                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-24-1996

ACLU NJ v. Black Horse Pike Regional Bd. of
Education
Precedential or Non-Precedential:

Docket 94-5233




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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT



                              No. 94-5233


        THE AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY,
            ON BEHALF OF ITS MEMBERS; AND EDWARD ROSS

                                  v.

          BLACK HORSE PIKE REGIONAL BOARD OF EDUCATION;
         HIGHLAND REGIONAL HIGH SCHOOL; FRANK PALATUCCI,
       PRINCIPAL IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES

                                               Appellants



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



                    Argued:    January 23, 1995

     Before:   MANSMANN, HUTCHINSON and McKEE, Circuit Judges.



               Reargued In Banc:    October 25, 1995

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

                        (Filed May 24, 1996)


JAMES KATZ, ESQUIRE (ARGUED)
Tomar, Simonoff, Adourian & O'Brien
41 South Haddon Avenue
Haddonfield, NJ 08033
          Counsel for Appellees

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


McKEE, Circuit Judge.
     We are asked to decide whether a policy adopted by the Black
Horse Pike Regional Board of Education that allows a vote of the
senior class to determine if prayer will be included in high
school graduation ceremonies is constitutional. For the reasons
that follow we hold that this policy is inconsistent with the
First Amendment of the United States Constitution. Accordingly,
we will affirm, but modify, the permanent injunction issued by
the district court.

                      I. FACTUAL BACKGROUND
     The Black Horse Pike Regional Board of Education (the
"School Board" or "Board") has had a longstanding tradition of
including a nonsectarian invocation and benediction in high
school graduation ceremonies. These prayers have historically
been delivered by local clergy on a rotating basis in an attempt
to afford different denominations the opportunity to be
represented.
     In May of 1993, the School Board decided to reconsider this
policy because of the Supreme Court's decision in Lee v. Weisman,
505 U.S. 577 (1992), wherein the Court invalidated a public
school's practice of including prayer in graduation ceremonies.
As part of the Board's reexamination, the Superintendent of
Schools tendered a policy entitled "Religion at Graduation
Exercises" IKFD ("Version A") for the Board's consideration.
Version A prohibited all prayer at graduation ceremonies. The
Board rejected that policy and directed the school administration
to prepare a second version that would parallel the holding of
Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963, 972 (5th
Cir. 1992). The court in Jones had upheld a public school policy
that allowed students to determine for themselves whether or not
a prayer would be delivered at their graduation.
     Two policies were presented to the Board at its May 23, 1993
meeting. One version allowed graduating students to decide
whether prayer would be included in the graduation ceremony as
well as the nature of any such prayer ("Version D"). The other
proposal would not have allowed "prayer" but would have allowed a
"moment of reflection, during which pupils and parents [could] be
asked to think silently about what has been and what is to come
for each graduate." App. at 144. A group of students who had
previously asked to address the Board on this issue attended the
meeting and spoke in favor of Version D. At the conclusion of
the meeting, the Board unanimously adopted Version D. That
policy, as finally adopted, allowed the senior class officers to
conduct a poll of the graduating class to determine whether
seniors wanted "prayer, a moment of reflection, or nothing at
all" to be included in their graduation ceremony. App. at 180.
The policy was entitled, "Religion at Graduation Exercises," and
the text began as follows:
                    After reading recent decisions of the United
                    States Supreme Court and interpretations of
                    those decisions, the Board of Education
                    concludes the long standing practice of
                    conducting invocation and benediction prayer
                    at graduation ceremonies and at other school
                    functions is proper and legal under the
                    following conditions:

                    1.   The Board of Education, administration
                    and staff of the schools shall not endorse,
                    organize or in any way promote prayer at
                    school functions.

                    2.   In the spirit of protected speech, the
                    pupils in attendance must choose to have
                    prayer conducted. Such prayer must be
                    performed by a student volunteer and may not
                    be conducted by a member of the clergy or
                    staff.

          Policy IKFD, Version D, App. at 180.
     The policy also allowed the students to decide how they
would determine what form of prayer, if any, would be given at
graduation, "so long as the process [was] conducted by duly
elected class officers and the survey . . . provides pupils with
an opportunity to choose prayer, a moment of reflection, or
nothing at all." Version D of Policy IKFD further required that
printed programs for the graduation include a disclaimer
explaining that any presentation that may be given at
commencement did not reflect the views of the School Board, the
School District, administrators, staff, or other students.
     On June 3, 1993, Principal Frank Palatucci of the Highland
Regional High School explained the Board's decision to the
students during the morning announcements over the school public
address system. After he explained the policy, he introduced the
senior class president who explained that a poll would be taken
of the senior class, and how the balloting would be conducted.
The vote was taken the next day and produced the following
results: 128 students voted for prayer, 120 for reflection/moment
of silence, and 20 voted to have neither. Students then
volunteered to deliver the graduation prayer, and the senior
class officers selected the senior class recording secretary from
among those volunteers.
     On June 9, Edward Ross, a member of the senior class,
approached Principal Palatucci and requested that a
representative from the ACLU also be permitted to speak at the
graduation to discuss safe sex and condom distribution.
Principal Palatucci denied Ross' request explaining that the time
constraints of the ceremony would not permit a keynote speaker,
and that the topic requested was not generally one discussed at
graduation ceremonies.

                      II. PROCEDURAL HISTORY
     On June 18, 1993, the ACLU and Edward Ross filed a Complaint
in the District Court for the District of New Jersey, in which
they asked the court to enjoin any student-led prayer at
graduation. The Complaint alleged that the proposed prayer
violated the First Amendment of the United States Constitution
and Article I, Paragraph 4 of the New Jersey Constitution.
     By Order entered June 24, 1993, the district court denied
plaintiffs' request for a preliminary injunction. The court
concluded that the proposed prayer was appropriate because it was
given under circumstances that distinguished it from the
prohibited prayer in Lee v. Weisman. The following day the
plaintiffs filed an emergency appeal to this court where a two-
judge panel reversed the district court and entered an order that
stated in part:
               [T]he graduation ceremony is a school
          sponsored event; the fact that the school
          board has chosen to delegate the decision
          regarding one segment of the ceremony to the
          members of the graduating class does not
          alter that sponsorship, does not diminish the
          effect of a prayer on students who do not
          share the same or any religious perspective,
          and does not serve to distinguish, in any
          material way, the facts of this case from the
          facts of Lee v. Weisman,     U.S.   , 112 S.
          Ct. 2649 (1992);

              . . .

               Now, therefore, . . . appellees, their
          agents and employees, and all those acting in
          concert with them are hereby enjoined from
          conducting a school sponsored graduation
          ceremony that includes a prayer whether it be
          an invocation, a benediction or a prayer in
          any other form.
App. at 199-200.
     Thereafter, the School Board filed a motion in this court to
vacate the preliminary injunction. That motion was denied.
Additional motions were subsequently filed both in this court and
in the United States Supreme Court. Finally, on March 29, 1994,
the district court entered a final order, consistent with the
aforementioned order of this court, reversing the court's
previous denial of the preliminary injunction. The district
court permanently enjoined the School Board from "conducting a
school-sponsored graduation ceremony that include[d] prayer,
whether it be an invocation, a benediction or a prayer in any
other form." App. at 210. On April 28, 1994, the School Board
filed this appeal. The matter is now before this court in banc.

