Ingebretsen on Behalf of Ingebretsen v. Jackson Public School Dist.

United States Court of Appeals,
Fifth Circuit.
No. 94-60631.
David INGEBRETSEN, on Behalf of himself and his daughter, Anna
INGEBRETSEN, et al., Plaintiffs-Appellees, Appellants-Cross
Appellants,
v.
JACKSON PUBLIC SCHOOL DISTRICT and The Board of Trustees Of The
Jackson Municipal Separate School District, Defendants-Appellees,
and
Mike Moore, In his official capacity as the Attorney General of
the State of Mississippi, Defendant-Appellant, Cross Appellee,
Amelia Freeman, Jessica Massey and Stacy Smith, Movants-
Appellants.
Jan. 10, 1996.
Appeals from the United States District Court for the Southern
District of Mississippi.
Before DAVIS and PARKER, Circuit Judges and BUNTON,1 District
Judge.
W. EUGENE DAVIS, Circuit Judge:
The State of Mississippi appeals the district court's decision
to enjoin enforcement of a Mississippi statute allowing prayer at
compulsory and noncompulsory school events. Ingebretsen
cross-appeals to protest the exemption of graduation prayers from
the injunction and the American Family Association Law Center
("AFALC") appeals the district court's denial of its motion to
intervene. We affirm.
I.
1
District Judge of the Western District of Texas, sitting by
designation.
1
On a wave of public sentiment and indignation over the
treatment of a Principal, Dr. Bishop Knox, who allowed students to
begin each school day with a prayer over the intercom, the
Mississippi legislature passed the School Prayer Statute at issue
here. 1994 Miss.Laws ch. 609 (Appendix A). The language at the
center of this controversy is § 1(2) of the statute which reads:
[o]n public school property, other public property or other
property, invocations, benedictions or nonsectarian,
nonproselytizing student-initiated voluntary prayer shall be
permitted during compulsory or noncompulsory school-related
student assemblies, student sporting events, graduation or
commencement ceremonies and other school-related student
events.
1994 Miss.Laws ch. 609, § 1(2).
The statute includes a lengthy preamble stating that it shall
not be construed to violate the constitution and that its purpose
is to accommodate religion and the right to free speech. The
School Prayer Statute also contains a severability clause which
permits any provision of the statute found to be invalid or
unconstitutional to be severed without affecting the remainder of
the statute. See Id. § 1(4), (5).
A group of parents, students, and taxpayers in the Jackson
Public School District, including Ingebretsen, filed suit along
with the American Civil Liberties Union of Mississippi in July of
1994 to enjoin enforcement of the School Prayer Statute on the
ground that it violates the establishment clause. A motion for a
preliminary injunction to preserve the status quo was filed
simultaneously with the complaint.
On August 4, 1994, the district court held a hearing on
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Ingebretsen's motion to enjoin the defendants from implementing in
any manner the School Prayer Statute. At that time, the district
court also heard the motion of AFALC to intervene on behalf of
certain students enrolled in Mississippi public schools. The
district court decided to hold the motion for intervention in
abeyance, but permitted AFALC to present argument at the hearing as
amicus curiae. AFALC was instructed to re-urge its motion after
the court ruled on the motion for preliminary injunction.
On August 11, 1994, one day before the start of the 1994-1995
academic year for the Mississippi public schools, the district
court issued a preliminary injunction prohibiting enforcement of
the School Prayer Statute. The injunction was designed to maintain
the status quo until the court had full opportunity to assess each
portion of the statute separately. On August 16, 1994, the court
held a supplemental hearing to determine what portion of the
statute, if any, could escape the injunction by its severability
clause. The court heard the testimony of Dr. Dan Merritt, Interim
Superintendent of the District, and Dr. Emanuel Reeves, principal
of Provine High School in Jackson, Mississippi and concluded that
the provision for prayers at high school commencement exercises was
the only constitutionally acceptable portion of the statute.
