ORDER AND OPINION
This mаtter is before the Court on the parties’ cross motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The plaintiffs filed a motion for summary judgment, on February 4, 2015, (ECF No. 84) and the Defendant Greenville County School District filed its cross-motion, on March 13, 2015 (ECF No. 89). Both parties responded. (ECF Nos. 92, 93.)
The plaintiffs have challenged two practices of the defendant school district related to its graduation practices, as unconstitutional, and seek to enjoin their continued implementation. First, the plaintiffs contest the defendant’s practice, relating to the inclusion of prayer or other religious statement at its graduation ceremonies, as a violation of the Establishment Clause of the First Amendment to the United States Constitution. Second, the plaintiffs contend that the choice of certain schools within the district to use a religious chapel on the campus of North Greenville University is also unconstitutional. The Court has already dismissed the chapel claim by way of separate order. (ECF No. 96.)
BACKGROUND
Jill Doe is the daughter of Jane and John Doe (“Doe Parents”). Jill was a fifth grade student at Mountain View Elementary School (“MVES”), during the 2012-13 school year. (Verified Compl. ¶ 6.)
Since 1951, Christian prayers have been included at graduation ceremonies for elementary school children in the school district. (Def. Ans. Interrog. Nos. 3, 4.) All prayers have been delivered by school-selected fifth graders, normally age 10 or 11. Id. No. 5. Two prayers are included each ceremony. (See John Doe Decl. Ex. A.) The first is offered after opening remarks by the principal and the second is offered at the ceremony’s conclusion. Id. It does not appear that any have been non-Christian prayers. (Nee Def. Ans. American Humanist Association (AHA) Interrog. Nos. 8.) It has been the school district’s practice to have school officials, typiсally fifth grade teachers, select the students to deliver the prayers. Id. No. 9. Students are selected based in part on their “ability to speak in front of a group.” Id. It has also been the school district’s practice to have school officials review and approve the content of the prayers prior to their delivery. Id. No. 10. Each prayer is designated as “Prayer” on the official graduation programs, which are. distributed to attendees, such as the Does. (John Doe Decl. Ex. A.)
Other schools in the district, including elementary schools, have a policy and practice of including prayers in graduation ceremonies. (John Doe Decl. Ex B at 1-8; Def. Ans. Req. Admit at 1.) It is undisputed that in the vast majority of these schools; the prayer-givers are selected by the school, as with MVES, often based on ability to publicly speak, class rank, or class office. {See generally Def. Ans. Doe Intercoms.) It is further undisputed that in most of these schools, the “prayer” (or “invocation” and “benediction”) has been listed on the official graduation program handed out to attendees and that, in many of these programs, the audience and graduates are expressly instructed to stand for the prayer. Id. In several schools, men are even required to remove their caps. Id.
The defendant, however, has now amended its position on prayer and religious content at graduation:
As it pertains to the use of prayer by students, the District is committed to not endorsing the use of such prayer by students, and therefore, any prayer given by a student at a school-sponsored event, including an awards program for Mountain View Elementary, will be under different circumstances than the May 30, 2013 program----With regard to a student delivering a prayer or providing a religious message during a school sponsored event, the District will not prоhibit this practice as long as the prayer or message is student led and initiated and does not create a disturbance to the event. Prohibiting such independent. ■ student speech would go beyond showing neutrality toward religion but instead demonstrate an impermissible hostility toward religion. If a student is selected to speak based upon genuinely neutral criteria such as class rank or academic merit, that student should have the same ability to decide to deliver a religious message or prayer as another student has the ability to decide to speak about an inspirational secular book or role model.
(Compl. Ex. 6.) The plaintiffs' challenge both the prior practice, and the new amended one, as unconstitutional.
DISCUSSION
To the undersigned there is no more sacred liberty than an individual’s personal view of his or her cosmological origin — divine or chance, intentional or naturally selective. And, cultures have developed various names for the posture we assume in the direction of our creative
The Christian community, in certain parts, feels besieged. This sense has two ' sources. The first is the view that people of faith cannot practice their religion and its tenets as they wish. The second is a genuine compassion for this country — that it know a redeeming faith. To certain parts of Western Christianity, the lack of prayer in the public sector is not only a symptom of declining religiosity and mor-alism but is, in part, the cause itself.
