Ingebretsen on Behalf of Ingebretsen v. Jackson Public School Dist.

• Decision Date: 10 January 1996
• Docket Number: No. 94-60631,94-60631
• Citation: 88 F.3d 274
• Parties: , 110 Ed. Law Rep. 942 David INGEBRETSEN, on Behalf of himself and his daughter, Anna INGEBRETSEN, et al., Plaintiffs-Appellees, Appellants-Cross Appellants, v. JACKSON PUBLIC SCHOOL DISTRICT and The Board of Trustees Of The Jackson Municipal Separate School District, Defendants-Appellees, and Mike Moore, In his official capacity as the Attorney General of the State of Mississippi, Defendant-Appellant, Cross Appellee, Amelia Freeman, Jessica Massey and Stacy Smith, Movants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 274

88 F.3d 274

64 USLW 2443, 110 Ed. Law Rep. 942

David INGEBRETSEN, on Behalf of himself and his daughter Anna INGEBRETSEN, et al., Plaintiffs-Appellees Appellants-Cross Appellants, v. JACKSON PUBLIC SCHOOL DISTRICT and The Board of Trustees Of The Jackson Municipal Separate School District Defendants-Appellees and Mike Moore, In his official capacity as the Attorney General of the State of Mississippi, Defendant-Appellant, Cross Appellee, Amelia Freeman, Jessica Massey and Stacy Smith, Movants-Appellants.

No. 94-60631.

United States Court of Appeals, Fifth Circuit.

Jan. 10, 1996.

Opinion Denying Rehearing and

Rehearing En Banc May 31, 1996.

Opinion Dissenting from Denial of

Rehearing En Banc Filed by

Circuit Judge Jones July 2, 1996.

T. Hunt Cole, Jr., Asst. Atty. Gen., Mike Moore, Atty. Gen., Jackson, MS, for Moore.

Natham W. Kellum, Brian Fahling, Amer. Family Assoc., Tupelo, MS, for Freeman, Massey and Smith.

Robert B. McDuff, Jackson, MS, John G. Jones, Jackson, MS, Elliot M. Mincberg, Judith E. Schaeffer, Washington, DC, for Ingebretsen, et al.

J. Perry Sansing, James A. Keith, Brunini, Grantham, Grower & Hewes, Jackson, MS, for JPSD, et al.

Jessica Smith, David B. Isbell, Covington & Burling, Washington, DC, amicus curiae in support of Ingebretsen, et al., for National Pearl.

Marc D. Stern, American Jewish Congress, New York City, amicus curiae in support of Ingebretsen, et al., for American Jewish Congress, et al.

Appeals from the United States District Court for the Southern District of Mississippi.

Before DAVIS and PARKER, Circuit Judges and BUNTON, ¹ District Judge.

W. EUGENE DAVIS, Circuit Judge:

The State of Mississippi appeals the district court's decision to enjoin enforcement of a Mississippi statute allowing prayer at compulsory and noncompulsory school events. Ingebretsen cross-appeals to protest the exemption of graduation prayers from the injunction and the American Family Association Law Center ("AFALC") appeals the district court's denial of its motion to intervene. We affirm.

I.

On a wave of public sentiment and indignation over the treatment of a Principal, Dr. Bishop Knox, who allowed students to begin each school day with a prayer over the intercom, the Mississippi legislature passed the School Prayer Statute at issue here. 1994 Miss.Laws ch. 609 (Appendix A). The language at the center of this controversy is § 1(2) of the statute which reads:

[o]n public school property, other public property or other property, invocations, benedictions or nonsectarian, nonproselytizing student-initiated voluntary prayer shall be permitted during compulsory or noncompulsory school-related student assemblies, student sporting events, graduation or commencement ceremonies and other school-related student events.

1994 Miss.Laws ch. 609, § 1(2).

The statute includes a lengthy preamble stating that it shall not be construed to violate the constitution and that its purpose is to accommodate religion and the right to free speech. The School Prayer Statute also contains a severability clause which permits any provision of the statute found to be invalid or unconstitutional to be severed without affecting the remainder of the statute. See Id. § 1(4), (5).

A group of parents, students, and taxpayers in the Jackson Public School District, including Ingebretsen, filed suit along with the American Civil Liberties Union of Mississippi in July of 1994 to enjoin enforcement of the School Prayer Statute on the ground that it violates the establishment clause. A motion for a preliminary injunction to preserve the status quo was filed simultaneously with the complaint.