The district court enjoined enforcement of the statute in its
entirety with the exception of the portion which permits prayers to
take place at graduation ceremonies in accordance with Jones v.
Clear Creek Indep. School Dist., 977 F.2d 963, 972 (5th Cir.1992)
(Jones II ).
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II.
Mississippi argues first that Ingebretsen does not have
standing to challenge the School Prayer Statute because the statute
has not yet been implemented. However, the district court found
that Ingebretsen had alleged real and substantial injury which
would result from the implementation of the School Prayer Statute.
We agree. There is no need for Ingebretsen to wait for actual
implementation of the statute and actual violations of his rights
under the First Amendment where the statute "makes inappropriate
government involvement in religious affairs inevitable." Karen B.
v. Treen, 653 F.2d 897, 902 (5th Cir.1981). The district court
relied on the testimony of Dr. Merritt and Dr. Reeves and the
enormous interest in school prayer following the suspension of Dr.
Knox to conclude that implementation of the statute would
inevitably lead to improper state involvement in school prayer.
Under the terms of the statute, the state or its representatives
will inevitably be forced to decide who prays and which prayers
qualify as nonsectarian and nonproselytizing. The state will also
be in the position of punishing students who attempt to leave so as
to avoid hearing the prayers. This is clearly the sort of state
involvement contemplated by Karen B.
III.
Mississippi argues next that the district court erred in
issuing the preliminary injunction. To obtain a preliminary
injunction, Ingebretsen was required to show: 1) a substantial
likelihood of success on the merits; 2) a substantial threat that
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he will suffer irreparable injury if the injunction is not issued;
3) that the threatened injury to him outweighs any damage the
injunction might cause to the state and its citizens; and 4) that
the injunction will not disserve the public interest. Doe v.
Duncanville Independent School Dist. (Doe I ), 994 F.2d 160, 163
(5th Cir.1993) (citations omitted). The district court made
findings under all of these factors and concluded that the
injunction was appropriate. This court will reverse the district
court only upon a showing of abuse of discretion. Id.
A. Substantial likelihood of success
The Fifth Circuit has identified three tests that the Supreme
Court has used to determine whether a government action or policy
constitutes an establishment of religion. See Jones II, 977 F.2d
963. First, the Establishment Clause test of longest lineage: the
Lemon test. Lemon v. Kurtzmann, 403 U.S. 602, 612-613, 91 S. Ct.
2105, 2111, 29 L. Ed. 2d 745 (1971). Under Lemon, a government
practice is constitutional if (1) it has a secular purpose, (2) its
primary effect neither advances nor inhibits religion, and (3) it
does not excessively entangle government with religion. Id.
Second, the Court has analyzed school-sponsored religious activity
in terms of the coercive effect that the activity has on students.
Lee v. Weisman, 505 U.S. 577, 112 S. Ct. 2649, 120 L. Ed. 2d 467
(1992). Third, the Court has disapproved of governmental practices
that appear to endorse religion. County of Allegheny v. ACLU, 492
U.S. 573, 594, 109 S. Ct. 3086, 3101, 106 L. Ed. 2d 472 (1989). See
also Capitol Square Review Board v. Pinette, --- U.S. ----, ---- -
5
----, 115 S. Ct. 2440, 2452-2456, 132 L. Ed. 2d 650 (1995) (O'Connor,
J., concurring). The district court did not make an exhaustive
analysis under each of the tests because it found that the statute
was defective under any of the tests. We agree.
The School Prayer Statute fails all three prongs of the Lemon
test because its purpose is to advance prayer in public schools,
its effect is to advance religion in the schools and it excessively
entangles the government with religion. The legislature declared
that its purpose in enacting the School Prayer Statute was "to
accommodate the free exercise of religious rights of its student
citizens in the public schools." 1994 Miss.Laws ch. 609 § 1(1).