In contrast, those of different faith or no religious faith at all are exhausted of this historical conflation of judeo-christianism and public ceremony persistent even to now and our exceedingly modern and pluralistic times. Those that oppose religious practice in schools are exasperated.
The Court has sympathy for both views, indeed, relates. But, the undersigned’s most overwhelming rhetorical reaction to all of this is how in 2015 is there still any debate or legal nuance to hash over prayers at graduation? One side insists on securing every slight remaining loophole of religious demonstration in school and the other is chasing to the ends of the earth the last pitiful vestiges of these practices that have been essentially neutered of all possible eternal meaning and effect. This case, of course, is serious and its prosecution and defense justified. But, litigation is expensive in dollars and time and the fruit of ceaseless advocacy has apparently not been peace. The two sides find themselves here again and again. That, of course, is their right. It is conceivable, however, that, in this war over the private conscious made public, the better strategy is arms laid down in recognition of the human psychology that we are always made more in our submission than our entitlement.
This case will not be the last of its kind. But, it is the one most immediately important to the people of our community and school system on the issue of prayer at graduation. The Court would find the following.
The First Amendment of the United States Constitution reads, in relevant part, as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; ....
U.S. Const, amend. I. The Amendment’s first clause is styled, Establishment, and its, second, Free Exercise. The plaintiffs seek to enjoin prayer at any future graduations in the school district as violative of the First Amendment’s Establishment Clause. Specifically, the plaintiffs request the following injunction:
Defendants, their successors and any person in active concert with the Defendants from knowingly, intеntionally, or negligently allowing: (i) prayers to bedelivered as part of any school-sponsored event, including but not limited to graduation ceremonies ....
(Verified Compl. at 10.)
“[A] plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief.” eBay Inc. v. MercExchange, LLC,
To the extent the plaintiffs seek to enjoin the kind of official and school-sponsored student prayers, which were held as a formal part of graduations in the school district in 2013 and prior, the injunction is granted. The defendant concedes that such formal and sponsored prayers are unconstitutional and should no longer be allowed. (Def. Mem. Supp. Summ. J. at 6-7.) It admits:
Prior to and following the 2013 program, the School District has taken steps to prevent official, school sponsored prayers from being made part of end-of-year programs. Any future fifth grade end-of-year programs аt MVES, or other schools, will not include such prayers. (Gibson Aff. ¶ 17.)
(Def. Mem. Supp. Summ. J. at 7.)
As already quoted, the defendant instead has taken a new position concerning religious content at graduations:
As it pertains to the use of prayer by students, the District is committed to not endorsing the use of such prayer by students, and therefore, any prayer given by a student at a school-sponsored event, including an awards program for Mountain View Elementary, will be under different circumstances than the May 30, 2013 program.... With regard to a student delivering a prayer or providing a religious message during a school sponsored event, the District will not prohibit this practice as long as the prayer or message is student led and initiated and does not create a disturbance to thе event. Prohibiting such independent student speech would go beyond showing neutrality toward religion but instead demonstrate an impermissible hostility toward religion. If a student is selected to speak based upon genuinely neutral criteria such as class rank or academic .merit, that student should have the same ability to decide to deliver a religious message or prayer as another student has the ability to decide to speak about an inspirational secular book or role model.
(Compl. Ex. 6.)
As the plaintiffs contend, this modified position, does not end the inquiry. Ordinarily, the defendant’s voluntary cessation of a challenged practice will not moot an action because “the defendant is free to return to his old ways.” United States v. W.T. Grant Co.,
And, the Court is adamant to look beyond the face of the defendant’s stated position to its likely and practical effects at district graduations. Indeed, precisely because of the historical inclusion of prayer and religious speech at graduations, in this school district and State, it is conceivable that the cultural residue of prior practices might continue to color and confuse the application and invitation of, even now, constitutionally neutral practices. Thе undersigned is vigilant to identify any kind of wink and nod maneuvering.
