UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PHYLLIS WRIGHT HARRIS, on her
own behalf and on behalf of her
three children; BEVERLY HARRIS
BUTLER, formerly Beverly Harris;
JOINT SCHOOL DISTRICT NO. 241; D.C. No.
BOARD OF TRUSTEES OF DISTRICT CV-91-00166-HLR
NO. 241; TRENT WOODS, OPINION
Chairperson of Board; AL ARNZEN,
CITIZENS PRESERVING AMERICA'S
HERITAGE, INC., an Idaho
Corporation; et al.,
Appeal from the United States District Court
for the District of Idaho
Harold L. Ryan, District Judge, Presiding
Argued and Submitted
June 6, 1994--Seattle, Washington
Filed November 18, 1994
Before: Eugene A. Wright, Charles Wiggins
and David R. Thompson, Circuit Judges.
Opinion by Judge Wiggins; Partial Concurrence and Partial
Dissent by Judge Wright
Stephen L. Pevar, American Civil Liberties Union, Denver,
Colorado, for the plaintiffs-appellants.
James B. Lynch and Kirtlan G. Naylor, Imhoff & Lynch,
Boise, Idaho, for the defendants-appellees.
Stanley D. Crow, Boise, Idaho, for the defendants-
Jay Alan Sekulow, American Center for Law and Justice,
Washington, D.C., for amicus Student Coalition for Free
Marc D. Stern, American Jewish Congress, New York, New
York, for amicus American Jewish Congress, et al.
WIGGINS, Circuit Judge:
In this case, students and a parent of students challenge the
constitutionality of the inclusion of prayer in the Grangeville
High School graduation ceremony held yearly in Grangeville,
Idaho. The plaintiffs claim that the prayers violate Article IX,
sections 5 and 6,1 and Article I, section 4,2 of the Idaho Con-
1 Article IX, section 5 provides in part,
. . . Neither the legislature nor . . . any school district . . . shall
ever make any appropriation, or pay from any public fund or
moneys whatever, anything in aid of any church or sectarian or
religious society, or for any sectarian or religious purpose . . . .
Article IX, section 6, provides in part,
[N]o teacher or student of any [public educational institution of
the state] shall ever be required to attend or participate in any
religious service whatever.
2 Article I, section 4 provides in part,
No person shall be required to attend or support any. . . religious
sect . . . ; nor shall any preference be given by law to any reli-
gious denomination or mode of worship.
stitution (the "Idaho Religion Clauses"), and the Establish-
ment Clause of the United States Constitution. Plaintiffs
originally sued in state court. Defendants removed the case to
federal district court. The district court allowed several stu-
dents and parents to intervene on the side of the school dis-
trict. The intervenors claim that they have a right under the
Free Speech and Free Exercise Clauses of the United States
Constitution to have a prayer at the graduation ceremony.
Both the plaintiffs and intervenors moved for summary judg-
ment. The district court declined to rule on the state law
issues, held that the prayers did not violate the Establishment
Clause, and entered judgment for the defendants. Harris v.
Joint Sch. Dist. No. 241, 821 F. Supp. 638, 639 n.2, 639-44
(D. Idaho 1993). Plaintiffs appeal.
I. Idaho Constitutional Law Claims
Plaintiffs first contend that the district court erred by
declining to decide whether the prayers violated the Idaho
Constitution. The district court ruled as follows regarding
these state law claims:
Given the fact that important state constitutional
issues have been raised, this court finds that it is
appropriate for those issues to be resolved by the
courts of the State of Idaho. In light of the present
posture of this case, rather than certifying questions
to the Idaho Supreme Court, this court will rule on
the federal constitutional issues and close the case.
Thereafter, should they choose to do so, the parties
may pursue the state constitutional issues in a state
821 F. Supp. at 639 n.2.
 Though the district court's explanation is somewhat
ambiguous, we conclude that the district court exercised its
discretion to dismiss the state constitutional issues, over
which it had pendant or supplemental jurisdiction. 3 "We
3 The district court did not abstain under Railroad Comm'n v. Pullman
Co., 312 U.S. 496 (1941). Pullman abstention is an "exception[ ] to [a fed-
eral court's] duty to adjudicate controversies properly before [it]."
Richardson v. Koshiba, 693 F.2d 911, 915 (9th Cir. 1982). The Pullman
abstention doctrine allows a "federal court [to] postpone the exercise of its
jurisdiction" pending resolution of a state law issue when such resolution
would moot or present in a different light a present federal constitutional
issue. Knudsen Corp. v. Nevada State Dairy Comm'n, 676 F.2d 374, 377
(9th Cir. 1982).
"A district court abstaining under Pullman must dismiss the state law
claim and stay its proceedings on the [federal ] constitutional question until
a state court has resolved the state issue." Cedar Shake & Shingle Bureau
v. City of Los Angeles, 997 F.2d 620, 622 (9th Cir. 1993); see Manney v.
Cabell, 654 F.2d 1280, 1285 (9th Cir. 1980) ("The district court should
retain jurisdiction of the federal constitutional issues at the request of
either party, pending proceedings in the state courts."), cert. denied, 455
U.S. 1000 (1982); Santa Fe Land Improv. Co. v. City of Chula Vista, 596
F.2d 838, 841 (9th Cir. 1979) ("If the court abstains under Pullman,
retention of jurisdiction, and not dismissal of the action, is the proper
course."). "The purposes of Pullman abstention are said to be to avoid
both unnecessary adjudication of federal questions and needless friction
with state policies." Privitera v. California Bd. of Medical Quality Assur-
ance, 926 F.2d 890, 895 (9th Cir. 1991) (internal quotations omitted); C-Y
Dev. Co. v. City of Redlands, 703 F.2d 375, 377 (9th Cir. 1983). Pullman
abstention is also intended to avoid the "premature determination of con-
stitutional questions." C-Y Dev. Co., 703 F.2d at 377 (internal quotations
omitted); accord Knudsen Corp., 676 F.2d at 377 ("One of the main prin-
ciples served by the Pullman abstention doctrine is the avoidance of decid-
ing constitutional issues.").
