High court's action allows graduation prayer to stand

WASHINGTON (BP)--Prayer and other student speech may continue at high school graduations under a Jacksonville, Fla., policy after a U.S. Supreme Court announcement Dec. 10 that it will not review the case.

The high court allowed the policy to stand by declining to rule on a decision by the 11th U.S. Circuit Court of Appeals upholding a measure by the Duval County School Board. The justices' action -- announced, as usual, without comment -- means the lower court's opinion applies only in the 11th Circuit, which consists of Florida, Georgia and Alabama.

Duval County's board issued a policy in 1993 permitting seniors to determine whether they wanted one of the graduates to give a message at their graduation ceremony. Under the policy, the student selected by his classmates to deliver the message would decide the content without it being previewed or censored by school authorities. The policy does not limit messages to secular ones.

The 11th Circuit first upheld the policy in a 10-2 vote in 2000. It affirmed its decision by an 8-4 margin this year after the Supreme Court directed the appeals court to reconsider its opinion in light of the justices' 2000 ruling against a policy allowing prayers at high school football games in Texas.

"The Duval County policy meets the requirement of being student-initiated, student-led and student-content-determined speech," said Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission.

"Evidently, the Supreme Court agreed with the 11th Circuit that since the word 'prayer' is never mentioned as a specific option of student-initiated, student-led, student-content-determined speech that if the student chose to express his speech in the form of a prayer it wouldn't violate the Constitution," Land said. "I agree. I just wish the justices had taken the case and ruled that way. Then we wouldn't have to be left saying 'evidently' at the beginning of the sentence, since the Supreme Court would have removed all doubt.

"Since the justices did not take up the case, we are left to try to read their collective mind."

Matt Staver, president of the Orlando, Fla.,-based Liberty Counsel, defended students in the case. After the high court's announcement, Staver said in a written statement, "The Supreme Court has clearly stated that students do not shed their constitutional rights to freedom of speech or freedom of religion when they enter public school -- and that includes the graduation podium."

Schools should not begin censoring student speech "simply because the message is religious," Staver said.

Barry Lynn, executive director of Americans United for Separation of Church and State, expressed displeasure with the high court's action, saying in a written release, "Students should not have to sit through a prayer they don't believe in just to get their high school diplomas. The rights of religious minorities should never be subjected to majority rule, whether it's by a graduating class or a school board."

The Supreme Court had sent the case, Adler v. Duval County School Board, back to the 11th Circuit for reconsideration on the basis of the high court's decision in Santa Fe Independent School District v. Doe. In its ruling in that case, the justices voted 6-3 against a policy in a Galveston County, Texas, school district that permitted the high school student body to determine if it wanted a student to speak over the public address system before football games. If so, the students elected the speaker, who determined whether he would pray or give some other message.

At least one difference between the two policies was the Duval County language did not specify an invocation or prayer as an option.

"It is interesting to note that the 11th Circuit voted 10-2 to uphold this policy prior to the Santa Fe decision, and when asked to revisit by the Supreme Court in the wake of its Santa Fe decision still upheld the policy 8-4, believing it was more nondirective than what was forbidden by the Supreme Court in the Santa Fe decision," the ERLC's Land said. "It also differs from the Lee v. Weisman case in that the speech was led by students selected by other students, as opposed to clergymen who were selected to speak to the students by school officials."

In 1992, the justices ruled by 5-4 in Lee v. Weisman a school administration-organized, clergy-led prayer at a graduation ceremony was unconstitutional. That case specifically involved the prayer of a Jewish rabbi at a middle school graduation.

AU's Lynn rejected any notion the high court's refusal to review the 11th Circuit's ruling signaled a change by the justices. "If this 'majority-rules' plan spreads to other states, I think the justices will put a stop to it," Lynn said.


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