremonies.”1

      In the ensuing months, Superintendent Zenke received a number of letters

from students and members of the community discussing the graduation policy.

Some of these letters suggested that student-initiated, student-led prayer might be

constitutional under Lee, and Zenke directed Reynolds to further research the

issue. Reynolds later advised Zenke that it would be constitutional to allow

student-initiated, student-led prayer during the graduation ceremony so long as the

administration and faculty were not involved in the decision-making process.

Zenke then authorized Reynolds to issue another memorandum (the “Reynolds

Memorandum”), dated May 5, 1993, to all area high school principals. The

memorandum was entitled “Graduation Prayers” and stated:




      1
       The memorandum, dated July 22, 1992, read, "[t]his memorandum is to remind
you that due to the recent Supreme Court Ruling in Lee v. Weisman, there should be
no prayer, benediction, or invocation at any graduation ceremonies."
                                          4
You will recall that after the 1992 Supreme court case of
Lee v. Wiseman [sic], you received a memorandum from
me instructing that because of the decision, we would no
longer be able to have prayers at graduation ceremonies.
Most of you have recently been bombarded with
information, as have I, regarding whether or not student
initiated and led prayers are acceptable based upon a
recent Fifth Circuit opinion. The purpose of this
memorandum is to give you some guidelines on this issue
if the graduating students at your school desire to have
some type of brief opening and/or closing message by a
student.

This area of the law is far from clear at this time, and we
have been threatened by lawsuits from both sides on the
issue depending on what action we take. The key to the
Lee v. Wiseman [sic] decision was that the prayer given
at that graduation ceremony was directed and initiated by
the school system, which made it unconstitutional, rather
than by permissive student choice and initiative. With
that premise in mind, the following guidelines may be of
some assistance:

1. The use of a brief opening and/or closing message, not
to exceed two minutes, at high school graduation
exercises shall rest within the discretion of the graduating
senior class;

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

3. If the graduating senior class chooses to use an
opening and/or closing message, the content of that
message shall be prepared by the student volunteer and
shall not be monitored or otherwise reviewed by Duval
County School Board [sic], its officers or employees;


                             5
             The purpose of these guidelines is to allow students to
             direct their own graduation message without monitoring
             or review by school officials.


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

      Instead, at a June 1, 1993 School Board meeting, a motion was made to

substitute a “moment of silence” for any student-initiated messages that might

otherwise be given pursuant to the graduation policy announced in the Reynolds

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

Reynolds Memorandum was “left in force with the acquiescence or tacit approval

of the Board as its official policy governing the 1993 commencement exercises.”

Adler I, 851 F.Supp. at 449. In 1993 under this policy, student speakers, at ten of

seventeen high school graduation ceremonies, delivered some form of religious

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

at all or the messages were entirely secular in character. There is no tabulation in

the record of comparable statistics for subsequent graduations.

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

County school system, alleging that the policy embodied in the Reynolds

Memorandum constituted an establishment of religion and infringed on their free

exercise of religion. These students sought equitable relief declaring the policy

unconstitutional and enjoining the Duval County School Board from permitting

                                          6
prayers at high school graduation ceremonies as well as money damages. The

students also sought to certify their action as a class action.2 The district court

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

the Duval County school system, holding that its policy was constitutional. See

Adler I, 851 F.Supp. at 451-56. The students appealed, and a panel of this court

found that because the students had all graduated, their claims for declaratory and

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

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

the students waived their damages claims on appeal. See Adler II, 112 F.3d at

1480-81. The Reynolds Memorandum thus remained the operative high school

graduation policy for Duval County.

      In May 1998, Appellants brought the instant action against the Duval

County school system, again alleging that the policy embodied in the Reynolds

Memorandum constituted an establishment of religion and infringed on their free

exercise of religion. Appellants sought preliminary and permanent injunctive relief

against the Duval County School Board to prevent it from permitting, conducting,



      2
       These “original” plaintiffs consisted of the following students: Leslie Adler,
Laura Jaffa, and Robin Zion. Doug Rand later joined the action. Karen Adler and
Robin Rand, the mothers of Leslie Adler and Doug Rand, were named as plaintiffs to
bring the claims of their minor children.
                                           7
or sponsoring any religious exercises or prayer and instruction within the Duval

County Public School District, including at School Board-sponsored graduation

ceremonies. Appellants also sought monetary damages and class certification.3

The district court, at the hearing on Appellants’ motion for a preliminary injunction

and with the consent of the parties, consolidated the merits of Appellants’ claims

with Appellants’ preliminary injunction motion pursuant to Federal Rule of Civil

Procedure 65(a)(2). The district court then denied Appellants’ motion for

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

School Board.

      Appellants filed a motion for expedited appeal and a panel of this Court

heard oral argument on November 16, 1998. The panel reversed the district court’s

judgment and remanded for further proceedings. On June 3, 1999, we vacated this

opinion and granted rehearing en banc.

                                         II.


      3
        Appellants in the instant action include: Emily Adler, a June 1998 graduate
of Mandarin High School; Seth Finck, a June 1998 graduate of Stanton College
Preparatory School; Stella Finck, mother of Duval County public school students
Rachel Finck, who was scheduled to graduate from Stanton College Preparatory
School in 1999, Aaron Finck, who was scheduled to graduate from Stanton College
Preparatory School in 2000, and Benjamin Finck, a Duval County public school
student; Roberta Nord, mother of Duval County public school students Lucy Nord,
age 9, and Tyler Hurley, age 12; and Jonathon Rand, a June 1998 graduate of Stanton
College Preparatory School.
                                         8
      The central issue presented is whether the Duval County school system’s

policy of permitting a graduating student, elected by her class, to deliver an

unrestricted message of her choice at the beginning and/or closing of graduation

ceremonies is facially violative of the Establishment Clause.4 Close attention to


      4
        We construe this appeal as the appeal of a final judgment strictly pertaining to
the facial constitutionality of the Duval County graduation policy. We do not address
any potential “as-applied” claims raised below by Appellants. This result is driven by
the procedural history of the case. Initially, Appellants sought a preliminary
injunction in addition to their facial and as-applied claims on the merits. At the
pretrial hearing on the preliminary injunction, the district court indicated that it
thought that Appellant’s claims on the merits should be consolidated with the
preliminary injunction motion because the claims were duplications of earlier claims
it had evaluated in Adler I. The district court asked whether any operative facts had
changed and the parties stipulated that there had been no substantive changes. As the
district court explained:

             This is, for all practical purposes, the second time this case
             has appeared before this court. In 1994 a similar group of
             Plaintiffs represented by the same counsel sought the same
             injunctive relief with respect to high school graduation or
             commencement ceremonies then scheduled to be conducted
             in the spring of that year. I decided at that time that the
             Plaintiffs’ constitutional rights were not infringed. This
             action presents precisely the same claims predicated upon
             the same constitutional theories or contentions; and, at
             today’s hearing, counsel stipulated that the operative facts
             remain unchanged. The only factual difference is that a
             new series of graduation ceremonies is scheduled for 1998.
             The present case was filed for the purpose of relitigating
             the issue upon the contention of Plaintiffs’ counsel that the
             law has now evolved in their favor as manifested by []
             [several] intervening decisions. . . .


                                           9
the operative features of the Duval County policy yields the conclusion that the

policy is constitutional on its face. Simply put, the selection of a graduation


See Adler v. Duval County Sch. Bd., No. 98- 460-CIV-J-10C (M.D.Fla. May 27,
1998) (internal citation omitted) (emphasis added). The district court then took
judicial notice of its opinion in Adler I and consolidated the action on the merits with
Appellants’ motion for preliminary injunction. Finally, the district court distinguished
the intervening decisions cited by Appellants and concluded:

             [T]he proper decision in this case is dictated by the decision
             I reached in Adler I, and that the application for preliminary
             injunctive relief should be denied now as it was then.
             Furthermore, as counsel agreed during today’s hearing,
             there is no just reason in fact or law as to why the action
             should not be advanced on the merits and consolidated with
             the hearing of the instant application so that final judgment
             may be entered and the controversy may proceed to the
             Court of Appeals.

Id. (emphasis added). Both parties consented to the consolidation and Appellants did
not object to the effect this consolidation would have on their as-applied claims.
Because of the consolidation, discovery was truncated as to the policy’s application
and effect for graduation ceremonies after 1993 and Appellants’ as-applied claims
were never fully developed or litigated below. Appellants’ consent to the district
court’s consolidation constituted a knowing waiver of their as-applied claims,
circumscribing the action and the district court’s final judgment to the facial
constitutionality of the graduation policy. See Warehouse Groceries Management,
Inc. v. SAV-U-Warehouse Groceries, Inc., 624 F.2d 655, 657-58 (5th Cir. 1980)
(noting that district court, pursuant to Federal Rule of Civil Procedure 65(a)(2), may
properly consolidate the merits of a case with a preliminary injunction hearing so long
as parties are given adequate notice); Fenstermacher v. Philadelphia Nat’l Bank, 493
F.2d 333, 337 (3rd Cir. 1974) (noting that party’s failure to object to district court’s
consolidation of the merits with a preliminary injunction hearing constituted a waiver
of any defects stemming from the consolidation because the party had “acquiesced in
the procedure followed in the district court”). We therefore restrict our review today
to the facial constitutionality of the graduation policy.
                                          10
student speaker by a secular criterion (not controlled by the state) to deliver a

message (not restricted in content by the state) does not violate the Establishment

Clause merely because an autonomous student speaker may choose to deliver a

religious message. See Lee, 505 U.S. at 630 n.8, 112 S.Ct. 2649 (Souter, J.,

concurring) (observing that “[i]f the State had chosen its graduation day speakers

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

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

to attribute an endorsement of religion to the State”) (citing Witters v. Washington

Dep’t of Servs. for the Blind, 474 U.S. 481, 106 S.Ct. 748, L.Ed.2d 846 (1986)).

      Establishment Clause jurisprudence calls for the difficult task of separating a

student’s private message, which may be religious in character, from a state-

sponsored religious message, protecting the former and prohibiting the latter. This

determination is of “necessity one of line-drawing,” see Lee, 505 U.S. at 598, 112

S.Ct. 2649, “sometimes quite fine, based on the particular facts of each case,’”

Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 847, 115

S.Ct. 2510, 132 L.Ed.2d 700 (1995) (O’Connor, J., concurring). Indeed, our courts

have recognized that “at graduation time and throughout the course of the

education process, there will be instances when religious values, religious

practices, and religious persons will have some interaction with the public schools


                                          11
and their students.” See Lee, 505 U.S. at 598-99, 112 S.Ct. 2649 (citing Board of

Educ. v. Mergens, 496 U.S. 226, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990)). But at

the core of Establishment Clause jurisprudence is the notion that the state may not

favor, endorse, or oppose the propagation of religious doctrine by its citizens. In

this case, the absence of state involvement in each of the central decisions--whether

a graduation message will be delivered, who may speak, and what the content of

the speech may be--insulates the School Board’s policy from constitutional

infirmity on its face.

      We measure the facial constitutionality of the policy against both the

standards enunciated by the Supreme Court in Lee, 505 U.S. 577, 112 S.Ct. 2649,

the Court’s only occasion to directly examine the issue of school prayer at a public

high school graduation, and the more general Establishment Clause test articulated

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


      5
        While the Lemon test has drawn considerable criticism from both Members of
the Court and legal commentators, see, e.g., Board of Educ. v. Grumet, 512 U.S. 687,
721, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994) (O'Connor, J., concurring) (noting that
“the slide away from Lemon's unitary approach is well under way"); Kent Greenawalt,
Quo Vadis: The Status and Prospects of "Tests" Under the Religion Clauses, 1995
Sup.Ct. Rev. 323, 361 (1996) (declaring that “now that Lemon lacks any defenders
on the Court, other judges would perform a shallow exercise were they to continue to
apply its terms. They should recognize that the Supreme Court has definitely
abandoned Lemon."), it is still binding precedent, see Lamb's Chapel v. Center
Moriches Union Free Sch. Dist., 508 U.S. 384, 395 n.7,113 S.Ct. 2141, 124 L.Ed.2d
352 (1993) (stating that "we return to the reality that there is a proper way to inter an
                                           12
                                          A.

      In Lee, the Supreme Court scrutinized the Providence, Rhode Island public

school system policy of permitting middle and high school principals to invite

clerics to offer invocation and benediction prayers at formal high school graduation

ceremonies. See Lee, 505 U.S. at 580, 112 S.Ct. 2649. In particular, the Court

considered the 1989 graduation at Nathan Bishop Middle School where the

principal invited a local rabbi to offer a religious invocation and benediction at the

school’s graduation ceremony. The principal also provided the rabbi with a

pamphlet entitled “Guidelines for Civic Occasions,” prepared by the National

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

nonsectarian. See id. at 581, 112 S.Ct. 2649.

      In declaring the school system policy unconstitutional under the

Establishment Clause, the Supreme Court pointed at two “dominant facts” as

marking the boundaries of its decision: first, the Providence school officials

ordained and directed the performance of a religious exercise by deciding to




established decision and Lemon, however frightening it might be to some, has not
been overruled"); see also Chabad-Lubavitch of Georgia v. Miller, 5 F.3d 1383, 1388
(11th Cir.1993) (en banc) (explaining that "[a]lthough [the Lemon test] has been
criticized severely, it still controls our Establishment Clause inquiry"); Bown v.
Gwinnett County Sch. Dist., 112 F.3d 1464, 1468- 74 (11th Cir.1997) (applying
Lemon).
                                          13
include prayer in the graduation ceremony, by selecting a clergyman to deliver the

prayer, and by providing the clergyman with guidelines informing the content of

the prayer; and second, pressure was exerted on students to attend graduation and

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

silence during the invocation and benediction. Id. at 586-88, 112 S.Ct. 2649.

What the Supreme Court found striking and troubling about Lee was that the

government clearly directed a formal religious exercise--albeit in the form of a

nonsectarian prayer--under such circumstances as to oblige the participation of

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

             These dominant facts mark and control the confines of
             our decision: State officials direct the performance of a
             formal religious exercise at promotional and graduation
             ceremonies for secondary schools. Even for those
             students who object to the religious exercise, their
             attendance and participation in the state-sponsored
             religious activity are in a fair and real sense obligatory,
             though the school district does not require attendance as a
             condition for receipt of the diploma.

Id. at 586, 112 S.Ct. 2649. There can be little doubt, then, that in Lee, the

Providence, Rhode Island school system ordained and established a religious

exercise at a graduation ceremony, and that the graduation prayer delivered by a

rabbi was in every sense endorsed and supported by the state.




                                          14
      In striking contrast, under the Duval County graduation policy, however,

neither the School Board nor its principals may ordain, direct, establish, or endorse

a religious prayer or message of any kind. Indeed, by the very terms of the policy,

a religious message may not even be offered at graduation. The Duval County

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

whether any message--be it religious or not--may be delivered at graduation at all.