In this case, the district court did not postpone the exercise of its juris-
diction. Nor did the district court stay its proceedings until the state court
resolved the state law issues. Rather, the district court kept jurisdiction,
addressed the federal question, and decided the case. After deciding the
case, the district court "closed" it, so no jurisdiction was retained by the
district court pending resolution of the state law claims. The district
court's acts are inconsistent with abstention doctrines and purposes. They
show that the district court did not intend to abstain but instead dismissed
the pendant state law claims.
review the district court's decision whether to exercise pen-
dent jurisdiction for an abuse of discretion." O'Connor v.
Nevada, 27 F.3d 357, 362 (9th Cir. 1994); Imagineering, Inc.
v. Kiewit Pacific Co., 976 F.2d 1303, 1309 (9th Cir. 1992)
("clear error of judgment"), cert. denied, 113 S. Ct. 1644
Section 1367(c) of 28 U.S.C. provides that a district court
" `may decline to exercise supplemental jurisdiction over a
claim' if any one of the four circumstances listed in the statute
exist." O'Connor, 27 F.3d at 362-63 (quoting the statute). As
did the court in O'Connor, we find that "two of those circum-
stances . . . exist in the present case," id. at 363: "the [state]
claim[s] raise[d] . . . novel or complex issue[s] of State law
. . . [and] the district court ha[d] dismissed all claims over
which it ha[d] original jurisdiction . . . . " 28 U.S.C.
S 1367(c)(1), (3); see O'Connor, 27 F.3d at 363.
 First, whether the graduation prayers violate the Idaho
Constitution is a novel and complex issue of first impression.
The Idaho Supreme Court has not addressed prayer in the
public schools in any context. Moreover, the state constitu-
tional provisions bear no resemblance to those found in the
First Amendment and appear to be the product of Idaho's
unique religious history. Cf. Medrano v. City of Los Angeles,
973 F.2d 1499, 1506 (9th Cir. 1992) (affirming dismissal of
pendant claims in part because otherwise the district court
would have to "resolve difficult questions of California law"
(internal quotations omitted)), cert. denied, 113 S. Ct. 2415
 Second, after the district court decided that no Estab-
lishment Clause violation had occurred, it dismissed all
claims over which it had original jurisdiction."[I]n the usual
case in which federal-law claims are eliminated before trial,
the balance of the factors of economy, convenience, fairness,
and comity will point toward declining to exercise jurisdiction
over the remaining state-law claims." O'Connor, 27 F.3d at
363 (internal quotations and brackets omitted). For these rea-
sons, "we conclude that the district court did not abuse its dis-
cretion in declining to consider the state constitutional law
We recognize that generally a federal court "should avoid
the adjudication of federal constitutional issues when alterna-
tive grounds are available, . . . even when the alternative
ground is one of state constitutional law." Carreras v. City of
Anaheim, 768 F.2d 1039, 1042 (9th Cir. 1985) (citation omit-
ted). In this case, however, federal constitutional adjudication
was necessary whether or not the state constitutional claim
was present. If the district court had retained the Idaho consti-
tutional claims and decided that the Idaho constitution was
not violated, it would have had to resolve the plaintiffs'
Establishment Clause claim. If the district court had decided
that the prayers violated the Idaho Constitution, it would have
had to decide the intervenors' Free Exercise claim. See Col-
lins v. Chandler Unified Sch. Dist., 644 F.2d 759, 762-63 (9th
Cir.)(resolving free exercise and free speech arguments raised
by a school district, after holding that the district had violated
the Establishment Clause), cert. denied, 454 U.S. 863 (1981).
As it was, the district court dismissed the state law claim and
was left with only the federal claims. The district court was
faced with federal constitutional adjudication no matter how
it resolved the state law issues. Therefore, the doctrine recog-
nized in Carreras does not require that the district court (or
this court) consider the pendant state law claim. The Estab-
lishment Clause cases relied on by the plaintiffs, Ellis v. City
of La Mesa, 990 F.2d 1518 (9th Cir. 1993), cert. denied, 114
S. Ct. 2707 (1994), and Hewitt v. Joyner, 940 F.2d 1561 (9th
Cir. 1991), cert. denied, 112 S. Ct. 969 (1992), are inapposite.
In neither case was a federal free exercise or free speech right
II. The Establishment Clause
A. Lee and Collins
The plaintiffs contend that the district court erred in hold-
ing that the prayers did not violate the Establishment Clause.
The Supreme Court recently addressed, in Lee v. Weisman,
112 S. Ct. 2649 (1992), whether a prayer said at a high school
graduation ceremony violated the Establishment Clause.
In Lee, the principal of the high school invited Rabbi Leslie
Gutterman to deliver prayers at the Nathan Bishop Middle
School graduation. The principal gave the Rabbi a pamphlet,
prepared by an organization of Christians and Jews, recom-
mending what kinds of prayers should be given at civic cere-
monies. The principal also advised the Rabbi that the prayers
should be nonsectarian. The Rabbi's prayers were nonsectar-
ian yet squarely in line with Judeo-Christian tradition. The
graduation ceremony took place on school property. Atten-
dance was stipulated by the parties to be voluntary. Students
stood while the pledge of allegiance was said and remained
standing during the prayers. The Court could not determine
whether the Rabbi remained on the stage or participated in
any other aspect of the graduation. Though the facts recited
in the case describe only the Rabbi's prayer at the middle
school, the school district's practice at the high school gradua-
tion, substantially the same as that at the middle school, was
also at issue. Id. at 2652-54.
The Court held that the prayers violated the Establishment
Clause. Id. at 2661. The Court reasoned,
These dominant facts mark and control the confines
of our decision:  State officials direct the perfor-
mance of a formal religious exercise at . . . gradua-
tion ceremonies for secondary schools.  Even for
those students who object to the religious exercise,
their attendance and participation in the state-
sponsored religious activity are in a fair and real
sense obligatory, though the school district does not
require attendance as a condition for receipt of the
Id. at 2655. As to the first dominant fact, the Court reasoned
that direction by state officials created a "potential for
divisiveness" over religion. Id. at 2656.
