Doe v. Santa Fe Indep Sch

Revised March 17, 1999
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-40150
_____________________
JANE DOE, Individually and as next of
friend for her minor children,
Jane and John Doe, Minor Children;
JANE DOE #2, Individually and as next
of friend for her minor child,
John Doe, Minor Child, and John Doe,
Individually,
Plaintiffs-Appellees-Cross Appellants,
versus
SANTA FE INDEPENDENT SCHOOL DISTRICT, ET AL.,
Defendants,
SANTA FE INDEPENDENT SCHOOL DISTRICT,
Defendant-Appellant-Cross Appellee.
_________________________________________________________________
Appeals from the United States District Court for the
Southern District of Texas
_________________________________________________________________
February 26, 1999
Before JOLLY, WIENER, and STEWART, Circuit Judges.
WIENER, JR., Circuit Judge:
In Jones v. Clear Creek Independent School District, 977 F.2d
963 (5th Cir. 1992) (Clear Creek II), we declared Clear Creek’s
policy of allowing a student-selected, student-given, nonsectarian,
nonproselytizing invocation and benediction at high school
graduations (“Clear Creek Prayer Policy”) not violative of the
Establishment Clause of the First Amendment to the United States
Constitution. The primary questions posed by this case are: (1)
whether the constitutionality of a Clear Creek Prayer Policy
depends on its “nonsectarian, nonproselytizing,” features, and (2)
whether the venue of a Clear Creek Prayer Policy may be extended to
high school football games without violating the applicable
provisions of the Constitution of the United States. For the
reasons that follow, we hold that (1) a public school prayer policy
that, unlike a Clear Creek Prayer Policy, permits sectarian,
proselytizing benedictions and invocations cannot pass
constitutional muster, and (2) extending a Clear Creek Prayer
Policy to cover messages delivered before a high school football
games violates the Constitution even if such a policy includes the
“nonsectarian, nonproselytizing” restrictions.
I
FACTS AND PROCEEDINGS
Santa Fe Independent School District (“SFISD”) is a political
subdivision of the State of Texas, and is governed by an elected,
seven-person Board of Trustees. As its name suggests, SFISD is
responsible for overseeing the public educational programs and
facilities of a small community in south Texas. In performing this
role, SFISD supervises over 4,000 students each of whom attends one
of five schools —— two primary schools, one intermediate school,
one junior high school, and one high school. The plaintiffs in
this action (the “Does”) are several children currently or formerly
2
enrolled in SFISD schools and their parents. In light of the
sensitive nature of the action, they have been allowed to proceed
anonymously.1
For some time prior to the onset of this litigation, the Does
believed that SFISD was pursuing policies that were in
contravention of the Establishment Clause. The evidence that the
Does were able to accumulate covered a wide variety of disturbing
incidents and practices, but for purposes of illustration we focus
on the following two items.2
First, in April 1993, while plaintiff Jane Doe II was
attending her seventh grade Texas History class, her teacher, David
Wilson, handed out fliers advertising a Baptist religious revival.
Jane Doe II asked if non-Baptists were invited to attend, prompting
Wilson to inquire about her religious affiliation. On hearing that
she was an adherent of the Church of Jesus Christ of Latter Day
Saints (Mormon), Wilson launched into a diatribe about the non-
1
A decision, we might add, that many SFISD officials
apparently neither agreed with nor particularly respected.
Attempts by SFISD administrators, teachers, and other employees
“overtly or covertly to ferret out the identities of the
Plaintiffs . . . by means of bogus petitions, questionnaires,
individual interrogation, or downright ‘snooping’” eventually
prompted the district court to threaten to visit upon them “THE
HARSHEST POSSIBLE CONTEMPT SANCTIONS” and/or “CRIMINAL LIABILITY”
(emphasis in original) if they did not cease their investigations.
2
Our recitation of the evidence, including the pseudonyms used
for specific anonymous plaintiffs, is taken principally from the
joint stipulations of the parties. References to “SFISD” include
the Board of Trustees, the superintendent, and other responsible
administrative officials as appropriate.
3
Christian, cult-like nature of Mormonism, and its general evils.
Wilson’s comments inspired further discussion among Jane Doe II’s
classmates, some of whom reportedly noted that “[h]e sure does make
it sound evil,” and “[g]ee, . . . it’s kind of like the KKK, isn’t
it?” Jane Doe II was understandably upset by this incident, and
two days later, her mother, Jane Doe I, complained to SFISD.
Because Wilson’s actions were concededly contrary to written SFISD
policies barring the distribution of religious literature in class
or the verbal abuse of any student, he was given a written
reprimand and directed to apologize to the Does and to his class.
Second, and of greatest significance to this case, for an
undisclosed period of time leading up to and including the 1992-93
and 1993-94 school years, SFISD allowed students to read overtly
Christian prayers from the stage at graduation ceremonies and over
the public address system at home football games.3 The prayers
3
For example:
1994 Graduation Invocation
Please bow your heads. Dear heavenly Father: Thank you
for allowing us to gather here safely. We thank you for
the wonderful year you have allowed us to spend together
as students of Santa Fe. We thank you for our teachers
who have devoted many hours to each of us. Thank you
Lord for our parents and may each one receive a special
blessing. We pray also for a blessing and guidance as
each student moves forward in the future. Lord, bless
this ceremony and give us all a safe journey home. In
Jesus’s name we pray.
1994 Graduation Benediction
Our most gracious heavenly Father: We thank you for
4
were delivered as “invocations” or “benedictions” for these events,
and typically were given by officers of the student council.4 Of
course, SFISD maintained complete control over the programs and
facilities during the reading of the prayers, including the ability
to mute the microphone or remove the speaker. Furthermore, the
bringing us to this, our graduation. We ask you to be
with us as we start a new beginning to our lives.
Father: We express our gratitude to all that have helped
us over the past three years. Especially do we thank our
parents, teachers, and friends who encouraged us,
counseled us, and always extended a helping hand when
needed. Please see us safely through this night and the
tomorrows of our lives. In Jesus’s name, Amen.
The record contains no examples of the football game prayers, but
we may assume for purposes of this opinion that they were similar
in content. As a bit of further background, it is interesting to
note that the closing paragraph of the salutatory address at the
1994 graduation was actually more proselytizing than the invocation
and benediction:
. . . There is only one thing which we as Christians can
truly rely [on]: the faithfulness and strength of a
loving God. It is now that each of us must stand on a
solid rock of Jesus Christ, stand up for those things on
which we believe. Even if it is alone that we must
stand. We, having done all, must continue to stand in
faith remembering that Christ would have suffered and
died for only one of us. So we begin the journey of
life, not a life of mediocrity and compromise, but the
possible life which Christ has promised, a life of
abundance and joy, being confident of this very thing,
that he who has begun a good work in you will complete it
until the day of Jesus Christ. Thank You.
4
In the case of the football games, the prayers were given by
the student council “chaplain,” a position created by the student-
written constitution and elected by students. It appears that at
graduation the student council president customarily gave the
invocation, and the secretary customarily gave the benediction.
5
text of the graduation invocations and benedictions was screened by
SFISD for content prior to the ceremony.
With regard to the football games, it is undisputed that no
written policy governing the invocations existed prior to the onset
of litigation in this case. With regard to graduation, SFISD did
draft a written policy the “June Policy”), but only in time for the
1994 ceremony. It read as follows:
The Board shall not permit clergymen to deliver
invocations or benedictions at promotional and graduation
ceremonies for secondary schools; nor shall school
officials direct the performance of a formal religious
exercise at such ceremonies. Lee et al. v. Weisman, 112
S. Ct. 2649 (1992) [See also EMI]
Dated June 17, 1993
After the 1994 graduation ceremony, but before the onset of the
instant litigation, SFISD amended its graduation policy (the
“October Policy”) to reflect more closely its interpretation of our
decision in Clear Creek II:
The Board shall not permit clergymen to deliver
invocations or benedictions at promotional and graduation
ceremonies for secondary schools; nor shall school
officials direct the performance of a formal religious
exercise at such ceremonies. Lee et al. v. Weisman, 112
S. Ct. 2649 (1992) [See also EMI (LEGAL)]
The Board may permit the graduating senior
class(es), with the advice and counsel of the senior
class sponsor, to elect to choose student volunteers to
deliver nonsectarian, nonproselytizing invocations and
benedictions for the purpose of solemnizing their
graduation ceremonies. Jones v. Clear Creek ISD, 977
F.2d 963 (5th Cir. 1992), cert. denied, 113 S. Ct. 2950
(1993).
Dated October 20, 1994
6
In April 1995, the Does filed suit against SFISD in the
Federal District Court for the Southern District of Texas.5 Citing
the instances described above and others, they alleged that SFISD
maintains policies and practices in violation of the Establishment
Clause. They demanded prospective injunctive and declaratory
relief in addition to money damages under 42 U.S.C. § 1983.
In the following month, acting in response to the Does’ motion
for a temporary restraining order regarding the imminent 1995
graduation ceremonies, the district court ruled that, consistent
with SFISD’s October Policy and our decision in Clear Creek II,
student-selected, student-given, nonsectarian, nonproselytizing
invocations and benedictions would be permitted, and that such
invocations and benedictions could take the form of a
“nondenominational prayer.” Although cautioning that SFISD should
play no role in selecting the students or scrutinizing and
approving the content of the invocations and benedictions, the
district court went on to note gratuitously that “generic prayers
to the ‘Almighty’, or to ‘God’, or to ‘Our Heavenly Father (or
Mother)’, or the like, will of course be permitted. Reference to
any particular deity, by name, such as Mohammed, Jesus, Buddha, or
the like, will likewise be permitted, as long as the general thrust
of the prayer is non-proselytizing, as required by [Clear Creek
5
The Does also sued several members of SFISD’s Board of
Trustees and administrators in their individual capacities, but all
of these defendants were dismissed in the early stages of the case.
7
II].”6 In anticipation of addressing the central issues of the
case, the trial court also admonished that SFISD would in due
course be directed to clarify a number of its Establishment Clause
policies, and, in particular, “to establish or to clarify existing
policies to deal with either banning all prayer, or firmly
establishing reasonable guidelines to allow nonsectarian and non-
proselytizing prayer at all relevant school functions.”
As an initial and, by its own admission, “emergency” response
to the court’s order, prior to the 1995 graduation, SFISD made a
few changes (the “May Policy”) to its pre-litigation October
Policy:
The Board has chosen to permit the graduating senior
class, with the advice and counsel of the senior class
principal or designee, to elect by secret ballot to
choose whether an invocation and benediction shall be a
part of the graduation exercise. If so chosen the class
shall elect by secret ballot, from a list of student
volunteers, students to deliver nonsectarian,
nonproselytizing invocations and benedictions for the
purpose of solemnizing their graduation ceremonies.
Jones v. Clear Creek ISD, 977 F.2d 963 (5th Cir. 1992)
cert. denied 113 S. Ct. 2950 (1993).
Dated May 23, 1995
By July, SFISD apparently had a chance to conduct a more
thorough review of its fundamental position on graduation
invocations and benedictions. At this point, the May Policy was
superseded by a new and, for purposes of this appeal, final version
(the “July Policy”):
6
Emphasis added.
8
The Board has chosen to permit the graduating senior
class, with the advice and counsel of the senior class
principal or designee, to elect by secret ballot to
choose whether an invocation and benediction shall be a
part of the graduation exercise. If so chosen, the class
shall elect by secret ballot, from a list of student
volunteers, students to deliver invocations and
benedictions for the purpose of solemnizing their
graduation ceremonies.
If the District is enjoined by court order from the
enforcement of this policy, then and only then will the
following policy automatically become the applicable
policy of the school district.
The Board has chosen to permit the graduating senior
class, with the advice and counsel of the senior class
principal or designee, to elect by secret ballot to
choose whether an invocation and benediction shall be a
part of the graduation exercise. If so chosen, the class
shall elect by secret ballot, from a list of student
volunteers, students to deliver nonsectarian,
nonproselytizing invocations and benedictions for the
purpose of solemnizing their graduation ceremonies.
Dated July 24, 1995
As SFISD readily admits, the fact that the initial paragraph of
this final graduation prayer policy intentionally removes the words
“nonsectarian, nonproselytizing” constitutes an additional and very
substantial deviation from both Clear Creek II and SFISD’s October
and May Policies. Indeed, it is this deviation that ultimately
forms the core of the issues before us today.
Less than two weeks later, the district court made good on its
earlier suggestion and formally ordered SFISD “to finalize a
unified 1st Amendment religion/expression policy addressing all
issues with options in content clearly set out” by October 13. The
court also directed both parties to prepare and submit stipulations
of fact by the same date.
9
In October 1995, SFISD for the first time adopted a written
policy to address football game invocations. Its provisions were
essentially identical to those of the July Policy on graduations.
