American Civil Liberties Union v. Black Horse Pike Regional Board of Education

injunctive process rights. Without due tive process

relief, may violate the due the State It is plaintiffs in the future. of these

rights majority suggest, as the

hardly an answer injunction (presum-

does, limited that a more of the repeat the events

ably an not to order weekend) If fund-

July will suffice. Fourth off, orderly cannot transition

ing is cut attempts by the any additional because

occur again plaintiffs will to move the

State rather than by the threat of eviction

forced by the medical needs

determined in- capabilities of available

plaintiffs and the risk that There substantial

state-faeilities. threat of

hasty made under the decisions ill-considered, poorly

eviction will result endanger placements that in-state

executed plaintiffs. This risk is

the health continuing given the

particularly acute capable ade-

dearth of in-state-faeilities plaintiffs, a dearth that

quately caring for the decade and persisted for more than a the out-of-state unlikely to end before

that is for the of funds to care

facilities run out

plaintiffs. court’s decision to order

The district care was not an to fund transitional

State respectfully I dissent. of discretion.

abuse UN- CIVIL LIBERTIES AMERICAN JERSEY, on Behalf of

ION OF NEW Members; Edward Ross

its PIKE HORSE REGIONAL

BLACK EDUCATION; Highland

BOARD OF Palatucci, School;

Regional High Frank

Principal and Individual His Official Appellants.

Capacities,

No. 94-5233. Appeals,

United States

Third Circuit.

Argued 1995. Jan.

Reargued In Banc 1995. Oct. May

Decided

1473

Argued Jan. MANSMANN, Before: HUTCHINSON McKEE, Judges. Circuit Reargued In Banc Oct. SLOVITER, Judge, Before: Chief BECKER, STAPLETON, MANSMANN, GREENBERG, CÓWEN, SCIRICA, NYGAARD, ALITO, ROTH, LEWIS, McKEE, SAROKIN, Judges.* Circuit THE OPINION OF COURT McKEE, Judge. Circuit We are asked to policy decide whether a adopted by Regional the Black Horse Pike Board of Education that allows vote of the prayer senior class to determine if will be high graduation included in ceremo- nies is constitutional. For the reasons that policy follow hold we that this is inconsistent with the First Amendment of the United Accordingly, States Constitution. we will af- firm, modify, permanent injunction but issued the district court.

I. FACTUAL BACKGROUND Regional The Black Horse Pike Board of (the “Board”) Education “School Board” or longstanding including has had a tradition of a nonsectarian invocation and benediction ceremonies. These prayers historically have been delivered clergy local rotating attempt on a basis in an to afford oppor- different denominations the tunity represented. to be 1993, May the School Board decided policy to reconsider this because of the Su Weisman, preme Court’s decision in Lee v. (1992), wherein the Court invalidated a practice including prayer grad school’s part uation ceremonies. As of the Board’s reexamination, Superintendent of Schools (argued), Tomar, Simonoff, James Katz “Religion tendered a entitled at Grad O’Brien, Haddonfield, NJ, Adourian & for (“Version A”) uation IKFD Exercises” for Appellees. pro the Board’s consideration. Version A Wade, (argued), John D. Wade Ferreri & all hibited ceremonies. P.C., NJ, Springs, Appellants. rejected Laurel .policy The Board and directed * shortly The Honorable William D. Hutchinson was a died on October before the in original panel argu- member of the which heard panel reargument. banc heard January appeal ment in this 1995. He by a member of the not be prepare a second conducted administration the school clergy or staff. holding of parallel that would version Dist., Indep. Sch. v. Clear Creek D,

Jones IKFD, Policy App. at 180. Version Cir.1992). (5th court The F.2d policy also allowed the students to The policy that public school upheld a had Jones they what form decide how would determine for themselves to determine allowed students any, given gradua- if prayer, would be prayer would be delivered or not a whether tion, long process [was] “so as the conducted graduation. at their by duly survey and the elected class officers opportunity to provides pupils with an to the Board presented were policies Two reflection, or prayer, choose a moment of' meeting. version May One at its D IKFD nothing at all.” Version graduating students to decide wheth- allowed printed programs for required further gradua- would be included er explain- graduation include a disclaimer nature of ceremony as well as the ing any presentation given (‘Version D”). pro- other such the views of at commencement did reflect “prayer” but not have allowed posal would Board, District, the School admin- School reflection, “moment of have allowed a istrators, staff, or other students. pupils parents [could] and during which 3,1993, Frank Principal On June Palatucci silently has been about what asked to think Highland Regional High ex- of the School graduate.” is to come for each and what plained the Board’s decision to the students group of students who had App. at 144. A during morning announcements over to address the Board previously asked system. school address After he ex- meeting spoke and attended the this issue plained policy, introduced the he senior of the D. At the conclusion favor of Version poll president explained who that a class unanimously adopted meeting, the Board class, taken of the senior and how would be finally adopted, policy, That D. Version balloting would be conducted. The vote class officers to conduct the senior allowed day produced the taken the next and was graduating class to determine poll following results: 128 students voted moment “prayer, a whether seniors wanted silence, prayer, 120 for reflection/moment reflection, nothing at ah” to be included then and 20 voted to have neither. Students ceremony. App. at 180. graduation in their prayer, volunteered to deliver entitled, “Religion The was at Gradua- class officers selected and senior Exercises,” secretary among began recording as fol- from and the text senior class tion volunteers. those lows: Ross, a member of the Edward On June reading of the Unit-

After recent decisions class, Principal Palatucci approached senior interpreta- Court ed States representative from the requested that a decisions, the Board of Edu- tions of those speak permitted to at the also be ACLU practice long standing cation concludes the condom graduation to safe sex and discuss conducting and benediction invocation Principal Palatucci denied distribution. and at prayer at ceremonies time con- request explaining that the Ross’ legal proper other school functions ceremony permit a would not straints of the following conditions: under the topic request- keynote speaker, and that the Education, Board of administra- 1. The gradu- generally discussed at was not one ed not en- tion and staff of the schools shall ation ceremonies.

dorse, any way promote organize or in prayer at functions. HISTORY II. PROCEDURAL spirit protected speech, the In the 18, 1993, and Edward the ACLU On June must choose to have pupils Complaint attendance in the District Ross filed a they Jersey, which prayer must be of New prayer conducted. Such for the District enjoin any student-led asked the court performed a student volunteer graduation. Complaint preliminary injunction. al- The district leged proposed prayer permanently enjoined that the violated the court the School Board First “conducting Amendment of the United States Con- from school-sponsored gradua- I, Paragraph ceremony stitution and Article 4 of prayer, wheth- include[d] invocation, Jersey New Constitution.1 er a benediction or a App. other form.” at 210. On By Order entered June the dis- April the School Board filed this plaintiffs’ request trict court denied for a appeal. The matter is now before this court injunction. preliminary The court concluded in banc. proposed prayer appropriate was given because it was under circumstances III. OUR SCOPE OF distinguished prohibited it from REVIEW prayer in following Lee v. Weisman. The review We a district court’s deci day plaintiffs emergency filed an appeal grant deny permanent injunction sion two-judge panel to this court where a re- under an abuse of discretion standard. In

versed the district court and entered an or- Union, Trucks, ternational UAW Mack part: der that stated in Inc., (3d Cir.1987). 820 F.2d “An graduation ceremony [T]he ais abuse of discretion exists where the district event; sponsored the fact that the school upon clearly court’s decision rests errone delegate board has chosen to the decision fact, finding ous an errant conclusion of regarding segment ceremony one law, improper application or an of law to graduating the members of the class does fact.” Id. at 95. sponsorship, not alter that not dimin- does case, In this district court did not ish the effect of a on students who render a decision on the merits as to whether do any religious not share the same or plaintiffs permanent were entitled to a in- perspective, and does not serve to distin- junction. Instead, granted the district court any in guish, way, material the facts of this injunction permanent solely a because it be- Weisman, case from the facts of Lee v. lieved it was bound to do so the law of the U.S. 112 S.Ct. 2649 L.Ed.2d [120 467] light in emergency case ruling of a (1992); two-judge panel of granting plain- this court preliminary injunction. tiffs’ motion for a As Now, therefore, appellees, their expressly the district court in stated its or- agents employees, acting and all those der: enjoined in hereby concert with them are hearings might or new evidence Additional conducting sponsored from a gradu- put issues, have a different cast on the but ceremony ation prayer includes a augmented as the record has not been invocation, whether be an a benediction injunc- since the preliminary motion for a any or a in other form. tion, we feel constrained to a enter final App. at 199-200. judgment in accordance with the Third Thereafter, 25,1993. the School Board filed a mo- Circuit’s order of June We make tion this court to preliminary vacate the it clear opinion that the of the Court re- injunction. That motion expressed was denied. Addi- mains that opinion the oral subsequently However, tional motions were filed both regard June 1993. due for in this court judicial the United system,” States Su- our “hierarchical federal preme 29, 1994, Finally, Court. particularly on March reviewing panel where the has order, Court, the district court entered a final con- requires had the same record as the sistent with respect findings the aforementioned order of this us to of the Third court, reversing previous the court’s denial of Circuit. ("This being appealed, repeatedly Neither the decision nor the court declined to address parties, briefs of the address the claim under the argument party that the has not raised in its Jersey Accordingly, New Constitution. we need 28(a)(4).”); required brief as under Rule Fed. R. not reach that issue. See Winston v. Children & 28(a). App. P. Servs., (3d Cir.1991) Youth 948 F.2d state; (citations 29,1994, spirit IKFD “[i]n omit- of does at 3 of March