As to the second dominant fact, the position of the students,
the Court reasoned that "there are heightened concerns with
protecting freedom of conscience from subtle coercive pres-
sure in the elementary and secondary public schools. " Id. at
2658. In this environment,
[w]hat to most believers may seem nothing more
than a reasonable request that the nonbeliever
respect their religious practices . . . may appear to
the nonbeliever or dissenter to be an attempt to
employ the machinery of the State to enforce a reli-
. . . . The undeniable fact is that the school dis-
trict's supervision and control of a high school grad-
uation ceremony places public pressure, as well as
peer pressure, on attending students to stand as a
group or, at least, maintain respectful silence during
the Invocation and Benediction. This pressure,
though subtle and indirect, can be as real as any
overt compulsion. . . . . . . . [F]or the dissenter of
high school age, who has a reasonable perception
that she is being forced by the State to pray in a man-
ner her conscience will not allow, the injury is . ..
real. There can be no doubt that for many, if not
most, of the students at the graduation, the act of
standing or remaining silent was an expression of
participation in the Rabbi's prayer. That was the
very point of the religious exercise. . . . . What
matters is that, given our social conventions, a rea-
sonable dissenter . . . could believe that the group
exercise signified her own participation or approval
Id. at 2658. The Court also noted that whether attendance at
high school graduation could be called "voluntary " or not was
irrelevant. High school graduation is an extremely important
event, important enough that "to say a teenage student has a
real choice not to attend her high school graduation is formal-
istic in the extreme." Id. at 2659. "It is a tenet of the First
Amendment that the State cannot require one of its citizens to
forfeit his or her rights and benefits as the price of resisting
conformance to state-sponsored religious practice. " Id. at
This court has also addressed the practice of praying at high
school assemblies. Collins v. Chandler Unified Sch. Dist., 644
F.2d at 759. In Collins, the Student Council requested and
was granted permission by the principal to open with prayer
student assemblies held on school property during school
hours. The Student Council "allotted a certain amount of time
on the [assembly] agenda and selected one member of the stu-
dent body to say the prayer. The selected student was free to
choose the manner and words in which the prayer was
delivered." Id. at 760. Students not wishing to attend the
assembly could "report to a supervised study hall." Id.
 We held that these prayers violated the Establishment
Clause, citing the "three part test enunciated in Lemon v.
Kurtzman," 403 U.S. 602 (1971). "That test establishes that a
state regulation does not violate the Establishment Clause if
(1) the enactment has a secular purpose; (2) its principal or
primary effect neither advances nor inhibits religion; and (3)
it does not foster an excessive entanglement with religion."
644 F.2d at 762. Applying the Lemon test, we found that, first,
"the invocation of assemblies with prayer has no apparent
secular purpose . . . . Second, the primary effect of such
prayer appears to advance religion . . . ." Id. (citations omit-
ted). Third, the prayers involved excessive entanglement
because "the school assemblies required surveillance by
school officials and . . . probably involved attendance by fac-
ulty or administrators needing to supervise the obviously large
gathering of students." Id.
We also held that there was "no meaningful distinction
between school authorities actually organizing the religious
activity and officials merely `permitting' students to direct the
exercises." Id. at 761. Further, we noted that whether atten-
dance at the assemblies could be called voluntary was irrele-
vant. "The . . . students must either listen to a prayer chosen
by a select group of students or forego the opportunity to
attend a major school function. It is difficult to conceive how
this choice would not coerce a student wishing to be part of
the social mainstream and, thus, advance one group's reli-
gious beliefs." Id. at 762.
B. Facts of this Case
We examine the facts of this case against the background
of Lee and Collins. Grangeville High has had an invocation
and a benediction at high school graduation since 1981 or ear-
lier. Grangeville High's graduation is in many if not most
respects like the graduation at issue in Lee. The fairly stan-
dard program has been repeated year after year. 4 Graduation
is held in the school gymnasium. The school board sets the
time for graduation. The school pays the bills for the cere-
mony, from public funds, including costs of the building,
4 Grangeville High graduation is like most other high school gradua-
tions. The high school band plays a processional. After the traditional
invocation, the band plays the national anthem. An invited speaker gives
a commencement address. The principal presents the graduating class. A
trustee of the school board presents the diplomas. Then the band plays
again, a benediction is said, and the graduating class marches out. Only
slight variations in this program have occurred in the last thirteen years
(i.e., the pledge of allegiance in place of the national anthem).
chairs, platform for speakers, sound system, secretarial help,
and janitorial staff.
The school district contends, however, and the district court
found, that the facts in this case differ from Lee in a manner
that makes Lee inapposite. The school district has taken a
number of steps to distance itself from the decisions whether
to have a prayer, who to select to say it, and how it is to be
said. Essentially, the school district claims that the
Grangeville High senior class, as a group, by majority vote,
have made these decisions and otherwise planned the gradua-
tion program without interference from school officials.
[I]n this case it is the senior students themselves, not
the principal, who determine every element of their
graduations, including whether or not prayer will be
part of the ceremony, and, if so, who will say it.
. . . .
Although each and every element of high
school graduation may not be "voted on"
by the senior class, if the students chose to
change traditions or change the way in
which the graduation ceremony occurs, the
students would have the right and authority
to do so. For example, the students could
decide that no music be played, that the
national anthem not be played, that there
not be a printed program, that there not be
a speaker, or the students could decide to
completely change the sequence of gradua-
tion and who presents diplomas. The fact
that the students may not in a given year
vote on each and every procedure does not
in any way affect the senior class students'
opportunity to decide these issues.
Harris, 821 F. Supp. at 641 (quoting the school district's
statement of facts).
In November 1990, School District Superintendent Al Arn-
zen sent a memo to all principals regarding prayer at gradua-
tion ceremonies. The memo stated:
I just want to make sure we are all doing the same
thing for Invocation and Benediction at graduation.
