Opposition Brief — Douglas County School District v. Jager

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No. 88-1610 = aL, JR.

In The

Supreme Court of the United States

October Term, 1988

,

_

DOUGLAS COUNTY SCHOOL DISTRICT and

DOUGLAS COUNTY BOARD OF EDUCATION,

Petitioners,

VS.

DOUG JAGER and WILLIAM JAGER,

Respondents.

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=

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

a

-_

JerrreY O. BRAMLETT*

CAROLYN R. Gorwitz

BONDURANT, MIxsON & ELMORE

39th Floor IBM Tower

1201 West Peachtree Street, N.W.

Atlanta, Georgia 30309

(404) 881-4100

RALPH GOLDBERG

233 Mitchell Street

Suite 400

Atlanta, Georgia 30303

(404) 688-1613

Counsel for Respondents

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Does this public school system’s practice of broad-

casting prayers at high school football games violate the

Establishment Clause?

il

TABLE OF CONTENTS

Page

CRESTRON PRESENTE osc. s es ci0tans eee i

Se Oe RAN Os 0.0 5.0 055 85k Oe eee ii

Te I PU A Ce vs io ee eee oe eee iii

STAs ome) Ur te CAGE... 6c acs iaxcciobeueeee 2

I. Statement Of Pacts. o5 66 cscs cc ons s5e5 ste Z

Il. The Decision of the District Court.......... 5

III. The Decision of the Court of Appeals....... 8

REASONS FOR DENYING THE WRIT............. 9

I. The Fact-Specific Basis Of The Decision Below

Does Not Present A Certworthy Question

RiMee Se 27 TC? sos os xc eames 9

II. The Court Of Appeals’ Decision Does Not

Present A Conflict Requiring Review Under

i ae ge tS) re eI Rea h i Airy 10

A. The Eleventh Circuit’s Application of the

Lemon Test to Prayer Broadcasts in a Pub-

lic School Setting Does Not Conflict with

MATER Of US PROGENY 2355-50 eae 10

B. The Eleventh Circuit Correctly Applied

ke LOwene “TAGE. 652.5 enka ees 13

Ill. There Is No Reason to Delay Resolution of

This Case Pending a Decision in County of

Allegheny v. ACLU

C5.) MES oS rere re re A ge pl a 16

ili

TABLE OF AUTHORITIES

Page

emuer2. Peon, 4/3 U.S. 402 (1985) ................ 10

Bowen v. Kendrick, ___ U.S. __, 108 S.Ct. 2562

a a ee ne 10

Committee for Public Educ. & Religious Liberty v.

Re ts FIO (1979)... 6 cee ees 11

Corporation of Presiding Bishops v. Amos, 483 U.S.

i aa Sn 10

Edwards v. Aguiliard, 482 U.S. 578 (1987) ..... 1, 11,72

Estate of Thornton v. Caldor, Inc., 472 U.S. 703

OS aa a 10

Grand Rapids School Dist. v. Ball, 473 U.S. 373

kd fae 4 ba ie es at ee iss 10

enemas, 419 1.5. 754 (1975)... 2... eee eine. 11

Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982)..... 10

Lemon v. Kurtzman, 403 U.S. 602 (1971)....... 12, 13, 14

Lynch v. Donnelly, 465 U.S. 668 (1984) ........ 1: 24; 39

Marsh v. Chambers, 463 U.S. 783 (1983) .......... § ae

McCollum v. Board of Educ., 333 U.S. 203 (1948)...... 11

Meek v. Pittenger, 421 U.S. 349 (1975).............5-. 11

Mauer ©. Alien, 463 U.S. 388 (1983).........5.6.5.4. 10

Roemer v. Board of Public Works, 426 U.S. 736 (1976) ....11

Stein v. Plainwell Community Schools, 822 F.2d 1406

ig dao 5 a Sy vas xs ck bee a os 12, 13

Stone v. Graham, 449 U.S. 39 (1980).................. 10

iv

TABLE OF AUTHORITIES—Continued

Page

Tilton v. Richardson, 403 US: OFZ ATI 660 naw els: 11

Van Zandt v. Thompson, 839 F.2d 1215 (7th Cir.