On August 4, 1994, the district court held a hearing on Ingebretsen's motion to enjoin the defendants from implementing in any manner the School Prayer Statute. At that time, the district court also heard the motion of AFALC to intervene on behalf of certain students enrolled in Mississippi public schools. The district court decided to hold the motion for intervention in abeyance, but permitted AFALC to present argument at the hearing as amicus curiae. AFALC was instructed to re-urge its motion after the court ruled on the motion for preliminary injunction.

On August 11, 1994, one day before the start of the 1994-1995 academic year for the Mississippi public schools, the district court issued a preliminary injunction prohibiting enforcement of the School Prayer Statute. The injunction was designed to maintain the status quo until the court had full opportunity to assess each portion of the statute separately. On August 16, 1994, the court held a supplemental hearing to determine what portion of the statute, if any, could escape the injunction by its severability clause. The court heard the testimony of Dr. Dan Merritt, Interim Superintendent of the District, and Dr. Emanuel Reeves, principal of Provine High School in Jackson, Mississippi and concluded that the provision for prayers at high school commencement exercises was the only constitutionally acceptable portion of the statute.

The district court enjoined enforcement of the statute in its entirety with the exception of the portion which permits prayers to take place at graduation ceremonies in accordance with Jones v. Clear Creek Indep. School Dist., 977 F.2d 963, 972 (5th Cir.1992) (Jones II ).

II.

Mississippi argues first that Ingebretsen does not have standing to challenge the School Prayer Statute because the statute has not yet been implemented. However, the district court found that Ingebretsen had alleged real and substantial injury which would result from the implementation of the School Prayer Statute. We agree. There is no need for Ingebretsen to wait for actual implementation of the statute and actual violations of his rights under the First Amendment where the statute "makes inappropriate government involvement in religious affairs inevitable." Karen B. v. Treen, 653 F.2d 897, 902 (5th Cir.1981). The district court relied on the testimony of Dr. Merritt and Dr. Reeves and the enormous interest in school prayer following the suspension of Dr. Knox to conclude that implementation of the statute would inevitably lead to improper state involvement in school prayer. Under the terms of the statute, the state or its representatives will inevitably be forced to decide who prays and which prayers qualify as nonsectarian and nonproselytizing. The state will also be in the position of punishing students who attempt to leave so as to avoid hearing the prayers. This is clearly the sort of state involvement contemplated by Karen B.

III.

Mississippi argues next that the district court erred in issuing the preliminary injunction. To obtain a preliminary injunction, Ingebretsen was required to show: 1) a substantial likelihood of success on the merits; 2) a substantial threat that he will suffer irreparable injury if the injunction is not issued; 3) that the threatened injury to him outweighs any damage the injunction might cause to the state and its citizens; and 4) that the injunction will not disserve the public interest. Doe v. Duncanville Independent School Dist. (Doe I ), 994 F.2d 160, 163 (5th Cir.1993) (citations omitted). The district court made findings under all of these factors and concluded that the injunction was appropriate. This court will reverse the district court only upon a showing of abuse of discretion. Id.

A. Substantial likelihood of success

The Fifth Circuit has identified three tests that the Supreme Court has used to determine whether a government action or policy constitutes an establishment of religion. See Jones II, 977 F.2d 963. First, the Establishment Clause test of longest lineage: the Lemon test. Lemon v. Kurtzman, 403 U.S. 602, 612-613, 91 S.Ct. 2105, 2111, 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. Second, the Court has 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). Third, the Court has disapproved of governmental practices that appear to endorse religion. County of Allegheny v. ACLU, 492 U.S. 573, 594, 109 S.Ct. 3086, 3101, 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). The district court did not make an exhaustive analysis under each of the tests because it found that the statute was defective under any of the tests. We agree.

The School Prayer Statute fails all three prongs of the Lemon test because its purpose is to advance prayer in public schools, its effect is to advance religion in the schools and it excessively entangles the government with religion. The legislature declared that its purpose in enacting the School Prayer Statute was "to accommodate the free exercise of religious rights of its student citizens in the public schools." 1994 Miss.Laws ch. 609 § 1(1). This statement of purpose cannot be characterized as "secular" because its clear intent is to inform students, teachers and school administrators that they can pray at any school event so long as a student "initiates" the prayer (ostensibly by suggesting that a prayer be given). Further, when we view this statute along with this same legislature's resolution commending Dr. Knox for his "unswerving dedication to prayer in public schools," and in the context of the uproar over Dr. Knox's treatment after allowing prayer in his school, the conclusion that the School Prayer Statute was intended to advance religion becomes unavoidable. Returning prayer to public schools is not a secular purpose.

The statute's effect is to advance religion over irreligion because it gives a preferential, exceptional...