Moreover, decisional control over the most crucial elements of the graduation

policy rests with the students and not the state. According to the policy, school

officials merely allow a graduating class to decide by an election whether to have a

“brief opening and/or closing message” at graduation. If the class votes to have a

message, it elects a student volunteer to deliver the message. That student is then

free to deliver a message “not monitored or otherwise reviewed” in any way by the

school. Under the policy, the School Board and its agents have no control over

who will draft the message (if there be any message at all) or what its content may

be. The School Board also does not suggest in any way, let alone require, that the

graduating class consider religious or any other criteria in deciding whether to have

a student message or in selecting a particular student speaker. And most notably, if

the graduating class chooses to have a message, the content of the message shall be

prepared by the student speaker alone and no one else. The Duval County School


                                         15
Board is expressly prohibited by the very terms of its policy from influencing or

editing the message in any way.

      These operational features distinguish the Duval County policy from

approximating even an arguably similar level of state control to the graduation

policy struck down in Lee. Unlike the Providence policy in Lee, the Duval

County policy, in no way, authorizes a school to “direct the performance of a

formal religious exercise.” Lee, 505 U.S. at 586, 112 S.Ct. 2649. And unlike a

direct student plebiscite on graduation prayer, not even the senior class exercises

control over the content of the graduation message. That decision rests solely with

the elected student speaker-- with neither the senior class nor the school exercising

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

students unambiguously understand that any student message is utterly divorced

from any state sponsorship.

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

private religious expression of an elected student speaker, must be excised from

public high school graduation ceremonies. Rather, Lee prohibits the state from

ordaining, directing, endorsing, or sponsoring a religious message at such

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

possibility of private religious expression. See id., 505 U.S. at 589, 112 S.Ct. 2649


                                           16
(observing that “[t]he First Amendment’s Religion Clauses mean that religious

beliefs and religious expression are too precious to be either proscribed or

prescribed by the State”); id. at 604-05 (Blackmun, concurring) (explaining that

“[t]he Establishment Clause proscribes public schools from ‘conveying or

attempting to convey a message that religion or a particular religious belief is

favored or preferred’”) (quoting County of Alleghany v. Greater Pittsburgh ACLU,

492 U.S. 573, 593, 109 S.Ct. 3086, 106 L.Ed.2d. 472 (1989)); see also Agostini v.

Felton, 521 U.S. 203, 231, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (noting that

there is no advancement of religion where “aid is allocated on the basis of neutral,

secular criteria that neither favor nor disfavor religion, and is made available to

both religious and secular beneficiaries on a nondiscriminatory basis”);

Rosenberger, 515 U.S. at 839, 115 S.Ct. 2510 (stating that “[a] central lesson of

our decisions is that a significant factor in upholding governmental programs in the

face of Establishment Clause attack is their neutrality towards religion”); Grumet,

512 U.S. at 696, 114 S.Ct. 2481 (declaring that “‘[a] proper respect for both the

Free Exercise and the Establishment Clauses compels the State to pursue a course

of ‘neutrality’ toward religion’”) (quoting Committee for Public Educ. & Religious

Liberty v. Nyquist, 413 U.S. 756, 792-93, 93 S.Ct. 2955, 31 L.Ed.2d 948 (1973));

Chandler v. James, 180 F.3d 1254, 1258-59 (11th Cir. 1999) (noting that


                                          17
“ordinarily religious speech by private parties cannot establish religion, even if it

occurs in a public institution, such as a school”) (citation omitted).

      The School Board’s policy is perfectly consistent with the theme of

neutrality in Establishment Clause jurisprudence. As Justice Souter explained in

his concurrence in Lee:

             While the Establishment Clause’s concept of neutrality is
             not self-revealing, our recent cases have invested it with
             specific content: the State may not favor or endorse either
             religion generally over nonreligion or one religion over
             others. This principle against favoritism and
             endorsement has become the foundation of Establishment
             Clause jurisprudence, ensuring that religious belief is
             irrelevant to every citizen’s standing in the political
             community. . . .

Lee, 505 U.S. at 627, 112 S.Ct. 2649 (internal citations omitted). No feature of the

Duval County policy favors or endorses religion. The graduation policy is simply

content-neutral, and allows an autonomous elected speaker, selected by her class,

to deliver a religious or secular message on an equal basis.

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

which the Supreme Court has held that neutral secular policies that merely

accommodate religion or individual free exercise rights do not amount to an




                                          18
unconstitutional state endorsement of religion.6 First, in Widmar v. Vincent, 454

U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981), the Court struck down a

University of Missouri regulation that denied “equal access” to school facilities for

religious groups as a violation of the Free Speech Clause. Id. at 274-75, 102 S.Ct.

269. In so ruling, the Court explained that an “open forum” policy, which

permitted access to both religious and secular student groups in a neutral manner,

did not offend the Establishment Clause because “an open forum in a public

university does not confer any imprimatur of state approval on religious sects or

practices” anymore than such a policy “‘committed [the University] to the goals of

the Students for a Democratic Society, the Young Socialist Alliance,’ or any other

group eligible to use its facilities.” Id. at 274, 102 S.Ct. 269 (citation omitted).

      The Supreme Court extended this reasoning to public secondary schools in

Mergens. There, the Court upheld the constitutionality of the Equal Access Act, 20

U.S.C. § 4071 et seq., which explicitly codified the reasoning of Widmar by

prohibiting public secondary schools in receipt of federal funds from denying


      6
       For purposes of our decision, we find it unnecessary to decide whether the
Duval County graduation policy creates a “designated public forum”or a “nonpublic
forum” as these terms have come to be defined by our public forum caselaw. See
Arkansas Educ. Tele. Comm’n v. Forbes, 523 U.S. 666, 118 S.Ct. 1633, 1641-43, 140
L.Ed.2d 875 (1998). We rely on public forum doctrine only in so far as it informs
Establishment Clause jurisprudence regarding principles of state endorsement and
neutral accommodation towards private religious speech.
                                           19
student access to “limited open forum[s]” on the basis of the religious content of

their speech. Mergens, 496 U.S. at 235, 110 S.Ct. 2356. The Court elaborated a

core tenet of its neutrality jurisprudence in the process:

             [T]here is a crucial difference between government
             speech endorsing religion, which the Establishment
             Clause forbids, and private speech endorsing religion,
             which the Free Speech and Free Exercise Clauses protect.
             We think that secondary school students are mature
             enough and are likely to understand that a school does
             not endorse or support student speech that it merely
             permits on a nondiscriminatory basis. . . . Although a
             school may not itself lead or direct a religious club, a
             school that permits a student-initiated and student-led
             religious club to meet after school, just as it permits any
             other student group to do, does not convey a message of
             state approval or endorsement of the particular religion.

Id. at 250-52, 110 S.Ct. 2356. In recent years, the Court has reaffirmed this

principle by finding that the inclusion of private religious groups in “open forums”

through neutral selection principles does not violate the Establishment Clause or

constitute a state endorsement of religion. See Capitol Square Review & Advisory

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

(plurality opinion) (concluding that the allowance of a private religious display in

an open public forum, selected by the same application process and on the same

terms as other private displays, did not amount to state endorsement); Rosenberger,

515 U.S. at 832, 115 S.Ct. 2510 (holding that a public university subsidy for a


                                          20
religious student organization’s publication costs, under a program that funded

other student organization publications through neutral selection criteria, did not

violate the Establishment Clause); Lamb’s Chapel, 508 U.S. at 395, 113 S.Ct. 2141

(finding that a policy, which allowed private student religious groups equal after-

school access to school property through neutral secular criteria, would not violate

the Establishment Clause).

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

policy, which provides an opportunity for student-selected, student-initiated private

expression through a neutral selection criterion, does not violate the Establishment

Clause simply because the venue is equally available for religious or secular

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

Establishment Clause. And it is worth emphasizing that while the state must be

neutral and cannot advance or endorse religion, similarly, it need not, indeed it

cannot, act in a hostile manner in the face of private religious speech publically

uttered. See Lee, 505 U.S. at 598, 112 S.Ct. 2649 (observing that “[a] relentless

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

itself become inconsistent with the Constitution’) (citation omitted); Zorach v.

Clauson, 343 U.S. 306, 314, 72 S.Ct. 679, 96 L.Ed. 954 (1952) (stating that “we

find no constitutional requirement which makes it necessary for government to be


                                          21
hostile to religion and to throw its weight against efforts to widen the effective

scope of religious influence”).

      In essence, this case is substantially like Doe v. Madison Sch. Dist. No. 321,

147 F.3d 832 (9th Cir. 1998), vacated on other grounds, 177 F.3d 789 (9th Cir.

1999) (en banc) (vacating for mootness because the student plaintiffs already had

graduated). In Doe, the Ninth Circuit examined a graduation policy which mirrors

Duval County’s policy in its neutrality. The Doe policy allowed for a minimum of

four student graduation speakers to be selected according to their academic

standing. If a student accepted the speaking invitation, she could choose to deliver

an “address, poem, reading, song, musical presentation, prayer, or any other

pronouncement”-- the content, of which, she alone controlled. Doe, 147 F.3d at

835. The Doe court upheld the constitutionality of the policy against a facial

challenge on Establishment Clause grounds and distinguished Lee. It explained

that graduation speech does not bear the imprimatur of the state when the speaker

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

criteria; and the student has complete autonomy over content. Doe, 147 F.3d at

835-36.7


      7
        The other federal circuit cases that have considered student-led, student-
initiated prayer at graduation are of limited assistance. All of these cases involve
direct student plebiscites on graduation prayer. Of these cases, Jones v. Clear Creek
                                           22
Indep. Sch. Dist., 977 F.2d 963 (5th Cir. 1992), is the only one which has permitted
students to vote directly on whether to have prayer at graduation. In Jones, the Fifth
Circuit upheld the Clear Creek, Texas school district’s policy allowing graduating
students to vote whether student volunteers would deliver “nonsectarian and
nonproselytizing” invocations at graduation. The court found: that the Clear Creek
policy (1) reserved to the students the decision whether to have an invocation, (2)
precluded anyone but a student volunteer from delivering an invocation, and (3)
placed less psychological coercion on the student audience than the prayers given in
Lee because students were aware that any prayers given represented the will of their
peers. See id. at 970-71.

       Both the Third and Ninth Circuits have come to an opposite conclusion. In
ACLU of New Jersey v. Black Horse Pike Regional Bd. of Educ., 84 F.3d 1471 (3d
Cir. 1996) (en banc), the Third Circuit, sitting en banc, held as unconstitutional a
school board’s policy that permitted the senior class to vote on whether to include a
prayer at high school graduation ceremonies. See id. at 1477-88. The policy in Black
Horse Pike allowed senior class officers to conduct a poll of the graduating class to
determine, by plurality vote, whether seniors wanted “‘prayer, a moment of reflection,
or nothing at all’” to be included in their graduation ceremony. Id. at 1475 (citation
omitted). In Harris v. Joint Sch. Dist. No. 241, 41 F.3d 447 (9th Cir. 1994), vacated
as moot, 515 U.S. 1154, 115 S.Ct. 2604, 132 L.Ed.2d 849 (1995), high school students
themselves, pursuant to a school district policy, planned every aspect of their
graduation, without interference from school officials, and voted by written ballot on
whether or not to have prayer. The Harris court found that the state involvement in
the case was pervasive enough to offend Establishment Clause concerns, noting that
“[t]he message of the speakers is [] chosen by the majority; the relevant speakers are
instructed to pray.” Id. at 456-57.

       In contrast to each of these policies, Duval County students vote on whether to
have a message of unspecified content delivered by a student. This is a meaningful
distinction.

      The Fifth Circuit recently revisited the issue of student-initiated prayer in Doe
v. Santa Fe Indep. Sch. Dist., 168 F.3d 806 (5th Cir.), cert.granted in part, 118 S.Ct.
494 (1999). There, the Fifth Circuit examined what it considered to be the holding of
Jones--“that student-selected, student-given, nonsectarian, nonproselytizing
                                          23
      Appellants, however, advance two arguments for why we should regard a

student-selected graduation speaker, who is selected through a wholly neutral

process and who is given complete autonomy over the content of her speech, as a

public, state-sponsored speaker. First, they contend that by providing the platform

and opportunity, the state has created a sufficient link to the student speaker to

convert the student’s private speech into public, state-sponsored speech. Second,




invocations and benedictions at high school graduation ceremonies” are
constitutional--and concluded that the constitutionality of a student-selected, student-
led prayer policy depends on its “nonsectarian and nonproselytizing” features. Id. at
816-19. The Santa Fe court also struck down a school policy which allowed student-
led, student-initiated prayer before high school football games. The Supreme Court
recently has granted certiorari in Santa Fe. However, the Court has limited its review
to whether student-led, student initiated prayer at football games violates the
Establishment Clause. The Court did not grant certiorari on the constitutionality of
the Santa Fe graduation policy. Appellants cite Santa Fe for the proposition that a
policy which “permits” sectarian and proselytizing prayers is facially unconstitutional.
As discussed in greater detail infra, this argument proves too much and is offensive
to the Constitution. The Duval County policy, of course, permits sectarian and
proselytizing prayers because it places no limitations, either secular or sectarian, on
the content of a graduation message. A policy of free expression is far more
consonant with the commands of the First Amendment than is a policy of censorship.
See, e.g., Mergens, 496 U.S. at 253 (stating that “a denial of equal access to religious
speech might well create greater entanglement problems in the form of invasive
monitoring to prevent religious speech at meetings at which such speech might
occur”); Santa Fe, 168 F.3d at 829-35 (Jolly, J., dissenting).


      .
                                          24
they suggest that the majoritarian process of selecting the speaker shrouds the

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

argument--that by providing the platform, the speech becomes public--goes too far.

The second argument--that the speaker somehow garners state authority by virtue

of the plebiscite--has no logical rationale.

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

graduation ceremony is attributable to the school merely because of the school’s

sponsorship of the event or its control over the graduation’s schedule, timing,

decorum, or sequence of events. The Supreme Court did not suggest in Lee that

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

the Providence policy unconstitutional, or it would have banned all religious

expression at graduation. If Appellants were right on this point, graduation

speakers as diverse as athletes, politicians, academics, entertainers, and maybe

even judges would bear the imprimatur of the state because they were handpicked

by the school (or, in our case, elected by the senior class) to speak at an event over

which the school has great control. Schools then would have to prevent these

speakers from discussing a religious topic, engaging in prayer, or imploring the

guidance of the Lord, to ensure no Establishment Clause violation and protect

themselves from 42 U.S.C. § 1983 liability should an audience member perceive


                                           25
the school to be endorsing the speaker’s religious message. Indeed, the same logic

would apply to a student graduation speaker selected by other neutral criteria such

as academic achievement. But a graduation free of all religious expression,

compelled by the school’s sponsorship of the event, is not required by the

Establishment Clause.

