977 F.2d 963 (5th Cir. 1992), 89-2638, Jones v. Clear Creek Independent School Dist.

Docket Nº:89-2638.
Citation:977 F.2d 963
Party Name:Merritt E. JONES, on his behalf and as next friend of Pamela Jones, a child, et al., Plaintiffs-Appellants, v. CLEAR CREEK INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee.
Case Date:November 24, 1992
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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977 F.2d 963 (5th Cir. 1992)

Merritt E. JONES, on his behalf and as next friend of Pamela

Jones, a child, et al., Plaintiffs-Appellants,



No. 89-2638.

United States Court of Appeals, Fifth Circuit

November 24, 1992

Rehearing and Rehearing En Banc

Denied Dec. 28, 1992.

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Bruce V. Griffiths, MacNaughton, Burdzinski, Toureno & Yow, Bellaire, Tex., Joseph A. Saranello, Mitchell A. Seider, Houston, Tex., for plaintiffs-appellants.

David M. Feldman, Vinson & Elkins, James D. Robinson, M. Karinne McCullough, Giessel, Stone, Barker & Lymay, Houston, Tex., for defendant-appellee.

David M. Feldman, Myra C. Schexnayder, Vinson & Elkins, Kelly Frels, John David Thompson, Janet L. Horton, Bracewell & Patterson, Houston, Tex., for amicus.

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


Before REAVLEY, GARWOOD and BARKSDALE, Circuit Judges.

REAVLEY, Circuit Judge:

In Jones v. Clear Creek Independent School Dist., 930 F.2d 416 (5th Cir.1991) (Jones I ), vacated, 505 U.S. ----, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992), we held that Clear Creek Independent School District's Resolution 1 permitting public high school seniors to choose student volunteers to deliver nonsectarian, nonproselytizing invocations at their graduation ceremonies does

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not violate the Constitution's Establishment Clause. In applying the tripartite test of Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971), we reasoned that the Resolution has a secular purpose of solemnization, that the Resolution's primary effect is to impress upon graduation attendees the profound social significance of the occasion rather than advance or endorse religion, and that Clear Creek does not excessively entangle itself with religion by proscribing sectarianism and proselytization without prescribing any form of invocation. Jones I, 930 F.2d at 419-23.

Then, in Lee v. Weisman, 505 U.S. ----, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992), the Supreme Court held that Robert E. Lee, a public-school principal acting in accord with the policy of his Providence, Rhode Island school district, violated the Establishment Clause by inviting a local clergy member, Rabbi Leslie Gutterman, to deliver a nonsectarian, nonproselytizing invocation at his school's graduation ceremony. The Court reasoned that Lee's actions represent governmental coercion to participate in religious activities, a paradigmatic establishment of religion. The Court then granted certiorari in this case, vacated our judgment, and remanded it to us for further consideration in light of Lee. Jones v. Clear Creek Indep. Sch. Dist., 505 U.S. ----, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992). Upon reconsideration, we hold that Lee does not render Clear Creek's invocation policy unconstitutional, and again affirm the district court's summary judgment in Clear Creek's favor.



Of the six forms of argument recognized in constitutional interpretation, 2 it is the doctrinal arguments that control Establishment Clause cases. 3 Although the Supreme Court's doctrinally-centered manner of resolving Establishment Clause disputes may be credited with accommodating a society of remarkable religious diversity, it requires considerable micromanagement of government's relationship to religion as the Court decides each case by distilling fact-sensitive rules from its precedents.

For example, in Lynch v. Donnelly, 465 U.S. 668, 681-82, 104 S.Ct. 1355, 1363-64, 79 L.Ed.2d 604 (1984), the Court compared the effect that a city's display of a nativity scene had on the advancement or endorsement of religion to the effect of governmental actions that it had considered in previous cases, and concluded that display of the nativity scene did not violate the Establishment Clause. Id. at 687, 104 S.Ct. at 1366. Then, in County of Allegheny v. ACLU, 492 U.S. 573, 598-600, 109 S.Ct. 3086, 3103-05, 106 L.Ed.2d 472 (1989), the Court held that a county's display of a nativity scene violated the Establishment Clause because, inter alia, it was surrounded by flora, instead of Santa Claus and reindeer as was the nativity scene at issue in Lynch. 4

The Court has repeatedly held that the Establishment Clause forbids the imposition of religion through public education. That leads to difficulty because of public schools' responsibility to develop pupils' character and decisionmaking skills, a responsibility more important in a society suffering from parental failure. If religion be the foundation, or at least relevant to these functions and to the education of the young, as is widely believed, it follows that religious thought should not be excluded as irrelevant to public education. There is a deep public concern that radical efforts to avoid pressuring children to be religious actually teach and enforce notions that

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pressure the young to avoid all that is religious. 5

Nevertheless, it is neither our object nor our place to opine whether the Court's Establishment Clause jurisprudence is good, fair, or useful. What the Establishment Clause finally means in a specific case is what the Court says it means. We sit only to apply the analytical methods sanctioned by the Court in accord with its precedent.