                     III. OUR SCOPE OF REVIEW     We review a district
court's decision to grant or deny a
permanent injunction under an abuse of discretion standard.
International Union, UAW v. Mack Trucks, Inc., 820 F.2d 91, 94
(3d Cir. 1987). "An abuse of discretion exists where the
district court's decision rests upon a clearly erroneous finding
of fact, an errant conclusion of law, or an improper application
of law to fact." Id. at 95.
     In this case, the district court did not render a decision
on the merits as to whether plaintiffs were entitled to a
permanent injunction. Instead, the district court granted a
permanent injunction solely because it believed it was bound to
do so by the law of the case in light of the emergency ruling of
a two-judge panel of this court granting plaintiffs' motion for a
preliminary injunction. As the district court expressly stated
in its order:
          Additional hearings or new evidence might
          have put a different cast on the issues, but
          as the record has not been augmented since
          the motion for a preliminary injunction, we
          feel constrained to enter a final judgment in
          accordance with the Third Circuit's order of
          June 25, 1993. We make it clear that the
          opinion of the Court remains that expressed
          in the oral opinion of June 24, 1993.
          However, due regard for our "hierarchical
          federal judicial system," particularly where
          the reviewing panel has had the same record
          as the Court, requires us to respect the
          findings of the Third Circuit.
Order of March 29, 1994, at 3 (citations omitted).
     The district court erred in concluding that it was so bound.
The two-judge panel assessed the merits on an emergency basis
under the standard for the granting of a preliminary injunction
-- a standard which differs from the standard for granting a
permanent injunction. Its decision to grant a preliminary
injunction was based on an assessment of the likelihood that
plaintiffs would succeed on the merits, and neither constitutes
nor substitutes for an actual finding that plaintiffs havesucceeded on the
merits and are entitled to permanent relief.
Indeed, there is no evidence in the record that the district
court ever applied the legal standard for granting a permanentinjunction
or otherwise based its decision upon an assessment of
the merits of the case.
     It is well-established, however, that "if the decision below
is correct, it must be affirmed, although the lower court relied
upon a wrong ground or gave a wrong reason." Helvering v.
Gowran, 302 U.S. 238, 245 (1937); see also Erie
Telecommunications, Inc. v. City of Erie, 853 F.2d 1084, 1089
n.10 (3d Cir. 1988). We will therefore proceed to address the
merits of this matter to determine whether, despite the district
court's error, the permanent injunction was properly issued on
some other ground.

                        IV. DISCUSSION
             A. The Free Speech Rights of Students
     The Board relies upon the student referendum in an attempt
to define the instant controversy as one impacting upon the
students' right of free speech as opposed to a dispute over the
constitutionality of prayer at a public high school graduation.
Version D of Policy IKFD does state: "[i]n the spirit of
protected free speech, the pupils in attendance must choose to
have prayer conducted," App. at 180. However, Version D allowed
the 128 seniors who wanted verbal prayer at their graduation to
impose their will upon 140 of their fellow classmates who did
not. The Board's position would have us recognize a right in
that plurality to do so, and ignore the right of others to
worship in a different manner, or in no manner at all. This we
can not do because "the individual freedom of conscience
protected by the First Amendment embraces the right to select any
religious faith or none at all." Wallace v. Jaffree, 472 U.S.
38, 52 (1985). Therefore, the Board's emphasis on voting
majorities is misplaced. "While in some societies the wishes of
the majority might prevail, the Establishment Clause of the First
Amendment is addressed to this contingency and rejects the
balance urged upon us." Lee, 505 U.S. at 596.
                    Just as the right to speak and the right to
                    refrain from speaking are complementary
                    components of a broader concept of individual
                    freedom of mind, so also the individual's
                    freedom to choose his own creed is the
                    counterpart of his right to refrain from
                    accepting the creed established by the
                    majority.

Wallace, 472 U.S. at 52.
     An impermissible practice can not be transformed into a
constitutionally acceptable one by putting a democratic process
to an improper use. There should be no question "that the
electorate as a whole, whether by referendum or otherwise, could
not order [governmental] action violative of the [Constitution],
and the [government] may not avoid the strictures of [the
Constitution] by deferring to the wishes or objections of some
fraction of the body politic." City of Cleburne v. Cleburne
Living Center, 473 U.S. 432, 448 (1985) (citation omitted). A
policy that does this can not be legitimized by arguing that it
promotes the free speech of the majority.
                         The First Amendment protects speech and
                    religion by quite different mechanisms.
                    Speech is protected by insuring its full
                    expression . . . . The method for protecting
                    freedom of worship and freedom of conscience
                    in religious matters is quite the reverse. .
                    . . The Free Exercise Clause embraces a
                    freedom of conscience and worship that has
                    close parallels in the speech provisions of
                    the First Amendment, but the Establishment
                    Clause is a specific prohibition on forms of
                    state intervention in religious affairs with
                    no precise counterpart in the speech
                    provisions.
Lee, 505 U.S. at 591.
     Although it is necessary to reconcile one's own preferences
to the results of a referendum when choosing one's
representatives or voting upon legislative matters, the First
Amendment does not allow one's religious preferences to be
compromised in this manner.
                    The very purpose of a Bill of Rights was to
                    withdraw certain subjects from the
                    vicissitudes of political controversy, to
                    place them beyond the reach of majorities and
                    officials and to establish them as legal
                    principles to be applied by the courts. One's
                    . . . fundamental rights may not be submitted
                    to vote; they depend on the outcome of no
                    elections.

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

                        B. Lee v. Weisman
     The degree of control that school officials retained over
the speech that would be permitted at graduation is also relevant
under Lee v. Weisman, 505 U.S. 577 (1992). There, the principal
of a public middle school invited a rabbi to deliver the
invocation and benediction at the school's graduation, in
accordance with school district practice. The principal gave the
rabbi a pamphlet containing guidelines to be followed in giving
public prayers at civic occasions and told the rabbi that the
prayers should be non-sectarian. Id. at 581. The graduation
ceremony at which the prayers were given was held on school
property, and the parties stipulated that attendance at the
ceremony was voluntary. After the processional, the students
remained standing for the Pledge of Allegiance, and for the
rabbi's very brief invocation.
     In ruling the prayer unconstitutional, the Supreme Court
emphasized:
               These dominant facts mark and control
          the confines of our decision: [1] State
          officials direct the performance of a formal
          religious exercise at promotional and
          graduation ceremonies for secondary schools.
          [2] Even for those students who object to the
          religious exercise, their attendance and
          participation in the state sponsored
          religious activity are in a fair and real
          sense obligatory, though the school district
          does not require attendance as a condition
          for receipt of the diploma.
Id. at 586. Accordingly, we must examine (1) the state's control
of the graduation ceremony, and (2) the students' coerced
participation in the ceremony here.
                               (1)
     The School Board argues that the student referendum here
significantly distinguishes this case from Lee. We disagree. It
is, of course, true that the state's entanglement with the
graduation prayer in Lee was more obvious, pronounced, and
intrusive than the School District's involvement here. In Lee,
the principal decided prayer would be included in the ceremony,
chose the clergy person who would give the prayer, and even
determined part of the content of the prayer by giving the
invited clergy guidelines for the substance of the prayer. Id.at 587.   It
is no wonder then, that the resulting prayer "bore
the imprint of the State." Id. at 590.
     Although the state's involvement here is certainly less
evident, the student referendum does not erase the state's
imprint from this graduation prayer. Graduation at Highland
Regional High School, like graduation at nearly any other school,
is a school sponsored event. School officials decide the
sequence of events and the order of speakers on the program, and
ceremonies are typically held on school property at no cost to
the students. App. at 118-26. The atmosphere at Highland's
graduations is characterized by order and uniformity. School
officials necessarily "retain a high degree of control over the
precise contents of the program, the speeches, the timing, the
movements, the dress, and the decorum of the students." Lee, 505
U.S. at 597. Principal Palatucci testified before the district
court that any student who attempted to give an unscheduled
address at graduation in contravention of administrative
direction would be arrested if police were available, even if a
majority of the graduating students had previously approved. The
district court carefully questioned the principal about what he
would do if a majority of the student body, without
administrative approval, voted to have a speaker who would not be
included in the program but would be introduced by the
valedictorian and allowed to give a one minute speech. The
principal responded: "I couldn't allow that to happen. . . . If I
have a police officer, I have her arrested." App. at 125. Thus,
the school officials' involvement and control is not as limited,
unintrusive, or neutral as the School Board suggests.
     Delegation of one aspect of the ceremony to a plurality of
students does not constitute the absence of school officials'
control over the graduation. Students decided the question of
prayer at graduation only because school officials agreed to let
them decide that one question. Although the delegation here may
appear to many to be no more than a neutral means of deciding
whether prayer should be included in the graduation, it does not
insulate the School Board from the reach of the First Amendment.
"[C]ourts must keep in mind both the fundamental place held by
the Establishment Clause in our constitutional scheme and the
myriad, subtle ways in which the Establishment Clause values can
be eroded." Lynch v. Donnelly, 465 U.S. 668, 694 (1984)
(O'Connor, J., concurring).
     Furthermore, the text of Version D affirms that it was
adopted in response to Lee. The Board's avowed purpose in
reexamining its policy was to provide an option that might allow
the "longstanding tradition" of graduation prayer to survive the
prohibitions of that Supreme Court decision. We believe that the
control exercised by state officials here, though different in
degree than was present in Lee, is not sufficiently distinct to
require a different result under the "first dominant fact" of
Lee.
                               (2)
     "[T]here are heightened concerns with protecting freedom of
conscience from subtle coercive pressure in the elementary and
secondary public schools." Lee. 505 U.S. at 592. We find no
difference whatsoever between the coercion in Lee and the
coercion here. A high school graduation is distinguishable from
forums such as a legislative session where prayer has been
upheld. See Marsh v. Chambers, 463 U.S. 783, 795 (1983).
Legislators "may presumably absent themselves from such public
and ceremonial exercises without incurring any penalty, direct or
indirect." School Dist. of Abington Twnshp v. Schempp, 374 U.S.
203, 299-300 (1963) (Brennan, J., concurring). The same cannot
be said of students at their high school graduation.
     "The fact that attendance at the graduation ceremonies is
voluntary in a legal sense does not save the religious exercise."
Lee, 505 U.S. at 596. The objector's presence at his or her
graduation compels participation in the religious observance
decreed by the results of the poll that is sanctioned under
Version D. This, the Constitution does not allow.
                    What to most believers may seem nothing more
                    than a reasonable request that the
                    nonbeliever respect their religious
                    practices, in a school context may appear to
                    the nonbeliever or dissenter to be an attempt
                    to employ the machinery of the State to
                    enforce a religious orthodoxy.

