84 F.3d 1471 (3rd Cir. 1996), 94-5233, American Civil Liberties Union of New Jersey v. Black Horse Pike Regional Bd. of Educ.

Docket Nº:94-5233.
Citation:84 F.3d 1471
Party Name: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.
Case Date:May 24, 1996
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 1471

84 F.3d 1471 (3rd Cir. 1996)


of its Members; and Edward Ross



Regional High School; Frank Palatucci, Principal

in His Official and Individual

Capacities, Appellants.

No. 94-5233.

United States Court of Appeals, Third Circuit

May 24, 1996

Argued Jan. 23, 1995.

Reargued In Banc Oct. 25, 1995.

Page 1472

[Copyrighted Material Omitted]

Page 1473

[Copyrighted Material Omitted]

Page 1474

James Katz (argued), Tomar, Simonoff, Adourian & O'Brien, Haddonfield, NJ, for Appellees.

John D. Wade (argued), Ferreri & Wade, P.C., Laurel Springs, NJ, for Appellants.

Argued Jan. 23, 1995

Before: MANSMANN, HUTCHINSON and McKEE, Circuit Judges.

Reargued In Banc Oct. 25, 1995



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.


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, 112 S.Ct. 2649, 120 L.Ed.2d 467 (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

Page 1475

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.


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

Page 1476

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. 1

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, 505 U.S. 577, 112 S.Ct. 2649 [120 L.Ed.2d 467] (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.


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...

To continue reading