      Even if we accept that the Duval County School Board exerted

overwhelming control over the graduation ceremony in terms of the event’s

sequence, venue, dress, and facilities, it is clear that it did not have control over the

elements which are most crucial in the Establishment Clause calculus: the

selection of the messenger, the content of the message, or most basically, the

decision whether or not there would be a message in the first place. It is beyond

imagination to say that everyone on the platform at a high school graduation

ceremony, including a local politician or celebrity, is a state speaker merely

because the state has provided the platform, onto which private individuals may be

invited to share their privately-held views. Such views do not become the state’s

views merely by being uttered at a state event on a state platform. Otherwise, each

“open forum” case in which the Supreme Court found that granting religious

groups access to generally available public facilities or benefits through neutral

selection criteria was not an unconstitutional state endorsement of religion would


                                           26
be wrongly decided. See Pinette, 515 U.S. at 762-70, 115 S.Ct. 2440; id. at 772-

83, 115 S.Ct. 2440 (O’ Connor, J., concurring in the judgment); id. at 783-94, 115

S.Ct. 2440 (Souter, J., concurring in the judgment); Rosenberger, 515 U.S. at 839-

46, 115 S.Ct. 2510; Lamb’s Chapel, 508 U.S. at 395-97, 113 S.Ct. 2441; Mergens,

496 U.S. at 248-53, 110 S.Ct. 2356; Widmar, 454 U.S. at 271-79, 102 S.Ct. 269.

For by Appellants’ logic, the mere provision of a state-controlled forum or subsidy

to private speakers automatically converts private speech into government speech.

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

speech, raises core free expression concerns and would likely run afoul of the Free

Exercise and Free Speech clauses. See Chandler, 180 F.3d at 1261 (stating that

“[b]ecause genuinely student-initiated religious speech is private speech endorsing

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

the Constitution”) (emphasis added). Even if we were to construe a graduation

ceremony as a “nonpublic forum,” Duval County students still would possess free

speech rights there. The Supreme Court has consistently held that in nonpublic

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

NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 806, 105 S.Ct. 3439, 87

L.Ed.2d 567 (1985) (finding that “[c]ontrol over access to a nonpublic forum can

be based on subject matter and speaker identity so long as the distinctions drawn


                                          27
are reasonable in light of the purpose served by the forum and are viewpoint

neutral”) (emphasis added); Perry Educ. Assn. v. Perry Local Educators’ Assn.,

460 U.S. 37, 46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) (observing that “the state

may reserve [] [a nonpublic] forum for its intended purposes, communicative or

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

suppress expression merely because public officials oppose the speaker’s view”).

The Court has also concluded that religion is a viewpoint which, for First

Amendment purposes, may provide “a specific premise, a perspective, a standpoint

from which a variety of subjects may be discussed and considered.” Rosenberger,

515 U.S. at 831, 115 S.Ct. 2510.

      Presumably, a student’s religious perspective would inform his views on a

variety of subjects ordinarily dealt with at graduation such as expressing gratitude

to his family or religious community, reflecting on the meaning of his school

experience, or defining his future goals. The extremely personal and subjective

nature of such views helps to explain why the School Board policy yields private

rather than public speech. To unnecessarily classify student speakers as

government actors could render Duval County students powerless to express

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

effectively compel the Duval County School Board, if it wants to have any speech


                                         28
on topics where religion might motivate opinion or mould perspective, to engage in

viewpoint discrimination, “an egregious form of content discrimination,”

Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510, in the name of secular purity.

      The expression of religious beliefs, which are sacred to some listeners, may

be offensive to others. Appellants’ desire to insulate students and other attendants

at graduation from the offense that they may well experience at hearing religious

expression with which they strongly disagree is altogether understandable.

Graduation ceremonies are designed to be joyous occasions for the celebration of

student achievement. But the Constitution does not prohibit the exercise of

offensive speech at graduation ceremonies, religious or otherwise; it only prohibits

state expressions of religion. While the School Board is under no compulsion to

provide an opportunity for free expression by one or more students at a graduation

ceremony, the Constitution certainly does not prohibit the School Board from

doing so. The occasional tolerance of speech we may deem offensive is one price

we pay for the First Amendment and our democratic traditions.

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

message and to select the student speakers automatically places the imprint of the

state on the student speakers’ privately-crafted messages. Appellants’ leap of

logic, taking a selected student representative and, without explanation, turning her


                                         29
into a state actor by virtue of a democratic student vote, strains credulity. At most,

a student speaker selected by a class vote is a representative of the student body,

not an official of the state. She has no power or authority or official capacity to

inform, carry out, or guide state policy. It is wholly unconvincing to argue that the

student becomes a state actor because she was chosen by her peers, unless each

high school student individually is considered to be a state actor, or somehow the

students, acting in concert, come to be vested with the power of the state.

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

Homecoming Queen. While she may be selected by a vote, or plebiscite of the

entire senior class, the Homecoming Queen cannot be characterized as a state actor,

or a representative of the state, merely because she holds a “public” position and

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

traditional valedictory address with the practice of affording the students of the

graduating class the opportunity to select the graduation student speaker through a

vote by the entire class. In this hypothetical, the student speaker is selected, not by

the School Board on the basis of grades, but by the students on the basis of student

choice -- be it popularity, ability to entertain, achievement in athletics, or for some

other reason. Again, it strains reason and common sense to suggest that, by virtue

of her selection by the majority of the senior high school class, the student speaker


                                          30
becomes a mouthpiece of the state. Both examples suggest that the senior class’s

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

turn the chosen student into a state actor. Because Duval County policy utilizes

this same methodology, affording the students of the senior class the opportunity to

vote whether or not to have a message and to select a student speaker, in a wholly

secular way, the graduation message vote is no more vested with the imprimatur of

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

      While the line between “what is ‘private’ action and what is ‘state’ action is

not always easy to determine,” Appellants have in no way proven that the students’

private conduct has become so “entwined with government policies” or so

“impregnated with governmental character” as to become subject to the

constitutional limitations placed on state action. Evans v. Newton, 382 U.S. 296,

299, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966) (citing Burton v. Wilmington Parking

Auth., 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961)). All of the policy’s

central decisions--who speaks, whether there will be a speaker, and what the

content of the speech may be--are uncontrolled by the state. Indeed, the Duval

County policy itself states that its purpose is “to allow students to direct their own

graduation message without monitoring or review by school officials.” The mere

delegation of decision-making to pick a speaker alone does not place the state’s


                                          31
imprint on a graduation prayer delivered by an autonomous student speaker who is

free to give a message of unrestricted content.

      In fact, the state’s only involvement in the graduation message is to provide

students with the opportunity to vote, to impose a time limit of two minutes, and to

direct that the message be delivered at the beginning and/or closing of the

ceremony. If the senior class were asked to vote whether to have a student deliver

a poem or sing a song at their graduation exercise, under the same time and

sequence restraints of the Duval County graduation message policy, that act still

would involve the selection of a private, autonomous speaker through a neutral

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

mechanism whereby the students can elect to have an unrestricted message and

select a student speaker.

      These facts do not establish that the state has so insinuated itself into the

decision so as to transform an elected student’s private speech into an utterance of

the state. Where the student is chosen in a neutral and secular way and where the

student is allowed complete autonomy over the message, the student’s speech is

her own.

                                          B.




                                          32
      The other dominant fact of Lee--whether Duval County students are coerced

“to support or participate in religion or its exercise” by the School Board policy,

505 U.S. at 587, 112 S.Ct. 2649--is largely determined by the measure of state

control over the message at a graduation ceremony, rather than state control over

the ceremony itself. We do not quarrel with the Court’s suggestion in Lee that

students feel compelled to attend graduation, see id. at 593-97, 112 S.Ct. 2649, and

that schools “retain a high degree of control” over graduation ceremonies, id. at

597, 112 S.Ct. 2649. But these conclusions do not suffice to decide the issue of

coercion under these circumstances. The focus must be on whether the state has

endorsed the message in an appreciable manner, which, when combined with the

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

religious exercise. See Lee, 505 U.S. at 594, 112 S.Ct. 2649 (explaining that

“[t]he injury caused by the government’s action . . . is that the State, in a school

setting, in effect required participation in a religious exercise”).

      Here, neither the Duval County schools nor the graduating senior classes

even decide if a religious prayer or message will be delivered, let alone “require”

or “coerce” the student audience to participate in any privately-crafted message.

While schools may make private religious speech their own by endorsing it,

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


                                           33
Appellants do, that Duval County seniors will interpret the school’s failure to

censor a private student message for religious content as an endorsement of that

message-- particularly where the students are expressly informed as part of the

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

While there may be pressures on students to attend graduation and conform with

their peers, see Lee, 505 U.S. at 593-95, 112 S.Ct. 2649, the state’s complete

control over a religious exercise, essential to Lee’s holding, see id. at 590, 112

S.Ct. 2649 (finding that “[t]he degree of school involvement here made it clear that

the graduation prayers bore the imprint of the State . . .”); id. at 597, 112 S.Ct.

2649 (noting that “the state-imposed character of an invocation and benediction by

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

religious exercise . . .”), is conspicuously absent here. Moreover, whatever

majoritarian pressures are attendant to a student-led prayer pursuant to a direct

student plebiscite on prayer are not facially presented by the Duval County policy.

        Appellants also assume that allowing the senior class to vote whether to

have a graduation “message” unrestricted in content and to select an autonomous

student speaker will have the effect of coercing any chosen speaker into placating

the majority’s religious sensibilities by offering a sectarian message of which the

majority approves. This argument is highly remote and speculative. Even the


                                           34
scant record before us suggests an opposite conclusion. While ten of the

graduation messages delivered pursuant to the policy involved some sort of

religious content, the other seven Duval County graduations either had no student

message or a wholly secular message. In the second place, this argument would be

far better suited to an as-applied challenge, where the record has been properly

developed, rather than to a facial challenge. A facial challenge to be successful

“must establish that no set of circumstances exists under which the Act would be

valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d

697 (1987) (emphasis added). Appellants’ argument simply ignores the plain text

of the policy which only permits graduating students to decide through a vote

whether a student volunteer shall give a message of her choice. No religious result

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

                                          II.

        We reach the same conclusion when the graduation policy is measured

against the three-part Lemon test. Under Lemon, we must evaluate whether: first,

the policy has a secular purpose; second, the policy has a primary effect that

neither advances nor inhibits religion; and finally, the policy fosters an excessive

government entanglement with religion. See Lemon, 403 U.S. at 612-13, 91 S.Ct.

2105.


                                          35
                                          A.

      We begin with the policy’s purpose. Lemon requires that a statute must

have “a secular legislative purpose.” 403 U.S. at 612, 91 S.Ct. 2105. A statute

will only violate this prong if it is “entirely motivated by a purpose to advance

religion.” Wallace v. Jaffree, 472 U.S. 38, 56, 105 S.Ct. 2479, 86 L.Ed.2d 29

(1985); see also Bowen v. Kendrick, 487 U.S. 589, 602, 108 S.Ct. 2562, 101

L.Ed.2d 520 (1988) (stating that a court “may invalidate a statute only if it is

motivated wholly by an impermissible purpose”) (citations omitted); Lynch v.

Donnelly, 465 U.S. 668, 680,

104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (observing that “[t]he Court has invalidated

legislation or governmental action on the ground that a secular purpose was

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

activity was motivated wholly by religious considerations”). A statute may satisfy

Lemon’s first prong even if it is “motivated in part by a religious purpose.”

Wallace, 472 U.S. at 56, 105 S.Ct. 2479.

      Moreover, the Supreme Court has instructed us to be “deferential to a State’s

articulation of a secular purpose,” Edwards v. Aguillard, 482 U.S. 578, 586, 107

S.Ct. 2573, 96 L.Ed.2d 510 (1987), particularly where “a legislature expresses a

plausible secular purpose” for a policy or action, Wallace, 472 U.S. at 74, 105


                                          36
S.Ct. 2479 (O'Connor, J., concurring in the judgment). We respect that purpose

unless it is insincere or a “sham,” Edwards, 482 U.S. at 586-87, 107 S.Ct. 2573;

Bown, 112 F.3d at 1468, or the statute at issue has a “preeminent purpose” which

is “plainly religious in nature,” Stone v. Graham, 449 U.S. 39, 41, 101 S.Ct. 192,

66 L.Ed.2d 199 (1980) (per curiam); see also Edwards, 482 U.S. at 591, 107 S.Ct.

2573; Wallace, 472 U.S. at 56-60, 105 S.Ct. 2479. But the Supreme Court has

been reluctant to attribute an unconstitutional motive where a “plausible” secular

purpose may be discerned from the statute. Mueller v. Allen, 463 U.S. 388, 394-95

& n. 4, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983).

      Additionally, “[i]nquiry into legislative purpose begins with interpreting the

law itself.” Church of Scientology v. City of Clearwater, 2 F.3d 1514, 1527 (11th

Cir. 1993). That requires close attention be paid to the plain language of the

policy. For the most part, statutes which the Supreme Court has invalidated for

lack of secular purpose have openly favored religion or demonstrated a religious

purpose on their face. See, e.g., Edwards, 482 U.S. at 593, 107 S.Ct. 2573

(invalidating a Louisiana law that required creationism to be discussed with

evolution in public schools); Wallace, 472 U.S. at 57-58, 105 S.Ct. 2479

(overturning an Alabama statute that authorized a moment of silence because the

state made no attempt to justify the statute in terms of any secular purpose); Stone,


                                         37
449 U.S. at 41, 101 S.Ct. 192 (striking down a Kentucky statute requiring the

posting of the Ten Commandments in public classrooms); Engel v. Vitale, 370

U.S. 421, 424, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962) (holding unconstitutional a

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

      In contrast, three secular purposes are plainly encompassed by the Duval

County policy. First, the Duval County policy, by its very words, articulates a

secular purpose; namely, affording graduating students an opportunity to direct

their own graduation ceremony by selecting a student speaker to express a

message. By choosing whether to have a graduation message, and if so, the

student speaker, the graduating class shares, at least in part, in the civic

responsibility of planning their graduation ceremony. See Jones, 977 F.2d at 966

(finding that “[a] meaningful graduation ceremony can provide encouragement to

finish school and the inspiration and self-assurance necessary to achieve after

graduation, which are secular objectives”).

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

a seminal educational experience. See Lynch, 465 U.S. at 693, 104 S.Ct. 1355

(O’Connor, J., concurring) (noting “the legitimate secular purposes of solemnizing

public occasions, expressing confidence in the future, and encouraging the

recognition of what is worthy of appreciation in society”); see also Chaudhuri v.


