Doe Ex Rel. Doe v. School District of City of Norfolk ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-4135
___________
John Doe, a minor, by and through his *
mother and next friend, Mary Doe; *
Mary Doe, *
*
Plaintiffs-Appellants, *
* Appeal from the United
v. * States District Court
* For the District of Nebraska
The School District of the City of *
Norfolk, in the County of Madison, *
a/k/a School District Number 2 of *
Madison County, Nebraska, a political *
subdivision; Randy Nelson, in his *
individual and official capacities; *
James Scheer, in his individual and *
official capacities, *
*
Defendants-Appellees. *
*
_________________________ *
*
Anti-Defamation League, *
*
Amicus on Behalf of Appellant. *
__________
Submitted: June 9, 2003
Filed: August 20, 2003
__________
Before MORRIS SHEPPARD ARNOLD and RILEY, Circuit Judges, and BOGUE,1
District Judge.
__________
BOGUE, District Judge.
Plaintiffs-Appellants John Doe, a minor, and Mary Doe, his mother and next
friend, appeal the district court’s2 dismissal of their Establishment Clause claims
which arose, in part, as a result of a recitation of a Christian prayer commonly known
as the Lord’s Prayer at a high school graduation ceremony. After careful
consideration we conclude that the district court properly dismissed the action against
each of the separate parties.
I. FACTUAL AND PROCEDURAL BACKGROUND
On May 10, 2000, School District Number Two of Madison County, Nebraska
(“School District”), held a rehearsal in preparation of a ceremony honoring the
graduating students of Norfolk Senior High School. The ceremony was scheduled
for May 14, 2000. At the rehearsal, John Doe learned that the ceremony would
include two separate prayers, an Invocation and Benediction. The separate prayers
were placed on the program schedule after a meeting during which the students voted
in favor of the traditional practice. Students were allowed to submit non-sectarian
and non-proselytizing prayers for consideration. Principal Stephen Morton
(“Morton”) reviewed the proposed prayers, deleted proposed prayers which did not
meet the specified criteria, and submitted the remaining prayers to a student
committee for selection by vote. One student was ultimately selected to deliver the
1
The Honorable Andrew W. Bogue, Senior United States District Judge for
the District of South Dakota, sitting by designation.
2
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
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Invocation and a different student was selected to give the Benediction. Morton
explained to the students that they were to remain standing for the Invocation after
the playing of the national anthem. He also instructed the males to remove their caps
during the national anthem and Invocation.
After returning home from the rehearsal, John Doe, who had not participated
in the student vote concerning the inclusion of the Invocation and Benediction at the
ceremony, informed his mother, Mary Doe, of the scheduled prayers. Mary Doe
proceeded to contact the American Civil Liberties Union (“ACLU”). On May 12,
2000, the ACLU informed Superintendent Randy Nelson (“Nelson”) that legal action
may be taken by a student if the Invocation and Benediction were included at the
ceremony. Each member of the Board of Education (“School Board”) was notified
of the ACLU’s contact with Nelson. The School Board, in response to an
administrative recommendation, agreed to remove the prayers from the ceremony.
At the opening of the ceremony, which was attended by the Does, School
Board President Brad Krivohlavek (“Krivohlavek”) notified the audience of the
change in the program. Videotapes recorded Krivohlavek’s statement. In relevant
part, Krivohlavek stated:
Before we begin today’s festivities, I feel I must share with you a change
in today’s program. With deepest regret from the Board and
Administration and with our most sincere apologies to the Senior Class
of 2000, we will need to remove the Invocation and Benediction from
today’s graduation ceremonies. Just a few days ago our Administration
was notified by an ACLU attorney that the Norfolk Public Schools
would be sued if it proceeded with the inclusion of prayer at graduation.
The Board has also been told that this is now the law of the Eighth
Circuit Court. After two days of intensive negotiations with legal
officials from across the State, including advice from the State Supreme
Court, the Board has been advised not to proceed with these prayers.
While Norfolk Public Schools has been one of the last schools in the
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State of Nebraska to continue to include prayer at graduation, we are
saddened that it has come to this. The Board of Education hopes the
graduates, parents, and community will understand and support this
difficult decision.
The graduation ceremony proceeded without the scheduled Invocation.
