Cole v. Oroville Union High School
| Decision Date | 02 October 2000 |
| Docket Number | No. 99-16550,99-16550 |
| Citation | 228 F.3d 1092 |
| Parties | (9th Cir. 2000) FERRIN COLE; CHRIS NIEMEYER; and JASON NIEMEYER through his Guardian ad Litem Janet Niemeyer, Plaintiffs-Appellants, and JOHN NIEMEYER through his Guardian ad Litem Janet Niemeyer; JANET NIEMEYER, individually and as a Taxpayer; JUSTIN HAGAN through his Guardian ad Litem Connie Hagan; VANESSA RALSTON through her Guardian ad Litem Teresa Ralston; DOE I through her Guardian ad Litem ROE I; DOE II through his Guardian ad Litem ROE II; DOE III through his Guardian ad Litem ROE III; ROE I, individually and as a Taxpayer; ROE II, individually and as a Taxpayer; ROE III, individually and as a Taxpayer, Appellants, v. OROVILLE UNION HIGH SCHOOL DISTRICT; BARRY KAYRELL, individually and as Superintendent of the Oroville Union High School District; LARRY PAYNE, individually and as Principal of Oroville Union High School; JEFF PLOTNICK, individually and as Vice-Principal of Oroville Union High School; DAVID BRUCE; ROY FISHER; KENNETH HARLAN; SUSAN NEBEN; LILLAINE SPEESE, Defendants-Appellees |
| Court | U.S. Court of Appeals — Ninth Circuit |
Appeal from the United States District Court for the Eastern District of California; Lawrence K. Karlton, Chief Judge, Presiding. D.C. No. CV-98-01037-LKK
Before: Mary M. Schroeder, Michael Daly Hawkins and Raymond C. Fisher, Circuit Judges.
Ferrin Cole and Chris Niemeyer were students at Oroville High School ("Oroville") who graduated in 1998. They claim the Oroville Union High School District ("District") violated their freedom of speech by refusing to allow Niemeyer to give a sectarian, proselytizing valedictory speech and Cole to give a sectarian invocation at their graduation. We conclude the students' equitable claims are moot because Niemeyer and Cole have graduated, and their damage claims fail because the District officials' actions were reasonably taken to avoid violating the Establishment Clause of the First Amendment. As to the other parties who were added to the students' lawsuit -Chris Niemeyer's brother, Jason, and various Oroville students, parents and others -we conclude they lack standing either because they, too, have graduated or because the likelihood of their being selected to speak at a graduation or their attending a future graduation where some student speaker will attempt to offer a sectarian speech or invocation is too speculative to satisfy the injury-in-fact requirement of Article III. We thus affirm the district court's summary judgment in favor of all appellees.
Every year, Oroville High School conducts a formal graduation ceremony. The program for the event, as determined by the District, consists of welcoming remarks and the introduction of the District board of trustees and superintendent by the school principal, the singing of the National Anthem and a flag salute, a spiritual invocation delivered by a student chosen by a vote of his or her classmates, vocal selections, graduation speeches by the valedictorian and salutatorian, presentation of the class and diplomas, presentation of the class advisors, one or two farewell speeches and a recessional. Under a District policy instituted sometime around 1985, all student speeches and invocations for graduation are reviewed by the principal, who has the final say regarding their content. Due to increasing concern about the content of graduation speeches, Oroville's principal in recent years has reviewed the content of speeches and invocations to ensure they were not offensive or denominational. Until the class of 1998 graduation, the principal had needed to change the content of speeches only for grammatical errors. Although Oroville's policy does not specifically enumerate what types of content are prohibited, faculty advisors assisting in planning the 1998 graduation repeatedly told Cole and Niemeyer to make their presentations "nondenominational" and inclusive of all beliefs.