The school board is permitting . . . and not requiring
Invocation and Benediction at graduation. These are
the guidelines I want you to follow:
1. Let the senior students vote on whether they do
or don't want Invocation and Benediction at gradua-
2. If the answer is yes, then they should vote on
whether they want a minister or a student to say the
Invocation and Benediction.
3. If the students vote for a minister, then the stu-
dents should vote on which minister they want to say
the Invocation and Benediction.
4. If the students vote for students to say the Invo-
cation and Benediction, you may want to have the
3rd and 4th students in GPA do this. Make every-
thing an option and let the students vote. We will
dictate nothing to the students. If a student does not
want to go to graduation, I would not force the issue.
Give him/her the diploma after the graduation exer-
Id. at 641-42 n.7. The memo "did not change existing policy,
but simply reinforced" prior practice. Id. at 642 (internal quo-
tations omitted). However, from 1991 forward, students were
given written ballots for the prayer poll, whereas before a
hand vote was taken.
Also, since 1991, the following disclaimer has appeared in
the commencement programs:
The Board of Trustees of Joint School District No.
241 neither promotes nor endorses any statements
made by any person involved in the graduation cere-
mony. The District endorses each person's free exer-
cise of speech and religion and any comments or
statements made during the graduation ceremony
should not be considered the opinions or beliefs of
the District, the Board of Trustees or the Superinten-
Id. On the basis of these facts, the district court concluded that
there was "little or no [state] involvement " in the process
resulting in prayer. Id. at 643.
To the facts relied on by the district court, defendants add
the following: The students' freedom to plan the program is
illustrated by the fact that in 1990 the benediction consisted
of a musical number by two graduating students. In 1992,
Grangeville again had a musical benediction. In 1993, Clear-
water Valley High, also in District No. 241, had a moment of
silence, without prayers. While Grangeville High principal
Judy Leuck has in the past asked students who participate in
commencement, including those who pray, to write down
what they will say, no school official reviews presentations
prior to commencement. No one is asked to participate in the
prayer by standing, bowing their heads, or removing their
hats. The prayer is not included in commencement rehearsal.
The district also notes that seniors can choose whether or
not to have the commencement. If the class goes ahead with
commencement, senior class officers have the responsibility
to contact individuals participating. The senior class pays for
the printed commencement program from funds it has raised
and from student activity fees it receives from the school. The
district does not consider the commencement to be part of its
educational program. Beyond these facts, the intervenors
stress that seniors make all decisions relating to the ceremony.
In fact, Superintendent Arnzen agreed with the statement that
"[t]he principal doesn't have the power to decide that there
will be no prayer at graduation."
The plaintiffs wish us to consider other facts: Some stu-
dents voted not to have prayer at graduation. Seniors have
never voted on some aspects of graduation. For instance, that
the school band play the processional has never been ques-
tioned. Rather, the school principal and band director have
arranged that in order to involve students in the graduation
ceremony. The prayers that were given were Christian
prayers. Some school board members made statements to the
press in support of graduation prayers. Principal Leuck agreed
that, under present school policy, school officials would not
interfere with a graduation planned by the senior class even
if the students voted to "have the whole thing be a religious
1. Lee and Collins Applied
 The Court in Lee noted two facts that marked and con-
trolled its decision: (1) state involvement and (2) the obliga-
tory nature of the students' participation in the religious
activity taking place at graduation. The district argues that the
first controlling fact of the Lee decision, state involvement, is
absent in this case. The district claims that the involvement of
the seniors in place of the school district is sufficient to distin-
guish Lee and shield the prayers from the reach of the Estab-
In support, the district cites Jones v. Clear Creek Indep.
Sch. Dist., 977 F.2d 963 (5th Cir. 1992), cert. denied, 113
S. Ct. 2950 (1993). Jones addressed a school district policy
similar to that involved in this case. The school district gave
discretion to the senior class to choose whether they would
have prayers at graduation. Id. at 964, 964 n.1. The Jones
court concluded that, because the school district had engaged
in no acts of state control similar to those present in Lee, the
Establishment Clause did not prohibit the prayers. Id. at 970-
71. The Jones court further concluded that, because the stu-
dents themselves participated in the decision as to whether
prayers should be said, there was less coercive effect on the
students who attended graduation. Id. at 971-72. Jones also
held that the school district's determination to delegate the
decision to the seniors, with prayers resulting, passed the
Lemon test. Id. at 966-69.
We are not persuaded by the reasoning in Jones . In this
case, we find present both of the factors relied on by the Court
a. State Involvement
 For several reasons, we find state involvement in this
case pervasive enough to offend Establishment Clause con-
cerns. First, the school ultimately controls the event. "At a
high school graduation, teachers and principals must and do
retain a high degree of control over the precise contents of the
program, the speeches, the timing, the movements, the dress,
and the decorum of the students." Lee, 112 S. Ct. at 2660; see
also Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986).
Significantly, all of the parties in this case agree that the
seniors have authority to make decisions regarding graduation
only because the school allows them to have it. No party has
argued that high school seniors, as a class, have an exclusive
right to direct their high school graduation by majority vote.
To the contrary, the parties appear to agree, as we do, with
what Superintendent Arnzen said was a fair characterization
of graduation: "[T]he graduation ceremony is the presentation
by the school of diplomas representing graduation certificates
to the people who have fulfilled the requirements of the high
school for graduation." (Emphasis supplied.)
 Second, the school underwrites the event. The school
offers to the senior class, at no cost, the building and other
expenses. Even the commencement programs are paid for in
part with money the senior class is allotted from student regis-
tration funds. The graduation is attended and approved of by
school officials. School officials encourage the senior class
officers to prepare graduation and give them some control
over the program in order to encourage leadership.
