Herdahl v. Pontotoc County School Dist., 3:94CV188-B-A.

• Decision Date: 18 April 1995
• Docket Number: No. 3:94CV188-B-A.,3:94CV188-B-A.
• Citation: 887 F. Supp. 902
• Parties: Lisa HERDAHL, on behalf of herself and her minor, school-age children, Plaintiff, v. PONTOTOC COUNTY SCHOOL DISTRICT; Pontotoc County Board of Education; John Allen, John Lauderdale, Johnny Mounce, Ken Roye, and Ricky Spencer, individually and in their official capacities as members of the Pontotoc County Board of Education; Jerry Horton, individually and in his official capacity as Superintendent of the Pontotoc County School District; Steve Carr, individually and in his official capacity as Principal of North Pontotoc Attendance Center; and Rodney Flowers, individually and in his official capacity as Assistant Principal of North Pontotoc Attendance Center, Defendants.
• Court: U.S. District Court — Northern District of Mississippi

887 F. Supp. 902

Lisa HERDAHL, on behalf of herself and her minor, school-age children, Plaintiff, v. PONTOTOC COUNTY SCHOOL DISTRICT; Pontotoc County Board of Education; John Allen, John Lauderdale, Johnny Mounce, Ken Roye, and Ricky Spencer, individually and in their official capacities as members of the Pontotoc County Board of Education; Jerry Horton, individually and in his official capacity as Superintendent of the Pontotoc County School District; Steve Carr, individually and in his official capacity as Principal of North Pontotoc Attendance Center; and Rodney Flowers, individually and in his official capacity as Assistant Principal of North Pontotoc Attendance Center, Defendants.

No. 3:94CV188-B-A.

United States District Court, N.D. Mississippi, Western Division.

April 18, 1995.

COPYRIGHT MATERIAL OMITTED

Robert B. McDuff, Jackson, MS, Danny R. Lampley, Tupelo, MS, Elliot M. Mincberg, Judith E. Schaeffer, People for the American Way, Washington, DC, for plaintiff.

Stephen M. Crampton, Scott L. Thomas, American Family Ass'n Law Center, Tupelo, MS, Phillip L. Tutor, Pontotoc, MS, for defendants.

MEMORANDUM OPINION

BIGGERS, District Judge.

This cause is before the court on the plaintiff's motion for preliminary injunctive relief against the defendants, Pontotoc County School District ("District"), et al., seeking to enjoin the District's practice of allowing a student organization known as the "Aletheia Club" to broadcast morning devotionals and sectarian prayers over its school intercom system. The plaintiff also seeks an injunction preventing student-initiated prayers in individual classrooms during classroom hours. The court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, 2201 and 2202, and 42 U.S.C. § 1983. The plaintiff, suing on behalf of herself and her minor school-age children in attendance at North Pontotoc Attendance Center, has standing to bring this action.¹ A hearing having been held in this matter on February 2, 1995, the court now rules.

I. FACTS

Plaintiff Lisa Herdahl is the mother of five children currently attending the North Pontotoc Attendance Center ("Center"), a public school located in Ecru, Mississippi. The Center provides public education from kindergarten through twelfth grade. The public address system serves the entire school and announcements are broadcast to every classroom and can also be heard in the hallways. Each morning after the principal or another designated school official makes the morning announcements, a student member of the Aletheia Club (formerly the "Christ in Us Club") leads a devotional, usually an inspirational reading from the Bible, followed by a prayer selected by the student organization which is broadcast over the intercom system. Most prayers are concluded with the phrase "in Jesus Christ, Amen" or words to that effect. The plaintiff's children are currently exempt from attending class during the broadcast. Additionally, in some elementary classes which the Herdahl children attend, vocal group prayer sometimes takes place, initiated and led by students shortly before lunch. A teacher escorts the Herdahl children out of the classroom before the practice begins. After her protests met with indifference, the plaintiff challenged the practices of the District as violative of the Establishment Clause of the United States Constitution.² The factors the court must consider in determining whether the issuance of an injunction is proper in this cause are firmly established. The plaintiff must show:

(1) a substantial likelihood of prevailing on the merits;

(2) a substantial threat of irreparable injury if the injunction is not granted;

(3) that the threatened injury outweighs any harm to the defendants that may result from the injunction; and

(4) that the granting of the preliminary injunction will not disserve the public interest.

Roho, Inc. v. Marquis, 902 F.2d 356, 358 (5th Cir.1990) (citing Mississippi Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir.1985)).

