Adler v. Duval County School Bd.

• Decision Date: 04 May 1994
• Docket Number: No. 93-833 Civ-J-10.,93-833 Civ-J-10.
• Citation: 851 F. Supp. 446
• Parties: Karen ADLER, etc., et al., Plaintiffs, v. DUVAL COUNTY SCHOOL BOARD, et al., Defendants, and Sharon GREEN, etc., et al., Defendants-Intervenors.
• Court: U.S. District Court — Middle District of Florida

851 F. Supp. 446

Karen ADLER, etc., et al., Plaintiffs, v. DUVAL COUNTY SCHOOL BOARD, et al., Defendants and Sharon GREEN, etc., et al., Defendants-Intervenors.

No. 93-833 Civ-J-10.

United States District Court, M.D. Florida, Jacksonville Division.

May 4, 1994.

William J. Sheppard, D. Gray Thomas, Sheppard & White, P.A., Jacksonville, FL, for plaintiffs.

Charles W. Arnold, Jr., General Counsel's Office, Jacksonville, FL, for Larry Zenke.

Stephen Michael Durden, Charles W. Arnold, Jr., General Counsel's Office, Jacksonville, FL, for Duval County School Bd., Don Buckley, Stan Jordan, Nancy Corwin, Bill Parker, Gwen Gibson, Gwendola Jones, Cheryl Donelan, Duval County Public School Dist., Dalton Epting.

James M. Henderson, Sr., Christian Advocates Serving Evangelism, Washington, DC, Jay Alan Sekulow, Jordan W. Lorence, John G. Stepanovich, American Center for Law and Justice, Washington, DC, Jeffrey Wood, Law Office of Jeffrey Wood, Jacksonville, FL, for Student Coalition for Free Speech, amicus.

Mitchell Adam Stone, Law Office of Mitchell A. Stone, Jacksonville, FL, for American Jewish Congress.

Mathew Duane Staver, Jeffery T. Kipi, Staver & Associates, Orlando, FL, for Sharon Green, Linda Muhlbauer, Linda Gaston, Rhonda Sellers, Brenda Mayerlen, Ronald Haws, Jacki Roerink, William Frederick Branham, Sr., Michael Lukaszewski.

MEMORANDUM OPINION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT

HODGES, District Judge.

This is an action brought under 42 U.S.C. § 1983 and the First and Fourteenth Amendments to the United States Constitution in which the Plaintiffs claim that their rights under the Establishment Clause of the First Amendment have been violated by the Defendants. Specifically, the claim is that the Defendant school authorities have adopted a policy that permits prayer at graduation exercises in the public high schools of Duval County, Florida, and that such policy violates the First Amendment prohibition against the establishment of religion by the state.¹

The Plaintiffs constitute a group of graduating seniors and a parent of a graduating senior who brought this action in early June, 1993, to enjoin the Duval County Public School District from permitting religious invocations and benedictions at the 1993 public high school graduation ceremonies. The Plaintiffs also sought declaratory relief and damages. Another group of students was granted leave to intervene as Defendants, opposing the Plaintiffs' claims and asserting their own First Amendment right of free speech at graduation ceremonies.

On June 4, 1993, after a hearing in open court, I orally denied the Plaintiffs' motion for preliminary injunctive relief, finding that the Plaintiffs had failed to sustain their burden of demonstrating a substantial likelihood of success on the merits (Doc. 18).² A renewed motion for injunctive relief was also denied by written order entered the following week (Doc. 32), and the 1993 graduation ceremonies at the seventeen high schools within the Duval County school district were conducted under the School Board's policy which is the subject of the constitutional challenge made in this litigation. The case then proceeded through the discovery stage and is presently before the Court on the parties' cross motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

Upon due consideration, I have determined that there is no genuine issue of material fact, that the case can be decided on the existing record as a matter of law pursuant to Rule 56, and that the Defendants are entitled to prevail on the constitutional issues presented.³ It follows, for the reasons explained below, that the plaintiffs' motion for summary judgment will be denied, the Defendants' motion and that of the Intervenors will be granted, and final judgment will be entered accordingly.