At some point during the ceremony, Krivohlavek introduced James Scheer
(“Scheer”), as a member of the School Board, stating that he had “a few words to
share.” Scheer was given access to the podium as a result of the School Districts’
past practice of allowing School Board members, whose children were part of the
graduating class, to address the students and the audience. Scheer’s remarks were
also captured on videotape. He stated:
I promise to make this uh fairly short for me. There is a saying that
when the door closes another one opens. We have been prohibited from
doing some things at today’s ceremony and it’s brought me to a lot of
reflections over the last couple of days. And when I have to reflect, I
usually turn and ask for guidance. And one of the things that I usually
do is to recite. So I am going to recite something, and I would ask and
more so, encourage, any of you that this sounds familiar [sic] to please
join in. Our Father, who art in heaven, hallowed be thy name. Thy
kingdom come, thy will be done, on earth as it is in heaven. Give us our
daily bread, and forgive us our trespasses as we forgive those who
trespass against us and lead us not into temptation but deliver us from
evil, for thine is the kingdom and the power and the glory forever. May
God be with you always.
Please, please take a seat. Back to my original discussion. You need to
think about in [sic] the rest of your life in setting goals. And the real
challenge is twofold. If you meet that goal, to reset an even higher goal.
The bigger challenge, however, is when you set the goal and you’re
unable to obtain the goal, not to lower the goal. We will all have
failures – physically, mentally and spiritually. Your charge is not to
lower the bar, to keep the bar high. I’ll leave you with this. From what
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we learned Wednesday, we learned the meaning behind in [sic] how to
say good-bye. May God be with you always. Congratulations.
The record reflects that as Scheer recited the Lord’s Prayer, no students stood or
removed their caps although two individuals on the stage did stand. While no
representative of the School District interrupted Scheer or disclaimed the recitation,
there is no evidence that any School District officials knew about Scheer’s intentions
prior to his speech. In fact, Nelson and Morton have indicated that they were shocked
and surprised by Scheer’s comments.
On November 29, 2001, the Does filed suit against the School District and
against Nelson and Scheer both in their individual and official capacities, alleging
violations of the Establishment Clause. The School District and Nelson filed a
motion to dismiss on January 25, 2002. While the district court was considering the
motion to dismiss, the parties participated in discovery. On August 14, 2002, the
district court dismissed the charges against the School District and against Nelson,
in his official capacity.3 On September 3, 2002, the Does and Nelson, in his
individual capacity, filed motions seeking summary judgment. Several weeks later,
on September 23, 2002, the Does formally filed a motion to amend their original
complaint. Also on September 23, 2002, Scheer filed a motion for judgment on the
pleadings. The district court denied the motion to amend the pleadings, granted
summary judgment in favor of Nelson, and granted Scheer’s motion for judgment on
the pleadings after converting it to a motion for summary judgment. The Does now
appeal, raising numerous issues.
3
An official capacity suit is treated as a suit against the governmental entity.
See Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 3105, 87 L.Ed.2d
114 (1985). Thus, we will make no further reference to the allegations against
Nelson, in his official capacity.
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II. STANDING
Although standing was not addressed by the district court, we are obligated to
consider the issue on appeal. See U.S. v. Hays, 515 U.S. 737, 742, 115 S.Ct. 2431,
2435, 132 L.Ed.2d 635 (stating that federal courts have an independent obligation to
examine jurisdictional issues). “Standing is the constitutional requirement, imposed
by the ‘cases and controversies’ provision of Article III, that a plaintiff must allege
a judicially cognizable and redressable injury in order to pursue a lawsuit.” Ben
Oehrleins and Sons and Daughter, Inc. v. Hennepin County, 115 F.3d 1372, 1378 (8th
Cir. 1997) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555,559-560, 112 S.Ct.
2130, 2135-36, 119 L.Ed.2d 351 (1992)). Establishing standing requires a plaintiff
to demonstrate the following: “(1) an ‘injury in fact’ that is both (a) concrete and
particularized, and (b) actual or imminent, rather than conjectural or hypothetical; (2)
a causal connection between the alleged injury and the defendant’s conduct; that is,
that the injury is ‘fairly traceable’ to the challenged action; and (3) that it is likely that
a favorable decision will redress the injury.” Id. (quoting Lujan, 504 U.S. at 560-561,
112 S.Ct. at 2136-37).
Scheer does not challenge the Does’ standing to bring suit against him.
