Doe Ex Rel. Doe v. Tangipahoa Parish School Board

United States Court of Appeals

Fifth Circuit

F I L E D

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT July 25, 2007

_______________________ Charles R. Fulbruge III

Clerk

No. 05-30294

_______________________

JOHN DOE, Individually and as next friend of his minor children,

James Doe and Jack Doe,

Plaintiff-Appellee,

versus

TANGIPAHOA PARISH SCHOOL BOARD; JIMMIE RICHARDSON, Reverend,

School Board Member, District A; ROBERT POTTS, School Board

Member, District B; LEONARD GENCO, School Board Member,

District C; AL LINK, School Board Member, District D;

DON WILLIAMS, School Board Member, District E; ROBERT CAVES,

School Board Member, District F; MAXINE DIXON, School Board

Member, District G; SANDRA BAILEY-SIMMONS, School Board Member,

District H; CARL BARDWELL, School Board Member, District I; LOUIS

JOSEPH, Superintendent, TANGIPAHOA PARISH SCHOOL SYSTEM,

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of Louisiana

Before JONES, Chief Judge, KING, JOLLY, DAVIS, SMITH, WIENER,

BARKSDALE, GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS, CLEMENT,

PRADO, and OWEN, Circuit Judges.

EDITH H. JONES, Chief Judge, joined by JOLLY, SMITH, GARZA, DeMOSS,

CLEMENT, PRADO and OWEN, Circuit Judges:

After the court voted to rehear this case en banc, a

review of the record prompted further inquiry, which we are bound

to make,1 concerning the Does’ standing to sue. The Supreme Court

has admonished that,

This obligation to notice defects in a court of appeals’

subject-matter jurisdiction assumes a special importance

when a constitutional question is presented. In such

cases we have strictly adhered to the standing

requirements to ensure that our deliberations will have

the benefit of adversary presentation and a full

development of the relevant facts.

Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541-42, 106

S. Ct. 1326, 1331 (1986) (footnote omitted). Constitutional

standing requires that the plaintiff personally suffered some

actual or threatened injury that can fairly be traced to the

challenged action and is redressable by the courts.2 Standing to

1

Standing is a jurisdictional requirement and not subject to waiver.

Lewis v. Casey, 518 U.S. 343, 349 n.1, 116 S. Ct. 2174, 2178 n.1 (1996). A

federal court must consider its jurisdiction sua sponte. Steel Co. v. Citizens

for a Better Env’t, 523 U.S. 83, 93, 118 S. Ct. 1003, 1011 (1998).

2

As the Supreme Court stated in Valley Forge Christian College v.

Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102

S. Ct. 752, 758-59 (1982), and reiterated in Bender, 475 U.S. at 542-43, 106 S.

Ct. at 1332:

At an irreducible minimum, Art. III requires the party who invokes

the court's authority to show that he personally has suffered some

actual or threatened injury as a result of the putatively illegal

conduct of the defendant, and that the injury fairly can be traced

to the challenged action and is likely to be redressed by a

favorable decision....

The requirement of actual injury redressable by the court, serves

several of the implicit policies embodied in Article III. It tends

to assure that the legal questions presented to the court will be

resolved, not in the rarified atmosphere of a debating society, but

in a concrete factual context conducive to a realistic appreciation

of the consequences of judicial action. The ‘standing’ requirement

serves other purposes. Because it assures an actual factual setting

in which the litigant asserts a claim of injury in fact, a court may

decide the case with some confidence that its decision will not pave

the way for lawsuits which have some, but not all, of the facts of

the case actually decided by the court.

(internal quotation marks and citations omitted); see also Elk Grove Unified Sch.

2

sue must be proven, not merely asserted, in order to provide a

concrete case or controversy and to confine the courts’ rulings

within our proper judicial sphere.

Standing to challenge invocations as violating the

Establishment Clause has not previously been based solely on injury

arising from mere abstract knowledge that invocations were said.3

The question is whether there is proof in the record that Doe or

his sons were exposed to, and may thus claim to have been injured

by, invocations given at any Tangipahoa Parish School Board

meeting. As the dissenters agree, there is no basis for taxpayer

standing. More to the point, there is no evidence of such exposure

in the record of this case, which was “fully” tried on

stipulations.4 Plaintiffs’ counsel acknowledged both in

Dist. v. Newdow, 542 U.S. 1, 11-12, 124 S. Ct. 2301, 2308-09 (2004); Lujan v.

Defenders of Wildlife, 504 U.S. 555, 559-562, 112 S. Ct. 2130, 2136-37 (1992).

3

Cf. Hinrichs v. Bosma, 440 F.3d 393, 396-98 (7th Cir. 2006)(plaintiff

had taxpayer standing); Simpson v. Chesterfield County Bd. of Supervisors, 404

F.3d 276, 279-80 (4th Cir. 2005) (plaintiff not permitted by county to offer

invocation); Wynne v. Great Falls, 376 F.3d 292, 294 (4th Cir. 2004)(plaintiff

“regularly attended” council meetings where offending prayers occurred); Bacus

v. Palo Verde Unified Sch. Dist., 52 F.App’x 355, 356 (9th Cir.

2002)(unpublished)(teachers “regularly attend the school board meetings where the

invocations...are recited”); Coles v. Cleveland Bd. of Educ., 171 F.3d 369, 374

(6th Cir. 1999)(student and teacher attended specific board meeting where

offending prayers were offered); Snyder v. Murray City Corp., 159 F.3d 1227,

1229-30 (10th Cir. 1998)(plaintiff not permitted to offer invocation); Murray v.

City of Austin, 947 F.2d 147, 151 (5th Cir. 1991)(plaintiff submitted affidavit

that he was exposed to the cross on city’s insignia).

4

This case was placed before the district court without testimony and

on the basis of stipulations that are woefully inadequate to afford the precise

factual context on which sensitive church-state decisions must be based. See

Staley v. Harris County, 485 F.3d 305, 309 (5th Cir. 2007)(en banc). An example

is Stipulation No. 18, which states:

In order to avoid the necessity of calling “live” witnesses to

testify at trial, the parties have agreed to stipulate to the

3

supplemental letter briefing and oral argument to the en banc court

that the proof deficiency was unintentional, and he urges us to

infer that the Does attended school board meetings where an

invocation occurred. Unfortunately, the minimal record in this

case affords no basis for drawing that inference, if it were

permitted, which it is not.5

Only three points need be made in response to the

dissents. First, just as there is no evidentiary proof that any of

the Does ever attended a school board session at which a prayer

like those challenged here was recited, so, too, Judge Barksdale

cites no authority to support his implied-admission theory of

standing. It is contrary to the Supreme Court cases cited above.

See supra notes 2 and 3. Interestingly, it also conflicts with an

opinion by now-Justice Alito, which held, after a real trial on the

following testimony as though such testimony was elicited from the

witness stand: the individual defendants called as witnesses at the

trial would testify under oath that the Tangipahoa School Board does

not discriminate on the basis of religious viewpoint and that any

individual who wants to give the invocation prior to a board meeting

can do so regardless of their religious beliefs.