In Jones I, we applied Lemon's tripartite test 6 rather than the historical approach that the Court employed in Marsh v. Chambers, 463 U.S. 783, 792, 103 S.Ct. 3330, 3336, 77 L.Ed.2d 1019 (1983). Jones I, 930 F.2d at 419 (citing Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373, 383, 105 S.Ct. 3216, 3222 (1985), and Edwards v. Aguillard, 482 U.S. 578, 583 n. 4, 107 S.Ct. 2573, 2577 n. 4, 96 L.Ed.2d 510 (1987)). The Lee Court agreed that Marsh's historical analysis is inappropriate, --- U.S. at ----, 112 S.Ct. at 2660, yet it considered Lemon analysis unnecessary to decide whether Lee violated the Establishment Clause. 7 The Court instead held Lee's actions unconstitutional under a coercion analysis. Id. --- U.S. at ----, 112 S.Ct. at 2655. At least four Justices would also hold that Lee's actions had the effect of unconstitutionally endorsing religion. Id. --- U.S. at ----, 112 S.Ct. at 2665 n. 9 (Blackmun, J., concurring), at ----, 112 S.Ct. at 2671-72 (Souter, J., concurring).

Thus, in the time between Lemon and Lee, the Court has used five tests to determine whether public schools' involvement with religion violates the Establishment Clause. To fully reconsider this case in light of Lee, we reanalyze the Resolution under all five tests that the Court has stated are relevant. 8 We address any statements in Lee that bear on our analysis in Jones I and apply Lee's coercion test for the first time.


    Nothing in Lee abrogates our conclusion that the Resolution has a secular purpose of solemnization, and thus satisfies Lemon's first requirement. See Jones I, 930 F.2d at 419-21. The Resolution represents Clear Creek's judgment that society benefits if people attach importance to graduation. A meaningful graduation ceremony can provide encouragement to finish school and the inspiration and self-assurance necessary to achieve after graduation, which are secular objectives.

    The Lee Court stated that the Providence school district's solemnization argument would have "considerable force were it not for the constitutional constraints applied to state action...." --- U.S. at ----, 112 S.Ct. at 2660. The Court did not question its members' previous acknowledgements that solemnization is a legitimate secular purpose of ceremonial prayer. See Allegheny, 492 U.S. at 595 n. 46, 109 S.Ct. at 3102 n. 46; id. at 630, 109 S.Ct. at 3120-

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    21 (O'Connor, J., concurring); Lynch, 465 U.S. at 693, 104 S.Ct. at 1369-70 (O'Connor, J., concurring); see also Engel v. Vitale, 370 U.S. 421, 435 n. 21, 82 S.Ct. 1261, 1269 n. 21, 8 L.Ed.2d 601 (1962). Thus, we take the Lee Court to agree with our holding in Jones I that a law may pass Lemon's secular-purpose test by solemnizing public occasions, yet still be stricken as an unconstitutional establishment under another test mandated by the Court. See Jones I, 930 F.2d at 420.


    In Jones I, we held that the Resolution's primary effect was to solemnize graduation ceremonies, not to "advance religion" in contravention of Lemon's second requirement. Id., at 421-22. Lee calls into question three statements that we made in support of our advancement holding. We stated that graduating high school seniors would be less easily influenced by prayer than would be their junior schoolmates, id. at 421, but the Court held that all students under school supervision would be unduly influenced by Rabbi Gutterman's prayers. Lee, --- U.S. at ----, 112 S.Ct. at 2658. We distinguished the graduation setting from the classroom setting because parents and guests are present only at graduation and school officials can pay much greater attention to individual students in the classroom than at graduation, Jones I, 930 F.2d at 422, but the Court stated that the two settings are "analogous." Lee, --- U.S. at ----, 112 S.Ct. at 2660. We stated that the brevity and infrequency of the permissible prayers under the Resolution...

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