Doe v. Santa Fe Independent School Dist.

Page 806

168 F.3d 806

132 Ed. Law Rep. 687

Jane DOE, Individually and as next of friend for her minor children, Jane and John Doe, Minor Children; Jane Doe # 2 Individually and as next of friend for her minor child, John Doe, Minor Child, and John Doe, Individually Plaintiffs-Appellees-Cross Appellants, v. SANTA FE INDEPENDENT SCHOOL DISTRICT, et al., Defendants Santa Fe Independent School District Defendant-Appellant-Cross Appellee.

No. 97-40150.

United States Court of Appeals, Fifth Circuit.

Feb. 26, 1999.

Anthony P. Griffin, Debora L. Perkey, Galveston, TX, for Plaintiffs-Appellees-Cross Appellants.

Lisa A. Brown, Kelly C. Frels, Reagan D. Pratt, Bracewell & Patterson, Houston, TX, for Defendant-Appellant-Cross Appellee.

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

Before JOLLY, WIENER and STEWART, Circuit Judges.

WIENER, Circuit Judge:

In Jones v. Clear Creek Independent School District, 977 F.2d 963 (5th Cir.1992) (Clear Creek II ), we declared Clear Creek's policy of allowing a student-selected, student-given, nonsectarian, nonproselytizing invocation and benediction at high school graduations ("Clear Creek Prayer Policy") not violative of the Establishment Clause of the First Amendment to the United States Constitution. The primary questions posed by this case are: (1) whether the constitutionality of a Clear Creek Prayer Policy depends on its "nonsectarian, nonproselytizing," features, and (2) whether the venue of a Clear Creek Prayer Policy may be extended to high school football games without violating the applicable provisions of the Constitution of the United States. For the reasons that follow, we hold that (1) a public school prayer policy that, unlike a Clear Creek Prayer Policy, permits sectarian, proselytizing benedictions and invocations cannot pass constitutional muster, and (2) extending a Clear Creek Prayer Policy to cover messages delivered before a high school football games violates the Constitution even if such a policy includes the "nonsectarian, nonproselytizing" restrictions.

I FACTS AND PROCEEDINGS

Santa Fe Independent School District ("SFISD") is a political subdivision of the State of Texas, and is governed by an elected, seven-person Board of Trustees. As its name suggests, SFISD is responsible for overseeing the public educational programs and facilities of a small community in south Texas. In performing this role, SFISD supervises over 4,000 students each of whom attends one of five schools--two primary schools, one intermediate school, one junior high school, and one high school. The plaintiffs in this action (the "Does") are several children currently or formerly enrolled in SFISD schools and their parents. In light of the sensitive nature of the action, they have been allowed to proceed anonymously. ¹

For some time prior to the onset of this litigation, the Does believed that SFISD was pursuing policies that were in contravention of the Establishment Clause. The evidence that the Does were able to accumulate covered a wide variety of disturbing incidents and practices, but for purposes of illustration we focus on the following two items. ²

First, in April 1993, while plaintiff Jane Doe II was attending her seventh grade Texas History class, her teacher, David Wilson, handed out fliers advertising a Baptist religious revival. Jane Doe II asked if non-Baptists were invited to attend, prompting Wilson to inquire about her religious affiliation. On hearing that she was an adherent of the Church of Jesus Christ of Latter Day Saints (Mormon), Wilson launched into a diatribe about the non-Christian, cult-like nature of Mormonism, and its general evils. Wilson's comments inspired further discussion among Jane Doe II's classmates, some of whom reportedly noted that "[h]e sure does make it sound evil," and "[g]ee, ... it's kind of like the KKK, isn't it?" Jane Doe II was understandably upset by this incident, and two days later, her mother, Jane Doe I, complained to SFISD. Because Wilson's actions were concededly contrary to written SFISD policies barring the distribution of religious literature in class or the verbal abuse of any student, he was given a written reprimand and directed to apologize to the Does and to his class.

Second, and of greatest significance to this case, for an undisclosed period of time leading up to and including the 1992-93 and 1993-94 school years, SFISD allowed students to read overtly Christian prayers from the stage at graduation ceremonies and over the public address system at home football games. ³ The prayers were delivered as "invocations" or "benedictions" for these events, and typically were given by officers of the student council. ⁴ Of course, SFISD maintained complete control over the programs and facilities during the reading of the prayers, including the ability to mute the microphone or remove the speaker. Furthermore, the text of the graduation invocations and benedictions was screened by SFISD for content prior to the ceremony.