                                           38
Tennessee, 130 F.3d 232, 236 (6th Cir.1997); Tanford v. Brand, 104 F.3d 982, 986

(7th Cir.1997); Jones, 977 F.2d at 966-67. This purpose is not drained of its

secular character merely because the policy invites consideration of meaning and

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

public education if the Establishment Clause were to be seen as inhibiting any

reflection by a student of transcendent meaning and value in life, whether

grounded in religion or not.

      Finally, the School Board’s policy also evinces an important and long

accepted secular interest in permitting student freedom of expression, whether the

content of the expression takes a secular or religious form. See Pinette, 515 U.S. at

760, 115 S.Ct. 2440 (noting that “[o]ur precedent establishes that private religious

speech, far from being a First Amendment orphan, is as fully protected under the

Free Speech Clause as secular private expression”); Mergens, 496 U.S. at 249, 110

S.Ct. 2356 (stating that “prevent[ing] discrimination against religious and other

types of speech” has an “undeniably secular” purpose.); Americans United For

Separation of Church and State v. City of Grand Rapids, 980 F.2d 1538, 1543 (6th

Cir.1992) (en banc) (explaining that a “policy of treating religious speech the same

as all other speech certainly serves a secular purpose”).




                                         39
      Nevertheless, Appellants suggest that the policy has no true secular purpose

and they posit three arguments to show that any avowed secular purpose is actually

a “sham.” They claim first, that the School Board promulgated the policy as a

means to evade the strictures of Lee; second, that the policy’s solely sectarian

purpose is established by the title of the Reynolds Memorandum, “Graduation

Prayer”; and finally, that comments made by some members of the School Board,

notably after the policy had been promulgated and distributed in Duval County,

likewise evince a wholly sectarian purpose.

       Before examining Appellants’ specific claims, we first note that Appellants,

without any case authority, ignore the plain text of the policy and its explicitly

stated secular purpose, as if there were none. Appellants would divine a wholly

sectarian purpose merely by looking at the antecedent history, the title, and the

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

to consider both the “legislative history and the specific sequence of events

leading up to the adoption of the statute,” it is, “of course, necessary to examine the

language of the statute on its face.” Bown, 112 F.3d at 1469 (citing Edwards, 482

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

      As for Appellants’ first claim, Appellants cite no persuasive evidence that

the Duval County policy was promulgated to evade the strictures of Lee. Inferring


                                          40
the subjective motivations of policymakers is always a tricky proposition.

“[W]hile it is possible to discern the objective ‘purpose’ of a statute (i.e., the public

good at which its provisions appear to be directed), or even the formal motivation

for a statute where that is explicitly set forth, ... discerning the subjective

motivation of those enacting the statute is, to be honest, almost always an

impossible task. The number of possible motivations, to begin with, is not binary,

or indeed finite.” Edwards v. Aguillard, 482 U.S. 578, 636-37, 107 S.Ct. 2573, 96

L.Ed.2d 510 (1987) (Scalia, J., dissenting).

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

from which to fairly infer the motivation of those who promulgated or distributed

the policy. In so far as we attempt to divine purpose from the decision-makers, “to

the extent that the School Board was the institutional policy maker (rather than

Superintendent Zenke and/or Ms. Reynolds),” the district court found that the

“purposes or intentions of the members of the Board are unknown. No debate was

had and no vote was taken on the Reynolds Memorandum of May 5.” Adler I, 851

F.Supp. at 451. To the extent that we focus on the motives of Mr. Zenke or Ms.

Reynolds, the district court found mixed motives or purposes--to permit students to

solemnize the event, to afford the student body the opportunity to select a

messenger, who, in turn would, with complete autonomy, choose a secular or


                                            41
sectarian message, and to afford the students the option of having no message at

all. See id. at 452.

      Appellants offer no good reason to disturb the district court’s findings which

are grounded in the facially neutral language of the Reynolds Memorandum.

Appellants principally rely on the pre-policy history. A review of the pertinent

history, however, yields only the observations that prior to Lee Duval County had a

long tradition of clergymen offering prayers at commencement ceremonies, that in

the wake of Lee in 1992 the School Board terminated the practice, and that

thereafter many members of the community expressed strong views about the

policy one way or the other. Appellants highlight the fact that some community

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

graduation prayer tradition. It would be an especially dangerous practice if a court

could somehow discern legislative purpose, not from the text of the policy, nor

from its explicitly stated purpose, nor even from a decision-making body that has

offered no debate from which to find purpose, but, rather, simply from the

controversy surrounding the subject and the heartfelt and often conflicting views

expressed by many members of the community.

      In addition, the fact that the Reynolds Memorandum discusses Lee and the

question of whether student-initiated, student-led graduation prayer is


                                         42
constitutional does not establish that the policy’s secular purposes are a “sham.”

Edwards, 482 U.S. at 586-87, 107 S.Ct. 2573; Bown, 112 F.3d at 1468. There is

nothing inappropriate about a school system attempting to understand its

constitutional obligations and to instruct school officials on how to comply with

the law. The Reynolds Memorandum simply explained that in spite of Lee the law

was unclear on the student prayer issue and that the School Board had been

threatened with “lawsuits from both sides on the issue depending on what action”

they took. The memorandum, in no way, expressed a desire or preference for

student prayer at graduation ceremonies. It simply acknowledged that Lee forbade

graduation prayers “directed and initiated by the school system” rather than

student-initiated, student-led prayers. Moreover, as the memorandum made clear,

the policy’s stated purpose is plainly secular, “to allow students to direct their own

graduation message without monitoring or review by school officials,” and its

features are strictly content-neutral and equally accommodating of secular and

sectarian student messages. At worst, the memorandum can be read as

contemplating that student prayers could be offered pursuant to the graduation

policy and that such occurrences were not strictly forbidden by Lee. Such a

supposition does not come close to rendering the policy’s secular purposes a sham.




                                          43
      Appellants next suggest that the title of the Reynolds Memorandum,

“Graduation Prayer,” supports the conclusion that the School Board policy was

driven solely by sectarian concerns. The title, however, merely introduces the

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

suggesting, let alone compelling, the outcome of that debate. The title affixed to

the Reynolds Memorandum does no more than alert the reader to the general

subject matter of the text; and it remains the language and substance of the policy,

rather than its title, that is controlling. It is altogether unnecessary to requisition

the title to cast doubt on the clear and unambiguous purpose of the policy. The

crucial term “message” is fully defined by the text of the policy, which provides

that the decision whether to have a message is left to the students, that the student

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

length, that the message shall take place at the beginning and/or closing of the

graduation ceremony, and, finally, that the content of the message shall be

prepared by the student speaker without monitoring or review by the School Board.

The title cannot take the place of a detailed review of the policy's facial provisions,

let alone create a wholly sectarian purpose out of a textually neutral

pronouncement.




                                           44
      Besides being unnecessary, use of the title to inform the plain meaning of

the policy’s language is improper. Indeed, even if we were examining the title of a

statute or legislative codification--and we are doing far less than that here-- the

Supreme Court has warned that “the title of a statute and the heading of a section

cannot limit the plain meaning of the text. For interpretive purposes, they are of

use only when they shed light on some ambiguous word or phrase. They are but

tools available for the resolution of a doubt. But they cannot undo or limit that

which the text makes plain.” Brotherhood of R.R. Trainmen v. Baltimore & Ohio

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

and our predecessor court have repeatedly employed this principle of statutory

construction when interpreting the statutory text. See, e.g., North Ala. Express,

Inc. v. Interstate Commerce Comm’n, 971 F.2d 661, 664 (11th Cir.1992)

(declaring that “‘[s]ection and chapter titles cannot alter the plain meaning of a

statute; they can only assist in clarifying ambiguity’”) (citation omitted);

Scarborough v. Office of Personnel Management, 723 F.2d 801, 817 (11th

Cir.1984) (noting that “reliance upon headings to determine the meaning of a

statute is not a favored method of statutory construction”); Rich v. Commissioner

of Internal Revenue Serv., 250 F.2d 170, 175 (5th Cir.1957) (stating that “[t]he




                                          45
plain and unambiguous meaning of the text of the section cannot be extended by its

title or heading”).

      Finally, Appellants point to post-enactment comments of some members of

the School Board made at a June 1, 1993 meeting as evidence of the School

Board’s wholly sectarian purpose to permit graduating students to pray.

However, the district court observed that “[t]he motivation or intent of the Board

relative to the Reynolds Memorandum of May 5 is essentially unknown.” Adler I,

851 F.Supp. at 452. No debate was had and as far as the record reflects, no vote

was taken on the Reynolds Memorandum. The June 1 comments were made

almost a month after the policy was promulgated and distributed in the context of a

proposal to replace student-initiated messages with a moment of silence. The

motion failed and the policy was left in force. At best, the vote can be viewed as a

tacit endorsement of the Reynolds Memorandum. Furthermore, a review of the

School Board’s comments at this meeting do not establish that the School Board

sought to direct or endorse graduation prayer via the Reynold Memorandum. The

most one could say is that the statement of one School Board member at the June 1

meeting could be characterized as advocating direct school involvement with




                                         46
religion at graduation ceremonies.8 Simply put, the post-enactment comments are

not sufficient to transform the policy’s express secular purpose into a preeminently

religious purpose.

      More importantly, regardless of how these post hoc statements are

interpreted, they cannot be construed to override the policy’s language articulating

a clear secular purpose. See Bown, 112 F.3d at 1472. Indeed in Bown, we had


      8
         Appellants cite to four post-enactment statements of School Board members
to show that the School Board intended to permit graduating students to engage in
prayer. In fact, the statements to which the Appellants refer generally buttress the
conclusion that the School Board's policy was not a sham. Of those four statements,
only the statement of Board member Bill Parker can be characterized as advocating
direct school involvement with religion at graduation ceremonies. See Tr. of Duval
County Sch. Bd. Meeting at 2 ("I think that our school principals should be allowed
to work out a non-sectarian message with our student chaplains, or a guest minister,
rabbi or whatever that would be acceptable to all at this very important time in our
young people's lives."). The statements of Don Buckley and Nancy Corwin, while
generally supportive of religion, acknowledge that an intended effect of the policy is
to insulate the content of messages from school influence. See id. at 5 (Buckley) ("I
think the only way we can keep ourselves clear on this thing is to keep ourselves out
of what happens in this area of the graduation ceremony."); (Corwin) ("I also believe
that the democratic process in which seniors were given the ability to choose which
form of inspirational message, if any, they wanted at their commencement was an
appropriate one and I'm going to stand by it."). Rather than betraying an illegitimate
intent to ensure that prayer take place at graduation ceremonies, these statements
indicate that Buckley and Corwin perceived the School Board policy as disassociating
the school hierarchy from student messages. The fourth statement referenced by
Appellants, that of Board member Stan Jordan, was also supportive of the policy. See
id. at 8 ("I plan to vote for the administration plan and against the proposal that's on
the table."). Taken as a whole, these utterances by School Board members constitute
recognition that the old regime of state-directed school prayer in Duval County had
passed and been replaced by a new regime over which they had far less control.

                                          47
occasion to find that the legislative history of a Georgia statute (mandating a period

for quiet reflection in public schools), which contained some expressions of

religious motives by several legislators who voted for the Act, could not “override

the express statutory language articulating a clear secular purpose.”9 Id. Here, we

have even far less evidence of a sectarian policy purpose on the part of the School

Board or their principals.

      In sum, whether standing alone or in concert, the three pieces of evidence

cited by Appellants cannot strip the policy of a secular purpose. No matter what an

individual board member may have hoped--and they said nothing on the record

about codifying this policy--Duval County’s policy is facially neutral and

undeniably evinces a secular purpose. That is enough to pass constitutional muster

under the first prong of Lemon.

                                          B.


      9
        Appellants cite Jager v. Douglas County Sch. Dist., 862 F.2d 824 (11th
Cir.1989), for the proposition that a policy, whose actual purpose is to promote prayer
or is “intrinsically religious,” Id. at 830, cannot meet the secular purpose prong of
Lemon. But Jager does no more than state the obvious, that in order to meet Lemon's
first prong, a government policy must have a genuine secular purpose and not be a
sham. See Edwards, 482 U.S. at 586-87, 107 S.Ct. 2573. If a policy’s “actual
purpose” is wholly religious then Lemon's secular purpose requirement is not
satisfied. In Jager, we held that a school district's practice of having representatives
of student organizations deliver invocations prior to football games had as its
“preeminent purpose” the endorsement of Protestant Christianity. Id., 862 F.2d at
830. The only discretion left to the students was the selection of who would pray.

                                          48
      As for whether the policy has the primary effect of advancing religion, we

conclude that because the policy, on its face, allows a student message on any topic

of the student’s choice it satisfies the second prong of Lemon. The Duval County

School Board policy is content-neutral and does not mandate or even encourage

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

implementation of the policy may result in no graduation prayer at all. See Adler I,

851 F.Supp. at 454. While it is undoubtably true that an autonomous student

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

same speaker may opt for a wholly secular message instead. It would require a

strain of the term “primary” to suggest that a content-neutral forum policy, which

accommodates private sectarian and secular speech on an equal basis, has the

“primary” or “principal” effect of advancing religion.

      Moreover, we believe that a student’s private choice to deliver a religious

message at graduation is a religious effect attributable to the student rather than to

the facial terms of the Duval County policy. As the Supreme Court has explained,

“to have forbidden ‘effects’ under Lemon, it must be fair to say that the

government itself has advanced religion through its own activities and influence.”

Corporation of Presiding Bishop of Church of Jesus Christ Latter-Day Saints v.

Amos, 483 U.S. 327, 337, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987). Here, the


                                          49
policy strips the School Board of any authority over the central decisions-- who

speaks, whether there will be a speaker, and what the content of the speech may be.

Indeed, in order to ensure that no one perceives any student’s religious utterance as

being the state’s prayer, the policy explicitly divorces any student message from

School Board sponsorship by specifically stating that any message will be

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

reviewed” by the School Board or its employees. This language acts as an overt

disclaimer, further distancing the state from the student message.

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

under Lemon, repeatedly has upheld facially neutral programs that permit

individuals to support religion through their own private choices. See, e.g.,

Agostini, 521 U.S. at 223-232, 117 S.Ct. 1997 (upholding New York program of

sending public school teachers into parochial schools to provide remedial

education where aid was made available to religious and secular beneficiaries on a

nondiscriminatory basis); Zobrest, 509 U.S. at 8-12, 113 S.Ct. 2462 (sustaining

section of Individual with Disabilities Act providing disabled children with aid

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

488, 106 S.Ct. 748 (holding that Establishment Clause was not violated when the

state paid a blind student’s tuition at a Christian college through a


                                          50
generally-applicable aid program because any public aid that reached religious

institutions under the program was “a result of the genuinely independent and

private choices of aid recipients”); Mueller v. Allen, 463 U.S. at 399, 103 S.Ct.