Order ted). protected speech, pupils free in attend conducted,” ance must choose to have court erred conclud The district However, App. at 180. Version D allowed two-judge so bound. The ing that it was the 128 seniors who wanted verbal emergency the merits on an panel assessed impose upon their their will granting for the under the standard basis 140 of their fellow classmates who did not. injunction2 standard which preliminary —a position recognize The Board’s would have us per granting standard for differs from the so, right plurality ignore to do grant a injunction.3 Its decision to manent right worship in of others to a different injunction was on an as preliminary based manner, inor no manner at all. This we can plaintiffs likelihood that sessment not do because “the individual freedom of merits, on the and neither succeed protected by conscience the First Amend for an actual find constitutes nor substitutes right ment to select reli embraces plaintiffs succeeded on the ing that have gious faith or none at all.” v. Wallace Jaf permanent relief. and are entitled merits 2479, 2487, free, 472 U.S. Indeed, in the record there is no evidence (1985). Therefore, the Board’s applied legal district court ever that the majorities emphasis voting misplaced. injunc permanent granting standard in some “While societies wishes upon an or otherwise based its decision majority might prevail, the Establishment of the merits of the case. assessment of the First Amendment is addressed Clause well-established, however, that It is rejects contingency to this the balance correct, it “if below is must be the decision urged upon us.” affirmed, although court relied the lower S.Ct. at 2660. wrong wrong ground gave rea upon a right speak right Just as the and the Gowran, Helvering son.” speaking complementary from refrain (1937); 82 L.Ed. concept components of a broader of indi- Telecommunications, Inc. v. see also Erie mind, vidual freedom of so also the individ- (3d Erie, 1084, 1089 n. 10 City 853 F.2d ual’s freedom to choose his own creed is Cir.1988). proceed to ad will therefore We right counterpart of his to refrain from matter to determine the merits of this dress accepting by the ma- the creed established error, whether, despite the district court’s jority. injunction properly is permanent was ground. Wallace, 52, 105 sued on some other 472 U.S. at S.Ct. at 2487. practice impermissible An can IV. DISCUSSION constitutionally not transformed into a Rights Speech Free of Students A. The by putting pro a acceptable one democratic improper no upon cess to an use. There should be The Board relies the student whole, question in “that the electorate as a attempt in an to define the referendum otherwise, by could controversy upon the whether referendum impacting as one stant violative of opposed [governmental] to a not order action right speech free as students’ of [Constitution], [government] may constitutionality and the dispute over the Constitution] graduation. [the D not avoid the strictures public high school Version a Pelullo, (3d Cir. govern Gerardi v. 16 F.3d a district court’s decision 2. Four factors 1994), Handling Systems, quoting Inc. v. Heis SI preliminary injunction: whether to issue (3d Cir.1985). ley, 753 F.2d (1) has shown a reason- whether the movant merits; (2) probability of success on the injunction able deciding permanent 3. “In whether injured irreparably issued, will be whether the movant must determine if the the court should plaintiff relief; (3) granting (i.e. whether actually denial of the on the merits succeeded so, greater preliminary proof). will result in even the court must relief If met its burden (4) remedy.” nonmoving party; appropriate CIBA and whether harm to the then consider Co., Inc., Corp. granting preliminary be in the v. Bolar Pharmaceutical relief will GEIGY Cir.1984). (3d public 747 F.2d interest. objections requested by graduating one of the seniors. by deferring to the wishes or City body politic.” question The was not submitted to referen- fraction of the some Center, Living graduating dum of the seniors because Cleburne Cleburne 432, 448, 105 understandably principal 87 L.Ed.2d 313 determined that the omitted). (1985) (citation proposed topic gradua- A that does for was suitable legitimized by arguing suggest that it school’s this can not be tion. We do not speech majority. promotes response request inappropriate. the free to this was However, response illus- we do note protects speech The First Amendment degree trates the of control the administra- by quite different mecha- and speech gradua- tion retained over student Speech protected by insuring its nisms. is D tion. Version was not intended to broaden expression_ pro- full The method for speak graduation, rights of students to worship tecting freedom of and freedom of graduation ceremony nor to convert into religious quite conscience matters is public Capitol Square forum. Review The Free Exercise Clause Cf. reverse.... Pinette, U.S.-, Advisory Bd. v. embraces freedom conscience — -, 2440, 2450 [132 650] L.Ed.2d worship parallels that has close in the (1995) (“Religious expression cannot violate Amendment, speech provisions of the First (1) the Establishment where it Clause specific but the Establishment Clause is a purely private in a occurs traditional prohibition on forms of state intervention forum, designated public publicly an- precise affairs with no counter- terms.”). open equal nounced and to all on part speech provisions. Lee, S.Ct. at 2657. Accordingly, partic- we fail to see how this policy, only providing ular addressed Although necessary it is to recon option continuing prayer preferences one’s own to the of a cile results legitimized promoting after can be choosing representa referendum when one’s speech rights the free of the students. matters, voting upon legislative tives or First Amendment does not allow reli one’s gious preferences compromised in to be this B. Lee v. Weisman manner. degree The of control that school officials very purpose Rights of a Bill was to speech per- retained over the that would be subjects withdraw certain from the vicissi- mitted at is also relevant under controversy, political place tudes of Weisman, Lee v. beyond majorities them the reach of (1992). There, legal officials and to establish them as principal of a middle school invited principles applied to be the courts. rabbi to deliver the invocation and benedic- rights may One’s ... fundamental not be graduation, tion at the school’s in accordance vote; they depend submitted to on the practice. with school principal district The outcome of no elections. gave pamphlet containing a guide- the rabbi Barnette,

Board Educ. v. of giving public prayers lines to be followed in 87 L.Ed. 1628 at civic occasions and told the rabbi that the (1943). prayers should be non-sectarian. Id. at

High graduation graduation ceremony ceremonies at have 2652. The tradition, regarded, by prayers given not been either law or at which the were was held on multiplicity property, parties as fora a of stipulated where views and the any given topic, religious, ceremony secular or can that attendance at the was volun- expressed exchanged. tary. processional, and offi- the School After the students Highland standing cials at representa- Pledge did not allow a remained for the of Alle- speak giance, very tive of the ACLU to about for “safe sex” and the rabbi’s brief invoca- graduation, and condom distribution at as tion.4 ceremony,

4. The Court was unable to determine duration of the or whether he was stage whether the rabbi remained on for the unconstitutional, uniformity. necessarily the School officials ruling prayer In the degree emphasized: “retain a of control over the Supreme Court the religious exercise cials These dominant confines of our direct the performance of a formal at facts mark decision: promotional ^[1] and control State grad- offi- Lee, precise speeches, dress, and the decorum of the students.” contents the timing, the the 112 S.Ct. at 2660. movements, program, the the secondary Principal schools. Palatueci testified before the dis- for uation ceremonies ^[2] Even for those students who object trict court that any student who attempted to exercise, graduation give their attendance an unscheduled address at the sponsored reli- participation in the state contravention of administrative direction available, activity police in a fair and real sense if gious would be arrested were though district does obligatoiy, majority graduating the school if even students require attendance as a condition previously approved. had The district court receipt diploma. of the carefully questioned principal about what majority if he would do of the student Accordingly, 112 S.Ct. at 2655. Id. body, approval, without administrative voted (1) state’s control of the must examine we speaker who would not be included have (2) ceremony, and the students’ program introduced but would be ceremony participation in the here. coerced give the valedictorian allowed one speech. responded: “I principal minute The argues that Board School If happen.... couldn’t allow that to I have significantly distin officer, referendum here student police App. I have arrested.” her disagree. It ease from Lee. We guishes Thus, this the school officials’ involve- course, is, entangle true that the state’s limited, unintru- ment and control is not as graduation prayer in Lee was ment with the sive, suggests. neutral the School Board obvious, than pronounced, and intrusive more ceremony Delegation aspect of one of the involvement here. District’s School plurality to a of students does not constitute principal prayer would be decided the absence of school officials’ control over ceremony, clergy chose the included graduation. ques Students decided prayer, person give who would and even graduation only tion of because content part determined agreed school officials to let them decide clergy guidelines by giving for the the invited Although delegation question. one here 587, 112 prayer. Id. at substance of the may appear many to no more than a then, that the at 2655. It is no wonder deciding whether neutral means resulting prayer imprint “bore the graduation, included in the does should be Id. at State.” Board from the reach not insulate School Although the state’s involvement here must the First Amendment. “[C]ourts evident, certainly the student referen- less place keep in mind the fundamental both imprint the state’s from dum does not erase in our Clause held the Establishment High- graduation prayer. Graduation this myriad, and the subtle constitutional scheme School, Regional High like land val ways in the Establishment Clause which school, sponsored nearly other is a school Donnelly, Lynch can be eroded.” ues sequence officials decide the event. School 668, 694, 104 speakers on the of events and the order (1984) (O’Connor, J., concurr typically are held program, and ceremonies ing).5 property at no cost to the students. on school Furthermore, D affirms the text Version atmosphere High- at App. at 118-26. The adopted response in to Lee. The by that it was graduations is characterized order land’s 602, 2105, (1971), 745 aspect ceremony. 91 S.Ct. 29 L.Ed.2d any involved in other 583, inquiry to our Id. at S.Ct. at 2653. is also relevant 112 but the observation here. referring to an “endorse- 5. Justice O’Connor was Kurtzman, analysis Lemon v. ment” under attending purpose reexamining group in its students to stand as a avowed Board’s or, least, option might respectful at maintain policy provide to an silence was gradua- during the “longstanding tradition” of Invocation and Benediction. allow the indirect, prohibitions pressure, though of that This subtle and prayer to survive the tion any compulsion.... can be as real as overt decision. We believe here, by high age, state officials the dissenter of school who [F]or the control exercised though degree present perception in than was has a reasonable that she is different Lee, sufficiently require being by pray in in distinct to forced the State to is not allow, under the “first dominant manner her conscience will not different result injury is ... real. fact” of Lee. Id. at at Even appearance participation should be avoided heightened setting. in are concerns this Id. at S.Ct. at 2656

“[TJhere (students protecting of conscience from “had no real alternative which with freedom elementary pressure in the would have allowed to [them] subtle coercive avoid fact appearance participation”). secondary public schools.” Lee. 505 U.S. or find no differ We Here, hypothetical in dissenter Lee is the coercion in ence whatsoever between Lee replaced by 140 students who voted not to high gradu A and the coercion here. school public high have a formal at their distinguishable ation is from forums such as graduation. school The Board’s legislative session where has been required have each of those 140 students to Chambers, upheld. v. See Marsh (or participate very at the least maintain 3330, 3338, 77 L.Ed.2d silence) respectful engaged as in others stu (1983). Legislators “may presumably beyond that, worship. dispute dent-led “It is absent from such and cere themselves minimum, at a guarantees the Constitution incurring penal monial exercises without government may anyone not coerce ty, direct or indirect.” Dist. School support participate or its exer Abington Twnshp. Schempp, 299- Here, cise.” Id. S.Ct. at 2655. Lee, espe “[t]he exercises (1963) (Brennan, J., concurring). The same cially improper because the State has ev high cannot be said students their ery practical compelled sense attendance and graduation. school participation explicit religious in an exercise singular importance every at an event of gradua- “The fact that attendance student, objecting one the student had no voluntary legal is ceremonies sense real alternative to avoid.” Id. at religious does not save the exercise.” Highland 2661 Students at had to at 2660. The worship either conform to the model com objector’s presence graduation at his or her plurality manded or absent them compels participation observ- thereby forego selves from poll ance decreed the results of is important one of the most events in their This, sanctioned under Version D. the Con- improper That lives. choice to force stitution does not allow. upon dissenting students. nothing What to most believers seem say teenage [T]o student has a real request more than a reasonable that the high gradu- choice not to attend her respect religious prac- nonbeliever their ation is formalistic the extreme.... tices, may appear in a school context to the Everyone society knows that in our and in attempt nonbeliever dissenter to be an our culture is one employ machinery State significant of life’s most occasions. A religious orthodoxy. enforce a school rule which excuses attendance is ... The undeniable fact is that point. beside the supervision school district’s and control 595, 112 high graduation ceremony places school Id. at at S.Ct. 2659. “The Constitu public pressure, peer pressure, religious as well as tion forbids to the State exact con-