But, the plaintiffs now have a serious kind of evidentiary problem. The impropriety of the old practice having been entirely confessed, the majority of the plaintiffs’ legal precedent and factual history are neutralized. The defendant’s new position involves no selection process, or election, to preemptively challenge or question. See Santa Fe Indep. Sch. Dist. v. Doe,
Joyner is illustrative. The Forsyth County Board of Commissioners had a policy of making open, written invitation to County clergy of all faiths, on a first-come, first-serve basis, to begin Board meetings in prayer. Joyner,
First, the State in Joyner, as in all such proffered cases by the plaintiff, remained active — active to invite area clergy if even under the guise of non-sectarian and voluntary participation. And, although not a memorialized part of the physically prepared agenda, the Board meeting allotted specific time at the bеginning for such prayers and asked the audience to stand in its recognition. Id. at 344. The policy, in law and fact, was not passive.
Second, the Fourth Circuit recognized that the policy in practice consistently invited prayer that was Christian in quality. There was specific evidence in the record that whatever neutrality had been attempted on paper had been plainly undermined in application. Id. at 354.
The new position of the defendant, here, is both neutral and passive. On its face, it does not invite any prayer or speech, sectarian or otherwise; it cannot be said to be coercive. It prescribes nothing.
The plaintiffs are wrong to cite Joyner and Santa Fe as against the kind of position, at issue here, which simply refuses to preеmptively restrain a certain type of message, namely religious. That is to invite a wholly new constitutional problem. “[T]he Supreme Court has never held that the mere fact that private religious speech occurs during school hours is sufficient to render it state speech.” Peck v. Upshur Cnty. Bd. of Educ.,
Both, of Joyner and Santa Fe, involve a kind of “permission” and “authorization” not present at all in this case. Equally, in Jager v. Douglas Cnty. Sch. Dist.,
Wade Hampton High School also included а prayer in its 2014 graduation ceremony, as it had in prior years. (Def. Resp. Req. Prod, at DEFS 189-90.) The official program for the 2014 ceremony instructed the audience to stand for the “inspirational reading” which was a prayer, and it appears the defendants knew in advance that a prayer would be delivered. Id. No school official, school employee, or student has ever been disciplined or reprimanded in any way by the school district due to prayers that have occurred as part of graduation ceremonies at any school since 2012. (Def. Rev. Ans. Req. Adm. No. 56.)
These three incidents, however, are not representative of the kind of ratio that suggests unconstitutionality in practice. See Adler v. Duval County School Bd.,
The Court has presaged the ultimate result but would apply the controlling test, expressly. The religion clauses of the First Amendment require that states “pursue a course of complete neutrality tоward religion.” Wallace v. Jaffree,
Secular Purpose
The first prong of the Lemon test asks whether the challenged practice had a secular purpose. “In applying the purpose test, it is appropriate to ask ‘whether government’s actual purpose is to endorse or disapprove of religion.’ ” Jaffree,
The Primary Effect
“The effect prong asks whether, irrespective of government’s actual purpose, the practice under review in fact conveys a message of endorsement or disapproval [of religion].” Jaffree,
Entanglement
The defendant is not entangled with religion at all. The position requires and expects no involvement of the schools in any decision of any individual student to include any religious point of view. See Doe ex rel. Doe v. Sch. Dist. of City of Norfolk,
The Court would accept the defendant’s invitation to heed the Eleventh Circuit’s pre-and post-Santa Fe decisions in
In Chandler II, the Eleventh Circuit invalidated as overbroad and unconstitutional a district court injunction that prohibited the school district from permitting any prayer in a public context at a school function, as thе plaintiffs solicit here. According to the Eleventh Circuit, it was erroneous to equate any and all student speech in a public context to government sponsored speech. As the Chandler II court noted:
Private speech endorsing religion is constitutionally protected — even in school. Such speech is not the school’s speech even though it may occur in the school. Such speech is not unconstitutionally coercive even though it may occur before non-believer students.... The injunction also forbids the school district from “permitting” students to speak religiously in any sort of public context. This it cannot constitutionally do. The Permanent Injunction may neither prohibit genuinely student-initiated religious speech, nor apply restrictions оn the time, place, and manner of that speech which exceed those placed oh students’ secular speech.
Id.