                         . . . The undeniable fact is that the
                    school district's supervision and control of
                    a high school graduation ceremony places
                    public pressure, as well as peer pressure, on
                    attending students to stand as a group or, at
                    least, maintain respectful silence during the
                    Invocation and Benediction. This pressure,
                    though subtle and indirect, can be as real as
                    any overt compulsion. . . . [F]or the
                    dissenter of high school age, who has a
                    reasonable perception that she is being
                    forced by the State to pray in a manner her
                    conscience will not allow, the injury is . .
                    . real.

          Id. at 592-93. Even the appearance of participation should be
avoided in this setting. Id. at 588 (students "had no real
alternative which would have allowed [them] to avoid the fact or
appearance of participation").
     Here, the hypothetical dissenter in Lee is replaced by 140
students who voted not to have a formal prayer at their public
high school graduation. The Board's policy would have required
each of those 140 students to participate (or at the very least
maintain respectful silence) as others engaged in student-led
worship. "It is beyond dispute that, at a minimum, the
Constitution guarantees that government may not coerce anyone to
support or participate in religion or its exercise." Id. at 587.
Here, as in Lee, "[t]he prayer exercises . . . are especially
improper because the State has in every practical sense compelled
attendance and participation in an explicit religious exercise at
an event of singular importance to every student, one the
objecting student had no real alternative to avoid." Id. at 598.
Students at Highland had to either conform to the model of
worship commanded by the plurality or absent themselves from
graduation and thereby forego one of the most important events in
their lives. That is an improper choice to force upon dissenting
students.
          [T]o say a teenage student has a real choice
          not to attend her high school graduation is
          formalistic in the extreme. . . . Everyone
          knows that in our society and in our culture
          high school graduation is one of life's most
          significant occasions. A school rule which
          excuses attendance is beside the point.

Id. at 595. "The Constitution forbids the State to exact
religious conformity from a student as the price of attending his
own high school graduation." Id. at 596.
     The First Amendment is a shield that prohibits the state
from interfering with a person's right to worship as he or she
pleases. It is not a sword that can be used to compel others to
join in a religious observance at a state sponsored event. "The
First Amendment has lost much if the religious follower and the
atheist are no longer to be judicially regarded as entitled to
equal justice under law." Zorach v. Clauson, 343 U.S. 306, 320
(1952) (Black, J., dissenting).
                    The sole question presented is whether a
                    religious exercise may be conducted at a
                    graduation ceremony in circumstances where .
                    . . young graduates who object are induced to
                    conform. No holding by th[e Supreme Court]
                    suggests a school can persuade or compel a
                    student to participate in a religious
                    exercise. That is being done here, and it is
                    forbidden by the Establishment Clause of the
                    First Amendment.

