Jager v. Douglas County School Dist., s. 87-8522

Page 824

862 F.2d 824

98 A.L.R.Fed. 175, 50 Ed. Law Rep. 694

Doug JAGER and William Jager, Plaintiffs-Appellants, Cross-Appellees, v. DOUGLAS COUNTY SCHOOL DISTRICT, et al.,

Defendants-Appellees, Cross-Appellants.

Doug JAGER, William Jager, Plaintiffs-Appellees, Cross-Appellants, v. DOUGLAS COUNTY SCHOOL DISTRICT, Douglas County Board of

Education, Defendants- Appellants, Cross-Appellees.

Nos. 87-8522, 87-8719.

United States Court of Appeals Eleventh Circuit.

Jan. 3, 1989.

Jeffrey O. Bramlett, Bondurant, Mixson & Elmore, Carolyn R. Gorwitz, Ralph Goldberg, Atlanta, Ga., for Jager.

Frank C. Jones, King & Spalding, Gary J. Toman, Stephanie E. Parker, Atlanta, Ga., Clifton & Helms, Marshall L. Helms, Jr., Lithia, Springs, Ga., for Douglas County School Dist.

Appeal from the United States District Court for the Northern District of Georgia.

Before RONEY, Chief Judge, JOHNSON, Circuit Judge, and PECK ^*, Senior Circuit Judge.

JOHNSON, Circuit Judge:

This case involves invocations which are delivered prior to public high school football games in Douglas County, Georgia. These football games are school-sponsored activities which are played at a stadium owned by the school system. The schools furnish the equipment used by the participants, and the coaches who supervise these activities are employed by the school system. Taxpayer funds are used to pay the operating costs for the stadium lights and public address system. We hold that the practice of beginning these games with an invocation violates the Establishment Clause of the First Amendment.

I. FACTS

In the fall of 1985, Doug Jager, then a member of the Douglas County High School marching band, ¹ objected to his school principal about the practice of having pregame invocations delivered at home football games. ² The invocations often opened with the words "let us bow our heads" or "let us pray" and frequently invoked reference to Jesus Christ or closed with the words "in Jesus' name we pray." These invocations conflict with the Jagers' sincerely held religious beliefs. ³ The Douglas County High School principal informed the band director of Doug Jager's objections to the prayers. The band director proceeded to lecture Doug on Christianity.

On June 2, 1986, Douglas County School Superintendent Kathryn Shehane, the school system attorney, the Jagers and their counsel, and Reverends Jamie E. Jenkins and Donald Mountain of the Douglas County Ministerial Association ("DCMA") met and discussed two alternative proposals for modifying the invocation practices: an inspirational wholly secular speech and an "equal access" plan that would retain some religious content. The Jagers rejected the equal access approach, and notified the school system attorney that the secular inspirational speech was the only feasible alternative to the invocation practice. Upon the Jagers' rejection of the equal access plan, Reverends Jenkins and Mountain drafted a compromise proposal. The stated purpose of the alternative draft was to "perpetuate and regulate the traditional invocation as part of the opening ceremonies of school athletic events." R1-24-16. In August 1986, the plaintiffs agreed to reconsider the Jenkins/Mountain version of the equal access plan if prayers voluntarily ceased at football games in the interim.

In September 1986, Superintendent Shehane met with the principals of Douglas County high schools. The group decided to proceed with pregame invocations pursuant to the equal access plan. On September 15, 1986, the high school principals informed their schools that the equal access plan, which the district court found to be coextensive with the Jenkins/Mountain plan, would govern future games, including those scheduled for September 26, 1986. ⁴

Under the terms of the equal access plan, all school clubs and organizations can designate club members to give invocations, and any student, parent or school staff member can seek to deliver an invocation. The plan specifies that the student government will randomly select the invocation speaker, and no ministers will be involved in selecting invocation speakers or in delivering invocations. In addition, the schools will not monitor the content of the invocations. ⁵

On September 19, 1986, the Jagers filed a complaint in the United States District Court for the Northern District of Georgia. The district court issued a temporary restraining order enjoining the Douglas County School District ("the School District") from conducting or permitting religious invocations prior to any athletic event at the school stadium.

