994 F.2d 160 (5th Cir. 1993), 91-1988, Doe v. Duncanville Independent School Dist.

Docket Nº:91-1988, 91-7347.
Citation:994 F.2d 160
Party Name:John DOE, et al., Plaintiffs-Appellees, v. DUNCANVILLE INDEPENDENT SCHOOL DISTRICT, et al., Defendants-Appellees; v. Kelly KENDRICK, et al., Appellants. John DOE, et al., Plaintiffs-Appellees, v. DUNCANVILLE INDEPENDENT SCHOOL DISTRICT, et al., Defendants-Appellants.
Case Date:June 16, 1993
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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994 F.2d 160 (5th Cir. 1993)

John DOE, et al., Plaintiffs-Appellees,




Kelly KENDRICK, et al., Appellants.

John DOE, et al., Plaintiffs-Appellees,




Nos. 91-1988, 91-7347.

United States Court of Appeals, Fifth Circuit

June 16, 1993

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Kelly Shackelford, Donovan Campbell, Jr., Robert E. Rader, Jr., Rader, Smith, Campbell & Fisher, Dallas, TX, for K. Kendrick, et al.

David M. Richards, Laura S. Groce, Henslee, Ryan & Groce, Austin, TX, for Duncanville Independent School Dist., et al.

Michael F. Linz, Frank Donahoo Chandler, Dallas, TX, for John Doe and Jane Doe.

John W. Whitehead, Charlottesville, VA, for amicus curiae--The Rutherford Institute.

Dia W. Epstein, Robert B. Gilbreath, Dallas, TX, for amicus curiae--The Anti Defamation League of B'nai B'rith.

Eliot Shavin, Dallas, TX, for amicus curiae--American Jewish Congress.

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

Before REAVLEY, SMITH, and EMILIO M. GARZA, Circuit Judges.


We withdraw our opinion issued March 29, 1993, and reported at 986 F.2d 953 (5th Cir.1993), and substitute in its place the following opinion. The mandate shall issue forthwith.

JERRY E. SMITH, Circuit Judge:


Jane Doe was twelve years old when her family moved to Duncanville, Texas, and she started the seventh grade at Reed Junior High School, in the Duncanville Independent School District ("DISD"). Doe tried out for and made the girls' basketball team at her new school and shortly thereafter learned that Coach Smith, the girls' basketball coach, regularly began or ended practice with a team recitation of the Lord's Prayer. Even though she was uncomfortable with these prayers and opposed to the practice, Doe participated out of a desire not to create dissension.

At Doe's first basketball game, the Lord's Prayer was recited in the center of the court at the end of the game, the girls on their hands and knees with the coach standing over them, heads bowed. Over the following weeks, prayers were said prior to leaving the school for away games as well as before exiting the bus upon the team's return.

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These prayers usually were started either by the coaches' signal or at their verbal request. Prayers apparently have been conducted in physical education classes at DISD for the past seventeen years.

After attending a game and seeing his daughter participate in the prayer, John Doe, Jane's father, asked her how she felt about participating. When told that she preferred not to, John Doe told his daughter that she did not have to join in the prayers, whereupon she resolved to cease her participation.

Following this incident, John Doe contacted Ed Parker, at that time the assistant superintendent of schools. Parker was somewhat less than sympathetic to John Doe's complaint. 1

Mr. Doe later contacted Marvin Utecht, who had replaced Mr. Parker, regarding prayer at school-time pep rallies and following basketball games. Utecht took action to halt the prayers at pep rallies but insisted there was nothing he could do regarding the post-game prayers. Mr. Doe then appeared before the DISD Board of Trustees (the "school board") to present his case, at which appearance, according to Mr. Doe, the school board showed no inclination to alter the school's practices.

