Adler v. Duval Cty. School Bd.

• Decision Date: 15 March 2000
• Docket Number: Nos. 98-2709,98-2720,s. 98-2709
• Parties: (11th Cir. 2000) 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

Page 1070

206 F.3d 1070 (11th Cir. 2000)

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.

Nos. 98-2709, 98-2720.

United States Court of Appeals, Eleventh Circuit.

March 15, 2000.

Appeals from the United States District Court for the Middle District of Florida.

Before ANDERSON, Chief Judge, TJOFLAT, EDMONDSON, COX, BIRCH, DUBINA, CARNES, BARKETT, HULL, MARCUS and WILSON, Circuit Judges,^* and KRAVITCH, Senior Circuit Judge.^**

MARCUS, Circuit Judge:

At issue today is whether the Duval County, Florida school system's policy of permitting graduating students to vote on whether to select a student to deliver a message wholly of her own choosing at the beginning or closing of a high school graduation ceremony violates the Establishment Clause. Because the Duval County policy unambiguously recognizes the "crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech [ ] [that may contain a prayerful message], which the Free Speech and Free Exercise Clauses protect," Board of Educ. v. Mergens, 496 U.S. 226, 250, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990) (emphasis added), we find the policy constitutional on its face and affirm the judgment of the district court. The total absence of state involvement in deciding whether there will be a graduation message, who will speak, or what the speaker may say combined with the student speaker's complete autonomy over the content of the message convinces us that the message delivered, be it secular or sectarian or both, is not state-sponsored. To conclude otherwise would come perilously close to announcing an absolute rule that would excise all private religious expression from a public graduation ceremony, no matter how neutral the process of selecting the speaker may be, nor how autonomous the speaker may be in crafting her message.

I.

The facts of this case are straightforward, uncontroverted, and laid out fully by the district court in Adler v. Duval County Sch. Bd., 851 F.Supp. 446, 448 (M.D.Fla.1994) ("Adler I "). Invocations, benedictions, and other religious prayers or messages were traditionally offered, by clergy and others, at public high school commencement ceremonies in the Duval County School District. In 1992, the Supreme Court in Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992), held that a Providence, Rhode Island high school principal, acting in accord with school board policy, violated the Establishment Clause by inviting a local clergyman to deliver a nonsectarian prayer at graduation. In response to Lee, the Duval County Superintendent, Larry Zenke, at the behest of Vicki R. Reynolds, the school district's legal affairs officer, issued a memorandum instructing all school officials in the Duval County school system that no "prayer, benediction, or invocation" should be offered at "any graduation ceremonies."¹

In the ensuing months, Superintendent Zenke received a number of letters from students and members of the community discussing the graduation policy. Some of these letters suggested that student-initiated, student-led prayer might be constitutional under Lee, and Zenke directed Reynolds to further research the issue. Reynolds later advised Zenke that it would be constitutional to allow student-initiated, student-led prayer during the graduation ceremony so long as the administration and faculty were not involved in the decision-making process. Zenke then authorized Reynolds to issue another memorandum (the "Reynolds Memorandum"), dated May 5, 1993, to all area high school principals. The memorandum was entitled "Graduation Prayers" and stated:

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 students to direct their own graduation message without monitoring or review by school officials.

This policy never was directly voted on or debated by the School Board.

Instead, at a June 1, 1993 School Board meeting, a motion was made to substitute a "moment of silence" for any student-initiated messages that might otherwise be given pursuant to the graduation policy announced in the Reynolds Memorandum. The motion failed by a vote of four to three. As a result, the Reynolds Memorandum was "left in force with the acquiescence or tacit approval of the Board as its official policy governing the 1993 commencement exercises." Adler I, 851 F.Supp. at 449. In 1993 under this policy, student speakers, at ten of seventeen high school graduation ceremonies, delivered some form of religious message. Notably, at the other seven graduations, there were no student messages at all or the messages were entirely secular in character. There is no tabulation in the record of comparable statistics for subsequent graduations.

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 declaring the policy unconstitutional and enjoining the Duval County School Board from permitting prayers at high school graduation ceremonies as well as money damages. The students also sought to certify their action as a class action.² 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) [hereinafter Adler II ]. The AdlerII court also held that the students waived their damages claims on appeal. See Adler II, 112 F.3d at 1480-81. The Reynolds Memorandum thus remained the operative high school graduation policy for Duval County.

In May 1998, Appellants brought the instant action 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. Appellants sought preliminary and permanent injunctive relief against the Duval County School Board to prevent it from permitting, conducting, or sponsoring any religious exercises or prayer and instruction within the Duval County Public School District, including at School Board-sponsored graduation ceremonies. Appellants also sought monetary damages and class certification.³ The district court, at the hearing on Appellants' motion for a preliminary injunction and with the consent of the parties, consolidated the merits of Appellants' claims with Appellants' preliminary injunction motion pursuant to Federal Rule of Civil Procedure 65(a)(2). The district court then denied Appellants' motion for preliminary injunction and entered final judgment in favor of the Duval County School Board.

Appellants filed a motion for expedited appeal and a panel of this Court heard oral argument on November 16, 1998. The panel reversed the district court's judgment and remanded for further proceedings. On June 3, 1999, we vacated this opinion and granted rehearing en banc.

II.

The central issue presented is whether the Duval County school system's policy of permitting a graduating student, elected by her class, to deliver an unrestricted message of her choice at the beginning and/or closing of graduation ceremonies is facially violative of the Establishment Clause.⁴ Close attention to the operative features of the Duval County policy yields the conclusion that the policy is...