Similarly, the School District and Nelson do not dispute the Does’ standing on issues
related to the allegation that they authorized or coerced participation in Scheer’s
recitation of the Lord’s Prayer. We have little trouble finding that the Does have
standing to challenge Scheer’s action as well as the School District’s and Nelson’s
potential involvement in Scheer’s comments. The Does were subjected to an
unwelcome religious recitation at a school function and therefore have standing to
challenge the action. See Valley Forge Christian College v. Americans United for
Separation of Church and State, Inc., 454 U.S. 464, 487 n.22, 102 S.Ct. 752, 762, 70
L.Ed.2d 700 (1982) (noting that when impressionable schoolchildren are subjected
to unwelcome religious exercises, the standing requirement is satisfied).
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Whether the Does have standing to sue the School District, Nelson, and Scheer,
to challenge the School District’s past policy of allowing prayer at graduation
ceremonies, presents a much closer issue. The Does argue that they have standing
based upon the government endorsement of religion at the mandatory graduation
rehearsal. In response, the School District and Nelson argue that the Does could not
have suffered an “injury in fact” as a result of the policy because the Invocation and
Benediction were cancelled prior to the graduation ceremony.
John Doe was instructed, at the graduation rehearsal, of the planned Invocation
and Benediction, as well as the proper conduct during the Invocation. As Judge Kopf
noted in ACLU v. City of Plattsmouth, NE, 186 F.Supp.2d 1024 (D. Neb. 2002),
other circuits have determined that an allegation of direct personal contact with
offensive acts alone is sufficient to satisfy the standing requirement. Id. at 1030-1031
(citing Foremaster v. City of St. George, 882 F.2d 1485 (10th Cir. 1989), cert. denied,
495 U.S. 910, 110 S.Ct. 1937, 109 L.Ed.2d 300 (1990); Saladin v. City of
Milledgevile, 812 F.2d 687 (11th Cir. 1987); Hawley v. City of Cleveland, 773 F.2d
736 (6th Cir. 1985) cert. denied 475 U.S. 1047, 106 S.Ct. 1266, 89 L.Ed.2d 575(1986)). However, this case presents a situation where John Doe was simply
informed that offensive conduct was scheduled to occur. We simply cannot find that
this occurrence satisfies the “injury in fact” element of the standing analysis.
Additionally, we note that the Does, in their complaint, sought a declaration
that the recitation of the prayer at the ceremony violated their constitutional rights.
As a result of this specific deprivation, they requested damages for emotional distress,
mental anguish, humiliation, embarrassment, and other injuries related to the alleged
violation of their constitutional rights. The Does have failed to even assert that the
School District’s past policy caused them any injury. As such, the School District’s
past policy of allowing an Invocation and Benediction at the graduation ceremony
was never before the district court and similarly is not before us for consideration.
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III. DISCUSSION
The alleged Establishment Clause violation, addressed by the district court in
its summary judgment opinion, is Scheer’s recitation of the Lord’s Prayer. We begin
our analysis by focusing on Scheer’s conduct at the graduation ceremony, reviewing
the district court’s grant of summary judgment de novo and applying the same
standards. Hammond v. Northland Counseling Center, Inc., 218 F.3d 886, 891 (8th
Cir. 2000).
A. Motion For Summary Judgment
In granting summary judgment in favor of Scheer and Nelson, in his individual
capacity, the district court cited Adler v. Duval County School Board, 206 F.3d 1070,
1080 (11th Cir. 2000) (en banc), reinstated, Adler v. Duval County School Board, 250
F.3d 1330 (11th Cir. 2001),4 stating that not every speaker at a high school graduation
should be considered a state speaker. However, the district court ultimately supported
its decision by applying the well-known tests enumerated by the Supreme Court in
Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) and Lee v.
Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992). Considering the
unique facts and circumstances surrounding this case, we feel that the “private”
speech argument raised by Scheer warrants specific consideration.