This statement of purpose cannot be characterized as "secular"
because its clear intent is to inform students, teachers and school
administrators that they can pray at any school event so long as a
student "initiates" the prayer (ostensibly by suggesting that a
prayer be given). Further, when we view this statute along with
this same legislature's resolution commending Dr. Knox for his
"unswerving dedication to prayer in public schools," and in the
context of the uproar over Dr. Knox's treatment after allowing
prayer in his school, the conclusion that the School Prayer Statute
was intended to advance religion becomes unavoidable. Returning
prayer to public schools is not a secular purpose.
The statute's effect is to advance religion over irreligion
because it gives a preferential, exceptional benefit to religion
that it does not extend to anything else. See Herdahl v. Pontotoc
County School District, 887 F. Supp. 902, 908-09 (N.D.Miss.1995)
6
(school policy of turning public address system over to religious
club for morning invocation and scripture reading has primary
effect of advancing religion). Students are required by law to
attend school and a state policy of prayer at school tells students
that the state wants them to pray.
The final prong of Lemon is also violated by the School
Prayer Statute because representatives of the government are
allowed to lead students in prayer and punish students who leave
class or assemblies in order to avoid listening to a prayer. The
statute will inevitably involve school officials in determining
which prayers are "nonsectarian and nonproselytizing" and in
determining who gets to say the prayer at each event. To the
extent that school administrators participate in prayers in their
official capacity or review the content of prayers to ensure that
they meet these requirements, the School Prayer Statute excessively
entangles government with religion.2
The School Prayer Statute is also unconstitutional under the
"coercion test" of Lee, 505 U.S. 577, 112 S. Ct. 2649, 120 L. Ed. 2d
467 (1992). The statute would allow prayers to be given by any
person, including teachers, school administrators and clergy at
2
The Attorney General also argues that Ingebretsen has not met
his burden of showing that the statute is facially invalid.
However, in establishment clause cases facial attacks are
considered under the Lemon test and the Supreme Court has refused
to draw distinctions between facial and "as applied" attacks. See
Bowen v. Kendrick, 487 U.S. 589, 601-02, 108 S. Ct. 2562, 2569-70,
101 L. Ed. 2d 520 (1988); Edwards v. Aguillard, 482 U.S. 578, 581,
583, 107 S. Ct. 2573, 2576-77, 96 L. Ed. 2d 510 (1987). The above
discussion demonstrates the invalidity of this statute under Lemon.
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school functions where attendance is compulsory. 1994 Miss.Laws
ch. 609 § 1(2). The coercion here is even greater than that in Lee
where students had the option of not attending the graduation
ceremony where the challenged prayer was offered. Here, students
will be a captive audience that cannot leave without being punished
by the state or School Board for truancy or excessive absences.
This brings us to the final test: the endorsement test.
Government unconstitutionally endorses religion whenever it appears
to " "take a position on questions of religious belief,' " or makes
" "adherence to a religion relevant in any way to a person's
standing in the political community,' " Allegheny, 492 U.S. at 594,
109 S.Ct. at 3101 (quoting Lynch v. Donnelly, 465 U.S. 668, 687,
104 S. Ct. 1355, 1366, 79 L. Ed. 2d 604 (1984)). The government
creates this appearance when it conveys a message that religion is
"favored," "preferred," or "promoted" over other beliefs.
Allegheny, 492 U.S. at 593, 109 S.Ct. at 3100-01. The School
Prayer Statute is an unconstitutional endorsement of religion
because it allows school officials in their capacity as
representatives of the state to lead students in prayer and sets
aside special time for prayer that it does not set aside for
anything else. It also places the coercive power of the state in
the position of forcing students to attend school and then forcing
them to listen to prayers offered there.
Under any of these tests, the District Court's determination
that Ingebretsen had shown a substantial likelihood of prevailing
on the merits was not an abuse of discretion.
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B. A substantial threat of irreparable injury
Ingebretsen has shown that the School Prayer Statute
represents a substantial threat to his First Amendment rights. Doe
I, 994 F.2d at 166. Loss of First Amendment freedoms, even for
minimal periods of time, constitute irreparable injury. Elrod v.
Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 2689, 49 L. Ed. 2d 547
(1976).