Given that graduation is ultimately a school-controlled,
school-sponsored event, there appears in this case to be just
as much state involvement as appeared in Collins . As in
Collins, the assembly in this case occurs on school property
at a time scheduled and set aside by school officials.5 With
respect to state involvement, there is little if anything to dis-
tinguish the Grangeville High graduation ceremony from the
school assemblies at issue in Collins.
 We held in Collins that the fact that students set the
assembly agenda and make decisions as to whether a prayer
shall occur, who shall say it, and how it shall be said is insuf-
ficient to distance school officials from what would otherwise
be an Establishment Clause violation. We found "no mean-
ingful distinction" between school officials acting directly and
school officials "merely permitting students to direct the
exercises." 644 F.2d at 761 (internal quotations omitted).
Under Collins, therefore, whether school officials make the
decisions or give their authority to decide to another, the ulti-
mate responsibility for those decisions is borne by school offi-
cials. Applied in this case, Collins requires us to find state
involvement sufficient to violate the Establishment Clause.
That school officials cannot divest themselves of constitu-
tional responsibility by allowing the students to make crucial
decisions should not be surprising. "The very purpose of a
Bill of Rights was to withdraw certain subjects from the vicis-
situdes of political controversy, to place them beyond the
5 That school officials establish the time of graduation renders irrelevant
the fact that graduation does not take place during normal school hours.
reach of majorities and officials and to establish them as legal
principles to be applied by the courts." Board of Educ. v. Bar-
nette, 319 U.S. 624, 638 (1943). Because state and federal
governments are republican in nature, the Constitution usually
acts to limit the power of representatives. The Constitution's
reach is not limited only to the acts of representatives, how-
ever. Elected officials cannot avoid constitutional mandates
by putting them to a majority vote. "One's . . . fundamental
rights may not be submitted to vote; they depend on the out-
come of no elections." Id. "The notion that a person's consti-
tutional rights may be subject to a majority vote is. . .
anathema." Gearon v. Loudoun County. Sch. Bd., 844
F. Supp. 1097, 1100 (E.D. Va. 1993). Giving majorities the
power of the state without constitutional restrictions under-
mines the limitations on majority oppression the Constitution
establishes. It also in this case would inject into our public
schools the divisiveness regarding religion against which the
Lee decision intended to guard. 112 S. Ct. at 2656.
Furthermore, elected officials cannot absolve themselves of
a constitutional duty by delegating their responsibilities to a
nongovernmental entity. Even private citizens when acting
with government authority must exercise that authority consti-
tutionally. Cf. Evans v. Newton, 382 U.S. 296, 299 (1966)
(stating that "[c]onduct that is formally`private' may become
so entwined with governmental policies or so impregnated
with a governmental character as to become subject to the
constitutional limitations placed upon state action, " and listing
examples); Griffin v. Maryland, 378 U.S. 130, 135 (1964)
(holding an amusement park employee had engaged in state
action); Terry v. Adams, 345 U.S. 461 (1953) (holding a pri-
vate political society was sufficiently involved in the local
electoral process to warrant oversight by the judiciary lest the
society deprive other voters of their constitutional rights).
 In Collins, the school delegated its authority to make
decisions regarding school-sponsored, school-controlled
assemblies to the Student Council. In this case, the school dis-
trict has delegated its authority to make decisions regarding a
school-sponsored, school-controlled event to the Grangeville
High senior class. Lee holds that school officials cannot do
what the senior class has done in this case. We cannot allow
the school district's delegate to make decisions that the school
district cannot make. When the senior class is given plenary
power over a state-sponsored, state-controlled event such as
high school graduation, it is just as constrained by the Consti-
tution as the state would be.
Indeed, a decision to the contrary would allow school
boards in religious communities generally to avoid Establish-
ment Clause concerns in the public schools. The school board
could allow students to vote daily prayers and the Ten Com-
mandments back into their classrooms. See Engle v. Vitale,
370 U.S. 421 (1962) (daily prayers); Stone v. Graham, 449
U.S. 39 (1980) (the Ten Commandments). "While in some
societies the wishes of the majority might prevail, the Estab-
lishment Clause" requires us to reject that path. Lee, 112
S. Ct. at 2660. In short, we are "not persuaded that the
responsibility of the School Board may be treated so lightly
as the School Board insists." Collins, 644 F.2d at 762 (inter-
nal quotations omitted).
 The school district's disclaimer on the commencement
programs does not save the school's practice. The student in
the religious minority is well aware that the school has dele-
gated authority over the prayers to the majority of her class-
mates while retaining ultimate control over the school-
sponsored meeting. The student is also aware that the effect
of the delegation is that her religious views are subordinated
to the majority's. While the district asserts that it "neither pro-
motes nor endorses" the stated views, this disclaimer flies in
the face of what the student knows is occurring.
Cases cited by the school district are not to the contrary.
Zobrest v. Catalina Foothills Sch. Dist., 113 S. Ct. 2462
(1993), addressed whether the state could provide a publicly-
paid interpreter to a deaf student whose parents had chosen to
place him in a private parochial school. The Court held that
the Establishment Clause was not offended, in part because
the statute providing a publicly paid interpreter accorded par-
ents the right to select a school. Thus, the presence of the
interpreter in the parochial school was solely the result of pri-
vate choice, not "state decisionmaking." 113 S. Ct. at 2467.
Zobrest involved a neutrally distributed benefit, however, the
right to an interpreter. In this case, the privilege to choose
whether a prayer will be said at graduation is not a neutrally
distributed benefit. Each student is not allowed to have the
graduation she wants. Instead, the decision is made by a
majority of the senior class and imposed on a minority. More-
over, the majority-designated speaker who prays at graduation
teaches religion, unlike the interpreter in Zobrest who neu-
trally passes on the messages given by others. See 113 S. Ct.