At oral argument, Plaintiffs’ counsel disagreed that this was a statement of fact

and said that the “stipulations” are assertions that could be contradicted in the

event of cross-examination.

5

See Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., --- U.S. ---

, 127 S. Ct. 1184, 1191 (2007)(“‘Without jurisdiction the court cannot proceed

at all in any cause’; it may not assume jurisdiction for the purpose of deciding

the merits of the case.” (quoting Steel Co., 523 U.S. at 94, 118 S. Ct. at

1012)); Spencer v. Kemna, 523 U.S. 1, 10-11, 118 S. Ct. 978, 984-85 (1998)(noting

the “‘long-settled principle that standing cannot be inferred argumentatively

from averments in the pleadings, but rather must affirmatively appear in the

record,’ and that ‘it is the burden of the party who seeks the exercise of

jurisdiction in his favor, clearly to allege facts demonstrating that he is a

proper party to invoke judicial resolution of the dispute.’” (quoting FW/PBS,

Inc. v. Dallas, 493 U.S. 215, 231, 110 S. Ct. 596, 608 (1990)(citations

omitted))).

4

merits, that plaintiffs had presented insufficient proof of their

exposure to and personal offense from an allegedly unconstitutional

civic Christmas display to support standing.6 ACLU-NJ v. Township

of Wall, 246 F.3d 258, 266 (3d Cir. 2001). The opinion notes,

While we assume that the Millers disagreed with the 1999

display for some reason, we cannot assume that the

Millers suffered the type of injury that would confer

standing. As noted, “the party invoking federal juris-

diction bears the burden of establishing [standing] . . .

in the same way as any other matter on which the

plaintiff bears the burden of proof, i.e., with the

manner and degree of evidence required at successive

stages of the litigation.” Lujan, 504 U.S. at 561, 112

S. Ct. 2130. Mere assumption would not satisfy the

plaintiffs’ burden to prove an element of their cause of

action at this stage of the litigation and it cannot

satisfy their burden to prove standing.

Id.

Second, Judge Barksdale’s dissent intimates that lower

courts can infer standing from the Supreme Court’s decision in

similar Establishment Clause cases where the issue was not ruled on

by the Court.7 This proposition is incorrect. Going back to Chief

6

The Alito opinion also alludes to the difficulty of inferring,

without proof, facts necessary to establish standing:

While Mr. Miller testified that he went to the municipal complex and

observed the Township’s 1999 display, it is unclear whether he did

so in order to describe the display for this litigation or whether,

for example, he observed the display in the course of satisfying a

civic obligation at the municipal building . . . . Moreover, neither

Mr. Miller nor Mrs. Miller provided testimony regarding their

reaction to the 1999 display, which was significantly different from

the display in 1998.

Id.

7

See Barksdale dissent, citing Murray, 947 F.2d at 151; and later

asserting that “standing is more relaxed for Establishment Clause claims. . . .”,

citing Lee v. Weisman, 505 U.S. 577, 583, 112 S. Ct. 2649, 2653 (1992)(where the

Court did not reach the issue).

5

Justice Marshall, the Court has consistently held that it “is not

bound by a prior exercise of jurisdiction in a case where

[jurisdiction] was not questioned and it was passed sub silentio.”

United States v. LA Trucker Truck Lines, 344 U.S. 33, 38, 73 S. Ct.

69 (1952)(Jackson, J.)(citations omitted); see also Steel Co., 523

U.S. at 91, 118 S. Ct. at 1011, Lewis, 518 U.S. at 351, 116 S. Ct.

at 2180; Fed. Election Comm’n v. NRA Political Victory Fund, 513

U.S. 88, 97, 115 S. Ct. 537, 542-43 (1994).

Finally, Judge Benavides relies on the pretrial order for

the proposition that no “facts” relevant to the Does’ standing were

in dispute. Justice Alito’s careful opinion again shows the way.

This court can certainly “assume” that the Does may have been

offended by an invocation at a school board meeting, if they

attended one. Unfortunately, there is no correlation between their

attendance and the prayers to which the parties have stipulated.

It is not this court’s fault that the connection between their

attendance and allegedly unconstitutional activity is not made in

the record.8 Moreover, Judge Benavides overlooks that Paragraph 8

of the “contested issues of fact” in the pretrial order states that

“All issues of fact implicit in the contested issues of law” remain

contested.

Without the requisite specifics, this court would be

speculating upon the facts. This is something we cannot do,

8

The amended complaint to which Judge Benavides points is not

verified, and therefore cannot constitute record proof.

6

particularly in the standing context, where the facts must be

proven, not merely asserted or inferred. See Lujan, 504 U.S. at

561, 112 S. Ct. at 2136. Notwithstanding the dissents, plaintiffs’

counsel admitted both in briefing and in oral argument to the en

banc court that the necessary proof is absent from the record. No

amount of creative inferences from the pretrial order or

“stipulations” can overcome this defect. As standing is not

subject to waiver by the parties, see supra note 1, the Board’s

pretrial, and even post-trial, failures to contest standing cannot,

ipso facto, create jurisdiction in federal court.

To find lack of standing at this late stage no doubt

poses an inconvenience for the parties. On the other hand, it

spares this court from issuing a largely hypothetically-based

ruling on issues of broad importance to deliberative public bodies

in this circuit and beyond.9 Finally, given the ideological nature

of the case, it is not hard to conceive that a more concrete

controversy may arise in the future.

The judgment of the district court is VACATED, and the

case REMANDED WITH INSTRUCTIONS TO DISMISS.

9

Subject to footnote 4, supra, the parties’ Stipulation No. 7 stated:

“In Louisiana, school boards are deliberative bodies constituted to act in the

public interest.”

7

DeMOSS, Circuit Judge, specially concurring:

Under Article III of the Constitution federal courts have the

power to resolve only “cases” and “controversies.” This

constitutional limitation has manifested itself in the requirement

that a plaintiff have standing, which requires a showing of (1) an

injury in fact, (2) causation, and (3) redressibility. See Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992).1 The importance of

standing is underscored by the fact it “tends to assure that the

legal questions presented to the court will be resolved, not in the

rarified atmosphere of a debating society, but in a concrete

factual context conducive to a realistic appreciation of the

consequences of judicial action.” Valley Forge Christian Coll. v.

Americans United for Separation of Church and State, Inc., 454 U.S.

464, 472 (1982). The Supreme Court has recently recognized in Hein

v. Freedom from Religion Foundation that another important purpose

of the standing requirement is to ensure separation of powers. See

--- S.Ct. ---, No. 06-157, 2007 WL 1803960, at *16 (2007).

