327 F.3d 355 (4th Cir. 2003), 02-1215, Mellen v. Bunting

Docket Nº:02-1215
Citation:327 F.3d 355
Party Name:Mellen v. Bunting
Case Date:April 28, 2003
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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327 F.3d 355 (4th Cir. 2003)

Neil J. MELLEN; Paul S. Knick, Plaintiffs-Appellees,


Josiah BUNTING, III, in his individual capacity and in his official capacity as Superintendent, Virginia Military Institute, Defendant-Appellant.


Specialty Research Associates, Inc.; First Principles, Inc.; Coalition of American Veterans, Inc.; Naval Aviation Foundation, Inc.; The National Legal Foundation, Amici Supporting Appellant.

Americans United for Separation of Church and State; Anti-Defamation League; The American Jewish Committee, Amici Supporting Appellees.

Neil J. Mellen; Paul S. Knick, Plaintiffs-Appellants,


Josiah Bunting, III, in his individual capacity and in his official capacity as Superintendent, Virginia Military Institute, Defendant-Appellee.

Americans United for Separation of Church and State; Anti-Defamation League; The American Jewish Committee, Amici Supporting Appellants.

Specialty Research Associates, Inc.; First Principles, Inc.; Coalition of American Veterans, Inc.; Naval Aviation Foundation, Inc.; The National Legal Foundation, Amici Supporting Appellee.

Nos. 02-1215, 02-1267.

United States Court of Appeals, Fourth Circuit

April 28, 2003.

Argued: Jan. 21, 2003.

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William Henry Hurd, State Solicitor, Office of the Attorney General, Richmond, Virginia, for Appellant.

Rebecca Kim Glenberg, American Civil Liberties Union Foundation of Virginia, Richmond, Virginia, for Appellees.


Jerry W. Kilgore, Attorney General of Virginia, William E. Thro, Deputy State Solicitor, Maureen Riley Matsen, Deputy State Solicitor, Alison Paige Landry, Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellant.

Jane S. Glenn, Brian R. Jones, Jones & Glenn, Roanoke, Virginia, for Appellees.

Jordan W. Lorence, Benjamin W. Bull, Alliance Defense Fund Law Center, Scottsdale, Arizona, for Amicus Curiae Specialty Research. Ronald D. Ray, Edna Jenelle Turner, Crestwood, Kentucky, for Amici Curiae First Principles, et al. Steven W. Fitschen, The National Legal Foundation, Virginia Beach, Virginia, for Amicus Curiae Foundation. Ayesha N. Khan, Ilana R. Fisher, Americans United for Separation of Church and State, Washington, D.C.; Rosina K. Abramson, Steven M. Freeman, Erica Broido, Steven C. Sheinberg, Abbey Gans, Anti-Defamation League, New York, New York; Jeffrey P. Sinensky, Kara H. Stein, The American Jewish Committee, New York, New York, for Amici Curiae Americans United, et al.

Before KING, Circuit Judge, HAMILTON, Senior Circuit Judge, and GREENBERG, Senior Circuit Judge of the United States Court of Appeals for the Third Circuit, sitting by designation.

Affirmed in part and vacated in part by published opinion. Judge KING wrote the opinion, in which Senior Judge HAMILTON and Senior Judge GREENBERG joined.


KING, Circuit Judge:

General Josiah Bunting, III, the former Superintendent of the Virginia Military Institute ("VMI"), appeals the district court's award of declaratory and injunctive relief, prohibiting VMI from sponsoring a daily "supper prayer." Former VMI cadets Neil Mellen and Paul Knick (the "Plaintiffs") have cross-appealed, challenging the court's award of qualified immunity to General Bunting. Because the Plaintiffs have now graduated from VMI, their claims for declaratory and injunctive relief are moot, and we vacate the district court's judgment insofar as it awarded such relief. In assessing the Plaintiffs' claim for damages, we agree with the district court that the supper prayer violates the Establishment Clause of the First Amendment, but that General Bunting is nevertheless entitled to qualified immunity. Mellen v. Bunting, 181 F.Supp.2d 619 (W.D.Va.2002) (the "Opinion").



VMI is a state-operated military college located in Lexington, Virginia. Since its

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founding in 1839, VMI has been funded by the Commonwealth of Virginia and "subject to the control of the [Virginia] General Assembly." Va.Code Ann. § 23-92. Although it offers an education in the liberal arts, VMI also strives to prepare its cadets for military service and leadership, training them to be "ready as citizen-soldiers to defend their country in time of peril." 1 Appellant's Br. at 6.