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

     The disclaimer required under Version D does help to
recapture some of the separation between church and state that
has been obscured by the state's control over the graduation.
However, the Board cannot sanction coerced participation in a
religious observance merely by disclaiming responsibility for the
content of the ceremony. Given the protections inherent in the
First Amendment, it is quite possible that parents of some
graduating seniors chose public education precisely so that their
children would not be compelled to follow the religious beliefs
of others. Yet, that is exactly what Version D allows.
       We recognize that the Court of Appeals for the Fifth
Circuit has reached a result contrary to the one we reach today.
See Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963 (5th
Cir. 1992), cert. denied, 113 S. Ct. 2950 (1993).   Indeed, as
stated earlier, the administration at Highland promulgated
Version D pursuant to the Board's instruction to develop a policy
that would parallel the holding of Jones. We are not, however,
persuaded by that court's analysis. Jones also involved a
challenge to a policy that allowed students to decide if they
wanted prayer at a public school's graduation ceremony. The
Jones court upheld the policy while acknowledging that "the
practical result of [its] decision, viewed in light of Lee, is
that a majority of students can do what the State acting on its
own cannot do to incorporate prayer in public high school
graduation ceremonies." Id. at 972.
     That court recently reaffirmed that ruling in Ingebretsen v.
Jackson Public Sch. Dist., No. 94-60631, 1996 WL 205, *6 (5th
Cir. Jan. 10, 1996) (affirming an order that enjoined enforcement
of a Mississippi statute allowing prayer at compulsory and
noncompulsory school events, "except as to nonsectarian,
nonproselytizing student initiated voluntary prayer at high
school commencement as condoned by Jones . . . .").   In Doe v.
Duncanville Indep. Sch. Dist., 70 F.3d 402 (5th Cir. 1995), the
court again addressed the limits of school prayer in public
schools, but in the context of extra-curricular activities for
which students received academic credit. The court held that the
school district's practice of allowing its employees to initiate
or merely participate in prayers at basketball games and
basketball practices was unconstitutional. The court
distinguished Jones by noting that graduation prayer occurred at
a "once-in-a-lifetime event that could be appropriately marked
with a prayer," that the students in Jones were mature seniors,
and "that the challenged prayer was to be non-sectarian and non-
proselytizing." Id. at 406-07.
     We are not persuaded by these distinctions. Lee clearly
established that the "once-in-a-lifetime event" does not justify
allowing a public school to authorize collective prayer under the
circumstances of that case. To the contrary, the significance of
that "once-in-a-lifetime" event weighed heavily in favor of
invalidating the prayer. It was precisely because graduation was
a "once-in-a-lifetime" event that students were denied the option
of foregoing the ceremony to avoid compromising their religious
scruples. See Lee, 505 U.S. at 595-96. Similarly, the Court in
Lee was not convinced that the maturity level of high school
students immunized them from the coercion endemic in coerced
participation. Id. at 593 ("[F]or the dissenter of high school
age, who has a reasonable perception that she is being forced by
the State to pray in a manner her conscience will not allow, the
injury is no less real."). Indeed, few would doubt the influence
of peer pressure upon children in high school. Furthermore, we
are not inclined to alter our analysis merely because Version D
does not expressly allow proselytization. See County of
Allegheny v. ACLU, Greater Pittsburgh Chp., 492 U.S. 573, 606-09.
     Instead, we find the reasoning of the Court of Appeals for
the Ninth Circuit in Harris v. Joint Sch. Dist. No. 241, 41 F.3d
447 (9th Cir. 1994) to be more persuasive. There, plaintiffs
challenged a school district's policy of allowing graduating
seniors to vote on whether prayer should be included in their
graduation ceremony. The court concluded that the challenged
practice violated the Establishment Clause even though any
graduation prayer would have to be initiated, selected, and
delivered by students.
                    We cannot allow the school district's
                    delegate to make decisions that the school
                    district cannot make. When the senior class
                    is given plenary power over a state-
                    sponsored, state-controlled event such as
                    high school graduation, it is just as
                    constrained by the Constitution as the state
                    would be.
          Id. at 455.
     The court noted that faculty members and administrators
still supervised and controlled the graduation ceremony, and the
school district assumed the cost of the event. Thus, the state's
involvement offended the Establishment Clause. Id. at 454-55.
"[T]hat school officials cannot divest themselves of
constitutional responsibility by allowing the students to make
crucial decisions should not be surprising. . . . Elected
officials cannot avoid constitutional mandates by putting them to
a majority vote." Id. at 455. Indeed, if the vitality of our
fundamental liberties turned upon their ability to inspire the
support of a majority, the longevity of our "inalienable rights"
would be controlled by the ebb and flow of political and social
passion.
                       C. Lemon v. Kurtzman
     In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Supreme Court
announced a three part test to determine if a government practice
offends the Establishment Clause. Under Lemon, a government
practice regarding religion will not offend the Establishment
Clause if: (1) it has a secular purpose; (2) its principal or
primary effect neither advances nor inhibits religion; and (3) it
does not create an excessive entanglement of the government with
religion. Id. at 612-13. "The" Lemon test has been referred to
as one test, although the case itself suggests that it is a
compilation of several approaches that have been used in
conducting an inquiry under the Establishment Clause. Justice
O'Connor has observed that "setting forth a unitary test for a
broad set of cases may sometimes do more harm than good. . . .
Lemon has, with some justification, been criticized on this
score." Board of Educ. of Kiryas Joel Village Sch. Dist. v.
Grumet, 114 S. Ct. 2481, 2499 (1994) (O'Connor, J., concurring);
id. at 2500 (O'Connor, J., concurring) ("[I]t seems to me that
the case law will better be able to evolve . . . if it is freed
from the Lemon test's rigid influence."). Nevertheless, the
framework of Lemon remains. Wallace, 472 U.S. at 63 (Powell, J.,
concurring) ("Lemon v. Kurtzman identifies standards that have
proved useful in analyzing case after case both in our decisions
and in those of other courts. It is the only coherent test a
majority of the Court has ever adopted.") (citation omitted); seealso
Committee for Public Educ. and Religious Liberty v. Nyquist,
413 U.S. 756, 772 (1973) (applying the "now well-defined three-
part test" of Lemon) and Kiryas Joel, 114 S. Ct. at 2495
(Blackmun, J., concurring) ("I remain convinced of the general
validity of the basic principles stated in Lemon, which have
guided this Court's Establishment Clause decisions in over 30
cases.").
     The Lemon test has been the subject of critical debate in
recent years, and its continuing vitality has been called into
question by members of the Supreme Court and by its noticeable
absence from the analysis in some of the Court's recent decisions
(including Lee). Nevertheless, Lemon remains the law of the
land, and we are obligated to consider it until instructed
otherwise by a majority of the Supreme Court. See Thurston Motor
Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 535 (1983)
("only [the Supreme] Court may overrule one of its precedents"
and until such occurs, precedent "is still good law").
                      (1) A Secular Purpose
     The Board argues that Version D has the secular purpose of
recognizing the students' rights to free speech and their desire
to solemnize the occasion. As we noted earlier, the Board's
proclamation of the purpose of promoting free speech must be
viewed in context with the policy's emphasis on providing an
option that would allow prayer to be delivered at graduation
after Lee.
     "Law reaches past formalism." Lee, 505 U.S. at 595. We
have already explained why the Board's assertion of the secular
purpose of free speech does not control. See supra part IV.A.
"`Graduation ceremonies have never served as forums for public
debate or discussions, or as a forum through which to allow
varying groups to voice their views.'" Brody v. Spang, 957 F.2d
1108, 1118 (3d Cir. 1992) (citation omitted). Version D is no
different in this respect. Principal Palatucci's testimony as to
his readiness to arrest any student who might attempt to speak at
graduation without prior approval of the administration (even if
the graduates have approved) demonstrates the degree to which
Version D is intended to further the secular purpose of free
speech.
     Prayer is, of course, religious speech, see Engel v. Vitale,
370 U.S. 421, 424-25 (1962). However, the constitutional
guarantee of free speech does not secularize Version D's attempt
to preserve "the long standing practice of conducting invocation
and benediction prayer at graduation ceremonies." The
Superintendent of Schools testified that when students were
previously allowed to speak at graduation, their speeches had to
be reviewed and approved by a faculty adviser or other school
official; students were not allowed to speak on whatever topic
they chose and the content of student speeches -- even when
authorized -- was monitored. App. at 132-33. Yet, Version D
prohibits school officials from reviewing the content of any
student-led prayer that may be given. This "hands-off" approach
only applies to religious speech, and is in stark contrast to the
possibility of arrest that confronts a student who gives a
secular presentation without prior authorization. The dualism
is, however, consistent with the Board's desire to avoid one of
the obstacles that invalidated the prayer in Lee (the
administration's control over the content of the prayer).
     In addition, Version D permits a student to give a
sectarian, proselytizing address. If a student were to decide to
give such an address after a student referendum "authorized"
verbal prayer, the administration could not halt it without
violating its own policy. If this were to occur, a proselytizing
prayer (perhaps even degrading other religions) would be
delivered in a forum controlled by the School Board. "A system
which secures the right to proselytize religious . . . causes
must also guarantee the concomitant right to decline to foster
such concepts." Wallace, 472 U.S. at 51. Version D fails to
achieve this balance.
     The Board also argues that the inclusion of prayer
solemnizes the graduation, but we are unable to understand why
graduation would be any less solemn if students were not
permitted to vote for prayer, a moment of silence or no
observance at graduation. Surely students who graduate in a year
where students may chose to have no prayer at all would think
their graduation to be a solemn event, and it is doubtful that
the Board would disagree with that assessment. The Supreme Court
has approved religious invocations to solemnize the opening of
legislative sessions, see Marsh, 463 U.S. at 795 (1983) (a
context easily distinguishable from a public high school
graduation as noted supra). The Court has also upheld religious
references such as the "governmental declaration of Thanksgiving
as a public holiday; printing `In God We Trust' on coins; and
opening court sessions with `God save the United States and this
honorable court.'" Lynch, 465 U.S. at 693 (O'Connor, J.,
concurring). However, we do not think the policy before us can
be saved merely by the Board proclaiming that the policy serves a
solemnizing purpose. See Stone v. Graham, 449 U.S. 39, 41 (1980)
(posting the Ten Commandments on the walls of public school
classrooms violated the purpose prong of Lemon despite the
state's avowed secular purposes of teaching the values conveyed
by the Ten Commandments and demonstrating their connection to the
legal system); see also Schempp, 374 U.S. at 223-24.
     Furthermore, assuming arguendo that Version D serves the
secular purpose of solemnizing one's graduation, we believe it
does so in a constitutionally impermissible manner. Students who
are devoutly religious may feel that prayer is not something that
should be put to a vote. Such students may even have a religious
objection to such a vote and may, therefore, refuse to vote out
of religious conviction. Version D puts such students on the
horns of an impossible dilemma by forcing them to chose between
doing violence to their own religious beliefs and voting, or
abstaining and thereby risking that their forbearance may provide
the margin of victory for those with a different religious
preference. Regardless of how the referendum comes out, this
state policy has forced such a student into an impossible, and
