653 F.3d 256 (3rd Cir. 2011), 10-1819, Doe v. Indian River School Dist.

Docket Nº:10-1819.
Citation:653 F.3d 256
Opinion Judge:FUENTES, Circuit Judge.
Party Name:Jane DOE; John Doe, individually and as parents and next friend of, Jordan Doe and Jamie Doe v. INDIAN RIVER SCHOOL DISTRICT; Indian River School Board; Harvey L. Walls; Mark A. Isaacs; John M. Evans; Richard H. Cohee; Gregory A. Hastings; Nina Lou Bunting; Charles M. Bireley; Donald G. Hattier; Reginald L. Helms; M. Elaine McCabe, and their succes
Attorney:Thomas J. Allingham II, Esq. (Argued), Robert S. Saunders, Esq., Timothy S. Kearns, Esq., Skadden, Arps, Slate, Meagher & Flom, Wilmington, DE, Brian G. Lenhard, Esq., Lightning Bolt Softward, Inc., Upper Darby, PA, Richard S. Horvath, Jr., Esq., San Francisco, CA, for Appellants. Jason P. Gossel...
Judge Panel:Before: FUENTES, CHAGARES, and ROTH, Circuit Judges.
Case Date:August 05, 2011
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
FREE EXCERPT

Page 256

653 F.3d 256 (3rd Cir. 2011)

Jane DOE; John Doe, individually and as parents and next friend of, Jordan Doe and Jamie Doe

v.

INDIAN RIVER SCHOOL DISTRICT; Indian River School Board; Harvey L. Walls; Mark A. Isaacs; John M. Evans; Richard H. Cohee; Gregory A. Hastings; Nina Lou Bunting; Charles M. Bireley; Donald G. Hattier; Reginald L. Helms; M. Elaine McCabe, and their successors in office, in their official capacities as members of the Indian River School Board; Lois M. Hobbs, and her successors in office, in their official capacities as District Superintendent,; Earl J. Savage, and his successors in office, in their official capacities as Assistant District Superintendent, Jane Doe, John Doe and Jamie Doe, Appellants.

No. 10-1819.

United States Court of Appeals, Third Circuit.

August 5, 2011

Argued Jan. 27, 2011.

Page 257

[Copyrighted Material Omitted]

Page 258

[Copyrighted Material Omitted]

Page 259

Thomas J. Allingham II, Esq. (Argued), Robert S. Saunders, Esq., Timothy S. Kearns, Esq., Skadden, Arps, Slate, Meagher & Flom, Wilmington, DE, Brian G. Lenhard, Esq., Lightning Bolt Softward, Inc., Upper Darby, PA, Richard S. Horvath, Jr., Esq., San Francisco, CA, for Appellants.

Jason P. Gosselin, Esq. (Argued), Katherine L. Villanueva, Esq., Michael Metz-Topodas, Esq., Drinker Biddle & Reath LLP, Philadelphia, PA, for Appellees.

Ayesha N. Khan, Esq., Michael A. Blank, Esq., Americans United for Separation of Church and State, Daniel Mach, Esq., American Civil Liberties Union, Washington, DC, Eric J. Rothschild, Esq., Kristen H. Jones, Esq., Shelly A. Solomon, Esq., Michael J. Hartman, Esq., Pepper Hamilton LLP, Philadelphia, PA, Steven M. Freeman, Esq., Steven C. Sheinberg, Esq., Deborah Bensinger, Esq., Anti-Defamation League, New York, NY, Amicus for Appellants.

Roy S. Moore, Esq., Benjamin D. DuPre, Esq., John A. Eidsmoe, Esq., Foundation for Moral Law, Montgomery, AL, Steven W. Fitschen, Esq., Wallbuilders, Inc., the National Legal Foundation, Virginia Beach, VA, Holly L. Carmichael, Esq., Los Gatos, CA, Amicus for Appellees.

Before: FUENTES, CHAGARES, and ROTH, Circuit Judges.

OPINION

FUENTES, Circuit Judge.

The Indian River School Board (the " Board" ) has a long-standing policy of praying at its regularly-scheduled meetings, which are routinely attended by students from the local school district. Appellants argue that the Board's policy is unconstitutional under the Establishment Clause of the First Amendment. The Board claims that a school board is like a legislative body and that its practice of opening board sessions with a prayer is akin to the practice that was upheld in Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983). In Marsh, the Supreme Court held that Nebraska's practice of opening legislative sessions with a prayer was not a violation of the First Amendment's Establishment Clause. The issue in this case is whether a school board may claim the exception established for legislative bodies in Marsh, or whether the traditional Establishment Clause principles governing prayer in public schools apply. The District Court agreed with the Board's conclusion that its actions were constitutional under Marsh. For the reasons that follow, we will reverse.

I.