As the Supreme Court recently restated, with approval, “‘there is a crucial
difference between government speech endorsing religion, which the Establishment
Clause forbids, and private speech endorsing religion, which the Free Speech and
4
Hereafter, Adler v. Duval County School Board, 206 F.3d 1070, 1080 (11th
Cir. 2000) (en banc), reinstated, Adler v. Duval County School Board, 250 F.3d
1330 (11th Cir. 2001) shall be referred to as Adler I, whereas, Adler v. Duval
County School Board, 250 F.3d 1330 (11th Cir. 2001) shall be referred to as Adler
II.
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Free Exercise Clauses protect.’” Santa Fe Independent School District v. Doe, 530
U.S. 290, 303, 120 S.Ct. 2266, 2275, 147 L.Ed.2d 295 (2000) (quoting Board of Ed.
of Westside Community Schools (Dist. 66) v. Mergens, 496 U.S. 226, 250, 110 S.Ct.
2356, 2372, 110 L.Ed.2d 191 (1990) (opinion of O’Connor, J.)). The issue before us
involves the constitutional rights of a parent who is also a member of the School
Board, rather than those of a student. While expressly noting this distinction, we
believe applicable principles can be gleaned from the analysis provided in Santa Fe.
In Santa Fe, the Supreme Court specifically addressed the private speech issue,
rejecting an argument that student-led prayer before football games was
constitutionally protected private speech and not public speech. 530 U.S. at 302, 120
S.Ct. at 2275. Critical to Santa Fe’s conclusion was the determination that the
speech delivered by a student pursuant to the school policy was state-sponsored rather
than private. Adler II, 250 F.3d at 1336; Chandler v. Siegelman, 230 F.3d 1313,
1315 (11th Cir. 2000) (noting that Santa Fe prohibits school sponsorship of student
prayer) . In reaching this conclusion, the Supreme Court indicated that the “degree
of school involvement” made it clear that the prayers bore “the imprint of the State[.]”
Santa Fe, 530 U.S. at 305, 120 S.Ct. at 2277 (quoting Lee, 505 U.S. at 590, 112 S.Ct.
at 2657). Because Scheer’s remarks were not sponsored and did not bear the imprint
of the state, we find that his recitation of the Lord’s Prayer was constitutionally
protected private speech.
Our focus on the degree of school sponsorship or involvement in Scheer’s
recitation begins with the Does’ assumption that Scheer’s comments were made in his
representative capacity as an official of the State. While Scheer is undeniably linked
to the School District because of his membership on the School Board, we do not
believe this connection requires us to automatically reject Scheer’s private speech
argument. Cf. Brentwood Academy v. Tennessee Secondary School Athletic
Association et al., 531 U.S. 288, 295-296, 121 S.Ct. 924, 930, 148 L.Ed.2d 807-9-
(2001) (citation omitted) (stating that no single fact nor set of facts is absolutely
sufficient to find state action).
The Does contend that pursuant to Nebraska law, school board members “act
in a representative capacity, not as individuals.” Greer v. Chelewski et al., 76 N.W.2d
438, 441 (Neb. 1956) (citing Arehart v. School Dist. No. 8, 589 N.W. 540, 542 (Neb.
1940)). In Greer, the plaintiff sought to have the individual members of the school
board separately answer her request for admissions. Id. The board members filed
one reply, which listed their names but was signed by their attorney. Id. The court
determined that the acceptance of the reply was proper, finding that the members of
the school board were appearing on behalf of the school district and not as
individuals. Id. In contrast, whether Scheer was acting individually or on behalf of
the School Board is not quite so obvious. We believe that the informal policy which
allowed Scheer to address the audience, the facts surrounding his speech, and the
contents of the speech itself indicate sufficient separation between Scheer and his
membership on the School Board to warrant a determination that his remarks were
private and were not made in his representative capacity as an official of the School
District.
The School District’s informal policy required that Scheer meet two separate
criteria prior to speaking at the graduation ceremony; (1) a parent of a graduating
senior; and (2) a member of the School Board.5 Both requirements, parental and
School Board membership, were of equal importance and therefore the informal
policy criteria neither favor nor oppose a private speech determination. The parental
criterion indicates that Scheer was not acting solely in a representative capacity as a
member of the School Board, and the membership requirement indicates that Scheer
was not acting solely as a parent. However, the existence of the parental requirement
5
As the district court appropriately determined, this informal policy has no
constitutional deficiencies.
