Tanford v. Brand

883 F. Supp. 1231

James Alexander TANFORD, Kimberly J. MacDonald, and David Suess, Plaintiffs, v. Dr. Myles BRAND, in his individual and official capacities as President of Indiana University, and Dr. Kenneth R.R. Gros Louis, in his official capacities as Vice President and Chancellor of Indiana University at Bloomington, Defendants.

No. IP 95-492 C B/S.

United States District Court, S.D. Indiana, Indianapolis Division.

May 4, 1995.

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Richard A. Waples, Cheri A. Harris, Indiana Civ. Liberties Union, Indianapolis, IN, for plaintiffs.

Dorothy J. Frapwell, Michael A. Klein, Indiana University, Bloomington, IN, Robert P. Johnstone, Stanley C. Fickle, David E. Kirtley, Barnes & Thornburg, Indianapolis, IN, for defendants.

BARKER, Chief Judge.

Today we must answer a question explicitly left open by the Supreme Court in Lee v. Weisman, ___ U.S. ___, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) — namely, whether a member of the clergy may offer prayers as part of a public university's graduation ceremony consistent with the Establishment Clause of the United States Constitution. Because Plaintiffs failed to demonstrate a likelihood of their succeeding on the merits, we deny their motion for preliminary injunctive relief.

I. FACTUAL BACKGROUND

Given the accelerated pace of this suit, the underlying facts are still somewhat under-developed. However, the following facts are largely undisputed. Plaintiffs James Alexander Tanford, Kimberly MacDonald and David Suess are, respectively, a tenured law professor and two students¹ enrolled in Indiana University ("IU") law school at Bloomington, Indiana. Defendant Myles Brand is the President of the University and defendant Kenneth R.R. Gros Louis is the Vice President and Chancellor of the University's Bloomington campus. The University is a state institution.

For over 150 years, the University has invited clergy to give an invocation and a benediction as part of its official graduation ceremonies. These prayers are typically recited by ordained ministers of mainstream religious denominations, selected from religious leaders active in the university community. Usually, if not always, the prayers include a reference to a deity. During the ceremony, the cleric is introduced, and the audience is directed to stand during the prayers. The cleric, wearing university regalia (cap and gown) also sits on the dais with the University president and other University officials throughout the commencement ceremony.

The graduation ceremonies are held on University grounds. This year's university-wide ceremony is scheduled to begin at 10:00 A.M. on Saturday, May 6, in the football stadium. Based on past years' experience, the University expects approximately 30,000 people in attendance. There are 7,400 students on the Bloomington campus who are eligible for commencement. The University expects 5,000 of these graduating students to participate, along with their family and friends. Between 15% to 55% of graduating law students are expected to participate in the university-wide ceremony.

As part of the commencement activities, the School of Law conducts a second, smaller ceremony only for its graduates later in the day in the IU auditorium. At this ceremony, the University recognizes each of its graduates individually by calling their names and having them walk across the stage to receive their law degrees. Based on past experience, the law school expects 75% to 90% of graduating law students to participate. The law school ceremony does not include an invocation or benediction.

As part of their duties at the law school, professors are requested² from time to time and on a rotating basis to attend the university-wide ceremony in order to assist in the presentation of academic hoods to law school graduates. Although he has attended the ceremony only once during his fifteen years as a member of the IU faculty, Professor Tanford has agreed to attend this year's upcoming commencement. Neither at the university-wide commencement, nor the more intimate law school ceremony, are the two student plaintiffs subject to formal requirements to attend.

On April 18, 1995, Plaintiffs filed the instant suit seeking a preliminary injunction to enjoin the use of an invocation and benediction as part of IU's university-wide graduation ceremony. Their one count complaint alleges that IU's practice of including an invocation and benediction as part of its official graduation exercises violates the Establishment Clause of the First Amendment to the United States Constitution.

II. STANDING

Article III of the Constitution limits the power of this court to resolving cases and controversies. The doctrine of standing "is an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). At a minimum, standing requires that the plaintiff suffer an "injury in fact" that is fairly traceable to the challenged action of the defendant and the injury is likely to be redressed by a favorable decision. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982).

