Doe ex rel. Doe v. School Dist. of City of Norfolk

• Citation: 340 F.3d 605
• Decision Date: 20 August 2003
• Docket Number: No. 02-4135.,02-4135.
• Parties: John DOE, a minor, by and through his mother and next friend, Mary DOE; Mary Doe, Plaintiffs-Appellants, v. THE SCHOOL DISTRICT OF THE CITY OF NORFOLK, in the County of Madison, a/k/a School District Number 2 of Madison County, Nebraska, a political subdivision; Randy Nelson, in his individual and official capacities; James Scheer, in his individual and official capacities, Defendants-Appellees. Anti-Defamation League, Amicus on Behalf of Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

340 F.3d 605

John DOE, a minor, by and through his mother and next friend, Mary DOE; Mary Doe, Plaintiffs-Appellants, v. THE SCHOOL DISTRICT OF THE CITY OF NORFOLK, in the County of Madison, a/k/a School District Number 2 of Madison County, Nebraska, a political subdivision; Randy Nelson, in his individual and official capacities; James Scheer, in his individual and official capacities, Defendants-Appellees.

Anti-Defamation League, Amicus on Behalf of Appellant.

No. 02-4135.

United States Court of Appeals, Eighth Circuit.

Submitted: June 9, 2003.

Filed: August 20, 2003.

Order Denying Petition for Rehearing and for Rehearing En Banc October 16, 2003^*.

The petition for rehearing en banc is denied. The petition for rehearing by the panel is also denied.

Judge Morris S. Arnold and Judge Murphy would grant the petition for rehearing en banc.

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Herbert J. Friedman, argued, Lincoln, NE (Amy A. Miller and Daniel H. Friedman, on the brief), for appellant.

Jefferson Downing, argued, Lincoln, NE, for appellee James Scheer.

Randall L. Goyette, argued, Lincoln NE (Jarrod S. Boitnott, on the brief), for appellees School District No. 2 of Madison County, NE and Randy Nelson.

Before MORRIS SHEPPARD ARNOLD and RILEY, Circuit Judges, and BOGUE,¹ District Judge.

BOGUE, District Judge.

Plaintiffs-Appellants John Doe, a minor, and Mary Doe, his mother and next friend, appeal the district court's² dismissal of their Establishment Clause claims which arose, in part, as a result of a recitation of a Christian prayer commonly known as the Lord's Prayer at a high school graduation ceremony. After careful consideration we conclude that the district court properly dismissed the action against each of the separate parties.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 10, 2000, School District Number Two of Madison County, Nebraska ("School District"), held a rehearsal in preparation of a ceremony honoring the graduating students of Norfolk Senior High School. The ceremony was scheduled for May 14, 2000. At the rehearsal, John Doe learned that the ceremony would include two separate prayers, an Invocation and Benediction. The separate prayers were placed on the program schedule after a meeting during which the students voted in favor of the traditional practice. Students were allowed to submit non-sectarian and non-proselytizing prayers for consideration. Principal Stephen Morton ("Morton") reviewed the proposed prayers, deleted proposed prayers which did not meet the specified criteria, and submitted the remaining prayers to a student committee for selection by vote. One student was ultimately selected to deliver the Invocation and a different student was selected to give the Benediction. Morton explained to the students that they were to remain standing for the Invocation after the playing of the national anthem. He also instructed the males to remove their caps during the national anthem and Invocation.

After returning home from the rehearsal, John Doe, who had not participated in the student vote concerning the inclusion of the Invocation and Benediction at the ceremony, informed his mother, Mary Doe, of the scheduled prayers. Mary Doe proceeded to contact the American Civil Liberties Union ("ACLU"). On May 12, 2000, the ACLU informed Superintendent Randy Nelson ("Nelson") that legal action may be taken by a student if the Invocation and Benediction were included at the ceremony. Each member of the Board of Education ("School Board") was notified of the ACLU's contact with Nelson. The School Board, in response to an administrative recommendation, agreed to remove the prayers from the ceremony.

At the opening of the ceremony, which was attended by the Does, School Board President Brad Krivohlavek ("Krivohlavek") notified the audience of the change in the program. Videotapes recorded Krivohlavek's statement. In relevant part, Krivohlavek stated:

Before we begin today's festivities, I feel I must share with you a change in today's program. With deepest regret from the Board and Administration and with our most sincere apologies to the Senior Class of 2000, we will need to remove the Invocation and Benediction from today's graduation ceremonies. Just a few days ago our Administration was notified by an ACLU attorney that the Norfolk Public Schools would be sued if it proceeded with the inclusion of prayer at graduation. The Board has also been told that this is now the law of the Eighth Circuit Court. After two days of intensive negotiations with legal officials from across the State, including advice from the State Supreme Court, the Board has been advised not to proceed with these prayers. While Norfolk Public Schools has been one of the last schools in the State of Nebraska to continue to include prayer at graduation, we are saddened that it has come to this. The Board of Education hopes the graduates, parents, and community will understand and support this difficult decision.

