70 F.3d 402 (5th Cir. 1995), 94-10416, Doe v. Duncanville Independent School Dist.

Docket Nº:94-10416.
Citation:70 F.3d 402
Party Name:John DOE, Individually and as next friend of Jane Doe, a Minor, et al., Plaintiffs-Appellees, v. DUNCANVILLE INDEPENDENT SCHOOL DISTRICT, et al., Defendants-Appellants.
Case Date:December 12, 1995
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 402

70 F.3d 402 (5th Cir. 1995)

John DOE, Individually and as next friend of Jane Doe, a

Minor, et al., Plaintiffs-Appellees,




No. 94-10416.

United States Court of Appeals, Fifth Circuit

December 12, 1995

Page 403

Roger Dean Hepworth and Doanh T. Nguyen, Henslee, Ryan & Groce, Austin, TX, for Appellants.

T. Wesley Holmes, Dallas, TX, for Amici, Prichard, et al.

Elliot Shavin and Chad Baruch, Dallas, TX, for amicus American Jewish Congress.

Michael F. Linz and Frank D. Chandler, Dallas, TX, for Appellees.

Page 404

Dia W. Epstein, Craig F. Simon, Figari & Davenport, Alan S. Loewinsohn, Dallas, TX, and Stephen K. Green, Washington, D.C., for Amici, Anti-Defamation League and Americans United for Separation of Church and State.

Appeal from the United States District Court for the Northern District of Texas.

Before DAVIS and JONES, Circuit Judges, and MAHON 1, District Judge.

W. EUGENE DAVIS, Circuit Judge:

Defendants (collectively, the Duncanville Independent School District or DISD) appeal the district court's permanent injunction forbidding certain religious practices in curricular and extracurricular activities at their schools as violations of the Establishment Clause of the First Amendment of the United States Constitution. We affirm in part and reverse in part.


Plaintiffs in this case are Jane Doe, a student in the Duncanville Independent School District, and John Doe, her father. Jane Doe first enrolled in the DISD in 1988, when she entered the seventh grade at the age of twelve. Doe qualified to play on the girls' basketball team and was placed in an athletic class specially designated for team members. This class was held during the last class period of the day and extended into after school practice. Students received academic credit for this class and for their participation in the sport. During her first class, Doe learned that the girls' basketball coach, Coach Smith, included the Lord's Prayer in each basketball practice. The basketball team also said prayers in the locker rooms before games began, after games in the center of the basketball court in front of spectators, and on the school bus travelling to and from basketball games. Coach Smith initiated or participated in these prayers. These prayers had been a tradition for almost twenty years.

When she first became a team member, Doe participated in these prayers because she did not wish to single herself out. After Doe's father attended a game and saw his daughter joining in the center court prayer, he asked her how she felt about participating. When told that she preferred not to participate, John Doe told his daughter that she did not have to take part in the prayers. Thereafter, Jane Doe no longer participated. At games away from home and at least one home game, Doe was required to stand by while the team prayed. Her non-participation drew attention from her fellow students, who asked her "Aren't you a Christian?" and from one spectator, who called out "Well, why isn't she praying? Isn't she a Christian?" At one point during her history class, Doe's history teacher referred to her as a "little atheist."

John Doe complained about the prayers to the assistant superintendent of schools, Ed Parker, and his successor, Marvin Utecht. Utecht halted the prayers at pep rallies, although he insisted there was nothing he could do about the post-game prayers.

Jane Doe also joined the choir program at DISD. Students in this program also receive academic credit for their participation. In the seventh and eighth grade choruses, Doe was required to sing the choir theme song Go Ye Now in Peace, which is based on Christian text. Upon progressing to the high school choirs, Doe was required to sing another Christian theme song, The Lord Bless You and Keep You. David McCullar, the director for the ninth through twelfth grade choirs, testified that The Lord Bless You and Keep You had been the choirs' theme song for at least 20 years; he did not know how it had originally been chosen. The choirs learn this song as part of their overall repertoire, sing it at the end of class on Fridays, at the end of some performances and during choral competitions. They also sing this song on the bus on the way home from performances. The parties stipulated that the choir's theme song is a "Christian religious song."