An "injury in fact" is an invasion of a legally-protected interest which is concrete and particularized, not conjectural or hypothetical. Doe v. County of Montgomery, 41 F.3d 1156, 1159 (7th Cir.1994). Significantly,

a plaintiff who fails to identify any personal injury suffered as a consequence of the alleged constitutional error, "other than the psychological consequence presumably produced by observation of conduct with which one disagrees," has no standing under Article III.

Id. Anything more than a psychological injury, however, is generally enough to confer standing. Indeed, when First Amendment rights are implicated, "an identifiable trifle is enough for standing to fight out a question of principle; the trifle is the basis for standing and the principle supplies the motivation." United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n. 14, 93 S.Ct. 2405, 2417 n. 14, 37 L.Ed.2d 254 (1973) quoted in Doe, 41 F.3d at 1159.

In light of this broad language, we fear in this context that the law of standing has taken on an almost metaphysical quality. One wonders how anyone can reliably and properly determine that the meaning and significance of standing if it is satisfied by an "identifiable trifle." Yet even under such an expansive interpretation, standing poses a significant obstacle to Plaintiffs' case.

Plaintiff David Suess, for example, is a twenty-eight year old student currently completing his first year of law school. He is not scheduled to graduate until May of 1997. He has been invited to commencement activities by some graduating friends and feels that, should he attend, the invocation and benediction will make him feel uncomfortable. We emphasize the uncertainty of his attendance because Mr. Suess has not yet decided whether he will attend the university-wide commencement. When asked in a deposition whether he would attend the university-wide commencement (the subject of this lawsuit) or the smaller law school ceremony later that day (which does not include an invocation or benediction), he replied: "Definitely the law school ceremony and quite possibly the commencement." (Suess Dep. at p. 32) (emphasis added). But it depends "partially on how things go with this and schedule conflicts." (Id. at p. 32).

From this admission, it is clear that Mr. Suess has no stake in this litigation. If he decides to stay home and miss the campus-wide ceremony, then he will simply have no "direct and unwelcome exposure to a religious message." Doe, 41 F.3d at 1159. If he decides to attend, he is no more than an observer with nothing at stake in the ceremony besides the "psychological consequence presumably produced by observation of conduct with which one disagrees." Valley Forge, 454 U.S. at 485, 102 S.Ct. at 765. Either way, Suess's alleged injury is even more theoretical than the interests found insufficient to confer standing in Freedom From Religion Foundation, Inc. v. Zielke, 845 F.2d 1463 (7th Cir.1988). In that case, the Seventh Circuit considered whether the plaintiffs had standing to challenge the constitutionality of a monument of the Ten Commandments in a city park. Because the plaintiffs did not alter their behavior as a result of the monument and failed to demonstrate that they were exposed to the monument during their normal routines or in the course of their usual driving or walking routes, the court affirmed the district court's dismissal for lack of standing. Id. at 1468-69. Thus, because Mr. Suess cannot demonstrate that he will be exposed to an unwelcome religious exercise, he lacks standing and is hereby dismissed.

Plaintiff James Tanford's stake, by contrast, falls squarely in the category of a "trifle," but apparently that suffices under current constitutional interpretations. As a tenured professor at the law school, Tanford states he is "obligated" to attend the university-wide commencement exercises, or at least the "hooding" portions of the ceremony, once every few years. He admits, however, that this obligation is not externally imposed in any way. Indeed, when asked by the Dean to "volunteer" for this duty in the past, Tanford has successfully avoided it; he has only attended the ceremony once in his fifteen years as a member of the law school faculty, and there has never been any threat of discipline as a result of not participating. Nevertheless, Professor Tanford unequivocally states that he plans to attend this year. Moreover, because he is a faculty member, his connection to the ceremony and his stake in its constitutionality are more direct than the ephemeral injustice that Plaintiffs contend will allegedly be suffered by Mr....