Kay By and Through Disselbrett v. David Douglas School Dist. No. 40

• Citation: 79 Or.App. 384,719 P.2d 875
• Decision Date: 21 May 1986
• Docket Number: A,No. 40,40
• Parties: , 32 Ed. Law Rep. 1121 Steven KAY; James M. Strieby; Wendy Deibele; Dora Epstein, By and Through her mother, Bette DISSELBRETT; and Bette Disselbrett, Respondents, Jill Takashima, Plaintiff, v. DAVID DOUGLAS SCHOOL DISTRICT NO. 40; Anthony Palermini, individually and as Superintendent of David Douglas School District; and Robert Reese; Don Larson; Ed Gustafson; Marge Andersen; Scott Rasmussen; James Olsen; and Ray Rankin; individually and as members of the Board of David Douglas School District, Appellants. A8404-02438; CA A32742.
• Court: Court of Appeals of Oregon

Page 875

719 P.2d 875

79 Or.App. 384, 32 Ed. Law Rep. 1121

Steven KAY; James M. Strieby; Wendy Deibele; Dora

Epstein, By and Through her mother, Bette

DISSELBRETT; and Bette Disselbrett, Respondents, Jill Takashima, Plaintiff, v. DAVID DOUGLAS SCHOOL DISTRICT NO. 40; Anthony Palermini,

individually and as Superintendent of David Douglas School

District No. 40; and Robert Reese; Don Larson; Ed

Gustafson; Marge Andersen; Scott Rasmussen; James Olsen;

and Ray Rankin; individually and as members of the Board of

David Douglas School District No. 40, Appellants.

A8404-02438; CA A32742.

Court of Appeals of Oregon.

Argued and Submitted April 19, 1985.

Decided May 21, 1986.

Robert L. Dressler, Portland, argued the cause for appellants. With him on the briefs was Dressler & Granata, Portland.

Charles F. Hinkle, Portland, argued the cause and filed the brief for respondents.

W.G. Kelly Clark and Robert LeChevallier, Portland, filed a brief amicus curiae for Christian Legal Society.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

BUTTLER, Presiding Judge.

In this action for declaratory and injunctive relief premised on the state and federal constitutions and 42 U.S.C. § 1983, defendants appeal from a judgment enjoining them from sponsoring, permitting or encouraging the inclusion of formal prayer in the invocation and benediction at the commencement exercises of the David Douglas High School class of 1984, and awarding attorney fees to plaintiffs. ¹ The trial court held that the inclusion of the proposed prayer would violate Article I, sections 2, 3, and 5 of the Oregon Constitution and the First Amendment to the United States Constitution. We hold that the inclusion of the invocation would have violated Article I, sections 2 and 5, of the Oregon Constitution, and affirm. ²

During the 1983-84 school year, plaintiffs Kay, Strieby, Deibele, and Epstein were seniors at David Douglas, expecting to be graduated with the class of 1984 and desiring to participate in the commencement to be held on May 23, 1984, at the Portland Civic Auditorium. Plaintiff Disselbrett is the mother of plaintiff Epstein and a taxpayer in the David Douglas school district.

Defendant Utz, principal of the high school since 1973, testified that, to his knowledge, the school always has had a prayer-like invocation at its commencement. He said that the purpose of the commencement ceremony is to honor seniors and not to promote religion. Defendant Reese, chairman of the David Douglas School District School Board, agreed with Utz that the purpose of the commencement is ceremonial rather than religious. He stated that the decision was made to include the religious invocation, because it is a traditional part of the ceremony and because a majority of those taxpayers who had spoken to him had expressed the desire to maintain that tradition. One hundred seventy-eight seniors signed a petition in support of the "traditional" ceremony.

The school district rented the Portland Civic Auditorium for the commencement at a rental of $1,450. The ceremony was planned by school personnel, on school time. The proposed program began with a processional march to "Pomp and Circumstance," followed by the flag salute and the invocation. Utz testified that the program was planned with the view of creating an atmosphere of dignity and solemnity and that the invocation is included for that purpose. He agreed that that objective could be accomplished by many other means that would not involve a religious invocation, such as an appropriate reading from Shakespeare, Tennyson or other writers.

In years past, members of the clergy had been invited to give the invocation; recently, however, the board had selected retired school teachers who were particularly close to students, or senior teachers. The invocation for 1984 was written by Mrs. Fredrickson, a counselor and teacher of advanced English, who was to deliver it. There is evidence that she was not restricted as to its content, ³ and the one that she prepared is very similar to those that had been used in the past.