With regard to the football games, it is undisputed that no written policy governing the invocations existed prior to the onset of litigation in this case. With regard to graduation, SFISD did draft a written policy (the "June Policy"), but only in time for the 1994 ceremony. It read as follows:

The Board shall not permit clergymen to deliver invocations or benedictions at promotional and graduation ceremonies for secondary schools; nor shall school officials direct the performance of a formal religious exercise at such ceremonies. Lee et al. v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) [See also EMI]

Dated June 17, 1993

After the 1994 graduation ceremony, but before the onset of the instant litigation, SFISD amended its graduation policy (the "October Policy") to reflect more closely its interpretation of our decision in Clear Creek II:

The Board shall not permit clergymen to deliver invocations or benedictions at promotional and graduation ceremonies for secondary schools; nor shall school officials direct the performance of a formal religious exercise at such ceremonies. Lee et al. v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) [See also EMI (LEGAL) ]

The Board may permit the graduating senior class(es), with the advice and counsel of the senior class sponsor, to elect to choose student volunteers to deliver nonsectarian, nonproselytizing invocations and benedictions for the purpose of solemnizing their graduation ceremonies. Jones v. Clear Creek ISD, 977 F.2d 963 (5th Cir.1992), cert. denied, 508 U.S. 967, 113 S.Ct. 2950, 124 L.Ed.2d 697 (1993).

Dated October 20, 1994

In April 1995, the Does filed suit against SFISD in the Federal District Court for the Southern District of Texas. ⁵ Citing the instances described above and others, they alleged that SFISD maintains policies and practices in violation of the Establishment Clause. They demanded prospective injunctive and declaratory relief in addition to money damages under 42 U.S.C. § 1983.

In the following month, acting in response to the Does' motion for a temporary restraining order regarding the imminent 1995 graduation ceremonies, the district court ruled that, consistent with SFISD's October Policy and our decision in Clear Creek II, student-selected, student-given, nonsectarian, nonproselytizing invocations and benedictions would be permitted, and that such invocations and benedictions could take the form of a "nondenominational prayer." Although cautioning that SFISD should play no role in selecting the students or scrutinizing and approving the content of the invocations and benedictions, the district court went on to note gratuitously that "generic prayers to the 'Almighty', or to 'God', or to 'Our Heavenly Father (or Mother)', or the like, will of course be permitted. Reference to any particular deity, by name, such as Mohammed, Jesus, Buddha, or the like, will likewise be permitted, as long as the general thrust of the prayer is non-proselytizing, as required by [Clear Creek II ]." ⁶ In anticipation of addressing the central issues of the case, the trial court also admonished that SFISD would in due course be directed to clarify a number of its Establishment Clause policies, and, in particular, "to establish or to clarify existing policies to deal with either banning all prayer, or firmly establishing reasonable guidelines to allow nonsectarian and non-proselytizing prayer at all relevant school functions."

As an initial and, by its own admission, "emergency" response to the court's order, prior to the 1995 graduation, SFISD made a few changes (the "May Policy") to its pre-litigation October Policy:

The Board has chosen to permit the graduating senior class, with the advice and counsel of the senior class principal or designee, to elect by secret ballot to choose whether an invocation and benediction shall be a part of the graduation exercise. If so chosen the class shall elect by secret ballot, from a list of student volunteers, students to deliver nonsectarian, nonproselytizing invocations and benedictions for the purpose of solemnizing their graduation ceremonies. Jones v. Clear Creek ISD, 977 F.2d 963 (5th Cir.1992) cert. denied 508 U.S. 967, 113 S.Ct. 2950, 124 L.Ed.2d 697 (1993).

Dated May 23, 1995

By July, SFISD apparently had a chance to conduct a more thorough review of its fundamental position on graduation invocations and benedictions. At this point, the May Policy was superseded by a new and, for purposes of this appeal, final version (the "July Policy"):

The Board has chosen to permit the graduating senior class, with the advice and counsel of the senior class principal or designee, to elect by secret ballot to choose whether an invocation and benediction shall be a part of the graduation exercise. If so chosen, the class shall elect by secret ballot, from a list of student volunteers, students to deliver invocations and...