Doe v. School Board of Ouachita Parish

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 00-30874

JANE DOE, on behalf of David Doe,

Plaintiff-Appellee,

VERSUS

SCHOOL BOARD OF OUACHITA PARISH; ET AL

Defendants,

MURPHY J. FOSTER, III, in his official capacity as Governor of

Louisiana, also known as Mike Foster

Defendant-Appellant,

---------------------------

SUSAN DOE, on behalf of Janet Doe;

JOHN DOE, on behalf of Janet Doe,

Plaintiffs-Appellees,

VERSUS

MURPHY J. FOSTER, III, Etc; ET AL,

Defendants,

MURPHY J. FOSTER, III, in his official capacity as

Governor of Louisiana,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

December 11, 2001

Before KING, Chief Judge, DUHE’, and BENAVIDES, Circuit Judges.

DUHÉ, Circuit Judge:

Murphy J. Foster, III (“Foster”), in his capacity as Governor

of Louisiana, appeals the district court’s grant of summary

judgment in favor of plaintiffs-appellees, and declaratory judgment

that La. R. S. § 17:2115(A), La. Rev. Stat. § 17:2115(A) (West

1999), (“the statute”) violates the Establishment Clause of the

First Amendment to the Constitution of the United States, U.S.

Const. amend. I, (“Establishment Clause”). We find that the statute

violates the purpose prong of the Lemon test, Lemon v. Kurtzman,

403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971), and under

Wallace v. Jaffree, 472 U.S. 38, 105 S. Ct. 2479, 86 L. Ed. 2d 29

(1985), must be struck down without further inquiry. We therefore

AFFIRM the decision of the district court.

FACTUAL AND PROCEDURAL BACKGROUND

As originally enacted in 1976, La. R. S. § 17:2115 required

local school boards and parishes to permit school authorities to

allow students and teachers to observe a “brief time in silent

meditation” at the beginning of each school day. La. Rev. Stat. §

17:2115 (West 1976). In 1992 the provision, which had been

renumbered as La. R. S. § 17:2115(A), was amended to allow

observance of a “brief time in silent prayer or meditation”. La.

Rev. Stat. § 17:2115(A) (West 1992) (emphasis added). In 1999 the

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Louisiana legislature passed, and Foster signed into law, an

amendment deleting the word “silent” from the statute, so that it

now reads:

Each parish and city school board in the state shall permit

the proper school authorities of each school within its

jurisdiction to allow an opportunity, at the start of each

school day, for those students and teachers desiring to do so

to observe a brief time in prayer or meditation.

La. Rev. Stat. § 17:2115(A) (West 1999).

Plaintiffs-appellees are Ouachita Parish schoolchildren and

their parents. They sought a declaration that the amended statute

is unconstitutional, and an injunction ending the practice of

verbal prayer at their schools. In its ruling on cross-motions for

summary judgment, the district court found the statute

unconstitutional, and granted plaintiffs-appellees’ motion in part.

Foster challenges this decision on appeal.1

STANDING

Article III of the United States Constitution (“Article III”)

grants the federal courts jurisdiction over claims between

plaintiffs and defendants only if they present a “case or

controversy.” This ensures that the power granted to the federal

1

The district court did not grant the sought-after injunctive

relief. However, on the basis of the constitutional ruling, the

Ouachita Parish School Board (“School Board”) agreed by Court Order

(“Order”) to cease the practice of verbal prayer in the schools

“[u]ntil such time as the Court’s ruling on the constitutionality

of La. R. S. § 17:2115(A) becomes final.” The Order will become

final if the district court’s decision striking down the statute is

affirmed here. All that is before us is the district court’s

declaratory judgment that the statute is unconstitutional.

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courts “is not an unconditioned authority to determine the

constitutionality of legislative or executive acts.” Valley Forge

Christian Coll. v. Ams. United for Separation of Church and State,

454 U.S. 464, 471, 102 S. Ct. 752, 758, 70 L. Ed. 2d 700 (1982).

In order to establish a case or controversy sufficient to give

a federal court jurisdiction over their claims, plaintiffs must

satisfy three criteria. See Lujan v. Defenders of Wildlife, 504

U.S. 555, 560, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992).

First, they must show they have suffered or are about to suffer an

“injury in fact.” Second, “there must be a causal connection

between the injury and the conduct complained of.” Third, “it must

be likely, as opposed to merely speculative, that the injury will

be redressed by a favorable decision.” Id. (internal citations

omitted). If any one of these elements – injury, causation, or

redressability – is absent, plaintiffs have no standing in federal

court under Article III to assert their claims.

In the case at bar, defendant Foster neglected to raise

standing in district court, and the district court did not address

it in its ruling. Foster also failed to brief standing to this

court, and waited to raise it without any notice first in oral

argument. This is not the first time the Louisiana Attorney

General’s office as a defendant has raised standing at oral

argument without any notice to a panel of this court. We cannot

overstate our displeasure with this backdoor litigation tactic.