A. Procedural History

The complaint in this case was originally brought by two sets of plaintiffs who lived

Page 260

and sent their children to school in the Indian River School District (the " District" ), located in southern Delaware. The first set of plaintiffs, Mona and Marco Dobrich, brought suit individually and on behalf of their son, a twelve-year old. Dobrich v. Walls, 380 F.Supp.2d 366, 370 (D.Del.2005). The Dobriches were residents of the District. Their son had completed grades one through five in the district school. The second set of plaintiffs were Jane and John Doe, who also brought suit individually and as parents of Jordan and Jamie Doe. Id. At the time the Complaint was filed, Jamie Doe was a student at a District elementary school. Jordan Doe, who had previously attended middle school in the District but transferred to another school, planned on returning to a District high school. Id. at 371, 373.

Plaintiffs brought suit pursuant to 42 U.S.C. § 1983 against multiple defendants, including the Indian River School Board and the Indian River School District.1 The Dobriches and the Does alleged violations of the First and Fourteenth Amendments of the Constitution stemming from various Board and District actions, including the Board's practice of opening its meetings with a prayer. Plaintiffs noted that students regularly attended these meetings and argued that the Board's prayer policy was therefore unconstitutional under the Establishment Clause. In addition, the Complaint challenged other allegedly unconstitutional practices:

Plaintiffs allege that school sponsored prayer has pervaded the lives of teachers and students in the District schools. Plaintiffs allege that prayers have been recited at graduation ceremonies, athletic events, potluck dinners, ice cream socials, awards ceremonies, and other events. Plaintiffs also allege that District employees have led three different Bible Clubs, one for sixth grade students, one for seventh grade students and one for eighth grade students, and that students involved in these clubs have received " special privileges" like donuts and being able to head the lines to lunch. Plaintiffs further allege that at least one elementary school in the District distributed Bibles during the 2003 school year, and that religion has become part of the District's curriculum in that several teachers have referred to religion during their classes.

Id. at 371. Plaintiffs sought various forms of relief, including compensatory and nominal damages, a declaratory judgment stating " that the customs, practices, and policies of the District with regard to prayer at School Board meetings and school functions are unconstitutional, both facially and as applied" and injunctive relief " banning Defendants from promoting, conducting, or permitting religious exercises or prayer at school functions, including but not limited to graduation ceremonies, athletic activities, holiday festivals, awards presentations and School Board meetings" and " requiring the District to distribute its school prayer policies publicly and to establish procedures for reviewing violations of the policy." Doe v. Indian River Sch. Dist., 685 F.Supp.2d 524, 526 (D.Del.2010).

In January 2008, the parties reached a partial settlement.2 With the exception of

Page 261

those relating to the Board's practice of beginning every School Board meeting with a prayer, the parties settled all of their claims. The settlement was approved. In March of 2008, the Dobriches moved out of the District and voluntarily dismissed the remainder of their claims, leaving only Jane and John Doe, individually and as the parents of Jordan and Jamie Doe, as plaintiffs in the case. In April 2008, the Does and defendants submitted cross-motions for summary judgment on the issue of whether the Prayer Policy was constitutional. The District Court granted summary judgment in favor of defendants. It is this order that we now review.

B. The Prayer Policy

The heart of this case is, obviously, the prayer policy and practice of the Indian River School Board. The Indian River School District was created in 1969. Prayers have been recited at the meetings since that time. Although the Board prays at every public meeting, it does not pray at its closed-door or executive sessions. For thirty-five years, no written policy governed the Board's prayer practice. Then, in 2004, the Board decided to formalize this practice.

The Board's decision to write an official prayer policy was the result of a heated community debate about the propriety of prayer at local high school graduations and at School Board meetings. See Indian River, 685 F.Supp.2d at 528-29. In June 2004, Mona Dobrich complained to the Board about the recitation of prayer at her daughter's high school graduation. Dobrich's complaint and the reaction it generated caused the Board to become concerned that it might be the subject of a lawsuit. Id. This led the Board to " solicit[ ] legal advice regarding the constitutionality of [its] practice of opening ... regular meetings with a moment of prayer." Id. at 529. The Policy was drafted and presented to the Board's Policy Committee. In October 2004, the Board adopted the Policy by vote.

The resulting " Board Prayer at Regular Board Meetings Policy" (" the Policy" ), reads as follows:

1. In order to solemnify its proceedings, the Board of Education may choose to open its meetings with a prayer or a moment of silence, all in accord with the freedom of conscience of the individual adult Board member.

2. On a rotating basis one individual adult Board member per meeting will be given the opportunity to offer a prayer or request a moment of silence. If the member chooses not to exercise this opportunity, the next member in rotation shall have the opportunity.

3. Such opportunity shall not be used or exploited to proselytize, advance or convert anyone, or to derogate or otherwise disparage any particular faith or belief.

4. Such prayer is voluntary, and it is among only the adult members of the Board. No school employee, student in attendance, or member of the community shall be required to

Page 262

participate in any such prayer or moment of silence.

5. Any such prayers may be sectarian or non-sectarian, denominational or non-denominational, in the name of a Supreme Being, Jehovah, Jesus Christ, Buddha, Allah, or any other person or entity, all in accord with the freedom of conscience, speech and religion...

To continue reading

FREE SIGN UP