The football game prayer policy (“Football Policy”) provides for a
student-selected, student-given “brief invocation and/or message to
be delivered during the pre-game ceremonies of home varsity
football games to solemnize the event, to promote good
sportsmanship and student safety, and to establish the appropriate
environment for the competition.” As with the July Policy on
graduation, the Football Policy was to provide no further guidance
as to content (i.e., no “nonsectarian, nonproselytizing”
limitation) unless SFISD should be “enjoined by a court order” to
do so. “Then and only then” was an alternate policy containing a
“nonsectarian, nonproselytizing” content limitation to take effect
automatically. On the preordained date, SFISD submitted the July
Policy and the Football Policy for the court’s consideration.
Pursuant to a supplemental court order, the Does and SFISD
eventually submitted 131 joint stipulations of fact. In February
1996, SFISD filed a motion for summary judgment on the basis that
no evidence supported the conclusion that the school district
currently or formerly sanctioned a policy or practice in violation
of the Establishment Clause. The Does responded to this motion,
but did not file a counter motion for summary judgment.
Early in June 1996, the district court issued a broad
preliminary ruling addressing many of the issues in the case.
10
Beginning with SFISD’s liability for past practices, the court
denied the school district’s pending motion for summary judgment
and instead granted summary judgment, sua sponte, in favor of the
Does. Analyzing the question under the three parallel
Establishment Clause tests applied by this court in Clear Creek II,
977 F.2d at 966-72, and Ingebretsen v. Jackson Public School
District, 88 F.3d 274, 278-79 (5th Cir.), cert. denied sub nom.
Moore v. Ingebretsen, __ U.S. __, 117 S. Ct. 388 (1996), the
district court found that many of the incidents identified by the
Does constituted impermissible coercion, endorsement, or purposeful
advancement of religion by the State, and that SFISD could be
fairly charged with having had de facto policies favoring the
incidents because they “occurred amidst the School District’s
repeated tolerance of similar activities and oftentimes with [its]
awareness and explicit approval.” In reaching this conclusion, the
court noted that it relied on such of the Does’ factual averments
as had been acquiesced in by SFISD in addition to those identified
in the joint stipulations, but that the court would afford SFISD a
limited opportunity to object to the liability finding at the
subsequent trial on damages, which the court tentatively scheduled
for mid-July 1996.
In addressing the question of prospective injunctive relief
from current policies, the district court decided to grant SFISD’s
motion for summary judgment on that point. It ruled that, whatever
may have happened in the past, SFISD had abandoned any potentially
11
problematic policies other than those concerning invocations and
benedictions at graduations and football games. As to these
policies, the court noted that they were essentially identical to
the policies upheld by this Court in Clear Creek II, “except for
the crucial distinction that the School District’s [primary]
policies do not require that any prayers delivered be nonsectarian
and non-proselytizing.” Because it read Clear Creek II as
mandating this additional limitation, the court held that the
initial paragraph of SFISD’s July Policy and Football Policy
constitutionally deficient. As each policy also contained an
alternative provision that was fully consistent with Clear Creek
II, and was specified to clutch in automatically if the court were
to find the basic policy constitutionally lacking, however, the
court ultimately concluded that injunctive relief would not be
appropriate; the court could simply “order” SFISD to implement the
fall-back provisions of the July Policy and the Football Policy.
The court therefore denied the Does’ request for injunctive relief
of any kind.
In December 1996, following a two-day trial on damages, the
district court entered its final judgment. Citing Collins v. City
of Harker Heights, 503 U.S. 115, 120-21 (1992), and Bennett v. City
of Slidell, 728 F.2d 762, 768 (5th Cir. 1984), the court held that
imputed liability is not cognizable under § 1983, and that the Does
had to prove more than the occurrence of isolated incidents to
demonstrate that SFISD maintained an unconstitutional policy or
12
custom for which it could be held liable in money damages under
that statute. Reversing an unclear portion of its earlier ruling,
the court found that each of the incidents for which the Does
claimed actual, compensable harm, particularly the David Wilson
“Mormon” matter, were nothing more than isolated occurrences, and
were not attributable to a policy or custom of SFISD. The court
further ruled, in the alternative, that, even if the claimed
incidents could be attributed to SFISD policies, the Does had
failed to prove any actual, compensable harm. The court concluded
by entering a take-nothing judgment against the Does. Because it
also concluded that the Does were unsuccessful as to every major
issue in the litigation, the court ruled that they were not
prevailing parties and denied their motion for attorney’s fees
under 42 U.S.C. § 1988. The court stated in the alternative that,
even if the Does were technically prevailing parties, it would
nonetheless deny them attorney’s fees as an exercise of discretion,
given that their success had been so limited and that they had
protracted the litigation unnecessarily by insisting on going to
trial on their damage claims. From this final judgment, both SFISD
and the Does timely appealed.
In its appeal, SFISD primarily challenges the district court’s
determination that a Clear Creek Prayer Policy must require that
prayers or statements be “nonsectarian, nonproselytizing” to be
constitutional. Should we be inclined to reverse the district
court as to the denial of damages and attorney’s fees, however,
13
then SFISD also challenges the finding of liability for past
Establishment Clause violations, claiming both procedural and
substantive errors on the part of the district court.
In their appeal, the Does argue that the district court erred
in (1) defining “nonsectarian, nonproselytizing” to permit
reference to particular deities; (2) allowing SFISD to extend a
Clear Creek Prayer Policy to football games; (3) denying injunctive
relief; and (4) refusing to award attorney’s fees. One plaintiff,
referred to above as Jane Doe II, also appeals the denial of
damages for the David Wilson “Mormon” incident.
II
ANALYSIS
We begin with SFISD’s primary argument that a Clear Creek
Prayer Policy need not include the “nonsectarian, nonproselytizing”
requirements to be constitutional. SFISD rests this argument on two
complementary contentions: (A) the nonsectarian, nonproselytizing
restrictions of Clear Creek II were irrelevant to the court’s
Establishment Clause holding; and (B) SFISD, in its July Policy,
has created a limited public forum and, therefore, not only need
not, but lawfully cannot, restrict the student speakers to
nonsectarian, nonproselytizing invocations and benedictions, as
such restrictions would constitute impermissible viewpoint
discrimination under the Free Speech Clause.7
7
Although for the sake of simplicity and clarity we address
SFISD’s arguments only as they relate to graduation ceremonies, our
analysis applies with equal, if not greater, force to the Football
14
A. The Establishment Clause
In beginning our analysis, it is well to note that our role is
necessarily limited to elucidating our prior precedent in the light
of its context and such subsequent clarifications as the Supreme
Court has announced. See Hogue v. Johnson, 131 F.3d 466, 491 (5th
Cir. 1997) (“One panel of this Court may not overrule another
[absent an intervening decision to the contrary by the Supreme
Court or the en banc court . . .].”), cert. denied, __ U.S. __, 118
S. Ct. 1297 (1998). The initial question may therefore be
conveniently summarized by reviewing the holdings of Clear Creek II
and its Supreme Court predecessor, Lee. By way of background,
however, we first set forth the Supreme Court’s three Establishment
Clause tests.
1. Three Supreme Court Tests
As we have often observed, Establishment Clause jurisprudence
is less than pellucid. We examine practices challenged on
Establishment Clause grounds under three complementary (and
occasionally overlapping) tests established by the Supreme Court.
Clear Creek II, 977 F.2d at 963; Ingebretsen, 88 F.3d at 278.
a. The Lemon Test
The first test, and the one of the longest pedigree, is the
disjunctive three-part Lemon test, under which a government
practice is unconstitutional if (1) it lacks a secular purpose; (2)
Policy as well.
15
its primary effect either advances or inhibits religion; or (3) it
excessively entangles government with religion. Lemon v. Kurtzman,
403 U.S. 602, 612-13 (1971).
b. The Coercion Test
The second test, which the Court announced in Lee v. Weisman,
505 U.S. 577 (1992) (invalidating school district’s policy
permitting school principals to invite clergy to give invocations
and benedictions in form of “nonsectarian” prayer at graduation
ceremonies), is commonly referred to as the Coercion Test. Under
this test, school-sponsored religious activity is analysed to
determine the extent, if any, to which it has a coercive effect on
students. “[U]nconstitutional coercion [occurs] when: (1) the
government directs (2) a formal religious exercise (3) in such a
way as to oblige the participation of objectors.” Clear Creek II,
977 F.2d at 970 (citation omitted).
c. The Endorsement Test
The third test, known as the Endorsement Test, seeks to
determine whether the government endorses religion by means of the
challenged action. County of Allegheny v. ACLU, 492 U.S. 573
(1989). The government unconstitutionally endorses religion when
“it conveys a message that religion is ‘favored,’ ‘preferred,’ or
‘promoted’ over other beliefs.” Id. at 593.
2. Lee and Clear Creek II
In Lee, the Supreme Court declared a school district’s policy
of allowing a high school principal to invite a religious official
16
to give a nonsectarian, nonproselytizing invocation and benediction
at graduation to be an unconstitutional “coercion” of participation
in a state-directed religious exercise. Lee, 505 U.S. at 586.
Four Justices appeared to find the policy to be an unconstitutional
“endorsement” of religion as well. Id. at 604-05 (Blackmun, J.,
joined by Stevens & O’Connor, JJ., concurring) & 629-30 & n.8
(Souter, J., joined by Stevens & O’Connor, JJ., concurring); cf.
Allegheny, 492 U.S. at 594 (discussing endorsements).
Then, in Clear Creek II, applying the three of the
Establishment Clause tests set forth above, we held that Clear
Creek’s policy of allowing a student-selected, student-given,
nonsectarian, nonproselytizing invocation and benediction at a high
school graduation ceremony —— SFISD’s fall-back provision in the
July Policy —— did not violate the dictates of the Establishment
Clause. Clear Creek II, 977 F.2d at 968-72.
SFISD asserts that a close reading of Clear Creek II reveals
that the school district’s graduation policy escaped the result in
Lee not because of its “nonsectarian, nonproselytizing” content
limitation, but rather solely because it permitted invocations and
benedictions as long as they are student-selected and student-
given. Inasmuch as our opinion in Clear Creek II specifically
relied on the school district’s requirement that the student-led
graduation prayers be nonsectarian and nonproselytizing in holding
that its policy did not offend the Establishment Clause, we find
SFISD’s reading of Clear Creek II to be specious at best.
17
First, we concluded in Clear Creek II that the twin
restrictions served the dual functions of enhancing the graduation
ceremony’s solemnization, thus permitting the policy to clear
Lemon’s secular purpose hurdle, while simultaneously reducing the
possibility of endorsing religion. Clear Creek II, 977 F.2d at 971
(“[T]he Resolution imposes two one-word restrictions Id.
at 967 (“Its requirement that any invocation be nonsectarian and
nonproselytizing minimizes any such advancement of religion.”); see
also Doe v. Duncanville Ind. Sch. Dist., 70 F.3d 402, 406 (5th Cir.
1995) (distinguishing “quintessentially Christian prayer”
basketball team prayers from nonsectarian, nonproselytizing prayers
in Clear Creek II). Moreover, as the primary-effect prong of Lemon
“asks whether . . . the practice under review in fact conveys a
message of endorsement or disapproval,” Lynch v. Donnelly, 465 U.S.
668, 690 (1984) (emphasis added), the character of the prayer being
scrutinized is clearly relevant to the Supreme Court’s closely-
related Endorsement Test as well. Finally, we rested our
determination that the graduation prayers did not constitute a
“formal religious exercise” for the purposes of Lee’s Coercion Test
in principal part on the fact that Clear Creek’s policy permitted
18
only nonsectarian, nonproselytizing prayers. Clear Creek II, 977
F.2d at 971.
Thus, contrary to SFISD’s conclusional suggestion, Clear Creek
II did not hold that a policy is insulated from constitutional
scrutiny under the Establishment Clause merely because it permits,
rather than requires, religious speech when selected and given by
students.8 Much more than mere window dressing, the content
restrictions that SFISD now attempts to cast aside were, in fact,
central to our holding in the Clear Creek II.9 More to the point,
we now conclude, in obeisance to the ineluctable precedent of Clear
Creek II, that a knock-off of a Clear Creek Prayer Policy that does
not limit speakers to nonsectarian, nonproselytizing invocations
and benedictions violates the dictates of the Establishment Clause.
3. Applying the Tests
8
In his dissent, Judge Jolly places great emphasis on the fact
that the Supreme Court has held that the nonsectarian nature of a
graduation prayer cannot resuscitate an otherwise unconstitutional
graduation prayer. We do not hold otherwise. Rather, we simply
follow Clear Creek II’s unmistakable conclusion that, although not
sufficient, a policy’s nonsectarian, nonproselytizing requirements
are necessary.
9
More generally, it is beyond peradventure that government
measures that lend succor to a particular religion, denominaiton or
sect fall at the very core of the conduct proscribed by the
Establishment Clause. See, e.g., Larson v. Valente, 456 U.S. 228,
246 (1982) (“Since Everson v. Board of Education, this Court has
adhered to the principle, clearly manifested in the history and
logic of the Establishment Clause, that no State can 512 U.S. 687, 696 (1994) (emphasizing
neutrality among religious sects is central to Establish Clause
jurisprudence).