1481 price young graduates object as the of attend where who formity from a student Id. at graduation.” ing high own school his holding induced to conform. No th[e 596, 112 S.Ct. suggests per- Court] a school can compel participate suade or a student to Amendment is a shield The First religious being exercise. That is done interfering from with prohibits that the state here, and it is forbidden the Establish- right worship as he or she person’s Clause of First used ment Amendment. pleases. It is not a sword can be join religious in a compel others to observ Lee, 505 U.S. at at S.Ct. 2661.6 sponsored “The First ance at a state event. is, course, It of true that the often refer- religious if has lost much Amendment separation”7 enced “wall of between church longer and the atheist are no to be follower recently and state has been as described jus judicially regarded equal as entitled to However, Clauson, “metaphor” reality.8 more than tice under law.” Zorach v. 343 U.S. if 679, 687, metaphor even the “wall” is more than 306, 320, 72 96 L.Ed. 954 mortar, (Black, J., sufficiently dissenting). unyielding prevent being from part included as a formal question presented is whether a The sole graduation ceremony of the under D may be conducted at a Version exercise ceremony IKFD.9 circumstances recognize petitioners We the student in Lee erected a wall 6. between church and state. That opposed high kept high impregnable. students as wall must be were middle school We However, breach.”). approve slightest students. that distinction does school could not here, analysis Everson, require result a different Since the Court has referenced the in Lee addressed “the dissenter of metaphor wall as on numerous occasions. See Lee, 593, age_” 505 U.S. 112 S.Ct. 112 S.Ct. at 2662-63 J., 2658. (Blackmun, Jefferson); concurring) (quoting 673, ("The Lynch, 465 U.S. at 104 S.Ct. at 1358 Educ., 1, 16, 330 U.S. concept separation figure 7. See Everson v. Board of a 'wall' of is a useful 504, 511, (1947). 91 L.Ed. 711 speech probably deriving from views of Thom- metaphor as Jefferson. The has served as a 673, Lynch, 465 U.S. at 104 S.Ct. at 1359. reminder that the Establishment Clause See forbids anything approaching an established church or it.”) (footnote omitted); Den, v. Larkin Grendel’s separation'' 9. The "wall of between church and Inc., 505, 510, 459 U.S. Reynolds state was first mentioned in v. United (1982) ("the States, 145, 164, (1878), concept L.Ed.2d 297 of a 'wall' of 98 U.S. 25 L.Ed. 244 signpost”); separation quoting reply is a useful McDaniel v. Thomas Jefferson’s to committee 618, 637, 1322, 1333, Danbury Baptist Paty, of the Association: 435 U.S. 98 S.Ct. J., (1978) (Brennan, concurring) Believing you religion with is a matter (“Our interpreting decisions the Establishment God; solely which lies between man and his maintaining Clause have aimed at erect the wall that he to none for account other his owes state.”); church Committee Pub- between for worship; legislative faith or his Religious Liberty Nyquist, v. lic Ed. and 756, powers government reach actions 2955, 2959, 37 L.Ed.2d 948 only, opinion, contemplate and-not with —I however, (1973) ("Neither, may it be said that sovereign that act the whole reverence metaphoric separation’ ‘wall of be- Jefferson's people declared American which that their winding tween Church and State become ‘as legislature respecting should “make no law serpentine designed as the famous wall' he for prohibiting an establishment of omitted). (citation University Virginia.”) thereof," building the free exercise thus However, suggested it has been that the also separation wall of between church and analogy to a "wall” not be far off the mark. State. Schempp, See 83 S.Ct. at 1568 Reynolds, accepted the Court Jefferson's (First) (" purpose ... was to ‘The Amendment’s observations "almost as an decla- authoritative complete permanent separation of create a scope ration of the and effect" of the First spheres religious activity and civil authori- Similarly, Id. in Everson the Amendment. _' Vitale, ") (citation omitted); Engel ty approvingly cited Jefferson’s statement in 1261, 1264, 8 L.Ed.2d laying the foundation its Establishment (1962) ("[P]etitioners argue, use the State’s Clause doctrine. See 330 U.S. Jefferson, system ("In Regents’ prayer in its the words of the clause separation against religion by breaches the constitutional wall of was in- establishment of law agree separation Church and State. We with that ‘a between between tended to erect wall Watkins, contention....”); State.'") (citation omitted); Torcaso v. id. at Church ("The 488, 491, 81 S.Ct. 67 S.Ct. at 513 First Amendment has 1482 Dist., Indep. 70 F.3d D Doe v. Duncanville Sch. required under Version

The disclaimer (5th Cir.1995), again the court addressed separa- 402 recapture some of the help to does schools, prayer public in limits of school that has been church state tion between of extra-curricular activi- grad- over the but in the context by the state’s control obscured However, academic the Board cannot sanction ties for which students received uation. participation in a observ- The court held that the school dis- credit. coerced by disclaiming responsibility employees merely practice allowing its to ance trict’s ceremony. pro- merely participate prayers Given in at the content initiate or Amendment, it in the First games practices tections inherent and basketball basketball gradu- quite possible parents of some The court distin- was unconstitutional. precisely ating public chose education by noting graduation seniors guished Jones compelled children would not be so that their prayer occurred at a “once-in-a-lifetime event Yet, religious beliefs of others. to follow the appropriately marked with a that could be exactly D allows. that is what Version in were prayer,” that the students Jones seniors, challenged and “that mature recognize Appeals for that the Court of We and non- prayer was to be non-sectarian a result con the Fifth Circuit has reached proselytizing.” Id. at 406-07. today. trary the one we reach See Jones Dist., Indep. Sch. 977 F.2d 963 v. Clear Creek by persuaded are not these distinc- We (5th denied, 967, 113 Cir.1992), 508 cert. clearly Lee established that tions. (1993). Indeed, S.Ct. L.Ed.2d justify event” does not al- “once-in-a-lifetime earlier, High as stated the administration at lowing public school to authorize collective promulgated pursuant D to the land Version prayer under the circumstances of that case. develop Board’s instruction to contrary, significance of that To the parallel holding We are Jones. weighed heavily in “onee-in-a-lifetime” event not, however, persuaded by that anal court’s pre- invalidating prayer. It was favor challenge ysis. also involved a to a Jones cisely graduation because was “once-in-a- they if policy that allowed students to decide lifetime” event that students were denied wanted at a school’s ceremony option foregoing ceremony. upheld poli court The Jones religious scruples. compromising avoid their practical cy acknowledging while that “the Lee, at See decision, light result of viewed [its] Similarly, 2659-60. the Court Lee was majority of can do what the is that a students maturity high not convinced that the level of acting incorpo cannot do to State its own school students immunized them from the public high school rate participation. coercion endemic coerced ceremonies.” Id. (“[F]or Id. at at 2658 recently ruling high age, That court reaffirmed that dissenter of who has rea- Dist., Ingebretsen perception being that she is forced v. Jackson Public Sch. sonable (5th Cir.1996) (affirming pray the State to in a manner her con- 88 F.3d allow, enjoined injury is no less order that enforcement of a Missis- science will not real.”). Indeed, sippi allowing prayer compulsory few would doubt the influ- statute events, noncompulsory “except peer pressure upon high children in ence of nonseetarian, Furthermore, not nonproselytizing student ini- school. we are inclined voluntary analysis merely because D high tiated school com- alter our Version Jones_”). expressly proselytization. allow mencement as condoned does not Jefferson); case, (quoting quoting the First Amendment Everson said in Everson 420, 443, Maryland, Church and State McGowan v. has erected a wall between 1101, 1114, (1961) (same); impregnable.”); kept id. which must be J., Zorach, (Frankfurter, (“There S.Ct. at 474 concur- at 683 ring) ("Separation separation, slightest means not some- cannot be the doubt the First describing philosophy thing metaphor in that Church less. Jefferson’s Amendment reflects the speaks separated.”); and State rel. the relation between Church and State should be Illinois ex Educ., separation,’ easily of a fine line a ‘wall of McCollum Board of (1948) ("[A]s overstepped.”). 92 L.Ed. 649 we

1483 ACLU, Greater C. Lemon v. Kurtzman County Allegheny v. See of 606-09, 573, 109 Chp., 492 U.S. Pittsburgh Kurtzman, In Lemon v. 403 U.S. 3107-09, 106 3086, 472. L.Ed.2d 602, 2105, (1971), 91 S.Ct. 29 L.Ed.2d 745 Supreme part Court announced a three test Instead, reasoning of the Court we find government practice if a determine of in Harris v. Appeals for the Ninth Circuit fends the Establishment Clause. Under (9th 241, 41 F.3d 447 Dist. No. Joint Sch. Lemon, government practice regarding re Cir.1994) There, persuasive.10 more be ligion not offend the will Establishment challenged a school district’s plaintiffs (1) (2) purpose; Clause if: it has a secular its allowing graduating seniors to vote on principal primary effect neither advances included in their prayer should be whether (3) religion; nor inhibits does not ceremony. The court concluded entanglement gov create excessive of the challenged practice violated the Es that the religion. ernment with Id. at 91 though any gradua tablishment Clause even S.Ct. at 2111. “The” Leman test has been initiated, have to be select test,11 although referred to as one the case ed, by students. and delivered suggests compilation itself it is a cannot allow the school district’s dele- We approaches several that have been used in the school gate to make decisions conducting an inquiry under the Establish make. the senior district cannot When ment Clause.12 Justice O’Connor has ob power given plenary class is over state- “setting unitary served that forth a for test sponsored, state-controlled event such as may broad set of cases sometimes do more just graduation, it as con- has, is good.... harm than Lemon with some by strained the Constitution as the state justification, been criticized on this score.” would be. Kiryas Village Board Educ. Joel Sch. — Grumet, -, -, Dist. v. 114 Id. at 455. (1994) 129 L.Ed.2d 546 (O’Connor, J., at-, faculty concurring);

