Sherman v. Community Consol. School Dist. 21 of Wheeling Tp.

• Decision Date: 20 November 1992
• Docket Number: No. 91-1684,91-1684
• Citation: 980 F.2d 437
• Parties: , 79 Ed. Law Rep. 396 Robert Ian SHERMAN, for himself and as natural guardian for Richard Harry Sherman, a minor son, Plaintiffs-Appellants, v. COMMUNITY CONSOLIDATED SCHOOL DISTRICT 21 OF WHEELING TOWNSHIP, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 437

980 F.2d 437

61 USLW 2340, 79 Ed. Law Rep. 396

Robert Ian SHERMAN, for himself and as natural guardian for Richard Harry Sherman, a minor son, Plaintiffs-Appellants, v. COMMUNITY CONSOLIDATED SCHOOL DISTRICT 21 OF WHEELING TOWNSHIP, et al., Defendants-Appellees.

No. 91-1684.

United States Court of Appeals Seventh Circuit.

Argued Jan. 24, 1992.

Decided Nov. 20, 1992.

Richard Grossman (argued), Dannen, Crane, Heyman & Simon, Chicago, Ill., for plaintiffs-appellants.

Robert P. Reske (argued), Gurion & Lewis, David W. Ott, Ott & Platt, Chicago, Ill., for defendants-appellees Community Consol. School Dist. 21 of Wheeling Tp., Descarpentrie, Ferne Garrett.

Susan Frederick Rhodes, Asst. Atty. Gen., Office of Atty. Gen., Chicago, Ill., for defendant-appellee Neil F. Hartigan.

Before CUMMINGS, EASTERBROOK, and MANION, Circuit Judges.

EASTERBROOK, Circuit Judge.

"[N]o official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628 (1943). A state therefore may not compel any person to recite the Pledge of Allegiance to the flag. On similar grounds, Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977), adds that a state may not compel any person to display its slogan. Does it follow that a pupil who objects to the content of the Pledge may prevent teachers and other pupils from reciting it in his presence? We conclude that schools may lead the Pledge of Allegiance daily, so long as pupils are free not to participate.

I

In 1979 Illinois enacted this statute: "The Pledge of Allegiance shall be recited each school day by pupils in elementary educational institutions supported or maintained in whole or in part by public funds." Ill.Rev.Stat. ch. 122 p 27-3. We held in Palmer v. Board of Education, 603 F.2d 1271 (7th Cir.1979), that states may require teachers to lead the Pledge and otherwise communicate patriotic values to their students. The right of the school board to decide what the pupils are taught implies a corresponding right to require teachers to act accordingly. See also Webster v. New Lenox School District, 917 F.2d 1004 (7th Cir.1990). Richard Sherman, who attends elementary school in Wheeling Township, Illinois, and his father Robert challenge the premise of Palmer that schools may employ a curriculum including the Pledge of Allegiance among its exercises. Since 1954 the Pledge has included the words "under God," 68 Stat. 249, which the Shermans contend violates the establishment and free exercise clauses of the first amendment. The full Pledge is: "I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all." 36 U.S.C. § 172.

The district court's first opinion, 714 F.Supp. 932 (N.D.Ill.1989), concluded that the Shermans have standing to challenge the recitation of the Pledge but expressed doubt that a third plaintiff--the Society of Separationists, Inc., a group of atheists of which Sherman pere is president--is entitled to litigate. The court denied defendants' motion to dismiss but invited plaintiffs to amend their complaint.

Following the amendment, the court dismissed the Society as a party. 745 F.Supp. 1371 (1990). The Society has not appealed, so we do not mention it again. The new complaint added the Attorney General of Illinois as a defendant. The Attorney General reiterated the contention that the Shermans lack standing; the court disagreed. The Attorney General also contended that the district court should abstain and that the challenge is unripe because Richard has not been penalized for his refusal to recite the Pledge. The court rejected both arguments. It did not address the Attorney General's submission that the eleventh amendment bars a suit against that office (the Shermans did not name the incumbent as a party in his personal capacity).