19
Given the posture of this case, we limit our primary
discussion to those portions of the Supreme Court’s three
Establishment Clause tests with regard to which Clear Creek
II discussed the twin restrictions. Turning first to Lemon’s
secular purpose requirement, SFISD argues that, as in Clear Creek
II, its July Policy is designed to solemnize its graduation
ceremonies. We are, of course, mindful of the deference courts
typically afford a government’s articulation of secular purpose.
Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986); Clear Creek II,
977 F.2d at 965-66. Nevertheless, the government’s statement of
secular purpose cannot be a mere “sham.” Edwards v. Aguillard, 482
U.S. 578, 586-87 (1987). Here we simply cannot fathom how
permitting students to deliver sectarian and proselytizing prayers
can possibly be interpreted as furthering a solemnizing effect.
Such prayers would alter dramatically the tenor of the ceremony,
shifting its focus —— at least temporarily —— away from the
students and the secular purpose of the graduation ceremony to the
religious content of the speaker’s prayers. Indeed, an almost
inevitable consequence of permitting the uttering of such prayers
would be the polarizing and politicizing of an event intended to
recognize and celebrate the graduating students’ academic
achievements and the commonality of their presence and the path on
which they are about to embark. In short, rather than solemnize a
graduation, sectarian and proselytizing prayers would transform the
character of the ceremony and conceivably even disrupt it.
20
The context of the evolutionary history in which SFISD
developed its series of prayer policies further confirms the school
district’s penumbral religious purpose. As described above, SFISD
first formulated an “almost” Clear Creek Prayer Policy, one which
permitted students to deliver nonsectarian and nonproselytizing
prayers (the October Policy); then, following the district court’s
initial ruling, adopted a “pure” Clear Creek Prayer Policy (the May
Policy); and finally, on further reflection, created its ultimate
twin-tiered policy (the July Policy), initially dropping the key
content restrictions until and unless the district court should
hold the primary policy unconstitutional and thereby trigger
automatic implementation of the fall-back provision. As students
were already permitted to deliver invocations and benedictions
(even in the form of prayer) under SFISD’s previously articulated
policies, it is impossible to conclude that this final revision was
anything but an attempt to encourage sectarian and proselytizing
prayers —— a purpose which is the antithesis of secular.
See Ingebretsen, 88 F.3d at 279 (holding school district’s policy
permitting student-initiated prayer at compulsory or non-compulsory
school events did not have secular purpose because (1) its clear
intent was to inform students, teachers, and administrators they
can pray at school events as long as student “initiated” prayer and
(2) policy was passed as part of legislature’s reaction to
punishment of school president who championed prayer in school).
Our cynicism about the school board’s proffered secular purpose is
21
galvanized by SFISD’s inclusion of the fall-back alternative that
would re-insert the twin restrictions ipso facto should the
district court invalidate the basic provision of the July Policy.
Second, we conclude that, when shorn of the nonsectarian,
nonproselytizing restrictions, SFISD’s modified Clear Creek Prayer
Policy fails Lemon’s primary effect prong as well. “The effect
prong asks whether, irrespective of government’s actual purpose,
the practice under review in fact conveys a message of endorsement
or disapproval.” Lynch, 465 U.S. at 690. This consideration is
especially important in the context of public schoolchildren.
Aguillard, 482 U.S. at 583-84; cf. Lubbock Civil Liberties Union v.
Lubbock Indep. Sch. Dist., 669 F.2d 1038, 1048 (5th Cir. 1982)
(holding that high school was not public forum and stating “[w]hile
students have First Amendment rights to political speech in public
school, sensitive Establishment Clause considerations limit their
right to air religious doctrines.”).
Again, in Clear Creek II, we determined that a student-led,
nonsectarian, nonproselytizing prayer would serve to solemnize the
graduation ceremony and thus would not have the primary effect of
advancing religion. Clear Creek II, 977 F.2d at 967. As our later
cases of Ingebretsen and Duncanville make abundantly clear, though,
the mere fact that prayers are student-led or student-initiated, or
both, does not automatically ensure that the prayers do not
transgress Lemon’s second prong. Ingebretsen, 88 F.3d at 279
(holding school district’s policy permitting student-initiated
22
prayer at compulsory and non-compulsory school events had primary
effect of advancing religion); Duncanville, 70 F.3d at 407
(distinguishing Clear Creek II and holding school officials’
supervision of student-initiated and student-led prayers preceding
basketball games violated Establishment Clause, in part because
prayers were “quintessentially Christian”). Indeed, if subjecting
a prayer policy to a student vote were alone sufficient to ensure
the policy’s constitutionality, what would keep students from
selecting a formal religious representative, such as the rabbi in
Lee, to present a graduation prayer? Indeed, to take the argument
one step further, there would be no reason to deny the students the
authority to designate a formal religious representative to deliver
a full-fledged, fire-and-brimstone, Bible- or Koran-quoting,
sectarian sermonette (in the dress for a prolonged invocation or
benediction) at graduation; for, by putting the ultimate choice to
the students, the sermonette would not facially bear the
government’s imprimatur.
But government imprimatur is not so easily masked: Prayers
that a school “merely” permits will still be delivered to a
government-organized audience, by means of government-owned
appliances and equipment, on government-controlled property, at a
government-sponsored event, thereby clearly raising substantial
Establishment Clause concerns. Cf. Lee, 505 U.S. at 597 (School
officials “retain a high degree of control over the precise
contents of [a graduation ceremony], the speeches, the timing, the
23
movements, the dress, and the decorum of the students.”); Jones v.
Clear Creek Ind. Sch. Dist., 930 F.2d 416, 418 (5th Cir. 1991)
(“Clear Creek I”) (Graduation prayer policy “is subject to
Establishment Clause scrutiny because it is the mechanism through
which the state provides space in a closed forum for arguably
religious speech at a government sponsored event.”), vacated, 505
U.S. 1215 (1992); Jager v. Douglas County Sch. Dist., 862 F.2d 824,
831 (11th Cir. 1989) (examining school practice under Establishment
Clause “[w]hen religious invocation is given via a sound system
controlled by school principals and the religious invocation occurs
at a school-sponsored event at a school-owned facility”). And when
the school “permits” sectarian and proselytizing prayers —— which,
by definition, are designed to reflect, and even convert others to,
a particular religious viewpoint and which, as stated above, do not
serve (and even run counter to) the permissible secular purpose of
solemnizing an event —— such “permission” undoubtedly conveys a
message not only that the government endorses religion, but that it
endorses a particular form of religion.
For the very same reasons, SFISD’s prayer policy obviously
violates the Supreme Court’s Endorsement Test as well, which asks
whether the government has appeared to take a position on questions
of religious belief or has conveyed a message that religion is
favored, preferred, or promoted over other beliefs. Ingebretsen,
88 F.3d at 280.
24
Having concluded that student-selected, student-given,
sectarian, proselytizing invocations and benedictions at high
school graduations violate both the Lemon test and the Endorsement
test, we are not required to determine that such public school
prayer policies also run afoul of the Coercion Test to hold them
antithetical to the Establishment Clause. We nevertheless offer
the following observation for the sake of completeness.
As alluded to above, Clear Creek II held that the Clear Creek
Prayer Policy did not constitute a “formal religious exercise”
because (1) the prayers were not delivered by a member of the
clergy, and (2) the prayers were nonsectarian and nonproselytizing.
Clear Creek II, 977 F.2d at 971. Prayer, of course, is a
“quintessential religious practice,” Karen B. v. Treen, 653 F.2d
897, 901 (5th Cir. 1981), aff'd, 455 U.S. 913 (1982); and prayer in
school raises particularly sensitive constitutional concerns. As
the Supreme Court stated in Aguillard:
The Court has been particularly vigilant in monitoring
compliance with the Establishment Clause in elementary
and secondary schools. Families entrust public schools
with the education of their children, but condition their
trust on the understanding that the classroom will not
purposely be used to advance religious views that may
conflict with the private beliefs of the student and his
or her family. Students in such institutions are
impressionable and their attendance is involuntary.”).
Aguillard, 482 U.S. at 583-84. Only the combination of the factors
relied on in Clear Creek II —— that the prayer was student-led and
nonsectarian, nonproselytizing —— saved that school district’s
graduation prayers from being anathematized a “formal religious
25
exercise” for the purposes of Lee’s Coercion Test. Cf. Lee, 505
U.S. at 588-90 (holding nonsectarian, nonproselytizing graduation
prayer delivered by rabbi was “formal religious exercise”). Again,
because sectarian and proselytizing prayers are by their very
nature designed to promote a particular religious viewpoint rather
than solemnize an otherwise purely secular event, they cannot find
sanctuary in the tightly circumscribed safe harbor of Clear Creek
II and thereby avoid the appellation “formal religious exercise.”10
Nevertheless, as the Coercion Test is conjunctive and there is
no distinguishing difference between SFISD’s policy and the policy
of Clear Creek ISD in Clear Creek II with regard to the test’s
other two prongs —— government direction and obligatory
participation —— we need not and therefore do not belabor the point
by addressing today whether SFISD’s policy violates the Coercion
Test. It suffices that, when stripped of one of the foundational
elements on which Clear Creek II is constructed, SFISD’s graduation
prayer policy is so constitutionally deficient that it cannot
stand. By failing to prohibit sectarian and proselytizing prayers,
10
SFISD advances the argument that, because SFISD permits but
does not require prayer, such a prayer does not constitute a formal
religious exercise. See Clear Creek II, 977 F.2d at 971 (“By
contrast [to Lee], the Resolution tolerated nonsectarian,
nonproselytizing prayer, but does not require or favor it.”). This
contention is wholly unpersuasive, as a religious practice derives
its religious nature from its content and historical significance,
not from whether it is permitted or required by the school.
Neither a baptism nor a bar mitzvah, for examples, would be somehow
transformed into a secular events if a school set up a procedure by
which its students were permitted to vote to include such a ritual
in its graduation ceremony.
26
the July Policy not only lacks a secular purpose, but has the
primary effect of advancing, and unconstitutionally endorsing
religion.
B. The Free Speech Clause
Finding the landscape of Establishment Clause jurisprudence
inhospitable, SFISD alternatively seeks sanctuary for its
graduation prayer policy in the Free Speech Clause, a contention to
which we now turn. SFISD asserts that its July Policy survives
constitutional scrutiny because through this policy it has created
a “limited public forum.” This being the case, continues SFISD, it
is not simply permissible for the school district to allow
sectarian and proselytizing student prayers, but SFISD would be
guilty of unconstitutional viewpoint discrimination were it to do
otherwise. We disagree with these assertions for the simple reason
that as a matter of law SFISD has not created a limited public
forum. See American Civil Liberties Union of New Jersey v. Black
Horse Pike Reg’l Bd. of Ed., 84 F.3d 1471, 1477-78 (3d Cir. 1996)
(holding that school board’s graduation prayer policy permitting
students to vote to include prayer in graduation ceremony did not
create limited public forum); Harris v. Joint Sch. Dist. No. 241,
41 F.3d 447, 456-57 (9th Cir. 1994) (same), vacated as moot, 515
U.S. 1154 (1995).
We begin with the basics. “There are three classifications of
fora.” Hobbs v. Hawkins, 968 F.2d 471, 481 (5th Cir. 1992)
(quoting Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473
27
U.S. 788, 802 (1985)); Perry Educ. Ass’n v. Perry Local Educators’
Ass’n, 460 U.S. 37, 45 (1983)). The first category is the
traditional public forum. These are places, such as public parks
and streets, “‘which by long tradition or by government fiat have
been devoted to assembly and debate.’” Id. (quoting Cornelius, 473
U.S. at 802). Second, there is “‘the public forum created by
government designation.’” Id. This type of forum “‘may be
created by government designation of a place or channel of
communication [not traditionally open to assembly and debate] for
use by the public at large for assembly and speech, for use by
certain speakers, or for the discussion of certain subjects.’” Id.
Finally, there is the “‘nonpublic’ forum.” Id. (quoting Cornelius,
473 U.S. at 803). “This is the residual class of government-owned
property, to which the First Amendment does not guarantee access.”
Id.
A graduation ceremony is quite obviously not a traditional
public forum. The question, therefore, under the July Policy is
whether SFISD’s commencement program constitutes a government
designated public forum, or, more accurately, whether the portions
of the commencement program allocated to the invocation and
benediction constitute designated public fora. Two factors are key
to determining whether the State has transformed its property into
a designated public forum. The first is governmental intent.
Cornelius, 473 U.S. at 802 (“[T]he Court has looked to the policy
and practice of the government to ascertain whether it intended to
28
designate a place not traditionally open to assembly and debate as
a public forum”). The nature of the State property and its
compatibility with expressive activity are important indicia of
intent. Id. at 802; see also Arkansas Educational Television
Commission v. Forbes, 118 S. Ct. 1633, 1639 (1998) (holding public
television broadcasting not generally a public forum and stating in
broadcasting “broad rights of access for outside speakers would be
antithetical, as a general rule, to the discretion that stations .