impermissible, choice. Accord Engel, 370 U.S. at 431-32 ("The
Establishment Clause thus stands as an expression of principle on
the part of the Founders of our Constitution that religion is too
personal, too sacred, too holy, to permit its `unhallowed
perversion' by [the State]."). Still other students may face a
similar predicament because they are atheists and refuse to vote
out of conscience -- as is their right. Such a Hobson's choice
"sends a message to nonadherents that they are outsiders, not
full members of the political community . . . ." Lynch, 465 U.S.
at 688 (O'Connor, J., concurring). The Constitution forbids that
message, just as it forbids the procedure authorized by this
policy.
                (2) The Endorsement of Religion
     Under the second prong of Lemon, a government practice can
neither advance, nor inhibit religion. This means that a
challenged practice must "not have the effect of communicating a
message of government endorsement or disapproval of religion."
Lemon, 403 U.S. at 692. This endorsement test has at times been
characterized as part and parcel of the Lemon test, and at
other times as separate and apart from it. Whether "the
endorsement test" is part of the inquiry under Lemon or a
separate inquiry apart from it, the import of the test is the
same. We must determine whether, under the totality of the
circumstances, the challenged practice conveys a message favoring
or disfavoring religion. "The question under endorsement
analysis, in short, is whether a reasonable observer would view
such longstanding practices as a disapproval of his or her
particular religious choices . . . ." Allegheny, 492 U.S. at 631
(O'Connor, J., concurring). Thus, the viewpoint of the
reasonable observer (adherent or nonadherent) helps us to
determine if the "principal or primary effect [is] one that
neither advances nor inhibits religion." Lemon, 404 U.S. at 612;
see also School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 390
(1985). In any such inquiry, "the `history and ubiquity' of a
practice is relevant because it provides part of the context in
which a reasonable observer evaluates whether a challenged
governmental practice conveys a message of endorsement of
religion." Id. at 630.
     The importance of the context of a challenged practice is
illustrated by comparing the holding of the Court in Lynch with
the holding in Allegheny. In Lynch, the Court held that a city
did not offend the Establishment Clause by including a creche
depicting the Nativity scene, along with other figures and
decorations traditionally associated with Christmas, in its
Christmas display in a private park in the downtown shopping
district. 465 U.S. at 687. In addition to figures associated
with the Nativity scene, the creche contained "a Santa Claus
house, reindeer . . ., candy-striped poles, a Christmas tree,"
and numerous other figures including a clown, elephant and teddy
bear. Id. at 671. Notwithstanding the religious significance of
the creche, the Court reasoned that "[w]hen viewed in the proper
context of the Christmas Holiday season, it is apparent that . .
. the inclusion of the creche is [not] a purposeful or
surreptitious effort to express some kind of subtle governmental
advocacy of a particular religious message." Id. at 680. The
Court felt that the creche "depict[ed] the historical origins of
this traditional event long recognized as a National Holiday."
Id.
     In Allegheny, the Court again addressed the
constitutionality of a creche displayed as part of a city's
holiday celebration. There, unlike in Lynch, the creche was
located on the Grand Staircase of the county courthouse. 492
U.S. at 578. The display was also surrounded by a fence and
poinsettia floral frame and included small evergreen trees, but
unlike the display in Lynch, did not include figures of Santa
Claus, reindeer, or other decorations traditionally associated
with the secular aspects of Christmas. Id. at 580-81. The Court
noted that the location of the creche on the Grand Staircase of
the Allegheny County Courthouse -- "the `main' and `most
beautiful part' of the building that is the seat of county
government," id. at 599 -- would make it almost impossible for
any reasonable viewer to "think that it occupie[d] this location
without the support and approval of the government." Id. at 599-
600. Accordingly, the Court ruled that the display was an
impermissible endorsement of religion under Lemon.
                    Lynch teaches that government may celebrate
                    Christmas in some manner and form, but not in
                    a way that endorses Christian doctrine.
                    Here, Allegheny County has transgressed this
                    line. It has chosen to celebrate Christmas
                    in a way that has the effect of endorsing a
                    patently Christian message: Glory to God for
                    the birth of Jesus Christ. Under Lynch, and
                    the rest of our cases, nothing more is
                    required to demonstrate a violation of the
                    Establishment Clause.
          Id. at 601-02.
     However, the Court upheld the city's display of a Chanukah
menorah placed next to a Christmas tree and a sign saluting
liberty, all of which were located just outside the City-County
Building. Id. at 620-21. In doing so, the Court reasoned:
          [T]he relevant question for Establishment
          Clause purposes is whether the combined
          display of the tree, the sign, and the
          menorah has the effect of endorsing both
          Christian and Jewish faiths, or rather simply
          recognizes that both Christmas and Chanukah
          are part of the same winter-holiday season,
          which has attained a secular status in our
          society. Of the two interpretations of this
          particular display, the latter seems far more
          plausible . . . .
Id. at 616. Accordingly, the reasonable observer would not
necessarily interpret the display as an endorsement of
Christianity and Judaism.
     We can not say the same of Version D. Viewing it in context
with the "longstanding tradition" it attempts to perpetuate after
Lee would certainly leave the reasonable nonadherent with the
impression that his or her religious choices were disfavored.
This is particularly true where, as here, prayer would have been
conducted at graduation based upon a plurality even though a
majority of seniors voted not to have prayer.
     Although it is true that Version D does not require the view
that prevails in any given year to prevail in subsequent years,
it is nonetheless true that the effect of the particular prayer
that is offered in any given year will be to advance religion and
coerce dissenting students. See Jaffree v. Wallace, 705 F.2d
1526, 1534-35 (11th Cir.) ("The primary effect of prayer is the
advancement of one's religious beliefs."), reh'g denied, 713 F.2d
614 (11th Cir. 1983), aff'd, 466 U.S. 924 (1984). The
Constitution's "prohibition against governmental endorsement of
religion `preclude[s] government from conveying or attempting to
convey a message that religion or a particular religious belief
is favored or preferred.'" Allegheny, 492 U.S. at 593 (quoting
Wallace v. Jaffree, 472 U.S. at 70); see also Texas Monthly, Inc.
v. Bullock 489 U.S. 1, 27, 28 (1989) (Blackmun, J., concurring in
the judgment) ("government may not favor religious belief over
disbelief" or adopt a "preference for the dissemination of
religious ideas").
     The disclaimer that is required by Version D does weigh in
favor of the Board's position under a Lemon analysis. However,
it does not weigh so heavily as to neutralize the counterweight
of the advantage the policy gives religious speech over secular
speech. Despite the printed disclaimer, the reasonable observer
here could not help but conclude that the Board favors the
inclusion of prayer.
     "[N]ot every law that confers an `indirect,' `remote,' or
`incidental' benefit upon [religion] is, for that reason alone,
constitutionally invalid." Nyquist, 413 U.S. at 771 (citation
omitted). However, Version D provides a benefit that is neither
"indirect," "remote," nor "incidental." The Supreme Court has
never countenanced a practice that requires some members of a
community to subordinate their religious preferences to those of
a majority. Rather, "[t]he Establishment Clause, at the very
least, prohibits government from appearing to take a position on
questions of religious belief or from `making adherence to a
religion relevant in any way to a person's standing in the
political community.'" Allegheny, 492 U.S. at 593-94 (quoting
Lynch, 465 U.S. at 687 (O'Connor, J., concurring)).
     Although the Supreme Court has allowed certain
accommodations to religion, see Corporation of Church of Jesus
Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 336-37 (1987)
(upholding law exempting religious employers from Title VII);
Zorach, 343 U.S. at 314-15 (upholding statutory "released time"
program whereby public schools release students during the school
day to receive off-site religious education), "accommodation is
not a principle without limits." Kiryas Joel, 114 S. Ct. at
2492. The Supreme Court "[has] never hinted that an otherwise
unconstitutional delegation of political power to a religious
group could be saved as a religious accommodation." Id. at 2493.
As Justice Souter explained in Lee:
               Religious students cannot complain that
          omitting prayers from their graduation
          ceremony would, in any realistic sense,
          'burden' their spiritual callings. To be
          sure, many of them invest this rite of
          passage with spiritual significance, but they
          may express their religious feelings about it
          before and after the ceremony. They may even
          organize a privately sponsored baccalaureate
          if they desire the company of like-minded
          students. Because they accordingly have no
          need for the machinery of the State to affirm
          their beliefs, the government's sponsorship
          of prayer at the graduation ceremony is most
          reasonably understood as an official
          endorsement of religion . . . .
505 U.S. at 629-30 (Souter, J., concurring).
     Whatever accommodation may require, it is clear that
government neutrality toward religion still is the hallmark of
the Religion Clauses. See Kiryas Joel, 114 S. Ct. at 2487 ("A
proper respect for both the Free Exercise and the Establishment
Clauses compels the State to pursue a course of `neutrality'
toward religion, favoring neither one religion over others nor
religious adherents collectively over nonadherents.") (internal
quotations and citation omitted). Version D can not be justified
as an accommodation because it seeks to accommodate the
preference of some at the expense of others and thereby crosses
the required line of neutrality. "The First Amendment . . .
gives no one the right to insist that in pursuit of their own
interests others must conform their conduct to his own religious
necessities." Estate of Thornton v. Caldor, Inc., 472 U.S. 703,
710 (1985) (internal quotations and citation omitted).
             (3) Excessive Entanglement With Religion
     The third prong of the Lemon test -- no excessive
entanglement of government with religion -- is a much closer
question. As noted earlier, the state's involvement here is far
less than the entanglement that was present in Lemon. However,
because we find that Version D of Policy IKFD violates the first
two prongs Lemon, we need not determine if it also violates the
third prong.
                          V. CONCLUSION
     In closing, we emphasize the difficulty posed by the issue
that we confront here and the intensity and sincerity of persons
on both sides. Issues of religion touch litigants and interested
observers of the law as few other issues can. For example, one
of the students who opposed Version D testified before the
district court that he received threatening letters in his school
locker and threatening telephone calls at home after coming
forward in this case. App. at 93.
     References to, and images of, religion are to be found
throughout this society. See Zorach, 343 U.S. at 313-14. Yet,
the prevalence of religious beliefs and imagery cannot erode the
state's obligation to protect the entire spectrum of religious
preferences from the most pious worshipper to the most committed
atheist. Those preferences are the business of the individual,
not the state nor the public schools it maintains. The First
Amendment does not allow the state to erect a policy that only
respects religious views that are popular because the largest
majority can not be licensed to impose its religious preferences
upon the smallest minority.
     We need not now address the parameters of these prohibitions
beyond the precise questions raised by the specific policy before
us. The district court's order enjoined the School Board "from
conducting a school-sponsored graduation ceremony that includes a
prayer, whether it be an invocation, a benediction or a prayer in
any other form." App. at 210. In context, we understand the
district court's order to foreclose a school-sponsored graduation
service involving an invocation, benediction or prayer pursuant
to Policy IKFD Version D. As so read, we affirm the judgment of
the district court.