PF ahd ds a RR RU oN a Rea Aas 12

Wallace v. Jaffree, 472 13:36 (98S) cs cs 10, 11

Witters v. Washington Dept. of Services for the Blind,

BFS a ee ole ae ee ae eee 10

Wonnan -v.° Walters, 495 U.S. 229 1977) 2 cee ss 11

No. 88-1610

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In The

Supreme Court of the United States

October Term, 1988

Sd

DOUGLAS COUNTY SCHOOL DISTRICT and

DOUGLAS COUNTY BOARD OF EDUCATION,

Petitioners,

VS.

DOUG JAGER and WILLIAM JAGER,

Respondents.

*

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

*

Respondents Doug and William Jager respectfully

oppose the Petition for Writ of Certiorari filed by the

Douglas County School District and Douglas County

Board of Education (“the School System”).

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STATEMENT OF THE CASE

I. Statement of Facts

The facts of this case are accurately stated in the

Court of Appeals’ decision.’ Of particular pertinence are

the following findings of fact made by the trial court:

Doug and William Jager are descended from Native

Americans. The Jagers possess and exhibit sincere

religious convictions derived from: (a) the reverence.

of Native Americans for nature; (b) a fundamental

belief in the intellectual capacity of human beings to

identify and address the salient issues of human exis-

tence; and (c) a skepticism toward organized reli-

gious dogma that inhibits intellectual curiosity and

scientific inquiry into questions and problems of

human existence. The elder Jager is genuinely and

legitimately concerned for raising his children, both

Doug and his 14-year old sibling, in accordance with

William Jager’s religious values and beliefs.?

The majority religious preference in Douglas County,

Georgia is Protestant Christian.4

High School football games in Douglas County are a

school-sponsored activity. Games are played on

school property at stadiums owned and operated by

1 This decision is reprinted in the petition for certiorari as

Appendix I. The panel majority’s statement of the facts is

reprinted at A5 - A7.

2 The trial court’s order of February 3, 1987, reprinted in

the petition as Appendix II, contains the trial court’s findings

of fact. For convenience, further reference to these findings will

be cited to the page where they appear in the appendix to the

cert petition.

3 A50-A51, Finding #5.

4 A51, Finding #6.

the Douglas County school system. The students who

play football and the students who participate in the

half-time marching band performance are supervised

by salaried employees of the school system. * * * *

[T]axpayer funds are used to pay for certain operat-

ing expenses, primarily electrical service for stadium

lights and for the public address system.°®

Invocations are a part of the pre-game ceremonies

opening each home football game. First, an

announcer introduces the invocation speaker and

usually identifies the name of the church with which

he is affiliated.¢

The invocations at DCHS (Douglas County High

School) have consisted of a prayer, addressed to God

which asks for God’s blessing. The prayers 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.”7

Commencing in 1950, local ministers began to give

the invocations.® From the early 1970’s through 1986,

[invocation speakers were recruited] through the

Douglas County Ministerial Association (“DCMA”).

The DCMA is a group of ordained clergy whose

membership currently consists exclusively of Protes-

tant Christian ministers. With perhaps five (5)

exceptions, every invocation delivered at DCHS foot-

ball games from the years 1974-1986 was given by a

Protestant Christian clergyman.!°

ur

A51, Finding #7.

6 A52, Finding #12.

? A52, Finding #13.

8 A53, Finding #22.

9 A53, Finding #23.

10 A54, Finding #25.

Beginning in the Fall of 1985, Doug Jager attempted

to obtain relief from the Douglas County school sys-

tem on his objections to the pre-game prayers. He

began by writing to his school principal, John Stone.

Stone responded by asking Tony Plunkett, the band

director, to discuss the matter with the younger Jager.

Plunkett, who was at the time routinely leading the

marching band in recitations of the Lord’s Prayer

prior to every performance, proceeded to lecture

plaintiff on Christianity.”

In March 1986, counsel for the plaintiffs contacted

counsel for the school system to seek a solution to the

instant dispute. This resulted in a June 2, 1986 confer-

ence between school Superintendent Kathryn M.

Shehane, counsel for the school system, and the

Jagers and their counsel. Shehane and her counsel,

without notice to the Jagers or their counsel, invited

members of the DCMA to participate in the meeting.

