SAN FRANCISCO -- The federal appeals court for nine Western states withdrew an Idaho ruling allowing student-initiated prayers at high school graduation Friday and said the issue would be decided by an 11-judge panel.
Last May, a three-judge panel of the 9th U.S. Circuit Court of Appeals upheld a rural Idaho school district's policy of allowing the top students in each senior class to decide whether to include a prayer in their graduation speeches.The students in the heavily Mormon district have invariably decided to include a prayer, usually at both the start and the end of the ceremony, said an American Civil Liberties Union lawyer whose clients challenged the policy. But the appellate panel said no one's rights were violated as long as the students were free to decide without interference from the district.
However, the court said Friday a majority of its active judges had voted to refer the case to an 11-judge panel for a new hearing, at a date not yet scheduled. The court apparently took the vote at the request of one of its judges; there was no record of an ACLU request for a rehearing.
James B. Lynch, a lawyer for the Madison School district, said he was not sure what issues the judges wanted to consider. He declined comment on the court's order.
ACLU lawyer Stephen Pevar was away from his office and unavailable for comment.
Student-led prayer has been a much-disputed issue since the Supreme Court banned compulsory prayer in public school classes in 1962 and at high school graduations in 1992. Courts have disagreed on whether putting students in charge creates enough distance from school authority to preserve the constitutional separation of church and state.
The New Orleans-based 5th U.S. Circuit Court of Appeals ruled earlier this month that nonsectarian student-led prayers, which did not mention any specific deity, were allowed at high school graduations. The same ruling prohibited those prayers at football games.
The 9th Circuit, the nation's largest federal appellate court, faced the issue last year in a case from eastern Idaho.
The Madison School District's policy, in effect for at least a decade, allows the top four students in the senior class to give graduation speeches and include any material they choose, including prayers. The administration cannot censor content and can give only nonbinding advice on appropriate language.
The three-judge panel ruled last May that the district's policy, while permitting prayer, did not create a government endorsement of the choice or content of any prayer.
"By allowing any speech the student chooses, the policy neither advances nor inhibits religion," said the opinion by Judge Diarmuid O'Scannlain. "Even if a prayer is read, the policy does not make this an act of establishment (of religion) by the school district."
The court also said any possibility that prayers would appear to have school district approval was reduced by a disclaimer in graduation programs that said district trustees did not endorse religion and were only recognizing the right of individuals to express themselves.
But the ACLU's Pevar, speaking after the panel ruling, said the Supreme Court had found a similar disclaimer meaningless in a case involving a school that posted the Ten Commandments on a classroom wall.
Pevar said district trustees were well aware that students in the district, which is more than 90 percent Mormon, would put prayers in their speeches. He said the graduation program also included religious songs.
He said his clients, two non-Mormon students, "feel like outcasts" at graduation ceremonies. Their mother was also allowed to challenge the policy under the name of Jane Doe, saying she feared retaliation.
The suit was filed in 1990, but was delayed to await the 1992 Supreme Court ruling and another ruling on Jane Doe's ability to remain anonymous over the school district's objections.