Attendance at commencement is voluntary. Students need not be present to receive their diplomas or awards. However, it is a ceremony in which every student is entitled to participate fully, regardless of his or her religious faith or absence of religious faith. Some of the highest awards that a member of the senior class can receive are announced at the commencement.

Kay, valedictorian of his class, attended a school board meeting on April 19, 1984, at which he and two other students urged the board not to include a vocal prayer, but to include instead a moment of silence or an appropriate reading from literature. He suggested that those who wished a religious ceremony could hold a separate baccalaureate at an area church. The board rejected that proposal and adopted a resolution directing the superintendent and principal to "include an invocation, benediction and choral music appropriate to the occasion." It is agreed that the invocation written by Fredrickson was the invocation to be read at the ceremony, that it is a prayer and that its reading would be a religious activity.

This case was argued under the Oregon and federal constitutions. We consider the Oregon constitutional questions first. State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983). Plaintiffs contend that the inclusion of the religious invocation would have violated Article I, section 5, of the Oregon Constitution:

"No money shall be drawn from the treasury for the benefit of any religeous [sic ] or theological institution, nor shall any money be appropriated for the payment of any religeous [sic ] services in either house of the Legislative Assembly."

Defendants contend that no money was actually spent on the invocation, because the teacher who prepared and was scheduled to read it volunteered her time. The school district paid $1,450 from public funds to the city of Portland for use of the auditorium, and faculty time was devoted to the planning of the ceremony. The fact that money spent on the preparation and delivery of the invocation was not apportioned and identified as a "line item" in the budget does not take it out of the proscription of section 5, which prohibits the spending of any money for the benefit of any religious or theological institution. We need not decide whether the minimal expenditure of public funds, by itself, would have violated section 5, see Dickman et al v. School Dist. 62C et al, 232 Or. 238, 366 P.2d 533 (1961), cert. den. 371 U.S. 823, 83 S.Ct. 41, 9 L.Ed.2d 62 (1962), because we believe that the broader concept encompassed within that section of maintaining the wall of separation between church and state and of proscribing the establishment of religion would have been violated. We note, however, that section 5 expressly prohibits the appropriation of any money "for the payment of any religeous [sic ] services in either house of the Legislative Assembly."

The Supreme Court has interpreted section 5 as far more than a mere prohibition of direct government financial support of a specific church-related institution. In Lowe v. City of Eugene, 254 Or. 518, 451 P.2d 117, 459 P.2d 222, 463 P.2d 360 (1969), cert. den. 397 U.S. 1042, 90 S.Ct. 1366, 25 L.Ed.2d 654 (1970), the court held that the prohibition of section 5 applied to the city's permitting the maintenance of a Latin cross in a public park, even though no money had been spent by the city. The court reasoned that the display of the cross permitted "an inference of official endorsement of the general religious beliefs which underlie that symbol." 254 Or. at 544, 463 P.2d 360. It further stated, citing United States Supreme Court cases, that "the government has no business placing its power, prestige, or property at the disposal of private persons or groups either to aid or oppose any religion." 254 Or. at 545, 463 P.2d at 360.

Although the Oregon Constitution contains no specific "credal preference" or "establishment" clause, the court reasoned that "it is obvious that the founders of this state did not intend to permit the state to sponsor any particular religion." 254 Or. at 547, 463 P.2d at 360. For that reason, the court stated, Article I, section 5, was included in the Oregon Constitution. In holding that permitting the placing of a cross in a public place violated that provision, the court stated:

"It is not the emblem of a religious belief which is objectionable under the state and federal constitutions; it is the enlistment of the hand of government to erect the religious emblem which offends the constitutions." 254 Or. at 548, 463 P.2d at 360.

Both Lowe and Dickman illustrate that Article I, section 5, has been regarded as Oregon's Establishment Clause and has been treated as expressing the state's commitment to a separation of church and state.

Some years later, in considering the same cross in the same park under different facts, the Supreme Court once again addressed the application of the Oregon Constitution to the separation of church and state, particularly Article I, section 5. Eugene Sand & Gravel v. City of Eugene, 276 Or. 1007, 558 P.2d 338 (1976). ⁴ In determining the constitutionality of the city's conduct, the court adopted the three-part test established by the United States Supreme Court in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), for determining violations of the Establishment Clause of the First Amendment to the United States Constitution. The Court stated that religious activity engaged in by the government will violate the Oregon Constitution, unless (1) the conduct reflects a clearly secular purpose; (2) it has a primary effect (as distinguished from an "incidental" effect) that neither advances nor inhibits religion; and (3) it avoids excessive government entanglement with religion. Although the United States Supreme Court has departed from the three-part test in one "unique...