JACKSONVILLE, Fla. (BP)–A federal court decision barring public school graduation messages which could include prayer will be appealed, the Duval County (Fla.) school board decided May 18. The Jacksonville-based school board voted 4-3 to appeal an 11th Circuit Court panel ruling, which declared unconstitutional the board’s policy of allowing a two-minute “opening and/or closing message” by a student chosen by the graduating class. The policy, according to the court, is an unconstitutional attempt to “circumvent” federal law and to permit “sectarian and proselytizing prayer.”
The school board decision came after more than three hours of public discussion of the issue, during which students, parents and pastors pled for the school board to seek a reversal of the appeals court’s May 11 ruling. Of the more than 60 people who spoke at the school board meeting, only five opposed graduation messages that could include public prayer.
One student told the board, “If I and my friends have the guts to stand up here and speak, then you should have the guts to stand up to the Supreme Court.”
Among those supporting the appeal was Councilman-elect Lake Ray, who told the standing-room-only crowd, “Our young people need leaders. Today you can show them that we will stand for what is right.”
The school board will first seek a review of the three-member panel ruling by the full 12-member 11th Circuit Court. If that fails, the case could be taken to the U.S. Supreme Court.
The school board’s attorney acknowledged it is difficult to gauge the likelihood of winning the appeal, since every court is different. He advised the board to go ahead and file an appeal if board members felt the ban on student messages was an infringement on students’ freedom of speech.
The appeal was to be filed before Memorial Day, but not in time to allow messages at this year’s graduation ceremonies. School Board chairwoman Linda Sparks and vice chairwoman Susan Wilkinson advocated the inclusion of a moment of silence during the graduation to allow students to privately pray if they so desire. Graduations are scheduled for early June.
Several Jacksonville Baptist pastors attended the school board meeting to support the appeal and to encourage students who participated.
Ken Dyal, pastor of First Baptist Church of Argyle in Jacksonville, sought to make his point by relating an incident from his recent mission trip to Belarus. While visiting a small school in the former Soviet republic, he was asked by a child whether the schools in America prayed. Dyal had to answer “no.” When he left the school, his interpreter told him the teachers were embarrassed to have him visit their sparse classrooms.
“They were embarrassed by their supplies,” Dyal told school board members and others attending the meeting. “I was embarrassed that the United States had turned its back on God.”
David Hill, pastor of Macedonia Baptist Church in Jacksonville, alluded to the words of Patrick Henry, “Give me liberty or give me death,” declaring that not only is it time for homes and churches to pray, but for schools and the nation to pray as well.
Responding to a mother who spoke against graduation prayers because she felt they would offend students who did not share in the Christian faith, Gene Dillon, pastor of New Mt. Zion Baptist Church in Jacksonville, pointed out that the meeting itself began with prayer, and that several students quoted Scripture in their remarks to the board.
“We have exalted the name of the Lord, Scripture was read, a young lady prayed for three minutes and not one person has died in here,” he said. “We all survived.”
The 11th circuit panel, in coming to its decision, cited precedents set in a number of other cases, including the 1992 case Lee v. Weisman when the U.S. Supreme Court ruled that school-sponsored prayer at public school graduations violates the Establishment Clause of the First Amendment.
It was after that decision that Duval County school superintendent Larry Zenke, at the direction of Vicky Reynolds, the school system’s liaison for legal affairs, issued a memorandum instructing school officials to end the practice of having prayer at graduation.
In May 1993, Reynolds, at Zenke’s direction, circulated another memorandum, noting the school board had been “bombarded” with contacts from students and members of the community questioning whether student-initiated, student-led prayer would be permissible.
Reynolds noted that “this area of the law is far from clear at this time” and offered guidelines for graduation “messages” that would not be monitored or reviewed by school officials.
Writing for the federal panel’s majority, Chief Circuit Judge Joseph Hatchett noted, “Although this case is distinguishable from [Lee v. Weisman], where high school principals chose a member of the clergy to deliver a prayer, the fact that the entanglement is less obvious or intrusive does not save the school system’s policy from a facial violation of the Establishment Clause.”
Noting the school system exerts “tremendous control” over other aspects of the graduation ceremonies, Hatchett wrote that the students decided whether to have a message and who would deliver that message “only because school officials agreed to let them decide that one question.”
The court also examined the case in light of the so-called “Lemon test,” a judicial standard requiring that a law have a clearly secular purpose, that its primary effect neither advances nor inhibits religion, and that it does not result in excessive entanglement of the government with religion.
The panel majority determined that the Duval County policy failed the first two points of the test, and that they did not deal with the third. Senior U.S. Circuit Judge Phyllis A. Kravitch concurred with Hatchett. U.S. Circuit Judge Stanley Marcus cast the dissenting vote.
In his dissenting opinion, Marcus questioned the perception of school control. “The majority opinion assumes what it cannot prove — that utterances made on a state platform are automatically transformed from private into public speech.”
Putting the question in a different context, he pointed out, “While she may be selected by a vote … the Homecoming Queen cannot be characterized as … a representative of the state, merely because she holds a ‘public’ position and sits atop the Homecoming float.
“Schools do not endorse all speech that they do not censor,” he wrote.
Marcus concluded that the majority opinion “leaves school officials with only two choices: either eliminate student speech altogether or retain student speech, subject to censorship by school authorities.
“If school officials choose the latter course, they will be left with the unenviable task of identifying the religious content in student speeches for excision; if … they choose the former, they will have deprived the graduation class of any role in shaping its high school graduation and they will have banned all private student expression.”
Jarvis is an intern with the Florida Baptist Witness newsjournal.