However, because standing is a jurisdictional question, see Flast

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v. Cohen, 392 U.S. 83, 94-101, 88 S. Ct. 1942, 1949-53, 20 L. Ed.

2d 947 (1968), we must decide the issue. See also Fed. R. Civ. P.

12(h)(3).

Defendant’s claim that plaintiffs lack standing is entirely

without merit. The first prong of the Lujan test is “injury in

fact”. Impairments to constitutional rights are generally deemed

adequate to support a finding of “injury” for purposes of standing.

See Laird v. Tatum, 408 U.S. 1, 92 S. Ct. 2318, 33 L. Ed. 2d 154

(1972). This court held earlier this year that plaintiffs have

standing to assert that their use or enjoyment of a public facility

is impaired by an alleged violation of the Establishment Clause.

See Doe v. Beaumont Indep. Sch. Dist., 240 F.3d 462, 466 (5th Cir.

2001). The case for standing is made stronger when the plaintiffs

are students and parents of students attending public schools, who

enjoy a cluster of rights vis-a-vis their schools, and thus are not

merely “concerned bystanders.” Id at 466-67. Moreover, the Supreme

Court has repeatedly recognized the right of children and their

parents to receive public education that is compliant with the

Establishment Clause. See Sch. Dist. of Abington Township v.

Schempp, 374 U.S. 203, 224 n.9, 83 S. Ct. 1560, 1572 n.9, 10 L. Ed.

2d 844 (1963); People ex rel. McCollum v. Bd. of Educ., 333 U.S.

203, 206, 68 S. Ct. 461, 462-63, 92 L. Ed. 649 (1948). Plaintiffs’

allegation that the practice of verbal prayer in their schools

violates their constitutional rights under the Establishment Clause

and thus impairs their use of the schools is sufficient to fulfill

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the injury prong of the Lujan test.

The second and third constitutional inquiries for standing are

“causation and redressability”. Plaintiffs must allege that the

defendant’s conduct caused the harm and that a favorable decision

by the court will cure the harm. See Allen v. Wright, 468 U.S. 737,

751, 104 S. Ct. 3315, 3324-25, 82 L. Ed. 2d 556 (1984). In this

case, evidence that the statute legitimizes or authorizes verbal

prayer in schools will satisfy these prongs.

Such evidence is plentiful in the summary judgment record.

School board members and school administrators have stated that a

finding that the statute is unconstitutional would lead to the end

of verbal prayer in schools. The plain language of the statute

allowing verbal prayer also provides a causal link between it and

the existing practice of verbal prayer in the schools.

The clearest evidence that verbal prayer in schools is an

application of the challenged statute and that plaintiffs’ injury

is redressable by a declaration of the statute’s

unconstitutionality is the Order entered into between plaintiffs

and the School Board after the district court’s ruling. There, the

School Board agreed to discontinue the practice of verbal prayer at

the schools in question “until such time as the Court’s ruling on

the constitutionality of La. R. S. § 17:2115(A) becomes final.” If

the district court’s finding of unconstitutionality becomes final,

that Order becomes a final judgment of the court. If the district

court’s decision is reversed, the School Board may decide whether

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to allow verbal prayer at the schools. This is a clear indication

that the practice of verbal prayer at schools flows directly from

the statute in question. Moreover, it is certain that a finding of

unconstitutionality would redress the plaintiffs’ injury, as it

would convert the Order into a final judgment, thereby ending the

practice of verbal prayer in their schools. For the above reasons,

plaintiffs have standing to bring their claims in federal court,

and we now review the district court’s decision on the merits.

DISCUSSION

The district court granted plaintiffs-appellees’ motion for

summary judgment in part and found La. R. S. § 17:2115(A)

unconstitutional. We review that decision de novo. See Weyant v.

Acceptance Ins. Co., 917 F.2d 209, 212 (5th Cir. 1990), and we

affirm. On the relevant merits, this case is virtually

indistinguishable from Wallace v. Jaffree, 472 U.S. 38, 105 S. Ct.

2479, 86 L. Ed. 2d 29 (1985), where the Supreme Court held that the

statute in question violated the first prong of the Lemon test and

thus was unconstitutional.

The First Amendment provides that "Congress shall make no law

respecting an establishment of religion, or prohibiting the free

exercise thereof." U.S. Const., amend. I. These Religion Clauses

are made applicable to the states through the Fourteenth Amendment.

See Everson v. Bd. of Educ., 330 U.S. 1, 8, 67 S. Ct. 504, 508, 91

L. Ed. 711 (1947) (applying the Establishment Clause to the

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states); Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900,

903, 84 L. Ed. 1213 (1940) (applying the Free Exercise Clause to

the states).

The Supreme Court introduced a three-prong test to determine

the constitutionality of a statute facing an Establishment Clause

challenge in Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S. Ct.

2105, 2111, 29 L. Ed. 2d 745 (1971). A constitutional statute must

have a secular legislative purpose, its principal effect must

neither advance nor inhibit religion, and it must not foster

excessive government entanglement with religion. Failure of any

prong of the test results in a finding of unconstitutionality, and

the statute at issue here fails the first prong.