Nor is Collins undercut, as the school district suggests, by
Lamb's Chapel v. Center Moriches Sch. Dist., 113 S. Ct. 2141
(1993), Board of Educ. v. Mergens, 496 U.S. 226 (1990), or
Garnett v. Renton Sch. Dist. No. 403, 987 F.2d 641 (9th Cir.),
cert. denied, 114 S. Ct. 72 (1993). Specifically, the school dis-
trict contends that its high school graduation is an open forum
in which student speech is allowed on a nondiscriminatory
basis such that the Establishment Clause is not offended. The
school district contends Justice O'Connor's opinion in
Mergens is most apposite:
"[A]n open-forum policy, including nondiscrimina-
tion against religious speech, would have a secular
purpose" . . . [Such a forum] does not "confer any
imprimatur of state approval on religious sects or
practices." Indeed, the message is one of neutrality
rather than endorsement; if a State refused to let reli-
gious groups use facilities open to others, then it
would demonstrate not neutrality but hostility toward
496 U.S. at 248 (opinion of O'Connor, J., for herself and three
other Justices)(quoting Widmar v. Vincent, 454 U.S. 263, 271,
274 (1981)) (citations omitted). All of these cases involved
the use of school property as a "public" or "open" forum of
some sort, in which school officials allowed on a nondiscrimi-
natory basis various non-school-related meetings to be held
on school property when the property was not being used for
school purposes. Lamb's Chapel and Mergens held that if
school officials create such a forum they cannot decline to
allow religious meetings to be held under similar circum-
stances solely because those meetings involve religion.
Lamb's Chapel, 113 S. Ct. at 2146-49; Mergens, 496 U.S. at
243-47; 496 U.S. at 248 (opinion of O'Connor, J.); see Wid-
mar v. Vincent, 454 U.S. at 271, 274. Garnett held that the
Equal Access Act, 20 U.S.C. SS 4071-74, on which Mergens
partly relies, overrides state constitutional law contrary to it.
987 F.2d at 644-46. In all of these cases, attendance at all reli-
gious as well as non-religious meetings was entirely volun-
tary, no religious meeting was sponsored by the school, and
school officials neither encouraged nor participated in the
meetings except on a custodial basis. E.g., Lamb's Chapel,
113 S. Ct. at 2143-48; Mergens, 496 U.S. at 231-47.
 Contrary to the suggestion of the district, this case
does not involve an open forum, at least with respect to prayer
at graduation and the rights of students in the minority, whose
rights are at issue in this case, see Lee, 112 S. Ct. at 2658.
Only speakers chosen by the majority of the senior class are
allowed. The message of the speakers is also chosen by the
majority; the relevant speakers are instructed to pray. No mat-
ter what message a minority of students may wish to convey,
the graduation forum is closed to them. A forum that allows
only selected speakers to convey an established message and
forecloses a significant portion of its members from any
speech at all is not open in the required sense. See Brody v.
Spang, 957 F.2d 1108, 1117-20 (3d Cir. 1992)."The govern-
ment does not create a public forum by inaction or by permit-
ting limited discourse, but only by intentionally opening a
nontraditional forum for public discourse." Cornelius v.
NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 802
(1985). Lamb's Chapel, Mergens, and Garnett are therefore
inapposite. Moreover, in this case, attendance is not entirely
voluntary, the graduation is sponsored by the school, and
school officials participate heavily in the production and pre-
sentation of commencement.
Collins therefore remains valid law and (with Lee) controls
this case as regards whether state involvement was present.
As implied by this discussion, we find the reasoning of Jones
and cases following it6 flawed. In any event, Collins requires
us to reject Jones's reasoning. Collins demonstrates that the
decision of school officials to hold a prayer is not the only
sort of state involvement precluded by the Establishment
 Once the requisite state involvement is shown, the rest
of this case is indistinguishable from Lee. Students are as
obligated to attend and participate in graduation prayers,
either by bowing their heads or "maintain[ing ] respectful
silence," Lee, 112 S. Ct. at 2658, at Grangeville High gradua-
tion as at the high school commencement discussed in Lee.
Collins is also instructive: "[S]tudents must either listen to a
prayer chosen by a select group of students or forego the
opportunity to attend" not just a school assembly but their
own graduation. See Collins, 644 F.2d at 762. "It is difficult
to conceive how this choice would not coerce a student wish-
ing to be part of the social mainstream . . . ." Id. The presence
of state involvement and the obligatory nature of the students'
participation in the religious activity taking place at gradua-
6 E.g., Adler v. Duval County Sch. Bd., 851 F. Supp. 446 (M.D. Fla.
tion render the Grangeville High graduation prayers
2. Lemon Applied
Analysis under the Lemon test, reviewed in Collins, leads
to a similar conclusion. Under the Lemon test, we examine
whether the state action has a secular purpose, has a primary
effect of advancing or inhibiting religion, or fosters excessive
entanglement with religion. Collins, 644 F.2d at 762.
"A government practice . . . fails the purpose prong of
Lemon if its purpose is to endorse a religious custom or
viewpoint." Kreisner v. City of San Diego, 1 F.3d 775, 781
(9th Cir. 1993), cert. denied, 114 S. Ct. 690 (1994). Collins
held that "the invocation of assemblies with prayer has no
apparent secular purpose . . . ." Collins, 644 F.2d at 762. The
graduation assembly or ceremony at issue here presents no
7 The district court reasoned that the Supreme Court could have
"ban[ned] all prayer at graduation ceremonies" but has not done so. 821
F. Supp. at 643. In support, the district court noted that the Supreme Court
considered Lee a fact-intensive decision. 112 S. Ct. at 2661. The district
court also noted that Jones was decided after the Supreme Court had
vacated and remanded for consideration in light of Lee an earlier Jones
decision reaching the same result as did the Jones decision on which the
school district relies. See Jones v. Clear Creek Indep. Sch. Dist., 112
S. Ct. 3020 (1992) (remanding Jones v. Clear Creek Indep. Sch. Dist.,
930 F.2d 416 (5th Cir. 1991) (Jones I), for reconsideration in light of
Lee). We think neither the fact-intensiveness of Lee nor the vacation and
remand of Jones I supports the notion that the Supreme Court would toler-
ate the prayer in this case. Lee was fact-intensive because Establishment
Clause "jurisprudence . . . is of necessity one of line-drawing." 112 S. Ct.
at 2661. Balancing interests and discerning purposes requires a
"willingness to distinguish between real threat and mere shadow." Id.