. . must exercise to fulfill their journalistic purpose and
statutory obligations.”); Muir v. Alabama Educ. Television Comm’n,
688 F.2d 1033, 1042 (5th Cir. 1982) (“A facility is a public forum
only if it is designed to provide a general public right of access
to its use, or if such public access has historically existed and
is not incompatible with the facility’s primary activity.”).
The second factor relevant to determining whether the
government has established a public forum is the extent of the use
granted. See Perry, 460 U.S. at 46-47. A designated public forum
may, of course, be limited to a specified class of speakers or to
discussion of specified subjects —— thus the term “limited public
forum.” Estiverne v. Louisiana State Bar Assoc., 863 F.2d 371, 378
(5th Cir. 1989). Nevertheless, the State does not create a
designated public forum “by inaction or by permitting limited
discourse.” Cornelius, 473 U.S. at 802 (emphasis added). To
create such a forum, the government must allow “general access” to,
Id. at 802, or “indiscriminate use” of, Perry, 460 U.S. at 47, the
29
forum in question by the general public, or by particular speakers,
or for the discussion of designated topics.
Regarding the first factor —— governmental intent —— it is
clear that the government’s proffered intent does not govern this
inquiry, else it would be a limited inquiry indeed. In the typical
case, to justify a limitation it has placed on the speech of
private individuals, the State asserts that it has not created a
designated public forum. In the instant case, the reverse is true:
SFISD attempts to evade the requirements of the Establishment
Clause by running for the protective cover of a designated public
forum. We must, therefore, view skeptically SFISD’s own self-
serving assertion of its intent and examine closely the
relationship between the objective nature of the venue and its
compatibility with expressive activity.
In Estiverne, we framed the relevant inquiry as: “Does the
character of the place, the pattern of usual activity, the nature
of its essential purpose and the population who take advantage of
the general invitation extended make it an appropriate place for
communication of views on issues of political and social
significance?” Estiverne, 863 F.2d at 378-79. SFISD’s July Policy
flunks this test hands down.
Neither its character nor its history makes the subject
graduation ceremony in general or the invocation and benediction
portions in particular appropriate fora for such public discourse.
See Brody v. Spang, 9577 F.2d 1108, 1117 (3d Cir. 1992)
30
(“Graduation ceremonies have never served as forums for public
debate or discussions, or as a forum through which to allow varying
groups to voice their views.”) (quotation and citation omitted);
cf. Hays County Guardian v. Supple, 969 F.2d 111, 116-18 (5th Cir.
1992) (concluding that university campus was limited public forum
because it served as central site of student body and because
university’s written policies established a “general policy of open
access”). For obvious reasons, graduation ceremonies —— in
particular, the invocation and benediction portions of graduation
ceremonies —— are not the place for exchanges of dueling
presentations on topics of public concern. See Duncanville, 70
F.3d at 406 (“The [basketball] games are school-sponsored and
controlled events that do not provide any sort of open forum for
student expression . . . .”). Such presentations would undoubtedly
clash with a ceremony’s “primary activity.” See Muir, 688 F.2d at
1042. Indeed, a graduation ceremony comprises but a single
activity which is singular in purpose, the diametric opposite of a
debate or other venue for the exchange of competing viewpoints.
It is not surprising then that SFISD has not, in fact, opened
the ceremony to such exchanges, which brings us to the second
relevant factor —— extent of use. In no way can SFISD be said to
have granted “general access” to a class speakers at its graduation
ceremony. Rather, it has simply concocted a thinly-veiled
surrogate process by which a very limited number of speakers —— one
or two —— will be chosen to deliver prayers denominated as
31
invocations and benedictions. These speakers, moreover, will not
be given free reign to address issues, or even a particular issue,
of political and social significance. Rather, they will be chosen
to deliver very circumscribed statements that under any definition
are prayers. See Webster’s Third New International Dictionary at
1190 (defining “invocation” as “the action or an act of petitioning
for help or support”) & 203 (defining “benediction,” similarly, as
“an expression or utterance of blessing or good wishes”) (1993).
SFISD has thus granted no one, not even the students elected to
give the invocations and benedictions, “indiscriminate use” of its
government controlled channel of communication. Perry, 460 U.S. at
47; see also Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 270
(1988) (holding that school-run student newspaper was not
designated forum because school officials “did not evince either by
policy or practice any intent to open the pages of [newspaper] to
indiscriminate use by its student reporters and editors, or by the
student body generally”) (quotations and citations omitted).
In short, even though the government may designate a forum
only for particular speakers or for the discussion of particular
topics, Cornelius, 473 at 802, SFISD’s restrictions so shrink the
pool of potential speakers and topics that the graduation ceremony
cannot possibly be characterized as a public forum — limited or
otherwise —— at least not without fingers crossed or tongue in
cheek. Cf. Forbes, 118 S. Ct. at 1640 (1998) (holding candidate
debates constitute narrow exception to general rule that public
32
broadcasting does not constitute public form because (1) “debate
was by design a forum for political speech by candidates,” and (2)
candidate debates are, by tradition, of exceptional significance in
electoral process); Capitol Square Review & Advisory Bd. v.
Pinette, 515 U.S. 753, 770 (1995) (“Religious expression cannot
violate the Establishment Clause where it (1) is purely private and
(2) occurs in a traditional or designated public forum, publicly
announced and open to all on equal terms.”) (emphasis added).
Clear Creek II does not hold to the contrary. Although our
opinion in that case does advert to Board of Education of Westside
Community Schools v. Mergens, 496 U.S. 226 (1990), which rests, in
part, on public forum analysis, Clear Creek II does not rely on
Mergens for the conclusion that the Clear Creek ISD had created a
public forum. Rather, Clear Creek II adverts to Mergens only
within the limited context of its Endorsement Test analysis,
concluding that the graduation prayer policy at issue “paralleled”
the practices held constitutional in Mergens.11 Clear Creek II, 977
11
There is, moreover, a crucial distinction between the speech
involved in Mergens and the speech that SFISD’s policy would allow.
In Mergens, the Court held that permitting the Christian student
organization to meet on school grounds after class and to recruit
members through the school newspaper, bulletin boards, and public
address system, did not violate the Establishment Clause. Thus,
the organization was not permitted to deliver a religious message
directly to the student body. The religious organization did not
use any of the various methods of communication controlled by the
school to proselytize —— or to deliver religious messages of any
nature —— but rather confined such activities to meetings held
after class with virtually no trace of governmental imprimatur.
Clear Creek II took Mergens one baby step closer to the brink,
allowing delivery of prayer to the student body but only if such
33
F.2d at 968-69. Indeed, nowhere in the Clear Creek II opinion does
the term “public forum” even appear.
This should surprise no one. For, if a graduation program,
open, as it is, to such a limited number of student-elected or
selected speakers, constitutes a limited public forum, the
graduation prayer policy blessed in Clear Creek II would, in fact,
be unconstitutional —— not, however, as a violation of the
Establishment Clause, but as impermissible viewpoint
discrimination: Once the State has established a limited public
forum, it cannot discriminate against speech because of the
message, even if that message is religious in nature. Rosenberger
v. Rector & Visitors of the Univ. of Virginia, 515 U.S. 819, 828-31
(1995) (holding unconstitutional university’s decision to deny
generally-available school funds to student organization publishing
newspaper because of newspaper’s Christian editorial viewpoint);
Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S.
384, 393-96 (1993) (holding unconstitutional school’s policy of
denying school facilities to group desiring to show film series
addressing child-rearing questions from a “Christian perspective”
as impermissible viewpoint discrimination). Thus, if public forum
analysis were applicable, then Clear Creek’s proscription of prayer
prayer were nonsectarian and nonproselytizing. SFISD’s July
Policy, however, would plunge over the cliff, by permitting
students to present overtly sectarian and proselytizing religious
prayers to a group of students clearly assembled at the behest of
the government.
34
that is sectarian and proselytizing would violate the First
Amendment after all, but would do so on grounds we never considered
in Clear Creek II.12
In sum, our Clear Creek II opinion explicitly —— and (we are
bound by stare decisis to acknowledge) correctly —— relies on Clear
Creek ISD’s nonsectarian, nonproselytizing restrictions to dodge
12
Judge Jolly accuses us of unprecedentedly permitting the
government to review (and thus control) the content of citizens’
purely private speech (in the form of prayer) to determine whether
that speech transgresses the required nonsectarian,
nonproselytizing restrictions. Judge Jolly’s accusation, however,
only serves to highlight that Clear Creek II did not hold that the
school district had created a public forum. In that decision, we
explicitly approved a school district’s review of the content of
the student-initiated, student-led graduation prayers. Clear Creek
II, 9777 F.2d at 967 (“We know of no authority that holds yearly
review of unsolicited material for sectarianism and proselytization
to constitute excessive entanglement.”). Judge Jolly is thus faced
with a dilemma —— either, contrary to his assertions, we did not
hold in Clear Creek II that the school district created a public
forum or, as Judge Jolly argues, we did so hold, but additionally
approved the type of governmental review he now condemns.
Because (1) we do not believe that the student-initiated,
student-led invocation and benediction portions of a graduation
ceremony satisfy the requirements of a public forum, (2) the Clear
Creek II opinion never once utters the term “public forum” despite
its consideration of Mergens, a public forum case, and (3) the
Clear Creek II opinion explicitly approves the school district’s
review of the students’ graduation prayers for sectarianism and
proselytization, a review that would undoubtedly constitute
impermissible viewpoint discrimination if the students’ graduation
prayers constituted purely private speech, we will not, as Judge
Jolly urges, strain to read our earlier decision to hold contrary
to its plain language that the school district had carved out a
limited public forum. Whether or not we agree with Clear Creek
II’s conclusion that the student-led graduation prayers do not
transgress the Establishment Clause even though they do not
constitute private speech, we are bound by its judgment unless and
until this Court reconsiders the matter en banc or the Supreme
Court holds otherwise.
35
the outcome otherwise dictated by Lee. Without these twin
restrictions, a Clear Creek Prayer Policy cannot withstand
constitutional scrutiny. Moreover, SFISD cannot escape this result
by piously wrapping itself in the false banner of “limited public
forum.” The July Policy created no forum at all and therefore
could not, and did not, trigger the First Amendment’s prohibition
of viewpoint discrimination. The limited number of speakers, the
monolithically non-controversial nature of graduation ceremonies,
and the tightly restricted and highly controlled form of “speech”
involved, all militate against labeling such ceremonies as public
fora of any type. Absent feathers, webbed feet, a bill, and a
quack, this bird just ain’t a duck!
The district court, therefore, did not err in rejecting
SFISD’s stretch to reach limited public forum status for its
graduation and through it find viability for the July Policy in the
Free Speech Clause. Neither did the court err in holding that
provisions of the initial paragraph of SFISD’s July Policy violates
the Establishment Clause or in ordering SFISD to institute the
fall-back alternative —— a pure Clear Creek Prayer Policy —— in its
stead.
We need only note briefly that the district court did,
however, clearly err in overbroadly defining “nonsectarian” to
include reference to specific “deities,” see, e.g., Webster’s Third
New International Dictionary at 1538 (defining “nonsectarian” as
“not restricted to or dominated by a particular religious group”),
36
a mistake the district court can easily correct on remand. A
nonsectarian, nonproselytizing prayer that, for example, invokes
the name of Buddha or Mohammed or Jesus or Jehovah is an obvious
oxymoron.
C. Football Games
Having concluded that SFISD’s modified Clear Creek Prayer
Policy does not pass constitutional muster, we must next address
whether the pure Clear Creek Prayer Policy embodied in the
alternative fall-back provision of the policy can be extended to
football games through the Football Policy. In Duncanville, we
confronted virtually the identical issue. There, the district
court had enjoined employees of the school district from, inter
alia, supervising student-initiated, student-led prayers during
athletic events. Duncanville, 70 F.3d at 406. In upholding the
injunction, we distinguished Clear Creek II, stating:
In concluding that [the Clear Creek] resolution did not
violate the Establishment Clause, we emphasized that high
school graduation is a significant, once-in-a-lifetime
event that could appropriately be marked with a prayer,
that the students involved were mature high school
seniors and the challenged prayer was to be non-sectarian
and non-proselytizing. Here, we are dealing with a
setting [football and basketball games] far less solemn
and extraordinary, a quintessentially Christian prayer,
and students of twelve years of age . . . .” Id.
SFISD argues that the present case is more closely analogous
to Clear Creek II than to Duncanville because in the latter the
students spontaneously initiated the prayers in question, whereas
here, as in Clear Creek II, they do so by vote. SFISD’s argument,
37
however, widely misses the mark. The controlling feature here is
the same as in Duncanville: The prayers are to be delivered at
football games —— hardly the sober type of annual event that can be
appropriately solemnized with prayer. The distinction to which
SFISD points is simply one without difference. Regardless of
whether the prayers are selected by vote or spontaneously initiated
at these frequently-recurring, informal, school-sponsored events,
school officials are present and have the authority to stop the
prayers. Thus, as we indicated in Duncanville, our decision in
Clear Creek II hinged on the singular context and singularly
serious nature of a graduation ceremony. Outside that nurturing
context, a Clear Creek Prayer Policy cannot survive. We therefore
reverse the district court’s holding that SFISD’s alternative Clear
Creek Prayer Policy can be extended to football games, irrespective
of the presence of the nonsectarian, nonproselytizing restrictions.