In order for a statute to survive a facial attack, “the

legislature must have adopted the law with a secular purpose.”

Edwards v. Aguillard, 482 U.S. 578, 583, 107 S. Ct. 2573, 2577, 96

L. Ed. 2d 510 (1987). A statute will be found unconstitutional if

it was “motivated wholly by an impermissible purpose,” Bowen v.

Kendrick, 487 U.S. 589, 602, 108 S. Ct. 2562, 2570-71, 101 L. Ed.

2d 520 (1988), or if the religious purpose “predominate[s].”

Edwards, 482 U.S. at 599 (Powell, J., concurring). In making this

evaluation, a court “asks whether government’s actual purpose is to

endorse or disapprove of religion.” Id. at 585 (quoting Lynch v.

Donnelly, 465 U.S. 668, 690, 104 S. Ct. 1355, 1368, 79 L. Ed. 2d

604 (1984) (O’Connor, J., concurring)). The Supreme Court has

provided guidance on what evidence a court should consider in

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evaluating whether the government’s purpose is proper:

A Court’s finding of improper purpose behind a statute is

appropriately determined by the statute on its face, its

legislative history, or its interpretation by a responsible

administrative agency. The plain meaning of the statute’s

words, enlightened by their context and the contemporaneous

legislative history, can control the determination of

legislative purpose. Moreover, in determining the legislative

purpose of a statute, the Court has also considered the

historical context of the statute, and the specific sequence

of events leading to passage of the statute.

Id. at 594-95 (internal citations omitted).

In this case, there is no doubt that the 1999 amendment was

motivated by a wholly religious purpose. It accomplished only one

thing – the deletion of the word “silent” from a statute that

authorized “silent prayer or meditation”. The purpose of the

amendment is clear on its face – it is to authorize verbal prayer

in schools. In this respect, this case is virtually identical to

Wallace v. Jaffree, 472 U.S. 38, 105 S. Ct. 2479, 86 L. Ed. 2d 29

(1985), which involved an Alabama statute that authorized a moment

of silence “for meditation or silent prayer” in public schools,

amending a previous statute allowing only meditation. The Supreme

Court struck down that statute, holding that its purpose was to

“return voluntary prayer” to the public schools, and that such a

purpose is unconstitutional. Id. at 57, 60. In finding a religious

purpose, the Court relied in part on the plain language of the

amendment. The existing statute did not prohibit students from

using the meditation period to engage in prayer, and the Court

reasoned that this meant the words “or voluntary prayer” were added

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to endorse and promote prayer. Id. at 47.2 As in Wallace, the

preexisting statute here already protected silent prayer. “Thus,

only two conclusions are consistent with the text of [the statute]:

(1) the statute was enacted to convey a message of state

endorsement and promotion of prayer; or (2) the statute was enacted

for no purpose”. Id. at 59. The latter conclusion would be

inconsistent with “the commonsense presumption that statutes are

usually enacted to change existing law.” Id. at 59 n.48.

The Court in Wallace also relied on legislators’ statements at

the time of the amendment’s passage to confirm its religious

purpose. See id. at 56-57; see also Edwards, 482 U.S. at 587, 591-

92, 107 S. Ct. at 2579-80, 2581-82 (relying on legislators’

contemporaneous statements to find religious purpose behind statute

forbidding teaching of the theory of evolution in public schools

unless accompanied by instruction in “creation science”). Here too,

the legislative history confirms that the amendment was passed to

return verbal prayer to the public schools. The amendment’s

sponsors stated that it was an instrument to allow verbal prayer in

schools. Other legislators who supported the bill indicated that

their understanding of the bill and their intent in seeking its

2

Indeed, as stated by the Supreme Court in Santa Fe Indep. Sch.

Dist. v. Doe, 530 U.S. 290, 313, 120 S.Ct. 2266, 2281 (2000),

“nothing in the Constitution interpreted by this Court prohibits

any public school student from voluntarily praying at any time

before, during, or after the school day. But the religious liberty

protected by the Constitution is abridged when the State

affirmatively sponsors the particular religious practice of

prayer.”

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passage was the same as that of the sponsors. Thus, as in Edwards,

482 U.S. at 604, 107 S. Ct. at 2588 (Powell, J., and O’Connor, J.,

concurring), there is “no persuasive evidence in the legislative

history that the legislature’s purpose was [not religious].”

The plain language and nature of the 1999 amendment as well as

the legislators’ contemporaneous statements demonstrate that the

sole purpose of the amendment was to return verbal prayer to the

public schools. This purpose runs afoul of the Establishment

Clause, see Wallace, 472 U.S. at 40, 105 S. Ct. at 2481 and the

Louisiana statute at issue here is therefore unconstitutional.

CONCLUSION

Because La. R. S. § 17:2115(A) was not adopted with a secular

purpose, it violates the Establishment Clause and is

unconstitutional. We therefore AFFIRM.

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