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is extremely significant and therefore we reject the argument that Scheer spoke only
in his official capacity as a member of the School Board. We do not believe that
Scheer’s membership on the School Board requires a finding of state-sponsorship,
rather, we view it merely as one of the factors which supports the involvement of the
state in the recitation of the prayer.
Santa Fe, in reaching its conclusion, places significant emphasis on the written
policy which subjected the student’s speech to specific regulations confining both the
topic and the content of the message. Santa Fe, 530 U.S. at 303, 120 S.Ct. at 2276.
In contrast, this dispute involves no formal policy implemented by the School District
by which it participated or approved of Scheer’s comments. In fact, there is no
evidence that any representative of the School District had any knowledge of Scheer’s
intentions. The 11th Circuit, considering a student-led graduation prayer dispute,
found Santa Fe to reinforce the notion that “[t]he total absence of state involvement
in deciding whether there will be a graduation message, who will speak, or what the
speaker may say combined with the student speaker’s complete autonomy over the
content of the message [means] that the message delivered, be it secular or sectarian
or both, is not state-sponsored.” Adler II, 250 F.2d at 1342 (quoting Adler I, 206
F.3d at 1071). We agree with the 11th Circuit’s application of the principles derived
from Santa Fe. The complete absence of any involvement by the School District in
determining whether Scheer would deliver a speech as well as the complete autonomy
afforded to Scheer in determining the content of his remarks indicates a lack of state-
sponsorship of his recitation.
Santa Fe does not provide an answer to the question of when religious speech
at a school function can be considered private, and thus, protected. See Chandler,
230 F.3d at 1316. However, it notes that one relevant inquiry is “‘whether an
objective observer, acquainted with the text, legislative history, and implementation
of the statute, would perceive it as a state endorsement of prayer in public schools.’”
Santa Fe, 530 U.S. at 308, 120 S.Ct. at 2278 (quoting Wallace v. Jaffree, 472 U.S. 38,
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76, 105 S.Ct. 2479, 2500, 86 L.Ed.2d 29 (1985) (O’Connor, J., concurring in
judgment)). Applying this precedent, the Supreme Court determined that “an
objective Santa Fe High School student will unquestionably perceive the inevitable
pre-game prayer as stamped with her school’s seal of approval.” Santa Fe, 530 U.S.
at 308, 120 S.Ct. at 2278.
Within the context of our case, Scheer was introduced as a member of the
School Board and no official made an attempt to disassociate the School District from
the recitation. However, the students and the audience were clearly and
unequivocally notified by Krivohlavek of the administrative decision, approved by
the School Board, that no prayers would be held at the ceremony. In addition,
Scheer’s comments, made immediately prior to his recitation of the Lord’s Prayer,
further distance his conduct from the School District. When Scheer referred to the
decision to cancel the Invocation and the Benediction, he used the term “we,” a clear
reference to the School Board. As Scheer’s remarks progressed toward his recitation
of the Lord’s Prayer, he began to use the terms “I” and “me,” indicative of a personal
statement. An objective Norfolk Senior High student would undoubtedly perceive
Scheer’s comments as his own private remarks. The facts surrounding Scheer’s
speech, including the speech itself, further evidence the complete lack of school
involvement or sponsorship in his remarks.
Scheer undeniably took advantage of his School Board membership to gain
access to a forum in which he could espouse his personal views. However, private
speech is constitutionally protected, even though it occurs at a school related
function. See Chandler, 230 F.3d at 1317. While recognizing Scheer’s School Board
affiliation and the principle that “free exercise of religion does not supersede the
fundamental limitations imposed by the Establishment Clause,” Lee, 505 U.S. at 587,
112 S.Ct. at 2655, the lack of involvement in Scheer’s conduct on the part of the
School District requires a determination that the recitation of the Lord’s Prayer
constituted private speech. The “religious liberty protected by the Constitution is
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abridged when the State affirmatively sponsors the particular religious practice of
prayer.” Santa Fe, 530 U.S. at 313, 120 S.Ct. at 2281. There being no affirmative
sponsorship of the practice of prayer in this case, no constitutional violation has
occurred.