3062 (upholding a state tax deduction for specified educational expenses, and

characterizing any such aid to religion as being “only as a result of numerous,

private choices of individual parents of school-age children”). The Duval County

policy allows elected student speakers the freedom to privately choose a graduation

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

Duval County policy does not have a primary effect of advancing religion.

                                           C.

      For many of the same reasons, we conclude that the School Board’s policy

does not excessively entangle the Board with religion in violation of the third part

of the Lemon test.10 The policy remains facially neutral with respect to religion,

requiring only that graduation messages be voted on by students, and composed

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

any review of the student message at all. Undoubtedly, the School Board would

find itself far more entangled with religion if it attempted to eradicate all religious


      10
         Recently, in Agostini, the Court merged the second and third Lemon prongs
because “the factors we use to assess whether an entanglement is ‘excessive’ are
similar to the facts we use to examine ‘effect.’” Id, 521 U.S. at 232.

                                           51
content from student messages than if it maintained a meaningful policy of studied

neutrality. See Mergens, 496 U.S. at 253, 110 S.Ct. 2356 (stating that “a denial of

equal access to religious speech might well create greater entanglement problems

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

such speech might occur”); Widmar, 454 U.S. at 272 n. 11, 102 S.Ct. 269 (noting

that schools who adopt open-forum policies for private secular and religious

groups equally “would risk greater ‘entanglement’ by attempting to enforce its

exclusion of ‘religious worship’ and ‘religious speech’”); Chabad-Lubavitch, 5

F.3d at 1389; Jager, 862 F.2d at 831.

      Implicit in Appellants’ rationale is the need for school censorship if schools

are to allow students the opportunity to speak at graduation at all. At the core of

Appellants’ position is the claim that the state’s control over nearly all aspects of

the graduation ceremony automatically imputes all private speech to the state. But

the degree of control that schools generally exert over high school graduation

ceremonies is unlikely to diminish because graduation ceremonies are, by their

nature, highly choreographed. Appellants’ position therefore would leave school

officials with only two choices: either eliminate student speech altogether or retain

student speech, subject to censorship by school authorities. If school officials

choose the latter course, they will be left with the unenviable task of identifying the


                                          52
religious content in student speeches for excision prior to graduation or of

interrupting renegade graduation speakers who resort to sectarian speech.11 If,

however, they choose the former, they will have deprived the graduation class of

any role in shaping its high school graduation and they will have banned all private

student expression. The Establishment Clause requires no such Hobson’s choice.

What it does require is a recognition of the critical difference between a private

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

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

distinction.

                                          III.

      Based on the foregoing, we hold that the Duval County school system’s

policy of permitting graduating students to decide through a vote whether to have



      11
         There is no easy or precise guideline for school officials to follow when
excising student speech of religious content. The constitutional definition of religion
is expansive; it encompasses “all sincere religious beliefs which are based upon a
power or being, or upon a faith, to which all else is subordinate or upon which all else
is ultimately dependent” and “which occupies in the life of its possessor a place
parallel to that filled by [ ] God.” United States v. Seeger, 380 U.S. 163, 176, 85 S.Ct.
 850, 3 L.Ed.2d 733 (1965). Moreover, the beliefs “need not be acceptable, logical,
consistent, or comprehensible to others.” Thomas v. Review Bd., 450 U.S. 707, 714,
101 S.Ct. 1425, 67 L.Ed.2d 624 (1981). Moreover, if the School Board’s censorship
was not “rigorous” enough to prevent religion from creeping into graduation
ceremonies, a policy of allowing even monitored student speech still would be subject
to constitutional attack.

                                           53
an unrestricted student graduation message at the beginning and/or closing of

graduation ceremonies does not facially violate the Establishment Clause. We

therefore affirm the judgment of the district court.

      AFFIRMED.




                                          54
KRAVITCH, Senior Circuit Judge, dissenting, in which BARKETT, Circuit Judge,
joins:

      I agree with the majority that the Supreme Court’s decisions in Lee v.

Weisman, 505 U.S. 577, 112 S. Ct. 2649 (1992), and Lemon v. Kurtzman, 403

U.S. 602, 612-13, 91 S. Ct. 2105, 2111 (1971), control this case. I disagree,

however, with the majority’s application of those decisions to the facts of this case.

The majority articulately defends the constitutionality of the Duval County

graduation policy, but the analysis is flawed by an unwillingness to look beyond

the policy’s terms. A broader, more contextual appraisal leads me to conclude that

the Duval County policy violates the Establishment Clause of the First

Amendment. Therefore, I respectfully dissent.

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

graduation ceremony unconstitutional because (1) school officials were overly

involved with the delivery of a prayer, and (2) audience members were in effect

required to participate in a formal religious exercise. Admittedly, the link between

the Duval County policy and resulting prayer at graduation ceremonies is not as

direct as in Lee. But although the Duval County school administration may have

distanced itself from prayer offered during graduation ceremonies, it did not

disconnect itself from religious expression. Nor does the policy mitigate the



                                         55
influences that coerce audience members to participate in prayers offered at

graduation.

       Although Lee presents a specific example of an Establishment Clause

violation, Lemon, 403 U.S. at 612-13, 91 S. Ct. at 2111, still provides the general

Establishment Clause test. The Duval County policy runs afoul of the Lemon test

because its only credible purpose is to maximize the chance that prayer will

continue to play a prominent role in Duval County graduations. Furthermore, the

policy’s “primary effect” is to advance religion. The policy communicates an

endorsement of religion both because it leads to more religious expression in the

opening and closing messages than all other types of speech, and because its

purpose is apparent to any reasonable observer aware of its terms, the graduation

traditions in Duval County, and the events leading to the policy’s creation.

       Invoking the ideals of free student expression and referencing the public

forum doctrine do not cleanse the Duval County policy of its constitutional defects.

Allowing a student majority to do what the school administration could not offends

our constitutional scheme of individual rights. Nor does the policy promote free

expression or render the graduation ceremony equally available for any sort of

speech–not when it allows for only one speaker, and a speaker chosen by majority

vote at that.


                                         56
      In addition to disagreeing with the majority’s facial analysis of the Duval

County policy, I take issue with the conclusion that the plaintiffs waived their as-

applied claims. After analyzing the Duval County policy under both Lee and

Lemon, and critiquing the majority’s public forum analogy, this dissent concludes

with a brief examination of the procedural posture of the case and the district

court’s order advancing the trial on the merits.



A. Lee v. Weisman

      The starting point for the analysis of the Duval County policy is Lee v.

Weisman, 505 U.S. 577, 112 S. Ct. 2649 (1992), because it is the only Supreme

Court case involving prayer at public school graduation ceremonies. In Lee, a

principal invited a rabbi to give a prayer at the school’s graduation ceremony and

provided a pamphlet suggesting an appropriate tone and possible content for the

presentation. Id. at 581, 112 S. Ct. at 2652. The Supreme Court found it

unnecessary to apply the Lemon analysis in Lee because two “dominant facts”

rendered the rabbi’s prayer so clearly unconstitutional. Id. at 586, 112 S. Ct. at

2655. First, “[t]he government involvement with religious activity [was]

pervasive, to the point of creating a state-sponsored and state-directed religious

exercise in a public school.” Id. at 587, 112 S. Ct. at 2655. Second, “the State, in a


                                          57
school setting, in effect required participation in a religious exercise.” Id. at 594,

112 S. Ct. at 2659. The majority purports to evaluate Duval County’s policy in

light of the standards enunciated in Lee, but it both understates the degree of state

direction relevant for the first prong of the Lee analysis and effectively writes

Lee’s second “dominant fact,” coerced participation, out of the opinion by

conflating it with the state’s control over the religious exercise itself.



1. State Control

      In Lee, state actors made the decision to include an invocation and

benediction in the graduation ceremony, selected the speaker, and suggested an

appropriate tone for the message. Id. at 587-88, 112 S. Ct. at 2655-56. These

elements of state involvement are of constitutional import because they “made it

clear that the graduation prayers bore the imprint of the State.” Id. at 590, 112 S.

Ct. at 2657. Admittedly, the Duval County policy is not as egregious as the

practice scrutinized in Lee. The state involvement with prayers offered through the

operation of the policy, however, is still too extensive to comport with the

Establishment Clause.

      In its own search for state involvement, the majority focuses on the student

standing alone at the podium delivering an uncensored message, but ignores how


                                           58
she got there. A broader inquiry reveals that the state directs the exercise of prayer

at Duval County high school graduations because: (1) the programmatic constraints

imposed by the graduation policy promote religious expression, especially given

the context surrounding the policy’s promulgation, (2) the election of a student to

deliver the opening or closing “message” is state action, and (3) the vote for

student speaker is based on the expected content of the candidate’s message.

      According to the majority, “[t]he School Board . . . does not suggest in any

way . . . that the graduating class consider religious or any other criteria in deciding

whether to have a student message or in selecting a particular student speaker.”

The policy does not permit the school administration to remain passive, however,

and the policy’s terms do encourage the senior class to consider religious criteria in

planning the opening and closing.

      Under the terms of the policy, it is the high school administration that

organizes elections for the graduation program. The policy only allows for student

input concerning the beginning and end of the ceremony–portions of the program

appropriate for a limited range of speech. The policy also dictates that the opening

and closing messages last no more than two minutes, further limiting the types of

speech possible. The constraints of the policy itself provide clues about the type of

message the school administration had in mind. In case students need more of a


                                          59
hint, however, history provides one. Until the year the policy went into effect,

Duval County high school graduations had opened and closed with a prayer. As

the district court noted, “[i]nvocations and benedictions have been traditional and

are therefore familiar if not expected at high school graduation ceremonies” in

Duval County. Adler v. Duval County Sch. Bd., 851 F. Supp. 446, 453 n.9 (M.D.

Fla. 1994).

      Moreover, the senior class vote is itself attributable to the state. The

majority concludes otherwise because it views the students as making all of the

“central” decisions regarding the opening and closing message. This logic

undervalues the power of the policy’s terms to influence the students’ choices; it

also treats the graduation “message” as if it were an independent event, rather than

the opening and closing segment of a more substantial occasion, the graduation

ceremony. This narrow perspective permits the majority to ignore the fact that the

Duval County policy gives students control over only a tiny fraction of the

graduation ceremony as a whole.1


      1
        Both the Ninth and the Third Circuits have recognized that student decisions
concerning particular aspects of their graduation ceremonies are attributable to the
state. See ACLU of N.J. v. Black Horse Pike Reg’l Bd. of Educ., 84 F.3d 1471 (3d
Cir. 1996); Harris v. Joint Sch. Dist. No. 241, 41 F.3d 447 (9th Cir. 1994), vacated
with directions to dismiss as moot, 515 U.S. 1154, 115 S.Ct. 2604 (1995). These
courts both focused on the graduation ceremony as a whole. They noted that the
school administration is ultimately responsible for the graduation ceremonies, and that

                                          60
      The actions of a private party can be attributed to the state if they are taken

in exercise of a right or privilege rooted in state authority, and if the private party

can “in all fairness” be described as a state actor. See Edmonson v. Leesville

Concrete Co., 500 U.S. 614, 620, 111 S. Ct. 2077, 2082-83 (1991). Clearly, the

student vote satisfies the first part of this analysis: but for the policy, the student

vote would not occur. Before the policy went into effect, students may have had

input, but ultimately the school administration decided whether to have a formal

opening and closing segment of the graduation ceremony, and if so, what to

include in those portions of the program.

      Whether a private party can “in all fairness” be described as a state actor

depends on whether the party’s actions are “governmental in character.” See id. at

621, 111 S. Ct. at 2083. Relevant to this analysis are: “the extent to which the



“the seniors have authority to make decisions regarding graduation only because the
school allows them to have it.” Harris, 41 F.3d at 454; see also, Black Horse Pike, 81
F.3d at 1479. They also acknowledged the school’s extensive involvement with other
details of the graduation ceremony. See Black Horse Pike, 81 F.3d at 1479; Harris,
41 F.3d at 454. Only the Fifth Circuit has held that a student vote regarding prayer
cannot be attributed to the state, see Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d
963, 970-71 (5th Cir.), vacated, 505 U.S. 1215, 112 S. Ct. 3020 (1992), but that
holding is in tension with the more recent case of Doe v. Santa Fe Indep. Sch. Dist.,
168 F.3d 806 (5th Cir. 1999), cert. granted in part 120 S. Ct. 494 (Nov. 15, 1999). In
Santa Fe, the Fifth Circuit held that allowing proselytizing prayers at graduation
violated the First Amendment, even though the senior class selected the speaker. 168
F.3d at 817.

                                            61
actor relies on governmental assistance and benefits; whether the actor is

performing a traditional governmental function; and whether the injury caused is

aggravated in a unique way by the incidents of governmental authority.” Id. at

621-22, 111 S. Ct. at 2083 (citations omitted). Considered in light of these three

factors, the student decisions made pursuant to the Duval County policy are

“governmental in character.”

      First, the students vote not merely with the cooperation of the school

authorities but at the behest of school district policy. They do so on school

property, and the assistance or cooperation of the principal and faculty with

administering the election must be presumed. Furthermore, students vote about a

message that will be delivered at an event sponsored and controlled by the school.

      Second, planning public school graduation ceremonies is a traditional

governmental function. The Supreme Court noted in Lee that “teachers and

principals must and do retain a high degree of control over the precise contents of

the program, the speeches, the timing, the movements, the dress, and the decorum

of the students.” 505 U.S. at 597, 112 S. Ct. at 2660. Before the policy went into

effect, the Duval County school administration had the power to plan every aspect

of the graduation ceremonies, including the opening and closing, and the policy




                                         62
does not divest the administration of control over the graduation ceremonies

generally.

      Finally, prayers recited during the opening and closing portions of the

ceremony have an injurious effect precisely because of the state association with

the event. Most people properly perceive their everyday encounters with others’

religious expression as an incidental requirement of life in a diverse society, rather

than as a burden or attack on their own beliefs. See Lee, 305 U.S. at 628, 112 S.

Ct. at 2677 (Souter, Stevens, & O’Connor, JJ., concurring). It is government

participation in religious expression that offends the First Amendment because of

its power to influence the inherently personal nature of religious faith, potentially

coercing religious minorities or even coopting mainstream sects. See id. at 591-92,

112 S. Ct. 2657-58; see also id. at 608-09, 112 S. Ct. at 2666 (Blackmun, Stevens,

& O’Connor, JJ., concurring).

      The student vote satisfies the criteria for state action described in Edmonson,

and other cases have identified state action in a similar context. These cases stand

for the proposition that when government delegates authority over a portion of a

public operation to an ostensibly private actor, but retains ultimate control over the

larger operation, the exercise of the delegated authority is attributable to the state.

Administering elections, for example, is a state function. Although states can give


                                           63
political parties and private associations a role in choosing candidates to appear on

the ballot, the private entities’ fulfillment of that role is state action. See Terry v.

