Weisman v. Lee

• Decision Date: 09 January 1990
• Docket Number: Civ. A. No. 89-0377B.
• Citation: 728 F. Supp. 68
• Parties: Daniel WEISMAN, personally and as next friend of Deborah Weisman v. Robert E. LEE, individually and as principal of the Nathan Bishop Middle School; Thomas Mezzanotte, individually and as principal of Classical High School; Joseph Almagno, individually and as Superintendent of the Providence School Department; Vincent McWilliams; Robert DeRobbio; Mary Batastini; Albert Lepore; Roosevelt Benton; Mary Smith Anthony Caprio; Bruce Sundlun and Roberto Gonzalez, individually and as members of the Providence School Committee.
• Court: U.S. District Court — District of Rhode Island

728 F. Supp. 68

Daniel WEISMAN, personally and as next friend of Deborah Weisman v. Robert E. LEE, individually and as principal of the Nathan Bishop Middle School; Thomas Mezzanotte, individually and as principal of Classical High School; Joseph Almagno, individually and as Superintendent of the Providence School Department; Vincent McWilliams; Robert DeRobbio; Mary Batastini; Albert Lepore; Roosevelt Benton; Mary Smith Anthony Caprio; Bruce Sundlun and Roberto Gonzalez, individually and as members of the Providence School Committee.

Civ. A. No. 89-0377B.

United States District Court, D. Rhode Island.

January 9, 1990.

Sandra A. Blanding, Revens & DeLuca, Ltd., Warwick, R.I., for plaintiffs.

Joseph A. Rotella, Providence, R.I., for defendants.

Amy Adelson, Lois Waldman, Marc D. Stern, Jeremy S. Garber, New York City, amicus curiae for American Jewish Congress.

OPINION

FRANCIS J. BOYLE, Chief Judge.

The issue presented is whether a benediction or invocation which invokes a deity delivered by clergy at an annual public school graduation ceremony violates the first amendment of the United States constitution. This Court finds that because a deity is invoked, the practice is unconstitutional under the Establishment Clause of the first amendment as construed by the United States Supreme Court.

I. FACTS¹

Each June, the Providence School Committee and Superintendent of Schools for the City of Providence sponsor graduation or promotion ceremonies in the city's public middle and high schools. The graduation ceremonies for high school students are generally held off school grounds, usually at Veterans Memorial Auditorium, which the Providence School Department rents for the occasion. Other sites have also been used. Middle school promotion ceremonies usually take place on school property, at the schools themselves.

The Providence School Committee and the Superintendent permit public school principals to include invocations and benedictions, delivered by clergy, in the graduation and promotion ceremonies. Over the past five or six years, most, but not all, of the public school graduation and promotion ceremonies have included invocations and benedictions. The practice has in fact been followed for many years.

The Assistant Superintendent of Schools has distributed to school principals a pamphlet entitled "Guidelines for Civic Occasions" as a guideline for the type of prayers to be used at the ceremonies. The pamphlet is prepared by the National Conference of Christians and Jews, a national organization with an office in Providence. The guidelines suggest methods of composing "public prayer in a pluralistic society," stressing "inclusiveness and sensitivity" in the structuring of non-sectarian prayer. The guidelines do not suggest the elimination of reference to a deity as appropriate.

Plaintiff Daniel Weisman's daughter, Deborah, was to graduate from Nathan Bishop Middle School, a public junior high school in Providence, in June of 1989. The ceremony was planned by two teachers from the school, and was to be held on the school grounds. Part of the program for that day included an invocation and benediction delivered by Rabbi Leslie Gutterman of the Temple Beth El of Providence. Four days before the ceremony was to take place, Plaintiff filed a motion for a temporary restraining order seeking to prevent the inclusion of prayer to a deity in the form of an invocation and benediction in the Providence public schools' graduation ceremonies. The day before the ceremony, this Court denied the Plaintiff's motion, essentially because the Court was not afforded adequate time to consider the important issues of the case.

On June 20, 1989, Deborah Weisman and her family attended the graduation ceremony for Deborah's class at Bishop Middle School. The principal of the school, Robert E. Lee, had received the "Guidelines for Civic Occasions" pamphlet from the Assistant Superintendent of Schools, and provided Rabbi Gutterman with a copy of the guidelines. Mr. Lee also spoke to Rabbi Gutterman to advise him that any prayers delivered at the ceremonies should be nonsectarian. Rabbi Gutterman was not told that he could not appeal to a deity.