Furthermore, the Supreme Court has repeatedly stated that the

standing elements “are not mere pleading requirements but rather an

indispensable part of the plaintiff's case, [and] each element must

be supported in the same way as any other matter on which the

plaintiff bears the burden of proof . . . .” See, e.g., Lujan, 504

1

Lujan defines injury in fact as “an invasion of a legally protected

interest which is (a) concrete and particularized, and (b) actual or imminent,

not conjectural or hypothetical.” 504 U.S. at 560 (internal quotation marks and

citations omitted); accord BLACK’S LAW DICTIONARY 801 (8th ed. 2004).

8

U.S. at 561. Because of these indispensable and well-established

requirements, I concur wholeheartedly in the majority’s refusal to

infer standing from a record completely lacking evidence on the

subject. As the majority mentions, we have no evidence that the

Does actually attended any meeting of the Tangipahoa Parish School

Board, much less the meetings at which the invocations quoted in

the stipulations were given.

Likewise, the stipulations say nothing about the injury in

fact allegedly suffered by the Does. Unless the Does were actually

exposed to an invocation, they could not possibly have suffered the

kind of individualized injury necessary to confer standing. See

Hein, 2007 WL 1803960 at *11. In Hein, the Court emphasized that “a

generally available grievance about government . . . seeking relief

that no more directly and tangibly benefits [the plaintiff] than it

does the public at large” does not constitute an injury in fact.

Id. (internal quotation marks omitted). Instead, the plaintiff must

present evidence of an individualized and direct injury and seek

relief that will likewise benefit him directly in order to satisfy

the standing requirement. See id. at n.2.2 The Does simply have not

presented any such evidence. As a result of their failure, this

case is like Hein in that the Does have established only a general

2

In Hein, the individual Respondents asserted standing only on the

basis that they were taxpayers. While Hein dealt with issues involving taxpayer

standing, the rule that a plaintiff’s injury must affect him individually and the

remedy he seeks must benefit him directly, should be generally applicable in

Establishment Clause cases.

9

grievance indistinguishable from the one that any other non-

attendee citizen could have.

In addition, I feel compelled to comment on the current state

of the Supreme Court’s standing jurisprudence in Establishment

Clause cases. On the one hand, the Court has stated that the

standing requirements in Establishment Clause cases are as rigorous

as in other types of cases. See Valley Forge, 454 U.S. at 484, 489

(“[W]e know of no principled basis on which to create a hierarchy

of constitutional values or a complementary ‘sliding scale’ of

standing.”). On the other hand, the Court has implicitly, and

wrongly in my view, assumed standing in Establishment Clause cases

where plaintiffs have not alleged or proved an injury that would

suffice to confer standing in any other type of case.3

The Supreme Court cannot continue to speak out of both sides

of its mouth if it intends to provide real guidance to federal

courts on this issue. That is, it cannot continue to hold expressly

that the injury in fact requirement is no different for

Establishment Clause cases, while it implicitly assumes standing in

cases where the alleged injury, in a non-Establishment Clause case,

would not get the plaintiff into the courthouse. This double

standard must be corrected because, contrary to the standing rules

3

In order to prevent confusion, let me make clear that I do not intend

to jump ship from the majority's position, as Judge Barksdale suggests in his

dissent. I fully agree with the majority that this record does not contain the

evidence required to establish standing.

10

cited above, it opens the courts’ doors to a group of plaintiffs

who have no complaint other than they dislike any government

reference to God.

Regardless, I recognize that these parties may be before this

Court again and I caution them that more evidence of the alleged

injury in fact is essential for us to reach the merits of their

dispute. To me, the critical issue is whether each of the Does has

proved that he individually sustained an injury in fact as a result

of the school board’s practice of permitting citizens of the school

district to freely exercise their own rights of religion and free

speech under the First Amendment by offering a prayer or invocation

at the beginning of school board meetings. On the basis of the

stipulations before us in this case, I would find these facts

helpful in evaluating injury in fact: this prayer practice has

existed for more than thirty years, the school board does not

specify or approve the contents of any prayer or invocation in

advance, and in giving the prayer or invocation, the speaker does

not purport to speak for, or on behalf of, the school board. In my

view, the fact that the Does “take offense” to this prayer practice

should not constitute an injury in fact for standing purposes.

11

RHESA HAWKINS BARKSDALE, Circuit Judge, with whom KING, DAVIS,

WIENER, and DENNIS, Circuit Judges, join, dissenting:

What is not said is quite often more important than what is.

The bare-bones majority opinion is a classic example. In that

regard, the majority refuses to give effect to, or simply does not

comprehend, the crucial litigation role played by the Federal Rules

of Civil Procedure. Because the majority fails to correctly apply

basic procedure – indeed, ignores it – I dissent. In so doing, I

join Judge Benavides’ splendid dissent, which, consistent with my

application of the Rules, employs them to find standing.

All that is needed for deciding standing is stated in part

II.A of my opinion for the initial appeal (my panel opinion). Doe

v. Tangipahoa Parish Sch. Bd., 473 F.3d 188, 194-196 (5th Cir.

2006), vacated for reh’g en banc (2007). Each of the other two

panel members filed an opinion reaching a different result on the

merits; but mine, which announced the judgment, sua sponte

addressed standing. Although one panel member now inexplicably

joins the majority opinion, neither of those other two panel

opinions mentioned, much less questioned, the standing analysis,

presented infra, in my panel opinion, as noted in it. Id. at 194;

see also id. 205-11 (Stewart, J., concurring in part and dissenting

in part), 211-17 (Clement, J., concurring in part and dissenting in

part).

12

The en banc majority essentially ignores my panel opinion’s

implied-admission analysis. Indeed, from reading the majority

opinion, it would appear standing was not even considered until

after our court voted this case en banc. That, of course, is not

correct. A panel opinion is vacated when en banc review is

accorded, but the majority opinion should at least state what

transpired on appeal and attempt to demonstrate in a far more

complete fashion why the analysis employed for standing by our then

undivided panel on that issue is incorrect.

The well-known general rules for standing are presented in the

majority opinion and my panel opinion. There is no dispute about

them. Certainly, it is quite fundamental that parties cannot

concede, or waive, standing as an issue of law. Where we part ways

is the majority’s insistence that parties cannot, by implication,

agree upon the underlying facts necessary for deciding that issue.

Nothing, especially in the light of the Federal Rules of Civil

Procedure, precludes their conceding, admitting, or stipulating

them.

That is the case here. As held in my panel opinion concerning

an implied admission under Rule 15(b), and consistent with the

Rules’ not permitting form to trump substance, the School Board

admitted by implication the two simple facts, alleged in the

amended complaint, necessary to satisfy standing: the Does

attended School Board meetings; and they were offended by the

13

prayers presented there. See FED. R. CIV. P. 1 (federal civil-

procedure rules to govern all civil actions, save for the non-

applicable exceptions provided in Rule 81, and to “be construed and

administered to secure the just, speedy, and inexpensive

determination of every action”). My panel opinion’s standing

analysis, including the factual background, is repeated verbatim as

follows. Doe, 473 F.3d at 191-196.