At the meeting, two alternative proposals for modify-

ing the invocation practices were discussed: an inspi-

rational wholly secular speech and an “equal access”

plan which retained some religious Content. !2

Upon plaintiffs’ rejection of the “equal access” plan,

Reverends Jamie E. Jenkins and Donald Mountain,

both of the DCMA, met with counsel for the school

system and proceeded to draft a compromise pro-

posal. The stated purpose of the draft was to “perpet-

uate and regulate the traditional invocation as part of

the opening ceremonies of school athletic events.” 1%

In September of 1986, Superintendent Shehane met

with the principals of Douglas County high schools

to discuss the issue of pre-game prayers. The docu-

ment drafted by Jenkins and Mountain was consid-

11 A54, Finding #26.

12 A54, Finding #27.

13 A55, Finding #29.

II.

ered and the principals and Shehane decided to pro-

ceed in accordance with the equal access plan.’

On September 15, 1986, the principals of the Douglas

County high schools informed their schools that the

invocations would proceed at the footbail games

. in accordance with the “equal access” plan. The

terms of the plan, as announced, are coextensive with

the terms set forth in the Jenkins/Mountain plan.!°

Representatives of [the school system] never identi-

fied any secular purpose for the invocation until this

lawsuit arose.!©

One of the defendants’ purposes in having and sup-

porting an invocation prior to high school football

games in Douglas County was motivated by a desire

to satisfy the genuine, good faith wishes on the part

of a majority of the citizens of Douglas County to

publicly express support for Protestant Christianity. !7

One of the effects of the prior practices in regard to

invocations was to create the appearance or impres-

sion that the school system endorsed Protestant

Christianity. '§

The Decision of the District Court

The Jagers brought this lawsuit on September 19,

1986 seeking declaratory and injunctive relief to stop the

Douglas County School Systein from “permitting, author-

izing and condoning religious ceremonies at public high

school athletic events.”19 A bench trial ensued on Novem-

ber 14 and 15, 1986. At trial, the School System vigorously

14 A55, Finding #31.

15 A55, Finding #33.

16 A56, Finding #36.

17 A57, Finding #39.

18 A57, Finding #40.

19 Complaint, at 1.

defended its tradition of broadcasting pre-game prayers

delivered by Protestant clergymen selected through the

Douglas County Ministerial Association.?°

After hearing evidence and argument from both

sides, the trial court concluded that “[t]he central issue in

this matter was the constitutionality of the practice of

giving pre-game invocations at high school football

games in Douglas County, Georgia, and not, as defen-

dants contend, the facial constitutionality of the ‘equal

access’ plan.”2! On February 3, 1987, the trial court

decided this central issue in favor of the Jagers by issuing

a declaratory judgment, but declining to grant injunctive

relief based on the belief “that no additional restraint is

necessary to assure the defendants’ compliance with the

provisions of this Order.”22

The School System subsequently moved for “clari-

fication” of the effect of the trial court’s declaratory judg-

ment on a proposal which surfaced in the trial testimony

of School Superintendent Shehane labelled the “equal

20 The School System’s triai brief, served November 13,

1986, makes no mention of any “equal access” plan.

*1 The tria! court articulated this conclusion in its Order of

June 2, 1987 in response to the eleventh-hour mootness argu-

ment raised by the School System. See Appendix IV to the

petition for certiorari, at A63.

22 Order of February 3, 1987 (Appendix II to the petition

for certiorari, at A59).

access” plan.?° In response to this motion, the trial court

entered a further order on February 27, 1987 concluding

that this “equal access” plan was constitutional on its

face, but declining “to express any opinion as to the

23 A colloquy between the trial judge and lead counsel for

the School System at a March 27, 1987 hearing offers some

insight into the trial court’s confusion and the School System’s

“heads-I-win; tails-you-lose” strategy with respect to the

“equal access” plan:

Judge Tidwell: [T]here were some changes between the

equal access plan that was attached to his complaint l[i.e.,

the Jenkins Mountain proposal] and the equal access plan

as it is now [i.e., the proposal described by Superintendent

Shehane at trial]. Isn’t it?

Mr. Jones: | don’t think so, your Honor, because the court

Judge Tidwell: Wasn’t the Ministerial Association, weren't

they involved in the first and not in the second?

Mr. Jones: Your Honor, I think the one thing you may be

thinking about is what was called Exhibit B. It had a top

part and a bottom part, and the top part referred to certain

purposes, and so forth.

But the plan itself, which appeared on the bottom, the

Court found to be coextensive with what had been dis-

cussed earlier in the meetings between the ministers and

counsel for the plaintiffs and the two Mr. Jagers.