B. Motion to Dismiss
Our private speech determination does not necessarily end this matter. In
addition to the constitutionality of Scheer’s recitation, the Does allege that the School
District and Nelson authorized or coerced their participation in the prayer. Prior to
its grant of summary judgment to Scheer and Nelson, in his individual capacity, the
district court had dismissed the claims against the School District. We review the
dismissal of a claim pursuant to Fed. R. Civ. P. 12(b)(6) de novo. See Springdale
Educ. Ass’n v. Springdale Sch. Dist., 133 F.3d 649, 651 (8th Cir. 1998). A complaint
must not be dismissed under 12(b)(6) “unless it appears beyond doubt that the
plaintiff can prove no set of facts that would demonstrate an entitlement to relief.”
Gordon v. Hanson, 168 F.3d 1109, 1113 (8th Cir. 1999). “[W]e accept the complaint’s
factual allegations as true and construe them in a light most favorable to the plaintiff.”
Id.Relying in part on Monell v. Department of Social Services, 436 U.S. 658, 98
S.Ct. 2018, 56 L.Ed.2d 611 (1978), the district court dismissed the complaint against
the School District. According to Monell, entities such as the School District can
only be sued under § 1983 if “the action that is alleged to be unconstitutional
implements or executes a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body’s officers.” 436 U.S. at 690, 98
S.Ct.at 2035-2036. Additionally, a deprivation of a constitutional right pursuant to
a governmental “custom” is also actionable. Id. Applying Monell, the district court
determined that the allegations found in the Does’ complaint did not support a finding
that the School District had any custom or policy supporting Scheer’s recitation of the
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Lord’s Prayer. We believe that the district court’s grant of the motion to dismiss was
proper. In addition, we reject the arguments raised by the Does on appeal.
The Does seek the opportunity to challenge the School District’s graduation
prayer policy. Our determination that the Does lacked standing to challenge the
School District’s graduation prayer policy necessarily precludes any further argument
addressing this particular issue. However, the Does also seek to connect the School
District to Scheer’s recitation. In pursuit of this objective, the Does argue that their
original complaint was sufficient to withstand a motion to dismiss. Specifically, they
contend that the law requires no heightened pleading requirement in a § 1983 action
against an entity such as a school district.6 See Leatherman v. Tarrant County
Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160,
1163, 122 L.Ed.2d 517 (1993). On the other hand, the School District and Nelson
suggest that the Does’ failure to plead the existence of a policy or custom that caused
the deprivation of a federal right requires dismissal. See Caldwell v. City of Elwood,
Ind., 959 F.2d 670, 673 (7th Cir. 1992) (stating that a § 1983 complaint must plead the
existence of a unconstitutional custom or policy).7
We cannot agree that the Does, seeking to sue the School District, must plead
the specific existence of an unconstitutional policy or custom. When a complaint is
6
In briefing, the Does raise this argument in support of their opposition to
the district court’s denial of their motion to amend. Because this argument
supports their opposition to the district court’s dismissal of the School District, we
address the contention at this juncture.
7
In support of its position, the School District Sanders v. Sears, Roebuck &
Co., 984 F.2d 972 (8th Cir. 1993). In Sanders, we stated that the plaintiff had
failed to plead that Sears had a policy or custom which caused the deprivation of a
federal right. Id. at 976. This comment, made in the context of our review of a
grant of summary judgment, does not support the proposition that a plaintiff must
plead the specific existence of an unconstitutional policy, custom, or procedure.
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filed, a plaintiff may not be privy to the facts necessary to accurately describe or
identify any policies or customs which may have caused the deprivation of a
constitutional right. Moreover, such a holding would disregard the liberality of Fed.
R. Civ. P. 8(a)(2) which requires merely “a short and plain statement of the claim
showing that the pleader is entitled to relief,” and 8(f), which states “pleadings shall
be so construed as to do substantial justice.” Thus, the failure of the Does to
specifically plead the existence of an unconstitutional policy or custom, in itself, is
not fatal to their claim for relief. The deficiency of their complaint is the complete
absence of allegations, reference, or language by which one could begin to draw an
inference that the conduct complained of, namely, Scheer’s recitation, resulted from
an unconstitutional policy or custom of the School District. At a minimum, a
complaint must allege facts which would support the existence of an unconstitutional
policy or custom. See Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521,
532-533 (5th Cir. 1996) (stating that a plaintiff must plead facts to support the
existence of a policy or custom).