The graduation ceremony proceeded without the scheduled Invocation.

At some point during the ceremony, Krivohlavek introduced James Scheer ("Scheer"), as a member of the School Board, stating that he had "a few words to share." Scheer was given access to the podium as a result of the School Districts' past practice of allowing School Board members, whose children were part of the graduating class, to address the students and the audience. Scheer's remarks were also captured on videotape. He stated:

I promise to make this uh fairly short for me. There is a saying that when the door closes another one opens. We have been prohibited from doing some things at today's ceremony and it's brought me to a lot of reflections over the last couple of days. And when I have to reflect, I usually turn and ask for guidance. And one of the things that I usually do is to recite. So I am going to recite something, and I would ask and more so, encourage, any of you that this sounds familiar [sic] to please join in. Our Father, who art in heaven, hallowed be thy name. Thy kingdom come, thy will be done, on earth as it is in heaven. Give us our daily bread, and forgive us our trespasses as we forgive those who trespass against us and lead us not into temptation but deliver us from evil, for thine is the kingdom and the power and the glory forever. May God be with you always.

Please, please take a seat. Back to my original discussion. You need to think about in [sic] the rest of your life in setting goals. And the real challenge is twofold. If you meet that goal, to reset an even higher goal. The bigger challenge, however, is when you set the goal and you're unable to obtain the goal, not to lower the goal. We will all have failures — physically, mentally and spiritually. Your charge is not to lower the bar, to keep the bar high. I'll leave you with this. From what we learned Wednesday, we learned the meaning behind in [sic] how to say good-bye. May God be with you always. Congratulations.

The record reflects that as Scheer recited the Lord's Prayer, no students stood or removed their caps although two individuals on the stage did stand. While no representative of the School District interrupted Scheer or disclaimed the recitation, there is no evidence that any School District officials knew about Scheer's intentions prior to his speech. In fact, Nelson and Morton have indicated that they were shocked and surprised by Scheer's comments.

On November 29, 2001, the Does filed suit against the School District and against Nelson and Scheer both in their individual and official capacities, alleging violations of the Establishment Clause. The School District and Nelson filed a motion to dismiss on January 25, 2002. While the district court was considering the motion to dismiss, the parties participated in discovery. On August 14, 2002, the district court dismissed the charges against the School District and against Nelson, in his official capacity.³ On September 3, 2002, the Does and Nelson, in his individual capacity, filed motions seeking summary judgment. Several weeks later, on September 23, 2002, the Does formally filed a motion to amend their original complaint. Also on September 23, 2002, Scheer filed a motion for judgment on the pleadings. The district court denied the motion to amend the pleadings, granted summary judgment in favor of Nelson, and granted Scheer's motion for judgment on the pleadings after converting it to a motion for summary judgment. The Does now appeal, raising numerous issues.

II. STANDING

Although standing was not addressed by the district court, we are obligated to consider the issue on appeal. See U.S. v. Hays, 515 U.S. 737, 742, 115 S.Ct. 2431, 2435, 132 L.Ed.2d 635 (stating that federal courts have an independent obligation to examine jurisdictional issues). "Standing is the constitutional requirement, imposed by the `cases and controversies' provision of Article III, that a plaintiff must allege a judicially cognizable and redressable injury in order to pursue a lawsuit." Ben Oehrleins and Sons and Daughter, Inc. v. Hennepin County, 115 F.3d 1372, 1378 (8th Cir.1997) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60, 112 S.Ct. 2130, 2135-36, 119 L.Ed.2d 351 (1992)). Establishing standing requires a plaintiff to demonstrate the following: "(1) an `injury in fact' that is both (a) concrete and particularized, and (b) actual or imminent, rather than conjectural or hypothetical; (2) a causal connection between the alleged injury and the defendant's conduct; that is, that the injury is `fairly traceable' to the challenged action; and (3) that it is likely that a favorable decision will redress the injury." Id. (quoting Lujan, 504 U.S. at 560-561, 112 S.Ct. at 2136-37).

Scheer does not challenge the Does' standing to bring suit against him. Similarly, the School District and Nelson do not dispute the Does' standing on issues related to the allegation that they authorized or coerced participation in...