The court noted that members and id. (“[I]t (O’Connor, J., concurring) supervised administrators still and controlled S.Ct. at 2500 graduation ceremony, dis- that the and the school seems me case law will better be Thus, event. able to evolve ... if it is freed from the trict assumed the cost influence.”). rigid offended the Estab- Lemon test’s state’s involvement Neverthe- less, “[T]hat lishment Clause. at 454-55. the framework of Lemon remains. Id. Wallace, 63, officials cannot divest themselves of 105 S.Ct. (“Lemon (Powell, J., concurring) responsibility by allowing the v. Kurtz- constitutional proved identifies standards that have students to make crucial decisions should man analyzing case both in surprising.... Elected officials cannot useful case after by putting and in those of other courts. It avoid constitutional mandates our decisions majority majority only In- test a them to a vote.” Id. 455. coherent (citation omitted); deed, adopted.”) vitality if of our fundamental liber- Court has ever ability inspire Public Educ. and upon ties turned their see also Committee for 756, majority, longevity Religious Liberty Nyquist, v. support of a of our 2965, rights” “inalienable would be controlled 93 S.Ct. political pas- (applying the “now well-defined three-

the ebb and flow of and social — Lemon) Joel, Kiryas part test” sion. (refer- Supreme granted 11. 505 U.S. at 10.The certiorari Har- ris, three-part ring Clause test to "the Establishment judgment vacated the and remanded the case ”). set forth in Lemon Appeals to the Court of for the Ninth Circuit with as moot. Joint directions to dismiss case — U.S.-, Harris, begin Sch. Dist. No. 241 v. "Every analysis in this area must with (1995). The in- 132 L.Ed.2d of the cumulative criteria devel- consideration regarding many years. mootness made it unneces- oped structions Court over Three such cases_" sary gleaned Court to address the sub- from our Lem- tests on, Appeals. holding stantive of the Court of ” (Blackmun, J., Brody Spang, at-, to voice their views.’ at 2495 (3d Cir.1992) (citation (“I gen omit- concurring) remain convinced F.2d ted). validity principles stated D is no different this re- of the basic Version eral Lemon, testimony guided Principal this Court’s Es as to spect. which have Palatucci’s any in over 30 decisions to arrest student who tablishment Clause his readiness cases.”). attempt graduation might speak to at without . (even if prior approval of the administration Lemon test has been the sub approved) graduates have demonstrates years, in recent and its ject of critical debate D to degree to which Version is intended vitality ques called into continuing been purpose speech. secular of free further the Supreme by members of the Court analysis is, course, Prayer religious speech, in see noticeable absence from the of its (includ 421, 424-25, Vitale, 82 Engel of the Court’s recent decisions v. 370 U.S. some (1962). Lee).13 Nevertheless, 1261, 1263-64, Lemon remains ing land, obligated However, guarantee of the and we are to of free the law the constitutional by a speech it until instructed otherwise not secularize Version D’s at- consider does majority long standing practice Thur tempt preserve Court. See to “the Lines, Rand, conducting Inc. v. Jordan K. ston Motor invocation and benediction 1343, 1344, Ltd., 533, 535, 103 prayer at ceremonies.” The Su- (1983) (“only Supreme] perintendent [the L.Ed.2d 260 testified that when 75 Schools may precedents” previously speak overrule one of its allowed to students were occurs, precedent good graduation, speeches and until such “is still had to re- their . law”) approved by faculty viewed and adviser official; other school students were not al- Purpose A Secular they speak topic to on whatever chose lowed speeches and the content of student argues D The Board that Version —even App. when authorized —was monitored. purpose recognizing has the secular Yet, prohibits D offi- 132-33. Version rights speech to free and their de students’ reviewing cials from the content of stu- the occasion. As we noted sire to solemnize prayer may given. dent-led that This earlier, proclamation pur Board’s only approach applies religious to “hands-off’ speech pose promoting free must be speech, possi- and is stark contrast policy’s emphasis in context with the viewed bility of arrest that confronts a student who pray allow providing option gives presentation prior without secular er to be delivered at after Lee. is, however, con- authorization. The dualism past formalism.” 505 “Law reaches sistent with the Board’s desire to avoid one 112 S.Ct. at 2659. We have U.S. of the obstacles invalidated the already explained why the assertion Board’s (the Lee administration’s control over the purpose speech of free does the secular prayer). content of the “ supra part not control. See IV.A. ‘Gradu- addition, permits D have never served as fo- Version a student to ation ceremonies discussions, sectarian, give proselytizing If a rums for debate or or as a address. give through varying groups student were to decide to such an ad- forum which allow Grumet, ("Our concuixing) prior Kiryas have used the 13. See Board Educ. Joel v. cases -U.S.-, guide 546 three-part 129 L.Ed.2d test articulated in Lemon as a Weisman, (1994); Lee 505 U.S. at 112 v. detecting forms of unconstitutional these two 2655; Chambers, U.S. S.Ct. at Marsh 463 entirely government action. It has never been (1983). 77 - See clear, however, parts how the three of the test Joel, at-, Kiryas S.Ct. at also 114 principles to the enshrined in the Estab- relate J., (O’Connor, ("|T]he concurring) slide Clause.”) (citation omitted); Mueller v. lishment away unitary approach from Lemon's is well Allen, Wallace, way.”); under (1983) (”[0]ur cases have also L.Ed.2d (O'Connor, J., concurring provides emphasized [the test] Lemon ‘no ("the judgment) standard announced in Lemon dealing helpful signpos[t]' than with [a] more refined”); Lynch, should be reexamined challenges.”). Clause Establishment J., (O’Connor, U.S. at 104 S.Ct. at 1367 legal system); Schempp, “autho see a student referendum also dress after 223-24, 83 S.Ct. at 1572-73. prayer, the administration verbal rized” violating its own could not halt it without Furthermore, assuming arguendo that occur, proselytizing policy. If this were to D purpose Version serves the secular of so- degrading reli (perhaps even other lemnizing graduation, one’s we believe does con delivered a forum gions) would be constitutionally impermissible so man- system by the Board. “A trolled School devoutly religious ner. who are Students right proselytize reli which secures the may something feel that guarantee must also gious causes put should be to a vote. Such students right to to foster such concomitant decline objection even have a to such a vote Wallace, concepts.” 472 U.S. at S.Ct. therefore, may, and to refuse vote out of at 2487. Version D fails to achieve this religious puts D conviction. Version such balance. impossible students on the horns of an dilem- by forcing ma them to doing chose between argues Board also that the inclusion of The religious violence to their own beliefs and graduation, are prayer solemnizes the but we voting, abstaining thereby risking or and that why graduation would unable to understand may provide margin their forbearance of if students not less solemn were victory for a those with different permitted prayer, to vote for a moment of preference. Regardless of how the referen- graduation. or no observance at silence out, policy dum comes this state has forced graduate year Surely students who a impossible, such a student into an imper- and may prayer' students chose to have no where missible, Engel, choice. Accord at U.S. a (“The at all would think their to be 431-32, 82 S.Ct. at 1267 Establishment ,as event, expression solemn and is doubtful prin- Clause thus stands of ciple part on the of disagree Board would with that assessment. the Founders of our personal, Constitution that is too too approved religious The Court has sacred, holy, permit too to its ‘unhallowed legis- opening of invocations solemnize State].”). perversion’ by [the Still other stu- Marsh, sessions, 795, lative see predicament dents face a similar be- (a (1983) easily at 3338 context they are out cause atheists and refuse vote distinguishable public from a right.14 of conscience —as is their Such a supra). as noted The Court message choice “sends a non- Hobson’s upheld religious as the also references such outsiders, they adherents that not full Thanksgiving “governmental declaration of political community....” of members public holiday; printing a ‘In We as God 688, Lynch, 465 U.S. at coins; opening Trust’ on court sessions (O’Connor, J., concurring). The Constitution and this with ‘God save the United States message, just as it forbids forbids ” 693, Lynch, 465 honorable court.’ procedure policy. this authorized (O’Connor, J., concurring). at 1369 However, policy we do not think the before (2) Religion of The Endorsement merely by pro- us can be saved the Board claiming solemnizing that the serves a prong of Under second Graham, 39, purpose. See Stone Lemon, government practice can neither advance, religion. nor inhibit This means (posting the Ten on the Commandments challenged practice must “not have school classrooms violated the walls communicating message the effect of purpose prong despite of Lemon the state’s government disapproval endorsement or purposes teaching secular the val- avowed Lynch, religion.” 692. This conveyed by ues the Ten Commandments charac endorsement test has at times been demonstrating part parcel as of the Lemon their connection to the terized that, here, required App. to vote on this issue. 14. The record establishes at least one he should student did vote because he did not believe express some kind of subtle separate and titious effort test,15 times as and at other advocacy particular “the endorsement reli- governmental Whether of a apart from it.16 under Lemon or inquiry part message.” test” Id. at 104 S.Ct. at gious it, import apart from the separate inquiry that the “de- The Court felt creche deter- same. We must the test is the origins historical of this tradi- picted] whether, totality of the cir- under the mine long recognized as a National tional event conveys cumstances, challenged practice Holiday.” Id. disfavoring religion. favoring or message again Allegheny, the Court addressed analysis, endorsement question under “The constitutionality displayed of a creche short, a reasonable observer is whether There, city’s holiday part of a celebration. practices as a longstanding view such Lynch, located on unlike in the creche was particular religious disapproval his or her choices_” county court the Grand Staircase Allegheny, 492 U.S. (O’Connor, J., 109 S.Ct. at 3093. concurring). house. at 3121 Thus, display ob a fence viewpoint of the reasonable was also surrounded nonadherent) (adherent helps us poinsettia server floral frame and included “principal primary if trees, to determine display evergreen small but unlike advances nor in one neither [is] effect Lynch, figures not include of Santa in did Lemon, at religion.” 403 U.S. hibits Claus, reindeer, tradi or other decorations 2111; see also School Dist. S.Ct. tionally aspects of associated with the secular Ball, Rapids v. Grand 580-81, at 3094- Id. at 109 S.Ct. Christmas. (1985). 3216, 3226, 87 L.Ed.2d 267 105 S.Ct. 95. The Court noted that the location the ‘history ubiq any inquiry, “the In such Alleghe creche on the Grand Staircase of the uity1 practice because it of a is relevant ny County ‘main’ and Courthouse —“the in a rea provides part of the context which building part’ ‘most beautiful of the that is evaluates whether a chal sonable observer county government,” the seat of id. conveys lenged governmental practice a at 3104—would make it almost 109 S.Ct. religion.” message Id. at of endorsement impossible reasonable viewer 630, 109 at 3121. S.Ct. occupie[d] “think that it this location without importance of the context of a chal- approval govern support lenged practice comparing is illustrated 599-600, Id. at at 3104. ment.” Lynch holding in with the Accordingly, display the Court ruled that the Lynch, In holding Allegheny. in the Court impermissible of reli was endorsement city held that a did not offend the Establish- gion under Lemon. by including depicting ment Clause a creche Lynch government may teaches that cele- scene, figures Nativity along with other form, manner and brate Christmas some traditionally with and decorations associated way not in a that endorses Christian but Christmas, display pri- in its Christmas Here, County Allegheny doctrine. park shopping in the downtown district. vate transgressed this line. It has chosen to at 1366. In addi- 465 U.S. at way celebrate Christmas in a that has the Nativity figures associated with the endorsing patently Christian effect scene, the creche contained “a Santa Claus message: Glory to God for the birth of ..., house, candy-striped poles, a reindeer Lynch, and the rest tree,” Jesus Christ. Under figures and numerous other Christmas cases, clown, nothing required elephant teddy of our more is including a bear. Id. at at 1358. Notwithstand- a violation of the Establish- demonstrate creche, ing religious significance of the ment Clause.