ACLU v. Black Horse Pike Regional Board of Education, etc., No.
94-5233




MANSMANN, Circuit Judge, dissenting, joined by Judges Nygaard,
Alito and Roth.
     I must dissent because I believe the issue squarely before
us, whether student-initiated, -directed and -composed prayer at
high school graduation violates the First Amendment, requires
that we examine the application of both the Establishment Clause
and the free exercise/free speech right, balancing the graduates'
free exercise and speech rights against any compelling state
interest which might otherwise justify impinging these
guarantees.
     In placing these interests on the balance scale, I am
concerned, however, that an approach which exaggerates and
emphasizes the Court's Establishment Clause tests would be
fragmented and would tend to imply that the First Amendment
religion clauses embody contradictory and irreconcilable
principles. The Court's free exercise jurisprudence clearly
suggests that a separation policy which overextends into the
domain of free exercise and free speech must be suspect. The
Establishment Clause should not be read to prohibit activity
which the Free Exercise Clause protects. Board of Educ. v.
Mergens, 496 U.S. 226, 250 (1990) ("there is a crucial difference
between government speech endorsing religion, which the
Establishment Clause forbids, and private speech endorsing
religion, which the Free Speech and Free Exercise Clauses
protect"). Thus, I would analyze the present case in light of
the fact that while the state may not establish a religion, it
must not also disadvantage or discriminate against studentreligious
activity, nor imply that religion, or religious acts,
are disfavored.
     In light of the Establishment Clause's broad purpose to
serve the free exercise of religion, I would hold that here the
narrowly fact-bound holding of Lee v. Weisman, 112 S. Ct. 2649
(1992), does not preclude such student directed, composed and
delivered prayer as an integral segment of the graduation
ceremony, where there is not, by policy, virtually any school
administration or faculty involvement. In addition, applying the
Court's three-part Establishment Clause analysis articulated in
Lemon v. Kurtzman, 403 U.S. 602 (1971), I would hold that the
defendants' challenged activity also meets the Lemon test as to
compliance with the Establishment Clause. Finally, I would
conclude that the state has not articulated any compelling
interest to countermand the graduates' rights of free exercise
and free expression. Thus, I would reverse the permanent
injunction issued against the defendants.

                                I.
     In Lee v. Weisman, the Court held that Lee, a middle school
principal who decided to include prayer in the graduation
ceremony for Deborah Weisman, chose a rabbi to offer the prayer,
gave the rabbi guidelines on the content of the prayer, and
advised the rabbi that the invocation should be non-sectarian,
made choices attributable to the state. Moreover, the Court held
that Lee's advice concerning the content of the rabbi's prayer
constituted direct state control. These findings, combined with
the Court's finding that the school's supervision and control of
high school graduation subtlely coerced graduates to stand in
respectful silence during the invocation, rendered the state
action unconstitutional, despite the fact that participation in
the prayer or in the graduation ceremony itself was voluntary.
112 S. Ct. at 2655-56. Emphasizing that the particular facts in
the case were outcome-determinative, the Court stated:
     These dominant facts mark and control the confines of
     our decision: State officials direct the performance
     of a formal religious exercise at promotional and
     graduation ceremonies for secondary schools. Even for
     those students who object to the religious exercise,
     their attendance and participation in the state-
     sponsored religious activity are in a fair and real
     sense obligatory, though the school district does not
     require attendance as a condition for receipt of the
     diploma.

