Am. Humanist Ass'n v. McCarty

• Decision Date: 20 March 2017
• Docket Number: No. 16-11220,No. 15-11067,15-11067,16-11220
• Citation: 851 F.3d 521
• Parties: AMERICAN HUMANIST ASSOCIATION ; Isaiah Smith, Plaintiffs–Appellees, v. Jack MCCARTY, in his individual and official capacity ; Joe D. Tolbert, in his individual and official capacity ; Brad Greene, in his individual and official capacity ; Richard Davis, in his individual and official capacity ; Ralph Kunkel, in his individual and official capacity ; Cary Hancock, in his individual and official capacity ; Dolores Webb, in her individual and official capacity, Defendants–Appellants. American Humanist Association ; Isaiah Smith, Plaintiffs–Appellants, v. Birdville Independent School District; Jack McCarty, in his individual and official capacity ; Joe D. Tolbert, in his individual and official capacity ; Brad Greene, in his individual and official capacity ; Richard Davis, in his individual and official capacity ; Ralph Kunkel, in his individual and official capacity ; Cary Hancock, in his individual and official capacity ; Dolores Webb, in her individual and official capacity, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

851 F.3d 521

AMERICAN HUMANIST ASSOCIATION ; Isaiah Smith, Plaintiffs–Appellees,

v.Jack MCCARTY, in his individual and official capacity ; Joe D. Tolbert, in his individual and official capacity ; Brad Greene, in his individual and official capacity ; Richard Davis, in his individual and official capacity ; Ralph Kunkel, in his individual and official capacity ; Cary Hancock, in his individual and official capacity ; Dolores Webb, in her individual and official capacity, Defendants–Appellants.

American Humanist Association ; Isaiah Smith, Plaintiffs–Appellants,

v.Birdville Independent School District; Jack McCarty, in his individual and official capacity ; Joe D. Tolbert, in his individual and official capacity ; Brad Greene, in his individual and official capacity ; Richard Davis, in his individual and official capacity ; Ralph Kunkel, in his individual and official capacity ; Cary Hancock, in his individual and official capacity ; Dolores Webb, in her individual and official capacity, Defendants–Appellees.

No. 15-11067

No. 16-11220

United States Court of Appeals, Fifth Circuit.

FILED March 20, 2017

Monica Lynn Miller, American Humanist Association, Washington, DC, Patrick Allen Luff, Luff Law Firm, P.L.L.C., San Antonio, TX, Roger L. Mandel, Lackey Hershman, L.L.P., Dallas, TX, for Plaintiffs–Appellees.

Donald Craig Wood, Attorney, Katie Elizabeth Payne, Walsh Gallegos Trevino Russo & Kyle, P.C., San Antonio, TX, for Defendants–Appellants.

Stacy Tuer Castillo, Attorney, Walsh Gallegos Trevino Russo & Kyle, P.C., San Antonio, TX, for Defendants–Appellants Ralph Kunkel, in his individual and official capacity, Cary Hancock, in his individual and official capacity, Dolores Webb, in his individual and official capacity.

Christopher Blewer Gilbert, Thompson & Horton, L.L.P., Houston, TX, for Texas Association of School Boards Legal Assistance Fund.

Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The American Humanist Association ("AHA") and Isaiah Smith appeal a summary judgment for defendants, the Birdville Independent School District and its seven board members (collectively, "BISD"). AHA and Smith allege that BISD's policy of inviting students to deliver statements, which can include invocations, before school-board meetings violates the First Amendment's Establishment Clause. Because the practice falls more nearly within the recently reaffirmed legislative-prayer exception to the Supreme Court's Establishment Clause jurisprudence, we affirm the summary judgment in favor of the school district and, in the accompanying consolidated appeal, we reverse and render on the denial of qualified immunity to the school board members.

I.

BISD is a public school district. Smith is a 2014 graduate of Birdville High School and a member of AHA, an organization that "advocate[es] progressive values and equality for humanists, atheists, and freethinkers."¹ While a student at Birdville High School and as an alumnus, Smith attended BISD board meetings, some of which included student-led prayers. At a board meeting in December 2014, with a student-led invocation, Smith said that he felt affronted by the prayer and that it meant that BISD was "favoring religion over nonreligion." Smith is and has been an adult at all relevant times.

BISD's board holds monthly meetings in the District Administration Building, which is not located within a school. The meetings include sessions open to the public. Attendees are free to enter and leave at any time. Most attendees are adults, though students frequently attend school-board meetings to receive awards or for other reasons, such as brief performances by school bands and choirs.