the Court reasoned that viewed “[w]hen 601-02, 109 at 3105. Id. Holiday proper context of the Christmas However, upheld city’s dis- season, the Court apparent that it is the inclusion placed surrep- play of a menorah next to a purposeful of the creche is Chanukah [not] 631-32, 690-91, Allegheny, Lynch, 492 U.S. at 109 S.Ct. 15. See 104 S.Ct. at 16. See J., (O’Connor, concurring part J., at 3121-22 (O'Connor, concurring). 1368-69 judgment). concurring in the Bullock, liberty, sign saluting all Inc. v. tree and 109 S.Ct. Christmas (1989) (Black 890, 906, 907, just City- located outside the 103 L.Ed.2d of which were mun, J., concurring in judgment) (“gov County Building; Id. at so, religious ernment not favor doing the Court reasoned: belief over 3115-16. adopt “preference disbelief’ or for the dis question for relevant Establishment [T]he ideas”). semination of the combined purposes is whether Clause tree, sign, and the meno- display of the required by The disclaimer that is Version endorsing rah has the effect of both Chris- weigh D does position favor the Board’s faiths, simply or rather tian and Jewish However, analysis. under a Lemon it does recognizes that and Cha- both Christmas weigh heavily so as to neutralize the winter-holiday part the same nukah are counterweight advantage season, which has attained a secular status gives religious speech speech. over secular society. interpretations in our Of the two disclaimer, Despite printed the reason- display, particular of this the latter seems help able observer here could not con- but plausible.... far more clude that Board favors the inclusion of Accordingly, Id. at prayer. the reasonable observer would not necessari- every “[N]ot law that confers an ly interpret display as an endorsement of ‘remote,’ ‘indirect,’ ‘incidental’ Christianity and Judaism. benefit is, alone, upon [religion] for that reason con say the same of D. We can not Version stitutionally Nyquist, invalid.” Viewing “longstanding init context with the (citation omitted). 771, 93 S.Ct. at 2964 attempts perpetuate Lee tradition” it after However, provides D Version a benefit that certainly the reasonable non- leave “indirect,” “remote,” is neither nor “inciden impression that or her adherent with the his Supreme tal.” The Court never counte religious disfavored. This is choices were practice requires a that nanced some mem where, here, particularly prayer true community of a bers to subordinate their conducted at would have been majority. religious preferences to those of a though majori- upon plurality even a based Rather, Clause, Establishment at the “[t]he prayer.17 ty of voted not to have seniors least, very prohibits government ap from Although it is that Version D does not true pearing position questions of to take a prevails any given require the view that ‘making religious belief or from adherence to year prevail subsequent years, it is any way religion person’s relevant in to a partic nonetheless true that the effect of the ” standing community.’ Alle political any given year ular that is offered 593-94, gheny, at 109 S.Ct. at 3101 U.S. religion dis will be to advance and coerce (quoting Lynch, 465 at S.Ct. at U.S. Wallace, senting v. students. See Jaffree (O’Connor, J., concurring)). Cir.) (“The (11th primary F.2d 1534-35 Although Supreme of Court has allowed effect of is the advancement one’s beliefs.”), denied, reh’g religion, see Cor religious 713 F.2d 614 certain accommodations (11th Cir.1983), aff'd, poration Latter 466 U.S. Church Jesus Christ of of (1984). Amos, 327, 336-37, day v. 483 U.S. The Constitu Saints 2862, 2868-69, 97 L.Ed.2d 273 “prohibition against governmental tion’s en exempting religious religion ‘preelude[s] govern (upholding law dorsement of Zorach, VII); convey 343 U.S. conveying attempting employers from from Title ment 314-15, message religion particular (upholding at 684-85. stat or a reli S.Ct. ” whereby pub utory program gious preferred.’ is favored or Alle “released time” belief during the school gheny, at 3101 lic schools release students education), at 70, Jaffree, day religious (quoting to receive off-site Wallace U.S. 2497); principle Monthly, is not a without see also Texas “accommodation majori- hiring requiring pointing the vote and an absolute 17. In out one of the more obvious mala- us, policy dies of we do not mean to before ty- suggest that the can be saved restruc- —Joel, at-, religion question. a much closer As not- Kiryas limits.” —is earlier, involvement here is far “[has] at 2492. ed the state’s hinted that an otherwise unconstitu- entanglement present never that was less than the political power to a reli- delegation However, tional in Lemon. because we find religious gious group could be saved as D of IKFD violates the first Version at-, Id. 114 S.Ct. at accommodation.” Lemon, prongs not determine if two we need explained in Lee: Souter 2493. As Justice prong. it also violates the third Religious complain students cannot

omitting prayers from their V. CONCLUSION would, sense, ceremony realistic spiritual callings. To be their ‘burden’ closing, emphasize difficulty we sure, many invest this rite of of them and posed the issue that we confront here spiritual significance, but passage with intensity sincerity persons on both may religious feelings they express their religion litigants sides. Issues of touch ceremony. it before and after the about interested observers of the law as few other may organize privately spon- They even example, issues can. For one the students , they if desire the com- sored baccalaureate D opposed who Version testified before the Because pany of like-minded students. threatening district court that he received they accordingly no for the ma- have need threatening letters in his school locker and beliefs, chinery affirm of the State to their telephone coming calls at forward home after government’s sponsorship App. in this case. graduation ceremony is most reason- ably understood as an official endorsement to, of, images References religion_ throughout society. to be found this See 629-30, 112 (Souter, at 2677 Zorach, 72 S.Ct. at 683- J., concurring). Yet, prevalence beliefs Whatever accommodation imagery cannot erode the state’s obli- government require, it is clear neutrali gation protect spectrum the entire of reli- ty religion still is hallmark of toward gious pious from the most wor- preferences —Joel, Religion Kiryas Clauses. See shipper to the most committed atheist. (“A at-, proper respect preferences Those business of the and for both the Free Exercise the Estab- individual, not the state nor compels pur- Clauses the State to lishment schools it maintains. First Amendment The ‘neutrality’ religion, sue a course of toward does not allow the state to erect a favoring neither one over others nor only respects religious popular views that are collectively religious adherents over non- largest majority can li- because not be adherents.”) (internal quotations and citation impose religious preferences censed to its omitted). justified D can not Version minority. upon the smallest ac- an accommodation because seeks to parameters We need not now address the preference at the ex- commodate some beyond prohibitions precise of these thereby pense of others and crosses the re- questions specific policy raised before quired neutrality. line of “The First enjoined gives right us. district court’s order Amendment no one the conducting a pursuit that in of their School Board “from school- insist own interests ceremony sponsored graduation that includes others must conform their conduct his invocation, prayer, own necessities.” Estate Thorn- whether it be an a bene- Inc., Caldor, App. ton v. or a other form.” diction (1985) (in- context, 86 L.Ed.2d 557 In we understand the dis- omitted). quotations school-spon- ternal and citation trict court’s order to foreclose involving an invoca- sored service (3) Entanglement Religion Excessive With tion, prayer pursuant to benediction or read, affirm the IKFD Version D. As so we prong The third of the Lemon test —no entanglement government judgment with of the district court. excessive analysis dissenting, three-part Establishment Clause ar- MANSMANN, Judge, Circuit Kurtzman, NYGAARD, ALITO and ticulated Lemon v. by Judges joined (1971), I 29 L.Ed.2d 745 ROTH. challenged would hold that the defendants’ I the issue believe I must dissent because activity as to also meets the Lemon test us, student-initi- before whether squarely compliance with the Establishment Clause. high prayer at ated, -composed -directed and Finally, I would conclude that the state the First Amend- graduation violates any compelling interest not articulated ment, applica- examine the requires we graduates’ rights of free countermand the Establishment Clause tion of both Thus, expression. I would exercise and free right, balancing speech the free exercise/free injunction permanent issued reverse the speech graduates’ free exercise against the defendants. compelling state interest against any rights justify impinging might otherwise which guarantees.

