Lead Opinion
In Jones v. Clear Creek Independent School District,
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 enrolled in SFISD schools and their parents. In light of the sensitive nature of the action, they have been allowed to proceed anonymously.
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
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-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 Ms 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.
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
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,505 U.S. 577 ,112 S.Ct. 2649 ,120 L.Ed.2d 467 (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,505 U.S. 577 ,112 S.Ct. 2649 ,120 L.Ed.2d 467 (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,508 U.S. 967 ,113 S.Ct. 2950 ,124 L.Ed.2d 697 (1993).
Dated October 20,1994
In April 1995, the Does filed suit against SFISD in the Federal District Court for the Southern District of Texas.
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, nonp-roselytizing 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 77].”
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 cl^ss 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,*812 students to deliver nonsectarian, nonp-roselytizing invocations and benedictions for the purpose of solemnizing their graduation ceremonies. Jones v. Clear Creek ISD,977 F.2d 963 (5th Cir.1992) cert. denied508 U.S. 967 ,113 S.Ct. 2950 ,124 L.Ed.2d 697 (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”):
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 distribt.
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, nonp-roselytizing 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.
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. Beginning with SFISD’s liability for past practices, the court denied the school district’s pending motion for summary judgment and instead
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 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,
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
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 nonseetarian, nonprose-lytizing 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.
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,
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, 971 F.2d at 963; Ingebretsen,
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) its primary effect either advances or inhibits religion; or (3) it excessively entangles government with religion. Lemon v. Kurtzman,
b. The Coercion Test
The second test, which the Court announced in Lee v. Weisman, 505 U.S. 577,
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,
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 to give a nonsectarian, nonproselytizing invocation and benediction at graduation to be an unconstitutional “coercion” of participation in a state-directed religious exercise. Lee,
Then, in Clear Creek II, applying the three 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,
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, nonp-roselytizing” 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.
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,
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
3. Applying the Tests
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,
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 fallback 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,
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,
Again, in Clear Creek II, we determined that a student-led, nonsectarian, nonp-roselytizing prayer would serve to solemnize the graduation ceremony and thus would not have the primary effect of advancing religion. Clear Creek II,
But government imprimatur is not so easily masked: Prayers that a school “merely” permits will still be delivered to a government-organized audience, by méans of government-owned appliances and equipment, on government-controlled property, at a government-sponsored event, thereby clearly raising substantial Establishment Clause concerns. Cf. Lee,
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,
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 nonseetarian and nonproselytizing. Clear Creek II,
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,
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, 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 al
We begin with the basics. “There are three classifications of fora.” Hobbs v. Hawkins,
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,
The second factor relevant to determining •whether the government has established a public forum is the extent of the use granted. See Perry,
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 Estíreme, 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?” Estíreme,
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 r. Spang,
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 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,
Clear Creek II does not hold to the contrary. Although our opinion in that case does advert to Board of Education of West-side Community Schools v. Mergens,
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 un constitutional — 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 méssage, even if that message is religious in nature; Rosenberger v. Rector & Visitors of the Univ. of Virginia,
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 in-elude 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”), 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,
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 nonsectarian and non-proselytizing. Here, we are dealing with a setting [football and*823 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, however, widely misses the mark. The controlling feature here is the same as in Dun-canville: 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, nonproselytiz-ing restrictions. See Jager,
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,
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,
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 ‘private attorney general’ role which Congress meant to .promote in enacting § 1988.” Gar
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 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.,
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.
Ill
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 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.
Notes
. 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.
. Our recitation of tire 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.
. 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 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.
.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 tire invocation, and the secretary customarily gave the benediction.
. 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.
. Emphasis added.
. 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 Policy as well.
. 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, nonproselytiz-ing requirements are necessary.
. More generally, it is beyond peradventure that government measures that lend succor to a particular religion, denomination or sect fall at the very core of the conduct proscribed by the Establishment Clause. See, e.g., Larson v. Valente,
. 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,
. 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 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.
. 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
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.
Dissenting Opinion
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.”
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.
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 con
A
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,
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:
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.
In Engel v. Vitale,
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, nonprosely-tizing” 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 nonprose-lytizing — 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 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 mth more specific creeds strikes us as a contradiction that cannot be accepted.
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 821 (finding that the district court judge “clearly err[ed]” in defining nonsectarian to include reference to “specific deities” when Clear Creek II,
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 without regard to their religious belief’ by being overzealous in their enforcement of the Establishment Clause.
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.
Adapting this “neutral accommodation” principle to the scholastic setting, in Widmar v. Vincent,
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 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.
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.
C
Because it is clear that Clear Greek 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,
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 819-20, nor our own precedents require an interpretation of “invocation” or “benediction” grounded in religion. See Clear Creek II,
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 819. 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
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 — Cornelius, Perry, Forbes, Estiveme, 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,
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.
2
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,
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,
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,
In sum, even if we assume that the graduation policy creates only a nonpublic forum, the government may place some reasonable 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.
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.
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.
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 fulfill what You require of us all: To do justly, to dove mercy, to walk humbly.
As Justice Blaekmun pointed out, the last sentence of this excerpt includes a' direct quotation of Judeo-Christian scripture.
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.
. 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,
. 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.,
. The majority omits any mention of the fact that the Supreme Court vacated our decision in Jones v. Clear Creek Indep. Sch. Dist.,
. 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 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 tire Free Exercise and Establishment Clauses.
Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. Chi. L. Rev. 115, 118 (1992).
. 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 speech ...” U.S. Const, amend. I.
. 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.”
. Baffling indeed is the majority’s "cf.” citation, ante at 817, 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.
. And despite any implications in Clear Creek II to the contrary. Although we did note in Clear Creek II that having a nonsectarian, nonprosely-tizing requirement might serve to "minimize any ... advancement of religion," the argument was
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.,
. 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,
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.,
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.,
. This principle of neutral accommodation is fully consistent with and anticipated by Lee, see id.,
. 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,
. But see Lamb's Chapel,
.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 819 (quoting Brody v. Spang,
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,
. 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.
. See, e.g., Ward v. Rock Against Racism,
. 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, 113 S.Ct. 2141 (noting that " 'government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espous
. 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,
. The Football Policy states:
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 tire 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 nonprosely-tizing.
. 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.
. The quote is from the Book of the Prophet Micah, ch. 6, v. 8 ("He has showed you, 0 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.”).
.Cf. Rosenberger,
. The Koran, Al-Furqan 25:63, at 256 (N.J. Dawood trans., Penguin Books 1997).