Jane and John Doe subsequently filed a complaint seeking declaratory and injunctive relief against DISD, its superintendent, and the current and future members of the school board, alleging a number of objectionable religious acts, practices, and customs that they contend occurred at DISD schools and sponsored events. 2

Upon deciding not to participate in the team prayer, Doe was required by Coach Smith, on one occasion, to stand outside the prayer circle. Moreover, at away games, at which the girls are not permitted to return to the locker room except as a group, Doe regularly had to stand apart while the coaches and students prayed.

The Does contend that the DISD thus fosters a climate in which Jane Doe is singled out and subjected to criticism on the basis of her religious beliefs. The record shows that her fellow students asked, "Aren't you a Christian?" and that one spectator stood up after a game and yelled, "Well, why isn't she

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praying? Isn't she a Christian?" Additionally, Doe's history teacher called her "a little atheist" during one class lecture.

According to the DISD, administration members met with several of the coaches subsequent to the filing of this suit and told the coaches that they should permit student-initiated prayer, but that prayers were not to be allowed during classroom time and that faculty should neither initiate nor participate in prayer. By the time of the preliminary injunction hearing, all class-time prayers had stopped. Doe had no complaints during her ninth-grade year at the DISD.


On August 15, 1991, the Does filed an application for a temporary restraining order ("TRO") and preliminary injunction. The district court, on August 20, 1991, denied the TRO but scheduled a preliminary injunction hearing for September 16, 1991. Following a two-day trial, the court on November 18, 1991, entered a preliminary injunction. DISD filed a notice of appeal as No. 91-7347.

In the now-consolidated FED.R.CIV.P. 24 proceeding, the Rutherford Institute of Texas Foundation, amicus curiae before this court on the appeal of the preliminary injunction, proposes to intervene on behalf of a class of DISD schoolchildren (collectively, "Rutherford") who claim their constitutional rights to the free exercise of religion stand directly and adversely to be affected by the outcome of this lawsuit.

On September 12, 1991, and (according to Rutherford) two days after they first learned that the Does had filed an application for a TRO, the putative intervenors moved to intervene and filed a third-party complaint. The court denied the motion to intervene the next day on the ground that the suit did not affect Rutherford's rights and the motion to intervene was untimely. Rutherford filed a motion to reconsider on September 27, 1991, which the court denied on October 7. Rutherford appeals, as No. 91-1988, the September 13 and October 7 orders denying leave to intervene.


To obtain a preliminary injunction, a movant has the burden of proving four elements: a substantial likelihood of success on the merits; a substantial threat that he will suffer irreparable injury if the injunction is not issued; that the threatened injury to him outweighs any damage the injunction might cause to the non-movant; and that the injunction will not disserve the public interest. Apple Barrel Prods. v. Beard, 730 F.2d 384, 386 (5th Cir.1984). We will reverse the district court's weighing of these factors only upon a showing of an abuse of discretion. Doran v. Salem Inn, 422 U.S. 922, 931-32, 95 S.Ct. 2561, 2567-68, 45 L.Ed.2d 648 (1975); White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir.1989) (quoting Apple Barrel, 730 F.2d at 386).


The Does claim a violation of the First Amendment's Establishment Clause. Such claims are guided by the three-part test enunciated in Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111-12, 29 L.Ed.2d 745 (1971): "First, the statute [or practice] must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster 'an excessive government entanglement with religion.' " (Citations omitted.) Absent any one of these factors, the challenged statute or practice must be stricken as violative of the Establishment Clause.

The district court found that DISD's practices violated all three prongs--thus presenting a substantial likelihood of the Does' succeeding on the merits--and accordingly entered its injunctive order:

It is therefore ORDERED that Plaintiffs' motion for preliminary injunction is granted.

It is FURTHER ORDERED that Defendants are enjoined from permitting employees of [DISD] to lead, encourage, promote, or participate in prayer with or among students during curricular or extracurricular activities, including before, during or after school related sporting events.

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It is FURTHER ORDERED that, due to the pervasive nature of past school prayer, Defendants are to advise students of [DISD], in writing, that under the First Amendment of the United States Constitution, prayer and religious...

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