Jones v. Clear Creek Independent School Dist.

• Decision Date: 18 April 1991
• Docket Number: No. 89-2638,89-2638
• Citation: 930 F.2d 416
• Parties: 67 Ed. Law Rep. 89 Merritt E. JONES, On His Behalf and as Next Friend of Pamela Jones, A Child, et al., Plaintiffs-Appellants, v. CLEAR CREEK INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 416

930 F.2d 416

67 Ed. Law Rep. 89

Merritt E. JONES, On His Behalf and as Next Friend of Pamela Jones, A Child, et al., Plaintiffs-Appellants, v. CLEAR CREEK INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee.

No. 89-2638.

United States Court of Appeals Fifth Circuit.

April 18, 1991.

Rehearing Denied May 22, 1991.

Mitchell A. Seider, Bruce V. Griffiths, Greater Houston Chapter, American Civil Liberties Union, Joseph A. Saranello, Houston, Tex., for plaintiffs-appellants.

James D. Robinson, M. Karinne McCullough, Giessel, Stone, Barker & Lymay, David M. Feldman, Vinson & Elkins, Houston, Tex., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before REAVLEY, GARWOOD and BARKSDALE, Circuit Judges.

REAVLEY, Circuit Judge:

Graduating seniors and parents brought this suit to enjoin a school district from permitting invocations and benedictions at public high school graduation ceremonies. The district court held that the school district's written policy permitting only nonsectarian and nonproselytizing invocations and benedictions written and delivered by student volunteers at the ceremonies does not violate the Establishment Clause. We affirm.

I. BACKGROUND

Clear Lake High School ("Clear Lake") is within defendant-appellee Clear Creek Independent School District ("Clear Creek"). Clear Lake traditionally includes in its graduation ceremonies invocations and benedictions ¹ voluntarily written and presented by members of the graduating senior class. Pre-1986 Clear Lake graduation invocations included overt references to Christianity. Clear Lake's 1986 graduation invocation mentioned "Lord," "Gospel," "Amen," and God's omnipotence. Two Clear Lake students, joined by their fathers, (collectively "Jones") complained that Clear Creek's policy and actions permitting invocations consisting of traditional Christian prayer at high school graduation ceremonies violated the First Amendment's Establishment Clause.

On December 15, 1987, three weeks before this case was to be tried, Clear Creek's Board of Trustees adopted a resolution (the "Resolution") which provides:

1. The use of an invocation and/or benediction at high school graduation exercise shall rest within the discretion of the graduating senior class, with the advice and counsel of the senior class principal;

2. The invocation and benediction, if used, shall be given by a student volunteer; and

3. Consistent with the principle of equal liberty of conscience, the invocation and benediction shall be nonsectarian and nonproselytizing in nature.

Clear Creek's Board of Trustees adopted the Resolution at the request of its attorney in this case, who drafted it to conform with Judge Merritt's opinion in Stein v Plainwell Community Schools, 822 F.2d 1406, 1409 (6th Cir.1987) (analogizing to the Supreme Court's approval of legislative prayer in Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983) in holding that nonsectarian, nonproselytizing graduation prayer does not violate the First Amendment).

Applying the tripartite test announced in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), Judge DeAnda held that the Establishment Clause does not prohibit Clear Creek from permitting invocations that conform with the Resolution, and granted summary judgment for Clear Creek.

II. ANALYSIS

Jones claims that the Resolution is a facially unconstitutional law respecting an establishment of religion. Alternatively, she asserts that the district court prematurely granted summary judgment without giving her an opportunity to discover whether Clear Creek would enforce the Resolution in a constitutional manner.

A. THE RESOLUTION'S CONSTITUTIONALITY

1. Establishment Clause Applicability

The First Amendment's proscription of laws "respecting an establishment of religion" applies to state governments through the Fourteenth Amendment. Everson v. Board of Education of Ewing Township, 330 U.S. 1, 15, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947). Because Clear Creek's Board of Trustees promulgated the Resolution pursuant to authority conferred by Texas law, the Resolution is subject to Establishment Clause scrutiny. Board of Education, Island Trees Union Free School Dist. v. Pico, 457 U.S. 853, 864, 102 S.Ct. 2799, 2806-07, 73 L.Ed.2d 435 (1982).

The Resolution does not escape Establishment Clause scrutiny by only passively limiting students' free choice of graduation speech content. True, the Resolution contemplates invocations written and delivered by student volunteers only with the approval of the graduating senior class. But, according to Clear Creek's May 1987 letter to parents, "commencement is a scheduled school activity, and all school regulations [are] enforced." Clear Creek undisputably controls its commencement programs. Clear Creek's rental of an auditorium is tantamount to ownership for purposes of facility control. And " 'the State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated' " ... "as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view." Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983) (quoting United States Postal Service v. Council of Greenburgh Civic Assns., 453 U.S. 114, 129-30, 101 S.Ct. 2676, 2684, 69 L.Ed.2d 517 (1981)).