Adams, 345 U.S. 461, 469, 73 S. Ct. 809, 813 (1953); Smith v. Allwright, 321 U.S.

649, 663, 64 S. Ct. 757, 765 (1944). The state cannot escape its responsibility to

maintain an electoral system that comports with the Constitution by allowing non-

governmental entities to control part of the electoral system. See Terry, 345 U.S.

at 469, 73 S. Ct. at 813.

      These rules do not only apply to fundamental governmental operations such

as elections. For example, after a city has managed a park for a period of time, it

cannot continue to maintain the facilities but avoid the Fourteenth Amendment’s

mandate to integrate by appointing private trustees to oversee the park. See Evans

v. Newton, 382 U.S. 296, 301, 86 S. Ct. 486, 489 (1966). The park in Evans had

acquired “momentum” as a public facility, and the city remained “entwined” in its

operation. It was of no consequence that the trustees with official authority were

not public employees, because “when private individuals or groups are endowed by

the state with powers or functions governmental in nature, they become agencies or




                                           64
instrumentalities of the State and subject to its constitutional limitations.”2 Id. at

299, 86 S. Ct. at 488.

      So it is with Duval County’s public high school graduation ceremonies,

which have always been state-sponsored events. Through the graduation policy,

the school administration delegates one decision to the senior class, but in all other

ways “remains entwined in the management [and] control” of the graduation

ceremonies. Id. at 301, 86 S. Ct. at 489.

      The fact that the policy requires the senior class to exercise its decision-

making authority through a majoritarian vote does not change the analysis. “One’s

. . . fundamental rights may not be submitted to vote; they depend on the outcome

of no elections.” West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638,

63 S. Ct. 1178, 1185-86 (1943). After all, “[t]he very purpose of the Bill of Rights

was to withdraw certain subjects from the vicissitudes of political controversy, to

place them beyond the reach of majorities.”3 Id., 63 S. Ct. at 1185.

      2
       Indeed, even if all maintenance and title to the land were in private hands, the
park’s management would have to comply with the Constitution because “the
predominant character and purpose of [the] park are municipal.” Evans, 382 U.S. at
302, 86 S. Ct. at 490.
      3
        Under the majority’s reasoning, student councils could, without prompting,
vote to decorate each classroom with the Ten Commandments or to have a student
volunteer begin each school day by reading a prayer over the public address system.
In one sense the policy at issue in this case poses more of a constitutional problem
than these examples. The student council’s decisions would at least be genuinely

                                            65
      To further distance the state from the actual content of the opening and

closing messages, the majority emphasizes that the senior class votes for a speaker,

not a particular speech. The majority concludes that the selection of the student

speaker is made in a content-neutral manner. It requires a logical leap, however, to

move from the student speaker’s limited autonomy to craft the graduation message

to the conclusion that the senior class chooses the speaker without considering

what she is going to say.

      It is more realistic to acknowledge that students vote based on the

anticipated content of the candidates’ graduation message. Unlike typical elected

offices with numerous responsibilities or strictly honorary positions such as the

homecoming queen mentioned in the majority opinion, the graduation speaker is

elected to carry out one very specific task: she must deliver a single speech that


student-initiated, but here the opportunity for an opening and closing message is
created by the school administration and the vote is organized and influenced by
school officials. Local government could undermine minority and individual rights
in a similar fashion. In County of Allegheny v. ACLU Greater Pittsburgh Chapter,
492 U.S. 573, 109 S. Ct. 3086 (1989), the Supreme Court held that permitting the
display of a creche in the Grand Staircase of a county courthouse violated the First
Amendment. The majority’s view here suggests that a town council in a religiously
observant and overwhelmingly Christian community could bypass the holding in
Allegheny by sponsoring an election each year for volunteer committees to decorate
town hall in mid-December or in the weeks following the secular holiday of Mardi
Gras. Such a procedure, however, would not alter the city’s control over town hall or
eliminate the symbolic connection between the religious decorations and the town
government.

                                         66
lasts less than two minutes. If the school board does not expect students to vote

based on how they anticipate the candidates will perform that one responsibility,

then why have an election at all?4

      Factoring the content of the speech into the choice of speaker is problematic

because the choice is attributable to the state and because the terms of the policy

influence the choice as well. Furthermore, given the pervasive state involvement

in public school graduation, abstaining from censorship is not enough to sever the

state’s association with speech made at the ceremony. To effectively disconnect

itself from that speech, the state must be able to articulate secular, neutral criteria

for selecting the speaker that are not related to the content of the speech.

      This is the rule suggested by the Ninth Circuit’s decision in Doe v. Madison

Sch. Dist. No. 321, 147 F.3d 832 (9th Cir. 1998), vacated as moot, 177 F.3d 789

(9th Cir. 1999) (en banc). The majority finds the Duval County policy similar to

the policy in Doe, but it is the differences that are instructive. Under the policy at

issue in Doe, a minimum of four student speakers were selected strictly on the

basis of their academic standing to deliver any sort of address they wanted.5 See

      4
        Certainly some students will vote based on criteria such as the popularity of
the candidates. We cannot assume, however, that this will be the norm. It is worth
noting that the Duval County policy imposes no limits on campaigning.
      5
         The policy in Doe did not limit the duration of the students’ speech nor restrict
it to a segment of the graduation program uniquely appropriate for, and traditionally

                                           67
id. at 835. There was no opportunity to influence the types of speeches given,

because there was no discretion in choosing the speakers. The authorities could

also disconnect themselves from the content of the student speakers’ speech

because the speakers were chosen not for the views their peers or teachers hoped

they would espouse, but on the basis of a non-content based objective criterion

(class standing) related to the graduation ceremony’s purpose of celebrating

student achievement.

      Although the Duval County policy does not mandate that a prayer be offered

at every graduation, it nonetheless keeps the state heavily involved in the choices

regarding the ceremonies’ opening and closing. The policy not only allows, but in

some ways encourages, the choice of prayer. Although subtler and more indirect

than the practice at issue in Lee, the Duval County policy contains the same

elements of state involvement with religious expression.



2. Coerced Participation in a Religious Exercise




devoted to, prayer. See id. at 834. Unlike the Duval County policy, nothing about the
policy in Doe encouraged the student speakers to choose to deliver a prayer. If
anything, requiring a minimum of four speakers minimizes the risk that the school
administration promotes any particular type of message through the policy.

                                         68
      The second dominant fact in Lee was that the state in effect compelled the

graduating students’ participation in a religious exercise. See 505 U.S. at 586, 112

S. Ct. at 2655. Coerced participation in a religious exercise is a separate and

distinct issue from that of who controls the religious exercise. According to the

Supreme Court, this coerced participation in prayer represents the injury suffered

by dissenting students. See Lee 505 U.S. at 594, 112 S. Ct. at 2659.

      Writing about this second dominant fact, the Lee Court stated: “The sole

question presented is whether a religious exercise may be conducted at a

graduation ceremony where, as we have found, young graduates who object are

induced to conform.” Id. at 599, 112 S. Ct. at 2661. The majority here refuses to

address that question. Instead, it holds that whether the school administration

coerces student participation in a religious exercise “is largely determined by the

measure of state control over the message at a graduation ceremony, rather than

state control over the ceremony itself.” The majority cites no authority for this

interpretation, which essentially reads the “second dominant fact” out of Lee and

disregards much of that decision’s analysis.6


      6
         The Supreme Court did not state in Lee whether either one of the “dominant
facts” would constitute a violation of the Establishment Clause by itself, or whether
the government needs to both direct a religious exercise and coerce participation in
that religious practice. By deciding that coerced participation only exists if the
government controls the religious exercise, the majority in this case answers the

                                         69
      The majority’s interpretation also ignores the relationship between the Free

Exercise and Establishment Clauses of the First Amendment. “The Free Exercise

Clause embraces a freedom of conscience and worship,” and the Establishment

Clause is “[t]he method for protecting [that] freedom of worship and freedom of

conscience in religious matters.” Id. at 591, 112 S. Ct. at 2657. When the

government requires an individual to participate in a religious exercise, it impinges

that individual’s freedom of conscience and worship, even if the government is not

conducting the religious service itself.

      Three factors contributed to the coercion of student participation in prayer in

Lee. First, attendance for seniors is in effect mandatory because graduation is a

significant right of passage in our society. See id. at 595, 112 S. Ct. at 2659.

Second, “[a]t a high school graduation, teachers and principals must and do retain a

high degree of control over the precise contents of the program, the speeches, the

timing, the movements, the dress, and the decorum of the students.” Id. at 597, 112

S. Ct. at 2660. Finally, adolescents are susceptible to peer pressure, and the



question, but in quick fashion. We need not address the relationship between the two
dominant facts, because we conclude that both are present in the Duval County policy.
It is worth reiterating, however, that the Supreme Court identified the injury to the
student plaintiffs as the mandatory participation in a religious exercise, without
making reference to who conducted or controlled it. See Lee 505 U.S. at 594, 112 S.
Ct. at 2659.

                                           70
pressure to conform “is strongest in matters of social convention.” Id. at 593, 112

S. Ct. at 2659.

      These coercive elements are as present at Duval County graduation

ceremonies under the policy at issue in this case as they were at the Providence,

Rhode Island, graduation scrutinized in Lee. Graduation is a central life event for

teenagers in north Florida. School authorities set the dress code and prescribe

appropriate behavior for seniors. Often, students are required to remain silent or

even stand for the ceremonies’ opening and closing messages. The Duval County

policy exacerbates peer pressure, because would-be dissenters know that the

majority of their classmates chose the student speaker. Finally, the policy

heightens the social pressure to participate by allowing religious expression at a

formal, ceremonial stage of the graduation. The audience remains seated and

passive through much of the graduation, including speeches by the valedictorian

and invited dignitaries, but the opening and closing call for participation of some

sort.7 According to Lee, even an understated gesture such as standing or remaining


      7
        Duval County graduations bear out this observation. School officials typically
ask the audience to stand for the first few segments of the ceremony, including the
“Invocation” or “Inspiration” and there often is a song calling for more substantial
participation. The audience then sits for the main body of the ceremony, which
includes speeches and the presentation of diplomas. See R2 (Memorandum of Law
in Support of Plaintiffs’ Motion for Preliminary Injunction, Exs. 4-7, 8-19, 22, 25-28,
32-33, 37-40, 42-45).

                                          71
respectfully silent is a constitutionally significant degree of participation. See id.

at 593, 112 S. Ct. at 2658. Students cannot be expected to express dissent in this

environment, with the obligation of polite participation and the school authorities’

control over student decorum.



B. The Lemon Test

      Lee is an obvious point of departure for evaluating the Graduation Policy

because it is the most factually similar Supreme Court case, but it did not establish

a new test for the Establishment Clause, and the Supreme Court did not state that

the facts of Lee represent the boundary between what is and what is not

constitutional. Lemon still provides the framework for evaluating a statute or

policy’s compliance with the Establishment Clause; it is the heart of the analysis.

      Lemon requires that: (1) the Duval County school system have a secular

purpose for adopting the policy; (2) the policy’s primary effect neither advances

nor inhibits religion; and (3) the policy does not result in excessive government

entanglement with religion. See Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.

Ct. 2105, 2111 (1971). The Duval County policy would violate the Establishment

Clause if it fails to meet even one of these criteria, see Edwards v. Aguillard, 482




                                          72
U.S. 578, 585, 107 S. Ct. 2573, 2577 (1987), but it falls short on two grounds: the

policy has no genuine secular purpose, and its primary effect is to advance religion.



1. The Purpose of the Duval County Policy is Pre-Eminently Religious

       Applying the first prong of the Lemon test, we determine whether the

challenged policy has a “clearly secular purpose” or “whether [the] government’s

actual purpose is to endorse or disapprove of religion.” Wallace v. Jaffree, 472

U.S. 38, 56, 105 S. Ct. 2479, 2489 (1985). We must be deferential to the

government’s articulation of the purpose behind a policy, and that policy need not

be exclusively or even predominantly secular. See Edwards, 482 U.S. at 586-87,

107 S. Ct. at 2579; Wallace, 472 U.S. at 56, 105 S. Ct. at 2489. We must not,

however, shirk our responsibility of judicial review. If a policy’s “pre-eminent

purpose” is religious, or if the proffered secular justifications for the policy are

insincere, then the policy violates the Establishment Clause. See Edwards, 482

U.S. at 586-87, 107 S. Ct. at 2579; Lynch v. Donnelly, 465 U.S. 668, 690-91, 104

S. Ct. 1355, 1368-69 (1984) (O’Connor, J., concurring); Stone v. Graham, 449

U.S. 39, 41, 101 S. Ct. 192, 193-94 (1980); Church of Scientology Flag Serv. Org.

v. City of Clearwater, 2 F.3d 1514, 1527 (11th Cir. 1993). This is the case with the

Duval County policy. The dominant reason for its passage was to keep prayer in


                                           73
graduation ceremonies; the secular justifications embraced by the majority are at

best incidental effects of the policy.

      The context surrounding the creation of the policy, the policy’s terms, and

the policy’s title all suggest its predominantly religious purpose. The chronology

of events leading up to the graduation policy is particularly telling. Until 1992

Duval County consistently opened and closed its schools’ graduation ceremonies

with prayer. Responding to the Lee decision in 1992, the school administration

directed that future graduations could not include prayer. The administration then

came under pressure from students and the community to find a way to retain

prayer in the ceremonies. Before the next school year’s graduation ceremonies, the

administration created a new policy. That policy delegated decisions about the

graduation ceremonies’ opening and closing to students while lifting the restriction

on religious expression. Finding a predominantly religious purpose behind the

new policy in this context requires no speculation but only common sense.

      Aspects of the new policy itself betray the purpose of maximizing the chance

that prayer would be included in future graduation ceremonies without directly

mimicking the school officials’ actions proscribed by Lee. The policy only

involves the opening and closing segments of the graduation ceremonies–the

portions of the program historically dedicated to prayer. The policy also carefully


                                         74
restricts opening and closing messages to two minutes, a short period amenable to

a limited range of speech that includes prayer. Finally, the policy dictates that

decisions about the two minute opening and closing be made by majoritarian vote,

limiting the opportunity for innovation and variety.

      Finally, there is the title of the memorandum announcing the new policy:

Graduation Prayer. The attorney who drafted the memorandum obviously

understood the reason for the policy, but the majority of this court chooses to

ignore the evidence. Instead, it relies on the maxim that it is improper to use a

statute’s title to inform the plain meaning of the statute’s language. In all the cases

cited by the majority, however, the courts had to interpret the meaning of statutes

in order to apply them correctly.8 In this case, on the other hand, the question is

why the school administration created the policy.