******

I.

In October 2003, John Doe, a resident and taxpayer of

Loranger, Tangipahoa Parish, Louisiana, filed this action against

the Board, including on behalf of his two minor sons. The Board is

a “[p]olitical subdivision” of the State, LA. CONST. art. 6, §

44(2), and a statutorily defined “[p]ublic body”, LA. REV. STAT. ANN.

§ 42:4.2.

Doe challenged several prayer events permitted by the School

System: pre-game prayers over the public-address system at

athletic events; prayers including student athletes prior to, and

after completion of, such events; prayers by students to the

student body over the public-address system; and the Board’s

opening its meetings with a prayer (prayer practice). All but the

challenge to the Board’s prayer practice were resolved by a consent

judgment in August 2004. It enjoined those other prayer events,

except for prayers given by students at graduation ceremonies to

the extent permitted by Jones v. Clear Creek Independent School

14

District, 977 F.2d 963, 972 (5th Cir. 1992) (permitting student-

initiated prayers at graduation ceremonies so long as they do not

have a coercive effect), cert. denied, 508 U.S. 967 (1993).

Regarding the Board’s prayer practice, the parties in

September 2004 entered into the following joint stipulations, the

sole evidence presented in district court. The Board is a

deliberative body that acts in the public interest. It is

responsible for operating and governing the School System’s 35

schools, including the high school attended by Doe’s two sons. The

Board meets twice each month in the School System’s central office.

The Board’s president normally presides; the vice-president

presides in his absence. The meetings are open to the public, and

students may attend. (Although it is possible under Louisiana law

for a student to be a Board member, LA. REV. STAT. ANN. §

17:52(E)(1), the stipulations are silent as to whether there is a

student member on the Board.)

Each meeting begins with a prayer, followed by a recitation of

the Pledge of Allegiance. This prayer practice has been followed

since at least 1973; prayers have been offered by Board members,

the Board president, the School System’s assistant superintendent,

School System teachers and students, and ministers. An individual

may present a prayer only after being selected by a Board member.

In a sampling of prayers delivered between January 2002 and August

2004, ten were by Board members, nine by students or former

15

students, four by principals or assistant principals, three each by

teachers and the assistant superintendent, and one each by the

Board president and a minister.

The stipulations contained four of the prayers given; each

contained a reference to “Jesus Christ” or “God” and “Lord”. The

School System’s assistant superintendent presented the following

prayer on 18 February 2003:

Heavenly Father, we thank you for the many

blessings we’ve received. We thank you for

our health. We thank you for our strength.

We thank you for our peace of mind. We thank

you for allowing us to assemble here tonight,

and we ask that you give this Board and our

Superintendent all the wisdom and the

knowledge, and the understanding they need to

make the correct decisions for our students

and for our parents.

Also Lord, we ask that you throw your strong

arm of protection around our President and

around his Cabinet Members, to help him make

the right decisions that will affect thousands

of U.S. soldiers, airmen, and marines, at this

time. We ask that you give him the same

wisdom that you gave Solomon in making

decisions that’s [sic] best for our country.

Also, we thank you for the greatest gift of

all — your darling son, Jesus Christ. For we

all know that He was born, died, and rose

again, so that we all may be forgiven for our

sins. And Lord, as we leave this meeting

tonight, we ask that you guide us safely to

our various abodes. These things we ask in

your darling son, Jesus Christ’s[,] name.

Amen.

A Board member’s son presented the following prayer on 23 September

2003:

Almighty God, we make our earnest prayer that

Thou wilt keep the United States in thy holy

protection, that Thou wilt incline in the

16

hearts of the citizens to cultivate a spirit

of subordination and obedience to government,

and entertain a brotherly affection and love

for one another and for their fellow citizens

of the United States at large.

And finally that Thou wilt most graciously be

pleased to dispose us all to do justice, to

love mercy, and to demean ourselves with that

charity, humility, and pacific temper of mind

which were the characteristics of the Devine

[sic] Author of our blessed religion, and

without an [sic] humble imitation of whose

example in these things, we can never hope to

be a happy nation.

Grant our supplications, we beseech Thee,

through Jesus Christ our Lord. Amen.

A School System elementary-school principal presented the following

prayer on 18 May 2004:

Heavenly Father, we thank you for all the

blessings that you have given us. Let us not

take for granted that each breath that we take

is a blessing from you, and even though we

don’t understand the hardships that are put

before us at different times in our lives, let

us always remember that the experiences that

we go through have a purpose and even though

we don’t understand the purpose, it is your

desire that we have each and every experience

on this earth, for without you we have

nothing.

Watch over our soldiers that are overseas.

Please keep them safe. Please soften the

hearts of our adversaries and help them see

that we are trying to do what we believe is

good and right and to bring freedom to people

that have been oppressed.

Please guide all the people in this room that

are in charge of setting the education of our

children and setting the future of our

children. Let all of us keep in mind that we

have one focus and that is what is best for

our children. Let us keep them at the front

of all our decision-making processes. Let us

do everything to bring glory and honor to your

name, and we ask all of these things through

Your Son, Jesus Christ. Amen.

17

In the final prayer included in the stipulations, a Board member

presented the following on 15 June 2004:

Father, we thank You for Your many blessings.

Father, we are grateful for the opportunity to

live in this country, the greatest country on

this planet. God, we have the freedom to

choose, to live our lives as we please. We

have the opportunity to pursue any goals we so

desire.

Lord, this big Board — group of people meeting

here tonight has an awesome responsibility to

see that each and every child in the parish

has the opportunity, and the chance to prepare

themselves to the fullest to live their adult

lives. God, we just pray that we in this

parish will have the guidance and the wisdom

to make it happen. In your name we pray.

Amen.

It was not stipulated that the above four prayers were

representative, or typical, of those offered at Board meetings.

Each prayer in the stipulations is Christian in tenor, if not in

fact.

On 3 August 2004, approximately ten months after this action

was filed and only approximately one month before the consent

judgment and joint stipulations, the Board considered — but

unanimously rejected — a written policy that would have permitted

only Board members to begin “meetings with a brief non-sectarian,

non-proselytizing invocation to solemnize the occasion”.

Accordingly, the Board’s unwritten practice of selecting speakers

who give prayers of their own unrestricted choosing remained in

effect.

18

This action seeks injunctive and declaratory relief. The

district court held the prayers: fall outside the legislative-

prayer context permitted by Marsh v. Chambers, 463 U.S. 783 (1983);

and otherwise violate the Establishment Clause pursuant to the

traditional analysis under Lemon v. Kurtzman, 403 U.S. 602 (1971).

The court permanently enjoined the Board from opening its meetings

with any prayer: “the [Board’s] practice of opening each ...

meeting with a religious invocation violates [Doe’s] rights under

the Establishment Clause of the First Amendment”. Doe v.