See Jager, 862 F.2d at 832-33 (holding “equal access” policy for
football game invocations unconstitutional).
D. Injunctive Relief
Turning next to the Does’ equitable claim, we review the
district court’s denial of an injunction for abuse of discretion.
Lubbock, 669 F.2d at 1049. As we agree with the district court
that it can simply order SFISD to put into effect the fall-back
alternative of the July Policy, we address only whether the Does
are entitled to injunctive relief regarding SFISD’s other
practices. The district court expressly found that SFISD had
38
ceased all such unlawful practices. Given a trial court’s greater
ability to evaluate the evidence regarding a defendant’s future
propensity to engage in proscribed activities, we are generally
reluctant to overturn a denial of injunctive relief. Id. (refusing
to reverse trial court’s denial of injunctive relief even though
defendant had engaged in impermissible practices over several years
and only ceased on eve of trial); Meltzer v. Board of Pub.
Instruction of Orange County, 548 F.2d 559, 562-568 (5th Cir. 1977)
(refusing to reverse district court’s denial of injunctive relief
even though school district had proved very reluctant to comply
with constitutional requirements of Establishment Clause), aff’d on
rehearing, 577 F.2d 311 (1978). The Does, moreover, point to no
evidence in support of their contention that a threat of future
unconstitutional practices exists other than the fact of SFISD’s
removal of the “nonsectarian, nonproselytizing” language from its
final graduation and football game policies, a threat negated by
the district court in ordering implementation of the fall-back
alternative and extinguished by us in this appeal. We therefore
conclude that the district court’s denial of injunctive relief was
not an abuse of discretion.
E. Attorney’s Fees
Under § 1988, the district court may make an award of
attorney’s fees only if it determines that the claimant is a
“prevailing party.” Walker v. HUD, 99 F.3d 761, 767 (5th Cir.
1996); Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). A party
39
prevails when he succeeds on “any significant issue in litigation
which achieve[s] some of the benefit [he] sought in bringing suit.”
Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S.
782, 791 (1989) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79
(1st Cir. 1978)). “The touchstone of the prevailing party inquiry
must be the material alteration of the legal relationship of the
parties in a manner which Congress sought to promote in the fee
statute.” Id. at 792-93.
In this case, the Does have obtained a judgment vindicating
the Santa Fe students’ important First Amendment rights in both
graduation ceremony and football game contexts. They “have thus
served the Garland, 489 U.S. at 793; see also
Hall v. Board of Sch. Comm’rs of Conecuh County, 656 F.2d 999, 1003
(5th Cir. 1981) (holding plaintiffs who prevailed on claims that
high school’s morning devotional readings over public address
system and teaching elective Bible literature course were violative
of Establishment Clause were entitled to attorney’s fees).
Accordingly, on remand the district court shall award the Does
reasonable and realistic attorney’s fees as prevailing parties.
F. Monetary Damages
Addressing next Jane Doe II’s appeal from the denial of
damages for the David Wilson “Mormon” incident, we need do no more
than simply state our agreement with the district court’s
assessment of the evidence on that point. Regardless of the
40
outcome of the question whether SFISD truly had a policy of
tolerating Establishment Clause abuses, our independent review of
the summary judgment record leaves us with no doubt that it is
simply devoid of evidence establishing a genuine dispute of
material fact that Jane Doe II suffered any compensable harm
stemming from Wilson’s insensitive and misguided conduct. See
Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 940 (5th Cir.
1996) (requiring that the evidence “manifest[] some specific
discernable injury to the claimant’s emotional state”), cert.
denied, __ U.S. __, 117 S. Ct. 767 (1997).
G. Toleration of Establishment Clause Violations
Finally, because we do not disturb the district court’s
rulings on damages and because we base our decision that the Does
are entitled to attorney’s fees on our holdings regarding SFISD’s
graduation and football game prayer policies —— not on a finding
that SFISD had a policy of tolerating Establishment Clause
violations —— we need not consider SFISD’s challenge to the
district court’s summary judgment ruling on liability for past
Establishment Clause violations.
III
CONCLUSION
For the foregoing reasons, we (1) AFFIRM the district court’s
ruling that the words “nonsectarian, nonproselytizing” are
constitutionally necessary components of a viable Clear Creek
41
Prayer Policy; (2) REVERSE that court’s holding that SFISD’s Clear
Creek Prayer Policy can permissibly extend to prayers before (or
after) football games; (3) AFFIRM the court’s judgment that neither
damages nor injunctive relief are appropriate in this case; and (4)
REVERSE the district court’s denial of attorney’s fees for the Does
and REMAND this case for determination of reasonable attorney’s
fees and an award of such fees to the Does, consistent with this
opinion.
AFFIRMED in part; REVERSED in part; and REVERSED and REMANDED in
part, with instructions.
42
E. GRADY JOLLY, Circuit Judge, dissenting:
Today, for the first time in our court’s history, the majority
expressly exerts control over the content of its citizens’ prayers.
And it does so notwithstanding that the Supreme Court has never
required, suggested, hinted, or implied that the Constitution
controls the content of citizens’ prayers in any context. To the
contrary, Supreme Court precedent clearly indicates that the
majority’s view transgresses the most fundamental First Amendment
rights. I therefore respectfully dissent.
I
The majority’s exegesis contains two primary flaws that allow
it to free fall into the black pit of the constitutionally
forbidden, that school districts must control the content of
graduation prayers to assure that they are “nonsectarian and
nonproselytizing.”13 First, the majority reads Jones v. Clear Creek
13
The nonsectarian, nonproselytizing restriction constitutes
viewpoint, not subject matter, discrimination. Such a restriction
clearly allows the subject matter of religion, or ultimate reality,
to enter the graduation ceremony. The majority does not, and
indeed could not, disagree with this characterization. See
generally Rosenberger v. Rectors and Visitors of the Univ. of
Virginia, 515 U.S. 819, 830-31 (1995); see also Chaudhuri v.
Tennessee, 130 F.3d 232, 237 (6th Cir. 1997) (noting that the
nonsectarian prayer at issue “evoke[s] a monotheistic tradition not
shared” by some religious peoples, including Hindus), cert. denied,
118 S. Ct. 1308 (1998). Furthermore, it is instructive to note that
the term “proselytize” is simply a word used--sometimes
pejoratively--in lieu of the term “persuade.” See Webster’s Third
New International Dictionary at 1821 (defining the verb “proselyte”
as “to convert from one religion, belief, opinion, or party to
another”). Free market enthusiasts and environmentalists can
attempt to “proselytize” as well as Baptists and Mormons.
Indep. Sch. Dist., 977 F.2d 963 (5th Cir. 1992)14 in a way that
openly oppugns the Supreme Court’s reasoning in Lee v. Weisman, 505
U.S. 577 (1992).15 The Court in Lee clearly held that the
nonsectarian nature of a graduation prayer cannot save an otherwise
unconstitutional graduation policy from the Establishment Clause.
Yet in the face of this holding, the majority nevertheless
audaciously concludes that a “nonsectarian, nonproselytizing”
requirement constitutes a necessary element to our court’s decision
upholding the graduation policy in Clear Creek II.
The majority makes its second mistake by failing to recognize
that the government may not restrict religious speech based on
viewpoint when the government has created a forum for the
expression of privately held views.16 This mistake leads the
14
As a point of nomenclature, our court has in the past
referred to this case as Jones II. See, e.g., Doe v. Duncanville
Indep. Sch. Dist., 70 F.3d 402, 405 (5th Cir. 1995); Ingebretsen v.
Jackson Pub. Sch. Dist., 88 F.3d 274, 278 (5th Cir.), cert. denied,
117 S. Ct. 388 (1996). I join the majority in at least one of
several breaks with precedent and refer to the case as Clear Creek
II.
15
The majority omits any mention of the fact that the Supreme
Court vacated our decision in Jones v. Clear Creek Indep. Sch.
Dist., 930 F.2d 416 (5th Cir. 1991) (Clear Creek I), vacated, 505
U.S. 1215 (1992), and specifically instructed our court to
reconsider the case in the light of Lee. This is the context in
which we issued our Clear Creek II opinion.
16
This mistake is, undoubtedly, a product of the majority’s
decision to treat the Free Speech Clause as an isolated
afterthought. By first engaging in a separate Establishment Clause
analysis, the majority virtually preordains the outcome before it
-44-
44
majority to reach a conclusion, which, however handy and expedient
it may be, frustrates the neutral accommodation of religious
viewpoints. When the government restricts sectarian and
proselytizing religious speech, while embracing ecumenical
religious speech, the government has engaged in illegitimate,
viewpoint discrimination. That is why the Free Speech Clause is
violated when the majority forces a nonsectarian, nonproselytizing
requirement upon the speakers. In short, the majority’s control
over the content of students’ prayers achieves the
jurisprudentially rare result of offending not only one, but three
provisions within the First Amendment.17
addresses the Free Speech Clause. This approach fails to
acknowledge the complex interaction of the Free Exercise,
Establishment, and Free Speech Clauses. One prominent First
Amendment scholar has described the source of this complexity in
the following way:
The central feature of the constitutional law of speech
and press is a prohibition on “content-based”
discrimination, except in the most compelling of
circumstances. Yet the distinction between religion and
nonreligious ideologies and institutions — a distinction
seemingly demanded by the very text of the Religion
Clauses — is based on the content of ideas and beliefs.
The content-neutral thrust of the Free Speech Clause thus
coexists uneasily with the special status of religion
under the Free Exercise and Establishment Clauses.
Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. Chi.
L. Rev. 115, 118 (1992).
17
These three provisions, read together, state: “Congress shall
make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of
-45-
45
II
Let me try to fit this case into the context of our precedent.
The question before us is, quite simply, what was it about the
Clear Creek II policy that allowed it to escape the result in Lee?
To put the question another way, is it enough for an invocation to
be student-elected and student-given, or is the addition of a
“nonsectarian, nonproselytizing” content limitation required in
order to pass constitutional muster? The majority makes the
unprecedented assumption that the content of a speaker’s prayer--
specifically, whether the prayer is sectarian or persuasive--can
have some effect on its status under the Establishment Clause.
Jurists cannot draw many categorical conclusions about the Supreme
Court’s treatment of the Establishment Clause. Nevertheless, the
majority’s assumption has the vice of offending one immutable
holding of the Court’s Establishment Clause jurisprudence: The
government may not mitigate Establishment Clause concerns by
requiring prayers to be nonsectarian and nonproselytizing. I can
locate no place in the Court’s extensive Establishment Clause
jurisprudence for a “nonsectarian, nonproselytizing” exception to
the Clause’s command. The additional verbiage was therefore
unnecessary in upholding the graduation policy in Clear Creek II.
A
speech . . .” U.S. CONST. amend. I.
-46-
46
I begin with some first principles. From its earliest forays
into interpretation of the Establishment Clause, the Court
consistently characterized it as prohibiting more than the direct
establishment of a single national (or, after Cantwell v.
Connecticut, 310 U.S. 296 (1940), and Everson v. Board of Educ.,
330 U.S. 1 (1947), state) church. See, e.g., Davis v. Beason, 133
U.S. 333, 342 (1890) (noting that “[t]he first amendment to the
Constitution . . . was intended . . . to prohibit legislation for
the support of any religious tenets, or the modes of worship of any
sect”); Reynolds v. United States, 98 U.S. 145, 164 (1878) (holding
that “Congress was deprived of all legislative power over
[religious] opinion” by the Clause); Watson v. Jones, 80 U.S. (13
Wall.) 679, 730 (1871) (noting that the Clause serves both to
“‘rescue[] the temporal institutions from religious interference,’”
and to “‘secure[] religious liberty from the invasion of the civil
authority’”) (quoting Harmon v. Dreher, 17 S.C. Eq. (Speer’s Eq.)
87, 120 (S.C. 1843)); Terrett v. Taylor, 13 U.S. (9 Cranch) 43, 52
(1815).
The Court’s modern jurisprudence has continued the tradition
set by the early cases, and makes clear that the Establishment
Clause paints in broad prohibitive strokes when it comes to state
or federal action in the spiritual domain. As Justice Black
explained in Everson:
-47-
47
The “establishment of religion” clause of the First
Amendment means at least this: Neither a state nor the
Federal Government can set up a church. Neither can pass
laws which aid one religion, aid all religions, or prefer
one religion over another. . . . Neither a state nor the
Federal Government can, openly or secretly, participate
in the affairs of any religious organizations or groups
and vice versa.
330 U.S. at 15-16; see also Lee, 505 U.S. at 602 (Blackmun, J.,
joined by Stevens & O’Connor, JJ., concurring) (noting that the
modern Court “‘has consistently held that the clause withdrew all
legislative power respecting religious belief or the expression
thereof’”) (quoting School Dist. v. Schempp, 374 U.S. 203, 222
(1963)).