To accomplish its mission, VMI utilizes an adversative method of training, modeled on an English educational philosophy and once characteristic of military instruction. The adversative method features physical rigor, mental stress, equality of treatment, little privacy, minute regulation of personal behavior, and inculcation of certain values. As the Supreme Court recently observed: "VMI constantly endeavors to instill physical and mental discipline in its cadets and impart to them a strong moral code." United States v. Virginia, 518 U.S. 515, 520, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). 2 In preparing its cadets for military leadership, VMI seeks to teach self-control, self-discipline, and the subordination of personal desires to the greater good.

The adversative method involves a rigorous and punishing system of indoctrination. As an able judge in the Western District of Virginia has described it: "[t]he VMI experience is predicated on the importance of creating doubt about previous beliefs and experiences in order to create a mindset conducive to the values VMI attempts to impart." United States v. Virginia, 766 F.Supp. 1407, 1421 (W.D.Va.1991). As part of its program of indoctrination, VMI subjects its entering cadets (known as "rats") to a series of hazing rituals. In their first year, rats are collectively rewarded when the behavior of a single rat contributes to VMI's objectives, and they are collectively punished when the behavior of a rat detracts from those objectives.

The adversative method continues throughout a cadet's four-year career at VMI, with submission and conformity remaining central tenets of VMI's educational philosophy. As the Supreme Court noted, "[t]he school's graduates leave VMI with heightened comprehension of their capacity to deal with duress and stress, and a large sense of accomplishment for completing the hazardous course." United States v. Virginia, 518 U.S. at 520, 116 S.Ct. 2264. Military regulations, etiquette, and drills pervade the VMI system. As the Court observed, "VMI cadets live in spartan barracks where surveillance is constant and privacy nonexistent; they wear uniforms, eat together in the mess hall, and regularly participate in drills." Id. at 522, 116 S.Ct. 2264. In some respects, VMI is more restrictive than the regular military: its rules and regulations control how cadets spend most hours of the day. For example, cadets are authorized to leave the Post--VMI's campus in Lexington--only during specific hours on specific days.


All members of VMI's Corps of Cadets (the student body) are required to pay a room and board fee. This fee covers all of a cadet's meals, which are served in the Post mess hall. 3 Although VMI serves

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supper to the Corps twice each evening in the mess hall, nearly all cadets attend the first seating; only those who participate in athletics or have other special circumstances can obtain authorization to attend the second seating.

The first seating begins with the "supper roll call" (the "SRC"), initiated by a bugle call summoning the Corps into formation in front of the Barracks. After an accountability report, the colors are struck, and the Corps marches in review past the TAC Officer (the VMI faculty member in charge) to the mess hall. First classmen (cadets in their final year) are authorized to fall out of the SRC formation before the Corps marches to the mess hall. Once the formation reaches the mess hall, other cadets, except for the rats, may fall out. The rats are required to march into the mess hall and eat supper during the first seating. 4

After the rats and other remaining cadets have entered the mess hall, the Corps is called to attention, and the Regimental Commander--the senior cadet officer--presents the Corps to the TAC Officer. Salutes are then exchanged, and the command "REST" is given. While standing at rest, a cadet may move to a limited extent, leaving his or her right foot in place. The daily announcements are made, and the Cadet Chaplain then reads the supper prayer to the assembled Corps. 5

The SRC ceremony is conducted every day except Saturday, and the Post Chaplain, Colonel James S. Park, has composed a separate supper prayer for each day. Depending on the day, the prayer begins with "Almighty God," "O God," "Father God," "Heavenly Father," or "Sovereign God." As the district court recognized, "[e]ach day's prayer is dedicated to giving thanks or asking for God's blessing." Opinion at 623. The court also observed that "a prayer may thank God for the Institute, ask for God's blessing on the Corps, or give thanks for the love and support of family and friends," and that "each day's prayer ends with the following invocation: 'Now O God, we receive this food and share this meal together with thanksgiving. Amen.' " Id. The Corps must remain standing and silent while the supper prayer is read, but cadets are not obliged to recite the prayer, close their eyes, or bow their heads.


On January 23, 2001, the Plaintiffs submitted a Permit Form to VMI's administration, requesting that cadets "be allowed

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to go about their business in the Mess Hall during the supper prayer (in a sense of not acknowledging that the prayer is occurring)." After their request was denied, the Plaintiffs wrote to General Bunting, asserting that the supper prayer was unconstitutional. The General promptly rejected this contention, advising them that "[t]he Constitution does not prohibit...

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