Adler v. Duval County School Board

250 F.3d 1330, 2001 WL 501987
CourtCourt of Appeals for the Eleventh Circuit
DecidedMay 11, 2001
DocketNos. 98-2709, 98-2720
StatusPublished
Cited by8 cases

This text of 250 F.3d 1330 (Adler v. Duval County School Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adler v. Duval County School Board, 250 F.3d 1330, 2001 WL 501987 (11th Cir. 2001).

Opinions

MARCUS, Circuit Judge:

On March 15, 2000, this Court ruled that Duval County’s facially-neutral policy permitting high school seniors to vote upon the delivery by a student of a message entirely of that student’s choosing as part of graduation ceremonies did not violate the Establishment Clause. Adler v. Duval County Sch. Bd., 206 F.3d 1070 (11th Cir.) (en banc), pet. for cert. granted and judgment vacated, 531 U.S. 801, 121 S.Ct. 31, 148 L.Ed.2d 3 (2000). Plaintiffs thereafter petitioned the Supreme Court for certiora-ri. Meanwhile, on June 19, 2000, the Supreme Court rendered its decision in San[1332]*1332ta Fe Independent School District v. Doe, 530 U.S. 290, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000), which invalidated a Texas school board’s policy permitting students to vote upon the delivery of a “statement or invocation,” subject to officials’ approval, at each home high school football game. On October 2, 2000, the Court vacated our decision and remanded it for further consideration in light of Santa Fe. The case was returned to us on December 19, 2000, and we proceeded to rehear the case en banc.

Having carefully reviewed the Supreme Court’s opinion, and considered supplemental briefs from the parties and amici, we conclude that Santa Fe does not alter our previous en banc decision, and accordingly we reinstate that decision and the judgment in favor of Duval County. Nevertheless, we take this opportunity to explain why we believe that Santa Fe does not alter the outcome of this case. Simply put, after (as before) Santa Fe, it is impossible to say that the Duval County policy on its face violates the Establishment Clause without effectively banning all religious speech at school graduations, no matter how private the message or how divorced the content of the message may be from any state review, let alone censorship. Santa Fe does not go that far, and we are not prepared to take such a step.

I.

At the outset, it is helpful to summarize briefly the facts and analysis of our prior en banc opinion. The Duval County policy provides in relevant part:

“1. The use of a brief opening and/or closing message, not to exceed two minutes, at high school graduation exercises shall rest within the discretion of the graduating senior class;
2. The opening and/or closing message shall be given by a student volunteer, in the graduating senior class, chosen by the graduating senior class as a whole;
3. If the graduating senior class chooses to use an opening and/or closing message, the content of that message shall be prepared by the student volunteer and shall not be monitored or otherwise reviewed by Duval County School Board, its officers or employees;
The purpose of these guidelines is to allow students to direct their own graduation message without monitoring or review by school officials."

206 F.3d at 1072 (emphasis added). We defined the issue then before us as “whether the Duval County school system’s policy of permitting a graduating student, elected by her class, to deliver an unrestricted message of her choice at the beginning and/or closing of graduation ceremonies is facially violative of the Establishment Clause.” Id. at 1073. Analyzing this policy under the Supreme Court’s opinions in Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) and Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), we concluded that the policy did not violate the Establishment Clause on its face.1

Although, we offered multiple reasons for that decision, our Lee analysis turned on several key facts. First, we emphasized that under Duval County’s policy school officials have no power to direct [1333]*1333that a message (let alone a religious message) be delivered at graduation ceremonies, or control in any way the content of any message actually to be delivered. As we explained:

[U]nder the Duval County graduation policy ... neither the School Board nor its principals may ordain, direct, establish, or endorse a religious prayer or message of any kind. Indeed, by the very terms of the policy, a religious message may not even be offered at graduation. The Duval County policy explicitly divorces school officials from the decision-making process as to whether any message — be it religious or not — may be delivered at graduation at all.. Moreover, decisional control over the most crucial elements of the graduation policy rests with the students and not the state.... Under the policy, the School Board and its agents have no control over who will draft the message (if there be any message at all) or what its content may be. The School Board also does not suggest in any way, let alone require, that the graduating class consider religious or any other criteria in deciding whether to have a student message or in selecting a particular student speaker. And most notably, if the graduating class chooses to have a message, the content of the message shall be prepared by the student speaker alone and no one else. The Duval County School Board is expressly prohibited by the very terms of its policy from influencing or editing the message in any way. [The] decision [as to content] rests solely with the elected student speaker — with neither the senior class nor the school exercising any sort of editorial oversight. Therefore, on the face of the policy itself, the students unambiguously understand that any student message is utterly divorced from any state sponsorship.

206 F.3d at 1076.

Second, we rejected the argument that the state’s role in providing a vehicle for a graduation message by itself transformed the student’s private speech into state-sponsored speech. We accepted the assumption that the school board “exerted overwhelming control over the graduation ceremony,” but stressed that the board “did not have control over the elements which are most crucial in the Establishment Clause calculus: the selection of the messenger, the content of the message, or most basically, the decision whether or not there would be a message in the first place.” Id. at 1080.

We likewise rejected the argument that Duval County’s policy would have the impermissible effect of coercing unwilling listeners to participate in a state-sponsored religious exercise. As we explained:

[N]either the Duval County schools nor the graduating senior classes even decide if a religious prayer or message will be delivered, let alone “require” or “coerce” the student audience to participate in any privately-crafted message. While schools may make private religious speech their own by endorsing it, schools do not endorse all speech that, they do not censor. We cannot assume ... that Duval County seniors will interpret the school’s failure to censor a private student message for religious content as an endorsement of that message — particularly where the students are expressly informed as part of the election process that they may select a speaker who alone will craft any message.

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Bluebook (online)
250 F.3d 1330, 2001 WL 501987, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adler-v-duval-county-school-board-ca11-2001.