644 F.2d 759 (9th Cir. 1981), 79-3297, Collins v. Chandler Unified School Dist.

Docket Nº79-3297, 79-3319.
Citation644 F.2d 759
Party NameTheresa M. COLLINS, Plaintiff-Appellant, v. CHANDLER UNIFIED SCHOOL DISTRICT et al., Defendants-Appellees.
Case DateMay 04, 1981
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 759

644 F.2d 759 (9th Cir. 1981)

Theresa M. COLLINS, Plaintiff-Appellant,

v.

CHANDLER UNIFIED SCHOOL DISTRICT et al., Defendants-Appellees.

Nos. 79-3297, 79-3319.

United States Court of Appeals, Ninth Circuit

May 4, 1981

Submitted Jan. 15, 1981.

Page 760

John A. Buttrick, Brown & Bain, P. A., Phoenix, Ariz., for Collins.

Thomas G. Bakker, Burch, Cracchiolo, Levie, Buyer & Wehl, P. C., Phoenix, Ariz., for Chandler, etc.

Appeal from the United States District Court for the District of Arizona.

Before HUG, TANG and FARRIS, Circuit Judges.

TANG, Circuit Judge:

Theresa Collins, the parent of a student at Chandler High School, brought a section 1983 action to enjoin Chandler Unified School District (Chandler) from permitting voluntary prayer at school assemblies. The district court granted the injunction but denied Collins' request for attorneys' fees under section 1988 because her own civil rights were not violated. Collins v. Chandler Unified School District, 470 F.Supp. 959, 964 (D.Az.1979). Collins appeals the denial of fees and Chandler cross-appeals the grant of a permanent injunction. We affirm the district court's decision enjoining Chandler officials, but reverse and remand the attorneys' fees question.

I

Facts

The facts in this case are not in dispute. Chandler High School is a public school in Chandler, Arizona. Periodically during the year the Student Council plans and schedules student assemblies and the school administration adjusts the regular class schedule so that the assembly can be held within the school day. Student Council officers conduct the assemblies and students not wishing to attend may report to a supervised study hall.

During the 1977-78 and 1978-79 school years, the Chandler Student Council requested permission to open assemblies with prayer. The principal approved these requests with the knowledge and concurrence of the superintendent and the Board of Education. In planning an assembly, the Student Council allotted a certain amount of time on the agenda and selected one member of the student body to say the prayer. The selected student was free to choose the manner and words in which the prayer was delivered. On each assembly day, the Council gave the principal an agenda

Page 761

that noted whether the gathering would be opened with prayer.

In the spring of 1978, Collins, a mother of two students then enrolled at Chandler High School, sought a legal opinion about the constitutionality of this practice. Deciding such prayers violated the first amendment, Collins' attorneys attempted to convince school officials to withdraw permission and terminate the prayers. The officials indicated, however, that they intended to continue the practice unless otherwise advised by the county attorney's office or ordered by the court.

When the county attorney advised Chandler officials that prayers at student assemblies were permissible and further agreed to represent the Chandler School District, Collins filed suit in district court seeking an injunction, a declaratory judgment, and attorneys' fees and expenses. The district court granted summary judgment for Collins, finding that the conduct of the Chandler officials had violated the first and fourteenth amendments to the federal constitution; it issued an order permanently enjoining them from "permitting, authorizing, or condoning the saying of public prayers by the students" at student assemblies. 470 F.Supp. at 964. The district court denied Collins' request for attorneys' fees, however, and Collins appeals. Chandler cross-appeals.

II

Establishment Clause Violation

Chandler contends that granting students permission to open assemblies with prayer does not amount to a prohibited "sponsorship" of religious activity but is a reasonable accommodation of students' religious desires. In support Chandler relies on the four major Supreme Court cases on prayer or religious instruction in public schools for the proposition that the benevolent neutrality required of state officials by the Free Exercise and Establishment Clauses can be achieved by allowing voluntary, student initiated religious activity. See School District of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (daily Bible reading and class recitation of prayer violates first amendment notwithstanding that students could be excused); Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962) (daily denominationally neutral class recitation of prayer violates first amendment notwithstanding provision to excuse children); Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952) (releasing students to attend religious activities off school grounds constitutionally valid); McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948) (religious instruction conducted by clergy in classrooms during school hours violates first amendment notwithstanding ability to attend secular activities instead).

Collins correctly argues, however, that Chandler's permission for students to conduct prayers cannot be saved from constitutional attack merely because attendance at school assemblies is voluntary. As the Supreme Court stated in Engel, "(n)either the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of students is voluntary can serve to free it from the limitations of the Establishment Clause ...." 370 U.S. at 430, 82 S.Ct. at 1266. The court reiterated this principle in Schempp by citing Engel and stating that the religious exercises in question were not "mitigated by the fact that individual students may absent themselves upon parental request, for that fact furnishes no defense to a claim of unconstitutionality under the Establishment Clause." 374 U.S. at 224-25, 83 S.Ct. at 1572-73.