      Moreover, “Graduation Prayer” is not simply the name of a bill or a title

chosen during the codification process: it is title of the memorandum announcing

and explaining the new policy to the principals who would have to administer it.

The Graduation Prayer memorandum was written at the behest of the school


      8
       See Brotherhood of R.R. Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S.
519, 525-26, 67 S. Ct. 1387, 1390-91 (1947); North Ala. Express, Inc. v. Interstate
Commerce Comm’n, 971 F.2d 661, 663-64 (11th Cir. 1992); Scarborough v. Office
of Personnel Management, 723 F.2d 801, 811-16 (11th Cir. 1984); Rich v.
Commissioner of Internal Revenue Serv., 250 F.2d 170, 173-75 (5th Cir. 1957).

                                          75
Superintendent by the attorney who crafted the policy.9 Certainly the title and text

of the memorandum could provide insight into the policy’s instrumental goals.

      The memorandum begins with two paragraphs devoted to prayers at

graduation and the discord following Lee. This analysis concludes with an

explanation of the “key to the Lee v. Wiseman [sic] decision,” and then, “[w]ith

that premise in mind,” segues into the provisions of the new policy. The policy’s

operational terms carefully avoid mention of prayer, but the memorandum as a

whole makes clear that the choice of a title was far from incongruous.

      The majority makes much of the “plain” and “facially neutral” language of

the policy itself. Adopting the terminology “opening or closing message” in the

wake of Lee, however, appears as subterfuge, a “sham,” see Edwards, 482 U.S. at

587, 107 S. Ct. at 2579, given the tradition of beginning and ending graduation

with prayer. In the words of Shakespeare: “What’s in a name? That which we call

a rose / By any other name would smell as sweet.”10

      Unconvinced, the majority suggests three possible secular purposes for the

policy: First, that the policy “afford[s] graduating students an opportunity to direct


      9
       In sharp contrast, numerous legislators influence the choice of statutory
language, and titles are often chosen for political effect rather than to accurately
summarize a bill’s purpose or content.
      10
           William Shakespeare, Romeo and Juliet, act 2, sc. 2.

                                          76
their own graduation ceremony;” second, that it permits free expression; and

finally that the policy “allows students to solemnize graduation.” None of these

possibilities withstands close scrutiny.

      It is hard to accept that the Duval County school administration crafted the

policy to empower students, both because the policy does so in such a constrained

manner and because there is scant evidence that the administration was interested

in promoting student leadership or autonomy as ends in themselves. The policy

does conclude with the statement, “[t]he purpose of these guidelines is to allow

students to direct their own graduation message without monitoring or review by

school officials,” but the majority places more significance on the statement than it

can bear.11 The statement expresses the “purpose” of the policy in terms of what it

does, rather than why it was created. And as mentioned above, the memorandum

begins with two paragraphs about school prayer and instructs the reader to consider



      11
          The Supreme Court looked beyond a similarly “self-serving” statement of
purpose in a Kentucky statute in Stone, 449 U.S. at 41, 101 S. Ct. at 193-94. The
statute required that the Ten Commandments be posted in each classroom and noted
the “‘secular application of the Ten Commandments’” in their “‘adoption as the
fundamental legal code of Western Civilization and the Common Law of the United
States.’” Id. at 41, 101 S. Ct. at 193 (quoting Ky. Rev. Stat. Ann. § 158.178 (Banks
Baldwin 1980). Despite the elucidation of a legitimate educational rationale in the
statute, the Court held that “[t]he pre-eminent purpose for posting the Ten
Commandments on schoolroom walls is plainly religious in nature.” Id. at 41, 101 S.
Ct. at 194.

                                           77
the terms of the policy with that discussion in mind. The sentence about student

direction, without any accompanying elaboration, appears “tacked on” to the end

of the memorandum.

      This secular purpose inserted in the text might still be credible if there were

any other indication that the administration had been considering the benefits of

expanded student speech and self-governance before the intense interest in

graduation prayer arose following Lee. Although the record is replete with

evidence that students and community members pressed school officials to retain

prayer in the graduation ceremonies, however, there is no evidence that officials

were promoting, or that students were demanding, a larger role planning the

graduation program and more student speech generally.12

      Finally, the Duval County policy enhances student control over the

graduation ceremony in only the most limited sense. The senior class cannot

choose to have a group deliver a message, and it cannot select a non-student

speaker. The speaker’s options are limited, because the policy restricts the



      12
         I do not mean to suggest that the school administration was hostile to student
involvement in planning graduation ceremonies. Historically the student role in
planning graduation varied from school to school. Student leadership was quite strong
at some schools, but school officials always had ultimate authority over the graduation
program. There simply is no evidence that interest in, or pressure for, student
autonomy was on the rise in 1992 and 1993.

                                          78
message to two minutes at the beginning or end of the ceremony. Interestingly, the

policy does not ensure that other student presentations during the graduation will

be uncensored. In fact, principals often review valedictory speeches in Duval

County.13 Although the school administration can promote student expression

incrementally, the graduation policy’s stringent constraints and the choice to

relinquish to students only the planning for the opening and closing suggest that

student autonomy and free expression were not the policy’s true purposes.

      The majority also suggests that solemnizing graduation ceremonies may

have been the purpose behind the Duval County policy, but the policy actually

reduces the potential for solemnization. Until the policy went into effect, an

opening and closing prayer at every graduation ceremony served a solemnizing

function. Now, however, the opening and closing are optional, and for each

graduation, students have to choose anew whether to even have a message.

Moreover, the majority is quick to emphasize that the policy leaves the content of

the opening and closing messages, should the senior class decide to have them,

unfettered. If the choice of messages is as wide-ranging as the majority would

have us believe, however, many of the possibilities would serve no solemnizing



      13
         See R 1st Supp. Exs. (Reynolds Dep. at 21; Epting Dep. at 26-27; Lockett
Dep. at 11).

                                         79
function.14 With its new policy, Duval County moved from having a solemnizing

opening and closing message at every graduation ceremony to the possibility of

having, if not a prayer, either no message or a message that undermines the

solemnity of the occasion.

      Moreover, solemnization is not a valid purpose for a policy purportedly

giving students unfettered control over the content of a speech. As already noted,

prayer is one of a limited subset of messages with a solemnizing effect. To the

extent the school administration wanted and expected students to opt for

solemnizing messages, it is likely the administration had prayer in mind. This is an


      14
          Uninfluenced by the terms of the policy or the expectations of their teachers
and colleagues, student speakers could take the opportunity to criticize the principal,
teachers, or cliquish classmates. Even an innocent but unfocused or poorly delivered
speech would not solemnize the event. A proselytizing prayer would prove divisive
rather than solemnizing as well. See Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806,
816 (5th Cir. 1999), cert. granted in part 120 S. Ct. 494 (Nov. 15, 1999) (“[W]e cannot
fathom how permitting students to deliver sectarian and proselytizing prayers can
possibly be interpreted as furthering a solemnizing effect.”). The majority cites three
cases for the proposition that prayer can serve a legitimate solemnizing function, but
all three recognized that they were considering only non-sectarian, non-proselytizing
speech. See Chaudhuri v. Tennessee, 130 F.3d 232, 236-37 (6th Cir. 1997) cert.
denied 523 U.S. 1024, 118 S. Ct. 1308 (1998); Tanford v. Brand, 104 F.3d 982, 983,
986 (7th Cir. 1997); Jones, 977 F.2d at 964-66. The majority also cites Justice
O’Connor’s concurrence in Lynch for the more general proposition that religious
expression can solemnize public occasions, but Justice O’Connor’s statement is
qualified. “[G]overnment acknowledgments of religion,” she writes, can “serve . . .
the legitimate secular purpose[] of solemnizing public occasions,” but her examples
are all practices that “are not understood as conveying government approval of
particular religious beliefs.” Lynch, 465 U.S. at 693, 104 S. Ct. at 1369-70.

                                          80
illegitimate purpose under Lemon; public officials cannot encourage prayer,

because even if prayer has secondary secular benefits, the promotion of prayer is

first and foremost the promotion of religion. See ACLU of N.J. v. Black Horse

Pike Reg’l Bd. of Educ., 84 F.3d 1471, 1485 (3d Cir. 1996); Harris v. Joint Sch.

Dist. No. 241, 41 F.3d 447, 458 (9th Cir. 1994), vacated with directions to dismiss

as moot, 515 U.S. 1154, 115 S. Ct. 2604 (1995); Jager v. Douglas County Sch.

Dist., 862 F.2d 824, 829-30 (11th Cir. 1989).

      Finally, by the majority’s own logic, solemnization should not be considered

as a possible purpose for the graduation policy. The majority chides Appellants for

looking beyond the text of the Graduation Prayer memorandum, but solemnization

appears nowhere in the policy’s terms or the memorandum’s prefatory paragraphs.

Hypothetical justifications for a state law or action are not enough to satisfy the

Lemon test; courts must look for the actual purpose. See Wallace, 472 U.S. at 56,

105 S. Ct. at 2489. In this case, that search leads only to the promotion of religion.



2. The Primary Effect of the Duval County Policy is to Advance Religion

      A governmental policy fails the second prong of the Lemon analysis if it has

the primary effect of endorsing religion. See County of Allegheny v. ACLU

Greater Pittsburgh Chapter, 492 U.S. 573, 592-94, 109 S. Ct. 3086, 3100-01


                                          81
(1989). Endorsement occurs if a reasonable observer would believe the policy

conveys a message favoring (or disfavoring) religion. See id., 492 U.S. at 597, 109

S. Ct. at 3103 (Blackmun & Stevens, JJ.); id. at 691-92, 109 S. Ct. at 3121

(O’Connor, Brennan, & Stevens, JJ., concurring); School Dist. of Grand Rapids v.

Ball, 473 U.S. 373, 390, 105 S. Ct. 3216, 3226 (1985), amended on other grounds,

Agostini v. Felton, 521 U.S. 203, 236, 117 S. Ct. 1997, 2016 (1997); Lynch, 465

U.S. at 691-92, 104 S. Ct. at 1369 (O’Connor, J., concurring). Such a conclusion

is possible either if a policy tangibly benefits a religious cause more than any other,

or if the observer would believe that a desire to promote religion led to the policy.

      The majority discounts the possibility that a facially neutral policy could

have the primary effect of advancing religion. One must look beyond the text of a

policy, however, to determine its likely effects. The analysis “requires courts to

examine the history, language, and administration of a particular statute to

determine whether it operates as an endorsement of religion.” Wallace, 472 U.S. at

74, 105 S. Ct. at 2499 (O’Connor, J., concurring in the judgment); see also

Allegheny, 492 U.S. at 629, 109 S. Ct. at 3120 (O’Connor, Brennan, & Stevens,

JJ., concurring in part and concurring in the judgment). This analysis reveals that

both the policy itself, viewed in terms of the events leading up to its creation, and

the prayers that result from it convey a message of religious endorsement.


                                          82
       Seen in context, the Duval County policy betrays a preference for religious

expression despite the seeming neutrality of its terms. It is worth repeating a few

details from the analysis of the policy’s purpose. The chronology of events leading

to the policy and the public pressure to keep prayer as part of the high school

graduation ceremonies may not be conclusive evidence, but they inform the

reasonable observer’s understanding of the policy’s purpose. The title of the

policy itself, the bulk of the memorandum announcing it, and the fact that the

policy only applies to the portion of the graduation ceremony traditionally reserved

for prayer are even more telling. Together, these details have the effect of

communicating to the reasonable observer that the Duval County authorities

favored the inclusion of prayer in future graduation ceremonies.

       The interpretation of the school principals reinforces this conclusion. The

principals were the first recipients of the Graduation Prayer memorandum, the

policy’s first “reasonable observers.” The principals were responsible for

implementing the new policy; how they did so reveals their understanding of its

meaning and purpose. In 1993 many principals allowed direct votes on whether to

have a prayer during the graduation ceremony.15 In other schools, officials directly



       15
            See R 1st Supp. Exs. (Stone Dep. at 16; Johnson Dep. at 8; Hite Dep. at 18-
19).

                                           83
asked the senior class chaplain to deliver a message during graduation.16 Since

1993 it has been common for the official graduation programs to list the student

speaker as Chaplain, and to use the religious terms “invocation” and “benediction”

instead of “opening” and “closing message.”17 These programs are printed before

the graduation ceremony without the benefit of reviewing the student’s speech.

       Beyond an observer’s conclusions about the school administration’s motives

lies the policy’s tangible result: it leads to more prayer at public events. Before the

policy took effect, the Superintendent had responded to Lee by proscribing the

traditional opening and closing graduation prayers. The new policy provided a

mechanism to reestablish prayer in those portions of the ceremony. In the policy’s

first year, ten out of seventeen schools opted for some sort of prayer, meaning that

it led to more prayer than all other forms of speech combined. And the inherent

effect of prayer is to advance the religious beliefs of the speaker.18 See Black

       16
            See R 1st Supp. Exs. (Lockett Dep. at 11; Paulk Dep. at 20).
       17
         Plaintiffs submitted copies of 45 graduation programs to the district court.
Almost all use the terms “invocation” and “benediction,” and most list the student
speaker as the class chaplain. See R2 (Memorandum of Law in Support of Plaintiffs’
Motion for Preliminary Injunction, Exs. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15,
16, 17, 18, 19, 22, 25, 26, 27, 28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 43, 44, 45).

       18
         The majority argues that the student speaker’s speech is private, and thus
cannot violate Lemon’s second prong. I believe the opening and closing messages can
be attributed to the State, but the disagreement is not dispositive here. The Fifth

                                            84
Horse Pike, 84 F.3d at 1487; Harris, 41 F.3d at 458. The fact that prayers

delivered as a result of the policy occur at a stage of the graduation ceremony

carrying the strongest imprint of the state further exacerbates this impermissible

effect.


Circuit addressed this point cogently in Santa Fe, holding that, “The mere fact that
prayers are student-led or student-initiated, or both, does not automatically ensure that
the prayers do not transgress Lemon’s second prong. . . . [W]hen the school ‘permits’
sectarian and proselytizing prayers . . . such ‘permission’ undoubtedly conveys a
message not only that the government endorses religion, but that it endorses a
particular form of religion.” 168 F.3d at 817-18. In a different context, the Seventh
Circuit has also held that private speech can violate Lemon’s primary effects prong
if private expression is associated with a government-controlled forum. See Freedom
From Religion Found. v. City of Marshfield, -- F.3d --, No. 99-1639, (7th Cir. Feb.
4, 2000) (statue of Jesus on private land deemed part of surrounding public park for
Establishment Clause purposes). The next section, focusing on the public forum
doctrine, discusses this issue more thoroughly.
       In support of its conclusion, the majority cites a number of Supreme Court cases
for the proposition that “facially neutral programs [permitting] individuals to support
religion through their own private choices” are constitutional. Those cases all involve
the extension of a public benefit to families with children in private schools-- factual
scenarios very different from Duval’s graduation policy. Moreover, the programs at
issue in those cases were constitutional because they did not influence families’ choice
to send their children to religious schools. See Agostini v. Felton, 521 U.S. 203, 230-
32, 117 S. Ct. 1997, 2014 (1997); Witters v. Washington Dep’t of Servs. for the Blind,
474 U.S. 481, 488, 106 S. Ct. 748, 752 (1986); Mueller v. Allen, 463 U.S. 388, 398-
99, 103 S. Ct. 3062, 3068-69 (1983). This was because the programs distributed their
benefits neutrally and comprehensively. A related point is that every family was able
to make its own choice about its children’s schooling under the government programs.
Both of these attributes are missing in our case. The constraints of the Duval County
policy influence the decisions about the graduation message, pushing students to opt
for prayer. Furthermore, there is only one graduation ceremony. “Each student is not
allowed to have the graduation she wants. Instead, the decision is made by a majority
of the senior class and imposed on a minority.” Harris, 41 F.3d at 456.