C. The threatened injury outweighs any damage the injunction might
cause to Mississippi and its citizens
The only harm asserted by the Attorney General is that the
injunction would have a chilling effect on students who would like
to pray at school. However, the court correctly held that the
injunction affected only the School Prayer Statute and would not
affect students' existing rights to the free exercise of religion
and free speech. Therefore, students continue to have exactly the
same constitutional right to pray as they had before the statute
was enjoined. They can pray silently or in a non-disruptive manner
whenever and wherever they want, Wallace v. Jaffree, 472 U.S. 38,
67, 105 S. Ct. 2479, 2495, 86 L. Ed. 2d 29 (1985) (O'Connor
concurring), in groups before or after school or in any limited
open forum created by the school. See Bd. of Educ. of Westside
Community Schools v. Mergens, 496 U.S. 226, 240, 110 S. Ct. 2356,
2366, 110 L. Ed. 2d 191 (1990).
D. The injunction will not disserve the public interest.
The School Prayer Statute is unconstitutional so the public
interest was not disserved by an injunction preventing its
implementation.
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All four requirements of a preliminary injunction were
properly met. The district court did not abuse its discretion in
determining that a preliminary injunction was warranted.
IV.
We decline Ingebretsen's invitation to reconsider our holding
in Jones II which allows students to choose to solemnize their
graduation ceremonies with a student-initiated, non-proselytizing
and nonsectarian prayer given by a student. 977 F.2d at 965 n. 1.
To the extent the School Prayer Statute allows students to choose
to pray at high school graduation to solemnize that
once-in-a-lifetime event, we find it constitutionally sound under
Jones II.
V.
Finally, the Proposed Intervenors and the Attorney General
assert that the Proposed Intervenors should have been allowed to
intervene as of right under Rule 24(a)(2) or permissively under
Rule 24(b). Fed.R.Civ.Proc. 24 (West 1995). The district court
denied the application to intervene as of right solely on the
ground that the Proposed Intervenors' interests were already
adequately represented by the Attorney General and we review that
determination de novo. The Proposed Intervenors and the Attorney
General claim that the denial was error and that intervention was
necessary to allow the Proposed Intervenors to assert their
constitutionally protected rights of free exercise of religion and
free speech. However, the only issue before the court is the
validity of the School Prayer Statute and the Attorney General, in
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defending that statute, can assert the rights of all Mississippians
affected by the law, including the Free Exercise rights of the
Proposed Intervenors. The Attorney General undoubtedly affords the
Proposed Intervenors' interests adequate representation.
The denial of permissive intervention was also appropriate
because the Proposed Intervenors bring no new issues to this
action. The abuse of discretion standard of review for such a
denial is "exceedingly deferential" to the district court, and
"this circuit has never reversed a denial of permissive
intervention." Doe I, 994 F.2d at 168 n. 10 (citation omitted).
The district court's conclusion that the Proposed Intervenors would
bring only delay to this action was not plain error.
Conclusion
The district court did not abuse its discretion in
preliminarily enjoining the enforcement of the School Prayer
Statute. Ingebretsen's claim showed a substantial likelihood of
success on the merits, irreparable harm, more harm from the new law
than from the injunction and that the injunction served the public
interest. The district court also decided correctly to deny
intervention on the ground that the Proposed Intervenors are
adequately represented by the Attorney General. The Attorney
General's argument for the statute on appeal is grounded almost
entirely on the First Amendment rights of students. The Proposed
Intervenors do not assert that students have any rights that the
Attorney General has not also asserted in support of the statute.
The district court's denial of permissive intervention was proper
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for the same reasons: Proposed Intervenors would add nothing to
this action except additional parties.
For these reasons, the district court's orders enjoining the
enforcement of the School Prayer Statute except as to nonsectarian,
nonproselytizing student initiated voluntary prayer at high school
commencement as condoned by Jones II and denying AFALC's motion for
intervention are AFFIRMED.
AFFIRMED.
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