BACKGROUND

Shortly after the Duval County high school graduation ceremonies in early summer, 1992, the Supreme Court of the United States decided Lee v. Weisman, ___ U.S. ___, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992), holding that the Establishment Clause of the First Amendment is violated whenever school officials, as state actors, plan for and arrange the making of religious albeit "non-sectarian" prayer in the form of invocations and benedictions at high school graduation exercises. In response to that decision, Vicki R. Reynolds, the Duval County School Board's legal liaison, at the direction of Larry Zenke, Superintendent of Schools for the Duval County public schools, wrote a memorandum to all school principals in the county saying that "due to the recent Supreme Court Ruling in Lee v. Weisman, there should be no prayer, benediction, or invocation at any graduation ceremonies." Deposition of Larry Zenke, at 7-8 and at Exhibit 1. Thereafter, Superintendent Zenke received a number of letters suggesting that student-initiated and student-led prayer might be constitutional. Deposition of Larry Zenke, at 8-9. Accordingly, he directed Ms. Reynolds to further research the issue. Id. She later advised Superintendent Zenke that it would be appropriate for principals to allow student-initiated and student-led prayer during the graduation ceremony so long as the administration and faculty were not involved in the decision making process. Id. at 10-11. Accordingly, and again pursuant to Superintendent Zenke's direction, Ms. Reynolds issued to all high school principals another memorandum dated May 5, 1993, entitled "Graduation Prayers" stating:

You will recall that after the 1992 Supreme court case of Lee v. Wiseman sic, you received a memorandum from me instructing that because of the decision, we would no longer be able to have prayers at graduation ceremonies. Most of you have recently been bombarded with information, as have I, regarding whether or not student initiated and led prayers are acceptable based upon a recent Fifth Circuit opinion. The purpose of this memorandum is to give you some guidelines on this issue if the graduating students at your school desire to have some type of brief opening and/or closing message by a student.

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

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

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

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

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

Deposition of Larry Zenke, at Exhibit 3.

At a subsequent School Board meeting held on June 1, 1993, a motion was made to substitute a "moment of silence" for any student initiated messages that might otherwise be given pursuant to the guidelines or policy announced in Ms. Reynolds' memorandum of May 5. That motion failed by a vote of four to three; and, thus, while the Reynolds' memorandum of May 5 was not itself the subject of any specific vote by the Board, that memorandum was left in force with the acquiescence or tacit approval of the Board as its' official policy governing the 1993 commencement exercises. Moreover, it remains in effect and, unless altered by Defendants or enjoined by this Court, will govern the approaching ceremonies in 1994 as well.

With respect to the 1993 ceremonies conducted after this Court declined to enjoin implementation of the May 5 memorandum, the high school principals, in accordance with the guidelines established in the memorandum, delegated decision making authority to graduating senior students at each school, respectively, to determine whether student messages should be given at the opening and/or closing of the graduation exercises.⁴ At ten of the seventeen high schools, it is undisputed that the students opted for messages that constituted various forms of religious prayer. At the remaining seven schools, however, it appears that either no messages were given at all, or that any that were given were entirely secular, having no religious aspects.

THE PARTIES' CONTENTIONS

Plaintiffs move for summary judgment and argue that prayer during public school graduation ceremonies is per se unconstitutional regardless of the manner in which the decision to have prayer is made and how or by whom the prayer is presented. Plaintiffs argue that the primary purpose of the guidelines in the Reynolds' memorandum of May 5 was to advance religion. Plaintiffs also argue that delegating to the students the decision whether prayers are to be included in graduation exercises does not insulate Defendants from being "excessively entangled" with the religious aspect of the graduation ceremony.

Defendants also move for summary judgment and argue that the policy guidelines set out in the May 5 memorandum had a secular purpose; that any prayers delivered were student-initiated, student-written and student-delivered without monitoring or review by school officials; and therefore, the policy as implemented lacked the pervasive government involvement condemned in Lee and in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). Defendants contend that the purpose of...