112 S. Ct. at 2655.
     Adverting to the "heightened concerns with protecting
freedom of conscience from subtle coercive pressure in the
elementary and secondary public schools," id. at 2658, the Court
asserted that the effort on the part of the school official to
"monitor prayer will be perceived by the students as inducing a
participation they might otherwise reject." Id. at 2657. The
Court declined to apply the factors it earlier set forth in Lemon
v. Kurtzman, or to explicitly reconsider the status of that
decision.
     Because of the highly fact-sensitive nature of the Leedecision, I
cannot induce from the Court's reasoning any broad
constitutional principle which bans prayer at all high school
graduation ceremonies, regardless of the manner in which the
decision to include prayer is made or implemented. Indeed, Leebids us to
scrutinize and to distinguish the facts of each case.
In Lee the Court found the following, working in tandem, to
constitute state sponsorship:
     1)   The high school principal, a state actor, made a
unilateral decision to include an invocation and benediction in
the graduation ceremony;
     2)   The high school principal, a state actor, made a
unilateral decision with regard to the selection of a clergyman
to offer the invocation and benediction; and
     3)   The high school principal, a state actor, actively
influenced and monitored the content of the invocation and
benediction to be given.
     The case before us contains neither the indicia of state
action nor the particular facts which were outcome- determinative
in Lee. Here the graduates are entirely entrusted with the
decision to include or not to include a graduation invocation.
The graduates maintain control throughout the decisional process
and without the active or surreptitious influence or monitoring
by school officials. Policy IKFD precludes the invitation of a
clergyman to deliver any invocation. No school official may
influence or monitor the content of the prayer. The polling
instrument itself is neutral. The government practice in
question here is not a decision to include prayer at graduation;
nor is it the practice of monitoring or influencing the content
of a graduation prayer. The government practice at issue here is
the highly democratic one of allowing the graduating class to
vote on the issue of graduation prayer while maintaining an
official stance of strict neutrality throughout the entire
process. Hence, none of the decisions made by the graduating
class concerning graduation prayer can be attributed to the state
and the Establishment Clause is therefore not even implicated.
I do not find anything in Lee which would compel a holding that
policy IKFD is unconstitutional.
     The majority expresses concern over the degree of control
exercised by the school: 1) when it rejected a student's request
for a "safe sex" speaker at graduation, and 2) when the principal
stated that he would not permit an unscheduled speaker.
Certainly the school, without violating the neutrality principles
of Lemon, could restrict all speeches as to time and indeed as to
appropriateness -- here, to "solemnizing" speech; Policy IKFD's
subject matter and speaker restrictions do not constitute
viewpoint expression or suppression.
     I would follow the lead of our sister court of appeals in
Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963 (5th Cir.
1992), a graduation prayer case factually similar to the case
before us. In Jones, the Supreme Court vacated the Fifth
Circuit's judgment and remanded the case for further
consideration in light of the Court's decision in Lee v. Weisman,
which the Court decided subsequent to the Fifth Circuit's first
determination. Upon reconsideration, the Fifth Circuit held that
Lee did not invalidate Clear Creek's graduation and invocation
policy, which did not mandate prayer or any invocation, but
merely permitted graduation prayer to be delivered by a graduate
if the graduating class so chose. Moreover, in Jones the
resolution in question permitted a school official to offer
"advice and counsel" to the graduating class in the decision
whether to include an invocation at graduation. This single
fact, which is absent in the case before us, placed the Jonescase even
closer to the constitutional boundary established in
Lee than the case before us. Nevertheless, the Fifth Circuit
held that Clear Creek exercised significantly less control over
the invocation content than did the school principal in Lee v.
Weisman, noting that Clear Creek did not solicit invocations, but
merely refused to accept sectarian or proselytizing invocations.
977 F.2d at 971. The court noted that the resolution merely
tolerated nonsectarian, non-proselytizing prayer, but neither
required nor favored it. Id.
     By contrast, Black Horse's policy for prayer at graduation
ceremonies is more liberal in that it extends the scope of its
toleration to include even sectarian prayer, if the graduates so
choose. I believe that in this way Policy IKFD comports with the
First Amendment's prohibition against the inhibition of the
practice of religion or of free expression, while at the same
time precludes even the remote possibility of an establishment of
religion by virtue of its uncompromising neutrality.
     I would also find the element of psychological coercion,
which the Lee Court presumed and the majority stresses, to be
absent where the graduating seniors have participated in the
decision regarding prayer at graduation. There could not be any
confusion on the part of the reasonable graduating senior, who
has been made aware of the senior class poll and has been invited
to participate, with regard to whether the result of that poll
represents an official opinion of the state or the will of the
senior class. Furthermore, although Lee failed to emphasize the
distinction between high school graduates and the rest of the
younger, less mature high school student body, prior Supreme
Court caselaw has acknowledged that post-secondary school
students are less easily coerced than younger students. See,
e.g., Board of Educ. of Westside Community Schools v. Mergens,
496 U.S. 226, 235-37, 250 (1990) ("university students are . . .
less impressionable than younger students") (citing Widmar v.
Vincent, 454 U.S. 263, 274, n.14 (1981)). The graduation
ceremony itself is a public ritual symbolic of the graduates'
passage into responsible young adulthood, and is synchronized,
more or less, with other official acknowledgements of adult
initiation, such as conference of the right to vote and the
responsibility of males to register for the draft.
     In addition to the relative level of maturity of the senior
class, the very nature of graduation, which elevates the studentto the
status of graduate, must be considered. Although the
student/graduate distinction did not countermand the other
various facts which the Court in Lee weighed against graduation
prayer, I believe that the graduation ceremony setting is
significantly different in nature from the classroom setting, and
in the absence of other offending factors, warrants a less
restrictive approach to religion. Certainly the contested
activity does not involve the curriculum of the school; nor does
the graduation ceremony implicate the teacher-student
relationship concerning the transmission of knowledge from the
former to the latter. Thus, the concerns which the Court has
expressed in those cases where some form of religion has been
injected into the school curriculum are not directly operative
here. See, e.g., Edwards v. Aguillard, 482 U.S. 578 (1987)
(teaching of scientific evidence supporting creation theory);
Wallace v. Jaffree, 472 U.S. 38 (1985) (moment of silence at
beginning of each school day); Stone v. Graham, 449 U.S. 39
(1980) (posting of Ten Commandments on classroom walls); Abington
School Dist. v. Schempp, 374 U.S. 203 (1963) (Bible reading over
PA system before classes); Engel v. Vitale, 370 U.S. 421 (1962)
(mandated recitation of official state prayer each day in public
schools); Illinois ex rel. McCollum v. Board of Education, 333
U.S. 203 (1948) (weekly religious instruction in public school
buildings during school hours by members of clergy).
     I do not share the majority's confidence in the Ninth
Circuit's holding in Harris v. Joint Sch. Dist. No. 241, 41 F.3d
447 (9th Cir. 1994), cert. granted, vacated and remanded, ___
U.S. ___, 115 S. Ct. 2604, 132 L.ED.2d 849 (1995). Following the
precedent set by an earlier Ninth Circuit case, Collins v.
Chandler Unified Sch. Dist., 644 F.2d 759 (9th Cir.), cert.
denied, 454 U.S. 863 (1981), the court in Harris held that "the
school ultimately controls [the graduation] event" and hence
cannot avoid state involvement so as to implicate the
Establishment Clause as interpreted under Lee. 41 F.3d at 454.
The court further held that the seniors' decision regarding
prayer was per se tainted with official sanction because the
seniors derived their decisional authority from the delegation of
official school authority and because "the school under[wrote]
the [graduation] event" by providing the use of the school
building. Id. In my view, this holding would preclude virtually
all prayer at a public high school graduation ceremony, a holding
which unnecessarily and without warrant extends the holding of
Lee. I am also concerned that the Ninth Circuit failed to
distinguish the classroom setting from the graduation setting,
and the student from the graduate. 41 F.3d at 458. I find no
precedent supporting the Ninth Circuit's position that public
high school seniors "enter[] the domain of the Establishment
Clause," id., and are precluded from independently choosing to
communally express their gratitude to God, invoke the divine
presence or seek God's blessing, as part of their graduation
ceremony. Since all aspects of the graduation prayer decision
are at the discretion of the graduating senior class, I would
hold that Policy IKFD does not unconstitutionally establish a
religion under Lee.

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

                                A.
     In order to pass the first prong of the Lemon test, Policy
IKFD need not be shown to be exclusively secular. Lynch v.
Donnelly, 465 U.S. 668, 681 n.6 (1984); Wallace v. Jaffree, 472
U.S. at 64 (Powell, J., concurring). Furthermore, accommodation
of religion or religious practice in general helps to preserve
the mediating institutions of the public morals, a secular civic
good. Hence, accommodation itself serves a secular purpose. A
valid secular purpose is not constitutionally compromised when
there are incidental, even substantial, benefits to religion.
Lynch, 465 U.S. at 680 (citing Everson v. Board of Education, 330
U.S. 1 (1947); Board of Education v. Allen, 392 U.S. 236 (1968);
Walz v. Tax Commission, 397 U.S. 664 (1970); Tilton v.
Richardson, 403 U.S. 672 (1971)).
     To determine a secular purpose, the Court generally has
exercised deference with regard to stated legislative or policy
purpose, and will find a sham secular purpose only when there can
be no question that the challenged conduct establishes, or tends
to establish, a religion. Aguilar v. Felton, 473 U.S. 402, 416-
17 (1985) (Powell, J., concurring); Lynch, 465 U.S. at 680 ("The
Court has invalidated legislation or governmental action on the
ground that a secular purpose was lacking, but only when it has
concluded there was no question that the statute or activity was
motivated wholly by religious considerations.") (citing Stone v.
Graham, 449 U.S. at 41; Epperson v. Arkansas, 393 U.S. 97, 107-09
(1968); Abington School Dist. v. Schempp, 374 U.S. at 223-24;
Engel v. Vitale, 370 U.S. at 424-25); see also Edwards v.
Aguillard, 482 U.S. at 586-87.
     Policy IKFD expressly states, "[i]n the spirit of protected
free speech, the pupils in attendance must choose to have prayer
. . . ." (emphasis added). In addition to this express secular
purpose of promoting the free speech of the graduating seniors,
the school asserts that Policy IKFD serves the valid secular
purpose of permitting the graduates to solemnize the occasion of
their graduation through ceremonial prayer. The concern should
not be, as the majority expresses it, that graduation would not
be less solemn without the vote. The importance of ceremonial
prayer is that the Court has acknowledged that it indeed serves
the valid secular purpose of solemnization. See, e.g., Lynch,
465 U.S. at 693 (O'Connor, J., concurring); County of Allegheny
v. Greater Pittsburgh ACLU, 492 U.S. 573, 595-96 n.46 (1989);
Engel v. Vitale, 370 U.S. at 435 n.21 (1962); see also Jones v.
Clear Creek Indep. Sch. Dist., 977 F.2d at 966-67.
     As the district court noted in the present case, Policy IKFD
serves yet a third secular purpose which is educational, albeit
not curriculum-related, in that the process of independently
coordinating and resolving the issue of graduation prayer permits
the prospective graduates to gain firsthand insight into the
effects of current constitutional jurisprudence on their public
behavior, and is itself an exercise in responsible citizenship.
     Moreover, the challenged activity here cannot be deemed to
cause those graduates who are opponents of prayer at graduation,
for the many different reasons cited by the majority, to feel
that they are not fully incorporated into the community. To the
contrary, every graduate under Policy IKFD is fully invited to
partake in the community via the right to vote on the issue of
school prayer, and each individual graduate, regardless of his or
her position on the issue, has an equal opportunity to influence
the graduation ceremony. Here the challenged activity is a
democratic exercise. There is no guarantee that the view that
prevails in any given year will prevail in the following year.
The reasonably tolerant graduate, knowing of his or her
opportunity to partake in the class poll, cannot reasonably be
thought to conclude that the state is establishing religion if
prayer prevails in the poll in any given year. The non-endorsing
language of Policy IKFD, the explicit mandatory disclaimer, and
the neutrality of the polling instrument itself, would lead me to
hold that the effect of Policy IKFD is not principally or
primarily to advance religion. On the other hand, an absolute
prohibition on ceremonial prayer at graduation would, in my view,
violate the Free Exercise Clause by unduly inhibiting the
practice of religion, and would also implicate the free speech
guarantees of the First Amendment.
     Given the school's highly credible express secular
motivations and neutrality of purpose as regards religion, both
written into Policy IKFD and argued before us, I would find that
Policy IKFD easily passes the secular purpose test. The ACLU's
assertions that Policy IKFD cannot satisfy this prong of Lemonbecause
prayer is per se religious and that ceremonial prayer
may not be utilized for purposes of solemnization or freedom of
expression where wholly secular means are available, go far
beyond the requirements of the first prong of Lemon, which does
not require that a secular purpose be achieved via exclusively
secular means. Furthermore, the means employed by the school
towards its secular end pursuant to Policy IKFD is not itself
intrinsically religious. Student polling is a wholly secular
activity, and the result of the poll in question is the
expression of the graduating class, not the school district.