In Engel v. Vitale, 370 U.S. 421 (1962), this broadly
proscriptive reading of the Establishment Clause was applied for
the first time to the particularly sensitive area of school prayer.
The controversy concerned a short prayer selected by the State
Board of Regents for students to read aloud at the beginning of the
school day.18 Stating that “[n]either the fact that the prayer may
be denominationally neutral nor the fact that its observance on the
part of the students is voluntary can serve to free it from the
limitations of the Establishment Clause,” the Supreme Court struck
it down as an unconstitutional attempt by the State to use “the
18
The prayer read in full: “Almighty God, we acknowledge our
dependence upon Thee, and we beg Thy blessings upon us, our
parents, our teachers and our Country.” 370 U.S. at 422.
-48-
48
power, prestige and financial support of government” to exert
“indirect coercive pressure upon religious minorities to conform to
the prevailing officially approved religion.” Engel, 370 U.S. at
430-31. But for today’s majority, not to worry.
B
Yet Lee, the most recent and relevant precedent, continues to
maintain and extends this broadly proscriptive reading of the
Clause, and refutes the notion that a government-sponsored,
“nonsectarian, nonproselytizing” prayer might be any less
constitutionally deficient than a sectarian, proselytizing one.
Addressing the almost identical contention in that case--that the
invocation at issue was constitutionally sound because the school
directed it to be nonsectarian and nonproselytizing--the Court
stated:
We are asked to recognize the existence of a practice of
nonsectarian prayer, prayer within the embrace of what is
known as the Judeo-Christian tradition, prayer which is
more acceptable than one which, for example, makes
explicit reference to the God of Israel, or to Jesus
Christ, or to a patron saint. There may be some support,
as an empirical observation, to the statement . . . that
there has emerged in this country a civic religion, one
which is tolerated when sectarian exercises are not. If
common ground can be defined which permits once
conflicting faiths to express the shared conviction that
there is an ethic and a morality which transcend human
invention, the sense of community and purpose sought by
all decent societies might be advanced. . . . Though
the efforts of the school officials in this case to find
common ground appear to have been a good-faith attempt to
recognize the common aspects of religions and not the
divisive ones, our precedents . . . caution us to measure
-49-
49
the idea of a civic religion against the central meaning
of the Religion Clauses of the First Amendment, which is
that all creeds must be tolerated and none favored. The
suggestion that government may establish an official or
civic religion as a means of avoiding the establishment
of a religion with more specific creeds strikes us as a
contradiction that cannot be accepted.
505 U.S. at 589-90 (emphasis added). Today’s majority opinion
lacks any attempt to address this authoritative reasoning, which
seems to be so at odds with its holding.19 However, like boys on
a summer night blithely whistling as they walk through a graveyard,
for the panel majority it is not to worry so long as it is brave
enough to look straight ahead and pretend that authoritative
precedents are merely ghosts of the past not to be feared.
Indeed, the majority’s opinion reveals a willful aversion to
accommodating the respective reasoning of Lee and Clear Creek II.
See, e.g., ante at 35 (finding that the district court judge
“clearly err[ed]” in defining nonsectarian to include reference to
“specific deities” when Clear Creek II, 977 F.2d at 967, upheld a
policy under which students may “employ the name of any deity”);
ante at 26 (relying on another circuit’s case that expressly
disagreed with our own Clear Creek II precedent, and doing so in
the midst of explaining why the reasoning of Clear Creek II could
19
Baffling indeed is the majority’s “cf.” citation, ante at 24,
to pages 588-90 of Lee. In those pages, the Court explicitly
rejects the idea that the nonsectarian nature of a prayer mitigates
any Establishment Clause problems.
-50-
50
not possibly rest on the fact that the policy created a limited
public forum); ante at 32 n.11 (describing Clear Creek II as a case
taking our First Amendment jurisprudence one step closer to the
brink of a cliff); ante at 18 (feigning “obeisance to the
ineluctable precedent of Clear Creek II”). To avoid the real
issues presented in this case, the majority must paper over the
unmistakable language in cases like Lee and Engel. It is beyond
argument, however, that the Supreme Court’s consistent
interpretation of the Establishment Clause allows no exception for
the nonsectarian and nonproselytizing prayer. The Clause prohibits
the establishment of religion and, as interpreted by the Supreme
Court, it denies government the ability to favor a composite
ecumenical religion just as surely as it denies the ability to
favor some select one of its components. The majority’s contention
that the words “nonsectarian, nonproselytizing” could somehow save
an otherwise unconstitutional policy in this case is a regrettable
expediency.20
20
And despite any implications in Clear Creek II to the
contrary. Although we did note in Clear Creek II that having a
nonsectarian, nonproselytizing requirement might serve to “minimize
any . . . advancement of religion,” the argument was clearly
cumulative in nature. See id., 977 F.2d at 967. Furthermore, the
point was made exclusively in the context of one prong of the Lemon
test. See Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).
Although the Supreme Court has yet specifically to overrule Lemon,
see Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508
U.S. 384, 395 & n.7 (1993), a strict application of the case is of
doubtful continuing relevance in this context, having been largely
-51-
51
abandoned in favor of the “coercion” and “endorsement” tests of Lee
and Allegheny.
In Lee, for example, the Court struck down the graduation
prayer policy at issue on the sole basis that it was an
unconstitutional coercion of participation in a religious exercise.
See id., 505 U.S. at 599. Two concurrences would have found an
unconstitutional endorsement as well, see id. at 604-05 (Blackmun,
J., joined by Stevens & O’Connor, JJ., concurring); id. at 630-31
(Souter, J., joined by Stevens & O’Connor, JJ., concurring), but
only three Justices, O’Connor, Stevens, and the since-departed
Justice Blackmun, bothered to so much as recite the elements of the
Lemon test. See id. at 602-03 & n.4. Even this limited
acknowledgment was ambivalent, however, as the discussion that
followed addressed the sole question whether the government
“‘plac[ed] its official stamp of approval’ on the prayer”--and that
is just the endorsement test rephrased. See id. at 603 (quoting
Engel, 370 U.S. at 429). The dissenters in Lee would have found no
constitutional fault at all based on a historical/coercion approach
to the problem, see id. at 632-46 (Scalia, J., joined by Rehnquist,
CJ., and White & Thomas, JJ., dissenting), which prompted Justice
Scalia to declare that “[t]he Court today demonstrates the
irrelevance of Lemon by essentially ignoring it . . . and the
interment of that case may be the one happy byproduct of the
Court’s otherwise lamentable decision.” Id. at 644. See also
Rosenberger, 515 U.S. at 837-46 (omitting any mention of Lemon
whatsoever when analyzing an Establishment Clause challenge).
Even before Lee, however, Lemon had long since been pushed
into a small corner of the Court’s jurisprudence. In both County
of Allegheny v. ACLU, 492 U.S. 573 (1989), and Board of Educ. of
Westside Community Sch. v. Mergens, 496 U.S. 226 (1990), the
Court’s two most significant Establishment Clause cases leading up
to Lee, the Lemon test failed to command a majority. As in Lee,
the primary analysis of each majority, plurality, concurring, and
dissenting opinion in those cases ultimately turned on the
principles of endorsement and/or coercion--not on any strict
application of the Lemon test. See Allegheny, 492 U.S. at 593-94
(stating that “[w]hether the key word is ‘endorsement,’
‘favoritism,’ or ‘promotion,’ the essential principle remains the
same . . . [t]he Establishment Clause, at the very least, prohibits
government from appearing to take a position on questions of
religious belief”); id. at 627 (O’Connor, J., joined in part by
Brennan & Stevens, JJ., concurring in part and in the judgment)
(stating that “the endorsement test captures the essential command
of the Establishment Clause”); id. at 638 (Brennan, J., joined by
-52-
52
Marshall & Stevens, JJ., concurring in part and dissenting in part)
(agreeing that the Establishment Clause should be interpreted to
assure that government neither “signals an endorsement of” nor
“shows favoritism towards” religion); id. at 650 (Stevens, J.,
joined by Brennan & Marshall, JJ., concurring in part and
dissenting in part) (noting that “[w]hether the vice . . . is
characterized as ‘coercion,’ or ‘endorsement,’ or merely as state
action with the purpose and effect of providing support for
specific faiths, it is common ground that . . . symbolic government
speech ‘respecting an establishment of religion’ may violate the
Constitution”) (citations omitted); id. at 655-79 (Kennedy, J.,
joined by Rehnquist, CJ., and White & Scalia, JJ., concurring in
the judgment in part and dissenting in part) (advancing the
coercion test); Mergens, 496 U.S. at 250 (finding the Equal Access
Act, 20 U.S.C. § 4071 et seq., constitutional because “secondary
students are . . . likely to understand that a school does not
endorse or support student [religious] speech that it merely
permits on a nondiscriminatory basis”); id. at 260-61 (Kennedy, J.,
joined by Scalia, J., concurring in part and in the judgment)
(finding the Act constitutional on the basis that “[n]othing on the
face of the Act or in the facts of the case . . . demonstrates that
enforcement of the statute will result in the coercion of any
student to participate in a religious activity”); id. at 266
(Marshall, J., joined by Brennan, J., concurring in the judgment)
(noting concern for the “appearance of school endorsement” of
religious views caused by the procedures permitted under the Act);
id. at 287 (Stevens, J., dissenting) (not reaching the
constitutional issue, but noting endorsement and coercion
concerns).
Finally, Justice Scalia’s assessment of Lee’s effect on Lemon
has been sanctioned by another (post-Lamb’s Chapel) panel of this
court. See Doe v. Duncanville Indep. Sch. Dist., 994 F.2d 160, 166
n.7 (5th Cir. 1993) (eschewing “Lemon analysis in favor of a more
case-bound approach” because, although normally “‘it is neither
[this court’s] object nor [its] place to opine whether the Court’s
Establishment Clause jurisprudence is good, fair, or useful,’ . .
. recent indications suggest that the Court agrees with [a
terminal] assessment of Lemon, essentially ignoring it in Lee in
favor of the school prayer cases”) (quoting Jones, 977 F.2d at 966,
and citing to Justice Scalia’s dissent in Lee); see also Bauchman
v. West High School, 132 F.3d 542, 551-52 (10th Cir. 1997)
(“Justice O’Connor’s ‘endorsement test’ is now widely accepted as
the controlling analytical framework for evaluating Establishment
Clause claims.”), cert. denied, 118 S. Ct. 2370 (1998); but see
-53-
53
III
Furthermore, the inclusion of a “nonsectarian,
nonproselytizing” content limitation offends a particularly
longstanding and independent constitutional doctrine upon which the
Clear Creek II decision must and does rely: the principle of
neutral accommodation.
A
In Everson, Justice Black expressly noted that the courts must
“be sure that [they] do not inadvertently prohibit [government]
from extending its general . . . benefits to all . . . citizens
Helms v. Picard, 151 F.3d 347, 362 (5th Cir. 1998) (“[T]he Supreme
Court has not abandoned, nor even fundamentally changed, the Lemon
test.”), amended No. 97-30231, 1999 WL 11488 (Jan. 13, 1999).
Even if the Supreme Court has not yet effectively abandoned
the Lemon test, the majority’s insistence that schools bar
sectarian and proselytizing prayers would surely fail Lemon’s
excessive entanglement test. Compare, Ingebretsen v. Jackson Pub.
Sch. Dist., 88 F.3d at 279 (to the extent that a statute requires
school officials to review the content of prayers to ensure that
they meet nonsectarian and nonproselytizing requirements, that
statute excessively entangles government with religion); Lee, 505
U.S. at 617 (Souter, J., concurring) (describing as “undefinable”
the point at which a state-approved, ecumenical prayer becomes so
closely identified with the sacred text of a specific religion that
a breach of the Establishment Clause has occurred); and Widmar v.
Vincent, 454 U.S. 263, 272 n.11 (1981) (finding that a university
would entangle itself with religion by attempting to exclude
“religious speech” because enforcing that exclusion would require
officials to distinguish between religious and nonreligious
speech); with Clear Creek II, 977 F.2d at 968 (stating that “we
know of no authority that holds yearly review of unsolicited
material for sectarianism and proselytization to constitute
excessive entanglement”).
-54-
54
without regard to their religious belief” by being overzealous in
their enforcement of the Establishment Clause. 330 U.S. at 16.
This concern was explicated with some eloquence by Justice Douglas
in the following case of Zorach v. Clauson, 343 U.S. 306 (1952):
We are a religious people whose institutions presuppose
a Supreme Being. We guarantee the freedom to worship as
one chooses. We make room for as wide a variety of
beliefs and creeds as the spiritual needs of man deem
necessary. We sponsor an attitude on the part of
government that shows no partiality to any one group and
that lets each flourish according to the zeal of its
adherents and the appeal of its dogma. When the
state . . . cooperates with religious authorities by
adjusting the schedule of public events to sectarian
needs, it follows the best of our traditions. For it
then respects the religious nature of our people and
accommodates the public service to their spiritual needs.