Tangipahoa Parish Sch. Bd., No. 03-2870, slip op. at 25 (E.D. La.

24 Feb. 2005).

II.

Neither in district court, nor on appeal, has the Board

challenged Doe’s standing to bring this action. Nor did the

district court address it. Because standing is jurisdictional,

however, we must address it sua sponte before considering this

Establishment Clause issue of first impression in our circuit. Doe

v. Sch. Bd. of Ouachita Parish, 274 F.3d 289, 292 (5th Cir. 2001);

see Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 547

(1986) (“This question the court is bound to ask and answer for

itself, even when not otherwise suggested, and without respect to

the relation of the parties to it.”) (quoting Mansfield, C. & L. M.

Ry. Co. v. Swan, 111 U.S. 379, 382 (1884)).

A.

19

Neither of the separate opinions contests the following

standing analysis. This inquiry has two components. First

addressed are constitutional limitations, derived from the

Constitution’s case-and-controversy requirement in Article III;

second, judicially-created prudential limitations are examined.

McClure v. Ashcroft, 335 F.3d 404, 408 (5th Cir. 2003).

To establish Article III standing, Doe “must show that the

conduct of which he complains has caused him to suffer an ‘injury

in fact’ that a favorable judgment will redress”. Elk Grove

Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) (quoting Lujan

v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). “[T]he

concept of injury for standing purposes is particularly elusive in

Establishment Clause cases”. Littlefield v. Forney Indep. Sch.

Dist., 268 F.3d 275, 294 n.31 (5th Cir. 2001) (alteration in

original) (quoting Murray v. City of Austin, 947 F.2d 147, 151 (5th

Cir. 1991), cert. denied, 505 U.S. 1219 (1992)). Our “rules of

standing recognize that noneconomic or intangible injury may

suffice to make an Establishment Clause claim justiciable”. Id.

(quoting Suhre v. Haywood County, 131 F.3d 1083, 1086 (4th Cir.

1997)). For example, direct exposure to a mandatory school-uniform

policy satisfied the “intangible injury” requirement for

Establishment Clause standing. Id. Parents and students

challenged this policy, claiming, inter alia, its opt-out

procedures “favor[ed] certain established religions at the expense

20

of other religions and thus violate[d] the Establishment Clause”.

Id. at 282.

In the context of the Establishment Clause, “we attach

considerable weight to ... standing ... not [having] been an issue

in the Supreme Court in similar cases”. Murray, 947 F.2d at 151.

For example, standing existed for a claimed Establishment Clause

violation that had impaired “use or enjoyment of a public

facility”. Sch. Bd. of Ouachita Parish, 274 F.3d at 292.

Standing is bolstered when, as here, the plaintiffs are public

school students and their parents, “who enjoy a cluster of rights

vis-a-vis their schools” and thus transcend the realm of mere

bystanders. Id. A parent may be permitted to bring an action as

the next friend of his or her children; however, for an action for

themselves as well, parents must “assert an injurious deprivation

of their own legal rights or interests”. Ward v. Santa Fe Indep.

Sch. Dist., 393 F.3d 599, 606 (5th Cir. 2004).

Doe appears to assert two standing bases: (1) as a parent of

two students in the School System, he (as well as his two sons) has

attended, and been offended by, Board meetings; and (2) as a

resident and taxpayer of Tangipahoa Parish, where the school

district is located. (Because we hold Doe has standing under the

first basis, we need not address taxpayer standing.)

In his original 14 October 2003 complaint, Doe stated: he was

“a domiciliary and resident” and “a taxpayer and registered voter”

21

of Tangipahoa Parish, and also the father of two school-system

students; and he and his sons found “objectionable the non-secular

manner in which the Board’s meetings are conducted.... By

commencing the meetings with a prayer, the Board is conveying its

endorsement of religion”. He noted explicit references to God and

Jesus Christ at Board meetings. In seeking injunctive relief, Doe

explained his family “ha[d] suffered, and will continue to suffer,

immediate and irreparable harm in the event that [the Board is]

allowed to continue permitting, authorizing, encouraging, and

acquiescing in the delivery of ... religious invocations at the

start of each board meeting”.

As permitted by Federal Rule of Civil Procedure 15(a), Doe’s

26 November 2003 amended complaint was filed before the Board

answered. The amendment added: “Plaintiffs, John Doe, James Doe,

and Jack Doe, have been in attendance at school board meetings

which were opened with a prayer”.

In its 26 January 2004 answer, the Board admitted its meetings

were open to the public; it denied, but only for a lack of

information, Doe’s allegations regarding attendance and

involvement. No mention was made whether Doe had standing to bring

this action.

Instead, the parties on 30 August 2004 entered into the

earlier-discussed consent judgment, which resolved all claims in

Doe’s complaint except his challenge to the Board’s prayer

practice. Four days later, on 3 September 2004, the parties

22

entered into the stipulations discussed supra. These stipulations

did not address the standing issue directly, noting only that Doe

was “a person of full age of majority and a resident and

domiciliary of ... [Tangipahoa] Parish ... wherein he is a

registered voter and taxpayer” and parent of two students within

the School System. The remainder of the stipulations do not

address Doe personally.

The Board’s failure to challenge Doe’s assertions that he

attended Board meetings and was offended by their content was never

challenged, beyond the lack-of-information denial in its answer,

filed more than eight months before the consent judgment. As this

action progressed, the Board had many opportunities — including

during the bench trial — to contest Doe’s standing; the Board’s

failure to challenge either Doe’s attendance at Board meetings or

his assertion that he was offended is the equivalent of an implied

admission.

Although we have not located any precedent for this implied-

admission concept regarding standing, we find it sufficiently

analogous to the approach taken by Federal Rule of Civil Procedure

15(b). That rule states, in part: “When issues not raised by the

pleadings are tried by express or implied consent of the parties,

they shall be treated in all respects as if they had been raised in

the pleadings”. Similarly, the Board’s decision to proceed on the

merits of Doe’s claim, without challenging either that he attended

Board meetings or was offended by them, permits an inference that

23

the Board conceded these allegations in Doe’s complaint. Further,

the Board’s entering into the consent judgment and stipulations

with Doe permits the inference that, had the Board disagreed with

Doe’s allegations that he attended Board meetings and was offended

by its prayer practice, it would not have entered into the consent

judgment and stipulations. We may make such inferences from the

record. Cf. Ladue v. Chevron, U.S.A., Inc., 920 F.2d 272, 277 (5th

Cir. 1991) (inferring from the record the cause of injury in a

products liability action). Nor do we have any reason to believe

the interests of Doe, in his role as next friend, conflict with

those of his sons. In contrast, such a conflict arose in Newdow

with evidence that the interests of a non-custodial father

conflicted with those of his child. 542 U.S. at 15.