                                B.
     With respect to the second prong of the Lemon test, I agree
that the test asks whether the challenged activity "in fact
conveys a message of endorsement or disapproval." Lynch, 465
U.S. at 690. While it is solidly established that the government
is precluded from favoring one particular religious denomination
over another, or from establishing an official state religion, I
note that the members of the Court divide as to whether the
Establishment Clause precludes the government from conveying a
message that it endorses or encourages religion in a generic
sense, or especially acknowledges or accommodates the broad
Judeo-Christian heritage of our civil and social order. This
division persists despite the Court's attempt to interpret
comprehensively the Establishment Clause in Everson v. Board of
Education, 330 U.S. 1, 15-16 (1947), holding that the First
Amendment prohibits the federal and state governments from
offering non-preferential aid to all religions and from levying
any tax to support any religious activity or institution. See,
e.g., Wallace, 472 U.S. at 70 (O'Connor, J., concurring) ("[The
endorsement test] does preclude government from conveying or
attempting to convey a message that religion or a particular
religious belief is favored or preferred"); but cf. Wallace, 472
U.S. at 98 (Rehnquist, J., dissenting) ("[Madison] did not see
[the First Amendment] as requiring neutrality on the part of
government between religion and irreligion."); Zorach v. Clauson,
343 U.S. 306, 313 (1952) ("We are a religious people whose
institutions presuppose a Supreme Being."); Marsh v. Chambers,
463 U.S. 783, 792 (1983) ("To invoke Divine guidance on a public
body . . . is not . . . an `establishment' . . . or a step toward
establishment; it is simply a tolerable acknowledgement of
beliefs widely held among the people of this Country."); Lynch,
465 U.S. at 673 (The Constitution "affirmatively mandates
accommodation, not merely tolerance, of all religions, and
forbids hostility toward any . . . . `[C]allous indifference' . .
. was never intended by the Establishment Clause . . . . [and]
would bring us into `war with our national tradition as embodied
in the First Amendment's guaranty of the free exercise of
religion.'" (citations omitted)). In Mergens, the Supreme Court
unequivocally held that:
     The Establishment Clause does not license government to
     treat religion and those who teach or practice it,
     simply by virtue of their status as such, as subversive
     of American ideals and therefore subject to unique
     disabilities.

Mergens, 496 U.S. at 248. See also Rosenberger v. Rector &
Visitors of University of Va., 115 S. Ct. 2510, 2522 (1995)
(where government program is neutral toward religion (as Policy
IKFD is), restrictions on religious speech are not justified by
the Establishment Clause); such viewpoint discrimination risks
fostering hostility to religion, undermining the very neutrality
of the Establishment Clause requires, id. at 2525.
     The First Amendment does not condemn legislation or official
policy that has the effect of assisting religion generally; the
First Amendment itself gives religion an exceptionally protected
status. It does not necessitate an interpretation inhospitable
to religion where religion may not be acknowledged in any public
arena. Such an interpretation runs counter to the notion of
neutrality and denigrates religion in violation of the Free
Exercise Clause. See Lynch v. Donnelly, 465 U.S. 668, 673 (1983)
(the Constitution does not "require the complete separation of
church and state; it affirmatively mandates accommodation, not
merely tolerance, of all religions, and forbids hostility towards
any . . . . Indeed . . . such hostility would bring us into `war
with our national tradition as embodied in the First Amendment's
guaranty of the free exercise of religion.'"). Neutrality may be
achieved through a policy, such as Policy IKFD, that is as
hospitable to religion as it is to irreligion.
     The majority's "reasonable nonadherent" could not be
confused into thinking that "his or her religious choices were
disfavored." Opinion at 33. Policy IKFD mandates an explicit
and unequivocal disclaimer, one that covers not only the official
position of the school but also the views of any of the
particular graduates, on the graduation program in the event the
student body votes for the inclusion of prayer at the graduation
ceremony.   Moreover, the outright ban on graduation prayer
that the majority espouses would make a reasonable religionist
believe that his or her exercise of religion was disfavored by
the state, especially against the pervasive backdrop of a century
and a half of prayer at such gatherings.

                                C.
     Because I find that the first two Lemon prongs are not
violated, I (unlike the majority) must move to the third prong,
whether Policy IKFD fosters excessive institutional entanglement
between the church and the state. Lemon discusses two ways in
which entanglement can be excessive. Entanglement may be
implicated when a state policy or legislative act draws the state
into an intimate and continual monitoring or overseeing of
religious matters. 403 U.S. at 614-22. Entanglement may also be
implicated where a state policy or legislative act creates an
abnormal potential for political divisiveness. 403 U.S. at 622.
The Court has indicated, however, that political divisiveness
alone will not create an entanglement. Lynch, 465 U.S. at 684
(". . . this Court has not held that political divisiveness alone
can serve to invalidate otherwise permissible conduct"). The
Court has also recognized that "[e]ntanglement is a question of
kind and degree." Lynch, 465 U.S. at 684.
     I find nothing in Policy IKFD which resembles the enduring
entanglement identified in Lemon. By design Policy IKFD creates
a virtual total absence of administrative entanglement of any
sort. With regard to political divisiveness, Policy IKFD
involves absolutely no sponsorship or subsidy to any religious
institution or related organization. There is nothing in the
record which would suggest that Policy IKFD engenders or will
engender so high a degree of political divisiveness as to pose "a
threat to the normal political process." Lemon, 403 U.S. at 622
(citations omitted). On the other hand, I would not attribute
the political divisiveness, to whatever extent it may or may not
exist, which this lawsuit itself engenders, to Policy IKFD. SeeLynch, 465
U.S. at 684-85 ("A litigant cannot, by the very act of
commencing a lawsuit, . . . create the appearance of divisiveness
and then exploit it as evidence of entanglement.") I do not find
any evidence of excessive entanglement and am thus satisfied that
Policy IKFD satisfies all three prongs of the Lemon test.

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