While Duval County succeeded in keeping prayer in its high school graduation ceremonies by casting it as free speech, it is clearly a way to impose the majority's faith.

After litigating the issue for eight years, the Duval County School Board has finally succeeded in finding a legal loophole to keep prayer in its high school graduation ceremonies. While this might elicit cheers from those who think public school is an appropriate place for religious exercises, this defeat for church-state separation will be felt most profoundly by students of minority religions, for whom the price of attending their graduation is participation in the majority's faith.

In 1992, the U.S. Supreme Court ruled in the case of Lee vs. Weisman that the use of clergy to deliver prayers at public school graduation ceremonies violates our constitutional guarantees of church-state separation. The decision sent school boards in religiously conservative communities across the country into a tizzy. They desperately searched for some way around the ruling. Led by Pat Robertson's legal arm, the American Center for Law and Justice, an approach was agreed on that would give students the ability to choose a prayer-giver among their own ranks. Student-initiated, student-led prayer would be constitutional, they argued, because it would appear as though the government wasn't involved.

The Duval County School Board endorsed a student-initiated prayer policy, casting it as a two-minute "senior message" at graduation ceremonies. The new policy, described in a memorandum titled "Graduation Prayer," gave each graduating senior class the opportunity to choose a fellow student for a two-minute message to be given at the opening or closing of the ceremony. No school administrator or employee would review the message.

Those who believed this was merely a back-door way of imposing religion on public school graduations, sued. During the first go-around, the 11th U.S. Circuit Court of Appeals dismissed the challenge to the policy. The court waited more than three years to decide the case and then dismissed it as moot because all of the plaintiffs had graduated by then.

In the second round of litigation, the 11th Circuit, sitting as a full court, found the Duval County policy constitutional. It said, even if the senior message turned out to be a prayer, it was an exercise of student free speech because it wasn't under the control or direction of the school.

But within six months of this ruling, the U.S. Supreme Court struck down a Texas school district's policy allowing student-initiated, student-led prayers at football games. The Texas policy was similar to Duval County's in many respects, including allowing students to vote on who would give the message. In light of this holding, the Supreme Court sent the Duval County case back to the 11th Circuit for reconsideration.

Rather than back down, the 11th Circuit again upheld the Duval County graduation prayer policy as student free speech. The court emphasized that, as opposed to the Texas policy, Duval County's gave the student graduation speaker free range to talk about any subject without any monitoring by the school. According to the court, this was the key difference.

Had Duval County's policy been passed in a vacuum, the court may have been on firm constitutional footing. But that is not even close to the case here.

The majority of the judges on the 11th Circuit willingly closed their eyes to the obvious, which is that the purpose of Duval County's senior message policy was not to promote student free speech but to greatly increase the likelihood that there would be prayer at graduation ceremonies -- and not just any graduation prayer, but one reflecting the religious faith of the majority. The student speaker is typically selected by majority vote, which makes it likely that the majority's religion will be the only one expressed.

This is unconstitutional, the dissenting judges pointed out, because the school board enacted a policy whose purpose was to promote religion. It doesn't matter if the Duval County's policy appears neutral on its face. If it was passed with the intention of advancing religion, it should be found in violation of church-state separation.

Also, it is absurd to suggest, as the 11th Circuit does, that a graduation ceremony is a public forum, a free-speech zone of sorts, and that the public won't conclude that the senior message is endorsed by the school. Every aspect of the ceremony is directed by the school, and participants are sure to presume that any prayer given is an approved part of the formal program. Moreover, a forum in which the only person who gets to speak is the one chosen by the majority is hardly a place for a free exchange of ideas.

Unfortunately, the U.S. Supreme Court let the ruling stand by refusing to review it on appeal -- an action that doesn't necessarily indicate court approval of the lower court's ruling, but that spells the end to the Duval challenge.

We can only hope that at some point the U.S. Supreme Court will revisit the issue and set things right. In the meantime, students in Duval County should know that their graduation prayers may not be particularly welcoming to those who don't share the majority's faith.

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