Rabbi Gutterman began his invocation by addressing a deity in the first line of his text, and concluded with "Amen."² The benediction similarly opened with an appeal to a God, asked God's blessings, gave thanks to a Lord, and concluded with "Amen."³ The parties agree that Rabbi Gutterman's invocation and benediction were prayers.⁴

Deborah Weisman continues to attend public school in the city of Providence. She is now a freshman at Classical High School in Providence. Plaintiff now seeks a permanent injunction to prevent the inclusion of invocations and benedictions in the form of prayer in the promotion and graduation ceremonies of the Providence public schools. Plaintiff's amended complaint names Principal Lee, the superintendent of Providence public schools, the principal of Classical High School, and the members of the Providence School Committee as defendants.

The parties agree resolution of the case is governed by the first amendment of the United States Constitution, specifically the Establishment Clause.⁵ It is to that law that we now turn.

II. THE ESTABLISHMENT CLAUSE

"The Supreme Court has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools." Edwards v. Aguillard, 482 U.S. 578, 583-84, 107 S.Ct. 2573, 2577, 96 L.Ed.2d 510 (1987). Since the landmark 1962 decision of Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962), the Supreme Court has steadfastly required that the schoolchildren of America not be compelled, coerced, or subtly pressured to engage in activities whose predominant purpose or effect was to advance one set of religious beliefs over another, or to prefer a set of religious beliefs over no religion at all.⁶ God has been ruled out of public education as an instrument of inspiration or consolation.

This vigilance is based upon the perceived sensitive nature of the school environment and the apprehended effect of state-led religious activity on young, impressionable minds. Grand Rapids School District v. Ball, 473 U.S. 373, 383, 105 S.Ct. 3216, 3222, 87 L.Ed.2d 267 (1985); Edwards, 482 U.S. at 584, 107 S.Ct. at 2577. "Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family." Edwards, 482 U.S. at 584, 107 S.Ct. at 2577.

Under the Establishment Clause, the Court has struck down state statutes that required a daily Bible reading before class (Abington School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963)), or required that a copy of the Ten Commandments be posted in every classroom (Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980)), or required the recitation of a "denominationally neutral" prayer at the beginning of the school day (Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962)), or statutes which authorized a daily moment of silence expressly for prayer (Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985)). In virtually all of these cases, the Court acknowledged that while "we are a religious people whose institutions presuppose a Supreme Being," (Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 684, 96 L.Ed. 954 (1952)), the Establishment Clause of the first amendment was intended to prevent a State from becoming involved in leading its citizens, however young, in appeals to or adoration of a deity.

The Supreme Court "consistently has applied the three-pronged test of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) to determine whether a particular state action violates the Establishment Clause of the Constitution." Edwards, 482 U.S. at 597, 107 S.Ct. at 2584 (Powell, J. concurring); Grand Rapids School District, 473 U.S. at 383, 105 S.Ct. at 3222 (1985) ("We have particularly relied on Lemon in every case involving the sensitive relationship between government and religion in the education of our children"). An evaluation of the authorized practice of the Providence School Committee under the Lemon test is necessary, "mindful of the particular concerns that arise in the context of public elementary and secondary schools." Edwards, 482 U.S. at 585, 107 S.Ct. at 2578.

III. THE LEMON TEST

The Lemon test reviews governmental actions using three prongs: "First, the practice must have a secular ... purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; third, the practice must not foster `an excessive entanglement with religion.'" Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971) (citations omitted). "State action violates the Establishment Clause if it fails to satisfy any of these prongs." Edwards, 482 U.S. at 583, 107 S.Ct. at 2577.

The second prong of the Lemon analysis examines whether the effect of the action violates the Establishment Clause. It is here that the invocation and benediction practice runs afoul of the first amendment. Because this Court finds that the Providence School Committee's practice fails to meet constitutional scrutiny under the second prong of the Lemon test, it is not necessary to discuss the first and third parts of the test.

The Second Lemon Prong: Principal Effect Must Neither Advance Nor Inhibit Religion

One method of determining whether a state action advances or inhibits religion is to determine whether the action creates an identification of the state with a religion, or with religion in general. "Government promotes religion as effectively when it fosters a close identification of its powers and responsibilities with those of any—or all—...