Public school commencement season this spring could be marked by renewed legal uncertainty because of the U.S. Supreme Court’s refusal to review a Florida school district’s policy allowing student messages at graduation. The policy has often resulted in student-led prayers.
The justices on Dec. 10 let stand a ruling by the U.S. Court of Appeals for the 11th Circuit, in Atlanta, that upheld the policy of the 127,000-student Duval County, Fla., district, which includes Jacksonville.
The district adopted its policy in 1993, after the Supreme Court ruled in 1992 that clergy-led prayers at graduation ceremonies violated the First Amendment’s prohibition against a government establishment of religion. The policy—titled “Graduation Prayers"— authorized graduating classes to decide whether to have a brief message delivered by a student at the opening or closing of graduation ceremonies. The vast majority of messages delivered since the policy went into effect have been religious invocations or benedictions.
In 2000, the Supreme Court struck down a Texas school district’s policy authorizing student-led prayers before high school football games. The court ruled 6-3 in Santa Fe Independent School District v. Doe that the student invocations authorized by that district’s policy represented government, not private, speech.
After its ruling in Santa Fe, the high court set aside a ruling of the 11th Circuit Court that upheld the Duval County graduation-speech policy, and instructed the lower court to reconsider the case. But last June, the full 11th Circuit voted 8-4 to again uphold the Duval County policy.
The majority of the 11th Circuit court found two key differences between the football-prayer policy struck down by the Supreme Court and the Duval County policy. First, unlike the messages in Santa Fe, Texas, the student graduation messages in Duval County are not subject to review by school officials, the appeals court said. Second, unlike in the Texas district’s policy, it was not “preordained” that student speakers at graduation in Duval County would deliver a religious message, the court said.
Second High Court Appeal
Families challenging the Duval County policy appealed to the Supreme Court with the aid of the American Civil Liberties Union of Florida and the Public Citizen Litigation Group, based in Washington. They argued that the 11th Circuit court majority had failed to properly apply the Texas ruling to the Duval County policy, which the brief argues was enacted “to preserve a tradition of prayer at graduation.”
“The record is replete with evidence of explicitly labeled invocations and benedictions, most often delivered by class ‘chaplains’ elected to give the ‘messages,’” said the appeal in Adler v. Duval County School Board (Case No. 01-287).
The school district, in a response to the appeal, said the 11th Circuit court was correct to distinguish its policy from the Texas district’s football-prayer policy. Under the policy in the Texas district, the Florida district said, “students specifically voted on whether to pray at games, a constitutionally improper subject for a majoritarian student vote.”
The Duval County policy “neither contemplates, establishes, encourages, nor prohibits religious speech,” the district’s brief said.
The high court declined to review the case without comment or recorded dissent. The action is not a ruling on the merits of Duval County’s policy, but it is likely to foster uncertainty and, perhaps, experimentation by other districts.
The 11th Circuit’s ruling now clearly permits districts in Alabama, Florida, and Georgia to adopt their own policies modeled on Duval County’s. Districts in other states might also try similar language, depending on whether they are subject to other lower-court rulings.
Mathew D. Staver, the president of Liberty Counsel, an Orlando, Fla.-based organization that promotes prayer in public schools, said the high court’s action had implications beyond the three states in the 11th Circuit.
“Students around the country may offer prayer or religious messages under a neutral policy that allows for both secular and religious speech,” he argued.
But Barry W. Lynn, the executive director of the Washington-based Americans United for Separation of Church and State, said he did not believe the justices were signaling any shift in the court’s views on school prayer.
“If this ‘majority rules’ plan spreads to other states [beyond Alabama, Florida, and Georgia], I think the justices will put a stop to it,” he said.
In another development last month on school prayer, the U.S. Court of Appeals for the 5th Circuit struck down a Louisiana law that authorized public school teachers and students to start each day with a “brief time in prayer or meditation.”
The case concerned a 1999 amendment to a 1976 law that had authorized a “brief time of silent meditation” in public school classrooms. In 1992, the law was changed to allow “silent prayer or meditation.” In 1999, lawmakers removed the word “silent.”
Several families in the 17,000-student Ouachita Parish district in northeastern Louisiana challenged the change as a violation of the First Amendment’s establishment clause. They won in both federal district court and in a unanimous ruling by a three-judge panel of the New Orleans-based 5th Circuit court.
“There is no doubt that the 1999 amendment was motivated by a wholly religious purpose,” the appeals court said in its Dec. 11 ruling. Its sole purpose was “to return verbal prayers to the public schools” in violation of the First Amendment, the court said.
