Legal experts agree it is difficult to predict if a federal appeals court will even allow a hearing on graduation messages -- let alone rule in favor of the Duval County school system.
Some experts say the 11th U.S. Circuit Court of Appeals will deny the school system's request for a hearing. Others say the 11 judges will rule in the school system's favor.
Yesterday, attorneys for the school system filed the petition for a hearing.
The school system's policy allows seniors to vote if they want a message delivered at graduation, which could include prayer.
Last month, a three-judge panel from the 11th Circuit ruled 2-1 that the policy is unconstitutional because it violates the separation of church and state.
The 15-page petition, written by Michael Wedner, an attorney for the school system, says the panel contradicted previous decisions by the U.S. Supreme Court and the 11th Circuit itself.
The petition says the case "presents fundamental constitutional issues of nationwide significance as to whether, and, if so, how public school officials may accommodate the free speech and free exercise of religion rights of graduation seniors without violating" the First Amendment.
The request for a hearing before the full circuit is the latest maneuver in years of litigation over prayer at graduation.
The case began in June 1993, when students and their families sued the school system, arguing the policy is unconstitutional.
The policy was established after the Supreme Court ruled in 1992 that schools cannot invite clergy to deliver prayers at commencement. Before that, it was customary for many high schools to allow such prayers.
(Judges in the 11th Circuit would also make up the panel hearing Duval County's school desegregation case, if the NAACP appeals a federal judge's ruling. The judge ruled last month that the county's public schools have been desegregated to the fullest extent possible.)
The 11th Circuit includes Florida, Georgia and Alabama. Judges typically work out of Jacksonville, Miami, Tampa, Atlanta and Montgomery.
Ernst Mueller, an attorney for the school system, said he expects to learn in about a month if the 11th Circuit agrees to a hearing on graduation prayer.
But such hearings before the full circuit are rarely granted, said Donald Songer, a professor in government and international studies at the University of South Carolina.
"Normally, chances are not very good," said Songer, an expert in voting patterns on federal appeals courts. "But this is a close case, so it is one they may want to look at."
Working for Duval's advantage is that Supreme Court decisions have not dealt with student-generated prayer at graduation, and that circuit courts throughout the nation are conflicted, he said.
Thomas Walker, chairman of the political science department at Emory University in Atlanta, said these so-called "en banc" hearings are disruptive because they force all the judges to halt their work and meet in Atlanta.
For this reason, he said, courts are reluctant to hold such hearings unless absolutely necessary.
"I take `absolutely necessary' to mean that the panel ruling seems to be at odds with established precedent or it is so novel and important that the entire court needs to decide," Walker said. …