The case was tried to the district court in November 1986. On February 3, 1987, the district court (1) declared the pregame invocations unconstitutional, (2) denied the Jagers' request for a permanent injunction, (3) rejected the Jagers' claim based on the Free Exercise of Religion Clause of the First Amendment, ⁶ and (4) rejected the Jagers' claim that the School District violated the Georgia Constitution.

After the School District filed a Motion for Clarification, the district court entered an additional order in which it held that the equal access plan was constitutional on its face and did not violate the Establishment Clause. The court expressly declined to determine whether the equal access plan was unconstitutional as applied. The district court denied the Jagers' request for declaratory and injunctive relief relating to the equal access plan.

On June 2, 1987, the district court determined that the Jagers were "prevailing parties" under 42 U.S.C.A. Sec. 1988 and thus were entitled to attorneys' fees. On August 31, 1987, the district court awarded attorneys' fees, after decreasing the amount sought by the Jagers by 25%. The appeals and cross-appeals from the district court's orders on the merits and on the question of attorneys' fees were then consolidated.

II. DISCUSSION

A. Equal Access Plan's Facial Validity

The district court held that the equal access plan, which involves the random selection of an invocation speaker, was constitutional on its face. The Jagers challenge this holding on appeal.

The Establishment Clause of the First Amendment forbids the enactment of any law or practice "respecting an establishment of religion." ⁷ U.S. Const. Amend. I. The religion clauses of the First Amendment require that states "pursue a course of complete neutrality toward religion." Wallace v. Jaffree, 472 U.S. 38, 60, 105 S.Ct. 2479, 2491, 86 L.Ed.2d 29 (1985) ("Jaffree II "). To determine whether state action embodies the neutrality that comports with the Establishment Clause, this Court must apply a three-pronged analysis. See Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). We must ask whether (1) the Douglas County School Superintendent and the school principals had a secular purpose for adopting the equal access plan, (2) the plan's primary effect is one that neither advances nor inhibits religion, and (3) the plan does not result in an excessive entanglement of government with religion. Id. at 612-13, 91 S.Ct. at 2111. State action violates the Establishment Clause if it fails to meet any of these three criteria. Edwards v. Aguillard, 482 U.S. 578, 107 S.Ct. 2573, 2577, 96 L.Ed.2d 510 (1987).

The School District argues that the Lemon test does not apply here. Instead, the School District contends that Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), provides the standard for determining whether the equal access plan violates the Establishment Clause. In Marsh, the Supreme Court upheld Nebraska's practice of commencing state legislative sessions with a prayer delivered by a chaplain employed by the state. In refusing to declare Nebraska's legislative invocation unconstitutional, the Court relied on the "unique history" associated with the practice of opening legislative sessions with a prayer. Id. at 791, 103 S.Ct. at 3335-36. The practice existed at the time of the adoption of the First Amendment and had continued in many states to the present. See id. at 792, 103 S.Ct. at 3336 ("In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society."). Since the Continental Congress and the First Congress opened their sessions with prayers, the Marsh Court concluded that the drafters of the Establishment Clause undoubtedly perceived no threat from legislative prayer and did not intend to prohibit legislative invocations. Id. at 791, 103 S.Ct. at 3335-36.

Because Marsh was based on more than 200 years of the "unique history" of legislative invocations, it has no application to the case at bar. The instant case involves the "special context of the public elementary and secondary school system," Edwards, 107 S.Ct. at 2577, in which the Supreme Court "has been particularly vigilant in monitoring compliance with the Establishment Clause." Id. As the Supreme Court recently explained:

[t]he Lemon test has been applied in all cases since its adoption in 1971, except in Marsh v. Chambers, where the Court held that the Nebraska legislature's practice of opening a session with a prayer by a chaplain paid by the State did not violate the Establishment Clause. The Court based its conclusion in that case on the historical acceptance of the practice. Such 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, 107 S.Ct. at 2577 n. 4 (citations omitted). ⁸ Similarly, the present case does not lend itself to Marsh 's historical approach because invocations at school-sponsored football games were nonexistent when the Constitution was adopted. Therefore, the Lemon test guides this Court's analysis in the case at bar. ⁹

1. Secular Purpose

The first prong of the Lemon test...