these I. interests the balance placing these Weisman, In Lee v. the Court held concerned, however, scale, ap- that an I am principal a middle school who decided to emphasizes exaggerates and proach which ceremony include Clause tests Establishment the Court’s Weisman, chose a rabbi to offer for Deborah im- fragmented would tend to would be prayer, gave guidelines the rabbi on the religion claus- ply that the First Amendment prayer, and advised the rabbi content of the contradictory embody and irreconcilable es non-sectarian, should be the invocation juris- free exercise principles. The Court’s attributable to the state. made choices separation clearly suggests that a prudence Moreover, the Court held that Lee’s advice into the domain of overextends policy which concerning content of the rabbi’s speech must be sus- and free free exercise direct state control. These find constituted Clause should pect. The Establishment finding that ings, combined with the Court’s activity Free prohibit which the read to supervision and control of the school’s Educ. v. protects. Board Exercise Clause graduates graduation subtlely coerced Morgens, 496 U.S. during respectful silence the invo to stand (“there is a cation, the state action unconstitu rendered government difference between crucial tional, despite participation the fact that religion, the Estab- speech endorsing which graduation ceremony prayer or in the forbids, private speech Clause lishment 586-89, 112 voluntary. was itself Speech Free endorsing religion, which the par Emphasizing that the at 2655-56. Thus, protect”). and Free Exercise Clauses outcome-deter ticular facts in the case were light present case in analyze I minative, stated: the Court may not estab- fact that while the state the control facts mark and These dominant disadvantage not also religion, a it must lish officials of our decision: State the confines religious ac- against student or discriminate of a formal reli- performance direct the religious religion, or tivity, imply nor promotional gradua- and gious exercise acts, are disfavored. secondary schools. for tion ceremonies Clause’s light In of the Establishment object to the students who Even for those the free exercise purpose to serve broad exercise, their attendance religious narrowly I hold that here the religion, would state-sponsored reli- participation in the Weisman, holding Lee v. fact-bound sense activity are in a fair and real gious 2649, 120 L.Ed.2d 467 does though school district obligatory, (1992), preclude student direct- does not such as a condition require not attendance ed, prayer as an composed and delivered diploma. receipt of the graduation ceremo- integral segment of the not, virtually by policy, ny, is where there concerns “heightened faculty Adverting to the or involve- any administration school from protecting freedom of conscience addition, with applying the Court’s ment. In 3)The actor, elementary high principal, pressure in the school a state subtle coercive schools,” actively secondary influenced and monitored the content public id. at given. the invocation and benediction to be the Court asserted S.Ct.at part of the school official to effort on the The ease before us contains neither the by prayer perceived will be “monitor particular indicia state action nor the facts inducing participation. they students as which were outcome determinative in Lee. reject.” might Id. at otherwise graduates entirely Here the entrusted apply Court declined to The with the decision to include or not to include in the factors earlier set forth Lemon graduation graduates invocation.2 The Kurtzman, explicitly or to reconsider throughout maintain control the decisional status of decision.1 process surrepti- and without the active or monitoring by tious influence school offi- highly Because fact-sensitive nature precludes IKFD cials. the invitation decision, of the Lee I cannot induce from the clergyman any of a to deliver invocation. No reasoning any Court’s broad constitutional school official influence or monitor the principle prayer high which bans at all school prayer. polling content of the The instru- ceremonies, graduation regardless of the government prac- ment itself is neutral. The pray- manner which the decision to include question tice here is not a decision to Indeed, implemented. er made or Lee prayer graduation; include nor is it the distinguish bids us to scrutinize and to practice monitoring influencing the con- facts of each case. Lee the Court found prayer. govern- tent of The tandem, following, working to consti- practice ment highly issue here is the sponsorship: tute state allowing graduating democratic one of 1) actor, high principal, The a state graduation pray- class to vote on the issue of made a unilateral decision to include invo- maintaining er while an official stance of cation and benediction cer- neutrality throughout strict pro- the entire emony; Hence, cess. none of the decisions made 2) actor, principal, graduating concerning graduation a state class regard made a unilateral decision with to the can be attributed to the state and the clergyman selection of a to offer the invoca- Establishment Clause is therefore not even benediction; tion and implicated.3 I do anything not find in Lee sham, 1. The stated: A. because I don’t like it and B. because decision, I don't like to make let alone a reconsidering We can the case decide without one, pretense. constitutional general on And had I constitutional framework which gotten the notion that the public school board was schools' efforts to accommodate expression hell bent accept on—excuse the bent are measured. we do Thus —hell having prayer petitioners and that the student invitation of vote was and amicus the United going way to have one or the other and States to reconsider our decision in Lemon v. just government the student vote was [a] [of] kind mecha- [.] The involvement Kurtzman they going manipulate nism were religious activity pervasive, to see to it with this case is you my ruling ... point I assure creating state-sponsored would be different. to the again particularly impressed I was religious state-directed with the exercise in a testimony principal sense Conducting [that] [was this school. formal ob- straight forward] I was pertaining servance convinced he conflicts with settled rules sham, students, would not stand still for that he would exercises for and that suf- thought right thing, do what he question was the even fices to determine the before if us. 587, personally he found it uncomfortable to do.... 112 S.Ct. at 2655. A. 170-71. purpose 2. I am satisfied that the school’s stated accurately purpose its reflects in fact and that plurality opinion Capitol Sq. 3.In his in Review & Policy impermissible IKFD does not mask an Pinette, -U.S.-, Advisory Bd. v. promote prayer. covert intention to official The 2440, (1995), Justice Scalia judge, opportunity district who had the to ob- Thomas) (joined by Rehnquist, Kennedy and parties serve the and determine firsthand their wrote: credibility hearings, in stated in his denial of the preliminary injunction: Where we have tested for endorsement of reli- again emphasize ap- gion, subject I want to expres- that when I the of the test was either proached government itself, govern- this case I tried to be sensitive to sion or else

1491 reconsideration, Upon the Fifth Circuit holding that tion. compel a which would that Lee did not invalidate Clear Creek’s held unconstitutional. IKFD policy, and which did invocation over the majority expresses concern The invocation, prayer or but not mandate 1) by the school: control exercised degree of graduation prayer to merely permitted be request for a rejected a it student’s when graduate graduating if the delivered 2) graduation, and speaker sex” “safe Moreover, in the reso- so chose. Jones class not that he would principal stated when the question permitted in a school official lution Certainly speaker. unscheduled permit an graduat- and to the offer “advice counsel” to neutrality school, violating the without ing whether to include class decision Lemon, all restrict could principles fact, single graduation. This invocation appro- time and indeed as as to speeches us, placed is absent in the case before “solemnizing” speech; which priateness here,— subject speaker the constitu- Jones case even closer to Policy IKFD’s matter viewpoint ex- boundary do not constitute in Lee than the established restrictions tional suppression.4 Nevertheless, or pression Fifth before us. Cir- case signifi- exercised held Clear Creek cuit court of our sister I follow lead would cantly control the invocation con- less over Indep. in v. Clear Creek appeals Jones principal Lee v. than did tent (5th Cir.1992),5 Dist., F.2d 963 977 Sch. Weisman, noting that did not Clear Creek factually ease similar graduation prayer invocations, merely to ac- but refused solicit Jones, case before us. proselytizing invocations. cept sectarian or judgment the Fifth Circuit’s vacated Court noted that F.2d at 971. The court 977 consider- further the case for and remanded nonsectarian, merely tolerated resolution in Lee v. decision light of the Court’s ation prayer, neither re- but non-proselytizing Weisman, subse- decided which nor it. Id. quired favored Fifth first determina- quent to the Circuit’s (1990) (the public of a forum alleged L.Ed.2d 191 nature action to discriminate ment favor activity. religious expression message The private inclusion] “the is one of [of is such that propose, endorsement; attribute petitioners which would test neutrality a State rather than if behaving government private re- neutrally ato religious groups open use facilities refused to let expression, in our ligious has no antecedent others, not neutrali- then it would demonstrate be called to a jurisprudence and better would hostility religion”). establish- ty toward The but test. transferred endorsement imposing used for ment clause should not be - at-, 115 S.Ct. at 2447-48 U.S. speech religious on content-based restrictions original). (emphasis in appropriate scru- public under strict forum ceremony particular tiny analysis. if this 4. Even public or limited into a forum recognize Brody Spang, were converted F.2d v. 957 We did reach, forum, not public an issue we need 1120, pub- at a exercises that commencement time, place subject to reasonable public qualify forum. could as a lic restrictions, re- to content-based manner or on the on the use of the forum Restrictions compelling necessary to state serve strictions necessarily speakers render the does class of 1108, Brody 1117 purpose. Spang, v. 957 F.2d non-public. and cita- See at 1117-18 forum id. Cir.1992). (3d category subject The matter tions therein. however, forum, very concept public of a argu- speaker IKFD restrictions of disap endorse or precludes that the state either concept ably compatible of a limited with the speech, including religious speech, prove County public Adler v. Duval forum. See also See forum. is communicated in which (M.D.Fla.1994); Bd., F.Supp. 454 Sch. 851 Pinette, - Advisory Sq. Bd. v. Capitol Review & Community Lundberg v. West Monona but cf. -, L.Ed.2d 650 132 115 (N.D.Iowa District, F.Supp. School Miller, (1995); Georgia Chabad-Lubavitch of 1989). Cir.1993). (11th Religious F.3d open public not confer speech forum does in an banc, reh'g subsequent history: en its I note sects state's endorsement (5th Cir.1992), denied, and mot. F.2d 234 to have the practices, and cannot deemed denied, granted, cert. religion. advancing Id. at primary effect of (1993), and court that.the Vincent, 1392; Widmar v. Ingebretsen v. appeals Jack reaffirmed in of Jones 269, 276, (1981); 440 Board 70 L.Ed.2d S.Ct. of 274, (5th Dist., 281 Sch. 88 F.3d son Public Mergens, Community Schools v. Educ. of Westside 10, (Jan. 1996). Cir.1996), 2356, 2370, 64 U.S.L.W. 2443 110 S.Ct. U.S. 110 496 contrast, By pray- graduation prayer, gradua- Black Horse’s I believe that the ceremony significantly setting is differ- ceremonies is more liberal er setting, ent in nature from the classroom scope it extends the of its toleration factors, offending the absence of other prayer, grad- if the to include even sectarian approach warrants a less restrictive to reli- way I that in this uates so choose. believe Certainly gion. activity the contested does comports IKFD with the First school; not involve the curriculum of the nor against prohibition the inhibi- Amendment’s graduation ceremony implicate does the practice religion of tion of the of free relationship concerning teacher-student expression, precludes at the time while same knowledge of transmission from the former possibility of an establish- even the remote Thus, to the latter. the concerns which the religion by uncompro- ment of virtue of its expressed Court has in those eases where mising neutrality. injected some form of has been into psycholog I find the element of would also directly opera- the school curriculum are not coercion, presumed ical which the Lee Court See, e.g., Aguillard, tive here. Edwards v. stresses, majority and the to be absent where 578, 2573, 482 U.S. L.Ed.2d 510 graduating participated in seniors have (1987) (teaching of sup- scientific evidence regarding prayer graduation. the decision porting theory); Jaffree, creation Wallace v. part There not be could confusion 38, 2479, U.S. 86 L.Ed.2d 29 senior, graduating of the reasonable who has (1985) (moment beginning of silence at poll been made aware the senior class Graham, day); each school Stone v. 449 U.S. participate, regard has been invited to with 39, 192, (1980) 101 S.Ct. 66 L.Ed.2d 199 poll represents to whether the result of (posting of Ten Commandments on classroom opinion an official of the state or the will of walls); Abington Schempp, School Dist. v. Furthermore, although the senior class. Lee 203, 1560, 374 U.S. 83 S.Ct. 10 L.Ed.2d 844 emphasize failed to the distinction between (Bible (1963) reading system over PA before high graduates and the rest of the classes); Vitale, Engel 421, v. 370 U.S. younger, less mature school student (1962) (mandated 1261, 8 L.Ed.2d 601 body, prior Supreme Court caselaw has ac day recitation of official state each knowledged post-secondary school stu schools); public Illinois ex rel. McCollum v. easily younger dents are less coerced than Education, 203, Board 333 U.S. 68 S.Ct. See, e.g., students. Board Educ. West (1948) 461, (weekly religious 92 L.Ed. 649 Community Mergens, side Schools v. public instruction in buildings during 226, 235-37, 250, 2356, 110 S.Ct. 2364- clergy). school hours members of 65, 2371, (“university 110 L.Ed.2d 191 majority’s I do not share the confidence impressionable students are less than holding the Ninth Circuit’s Harris Joint students”) younger (citing Widmar v. Vin Cir.1994), 241, (9th Sch. Dist. No. 41 F.3d 447 cent, 14, n. granted, rt. vacated and remand ce (1981)). n. 70 L.Ed.2d 440 - ed, -, graduation ceremony itself is a ritual (1995). Following precedent symbolic graduates’ passage into re ease, set an earlier Ninth Circuit Collins adulthood, sponsible young synchro and is Dist., v. Chandler Sch. 644 F.2d 759 Unified nized, less, more or with other official ac- (9th Cir.), denied, cert. initiation, knowledgements of adult such as (1981), the court in right conference of the and the vote re ultimately Harris held that “the school con sponsibility register of males to for the draft. graduation] [the trols event” and hence can maturity addition to the relative level not avoid state implicate involvement so as to class, very gradu- the senior nature of interpreted the Establishment Clause as un ation, which elevates the student to the sta- der Lee. 41 F.3d at 454. The court further graduate, tus of must be considered. Al- regarding held the seniors’ decision though student/graduate distinction did prayer per was se tainted with official sanc not countermand the other various facts tion because the seniors derived their deci- weighed against authority which the Court in Lee delegation sional from the of offi-