To hold that it may not would be to find in the
Constitution a requirement that the government show a
callous indifference to religious groups. That would be
preferring those who believe in no religion over those
who do believe. Government may not finance religious
groups nor undertake religious instruction nor blend
secular and sectarian education nor use secular
institutions to force one or some religion on any person.
But we find no constitutional requirement which makes it
necessary for government to be hostile to religion and to
throw its weight against efforts to widen the effective
scope of religious influence.
343 U.S. at 313-14; see also Committee for Public Educ. & Religious
Liberty v. Nyquist, 413 U.S. 756, 792-93 (1973) (stating that “[a]
proper respect for both the Free Exercise and the Establishment
Clauses compels the State to pursue a course of neutrality toward
religion”); Wallace v. Jaffree, 472 U.S. 38, 60 (1985)
-55-
55
(interpreting the Clause, similarly, as requiring government to
“pursue a course of complete neutrality toward religion”).
Adapting this “neutral accommodation” principle to the
scholastic setting, in Widmar v. Vincent, 454 U.S. 263, 273-74
(1981), the Court held that it was not a violation of the
Establishment Clause for a public university to allow a religious
student group to take advantage of the university’s general policy
of allowing registered student groups to use university facilities
for their meetings on a neutral and nondiscriminatory basis.
Reasoning that the university had created a designated public forum
by making the facilities “generally open for use by student
groups,” the Court clarified that, in general, “an open forum in a
public university does not confer any imprimatur of state approval
on religious sects or practices” that make use of the forum. Id.
at 267, 274.
Following up on Widmar, in 1984, Congress enacted the Equal
Access Act, 20 U.S.C. § 4071 et seq., to make the neutral
accommodation principle expressly applicable to the secondary
public schools. Upholding the Act as constitutional under the
Establishment Clause, the Court noted in Mergens that:
[T]here is a crucial distinction between government
speech endorsing religion, which the Establishment Clause
forbids, and private speech endorsing religion, which the
Free Speech and Free Exercise Clauses protect. We think
that secondary school students are mature enough and are
likely to understand that a school does not endorse or
-56-
56
support [religious] student speech that it merely permits
on a nondiscriminatory basis. The proposition that
schools do not endorse everything they fail to censor is
not complicated.
496 U.S. at 250 (citations omitted). The majority fails to
appreciate this “crucial distinction” between government speech
endorsing religion and private speech endorsing religion when it
reads Clear Creek II as requiring school policies to adopt the
nonsectarian, nonproselytizing requirements.
B
This distinction was not lost on the Clear Creek II panel.
Clear Creek II is indeed a case about neutral accommodation, and
relies on a central principle of Establishment Clause
jurisprudence.21 In upholding the policy under consideration in
21
This principle of neutral accommodation is fully consistent
with and anticipated by Lee, see id., 505 U.S. at 598-99 (“We
recognize that, at graduation time and throughout the course of the
educational process, there will be instances when religious values,
religious practices, and religious persons will have some
interaction with the public schools and their students.”) (citing
Mergens); id. at 630 n.8 (Souter, J., joined by Stevens & O’Connor,
JJ., concurring) (“If the State had chosen its graduation day
speakers according to wholly secular criteria, and if one of those
speakers (not a state actor) had individually chosen to deliver a
religious message, it would have been harder to attribute an
endorsement to the State.”), and has been both sustained and
augmented by the Court’s more recent cases. See, e.g.,
Rosenberger, 515 U.S. at 842 (stating, once again, that “[i]t does
not violate the Establishment Clause for a public university to
grant access to its facilities on a religion-neutral basis to a
wide spectrum of student groups, including groups which use meeting
rooms for sectarian activities”); Capitol Square Review and
Advisory Board v. Pinette, 515 U.S. 753, 766 (1995) (plurality)
(“Religious expression cannot violate the Establishment Clause
-57-
57
Clear Creek II, we expressly noted that, “unlike the policy at
issue in Lee, [the Clear Creek II policy] does not mandate a
prayer.” 977 F.2d at 968. Although conceding that the policy
allows for “supplications to a deity,” we clarified that it also
“permits invocations free of all religious content.” Id. at 969.22
Relying expressly on Mergens’s proposition that “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 Free Exercise Clauses protect,”
we concluded that the policy was an essentially neutral directive
where it (1) is purely private and (2) occurs in a traditional or
designated public forum, publicly announced and open to all on
equal terms.”); Board of Education v. Grumet, 512 U.S. 687, 696
(1994) (“‘A proper respect for both the Free Exercise and the
Establishment Clauses compels the State to pursue a course of
neutrality toward religion,’ favoring neither one religion over
others nor religious adherents collectively over nonadherents.”)
(quoting Nyquist, 413 U.S. at 792-93); Zobrest v. Catalina
Foothills Sch. Dist., 509 U.S. 1, 8 (1993) (noting that “government
programs that neutrally provide benefits to a broad class of
citizens defined without reference to religion are not readily
subject to an Establishment Clause challenge,” for, if the reverse
were true, “then ‘a church could not be protected by the police and
fire departments, or have its public sidewalk kept in repair’”)
(quoting Widmar, 454 U.S. at 274-75).
22
On this point, it is important to note that Clear Creek II
clearly rests on an interpretation of “invocation” and
“benediction” that is itself free of all religious content. Clear
Creek II, 977 F.2d at 969. This fact goes some way towards
distinguishing the result in Clear Creek II from the contrary
decision of the Third Circuit in ACLU v. Black Horse Pike Reg’l Bd.
of Educ., 84 F.3d 1471 (3d Cir. 1996) (en banc), where the
challenged policy provided for a student-elected, student-given,
“invocation and benediction prayer.” Id. at 1475 (emphasis added).
-58-
58
of accommodation for private religious and other speech that
neither favored nor disfavored religion on its face, and was
therefore not unconstitutional. Id.
C
Because it is clear that Clear Creek II relies on Mergens’s
neutral accommodation principle to escape the proscriptive effect
of Lee, we need only apply that principle to the facts before us.
1
We have expressly stated that for the Constitution to require
neutral accommodation of religious speech, the government must have
established at least what has been called a “limited public forum.”
Duncanville, 994 F.2d 164-65.23 As the majority points out, a
“limited public forum” is one of several types of fora recognized
by the Supreme Court. The other categories of fora include
traditional public, designated public, and nonpublic fora. The
majority errs, however, by failing to understand the difference
between a “designated public forum” and a “limited public forum.”
The government creates a designated public forum when it “has
intentionally designated a place or means of communication as a
public forum.” Cornelius, 473 U.S. at 800. A subset of designated
public fora is the “limited public forum.” Such a forum is created
23
But see Lamb’s Chapel, 508 U.S. at 392-93 (suggesting, prior
to our decision in Duncanville, that even in a nonpublic forum, the
neutral accommodation principle applies).
-59-
59
when the government limits the purpose of the forum by, for
example, placing a limitation on use by certain groups or on the
discussion of certain subjects. Perry, 460 U.S. at 45 n.7; Brody
v. Spang, 957 F.2d 1108, 1118 (3d Cir. 1992) (describing a limited
public forum as “a subset type of forum, whose scope is
circumscribed either by subject matter or category of speaker”);
Travis v. Owego-Apalachin School Dist., 927 F.2d 688, 692 (2d Cir.
1991) (describing a limited public forum as a sub-category of the
designated forum that the government creates when it opens a
nonpublic forum but limits the expressive activity to certain kinds
of speakers or to the discussion of certain subjects).
SFISD’s policy only limits the benedictions or invocations by
limiting the potential class of speakers to graduating students.
Contrary to the majority’s assertion, the policy in this facial
challenge does not require that the messages have a religious
component. Neither the dictionary definitions cited by the
majority, ante at 30, nor our own precedents require an
interpretation of “invocation” or “benediction” grounded in
religion. See Clear Creek II, 977 F.2d at 969 (interpreting the
terms “invocation” and “benediction” in a way that is free from all
religious content). Furthermore, SFISD’s policy grants absolute
access to the graduation podium to any student speaker that the
senior class elects; once the class of elected student speakers is
-60-
60
chosen, SFISD maintains no power, discretionary or otherwise, to
bar any duly chosen speaker from accomplishing his task. Because
the policy effectuates this relinquishment of control, the policy
unmistakably creates a limited public forum and the majority cannot
make it otherwise.
In arguing that SFISD has not created a “true” forum, the
majority states its ex cathedra view that a graduation ceremony is
not an appropriate place for communication of views on issues of
political and social significance. Ante at 29. Historical facts,
of course, contradict the majority’s view. While graduation
ceremonies do not often exhibit “duelling presentations,” they
almost always include speakers attempting to impart wisdom and
reflect on life’s higher (that is, morally superior) goals.
Furthermore, graduation ceremonies often play host to controversial
public figures. See, e.g., Lydia Lum, Commencement Time Begins as
Politicians Head List of Speakers, HOUSTON CHRONICLE, May 4, 1998, at
16 (stating that “commencement speakers . . . vary from year to
year, but 1998 apparently is the Year of the Politician.”).
Finally, our country’s public schools have, of course, a long
tradition of hosting religious prayers at graduation ceremonies.
Lee, 505 U.S. at 635-36 (Scalia, J., dissenting). In sum,
graduation ceremonies have often presented a forum for expressing
-61-
61
the most profound of thoughts on society, politics, religion, and
the nature of humankind.24
Besides its failure to properly distinguish between designated
and limited public fora, the majority further errs by applying
precedent that is inapplicable to the case at hand. The cases upon
which the majority relies for guidance in its forum analysis--
24
The majority cites only one case in support of its rigid view
that a graduation ceremony (or portions thereof) could not
constitute a public forum. In its citation of, and quotation from,
that case the majority takes more liberties than should be
allowable. In quoting Brody v. Spang, the majority panhandles a
remote district court’s musings as Third Circuit law without proper
attribution. The quotation reads,
Graduation ceremonies have never served as forums for
public debate or discussions, or as a forum through which
to allow varying groups to voice their views.
Ante at 29 (quoting Brody v. Spang, 957 F.2d 1108, 1119-20 (3d Cir.
1992) (quoting Lundberg v. West Monona Community Sch. Dist., 731 F.
Supp. 331 (N.D. Iowa 1989))). But the Brody court did not indicate
any agreement in quoting the Iowa district court. In fact, the
Brody court followed its discussion of Lundberg with the following
statement:
Nonetheless, it is certainly possible that the
commencement exercises at Downingtown Senior High School
could qualify as a public forum, and nothing in the
present record demonstrates otherwise. More
specifically, although the terms of the consent decree
[at issue in this case] suggest that the pool of
potential graduation speakers is confined to members of
the school community and invited guests, this simply
indicates that any forum created is a limited one, and
does not preclude a finding that the ceremony has been
designated as a public forum.
Brody, 957 F.2d at 1120 (citing Hazelwood Sch. Dist. v. Kuhlmeier,
484 U.S. 260, 267 (1988)).
-62-
62
Cornelius, Perry, Forbes, Estiverne, Muir and Hobbs--all dealt with
“as-applied” challenges in which the defendants (governmental
entities) applied their policies to bar forum access to those
wishing to express the ideas that the plaintiffs sought to
communicate. Here, in this facial challenge, SFISD has not applied
its policy to bar anyone or any expression. Instead, its policy
invites expression, restricted only by time, place, and manner.
Here, we address a facial challenge to a policy under which
the school district argues that it has indeed established a public
forum. A facial challenge requires that we must not condemn the
policy unless there is no way to implement it in a constitutional
manner. Clear Creek II, 977 F.2d at 969; cf. United States v.
Salerno, 481 U.S. 739, 745 (1987) (“A facial challenge to a
legislative Act is, of course, the most difficult challenge to
mount successfully, since the challenger must establish that no set
of circumstances exists under which the Act would be valid.”); see
also Doe v. Madison Sch. Dist. No. 321, 147 F.3d 832, 836 & n.6
(9th Cir. 1998) (refusing to view a school district’s intentions
skeptically when analyzing a facial challenge to a graduation
policy). The difference between facial challenges and “as-applied”
challenges is critically important, and yet the majority has
erroneously decided to treat them identically. This error, in
turn, causes the majority to stumble through the inappropriate
-63-
63
process of applying forum tests and factors wholly inapplicable in
the context of this appeal. See, e.g., ante at 28 (attempting to
apply the factor of “governmental intent,” but then stating that
(in this facial challenge) “the government’s proffered intent does
not govern this inquiry”); ante at 30-31 (analyzing the “extent of
the use granted” factor when the policy has never been
implemented).25
But the SFISD policy clearly survives a facial challenge.
When a policy creating a forum places no barriers other than
reasonable time, place, and manner restrictions on the speech, that
policy creates a public forum.26 As already stated, the SFISD
policy only limits the class of potential speakers to graduating
students; this lone restriction merely requires us to characterize
the forum as a “limited” public forum.