Based on the unchallenged allegations in the complaint, Doe

has shown an injury; he and his sons have attended Board meetings

and have been offended by the Board’s prayer practice, which they

“find wholly objectionable”. This suffices for a noneconomic,

intangible injury under our Establishment Clause jurisprudence.

Littlefield, 268 F.3d at 294 n.31.

Doe’s injury, caused by that practice, would be redressed by

an injunction against it. Nothing has been offered to suggest that

the Board did not comply with the one imposed by the district

court, so Doe’s injury appears sufficiently redressed by it.

24

Accordingly, three prudential factors are considered: (1)

whether Doe’s complaint fits “within the zone of interests

protected by the ... constitutional provision at issue”; (2)

“whether [his] complaint raises [more than] abstract questions

amounting to generalized grievances which are more appropriately

resolved by the legislative branches”; and (3) “whether [Doe] is

asserting his ... own legal rights and interests”, as opposed to

those of third parties. Murray, 947 F.2d at 151 (quoting Cramer v.

Skinner, 931 F.2d 1020, 1024 (5th Cir. 1991)). None of the

prudential limitations bars Doe’s standing: his assertion that the

prayer practice of the Board, a political subdivision of the state,

impermissibly “inject[s] religion” into Board meetings, fits within

the zone of Establishment Clause claims; he raises not abstract,

generalized grievances, but his own experiences at Board meetings;

and, finally, he asserts both his own injury, as well as those of

his sons as next friend. Id. (This ends the applicable portion of

my panel opinion.)

******

The foregoing panel-opinion analysis remains sufficient for

our en banc court to hold standing present. In this regard,

similar to the School Board’s not questioning standing either in

district court, or on appeal, it did not challenge it here until

shortly before en banc oral argument, when our court required

supplemental letter briefs on standing. In other words, even

25

though my panel opinion addressed standing sua sponte, the School

Board did not question it in either its en banc petition or initial

en banc briefs (in addition to its opening en banc brief, it was

permitted to file a reply brief).

Again, parties cannot concede, or waive, standing as a

question of law; but, certainly, we should accord considerable

weight to the School Board’s initial acceptance of my panel

opinion’s implied-admission analysis. Its silence until its

ordered supplemental en banc brief on standing has, in effect,

elevated its implied admission in district court for the facts

necessary for standing to a judicial admission in our en banc

court.

Restated, until our en banc court suggested otherwise, by

requiring supplemental briefing, the School Board accepted my

implied-admission analysis. The factual posture for standing did

not change after the initial appeal, unlike the situation for our

recent en banc mootness decision in Staley v. Harris County, 485

F.3d 305 (5th Cir. 2007) (en banc). Instead, apparently deciding

that “half a loaf [possible dismissal on standing] is better than

none [possibly losing on the merits]”, the School Board suddenly

decided standing is lacking, even though the underlying facts have

not changed.

My implied-admission analysis does not, as the majority

claims, “intimate[] that lower courts can infer standing from the

26

Supreme Court’s decision in similar Establishment Clause cases

where the issue was not ruled on by the Court”. Maj. Opn. at 6.

Rather, my analysis simply concludes that courts should hold

standing exists when the parties repeatedly admit by implication

the facts necessary to satisfy standing. Along that line, in

taking me to task for supposedly “cit[ing] no authority [in my

panel opinion] to support [my] implied-admission theory of

standing”, id. at 5, suggesting I attempted to sneak this analysis

under the door, the majority goes far astray in two ways. First,

my panel opinion does cite “authority” – by analogizing to Rule

15(b). 473 F.3d at 195. Second, my panel opinion candidly admits

no “precedent [had been located] for this implied-admission

concept”. Id. (emphasis added). Surely, the majority recognizes

courts must sometimes decide issues of first impression.

Concomitantly, standing must, of course, be viewed in context.

E.g., Littlefield, 268 F.3d at 294 n.31. Moreover, as reflected in

my panel opinion, 473 F.3d at 194, standing is more relaxed for

Establishment Clause claims, especially concerning schools. E.g.,

Lee v. Weisman, 505 U.S. 577, 583 (1992) (holding plaintiff had

standing to challenge future clergy-presence and prayers at a high-

school graduation based on stipulated facts and assumptions

concerning the offering and content of the prayers from an earlier

middle-school graduation). For the majority to state that, in Lee,

27

“the Court did not reach the issue” of this relaxed standard is

simply blinking at reality. Maj. Opn. at 6 n.7.

Regarding the Court’s relaxed-standing standard, JUDGE DeMOSS’

special concurrence arguably creates a majority on this point for

our en banc court by agreeing standing is relaxed for Establishment

Clause cases. MY BROTHER protests that the Supreme Court “speak[s]

out of both sides of its mouth” on its “standing jurisprudence in

[such] cases”. Spec. Con. at 3. He posits that, while the Court

has applied strict standing requirements in some Establishment

Clause cases, in others, it “has implicitly, and wrongly in [his]

view, assumed standing in [such] cases where plaintiffs have not

alleged or proved an injury that would suffice to confer standing

in any other type of case”. Id. “Oh that mine enemy would write

a book!” (This epigram, often used long ago by at least two

outstanding lawyers (one now retired; the other, deceased) in my

former law firm, is based on Job’s lament: “Oh that my words were

written! Oh that they were inscribed in a book!” THE BOOK OF JOB,

19:23.)

I disagree, of course, with JUDGE DeMOSS’ assertion that the

Court has been inconsistent. A fair reading of its opinions leaves

no doubt standing is consistently more relaxed for such cases, as

discussed above and in my panel opinion. In any event, by

acknowledging the Court’s employing this relaxed standard (but, in

his view, only in some instances), JUDGE DeMOSS arguably agrees

28

with my recognizing this somewhat different standard for

Establishment Clause cases. Therefore, for this point on the

standing standard, he arguably crosses the aisle from the slim

eight-seven majority on standing vel non to join the seven in

dissent. As stated, his position arguably constitutes the eighth

vote needed for an en banc majority recognizing this relaxed-

standard rule. He’s most welcome aboard. (As he makes quite

clear, he concludes, however, that standing is lacking for this

case.)

For the context of this case, in which all but one of the

claims were settled shortly before trial and the parties entered

into the above-described stipulations, the School Board, by

implication, admitted the Does’ allegations regarding attending the

Board’s meetings and being offended by the prayers.1 In short, the

well-known constitutional and prudential reasons for requiring

standing are more than satisfied here. Surely, had the School

Board felt the Does lacked standing, it would not have stipulated

1

In unnecessarily calling the stipulations “woefully inadequate”,

the majority incorrectly characterizes an oral-argument answer by Doe’s counsel,

concerning stipulation 18, which stated only what the School Board’s testimony

would have been on a point. The stipulation did not state the Does agreed with

the position that would have been asserted in that “testimony”. The majority

states that counsel “disagreed that this was a statement of fact”. What counsel

correctly pointed out was that the stipulation was only what the Board’s

testimony would have been. That is a “fact”. But, contrary to the majority’s

characterization, counsel did not state that stipulations “are assertions that

could be contradicted in the event of cross-examination”. Instead, he stated

correctly: the stipulation presented only the testimony the Board would have

given; and the stipulation did not state the Does agreed with that testimony

(position). The “cross-examination” comment apparently was simply an analogy to

the procedure that would have been followed, had live testimony been given,

instead of a stipulation presenting only one side’s position on an issue.