Moreover, these cases support no meaningful distinction between school authorities actually organizing the religious activity and officials merely "permitting" students to direct the exercises. In Goodwin v. Cross County School District No. 7, 394 F.Supp. 417 (E.D.Ark.1973), the court directly addressed this question. There, as in the present case, a high school principal, with the concurrence of the superintendent, granted permission for the Student Council

Page 762

to recite prayers and Bible verses of their choosing during school hours. In holding the practice a constitutional violation, the court rejected "the contention that the establishment clause, as it interlocks with the free exercise clause, does not require the administration to deny the use of school facilities to the students who shall voluntarily and upon their own initiative, perform such religious exercises each day." 394 F.Supp. at 424. The court was "not persuaded that the responsibility of the School Board may be treated so lightly as the School Board insists, which amounts to a 'Hands-Off' attitude." Id.

Similarly, in Brandon v. Board of Education of Guilderland Central School District, 635 F.2d 971 (2d Cir. 1980), the Second Circuit recently upheld a school board's refusal to allow students to hold voluntary communal prayer meetings in a classroom immediately prior to commencement of the school day. In finding that a grant of such permission would have violated the Establishment Clause, the court applied the three part test enunciated in Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). That test...

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49 practice notes
  • 753 F.2d 1528 (9th Cir. 1985), 83-3690, Grove v. Mead School Dist. No. 354
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • 22 Febrero 1985
    ...As a parent, Grove has a direct, personal right to direct Cassie's religious training. Collins v. Chandler Unified School District, 644 F.2d 759, 764 n. 1 (9th Cir.), cert. denied, 454 U.S. 863, 102 S.Ct. 322, 70 L.Ed.2d 163 The Riddles present no claim of violation of a personal right of r......
  • 780 F.2d 794 (9th Cir. 1986), 84-6594, Ragsdale v. Haller
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • 13 Enero 1986
    ...55 S.Ct. at 153-54; Pedrazzini, 644 F.2d at 758. These requirements eliminate constructive, resulting or implied trusts. Pedrazzini, 644 F.2d at 759. Although the concept of fiduciary is to be narrowly defined as a matter of federal law, state law is to be consulted to determine when a trus......
  • 865 F.2d 1121 (9th Cir. 1989), 88-3552, Garnett By and Through Smith v. Renton School Dist. No. 403
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • 17 Enero 1989
    ...of religious activity, church and state become excessively entangled. Brandon, 635 F.2d at 979; Collins v. Chandler Unified School Dist., 644 F.2d 759, 762 (9th Cir.), cert. denied, 454 U.S. 863, 102 S.Ct. 322, 70 L.Ed.2d 163 (1981). Both Brandon and Collins held that faculty supervision of......
  • 874 F.2d 608 (9th Cir. 1989), 88-3552, Garnett By and Through Smith v. Renton School Dist. No. 403
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • 17 Enero 1989
    ...of religious activity, church and state become excessively entangled. Brandon, 635 F.2d at 979; Collins v. Chandler Unified School Dist., 644 F.2d 759, 762 (9th Cir.), cert. denied, 454 U.S. 863, 102 S.Ct. 322, 70 L.Ed.2d 163 (1981). Both Brandon and Collins held that faculty supervision of......
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48 cases
  • 753 F.2d 1528 (9th Cir. 1985), 83-3690, Grove v. Mead School Dist. No. 354
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • 22 Febrero 1985
    ...As a parent, Grove has a direct, personal right to direct Cassie's religious training. Collins v. Chandler Unified School District, 644 F.2d 759, 764 n. 1 (9th Cir.), cert. denied, 454 U.S. 863, 102 S.Ct. 322, 70 L.Ed.2d 163 The Riddles present no claim of violation of a personal right of r......
  • 780 F.2d 794 (9th Cir. 1986), 84-6594, Ragsdale v. Haller
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • 13 Enero 1986
    ...55 S.Ct. at 153-54; Pedrazzini, 644 F.2d at 758. These requirements eliminate constructive, resulting or implied trusts. Pedrazzini, 644 F.2d at 759. Although the concept of fiduciary is to be narrowly defined as a matter of federal law, state law is to be consulted to determine when a trus......
  • 865 F.2d 1121 (9th Cir. 1989), 88-3552, Garnett By and Through Smith v. Renton School Dist. No. 403
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • 17 Enero 1989
    ...of religious activity, church and state become excessively entangled. Brandon, 635 F.2d at 979; Collins v. Chandler Unified School Dist., 644 F.2d 759, 762 (9th Cir.), cert. denied, 454 U.S. 863, 102 S.Ct. 322, 70 L.Ed.2d 163 (1981). Both Brandon and Collins held that faculty supervision of......
  • 874 F.2d 608 (9th Cir. 1989), 88-3552, Garnett By and Through Smith v. Renton School Dist. No. 403
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • 17 Enero 1989
    ...of religious activity, church and state become excessively entangled. Brandon, 635 F.2d at 979; Collins v. Chandler Unified School Dist., 644 F.2d 759, 762 (9th Cir.), cert. denied, 454 U.S. 863, 102 S.Ct. 322, 70 L.Ed.2d 163 (1981). Both Brandon and Collins held that faculty supervision of......
  • Request a trial to view additional results