(internal quotations omitted). As to Jones, the district court was merely
speculating. We do not know why the Supreme Court took no further
action with regard to Jones I, 930 F.2d at 416. The district court's reliance
on a denial of certiorari of the second Jones decision, see 113 S. Ct. at
2950 (denying certiorari to review Jones, 977 F.2d at 963), involves the
same sort of speculation. See 821 F. Supp. at 643 n.10.
circumstances that would distinguish it from Collins. The
school district suggests that the prayer is intended to solem-
nize the occasion. However, we find solemnization through
prayer no more secular than the use of prayer in "the promo-
tion of moral values, the contradiction to the materialistic
trends of our times, [and] the perpetuation of our institutions
. . . ." Abington School Dist. v. Schempp, 374 U.S. 203, 223
(1963). Prayer and reading of the Bible without comment in
public schools were alleged to serve such purposes in
Abington, yet these goals were insufficient to save those prac-
tices under the Establishment Clause. 374 U.S. at 223-24. Nor
was the teaching of legal history sufficient to save the practice
of displaying the Ten Commandments on the high school wall
in Stone v. Graham, 449 U.S. at 39-40 n.1, 41-42. Prayer is
probably the "quintessential religious practice. " Jaffree v.
Wallace, 705 F.2d 1526, 1534 (11th Cir. 1983), aff'd, 472
U.S. 38 (1985). We conclude that solemnization is insuffi-
cient in this case to secularize what is objectively and inher-
Even if the prayers did have a secular purpose,"the pri-
mary effect of such prayer appears to advance religion . . . ."
Collins, 644 F.2d at 762. The prayers said in this case are
indistinguishable from those that might be said in a church
service. If said there, no one would dispute that their intent
and primary effect was to advance religion. We do not think
the character of the prayers changes when said at graduation.
For the foregoing reasons, we conclude that application of the
Lemon test demonstrates an Establishment Clause violation in
III. Free Speech and Free Exercise
 Like the school district in Collins, the district here and
the intervenors argue that to deny students permission to pray
at graduation would violate the students' rights to free speech
and free exercise of religion. See Collins, 644 F.2d at 762-63.
Essentially, the district and intervenors argue that, by giving
the senior class authority to control events at graduation, the
government has created an "open forum" at which, under the
First Amendment, the government may not limit the speech
that occurs. In support, they cite Mergens, 496 U.S. at 248
(opinion of O'Connor, J., for herself and three other Justices)
(quoting Widmar v. Vincent, 454 U.S. at 271, 274); Kreisner,
1 F.3d at 775 (holding that the city could not constitutionally
exclude from a city park a creche displayed at Christmas by
a private group); Jaffe v. Alexis, 659 F.2d 1018, 1020 (9th Cir.
1981) (holding that the California Department of Motor Vehi-
cles (DMV) could not constitutionally prohibit Krishnas from
disseminating tracts and soliciting funds on DMV property
that the DMV had "made generally available to the public for
speech activities"); and Hedges v. Wauconda Community Unit
Sch. Dist. No. 118, 9 F.3d 1295 (7th Cir. 1993) (holding that
a school could not prohibit or restrict students' dissemination
of religious literature more than other literature). As discussed
above, in Mergens various kinds of non-school-related speech
were allowed on a nondiscriminatory basis. See 496 U.S. at
243-47. The same was true in Widmar, 454 U.S. at 267, 274,
Kreisner, 1 F.3d at 778, and Jaffe, 659 F.2d at 1020. More-
over, the city park at issue in Kreisner was a traditional open
forum. 1 F.3d at 783. Our conclusion that the Grangeville
High graduation is not an open or public forum with regard
to the prayers disposes of this free speech argument.
 Collins disposes of the free exercise argument.
"[T]hese high school students are free to worship together as
they please before and after the school day," Collins, 644 F.2d
at 763 (internal quotations omitted), and outside of the gradu-
ation ceremony. Moreover, by entering the public sphere and
planning a state-controlled, state-sponsored meeting, the stu-
dents entered the domain of the Establishment Clause. "When
the explicit Establishment Clause proscription against prayer
in the public schools is considered, the protections of political
and religious speech are inapposite." 644 F.2d at 763 (internal
Contrary to the suggestion of the district and the arguments
of the intervenors, the district court will have little if any diffi-
culty fashioning an enforceable remedy in this case. Nor will
the school district have difficulty outlining what may take
place at graduation. Just as the school district gave permission
to the senior class to plan graduation in part, it may take back
its permission in part. The school purportedly gave seniors
this chance to plan graduation in order to teach them leader-
ship. If so, then it can teach them the responsibilities that go
with such leadership, one of which is to respect the constitu-
tional rights of others.
For the foregoing reasons, the decision of the district court
is AFFIRMED in part and REVERSED in part.
WRIGHT, Circuit Judge, Concurring in Part I and Dissenting
from Parts II and III.
This is not a prayer case involving classrooms or school
assemblies. Nor does it concern the selection by a high school
principal of a clergyman to provide a graduation prayer.
Rather, the issue is whether a school district in a rural Idaho
community may delegate to graduating students the planning
and execution of their commencement, including the decision
to offer an invocation and a benediction.
8 The intervenors also allege that disallowing seniors to pray at gradua-
tion denies them equal protection of the laws. We are unpersuaded. Prayer
at graduation as the intervenors envision it violates the Establishment
Clause. Denial of an opportunity to violate the Establishment Clause
denies to the intervenors no equal protection right.
Because I believe that the limited role of School District
No. 241 does not convey a message of state endorsement of
religion, I respectfully dissent from that portion of the major-
ity opinion finding an Establishment Clause violation. With-
out such a violation, there is also no need for the majority to
address the free speech and free exercise issues. I do agree
that the district court properly declined to decide the state law
In disposing of the merits, this court should follow the lead
of the Fifth Circuit in Jones v. Clear Creek Independent Sch.