The Does make several additional arguments which they believe expose the
School District to potential liability. The Does contend that the School District is
liable for their injuries because the School District had a pattern, policy, and practice
of endorsing prayer which resulted in the establishment of religion at the graduation
rehearsal. The fact that the Does, through subsequent discovery, uncovered the
existence of a formal written policy which approved of student-led prayer at
graduation ceremonies is not relevant to our determination regarding the adequacy
of the pleadings. Moreover, with regard to the complaint, the graduation rehearsal
allegations do not give rise to an inference of an unconstitutional policy or procedure
of the School District. See Ouzts v. Cummins, 825 F.2d 1276, 1278 (8th Cir. 1987)
(stating that a single incident is insufficient to establish a policy). Thus, the Does’
argument is without merit.
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Second, the Does argue that Nelson and the School Board are liable for
Scheer’s conduct because they improperly endorsed the prayer. In support of this
argument, the Does rely upon Steele v. Van Buren Public School District, 845 F.2d
1492 (8th Cir. 1988). In Steele, a teacher began leading the band in prayer at
rehearsals and performances. Id. at 1493. The superintendent and the school board
were made aware of the objections to the practice but took no formal action. Id. at
1494. A parent of the student sued and the district court entered a permanent
injunction prohibiting the challenged practice. Id. On appeal, the determination was
made that the school board’s failure to act and the superintendent’s approval of the
conduct subjected the school district to liability. Id. at 1495-1496. However, Steele
does not stand for the naked proposition that a school district can incur liability when
its school board members or representatives fail to act or tacitly approve of a religious
exercise. Rather, the case holds that the failure to act and tacit approval of a religious
exercise supports a finding of the existence of a custom or policy of allowing prayer
in school. Id. at 1495. A factual distinction is clearly present between Steele and this
present controversy. In Steele, the teacher continued to pray, with the knowledge of
the superintendent and the school board, for several months, id. at 1493-1494,
whereas in this situation, only a single religious recitation occurred. The failure to
disclaim one single religious exercise surely does not support the existence of a
custom or policy.
Finally, the Does argue that the School District incurred liability because
Scheer’s actions were attributable to the School District. The Does contend that a
municipality is exposed to liability if a governmental official was granted authority
and permission to speak for the entity. In support of their contention, the Does cite
Pembauer v. City of Cincinnati et al., 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed. 452(1986). Pembauer indicates that a municipality may incur liability for a single act by
municipal policymakers under appropriate circumstances, see id. at 480, 106 S.Ct. at
1298, and holds that “municipal liability under § 1983 attaches where--and only
where--a deliberate choice to follow a course of action is made from among various
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alternatives by the official or officials responsible for establishing final policy with
respect to the subject matter in question.” Id. at 484, 106 S.Ct. at 1300 (citing
Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791(1985)). The district court found that the allegations in the complaint indicated that
Scheer was acting in circumvention of the School District’s policy when the Lord’s
Prayer was recited, and did not support a conclusion that they acted with final
policymaking authority. We agree with the district court and therefore affirm its grant
of the motion to dismiss in favor of the School District.8
C. Motion to Amend
Finally, we address the Does’ contention that the district court erred by failing
to grant their motion to amend the complaint. We review the district court’s denial
of the Does’ motion to amend for abuse of discretion. See Concordia College Corp.
v. W.R. Grace & Co., 999 F.2d 326, 330 (8th Cir. 1993), cert. denied, 510 U.S. 1093,
114 S.Ct. 926, 127 L.Ed.2d 218 (1994). “Although it is well settled that leave to
amend should ‘be freely given when justice so requires,’ Fed. R. Civ. P. 15(a),
permission to amend may be withheld if the plaintiff does not have at least colorable
grounds for relief, or if she is guilty of undue delay, bad faith, dilatory motive, or if
permission to amend would unduly prejudice the opposing party.” Williams v. Little
Rock Mun. Water Works, 21 F.3d 218, 224 (8th Cir. 1994) (citing Foman v. Davis,
371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962)).
The district court refused to grant leave to amend, finding the amendment
would prejudice the School District. The district court also determined that allowing
leave to amend would result in significant delay. We find that the district court did
8
Our determination that the district court appropriately granted the School
District’s motion to dismiss precludes a finding that Mary Doe’s substantive due
process right to parental autonomy was violated.