DISD also engaged in a number of other religious practices or customs, such as holding prayers and distributing pamphlets containing religious songs at awards ceremonies, allowing student-initiated prayers before

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football games 2, allowing Gideon Bibles to be distributed to fifth grade classes, and until 1990, including prayers during school pep rallies.

On August 15, 1991, the Does filed an application for a temporary restraining order and preliminary injunction. Following a two-day trial, the district court entered a preliminary injunction forbidding DISD from permitting its employees to lead, encourage, promote or participate in prayer with or among students during curricular or extra-curricular activities, including sporting events. DISD appealed the preliminary injunction, which was affirmed by this Court in Doe v. Duncanville Independent School District, 994 F.2d 160 (5th Cir.1993) (Doe I ).

At the permanent injunction hearing, the parties stipulated that since May 1991, DISD stopped all prayers during class-time. 3 Students are still allowed to initiate prayers during athletic events, but the coaches no longer do so. After the hearing, the district court found that DISD violated the Establishment Clause by (1) permitting its employees to lead, encourage, promote or participate in prayers with students during curricular or extracurricular events; (2) permitting its employees to initiate, lead, authorize, encourage or condone the recitation or singing of religious songs as the theme songs of the schools' choirs; and (3) authorizing, permitting or condoning the distribution at Duncanville schools of Gideon Bibles to fifth grade students by representatives of the Gideon Society, except to the extent permitted by the Equal Access Act. Based on these conclusions, the court enjoined DISD from continuing these practices. We discuss each of Appellants' arguments below.


As we noted in Doe I, modern Establishment Clause jurisprudence is rife with confusion. 994 F.2d at 166 n. 7. This Court attempted to bring some order to the organization and application of the existing precedents in Jones v. Clear Creek Indep. School District, 977 F.2d 963 (5th Cir.1992) (Jones II ), by identifying three tests that the Supreme Court has used to determine whether a government action or policy constitutes an establishment of religion. First, we identified the Establishment Clause test of longest lineage: the Lemon test. Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111-12, 29 L.Ed.2d 745 (1971). Under Lemon, a government practice is constitutional if (1) it has a secular purpose, (2) its primary effect neither advances nor inhibits religion, and (3) it does not excessively entangle government with religion. Id. We then recognized that the Court has also analyzed school-sponsored religious activity in terms of the coercive effect that the activity has on students. Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992). Lastly, we found that the Court has disapproved of governmental practices that appear to endorse religion. See e.g., County of Allegheny v. ACLU, 492 U.S. 573, 594, 109 S.Ct. 3086, 3101-02, 106 L.Ed.2d 472 (1989). See also Capitol Square Review Board v. Pinette, --- U.S. ----, ---- - ----, 115 S.Ct. 2440, 2452-2456, 132 L.Ed.2d 650 (1995) (O'Connor, J., concurring). We will adhere to this approach today.

  1. Prayer at Curricular and Extra-Curricular Activities

    The district court enjoined DISD, its employees and its agents from:

    1. leading, encouraging, promoting, or participating in prayers with or among students during curricular or extracurricular activities, including before, during, or after school-related sporting events. Students, however, are not enjoined from praying, either individually or in groups. Students may voluntarily pray together, provided

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    such prayer is not done with school participation or supervision.

    DISD argues that the district court erred by forbidding DISD employees from participating in or supervising student-initiated prayers. We will address each asserted error separately.

    1. Participation

    DISD contends that it cannot prevent its employees from participating in student prayers without violating their employees' rights to the free exercise of religion, to association, and to free speech and academic freedom. We do not agree. As we noted in Doe I, " 'the principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause.' " 994 F.2d at 165 (quoting Lee, 505 U.S. at 586-87, 112 S.Ct. at 2655). See also Berger v. Rensselaer Central School Corp., 982 F.2d 1160, 1168 (7th Cir.1993) (free expression rights must bow to the Establishment Clause prohibition on school-endorsed religious activities). This is particularly true in the instant context of basketball practices and games. The challenged prayers take place during school-controlled, curriculum-related activities that members of the basketball team are required to attend. During these activities DISD coaches and other school employees are present as representatives of the school and their actions are representative of DISD policies. See Bishop v. Aronov, 926 F.2d 1066, 1073 (11th Cir.1991) ("a teacher's [religious] speech can be...

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