2
25
As these citations reveal, the majority applies factors
designed for use in analyzing “as-applied” challenges to government
restrictions on speech when the plaintiff has brought a facial
challenge to a policy not yet implemented.
26
See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989) (“[E]ven in a public forum the government may impose
reasonable restrictions on the time, place, or manner of protected
speech, provided [that] the restrictions ‘are justified without
reference to the content of the regulated speech, that they are
narrowly tailored to serve a significant governmental interest, and
that they leave open ample alternative channels for communication
of the information.’”) (quoting Clark v. Community for Creative
Non-Violence, 468 U.S. 288, 293 (1984)).
-64-
64
Even if the SFISD policy did not create a limited public
forum, the majority’s decision to accept ecumenical prayers while
barring other prayers contradicts established First Amendment law.
Once the government creates a forum--whether a traditional public
forum, a limited public forum, or even a nonpublic forum--and lets
in some religious viewpoint, the government may not then exclude
any other religious viewpoint. In other words, the government must
neutrally accommodate all religious viewpoints once any one
religious viewpoint (e.g., an ecumenical viewpoint) has entered the
forum.
This result is dictated by the Supreme Court’s consistent rule
that even in nonpublic fora, the government may not engage in
viewpoint discrimination. See Perry, 460 U.S. at 46 (government
may not discriminate based on viewpoint in even a nonpublic forum);
Cornelius, 473 U.S. at 806 (“Control over access to a nonpublic
forum can be based on subject matter and speaker identity so long
as the distinctions drawn are reasonable in light of the purpose
served by the forum and are viewpoint neutral.”) (emphasis added
and citation omitted); Hobbs v. Hawkins, 968 F.2d 471, 481 (5th
Cir. 1992) (“viewpoint discrimination violates the First Amendment
regardless of the forum’s classification”). Of utmost importance
to the instant case, the Supreme Court has applied this hard and
fast rule in the realm of religious speech. In the midst of
-65-
65
chastising a school district’s decision to exclude a religious
group from using school premises solely because of the group’s
religious viewpoint, the Supreme Court stated that
denial on that basis was plainly invalid under our
holding in Cornelius that although a speaker may be
excluded from a non-public forum if he wishes to address
a topic not encompassed within the purpose of the
forum . . . or if he is not a member of the class of
speakers for whose especial benefit the forum was
created . . . , the government violates the First
Amendment when it denies access to a speaker solely to
suppress the point of view he espouses on an otherwise
includible subject.
Lamb’s Chapel, 508 U.S. at 394 (quotation marks and citations
omitted; placement of ellipses in original). It is not surprising
that the Supreme Court has applied this prohibition against
viewpoint restriction to religious speech. The Court has stated in
graphic and certain terms that the First Amendment’s Free Speech
Clause fully applies to religious speech:
Our precedent establishes that private religious speech,
far from being a First Amendment orphan, is as fully
protected under the Free Speech Clause as secular private
religion. Indeed, in Anglo-American history, at least,
government suppression of speech has so commonly been
directed precisely at religious speech that a free-speech
clause without religion would be Hamlet without the
prince. Accordingly, we have not excluded from free-
speech protections religious proselytizing, or even acts
of worship.
Pinette, 515 U.S. at 760 (citations omitted).
In sum, even if we assume that the graduation policy creates
only a nonpublic forum, the government may place some reasonable
-66-
66
restrictions on the speech but it most assuredly cannot restrict
speech because of its viewpoint. Thus, the majority creates a
subset of constitutional violations when it allows the school
district to create a forum where students can offer ecumenical
prayers, but not the prayers of any other religion.27 See American
Civil Liberties Union v. Black Horse Pike Reg’l Bd. of Ed., 84 F.3d
1471, 1492 (3d Cir. 1996) (Mansmann, J., dissenting) (contrasting
the Clear Creek II policy with another policy that “is more liberal
in that it extends the scope of its toleration to include even
sectarian prayer, if the graduates so choose,” and concluding that
the latter policy “comports with the First Amendment’s prohibition
against the inhibition of the practice of religion or of free
expression”). Whatever criticisms one may make of the reasoning
27
Lamb’s Chapel and Pinette positively suggest that a
“nonsectarian, nonproselytizing” content limitation is itself
unconstitutional in this setting. See Lamb’s Chapel, 508 U.S. at
394 (noting that “‘government violates the First Amendment when it
denies access to a speaker solely to suppress the point of view he
espouses,’” and holding that a requirement of no religious content
constitutes such an impermissible viewpoint restriction) (quoting
Cornelius, 473 U.S. at 806); Pinette, 515 U.S. at 766 (stating that
“giving sectarian religious speech preferential access to a forum
. . . would violate the . . . Free Speech Clause, since it would
involve a content limitation,” and thereby implying that the
reverse would also be true). Although Clear Creek II clearly held
that a “nonsectarian, nonproselytizing” content limitation was
constitutionally permissible in the context of a limited public
forum, see Clear Creek II, 977 F.2d at 967 & 971, Lamb’s Chapel and
Pinette are subsequent decisions of the Supreme Court, so it would
appear that this holding has been overruled.
-67-
67
in Clear Creek II,28 there can be no contention that a content
limitation would in any way improve the situation. It is therefore
clear to me that the district court erred in requiring SFISD to
incorporate these additional restrictions into their policy.
IV
Now we come to the remarkable holding of the majority that,
for the most curious reasons, the First Amendment allows speech at
graduation ceremonies but bars speech at sporting events. In
short, there is a total absence of merit to the contention that the
Football Policy might be constitutionally deficient when the
graduation policy is not.29 As I have tried to explain, the reason
28
Although the question is not before us, courts and
commentators have criticized the idea that an elected class could
qualify either as “religion neutral” or even as a proper class for
public forum and Mergens purposes. See, e.g., Doe v. Madison Sch.
Dist. No. 321, 147 F.3d 832, 834 n.7 (9th Cir. 1998) (finding
selection by grade point a superior method in this regard); Black
Horse, 84 F.3d at 1477-78; Recent Case, 110 Harv. L. Rev. 781, 783-
84 (1997); Rick A. Swanson, Time for a Change: Analyzing Graduation
Invocations and Benedictions under Religiously Neutral Principles
of the Public Forum, 26 U. Mem. L. Rev. 1405, 1422-25, 1432-33 &
n.95 (1996); cf. Widmar, 454 U.S. at 275 (making explicit exception
for the situation where “empirical evidence [shows] that religious
groups will dominate the forum”); Pinette, 515 U.S. at 766 (noting
that “one can conceive of a[n unconstitutional] case in which the
governmental entity manipulates its administration of the public
forum in such a manner that only certain religious groups take
advantage of it”); Clear Creek II, 977 F.2d at 969 (stating that
“[w]e can imagine discriminatory methods of implementing the
[policy] that would make it a tool for governmental endorsement of
religion”).
29
The Football Policy states:
-68-
68
a Clear Creek II policy works is that it neutrally accommodates
both religious and nonreligious speech in a limited public forum.
Constitutionally speaking, there are no location or other
restrictions on where the state may elect to create its designated
or limited public fora, see Estiverne, 863 F.2d at 376. It follows
therefore that if the school policy at issue facially creates a
limited public forum, that policy (here, the Football Policy)
necessarily passes constitutional muster to allow the designated
class of speakers to engage in both religious and non-religious
The board has chosen to permit students to deliver a
brief invocation and/or message to be delivered during
the pre-game ceremonies of home varsity football games to
solemnize the event, to promote good sportsmanship and
student safety, and to establish the appropriate
environment for the competition.
Upon advice and direction of the high school principal,
each spring, the high school student council shall
conduct an election, by the high school student body, by
secret ballot, to determine whether such a statement or
invocation will be a part of the pre-game ceremonies and
if so, shall elect a student, from a list of student
volunteers, to deliver the statement or invocation. The
student volunteer who is selected by his or her
classmates may decide what message and/or invocation to
deliver, consistent with the goals and purposes of this
policy.
Like the graduation policy, the Football Policy contains a fallback
provision that goes into effect if a court enjoins the enforcement
of the primary policy provisions. If this occurs, the policy goes
into effect with the following sentence added to the last
paragraph:
Any message and/or invocation delivered by a student must
be nonsectarian and nonproselytizing.
-69-
69
speech. But see Jager v. Douglas County Sch. Dist., 862 F.2d 824
(11th Cir. 1989) (finding “equal access” policy for football game
invocations unconstitutional, but without reference to public forum
analysis and in the apparent assumption that the “invocations” at
issue were certain to be religious in content).
On the other hand, the majority, which apparently feels
measurable discomfort with our precedent, takes the Football Policy
as an opportunity to break free from the constraints of Clear Creek
II, and argues that, unlike graduation ceremonies, football games
lack solemnity, which, the majority concludes, undermines any
legitimate reasons for the policy’s application to such sporting
events.30 It may well be headline news to the majority, but a
“solemn” ceremony is not the only occasion when many citizens feel
the need for serious thoughts and words. Of course, football games
do not possess the solemnity of a graduation ceremony. But that
fact has all the relevance to our First Amendment discussion today
as the fact that a hog was slaughtered to make SFISD’s football.
There are in fact several secular reasons for allowing a brief,
serious message before football games--some of which SFISD has
listed in its policy. At sporting events, messages and/or
30
The majority also claims to find support in Doe v.
Duncanville Indep. Sch. Dist., 70 F.3d 402 (5th Cir. 1995), for
striking the Football Policy. But Duncanville was an entirely
different case, involving private prayers among team members--not
“public” prayers or messages in any sense.
-70-
70
invocations can promote, among other things, honest and fair play,
clean competition, individual challenge to be one’s best,
importance of team work, and many more goals that the majority
could conceive would it only pause to do so.
Having again relinquished all editorial control, SFISD has
created a limited public forum for the students to give brief
statements or prayers concerning the value of those goals and the
methods for achieving them. As with the graduation messages, there
will be no “dueling debates.” But make no mistake, whatever the
subject--whether it be sportsmanship, the value of winning, the
importance of safety, etc.--students will have different views on
the subjects to be expressed. Because the SFISD policy does
nothing to discriminate based on viewpoint, and certainly does not
direct any particular viewpoint (religious or secular), the primary
SFISD Football Policy does not violate the First Amendment.
V
Our court’s dalliance in prayer-writing will not,
unfortunately, end with this case. Now that we have required
prayers to be nonsectarian and nonproselytizing in content, we
undoubtedly will have to give definition to those terms. This will
prove no easy task. In Lee, the rabbi’s benediction read in part:
The graduates now need strength and guidance for the
future, help them to understand that we are not complete
with academic knowledge alone. We must each strive to
-71-
71
fulfill what You require of us all: To do justly, to love
mercy, to walk humbly.
As Justice Blackmun pointed out, the last sentence of this excerpt
includes a direct quotation of Judeo-Christian scripture.31 Lee,
505 U.S. at 604, n.5 (Blackmun, J., concurring). Because the Court
refused to find that the nonsectarian nature of a prayer could save
it from Establishment Clause scrutiny, the Court did not need to
decide whether this oration qualifies as nonsectarian or
nonproselytizing. Our court will have to decide such issues.32 If
the prayer calls upon “Father” instead of “God,” will we intervene?
(Must the invocation be gender-neutral?) See Chaudhuri v.
Tennessee, 130 F.3d 232, 241 n.2 (6th Cir. 1997) (Jones, J.,
concurring and dissenting) (noting that the supplication to
“‘Heavenly Father’ contains a package of religious bias”), cert.
denied, 118 S. Ct. 1808 (1998). If a student begins his benediction
message by saying, “Blessed be He who decked the sky with
constellations and set in it a lamp and a shining moon”33 will we
31
The quote is from the Book of the Prophet Micah, ch. 6, v.
8 (“He has showed you, O man, what is good. And what does the Lord
require of you? To act justly and to love mercy and to walk humbly
with your God.”).
32
Cf. Rosenberger, 515 U.S. at 835 (“The first danger to
liberty lies in granting the State the power to examine
publications to determine whether or not they are based on some
ultimate idea and, if so, for the State to classify them.”).
33
The Koran, Al-Furqan 25:63, at 256 (N.J. Dawood trans.,
Penguin Books 1997).
-72-
72
characterize this direct quotation of the Koran as sectarian and
proselytizing? Our court’s evolving prayer control will fashion
the standard utterance at high school graduations throughout our
Circuit: as students grope for a lawful way to express their most
deeply held beliefs, on one of the most ceremonious days in their
young lives, they will offer up the Fifth Circuit Court of
Appeals’s prayer.
The majority fails to realize that what is at issue in this
facial challenge to this school policy is the neutral accommodation
of non-coerced, private, religious speech, which allows students,
selected by students, to express their personal viewpoints. The
state is not involved. The school board has neither scripted,
supervised, endorsed, suggested, nor edited these personal
viewpoints. Yet the majority imposes a judicial curse upon
sectarian religious speech. Because I believe that this result is
at war with three clauses within the First Amendment, I
respectfully dissent.
-73-
73