And the findings of fact of the Court are that the equal

access plan, as described in the Court’s judgment and as

testified to by Ms. Shahan [sic: Shehane}, were identical, if

you will, to that earlier equal access plan. So there's never

been but one plan before the Court during the litigation. That

was the plan that was formulated before this lawsuit was ever

filed. (Transcript of March 27, 1987, at 13-14 (emphasis

supplied)).

application of the “equal access” plan.”24 Following the

disposition of motions over the taxation of costs and

attorneys’ fees,° cross appeals from the trial court’s rul-

ings were taken to the Court of Appeals for the Eleventh

Circuit.

III. The Decision of the Court of Appeals

The Court of Appeals’ decision is accurately

reprinted in Appendix I to the petition for certiorari.

Supported by a concurrence “in the result reached by the

majority and with the choice of legal authority to support

its position”,?6 the panel majority: (1) affirmed the trial

court’s order declaring the School System’s pregame

invocations unconstitutional; (2) reversed the trial court’s

order declaring the “equal access” plan constitutional on

its face; and (3) remanded to the trial court for recon-

sideration of its award of attorneys’ fees.27

On January 23, 1989, the School System sought

rehearing in banc. By a majority vote of the Eleventh

Circuit Judges in active service, this request was denied

through an order issued on March 3, 1989.28 On April 21,

1989, the Court of Appeals issued its mandate and judg-

ment remanding the case to the trial court for disposition

of the pending attorneys’ fees issues.

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4 Order of February 27, 1987, reprinted at Appendix III to

the petition for certiorari, at A60.

°° See Appendices IV & V to the petition for certiorari.

*6 Concurring opinion of Senior Circuit Judge John W.

Peck, reprinted in Appendix I to the petition for certiorari, at

A25 - A26.

*? Appendix I to the petition for certiorari, at A25.

28 Appendix VI to the petition for certiorari, at A75 - A76.

REASONS FOR DENYING THE WRIT

I. The Fact-Specific Basis Of The Decision Below Does

Not Present A Certworthy Question Under Rule

17.1(c).

Contrary to the School System’s contentions, this

case does not involve presidential inaugurations, sessions

of the United States Congress, or sessions of the United

States Supreme Court. As the Court of Appeals’ opinion

makes readily apparent, this case involves the actions and

the motives of one county public school system in the

State of Georgia with a troubled history of noncom-

pliance in matters governed by the Establishment

Clause.29 The trial court heard testimony from the elected

officials who govern Douglas County’s public schools

and became convinced that their actions in having and

supporting pregame invocations: (1) were “motivated by

a desire to satisfy the genuine, good faith wishes on the

part of a majority of the citizens of Douglas County to

publicly express support for Protestant Christianity”;°°

and (2) “create the appearance or impression that the

school system endorsed Protestant Christianity.”°?

29 Beyond the facts found by the-trial court with regard to

Protestant Christian clergy involvement in the traditional

recruitment of invocation speakers and in the School System’s

formulation of a response to this dispute over its traditional

delivery of clergy-led pregame prayers, evidence at trial

showed that, in Douglas County public schools, the practices

of Gideon New Testament Bible distribution and teacher-led

Protestant prayers persisted until 1986. Trial transcript at

40-42, 80-81, 202-203.

30 Order of February 3, 1987 (Appendix II to Petition for

certiorari, at A57, Finding #39).

31 Jd., Finding #40.

10

This case turns on egregious evidence of religious

favoritism in a public school setting. It offers no useful

vehicle through which this Court can offer guidance to

other federal courts confronted with Establishment

Clause disputes over the question of more general appli-

cation: constitutional limits on the accommodation of cer-

emonial invocations at public events. Under the

circumstances, review of a case in which the trial court

correctly found the facts and the Court of Appeals cor-

rectly applied the law would be a waste of this Court’s

resources.

II. The Court Of Appeals’ Decision Does Not Present

A Conflict Requiring Review Under Rule 17.1(a).

A. The Eleventh Circuit’s Application of the

Lemon Test to Prayer Broadcasts in a Public

School Setting Does Not Conflict with Marsh

or its Progeny.

This Court has issued numerous Establishment

Clause decisions since Lemon v. Kurtzman, 403 U.S. 602

(1971). With one notable exception, the Court has

employed the principles articulated in Lemon as the ratio-

nale for decision.32 The lone exception, Marsh v. Chambers,

32 Bowen v. Kendrick, __ U.S. __, 108 S.Ct. 2562 (1988);

Edwards v. Aguillard, 482 U.S. 578 (1987); Corporation of Presid-

ing Bishops v. Amos, 483 U.S. 327; Witters v. Washington Dept. of

Services for the Blind, 474 U.S. 481 (1986); Grand Rapids School

Dist. v. Ball, 473 U.S. 373 (1985); Aguilar v. Felton, 473 US.