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not abuse its discretion in refusing to grant leave to amend the complaint. First, the
Does did not seek leave to amend until September 23, 2002, over a month after the
School District had been formally dismissed from the lawsuit. Second, Nelson, in his
individual capacity, had already filed a motion for summary judgment. More notably,
the Does themselves had filed a motion for summary judgment. Third, the trial of this
matter had already been scheduled and the trial date was approaching.
Additionally, we note that “different considerations apply when a party seeks
to amend the pleadings after the district court dismisses the complaint.” In re
Nationsmart Corp. Securities Litig. v. Thaman, 130 F.3d 309, 322 (8th Cir. 1998)
(citing United Food and Commercial Workers Int’l Union v. Brown Group, Inc., 50
F.3d 1426, 1432 (8th Cir. 1995), rev’d on other grounds, 517 U.S. 544, 116 S.Ct.
1529, 134 L.Ed.2d. 758 (1996)). In the case before us, the Does were put on notice
of potential deficiencies in their complaint when the School District and Nelson filed
their motion to dismiss on January 25, 2002. However, the Does waited to seek leave
to amend until September 23, 2002, over a month after the dismissal of the claims
against the School District. Unexcused delay, by itself, is sufficient to justify the
district court’s denial of the motion to amend. See In re Nationsmart, 130 F.3d at
322.
The judgment of the district court is AFFIRMED
RILEY, Circuit Judge, concurring.
I concur completely in the majority opinion. I write briefly, and with great
respect, to address the dissent. I agree Scheer recited a prayer at a state sponsored
event by using his positions as a School Board member and a parent to address the
assemblage. As the dissent explains, Scheer was determined the ceremony would
include a prayer “despite the school board’s decision that it would not be.” That is
the point. Scheer privately decided to oppose the School Board’s public decision not
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to include prayer in the graduation ceremony by reciting the Lord’s Prayer during his
remarks. Scheer openly opposed and personally protested the School Board’s
decision, a classic exercise of free speech, through this religious act. No evidence
exists Scheer spoke on the Board’s behalf as opposed to protesting the Board’s
decision. The School District had no prior knowledge of Scheer’s protest. The
School District did not plan or approve the prayer, did not sponsor the prayer, and did
not collude or conspire with Scheer. The undisputed facts establish the District’s
Board thoroughly researched Doe’s complaint, decided to remove the invocation and
benediction from the graduation ceremony, and announced the Board’s decision to
the audience, before Scheer registered his protest. Based on this record, no
reasonable person could conclude from these circumstances, and Scheer’s specific
remarks, that Scheer was doing anything other than protesting the School Board’s
decision.
MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting.
I dissent from the part of the court's judgment that upholds Mr. Scheer's quite
transparent effort to use his public office to thwart the efforts of the anonymous
plaintiffs to ensure that the Constitution is observed. The court refers to all the
apposite authorities, but, with respect, I believe that it applies them incorrectly. In
my view, in the context in which Mr. Scheer was operating, it is apparent that an
objective observer could see his actions as state-sponsored. See Santa Fe Indep. Sch.
Dist. v. Doe, 530 U.S. 290, 308 (2000). He was acting as a member of the school
board in an environment in which the recent school-prayer controversy had already
been alluded to; indeed, the school board president, instead of merely passing the
matter by, had intentionally expressed his displeasure that the first amendment had
been invoked and the plans for an invocation abandoned. It is at the very least a jury
question whether an objective observer would regard Mr. Scheer's "speech" as state-
sponsored.
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It needs saying directly, though the court does not say so, that Mr. Scheer was
not merely speaking, he was praying. He invoked the deity. He "spoke" in the
vocative case and he invited others to join in. He recited a prayer that must have been
familiar to everyone who was present. This was a religious act, pure and simple, at
a state-sponsored event by a state actor who, or so at least a reasonable person could
conclude, was determined that the ceremony would be outfitted with a benediction
despite the school board's decision that it would not be. This was the manifest
purport of Mr. Scheer's statement that "there is a saying that when the door closes
another one opens." For that action, Mr. Scheer should be required to respond in
damages.
I therefore respectfully dissent.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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