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Activist court embraces religious intolerance

Published Jun. 13, 1999|Updated Sep. 29, 2005

Under the grip of the U.S. Court of Appeals for the 11th Circuit, the Bible Belt has tightened a notch.

For the last five years, through delay, obfuscation and legal sleights of hand, the court has done everything in its power to make sure that prayers have continued unabated at public school graduation ceremonies in Duval County.

Call it judicial activism Southern style.

Its most recent maneuver was a burst of unseemly speed in agreeing to hear the case of Adler v. Duval County School Board as a full court, thereby vacating the ruling made just a few weeks earlier by one of its own three-judge panels barring prayers at public school graduations. It granted the full review on its own initiative, not having even seen a motion filed by the Duval County School Board. The swift timing gave Duval schools the green light to have prayers just days before the start of high school graduation ceremonies.

Duval School Board chairwoman Linda Sparks said of the ruling in the Florida Times-Union: "It looks like God has parted the Red Sea and we are going to get graduation messages for our seniors."

No, actually the 11th Circuit did the job, but who's quibbling?

The case began in 1993, when Karen Adler, on behalf of and along with her daughter Leslie, and three fellow students, first sued over the Duval School Board's newly adopted policy of giving senior high school students the option of having prayer at graduation. The U.S. Supreme Court had just ruled that graduation prayers given by chaplains violate the Establishment Clause, and the new policy was a desperate attempt by Duval to keep the prayers. By letting students vote on having a "senior message" (wink-nudge), the School Board could claim it had no part in any prayer that may result.

The ploy was obvious, but the board didn't need to worry. The case was heard by U.S. District Court Judge William Terrell Hodges, and, in the Southern tradition of judges protecting segregationist sheriffs by twisting the law to obtain a certain end, Hodges welcomed the board's cunning. Dispensing with a trial, Hodges granted summary judgment for the board, ruling that the prayers were not a violation of church-state separation but rather an exercise of a student's First Amendment free speech rights.

To suggest that prayer at graduation is occurring without the school's imprimatur is like saying the content of a school play is not the school's responsibility because students speak the words. Few school events are as tightly controlled as are high school graduations. The program, dress and decorum are all highly supervised. And for school officials to disavow such control is more than disingenuous, it's a blatant falsehood.

Adler, with help from the ACLU of Florida (where I was executive director at the time), appealed Hodges' ruling to the 11th Circuit in 1994. After waiting for more than three years and through four prayer-filled graduation seasons, Adler received another judicial jolt. In 1997, the appeals court dismissed the case, saying the issue was moot because the plaintiffs had graduated.

Gray Thomas, the Jacksonville attorney representing the Adlers, had prepared for that possibility by including a request for monetary damages in the suit. Money damages are designed to redress a wrong already suffered, so they don't disappear when the students graduate. But Thomas underestimated the power of an intellectually dishonest judge.

Judge Gerald Tjoflat, writing for the majority, skirted the damages claim by saying Adler wasn't really serious about wanting them. Over a vigorous dissent by Judge Robert Vining Jr., who said he knew of no "legal theories, principles of equity, or appellate rules" that supported the majority's actions, the court nonetheless said Adler waived her damages request.

The Adler family went back to square one, filing a new lawsuit naming Emily Adler, the youngest daughter, and a large number of students _ as young as 9 _ to insure the case wouldn't be moot any time soon. According to Karen Adler, when her daughter Emily graduated from Mandarin High School in 1998, the school principal introduced the "senior message" by directing everyone to "remain standing for the invocation."

Even so, Hodges again ruled that the "senior message" constituted student free speech.

But this time, when the case went to the Atlanta-based 11th Circuit on appeal, a completely different panel chosen from the 12 judges ruled 2-1 that the prayers did in fact violate the Establishment Clause. In a decision on May 11, the majority wrote "the state cannot erase its control over or endorsement of prayer at a public school graduation through delegation of one portion of the graduation ceremony to the majority/plurality vote of students." The decision was written by Chief Judge Joseph Hatchett, formerly Florida's first black state Supreme Court justice, who had been appointed to the federal appeals court by President Jimmy Carter. Three days after issuing the ruling, Hatchett retired from the court.

He would not be around to protect its holding.

With graduation ceremonies bearing down _ scheduled to begin the week of June 7 _ the appeals court jumped into action. Without even waiting for the School Board's appeal, the judges vacated their retired colleague's ruling and scheduled full arguments for mid-October. Though they took three years to rule on Karen Adler's appeal, they reversed Emily Adler's victory in a matter of days.

No matter how you may feel about prayers at public school events, the activist behavior of the federal appeals court in this case is more than a little disconcerting.

Says Karen Adler: "It's scary that a court is encouraging kids to vote away the religious liberty of the minority. My parents know how majority rule works, they were told that Jews couldn't own property in Boca Raton."

From the beginning, this case has been about a government wanting to force its religion on young students and the real-life harms of religious intolerance. When Leslie Adler attempted to sit quietly through the objectionable Christian prayers at her own graduation, she was barked at by one of her classmates: "Stand up, you stupid bitch."

Then the court she thought would protect her instead said, in legal parlance, "amen to that."

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