Dist., 977 F.2d 963 (5th Cir. 1992), cert. denied, 113 S. Ct.
2950 (1993), and the test spelled out by the Supreme Court in
Lee v. Weisman, 112 S. Ct. 2649 (1992). Both provide better
guidance than our opinion in Collins v. Chandler Unified Sch.
Dist., 644 F.2d 759 (9th Cir.), cert. denied, 454 U.S. 863
In Collins we held that student-sponsored prayer at school
assemblies violates the Establishment Clause. Id. at 762. We
explained that classroom prayer cases such as Abington Sch.
Dist. v. Schempp, 374 U.S. 203 (1963), and Engel v. Vitale,
370 U.S. 421 (1962), supported "no meaningful distinction
between school authorities actually organizing the religious
activity and officials merely `permitting' students to direct the
exercises." Collins, 644 F.2d at 761.
But our holding in Collins must be limited to the context
of school day assemblies. That students rather than officials
made the decision could not have made a difference because
the assembly prayers, like those invalidated in Abington and
Engel, were held in an intrinsically coercive environment. All
were conducted regularly on school grounds during time allo-
cated for curricular activities when school attendance was
legally mandated. See Abington, 374 U.S. at 223; Engel, 370
U.S. at 422; Collins, 644 F.2d at 760-61.
We must instead look to the test articulated by the Supreme
Court in Lee, 112 S. Ct. at 2657-61, to measure the constitu-
tionality of commencement prayer.1 The Court held in Lee
that a school violates the Establishment Clause when it exer-
cises a high degree of control over graduation prayer, which
in conjunction with the compelled nature of attendance,
creates an unacceptable risk that students will be coerced to
participate. Id. The school principal in that case decreed that
an invocation and a benediction would be offered, chose the
religious participant and prescribed the content. Id. at
2655-56. The Court emphasized that Establishment Clause
analysis is "delicate and fact-sensitive," id. at 2661, and care-
fully limited its holding to the circumstances of the case. Id.
The majority finds the necessary degree of control because
School District No. 241 retains ultimate authority over com-
mencement, and sponsors the event by underwriting the costs.2
It reasons that "school officials cannot divest themselves of
constitutional responsibility by allowing the students to make
crucial decisions." See majority opinion, supra at 18-21. This
analysis, however, does not answer the underlying question
examined in Lee: Does the School District's involvement in
the decision to have and the presentation of an invocation and
a benediction make it clear that the prayer bears the imprint
of the state? 112 S. Ct. at 2657.3
The answer is no. As the district court concluded,"the
1 In contrast to school assemblies, commencement comes annually out-
side of the regular curriculum. It is a community event held not for the
entire student body, but for maturing seniors.
2 The Supreme Court has clarified that custodial oversight "does not
impermissibly entangle government in the day-to-day surveillance or
administration of religious activities." Board of Education of Westside
Community Schools v. Mergens, 496 U.S. 226, 253 (1990).
3 For a full summary of the elements of control relied on in Lee see
Jones, 977 F.2d at 970.
record demonstrates that faculty and administrators have little
or no involvement in that process." Harris v. Joint Sch. Dist.
No. 241, 821 F. Supp. 638, 643 (D. Idaho 1993). The seniors
independently plan their commencement, and decide whether
to offer an invocation and a benediction. See majority opin-
ion, supra at 13-17. The disclaimer in the commencement
program reaffirms that the School District does not endorse
any religious content. See majority opinion, supra at 16.
Absent the requisite state control there is no coercive effect.
Student-sponsored and initiated graduation prayer "place[s]
less psychological pressure on students than the prayers at
issue in Lee because all students, after having participated in
the decision of whether prayers will be given, are aware that
any prayers represent the will of their peers." Jones, 977 F.2d
The School District merely accommodates the students'
decision. Accommodation of and incidental benefits to reli-
gion do not violate the Establishment Clause. Lynch v. Don-
nelly, 465 U.S. 668, 681-83 (1984). Accommodation does not
endorse religious belief over disbelief, but rather shows
respect for the fundamental values of others. Lee, 112 S. Ct.
at 2676-77 (Souter, J., concurring).
And this accommodation in particular does not threaten to
advance religion. Invocation and benediction have historically
been integral and accepted elements of high school and col-
lege graduation ceremonies in this country. They have been
part of a broader tradition of opening public ceremonies with
prayer. Such formalities "serve, in the only ways reasonably
possible in our culture, the legitimate secular purposes of sol-
emnizing public occasions, expressing confidence in the
future, and encouraging the recognition of what is worthy of
4 I also agree with the Fifth Circuit that student initiated and presented
prayer at commencement satisfies the Lemon test. See Jones, 977 F.2d at
966-68; see also Adler v. Duval County Sch. Board, 851 F. Supp. 446,
451-455 (M.D. Fla. 1994).
appreciation in society." Lynch, 465 U.S. at 693 (1984)
(O'Connor, J., concurring).
Presidents have regularly offered prayers in inaugural
addresses.5 School days begin with the Pledge of Allegiance
and its reference to "one nation under God." The constitution-
ally valid practice of convening Congress with prayer dates
back over two centuries to the year the Senate and House of
Representatives reached final agreement on the language of
the Bill of Rights. Marsh v. Chambers, 463 U.S. 783, 788
(1983). The new graduates in School District 241 deserve to
so dignify their commencement. I would affirm.
5 President Bush in his inaugural address said:
And my first act as President is a prayer. I ask you to bow your
Heavenly Father, we bow our heads and thank You for Your
love. Accept our thanks for the peace that yields this day and the
shared faith that makes its continuance likely. Make us strong to
do Your work, willing to heed and hear Your will, and write on
our hearts these words: "Use power to help people." For we are
given power not to advance our own purposes, nor to make a
great show in the world, nor a name. There is but one just use of
power, and it is to serve people. Help us to remember it, Lord.
Inaugural Addresses of the Presidents of the United States 346 (1989).