II. DISCUSSION

A. Substantial Likelihood of Prevailing on the Merits

The court finds that the plaintiff has established a substantial likelihood that she will ultimately prevail in this action. Over thirty years ago, the United States Supreme Court held that practices substantially similar to the practices challenged in this lawsuit were prohibited by the Establishment Clause of the First Amendment. School Dist. of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963). The Court held that morning devotional broadcasts by students over a school intercom system was an unconstitutional practice. Id. at 205, 83 S.Ct. at 1562. The school day described in Schempp began with students reading from the Bible and/or a recitation of the Lord's Prayer. As in the instant cause, provisions permitting a student to be voluntarily excused from attendance or participation in the daily prayers did not shield those practices from invalidation. Id. at 224-25, 83 S.Ct. at 1572-73. Although the practices were voluntary by the students, the Court found that these opening exercises were government-sponsored religious ceremonies which violated the Establishment Clause.

The exercises here ... are religious exercises, required by the States in violation of the command of the First Amendment that the Government maintain strict neutrality, neither aiding nor opposing religion.

We cannot accept that the concept of neutrality, which does not permit a State to require a religious exercise even with the consent of the majority of those affected, collides with the majority's right to free exercise of religion. While the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs.

Schempp, 374 U.S. at 225-26, 83 S.Ct. at 1573 (emphasis added) (footnote omitted).

In Karen B. v. Treen, 653 F.2d 897, 899 (5th Cir.1981), aff'd, 455 U.S. 913, 102 S.Ct. 1267, 71 L.Ed.2d 455 (1982), the Supreme Court summarily affirmed the Fifth Circuit's holding that practices similar to those now before the court violated the First Amendment. The practices at issue in Karen B. followed local school board regulations established pursuant to Louisiana enabling legislation and allowed a classroom teacher to ask students whether they would like to offer a prayer, and if no one volunteered, the teacher was permitted to lead the class in prayer. Karen B., 653 F.2d at 899. As in Schempp, exemption from participation was permitted. The Fifth Circuit Court of Appeals noted:

The defendants contend that the challenged statute and regulations are not constitutionally infirm because they are entirely content-neutral and because student participation in the daily prayer is purely voluntary. Neither of these features cures the constitutional defect.

... The Supreme Court consistently has expressed the view that the First Amendment demands absolute governmental neutrality with respect to religion, neither advancing nor inhibiting any particular religious belief or practice and neither encouraging nor discouraging religious belief or unbelief.

Karen B., 653 F.2d at 901.

Also, from the appellate court's recitation of the operative facts in Hall v. Board of Sch. Comm'rs of Conecuh County, 656 F.2d 999 (5th Cir.1981), it may be gleaned that "(1) permitting students to conduct morning devotional readings over the school's public address system, and (2) teaching an elective Bible Literature course in a manner which advanced religion" was found to be prohibited by the Establishment Clause:

Everyone seems to be in substantial agreement that the conducting of morning devotional was unconstitutional under established law. See School Dist. of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963). The district court so held, and the defendants state that they have discontinued the practice.

Id. at 1000 (citation omitted). See also Meltzer v. Board of Pub. Instruction of Orange County, 548 F.2d 559, 579 (5th Cir.1977) (morning devotional consisting of Bible reading and/or recitation of Lord's Prayer by students or teachers over public address system unconstitutional),³ aff'd on reh'g, 577 F.2d 311 (1978) (en banc), cert. denied, 439 U.S. 1089, 99 S.Ct. 872, 59 L.Ed.2d 56 (1979).

Other circuits are in accord. In Jager v. Douglas County Sch. Dist., 862 F.2d 824 (11th Cir.), cert. denied, 490 U.S. 1090, 109 S.Ct. 2431, 104 L.Ed.2d 988 (1989), the Eleventh Circuit addressed a constitutional challenge to student-initiated invocations before high school football games.⁴ As is the case with the practice at the Center, the students in Jager invoked the name of Jesus Christ in their prayers. Id. at 826. The court rejected the school's asserted secular purpose of solemnization stating that it was clear that the school district's motivation was to "publicly express support for Protestant Christianity." Id. at 830. Furthermore, the court found the primary effect of the invocation to be in furtherance of religion. Id. at 831. Most significantly, the court held the use of a sound system controlled by the school principals necessarily conveyed a message that the school endorsed the broadcasted religious messages. Id.

The defendants contend that the practices of the District are legal and, in fact, mandated by the Constitution. What is at issue in this cause, the defendants allege, are the practices of students protected by the First Amendment, rather than actions of the District abridging those protections. It is their position that (1) the District has created and maintains a limited public forum that is the school's intercom system; and (2) the Equal Access Act prohibits the District from preventing the Aletheia Club or any other student group from using the forum for the broadcasts at issue. See Board of Educ. of Westside Community Sch. Dist....