A third opinion, 758 F.Supp. 1244 (1991), granted the defendants' motions for summary judgment. The court held that the state's pledge law satisfies all three elements of the approach to the establishment clause in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971): it has a secular purpose, does not advance religion, and does not entangle the government in religion. Coerced readings of the Pledge would pose difficulties under the free speech and free exercise clauses, but the court concluded that the statute is not coercive as written or in application. Although p 27-3 says that the Pledge "shall be recited each school day by pupils", it does not say by all pupils, and the absence of any penalty implies that the pupils are entitled to keep silent. Affidavits from the superintendent of schools, the principal of Richard's school, and Richard's first grade teacher all stated that no pupil was compelled to recite the Pledge, to stand during the Pledge or place his hand over his heart, or to leave if he would not join in, and that no one was penalized in any way for remaining silent and seated. Contrast Lipp v. Morris, 579 F.2d 834 (3d Cir.1978) (an obligation to stand at attention while other students recite the Pledge is forbidden compulsion); Goetz v. Ansell, 477 F.2d 636 (2d Cir.1973) (same). Any peer pressure to conform that Richard may have experienced, the court believed, does not justify silencing pupils who are willing to recite the Pledge.

II

Defendants renew their jurisdictional arguments. The Shermans disdained to address them, asserting that only defendants who file cross-appeals may contest the jurisdiction of the district court. The Shermans overlook the enduring principle that judges must consider jurisdiction as the first order of business, and that parties must help the courts do so. Philbrook v. Glodgett, 421 U.S. 707, 720-22, 95 S.Ct. 1893, 1901-02, 44 L.Ed.2d 525 (1975); Fusari v. Steinberg, 419 U.S. 379, 387 n. 12, 95 S.Ct. 533, 538 n. 12, 42 L.Ed.2d 521 (1975); id. at 390-91, 95 S.Ct. at 539-40 (Burger, C.J., concurring). Nothing can justify adjudication of a suit in which the plaintiff lacks standing or there is some other obstacle to justiciability. Defendants fulfilled their duties to the court, while the lawyer representing the plaintiffs slighted his.

The eleventh amendment deprives federal courts of jurisdiction to consider most suits against states. State agencies or officials sued in their official capacity are "the state" for this purpose, Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), unless the plaintiff satisfies the requirements of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). See also Hafer v. Melo, --- U.S. ----, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). Plaintiffs sued the Attorney General of Illinois in his official capacity only, seeking both damages and a declaratory judgment that p 27-3 violates the Constitution. The eleventh amendment cleanly bars the award of damages in an official-capacity suit. Whether it also bars declaratory relief depends on the theory of liability. Plaintiffs have not articulated any theory under which Ex parte Young supports a suit against the Attorney General, who has never threatened the Shermans with prosecution and as far as we can tell has no authority to do so. (States' Attorneys, elected in each county, are the public prosecutors in Illinois. Paragraph 27-3 does not prescribe a penalty, so these officials also have nothing to do with the subject.) Plaintiffs apparently named the office of the Attorney General in an effort to obtain a judgment binding the State of Illinois as an entity, a step that Congress did not authorize when enacting 42 U.S.C. § 1983 and that the eleventh amendment does not permit in the absence of such authorization. See Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). The Attorney General must be dismissed as a party.

Defendants' other jurisdictional objections have less punch. Richard Sherman, obliged by the school-attendance laws to be present during the Pledge and the potential object of coercion to participate, has standing to challenge the statute. Abington School District v. Schempp, 374 U.S. 203, 224 n. 9, 83 S.Ct. 1560, 1572 n. 9, 10 L.Ed.2d 844 (1963). His father has derivative standing as his guardian. The subject is ripe for adjudication. The Pledge law is on the books, being enforced at Richard's school by daily recitation. That school officials do not compel Richard to participate may bear on the merits but does not make the subject less appropriate for decision. Cf. Lee v. Weisman, --- U.S. ----, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (adjudicating a challenge to a prayer at a high school graduation, with no Justice doubting justiciability).

Doctrines that counsel abstention do not imply that the court lacks subject-matter jurisdiction. The defendants' contention that the district court should have abstained while awaiting clarification of the meaning of the state's law, if accepted, would require us to alter its judgment. To obtain such an alteration, the defendants needed to file appeals of their own. Federal Energy Administration v. Algonquin SNG, Inc., 426 U.S. 548, 560 n. 11, 96 S.Ct. 2295, 2302 n. 11, 49 L.Ed.2d 49 (1976). See Robert L. Stern, When to Cross-Appeal or Cross-Petition--Certainty or Confusion?, 87 Harv.L.Rev. 763 (1974).

Now that the case has reached our court, certification to the Supreme Court of Illinois would be the best way to find out whether the state's law requires each pupil to recite the Pledge of Allegiance. Houston v. Hill, 482 U.S. 451, 470-71, 107 S.Ct. 2502, 2514, 96 L.Ed.2d 398 (1987). None of the parties has asked us to seek the views of the...