Adler v. Duval, 250 F.3d 1330 (11th Cir. 2001)
Duval County, Florida instituted a policy for graduation ceremonies that allowed students of the senior class to vote on whether two-minute messages will be given at the beginning and end of the event, and then permitted seniors to elect a student to supply such messages. These messages were to be prepared solely by the students elected, and no school official was to have any input or review over them. The stated goal was to allow students to control their own graduation ceremony without "monitoring or review by school officials." Several Duval County students brought suit, claiming this policy had the effect of advancing religion, and was a violation of the Establishment Clause.
(This case originally reached the Supreme Court the same year as Santa Fe v. Doe. After ruling in Santa Fe, the Court vacated the Eleventh Circuit's decision and sent the case back for review in light of the Santa Fe decision. The Eleventh Circuit, using the reasoning in Santa Fe, reinstated their original decision.)
Whether Duval County's policy of electing student speakers to give two-minute messages constitutes a forum for true private expression of the student or whether it is government-sponsored speech as in the Santa Fe v. Doe decision.
By a vote of 8-4, the court held that the Duval County policy was constitutional, even in light of Santa Fe v. Doe.
The court analyzed the policy first in light of the Santa Fe decision. It found the differences substantial and important enough to distinguish the two situations. The court found that the lack of oversight by administrators made the speeches the private speech of the students, and it was not transformed into government speech as in the Santa Fe decision. This allowed the court to proceed to analyze the policy under the Lemon test. As it had previously done, the court found that the policy passed muster under Lemon, as it had a secular purpose, did not have the effect of advancing or inhibiting religion, and did not excessively entangle the state with religion.
"While school officials 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 . . . No religious result is preordained." (Judge Stanley Marcus)
"The Supreme Court's decision on this issue renders untenable the majority's position that the Duval policy survives constitutional scrutiny . . . Indeed, the very mechanism that the majority of this Court claims removes any impermissible coercion from the Duval policy serves to silence students espousing minority views, and forces them to participate in a state-sponsored exercise in which the message is determined by students holding majority views. The First Amendment does not permit such coercion." (Judge Phyllis A. Kravitch)
Monday, December 9, 2013 | 16:18:07