Adler v. Duval County School Bd.
| Decision Date | 11 May 1999 |
| Docket Number | Nos. 98-2709,98-2720,s. 98-2709 |
| Citation | 174 F.3d 1236 |
| Parties | 134 Ed. Law Rep. 790, 12 Fla. L. Weekly Fed. C 818 Emily ADLER, individually; on behalf of herself and all persons similarly situated, Seth Finck, individually; on behalf of himself and all persons similarly situated, et al., Plaintiffs- Appellants, v. DUVAL COUNTY SCHOOL BOARD, Duval County Public School District, Defendants-Appellees. Emily Adler, individually; on behalf of herself and all persons similarly situated, Seth Finck, individually; on behalf of himself and all persons similarly situated, et al., Plaintiffs-Appellees, v. Susan Boles, as parent & next friend of Rebecca Boles, a minor child and on behalf of all public school students within the Duval County Public School District, Movants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
William J. Sheppard, D. Gray Thomas, Sheppard and White, P.A., Jacksonville, FL, for Plaintiffs-Appellants and Plaintiffs-Appellees.
Ernst D. Mueller, Jacksonville, FL, for Defendants-Appellees.
Mathew D. Staver, Frederick H. Nelson, Nicole Arfaras Kerr, Staver & Associates, Orlando, FL, for Movants-Appellants.
Appeals from the United States District Court for the Middle District of Florida.
Before HATCHETT, Chief Judge, MARCUS, Circuit Judge, and KRAVITCH, Senior Circuit Judge.
Appellants, students of various grade levels in the Duval County, Florida school system, challenge the Duval County school system's policy of permitting graduating students to vote on whether to have unrestricted student-led messages at the beginning and closing of graduation ceremonies as facially and as-applied violative of the Establishment Clause. We hold that this policy facially violates the Establishment Clause, reverse the district court's denial of appellants' motion for preliminary injunction and dismissal on the merits and remand for further proceedings consistent with this opinion.
Prior to 1993, public schools in Duval County, Florida, permitted religious officials to conduct formal prayers during graduation exercises. The Supreme Court, however, ruled in 1992 that school-sponsored prayer at public school graduation ceremonies violated the Establishment Clause. Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992). Following Lee, Duval County Public School Superintendent Larry Zenke, at the direction of Vicky Reynolds (the school system's Liaison for Legal Affairs), issued a memorandum instructing all school officials in the Duval County school system to end the practice of having prayer at graduation ceremonies. 1
Soon after issuing this memorandum, the school system began receiving input from students and members of the community regarding ways to continue prayer at graduation ceremonies despite the Lee decision. 2 Reynolds and Superintendent Zenke met to decide whether they could change the school system's policy of no prayer at graduation ceremonies because of this input and the Fifth Circuit's decision in Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963 (5th Cir.1992), cert. denied, 508 U.S. 967, 113 S.Ct. 2950, 124 L.Ed.2d 697 (1993). Thereafter, Reynolds, under the supervision of Superintendent Zenke, circulated the following memorandum dated May 5, 1993, referenced "Graduation Prayers," to all high school principals in the Duval County school system:
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, 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.
After issuance of this memorandum, the Duval County School Board met to decide whether they could adopt a policy allowing a "moment of silence" at graduation ceremonies. In their discussion of the "moment of silence" policy, the School Board members also discussed the guidelines set forth in the Reynolds memorandum, and the permissibility of prayer at graduation ceremonies. The School Board voted the "moment of silence" policy down, in part to allow the guidelines in the Reynolds memorandum to stand, and in part based upon their understanding of Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985). 3 The School Board never voted specifically on the guidelines set forth in the Reynolds memorandum; "that memorandum was left in force with the acquiescence or tacit approval of the Board as its official policy governing the 1993 commencement exercises." Adler v. Duval County Sch. Bd., 851 F.Supp. 446, 449 (M.D.Fla.1994) (Adler I ).
High school principals in Duval County thereafter began implementing the guidelines in the Reynolds memorandum through delegating decision-making authority to graduating senior students at each school to determine: (1) whether they should allow student messages at the opening and/or closing of the graduation ceremony; and (2) who should give these messages. See Adler I, 851 F.Supp. at 449 n. 4 (). With regard to the 1993 graduation ceremonies, seniors at 10 of the 17 Duval county high schools opted for messages that constituted various forms of religious prayer. The seniors at the remaining 7 schools opted either for no message or for messages that were entirely secular. As the parties have not had the opportunity to develop the record fully for graduation ceremonies following 1993, it is unclear how subsequent graduating classes conducted the message portions of their graduation ceremonies. 4
In June 1993, various Duval County public school students sued the Duval County school system, alleging that the policy embodied in the Reynolds memorandum constituted an establishment of religion and infringed on their free exercise of religion. These students sought equitable relief through a judgment that declared the policy unconstitutional and enjoined the Duval County School Board from permitting prayers at high school graduation ceremonies, and additionally sought money damages. 5 The students also sought to certify their action as a class action. The district court denied the motion to certify the class and granted summary judgment in favor of the Duval County school system, holding that its policy was constitutional. See Adler I, 851 F.Supp. at 451-56. The students appealed, and a panel of this court found that because the students had all graduated, their claims for declaratory and injunctive relief were moot. See Adler v. Duval County Sch. Bd., 112 F.3d 1475, 1477-78 (11th Cir.1997) (Adler II ). The Adler II court also held that the students waived their damages claim on appeal. See Adler II, 112 F.3d at 1480-81.
Appellants brought the instant action in May 1998 against the Duval County school system, again alleging that the policy embodied in the Reynolds memorandum constituted an establishment of religion and infringed on their free exercise of religion. 6 Appellants sought preliminary and permanent injunctive relief against the Duval County School Board from permitting, conducting or sponsoring any religious exercises, prayer and instruction within the Duval County Public School District, including School Board-sponsored graduation ceremonies. Appellants also sought monetary damages and class certification. The district court, at the hearing on appellants' motion for a preliminary injunction, advanced the case on the merits because the action "presents precisely the same claims predicated upon the same constitutional theories or contentions [as Adler I ]; and ... counsel stipulated that the operative facts remain unchanged." Adler v. Duval County Sch. Bd., No. 98-460-CIV-J-10C . The district court denied appellants' motion for preliminary injunction and entered final judgment in favor of the Duval County School Board, holding that the law had not evolved in appellants' favor and that high school graduation ceremonies were designated, limited public fora.
The issue we discuss is whether the Duval County school system's policy of permitting graduating students to vote to have unrestricted student-led messages at the beginning and closing of graduation ceremonies is facially violative of the Establishment Clause. 7
The Establishment Clause of the First Amendment...
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...120. Id. at 1268. 121. Id. at 1266. 122. See supra text accompanying notes 9-88. 123. See 180 F.3d at 1263. 124. See id. at 1264-65. 125. 174 F.3d 1236 (11th Cir. 1999). The rehearing was ordered on June 3, 1999. Id. at 1271. 126. Id. at 1238-39. 127. 505 U.S. 577 (1992). 128. 402 U.S. 602 ......