1493 ceremony. graduation Since all as- of their “the school authority and because cial school by pro- event” [graduation] pects decision are at under[wrote] building. Id. In class, of the school viding the use graduating senior the discretion virtual- view, holding preclude my this IKFD I would hold does high gradua- public ly prayer at a all unconstitutionally establish a under unnecessarily ceremony, holding which tion Lee. holding of extends warrant and without concerned Ninth I am also Lee. II. distinguish the classroom failed Circuit setting, and the setting from the majority that the agree I with the Lemon 41 graduate. F.3d from the student although from precedential, test is still supporting the Ninth precedent no I find debate, it has been the focus of critical start sen- position that Circuit’s including irony application its en- of the Establish- the domain “enter[] iors regulate courages the federal courts to in an id., Clause,” precluded from and are ment the First Amendment was area which communally ex- choosing to independently any government designed against to insure God, di- gratitude to invoke the press their part company in I part interference.6 I be- blessing, as presence or seek God’s vine at-, commentary See also - of -U.S. 114 S.Ct. 2515. critical has been much There J., -, (O’Connor test, 114 S.Ct. at 2500 U.S. concurring to call atten- it suffices here the Lemon but part concurring judg in and engen- which Lemon has tion to the divisions ment) ("[T|he away unitary slide lemon's First, from recently the Court most dered in the itself. way.”); approach v. Cham is well under Marsh begun the establishment has to address Court bers, 783, 3330, 77 L.Ed.2d 463 U.S. 103 no resort to the Lemon issue with little or clause (1983) (upholding against state action es 1019 Weisman, 586, 505 U.S. at 112 test. See Lee v. challenge reference tablishment clause without 2655, Kiryas Board Education S.Ct. at and of of ). Even the Lemon test has been to Lemon where — U.S.-, 2481, Grumet, 114 S.Ct. Joel v. openly applied, Court have rec members of the Scalia, (1994). In Justice L.Ed.2d 546 abandoning Allegheny County it. See ommended Rehnquist, joined by Justice White Chief Justice ACLU, 573, 655, Pittsburgh v. Greater 492 U.S. Thomas, dissenting, unequivocally and Justice 3086, 3134, (1989) 109 S.Ct. stated: C.J., White, J., joined by Rehnquist, (Kennedy, J. jurisprudence religion-clause has be- Our Scalia, J., judgment part concurring in the (so speak) by on reliance come bedeviled ("I dissenting part) ... do not wish to be abstractions that are not derived formulaic from, adopting, advocating, [the let alone Lem seen with, long- positively our but conflict primary guide in this difficult test] as our accepted traditions. Foremost constitutional Amos, area.”); Presiding Bishop Corporation v. test, among the so-called lemon these has been 2862, 2873, 327, 346, 107 S.Ct. 483 U.S. omitted], has received well- which [citation J., (O’Connor, (1987) concurring in L.Ed.2d 273 many of this from members earned criticism Aguillard, judgment); 482 U.S. Edwards v. today omitted] The Court [Citations Court. 2573, 2605-07, 578, 636-40, by of Lemon es- demonstrates the irrelevance J., (1987) (Scalia, joined by Rehn L.Ed.2d 510 sentially ignoring it ... and the interment C.J., dissenting) (especially.recommending quist, happy by-product that case be the one "purpose-prong” abandoning because it "ex lamentable decision. the Court's otherwise the Free Exercise the tension between acerbates 643, 112 S.Ct. at 2685. Clauses, 505 U.S. no basis in [and] has and Establishment Scalia, Joel, joined Again Kiryas Justice history Ld.at language or of the Amendment” Thomas, Rehnquist stat- and Justice 2607); Chief Justice Rapids Grand School 107 S.Ct. at Ball, ed: 473 U.S. 105 S.Ct. District v. today par- J., (1985) (White, snub of lemon [T]he Court’s noteworthy ticularly all three courts because dissenting); Jaffree, 68- Wallace (who ignore Supreme 2495-97, are not free to below 86 L.Ed.2d it, will) J., precedent (O'Connor, judg relied on and the concurring (also law) ment) ("the parties our case dedicated bound in Lemon standards announced refined”); briefing application pages over should be reexamined J., 107-10, vitality (Rehnquist, addi- of the Lemon test. dis continued S.Ct. at 2515-18 abandoning (“the grounding senting) reasons for no more to the other sound Lemon test has omitted], Lemon, quite than does history inef- the First Amendment it seems [citations Court, reaching theory upon [It] its which it rests.... which in the wall ficient for this briefing unworkable heavily to fracture into on the this Court decisions relies caused and, extent, opinions.” opinions plurality Id. at parties to a lesser 2517.); Academy, courts, par- v. Cathedral New York lower courts and lower to mislead 125, 134-35, 54 L.Ed.2d the Lemon test. about the relevance of ties 1494 Vitale, 424-25, Policy IKFD does not violate 82 S.Ct. at 1263-

lieve that 64); Aguillard, of Lemon. see also Edwards v. 482 one of the three elements U.S. 586-87, 107

at S.Ct. at 2579-80. A. “[ijn states, Policy expressly IKFD the spirit protected speech, pupils the free pass prong the first of the In order to attendance must choose to have ....” test, Policy IKFD need not be shown Lemon added). (emphasis In addition to this ex exclusively Lynch to secular. v. Donnel- press purpose promoting secular the free 668, 6, 1355, ly, n. 465 U.S. 681 104 S.Ct. seniors, speech graduating of the the school (1984); 604 Wallace v. n. 79 L.Ed.2d Policy asserts that IKFD serves the valid 64, Jaffree, 472 U.S. at 105 S.Ct. at 2493 purpose permitting graduates secular J., Furthermore, (Powell, concurring). ac- graduation to solemnize occasion of their religious practice or commodation of through prayer. ceremonial The concern general helps preserve mediating to be, majority expresses it, as the should morals, public institutions secular would not be solemn less Hence, good. civic accommodation itself importance without the vote. The of ceremo purpose. serves a secular A valid secular nial is that the Court has acknowl purpose constitutionally compromised is not edged that it indeed serves the valid secular incidental, substantial, when there are even See, purpose e.g., Lynch, of solemnization. 680, religion. Lynch, to 465 at benefits U.S. 693, 104 (O’Connor, at 465 U.S. S.Ct. at 1369 {citing 104 S.Ct. at 1362 Everson v. Board of J., concurring); County Allegheny v. Education, 1, 504, 330 67 U.S. S.Ct. 91 L.Ed. ACLU, Pittsburgh 573, Greater 492 U.S. (1947); Allen, 711 Board Education v. 392 46, 3086, 46, 595-96 n. 109 S.Ct. 3102-03 n. 1923, 236, 88 20 L.Ed.2d U.S. 1060 (1989); Vitale, Engel 472 106 L.Ed.2d v. 370 (1968); Commission, Walz v. Tax 397 U.S. 21, U.S. at 435 n. 82 1269 n. 21 1409, (1970); 25 90 S.Ct. L.Ed.2d 697 (1962); see Indep. also Jones v. Clear Creek Richardson, Tilton v. 403 U.S. 91 S.Ct. Dist., Sch. 977 F.2d at 966-67. (1971)). 790 L.Ed.2d As the present district court noted in the purpose, To determine a secular the Court case, Policy yet IKFD serves a third secu- generally has exercised deference with re purpose educational, lar which is albeit not gard legislative policy purpose, to stated or curriculum-related, in process that the of in- purpose only find a sham secular will dependently coordinating resolving question can no when there that the chal graduation prayer permits pro- issue of establishes, lenged conduct to tends estab spective graduates gain insight firsthand lish, Felton, religion. Aguilar v. 473 U.S. ju- into the effects of current constitutional 402, 416-17, 3232, 3239-40, 87 behavior, risprudence on their and is (1985) (Powell, J., concurring); L.Ed.2d in responsible citizenship. itself an exercise Lynch, 465 U.S. at (“The Moreover, legislation Court has invalidated challenged activity can- here governmental ground action on graduates that a not be deemed cause those who purpose lacking, only secular opponents graduation, was but when it question many has concluded there was no that the different reasons cited the ma- activity wholly by jority, they statute or was motivated fully incorpo- to feel that are not considerations.”) (citing community. contrary, Stone v. rated into To Graham, 193; every graduate fully 101 S.Ct. at under IKFD is Arkansas, 97, 107-09, Epperson v. partake community invited to in the via the 266, 272-73, (1968); right prayer, on the issue of school vote Abington Schempp, graduate, regardless School Dist. v. and each individual 1572-73; issue, Engel position equal 83 S.Ct. at v. his or her J., (1977) (White, dissenting); ring judgment) (especially criticizing Roemer Bd.,