Since 1997, two students have opened each session—with one leading the Pledge of Allegiance and the Texas pledge and the other delivering some sort of statement, which can include an invocation. Those student presenters, typically either elementary- or middle-school students,² are given one minute. BISD officials do not direct them on what to say but tell them to make sure their statements are relevant to school-board meetings and not obscene or otherwise inappropriate. At a number of meetings, the student speakers have presented poems or read secular statements. But according to AHA and Smith, they are usually an invocation in the form of a prayer, with speakers frequently referencing "Jesus" or "Christ." AHA and Smith claim that sometimes the prayers are directed at the audience through the use of phrases such as "let us pray," "stand for the prayer," or "bow your heads."³

From 1997 through February 2015, the student-led presentations were called "invocations" and were delivered by students selected on merit.⁴ In March 2015, in an apparent response to AHA's concerns about the invocations,⁵ BISD began referring to them as "student expressions" and providing disclaimers that the students' statements do not reflect BISD's views.⁶ BISD began randomly selecting, from a list of volunteers, the students who would deliver the expressions.⁷

II.

AHA and Smith sued BISD under 42 U.S.C. § 1983 for monetary damages from the individual school-board members and declaratory and injunctive relief. In their amended complaint, AHA and Smith alleged that BISD has a "policy, practice, and custom of permitting, promoting, and endorsing prayers delivered by school-selected students" at board meetings, in violation of the Establishment Clause. BISD answered that the student-led invocations either qualify as private speech, satisfy the conventional Establishment Clause tests, or fit within the legislative-prayer exception to those tests.

BISD moved to dismiss, alleging that AHA and Smith had failed to state a claim and that the school-board members were entitled to qualified immunity. The district court denied the motion. The individual-capacity defendants filed an interlocutory appeal challenging the denial of qualified immunity.

BISD moved for summary judgment. The district court granted that motion, finding that the legislative-prayer exception applies. AHA and Smith filed a separate appeal, bringing an issue of first impression to this court.⁸

III.

The Supreme Court generally applies at least one⁹ of three tests under the Establishment Clause: the Lemon test,¹⁰ the endorsement test,¹¹ and the coercion test.¹² But in Marsh v. Chambers , 463 U.S. 783, 784–85, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), a member of the Nebraska Legislature sued state officials, claiming that the practice of opening each session with a chaplain's prayer violated the Establishment Clause. The Court upheld the practice without applying any of the conventional tests,¹³ observing that "[t]he opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country." Id. at 786, 103 S.Ct. 3330.

The Court revisited the issue in Town of Greece v. Galloway , ––– U.S. ––––, 134 S.Ct. 1811, 1827–28, 188 L.Ed.2d 835 (2014), stating unequivocally that the legislative-prayer exception in Chambers extends to prayers delivered at town-board meetings. Those prayers, however, must not "denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion." Id. at 1823. Moreover, "[t]he principal audience for these invocations is not ... the public but lawmakers themselves, who may find that a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing." Id. at 1825.

As distinguished from legislative-prayer cases, however, the Supreme Court, in school-prayer cases such as Santa Fe Independent School District v. Doe , 530 U.S. 290, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000), Lee v. Weisman , 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992), and County of Allegheny v. ACLU , 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989), has applied the conventional Establishment Clause tests. In Weisman , a graduation-prayer case, the Court, 505 U.S. at 592, 112 S.Ct. 2649, explained that "there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools" and that "prayer exercises in public schools carry a particular risk" of unconstitutional coercion. The Court distinguished Weisman from Chambers , noting that the legislative-prayer exception does not apply in "the public school context." Id. at 597, 112 S.Ct. 2649. In ACLU , the Court opined that "state-sponsored prayer in public schools" is "unconstitutional."¹⁴

The key question, then, is whether this case is essentially more a legislative-prayer case or a school-prayer matter. Like Galloway , this dispute is about the constitutionality of permitting religious invocations at the opening, ceremonial phase of a local deliberative body's public meetings. But like Santa Fe , this case is about school-district-sanctioned invocations delivered by students on district property.

We agree with the district court that "a school board is more like a legislature than a school classroom or event." The BISD board is a deliberative body, charged with overseeing the district's public schools, adopting budgets, collecting taxes, conducting elections, issuing bonds, and other tasks that are undeniably legislative. See TEX. EDUC. CODE § 11.1511. In no respect is it less a deliberative legislative body than was the town board in Galloway .

The invocations are appropriately "solemn and respectful in tone." Galloway , 134 S.Ct. at 1823. Most attendees at school-board meetings, including Smith, are "mature adults," and the invocations are "delivered during the ceremonial portion of the [school board's] meeting." Id. at 1827. "Nothing in the record suggests that members of the public are dissuaded from leaving the meeting room during the prayer, arriving late, or even ... making a later protest." Id. Occasionally, BISD board members and other school officials will ask the audience, including any students in the...