                                           85
C. The Public Forum Doctrine

      Without deciding whether Duval County graduation ceremonies are public

fora, the majority suggests that the public forum doctrine supports the

constitutionality of the policy at issue in this case. I reject the analogy. According

to the majority, the government does not control a private speaker’s speech in a

public forum, and private speech cannot convey a message of state endorsement.

This may be an accurate statement of the law,19 but it is of little use in this case,

because Duval County’s graduation ceremonies have none of the public forum’s

characteristics. In Lee v. Weisman, the Supreme Court noted that school

authorities maintain close control over the program and speeches at graduation



      19
         In fact, five Justices have demonstrated an openness to the possibility that
private speech in a public forum could violate the Establishment Clause. See Capitol
Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 772, 115 S. Ct. 2440, 2451
(1995) (O’Connor, Souter, & Breyer, JJ., concurring in result); id. at 807, 115 S Ct.
at 2469. (Stevens, J., dissenting); id. at 817-18, 115 S. Ct. at 2474-75 (Ginsburg, J.,
dissenting). Only a plurality of the Court, in an opinion written by Justice Scalia, took
the opposite view. See id. at 770, 115 S. Ct. at 2450. Even the Scalia plurality
acknowledged that the government could unconstitutionally manipulate an ostensibly
public forum to favor religious speech. See id. at 766, 115 S. Ct. at 2449.
       The Seventh Circuit reached this same conclusion, determining that a majority
of Justices had rejected a “per se” approach to Establishment Clause claims involving
private speech in a public forum. See Freedom From Religion Found. The Seventh
Circuit went on to hold that a city’s sale of land with a religious statue violated the
Establishment Clause even under the Scalia plurality’s approach because it in effect
granted preferential access to a public forum–the park surrounding the statue. See id.
at *8.

                                           86
ceremonies.20 505 U.S. 577, 597, 112 S. Ct. 2649, 2660 (1992). This assumption

is understandable, because graduation ceremonies have never been considered

public fora. See ACLU of N.J. v. Black Horse Pike Reg’l Bd. of Educ., 84 F.3d

1471, 1478 (3d Cir. 1996); Jones v. Clear Creek Indep. Sch. Dist., 930 F.2d 416,

418 (5th Cir. 1991), vacated on other grounds, 505 U.S. 1215, 112 S. Ct. 3020

(1992); Doe v. Madison Sch. Dist. No. 321, 147 F.3d 832, 838 (9th Cir. 1998),

vacated as moot, 177 F.3d 789 (9th Cir. 1999) (en banc).

      Public fora are places permitting broad access for the expression of diverse

views. See Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788,

802, 105 S. Ct. 3439, 3449 (1985); Perry Educ. Ass’n v. Perry Local Educators’

Ass’n, 460 U.S. 37, 45, 103 S. Ct. 948, 954-55 (1983). See, e.g., Capitol Square

Review & Advisory Bd. v. Pinette, 515 U.S. 753, 757-58, 115 S. Ct. 2440, 2444

(1995). The “marketplace of ideas” governs in public fora, which serve an

important role both in facilitating the exchange of viewpoints and in providing a

safe venue for new and marginalized ideas.




      20
          In Duval County for example, school officials often review the
valedictorian’s speech, and they plan or approve the entire graduation program. See
R 1st Supp. Exs. (Reynolds Dep. at 21; Epting Dep. at 26-27; Lockett Dep. at 11)
(review of valedictory speeches); id. (Epting Dep. at 28-29; Reynolds Dep. at 39;
Stone Dep. at 9-10). The graduation policy allows these practices to continue.

                                        87
      Duval County certainly did not create a public forum by allowing a single

student to deliver an uncensored opening or closing message. An essential

characteristic of public fora is that they permit extensive public participation, or at

least general access to the relevant class of potential speakers. See Arkansas Educ.

Television Comm’n v. Forbes, 523 U.S. 666, 118 S. Ct. 1633, 1641-43 (1998);

Cornelius, 473 U.S. at 802-04, 105 S. Ct. at 3449-50; Perry Educ. Ass’n, 460 U.S.

at 47, 103 S. Ct. at 956; Greer v. Spock, 424 U.S. 828, 838 n.10, 96 S. Ct. 1211,

1217 n.10 (1976). The majority cites a number of cases permitting religious

groups to use school facilities or funds, or public parks, but their holdings

depended on the fact that use of the fora by a “broad spectrum” of groups

eliminated any potential message of endorsement or preference for religion.21 See

Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 839-42, 115 S.

Ct. 2510, 2521-23 (1995); Capitol Square, 515 U.S. at 762-63, 115 S. Ct. at 2447;

Board of Educ. of the Westside Community Sch. v. Mergens, 496 U.S. 226, 252,




      21
         Furthermore, none involved speech at a government-sponsored and controlled
event. The possibility that someone will conclude that the state is endorsing the
content of a speech is much lower when the government allows an organization to use
a classroom after school hours than when the government organizes a presentation and
invites an audience. Certainly students could organize a private prayer meeting on
school grounds before the official graduation ceremony, but that is not the issue here.

                                          88
110 S. Ct. 2356, 2373 (1990) (O’Connor, J., plurality opinion); Widmar v.

Vincent, 454 U.S. 263, 274, 102 S. Ct. 269, 277 (1981).

      Duval County, however, has implemented no “open microphone” policy at

its graduation ceremonies. The graduation policy permits only one speaker at the

opening and closing, so there can be no diversity of views communicated in the

messages. Selecting speakers through a majority vote also runs counter to the

notion of “general access” necessary for a public forum and limits the possibility

that the resulting speech will offer a fresh perspective to the audience. When the

student speaker delivers the opening or closing message at a Duval County

graduation, she is largely preaching to the converted.22



D. Appellants’ As-Applied Claims

      During the hearing for a preliminary injunction, the district court raised the

possibility of advancing the trial on the merits pursuant to Federal Rule of Civil




      22
         It is true that in a public forum with open access and diverse expression, it
would be difficult for the government to manipulate speech and there is little danger
that an audience will believe the speech carries the government’s imprimatur. This
insight from public forum law, however, suggests a corollary that highlights the
graduation policy’s problems: at a non-public forum that is highly regulated by the
government, there is both an elevated danger of government control over speech and
a significant risk that the audience will associate the speech with the government.

                                         89
Procedure 65(a)(2).23 In an order dated the same day, the court did so,

consolidating the trial on the merits with the preliminary injunction hearing and

entering final judgment for the Duval County School Board. The majority claims

Appellants waived their as-applied claims by consenting to the consolidation. This

interpretation of Rule 65(a)(2), however, is without support in the case law or the

record from the district court.

      If a party consents to a Rule 65(a)(2) consolidation, it cannot later complain

about the consequences–the limited time to prepare and the curtailed opportunity

for discovery. See Fenstermacher v. Philadelphia Nat’l Bank, 493 F.2d 333, 337

(3d Cir. 1974). But the majority cites no case for the proposition that advancing

the trial on the merits eliminates claims that would have benefitted from thorough




      23
           Federal Rule of Civil Procedure 65(a)(2) provides:

      (2) Consolidation of Hearing With Trial on Merits. Before or after the
      commencement of the hearing of an application for a preliminary
      injunction, the court may order the trial of the action on the merits to be
      advanced and consolidated with the hearing of the application [for a
      preliminary injunction]. Even when this consolidation is not ordered,
      any evidence received upon an application for a preliminary injunction
      which would be admissible upon the trial on the merits becomes part of
      the record on the trial and need not be repeated upon the trial. This
      subdivision (a)(2) shall be so construed and applied as to save to the
      parties any right they may have to trial by jury.

                                          90
discovery. Instead, a court enters final judgment on all claims after a Rule 65(a)(2)

consolidation based on whatever limited evidence is before it at that time.

      Nothing in the district court order advancing the trial on the merits or in

transcript of the preliminary injunction hearing suggests that the judge or the

parties intended otherwise. No one disputes that in their complaint the Appellants

pleaded facts pertaining to graduation ceremonies between 1993 and 1997 and

included an as-applied claim.24 Immediately after broaching the possibility of a

Rule 65(a)(2) consolidation at the preliminary injunction hearing, the district judge




      24
         See R1, Tab 1 (Verified Complaint ¶¶ 24, 30, & at p.14) (making factual
allegations about graduation ceremonies between 1993 and 1997, raising an as-applied
Establishment Clause claim, and praying for damages on behalf of students who
graduated after 1993).

                                         91
acknowledged that Appellants had a claim for damages.25 At no time during the

hearing did the judge suggest he was dismissing the as-applied claims as waived.

      In its order advancing the trial on the merits, the district court directed the

Clerk to enter final judgment for the Defendants without distinguishing between

the facial and as-applied claims.26 The order made scant reference to the facts of

the case, and the assertion in the order that Appellants’ counsel “stipulated that the

operative facts remain[ed] unchanged”27 since 1994 is unsupported by the record.

In fact, during the preliminary injunction hearing the Appellants’ counsel made



      25
           The dialogue went as follows:

      THE COURT: All right. The next question is why shouldn’t I, under
      Rule 65(a)(2) of the Federal Rules of Civil Procedure, order that the
      consideration of this case on its merits be advanced to this stage
      procedurally and decide the case and send it on to the Court of Appeals?

      MR. SHEPPARD: I think the Court certainly has that discretion. I think
      that it may be–well, I’ve said what I said.

      THE COURT: Well, you have a damage claim. I understand that.

      MR. SHEPPARD: Yes, sir. We would want to take some discovery with
      regard to that, would be my view.

See R1, Tab 30, at 29 (Transcript of Hearing on Plaintiffs’ Motion for Preliminary
Injunction).
      26
           R1, Tab 27 at 3-4.
      27
           Id. at 2.

                                           92
substantial reference to the evidentiary exhibits already filed with the court and

expressed the need for further discovery.28 The order focused on whether the law

had changed since 1994, when the same district judge upheld the constitutionality

of the graduation policy in an earlier lawsuit, see Adler v. Duval County Sch. Bd.,

851 F. Supp. 446 (M.D. Fla. 1994), and the court concluded that it had not. Given

its interpretation of Establishment Clause and Free Speech jurisprudence, the

details of the graduation ceremonies in Duval County seemed unimportant.

      Appellants did not waive their as-applied challenge to the graduation policy;

the district court entered judgment for the Appellees on that claim. This may or

may not have been the correct disposition, because the district court did not have a

thorough record of the policy’s application.

      There is a difference between having a thin record, however, and having no

evidence at all. Appellants filed dozens of graduation programs from the years

1994-1998 and the affidavit of Karen Adler in support of their motion for a

preliminary injunction in this case,29 and the district court also took judicial notice




      28
        See R1, Tab 30, at 14-16, 29 (Transcript of Hearing on Plaintiffs’ Motion for
Preliminary Injunction).
      29
         See R2 (Memorandum of Law in Support of Plaintiffs’ Motion for
Preliminary Injunction, with 58 exhibits); R1, Tab 12 (Adler Aff.).

                                          93
of the record from the earlier case concerning the Duval County policy.30 The

record includes the transcript of sectarian prayers delivered at graduation

ceremonies as well as official programs that contained printed prayers, referred to

the “student message” as an “invocation,” and indicated that ministers have

continued to deliver prayers at some Duval County graduations long after Lee.31 In

fact, Appellants maintain that, although they would welcome the opportunity for

more discovery, the record supports a reversal in their favor on all claims.

        The procedural posture of this case is awkward at best. It is understandable

that both the district court and this court would want to focus, without

complications, on the important question of the graduation policy’s facial

constitutionality. It is not right, however, for the as-applied claim of Duval County

students to disappear without a trace.



Conclusion




       30
            R1, Tab 26 (Order on Various Motions).
       31
         See R2 (Memorandum of Law in Support of Plaintiffs’ Motion for
Preliminary Injunction, Exs. 4, 5, & 13 (religious expression printed in official
program); 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 22, 25, 26, 27,
28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 43, 44, 45 (reference to “invocation,”
“benediction,” or “chaplain” in the program); 30 (minister delivered prayer).

                                            94
       Duval County has not adopted a blanket approach of neutrality toward

religion or eliminated school sponsorship and control over graduation ceremonies.

Rather, the policy at issue in this case evinces a desire to maintain the graduation

ceremony’s traditional invocation and benediction in the wake of Lee. The policy

does not explicitly mention religion and does not require any speech at all, but its

terms nonetheless promote religious expression. To be more specific, the policy

encourages the delivery of a prayer during a stage of the graduation ceremony

when the content seems most “official” and when officials’ control over audience

participation is at its highest.

       This violates the Constitution. The Establishment Clause bars the

government from encouraging religious expression, either overtly or subtly, and

from conveying a message, intentional or not, of endorsement for religious

speech.32 Moreover, the policy utilizes the vote to further its purpose, and in so


       32
        Nothing in this dissent suggests that all religious expression at a public high
school graduation would run afoul of the Establishment Clause. Graduation
ceremonies are state-sponsored events controlled by school officials, however, and to
disconnect (rather than just distance) themselves from any religious views expressed
by speakers, school officials must be able to articulate a neutral criterion for selecting
speakers unrelated to the potentially religious content of their speech. This would
ensure both that school officials do not use their influence over the graduation
program to promote religious beliefs and that the audience does not view religious
views expressed by speakers as state sanctioned. Thus, the valedictorian could thank
God or share the role faith played in her life. Furthermore, religious expression that
is not part of the graduation program raises no Establishment Clause concerns.

                                           95
doing corrupts the most cherished of democracy’s tools. For the government

cannot delegate the authority to do what it could not do itself, and constitutional

rights are not subject to the whims of an electoral majority. For the foregoing

reasons, I dissent from the majority’s opinion.




Audience members could pray quietly in their seats, and students could organize a
prayer service immediately before or after the graduation ceremony.

                                          96