Oroville graduation ceremonies are held at a football field owned by the District and are paid for in part with District funds. Oroville plans the graduation program and administers the ceremony. Significantly, the principal has supervisory authority over all aspects of the ceremony. The District requires all students to sign a contract obligating themselves to act and dress in accordance with school directions at the graduation ceremony. A student does not have to attend the ceremony to obtain a diploma.
In the Fall of 1997, Niemeyer was informed that he was covaledictorian of his class at Oroville. In April 1998, Cole was chosen by a vote of his classmates to offer an invocation at the graduation. Both Cole and Niemeyer were late in submitting early drafts of their graduation presentations for review by Oroville faculty advisors and the principal. Although the graduation ceremony was scheduled for June 5, 1998, Niemeyer did not share his speech with advisors or the principal until May 28, 1998, and Cole did not submit his invocation until June 2. Niemeyer stated he did not submit his speech to his faculty advisors for review of the speech's content "[b]ecause I know they don't hold the same convictions that I do as far as faith."
When Cole and Niemeyer finally submitted their proposed remarks for review by the principal's office, the principal told them to tone down the proselytizing and sectarian religious references. They were each advised to change their presentations to make them nondenominational. Niemeyer submitted a second draft of his speech, which included all of the original proselytizing and religious references to Jesus, and the principal informed him the speech was still unacceptable. The principal notified the District's superintendent and faxed him a copy of Niemeyer's speech. The superintendent consulted with the District's legal counsel, and agreed with the principal's decision to reject Niemeyer's speech because of its religious content. The superintendent and principal also discussed Cole's invocation shortly after Cole submitted it. The superintendent again obtained advice of counsel that Cole's invocation was impermissible sectarian prayer and agreed with the principal's decision to reject Cole's proposed invocation.
The superintendent met with Cole and Niemeyer to try to persuade them to delete the sectarian references from their proposed presentations by making them aware the graduation was a District-sponsored event for which the District was ultimately responsible. Nonetheless, Cole and Niemeyer refused to compromise, and on June 4 they filed suit in district court under 42 U.S.C. S 1983, to obtain a temporary restraining order preventing the school from denying them the opportunity to present their unedited remarks at graduation. The district court denied their motion for lack of time to consider the complex issue.
Cole and Niemeyer attended the June 5 graduation and Niemeyer attempted to deliver his unedited speech, but the principal refused to allow him to do so. Niemeyer's final proposed speech included a statement that he was going to refer to God and Jesus repeatedly, and if anyone was offended, they could leave the graduation. Niemeyer's proposed speech was a religious sermon which advised the audience that "we are all God's children, through Jesus Christ [sic] death, when we accept his free love and saving grace in our lives, " and requested that the audience accept that "God created us" and that man's plans "will not fully succeed unless we pattern our lives after Jesus' example." Finally, Niemeyer's speech called upon the audience to "accept God's love and grace " and "yield to God our lives." Cole's proposed invocation referred repeatedly to the heavenly father and Father God, and concluded "We ask all these things in the precious holy name of Jesus Christ, Amen."
In December 1998, the district court heard the District's motion to dismiss all of the appellants' claims. The district court granted the District's motion to dismiss all of the claims against the District itself and the damage claims against District officials in their official capacities because the District was immune from suit under the Eleventh Amendment. The court also dismissed the damage claims against District officials in their individual capacities because it concluded the officials' decisions were protected by qualified immunity. However, it denied the motion to dismiss the injunctive claims against District officials in their official capacities under the rule of Ex Parte Young, 209 U.S. 123 (1908).
In early 1999, the appellants filed an amended complaint, including as parties Chris Niemeyer's brother, Jason -who had been chosen as valedictorian of the Oroville class of 1999 and planned to give a sectarian speech -as well as other students to secure standing given that both Cole and Chris Niemeyer had already graduated. The district court held that only Jason Niemeyer had standing to pursue the remaining injunctive claims.1 Shortly thereafter, the appellants amended their complaint once more, adding a number of other students at Oroville, parents of students at Oroville and other...
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