402 (1985); Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985);

Wallace v. Jaffree, 472 U.S. 38 (1985); Lynch v. Donnelly, 465 U.S.

668 (1984); Mueller v. Allen, 463 U.S. 388 (1983); Larkin v.

Grendel's Den, Inc., 459 U.S. 116 (1982); Stone v. Graham,

(Continued on following page)

11

463 U.S. 783 (1983), rests on an historical analysis of the

Framers’ acceptance of “nonsectarian”* legislative

prayer under circumstances which do not “symbolically

place the government’s official seal of approval on one

religious view.”34

This Court has never extended the unique analysis of

Marsh to public school settings.?> Indeed, the decisions of

this Court indicate that Marsh’s “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 v. Aguillard, 482 U.S. at 583, n.4. See

also Wallace v. Jaffree, 472 U.S. 38, 80 (1985) (O’Connor, J.,

concurring).

(Continued from previous page)

449 U.S. 39 (1980); Wolman v. Walters, 433 U.S. 229 (1977);

Roemer v. Board of Public Works, 426 U.S. 736 (1976); Meek v.

Pittenger, 421 U.S. 349 (1975); Committee for Public Educ. &

Religious Liberty v. Nyquist, 413 U.S. 756 (1973); Hunt v. McNair,

413 U.S. 734 (1973); Tilton v. Richardson, 403 U.S. 672 (1971).

33 463 U.S. at 793, n.14.

34 463 U.S. at 792.

35 The Court has been consistently vigilant to protect reli-

gious minorities in the public schools from expression of gov-

ernmental favoritism toward the majority’s religious

preference that “sends a message to nonadherents that they are

outsiders, not full members of the political community, and an

accompanying message to adherents that they are the insiders,

favored members of the political community.” Lynch v. Don-

nelly, 465 U.S. at 688 (O’Connor, J., concurring). This vigilance

reflects Justice Frankfurter’s cogent observation: “In no activ-

ity of the State is it more vital to keep out divisive forces than

in its schools, to avoid confusing, not to say fusing, what the

Constitution sought to keep strictly apart.” McCollum v. Board

of Educ., 333 U.S. 203, 231 (1948) (concurring opinion).

12

The Eleventh Circuit’s majority opinion squarely

addresses both Marsh and its progeny from the Sixth%¢

and Seventh Circuits.3” For the reasons articulated in this

Court’s opinion in Edwards, the Eleventh Circuit properly

concluded that Marsh’s unique historical analysis of the

subject of legislative prayer has no application to the

public school setting. 862 F.2d at 828-829 (Appendix I to

petition for certiorari, at A10 - A12). On this basis, the

Eleventh Circuit found Van Zandt’s extension of the Marsh

analysis to a legislative prayer issue arising over the

existence of a prayer room in the Illinois state capitol

building “inapposite here.” 862 F.2d at 829 n.9 (Appendix

I to petition for certiorari, at A12, n.9). Thus, Marsh and

Van Zandt are readily distinguishable and not in conflict

with the ruling here.

There is also no conflict with Stein. Contrary to the

School System’s characterization of this decision by a

fragmented panel of the Sixth Circuit, Stein holds that the

graduation ceremony prayers challenged in that case vio-

lated the Establishment Clause because they contained

“language that is unacceptable under Marsh, language

which says to some parents and students: we do not

recognize your religious beliefs, our beliefs are superior

to yours.” 822 F.2d at 1410. The writing judge reached this

conclusion under the rationale of Marsh. A second Sixth

Circuit judge concurred in the result, but applied Lemon

principles.

36 Stein v. Plainwell Community Schools, 822 F.2d 1406 (6th

Cir. 1987).

37 Van Zandt v. Thompson, 839 F.2d 1215 (7th Cir. 1988).

13

‘

The result in Stein does not conflict with the decision

here; indeed, these cases are perfectly consistent in strik-

ing down sectarian prayers at public schoo! functions.

The reasoning underlying these uniform results is admit-

tedly different. However, differences in the rationale

employed by the Circuits for reaching uniform decisions

do not, by themselves, warrant the exercise of this

Court’s power of certiorari.