Maryland Public Works stating 768- entanglement prong and that Lemon im- 2337, 2355-56, tests). poses unnecessary superfluous (1976) (White, J., J., joined by Rehnquist, concur- B. cere- influence opportunity activity challenged is a mony. Here the respect prong to the With second guarantee is no There exercise. democratic test, agree that I the test asks wheth- Lemon any given year prevails that the view that activity conveys “in challenged fact a er the year. rea- following The in the prevail will disapproval.” message of endorsement or knowing of his or graduate, sonably tolerant Lynch, 465 U.S. at poll, in the class partake to opportunity her solidly gov- it established that the is While thought conclude reasonably to cannot favoring par- precluded is one ernment from establishing religion pray- if the state is that another, religious denomination over ticular year. any given The poll prevails er religion, establishing or from state official IKFD, Policy the non-endorsing language of of the Court divide I note that the members disclaimer, neu- mandatory and the explicit pre- to whether the Establishment Clause as itself, would trality polling instrument of conveying government from a cludes the of hold that the effect me to lead encourages message that it or reli- endorses to ad- principally primarily or is not IKFD sense, generic especially' or ac- gion in a other.hand, an abso- religion. On the vance knowledges accommodates the broad Ju- or prayer at prohibition ceremonial lute heritage our civil and social of deo-Christian view, would, my violate the despite the persists order. This division unduly inhibiting Exercise Clause Free comprehensively to attempt interpret Court’s impli- also religion, of and would practice Establishment Everson v. Clause First speech guarantees of the the free cate Education, 1, 15-16, Board Amendment. 504, 511-12, (1947), 91 L.Ed. 711 hold highly express ing prohibits credible that First Amendment the school’s Given governments offering neutrality purpose and state from motivations federal secular Policy non-preferential religions and from into aid all religion,7 written regards both as any religious us, levying any support tax to ac I find argued would before IKFD See, Wallace, e.g., tivity or institution. easily passes the secular Policy IKFD that (O’Connor, J., 70, at 2497 assertions test. The ACLU’s purpose (“[The concurring) does prong test] endorsement satisfy this Policy IKFD cannot conveying at government from religious8 preclude per se prayer is because Lemon message religion convey a may tempting uti- not be ceremonial and that particular religious belief is favored or a or free- purposes of solemnization lized 98, Wallace, 472 U.S. wholly preferred”); but secular expression dom of where cf. J., dissenting) (Rehnquist, available, beyond re- S.Ct. at 2511 go far are means (“[Madison] Lemon, First Amend [the did not see prong of of the first quirements part, of neutrality on the requiring pur- ment] a as require secular does not which religion and irreli- exclusively between government secular achieved pose be via 306, Clauson, 343 U.S. Furthermore, Zorach v. employed gión.”); means means. (1952) 96 L.Ed. 954 pursu- its secular end by the school towards (‘We people institu a whose intrinsically Policy IKFD itself is not ant to Being.”); Marsh presuppose a wholly tions polling is secular religious. Student Chambers, 783, 792, 103 S.Ct. 463 U.S. question poll activity, and the result of (“To in class, graduating not expression of the is the body ... is guidance on a voke Divine district. the school be deliv- prayer intended to contents of the supra. 7. See n. 2 prior Regional High Highland School ered proposition accept is inherent- I preliminary injunction has the issuance act, allowing prayer if ly religious but us. part the record before not been made step from choose is a removed students so die announcement Thus the single, spoken prayer. Certainly a act of expression more akin speaker's of belief and own pri- have the not prayer at could religion. speech than required by advancing mary effect Lemon. ... step Donnelly, not ... an ‘establishment’ or a establishment; (1983) (the it simply

toward a tolerable Constitu- acknowledgement widely of beliefs held “require complete tion does separa- not Country.”); among people Lynch, of this state; affirmatively church and (The accommodation, merely mandates not toler- “affirmatively Constitution mandates accom- ance, religions, hostility all and forbids modation, tolerance, merely of all reli- any_ hostility towards Indeed such gions, hostility any.... and forbids toward bring us into “war with our national indifference’ ... ‘[C]allous was never intend- tradition as embodied in the First Amend- ed the Establishment Clause .... [and] guaranty ment’s of the free exercise of reli- bring into would us ‘war with our national ’.’). gion.’ Neutrality may be achieved as in tradition embodied the First Amend- IKFD, through policy, Policy a such as guaranty ment’s of the free exercise of reli- hospitable religion is as to as it is to irreli- ” (citations omitted)). gion.’ Mergens, In gión. unequivocally held that: majority’s The “reasonable' nonadherent” The Establishment Clause does not license thinking could not be confused into that “his government religion to treat and those who religious or her choices were disfavored.” it, practice simply by teach or virtue of Policy at Opinion 1487. IKFD mandates an such, status as their as subversive of explicit unequivocal disclaimer, one that subject American ideals and therefore to only position covers not the official of the unique disabilities. partic- school but also the views of of the Mergens, 496 110 S.Ct. at 2371. graduates, ular program on the Rosenberger See also v. Rector & Visitors of body the event the student votes for the —Va., U.S.-,-, University inclusion of at the ceremo- ny.9 Moreover, outright gradua- ban on (where government program is neutral to- majority espouses that the (as is), religion Policy ward IKFD restric- make a religionist reasonable believe that his justified speech tions on not religion or her exercise of was disfavored Clause); viewpoint the Establishment such state, especially against pervasive fostering discrimination hostility risks to reli- backdrop century of a and half of gion, undermining very neutrality gatherings. such at-, requires, Establishment Clause id. at 2525. C. The First Amendment does not condemn legislation policy or official that has the ef- Because I find that the first two Lemon (unlike assisting religion generally; fect of prongs violated, majori- are not I First gives religion ty) Amendment itself an ex- must prong, move to the third whether ceptionally protected status. It does not IKFD fosters excessive institutional interpretation inhospitable necessitate an entanglement between the church and the religion may where not be acknowl- ways state. Lemon discusses two in which edged any public arena. entanglement Such an inter- Entangle- can be excessive. pretation runs counter to the may implicated notion of neu- ment when a state trality denigrates religion legislative in violation of or act draws the state into an the Free Exercise Lynch Clause. See monitoring intimate and continual or over- Scalia, dissenting, 9. explained: beginning Justice graduation Program, to the that, decision, effect while all are asked to rise for the Given the odd basis for the Court’s benediction, compelled invocation and none is invocations and benedictions will be able to be them, assumed, given June, join public-school graduations by rising, nor will be next half, recited, they past century as have to have for and a done so. That obvious fact so long graduates parents may any- proceed school authorities make and their clear that God, done, screaming one protest always who from thank abstains as Americans have necessarily participate does not prayers. blessings generously for the He has bestowed seemingly that is country. All needed is an announce- on them and on their ment, perhaps or a written insertion at the 505 U.S. at 112 S.Ct. at 2685. related, speech activity. free clause is at 614- religious matters. seeing of generic, guarantee for a broad may but more Entanglement at 2112-16. 91 S.Ct. activity. range expressive and assoeiational policy or a state implicated where also well-acknowledged that neither clause is potential It abnormal an act creates legislative protection activities. unlimited for such 91 offers political divisiveness. for indicated, well-acknowledged that the equally is state how- It has The Court impinge of free exer- not the interests will not ever, alone political divisiveness speech proffering a and free without Lynch, 465 U.S. at cise entanglement. create (“... demonstrating compelling state interest this Court at 1365 action. necessity of restrictive alone can the its political divisiveness held that con- permissible otherwise to invalidate serve that Pol- from the ACLU’s assertion Aside duct”). recognized has also The Court icy IKFD to establish establishes tends of kind and “[e]ntanglement question reason, compelling no con- religion, it offers Lynch, 465 U.S. degree.” otherwise, permanent in- stitutional junction against a senior class’ free choice through prayer at a Policy IKFD which re- its own nothing express thanks I find Thus, ceremony. I enduring entanglement identi- believe the sembles Policy expression IKFD cre- interests of By design and free in Lemon. free exercise fied Regional Highland class of graduating absence of administrative a virtual total ates regard to any High prevail. must With School entanglement sort. divisiveness, Policy involves IKFD

political subsidy to

absolutely sponsorship no organization. or related

religious institution which would nothing in the record

There engenders or will

suggest that IKFD political divi- degree so

engender normal “a threat to the pose as to

siveness Lemon,

political process.” omitted). (citations On the at 2116 America, UNITED STATES political hand, I not attribute other Plaintiff-Appellant, may divisiveness, extent to whatever exist, engen- lawsuit itself which this Guy CROUCH, and Michael A. III ders, Lynch, 465 U.S. Policy IKFD. See Frye, Defendants-Appellees. (“A litigant J. 104 S.Ct. at commencing cannot, very act of No. 93-7719. lawsuit, appearance of divi- ... create the Appeals, exploit it as evidence States Court and then siveness United any evidence Fifth Circuit. I do not find entanglement.”) satis- and am thus entanglement of excessive May all three Policy IKFD satisfies fied Lemon prongs of the test.

III. majority’s challenge closing, I must religious beliefs prevalence of that “the

view obli- the state’s imagery cannot erode spectrum of reli- the entire

gation protect wor- pious from the most preferences

gious atheist.” most committed

shipper to the Clause Exercise

Opinion at 1488. The Free against interference

guarantees expressive and assoeiational

state

Case Details

Case Name: American Civil Liberties Union v. Black Horse Pike Regional Board of Education

Court Name: Court of Appeals for the Third Circuit

Date Published: May 24, 1996

Citation: 84 F.3d 1471

Docket Number: 94-5233

Court Abbreviation: 3rd Cir.