The Resolution is subject to Establishment Clause scrutiny because it is the mechanism through which the state provides space in a closed forum for arguably religious speech at a government sponsored event. See Engel v. Vitale, 370 U.S. 421, 430, 82 S.Ct. 1261, 1266-67, 8 L.Ed.2d 601 (1962) (noncompulsory nature of public school prayer does not "free it from the limitations of the Establishment Clause"); Jager v. Douglas County School Dist., 862 F.2d 824, 831 (11th Cir.) (considering Establishment Clause challenge "[w]hen a religious invocation is given via a sound system controlled by school principals and the religious invocation occurs at a school-sponsored event at a school-owned facility"), cert. denied, 490 U.S. 1090, 109 S.Ct. 2431, 104 L.Ed.2d 988 (1989); Stein, 822 F.2d at 1407 (recognizing Establishment Clause challenge where graduation invocations voluntarily written and presented by students).

The Resolution also involves Clear Creek in graduation invocations by subjecting proposed invocations to review by the "senior class principal," a faculty representative of a class throughout its four-year attendance at school.

2. Test of Constitutionality

The parties argued the Resolution's constitutionality under Marsh while the district court applied Lemon in deciding Clear Creek's summary judgment motion. Judges of the other two circuits considering the constitutionality of invocations at public high school graduation ceremonies have demonstrated some disagreement on the test to be applied. Compare Weisman v. Lee, 728 F.Supp. 68, 71-75 (D.R.I.), aff'd, 908 F.2d 1090 (1st Cir.1990) (applying Lemon ), cert. granted, --- U.S. ----, 111 S.Ct. 1305, 113 L.Ed.2d 240 (1991) with Stein, 822 F.2d at 1409 (one judge analogizes to Marsh and the other two judges apply Lemon as well).

The writer of this opinion is inclined to the opinion that present Supreme Court decisions require that the Resolution satisfy Lemon. The Supreme Court has "particularly relied on Lemon in every case involving the sensitive relationship between government and religion in the education of our children." Grand Rapids School Dist. v. Ball, 473 U.S. 373, 383, 105 S.Ct. 3216, 3222, 87 L.Ed.2d 267 (1985); see also id. ("reaffirm[ing] that state action alleged to violate the Establishment Clause should be measured against the Lemon criteria"); Wallace v. Jaffree, 472 U.S. 38, 63, 105 S.Ct. 2479, 2493, 86 L.Ed.2d 29 (1985) (Powell, J., concurring) (extolling Lemon 's analytical usefulness in deciding constitutionality of silent prayer in public schools).

In Marsh, the Court upheld the Nebraska legislature's practice of paying a Christian chaplain to begin sessions with an invocation due to the historical acceptance of this practice since our ancestors declared independence from England. 463 U.S. at 792, 103 S.Ct. at 3336. But the Court has later said that

[s]uch a historical approach is not useful in determining the proper roles of church and state in public schools, since free public education was virtually nonexistent at the time the Constitution was adopted.

Edwards v. Aguillard, 482 U.S. 578, 583 n. 4, 107 S.Ct. 2573, 2577 n. 4, 96 L.Ed.2d 510 (1987).

3. Lemon Application

a. Purpose

Clear Creek satisfies Lemon 's first prong by showing that the Resolution has "a secular purpose." 403 U.S. at 612-13, 91 S.Ct. at 2111. Clear Creek's Trustees need not have enacted the Resolution in furtherance of exclusively secular objectives. Lynch v. Donnelly, 465 U.S. 668, 681 n. 6, 104 S.Ct. 1355, 1363 n. 6, 79 L.Ed.2d 604 (1984); accord Wallace, 472 U.S. at 56, 105 S.Ct. at 2489. Though, "[w]hile the Court is normally deferential to a State's articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham." Edwards, 482 U.S. at 586-87, 107 S.Ct. at 2579. ²

Clear Creek contends that it includes invocations in its graduation ceremonies to solemnize these occasions. Justice O'Connor recognizes that such "government acknowledgments of religion serve, in the only ways reasonably possible in our culture, the legitimate secular purpose[ ] of solemnizing public occasions." Lynch, 465 U.S. at 693, 104 S.Ct. at 1369 (O'Connor, J., concurring in the judgment); accord County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 109 S.Ct. 3086, 3102 n. 46, 106 L.Ed.2d 472 (1989); Stein, 822 F.2d at 1409; Weisman, 908 F.2d at 1095 (Bownes, J., concurring).

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