The defendant’s position is entirely consistent with the Supreme Court’s and Fourth Circuit’s declarations 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.” Santa Fe,
The position of the defendant has no religious purpose or effect and does not improperly entangle the State with religion. Indeed, the new position gets the defendant out of that business entirely. And, yet it preserves the constitutional edicts of speech and free exercise for individual students. The words could be rearranged but not to any better effect.
This Court sits in one of the great parts of the world, in people and heritage. There are many in our city and county and State who are the inheritance of a meaningful practice of various religion, maybe Christianity most predominately. Their tenets and freedom to live them matter. But, there is a new and growing richness of population, here, in culture and background, that is transforming the complexion of mores and discourse and daily experience, in both public and private ways. The new practice of the defendant is constitutional. But, plaintiffs are affirmed.
Concomitant to the effectiveness of the defendant’s new practice is the need that it be effectively communicated. The legacy of the historic inclusion of such prayers at graduation might still be coercively operative on contributing students. The 2014 incidents discussed, supra, are evidence that there is some inertia to the practice. Without affirmative instruction that prayer and religious messaging are no longer required, there is some risk that a student may yet still feel compelled. The defendant school district must, therefore, reasonably publicize the new practice to students participating in any graduations. Here, unlike with the Observer Effect, discussed previously, the engagement is reinforcing the balance of legal rights rather than affirmatively creating the opportunity to include religious speech through election or otherwise. It is intended to reset neutrality. The Court does not desire that this affirmative obligаtion of notice either invite religious content where none was planned or provide cover for school officials to use such a conversation to veil encouragement for praying. It should be done with those concerns in mind.
The plaintiffs argue, however, that they are still clearly entitled to summary judgment on their claims for nominal damages based on the policies in place at Jill Doe’s graduation. As stated, the defendants do not deny that the practice in place, from 1951 through the 2013 MVES graduation, was unconstitutional. And, nominal damages cannot be mooted. See Rendelman v. Rouse,
CONCLUSION
Accordingly, the plaintiffs’ motion for summary judgment is GRANTED in part and DENIED in part. Specifically, the plaintiffs’ motion is GRANTED as to the practice of graduation prayers from 1951 through the 2013 MVES graduation. That prior practice is hereby enjoined, with the concession of the defendant. The defendant’s new position on prayer at graduations, recited herein, however, is not enjoined, and the plaintiffs motion, as to it, is DENIED. The defendant’s motion for summary judgment is, likewise, GRANTED in part and DENIED in part but conversely so. It is DENIED as to the prior policy and GRANTED as to the constitutionality of the new. The plaintiffs are entitled to nominal damages in the amount of $1.
IT IS SO ORDERED.
Notes
. Respectfully and for guidance with future filings, citation in the plaintiffs’ memоrandum to the paragraph enumeration in the undisputed statement of facts, rather than to the evidence itself, has not well assisted the court in identifying the evidence or translating its own citations herein.
. Joyner concerns legislative prayer, which is viewed through a different historical lens. The Court means only to rejoin the plaintiff's reliance on it, and others, for some idea that it suggests that neutral policies, still permissive of prayer, are always unconstitutional. The policy in Joyner was not neutral. In policy and practice, it involved active sponsorship of the State. The defendant's amended practice here anticipates no such continuing activity.
. Although some matter of semantics, it is no policy at all, as the defendants correct. It is a response to activity not even yet occurring— what the defendant will not do. In that sense, there is not even any state act in the non-proscribing, itself. It is as neutral and non-acting as the defendants can be and still be acting sufficient to ensure others, and this Court, they will behave constitutionally.
.Footnote 21 of Santa Fe reads in part, "Even if the plain language of the October policy were facially neutral, 'the Establishment Clause forbids a State to hide behind the application of formally neutral criteria and remain studiously oblivious to the effects of its actions.’ " Santa Fe,
. In science, the term "observer effect” refers to changes that the act of observation will make on a phenomenon being observed. The undersigned originally believed the Heisenberg Uncertainty Principle was emblematic. But, according to the crowd-sourcing inerran-cy of Wikipedia, apparently that axiom has been frequently confused with the observer effect, even by its originator, Werner Heisenberg, evidently. The Court has good company, therefore.
. The plaintiffs’ recourse to Gearon v. Loudoun Cnty. Sch. Bd.,