29

as it did, including for the four prayers that had been presented

at School Board meetings. Those stipulations followed on the heels

of a consent judgment concerning other challenged prayer events.

Simply put, the School Board more than recognized its

requisite adversarial position with the Does. This is consistent

with the Does’ en banc position for standing. Contrary to the

majority’s interpretation of the Does’ position, they did not

“admit[] both in briefing and in oral argument to the en banc court

that the necessary proof is absent from the record”. Maj. Opn. at

7 (emphasis added). While admitting such evidence could certainly

(and quite easily) have been more complete, the Does correctly

maintained: for deciding standing vel non, this action must be

examined globally; and the record evidence is sufficient to provide

a basis for holding standing present.

In opposition to this plain truth, the majority relies heavily

on a Third Circuit opinion, ACLU-NJ v. Township of Wall, 246 F.3d

258 (3d Cir. 2001). Maj. Opn. at 5. (In doing so, the majority

even notes three times the opinion was written by now-Justice

Alito. Id. at 5-6. “None dare call it [pandering].” See SIR JOHN

HARINGTON, EPIGRAMS, bk. 4, no. 5 (1618) (“Treason doth never prosper,

what’s the reason? For if it prosper, none dare call it

treason.”).) ACLU-NJ is so distinguishable that one can only

wonder why the majority would cite it, much less rely so heavily on

it. For starters, unlike here, defendants early on, and

30

consistently, contested standing. 246 F.3d at 261-62. Moreover,

unlike the implied-admission basis I employ under Rule 15(b), or

the complementary basis employed by Judge Benavides under Rule 16

(the pretrial order), ACLU-NJ involved evidence having been

presented concerning a holiday display in one year but relief

having been requested instead for a quite different display in the

next. Id. at 266.

It is fundamental that courts have an independent duty to

ensure standing. My panel opinion did so sua sponte.

Concomitantly, courts have a duty to recognize standing when it

exists, as in this instance, and reach the merits. Along that

line, dismissing for lack of standing obviously has far more

serious effects than, as the majority sugar-coats it, being “an

inconvenience for the parties”. Maj. Opn. at 7. The majority

ignores reality – what transpired in district court and here – in

holding standing lacking.

To find standing is not engaging in “speculation”, as decried

by the majority. Id. at 7. Far from it. Instead, for the reasons

stated in Judge Benavides’ and my dissents, it is simply giving

proper effect to the Federal Rules of Civil Procedure. They do not

treat differently from other situations the procedure to be

utilized for considering parties’ acts or omissions regarding the

evidence necessary for satisfying standing. Restated, the Rules

contain no heightened exception for such evidence. Because the

31

majority commits a most grievous and unpardonable judicial sin of

exalting form over substance, I dissent. For many reasons, some

more obvious than others, this is a sad day for our court.

32

BENAVIDES, Circuit Judge, with whom KING, DAVIS, WIENER, BARKSDALE,

STEWART, and DENNIS, Circuit Judges, join, dissenting:

Disregarding months of active litigation, a bench trial in the

district court, and three lengthy opinions on the merits by a panel

of this Court, the majority today announces that the appellees

never had standing to bring this suit in the first place.

According to the majority, there is no proof in the record that the

Does were ever exposed to, and thus injured by, a prayer offered at

a School Board meeting. I disagree. The Does plainly alleged that

they had attended Board meetings and that they had witnessed the

invocations offered there, and the Pretrial Order reveals that the

Board conceded this fact. Yet the majority sidesteps this record

evidence, choosing instead to redraw the parameters of this dispute

and assert that standing is now lacking. I dissent.

In their amended complaint, filed with the district court on

November 26, 2003, the plaintiffs stated:

The Board meetings are open to the public, including

students. Each Board meeting is opened with a prayer,

followed by the pledge of allegiance. Board member

Bardwell[] has given the invocation. Plaintiffs, John

Doe, James Doe, and Jack Doe, have been in attendance at

school board meetings which were opened with a prayer.

Amd. Compl. ¶ 9 (emphasis added). In its answer, filed on January

26, 2004, the School Board denied the claim of attendance, but only

for lack of information:

The allegation that meetings of the board are open to the

public is admitted. The remaining allegations of

33

Paragraph 9 are denied for lack of information sufficient

to justify a belief therein.

Answ., Part VII, ¶ 9. Thus did the parties set the stage for the

district judge: The plaintiffs alleged the crucial fact, plain as

day, and the School Board responded that it did not yet have enough

information to either admit or refute it.

At that time, the fact was legitimately in dispute. Seven

months later, however, it was not. We know this much not due to

any inference or assumption on our part, but because the district

judge and the parties told us so in the Pretrial Order of August

18, 2004. That Order contains an enumerated list entitled

"CONTESTED ISSUES OF FACT." Pretrial Order at 10. Conspicuously

absent from that list is anything about the Does’ attendance at the

Board meetings. In other words, as of August 18, 2004, the School

Board no longer contested the factual allegation that the Does had

attended Board meetings. The only contested facts at that point

relate to the merits of the case; they have nothing at all to do

with standing.1

1

The list reads as follows:

VIII. CONTESTED ISSUES OF FACT

1. Whether the meetings of the Tangipahoa Parish Board are an

integral component of the Tangipahoa public school system?

2. Whether the opening of meetings of [a] public school board,

particularly the Tangipahoa Parish School Board, with prayer is

deeply embedded in the history of this country?

3. Whether public school boards are legislative and deliberative

bodies akin to state legislative bodies?

4. Whether the act of board members, particularly Reverend

34

The Order goes on to say that if necessary, the plaintiffs

could call John, James and Jack Doe to testify, and that all three

would testify regarding the "[f]acts set forth in original and

amending complaints, particularly the events transpiring at the

Tangipahoa Parish School Board Meeting."2 It explains that such

live testimony may not be necessary, however, because "[t]he issue

in this case is purely legal." Pretrial Order at 13 (emphasis

added). This proved to be true. The parties agreed to have the

case tried before a judge on stipulations, and no live witnesses

were called to testify. This was possible solely because there

were no longer any relevant facts in dispute, so no witness

testimony, including that of the Does, was necessary. Viewed in

context, the Pretrial Order and the pleadings provide ample record

Richardson, the board president, and the assistant superintendents,

initiating and leading everyone in prayer prior to the commencement

of board meetings sends a loud, clear message that the board favors

religion and, in this case, Christianity?