B. The Eleventh Circuit Correctly Applied the

Lemon Test.

The trial court found that pregame prayers as they

were delivered in the Douglas County School System

violated both the purpose and effect prongs of the Lemon

test.38 The trial court further found that the “equal

access” plan at issue in this case was proposed by Dou-

glas County Ministerial Association members for the

express purpose of “perpetuat[ing] and regulatling] the

traditional invocation as part of the opening ceremonies

of school athletic events.”39 The record establishes that

the School Superintendent and high school principals met

and resolved to proceed in accordance with the Jenkins/

Mountain “equal access” plan.4° The School System's

counsel told the trial court “there’s never been but one

[‘equal access’] plan before the Court.”4!

33 Order of February 3, 1987 (Appendix II to petition for

certiorari, at A57, Findings #39 & #40).

39 Td., at A55, Finding #29.

40 Id., Finding #31.

41 See colloquy of March 27, 1987 reprinted at n.23, supra.

14

On this factual record, the Court of Appeals properly

applied the Lemon test. In light of the trial court’s finding

that the School System had “never identified any secular

purpose for the invocation until this lawsuit arose,”42 the

Court of Appeals correctly scrutinized the record for the

actual motives (as distinguished from after-the-fact ratio-

nalizations) that animated the School System to embrace

the “equal access” plan. This process of scrutiny under-

standably left concurring Judge Peck with “the haunting

thought that the equal access plan comes across... asa

thinly veiled attempt to continue the forty year old tradi-

tional pre-game prayer format found unconstitutional by

the district court.” 862 F.2d at 835 (Appendix I to petition

for certiorari, at A25).

The Court of Appeals opinion does note that the

School System rejected nonsectarian means for accom-

plishing the purported goals of the “equal access” plan:

to inject dignity and solemnity into high school football

games. However, the conclusion that pregame prayers in

the Douglas County schools continue to violate both the

purpose and effect prongs of the Lemon test hardly rests

on that fact alone. There is overwhelming support for the

determination that the School System acted with tainted

motive, ranging from the trial court’s explicit findings of

fact based upon its first-hand review of the evidence to

the evidence summarized in footnote 11 of the Court of

Appeals’ opinion. Moreover, nothing in the School Sys-

tem’s “equal access” plan redresses the impression forged

on forty years of constitutional violations that the Dou-

glas County School System favors Protestant Christianity.

42 Id., Finding #36.

15

As the panel majority’s opinion observes: “[t]his message

becomes even clearer when the context of these pregame

prayers is understood.” 862 F.2d at 831 (Appendix I to

petition for certiorari, at A16).

III. There Is No Reason To Delay Resolution Of This

Case Pending A Decision In County of Allegheny v.

ACLU.

The School System has urged the Court to delay its

decision on this petition pending the issuance of a deci-

sion in County of Allegheny v. ACLU, Case Nos. 87-2050,

88-90, & 88-96. These cases deal with the display of

religious symbols on public property.

The School System argues that a decision upholding

the displays at issue in those cases “would be further

support for” its position. It does not specify how or why.

On the other hand, the School System contends that a

decision finding these displays unconstitutional would

have no controlling effect on this case.

The Jagers believe that any decision in the County of

Allegheny cases would have, at most, marginal impact on

this case. The factual bases for distinguishing this chal-

lenge to prayers in a public school setting from disputes

over the display of religious symbols on public property

are readily apparent. Given the Court’s traditional fact-

specific approach to Establishment Clause questions and

its “unwillingness to be confined to any single test or

criterion in this sensitive area,”43 the prospect that this

43 Lynch v. Donnelly, 465 U.S. at 679.

16

case can or should hinge on the result in County of Alle-

gheny seems most remote. In these circumstances, the

remand of this case to the trial court for final disposition

should not be further delayed.

y

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CONCLUSION

For the foregoing reasons, the Petition for Writ of

Certiorari should be denied without delay.

Respectfully submitted,

JEFFREY O. BRAMLETT*

CAROLYN R. Gorwitz

BONDURANT, MIxsON & ELMORE

39th Floor IBM Tower

1201 West Peachtree Street, N.W.

Atlanta, Georgia 30309

(404) 881-4100

RALPH GOLDBERG

233 Mitchell Street

Suite 400

Atlanta, Georgia 30303

(404) 688-1613

_ Counsel for Respondents

*Counsel of Record

May 1, 1989