5. Whether prayers given to solemnize present the same “coercive

effect” inherent in the classroom at school-sponsored events like a

football game?

6. Whether Defendants have exploited the board’s practice of

opening its meetings with a prayer to proselytize or advance any

one, or to disparage any other, faith or belief?

7. The amount of attorneys’ fees and costs, if any, Plaintiffs are

entitled to recover[.]

8. All issues of fact implicit in the contested issues of law.

Pretrial Order at 10.

2

As has already been said, the amended complaint specifically asserts

that the Does attended Board meetings and witnessed prayers. The original

complaint states that they were offended by those prayers. See infra note 5.

35

evidence that there was not, and indeed is not, any dispute about

the fact of the Does’ attendance at the meetings.

This conclusion becomes all the more certain when we consider

the nature and importance of pretrial orders in litigation.

Federal Rule of Civil Procedure 16(e) states that pretrial orders

"shall control the subsequent course of the action unless modified

by a subsequent order." FED. R. CIV. P. 16(e). One purpose of the

pretrial order is to put the parties on notice as to the evidence

they must be prepared to present. Morris v. Homco Int’l, Inc., 853

F.2d 337, 342 (5th Cir. 1988) (“The purpose of Rule 8(c), like the

purpose of the requirement that the pretrial order contain all

relevant claims and legal theories, is to inform the court and the

parties how the case will be tried.”). In Shell Oil v. M/T GILDA,

790 F.2d 1209 (5th Cir. 1986), we explained as follows:

A party need not offer proof as to matters not contested

in the pre-trial order. A contrary holding would be

inconsistent with the requirement that the pre-trial

order “shall control the subsequent course of the action

unless modified by subsequent order”. Indeed, such a

holding would not be consonant with the requirement of

the first rule of the Rules of Civil Procedure: The rules

“shall be construed to promote the just, speedy, and

inexpensive determination of every action”.

Id. at 1215 (citing United States v. First Nat’l Bank of Circle,

652 F.2d 882, 886 (9th Cir. 1981); FED. R. CIV. P. 1, 16(e))

(emphasis added). To dismiss this case now for lack of standing

violates that closing maxim, but worse yet, it creates a contested

fact question where the parties and the district judge agreed there

was not one.

36

Rule 16 and our precedent could not be more clear: Pretrial

orders control the scope of the trial, and those facts not

contested in the pretrial order are not up for debate at a later

date, even if a majority of this court now wants to debate them.

Since 1986, we have told litigants that “[a] party need not offer

proof as to matters not contested in the pre-trial order.” Id.

Today we are telling the Does that they had to do just that. This

is not merely an “inconvenience” for the parties (and the district

court); it is trial by ambush. First Nat’l Bank of Circle, 652

F.2d at 886 (“Disregard of these principles would bring back the

days of trial by ambush and discourage timely preparation by the

parties for trial.”).3 “Unless pretrial orders are honored and

enforced, the objectives of the pretrial conference to simplify

issues and avoid unnecessary proof by obtaining admissions of fact

will be jeopardized if not entirely nullified.” Id. (citing FED.

R. CIV. P. 16).

The Pretrial Order in this case was perfectly typical. It came

about as the product of a pre-trial conference held before the

3

Ordinarily when we use this term, it is to express our concern that

one party might ambush another. The irony in this case is that the trap was set

not by one of the parties, but by a majority of this en banc Court. In fact, the

parties conscientiously worked to move this case forward toward a ruling on the

merits in a timely fashion. They conducted a productive pretrial hearing; they

entered into a consent judgment that disposed of seven of the eight original

claims; they stipulated to all the necessary and relevant facts. They simply

wanted an answer to the constitutional question presented. Small wonder, then,

that the School Board did not mention standing in either its original or its en

banc brief, the latter of which was filed after the panel addressed the question

sua sponte. The reason for this is not that the School Board overlooked

standing, but that standing was no longer an issue, nor could it have been given

the procedural history of the case.

37

district judge. It concludes with a very explicit statement drawn

directly from FED. R. CIV. P. 16:

This Pre-Trial Order has been formulated after a

conference at which counsel for the respective parties

have appeared in person. Reasonable opportunity has been

afforded counsel for corrections, or additions, prior to

signing. Hereafter, this order will control the course

of trial and may not be amended except by consent of the

parties and the Court, or by order of the Court to

prevent manifest injustice.

Pretrial Order at 14 (emphasis added). The order is signed by the

district judge and counsel for both parties. The parties must be

held to their word, and we must be held to ours. The pretrial

order controls, and the fact of the Does’ attendance is not up for

debate.4

The record bears out that the Does attended School Board

meetings at which prayers were offered. That exposure gave them

4

The majority suggests in passing that the clause leaving open “[a]ll

contested issues of fact implicit in the contested issues of law” can be read to

encompass the facts at issue today. See supra note 1 (setting forth “Contested

Issues of Fact”). This is a misreading of the clause, which does not refer

generally to any issues of law that may someday become contested, but rather to

the specifically enumerated “Contested Issues of Law,” set forth in the Pretrial

Order. None of those issues has anything at all to do with standing, nor can any

of them be read to implicate the discrete fact of the Does' attendance at the

Board meeting. Of course, standing has become a contested issue now, but this

is not the sort of legal contest that was envisioned or encompassed by the

Pretrial Order.

Moreover, by the time this case went to trial, the parties had entered into

a consent judgment that left the court with only a single "contested issue of

law" to decide: Which case, Lemon or Marsh, governs prayers at a School Board

meeting? The Does' attendance at the Board meeting is not “implicit” in that

legal question. The Does' attendance is implicated only by the question of

standing, which is wholly separate from the merits of the case. See Warth v.

Seldin, 422 U.S. 490, 498 (1975) (“In essence, the question of standing is

whether the litigant is entitled to have the court decide the merits of the

dispute or of particular issues.”); Whitmore v. Ark., 495 U.S. 149, 155 (1990)

(quoting Warth v. Seldin, supra, 422 U.S. at 500) ("[The] threshold inquiry into

standing 'in no way depends on the merits of the petitioner's contention that

particular conduct is illegal.'").

38

standing to bring this suit then, and it gives them standing to

maintain it now.5 They are entitled to a decision on the merits,

and we should give them one. I dissent.

5

Of course, this evidence speaks only to the “injury in fact” prong

of the standing analysis, but that is the only prong at issue in this case.

Neither the majority nor the School Board has suggested that this case poses any

problems of causation or redressability. See Valley Forge Christian College v.

Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472

(1982) (discussing three factors). I note also that, though I have focused

solely on the question of the Doe’s attendance, there is also no dispute that the

Does were offended by the prayers they witnessed, which is necessary to show

injury in fact. They explicitly alleged as much in their original complaint, see

Orig. Compl. ¶ 14., and this fact was not in dispute by the time the parties and

the court signed the pre-trial order.

39