Petition for Writ of Certiorari — Jones v. Clear Creek Independent School District

Supreme Court, U.S.

T) FILED

91-310 AUG 20 1991

No. 91-___ OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1991

+

MERRITT E. JONES, individually;

PAMELA JONES, by Merritt E. Jones,

her father and next friend; JOHN DOE,

individually; JANE DOE, by John Doe,

her father and next friend,

Petitioners,

CLEAR CREEK INDEPENDENT SCHOOL DISTRICT,

Respondent.

@

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

e

PETITION FOR WRIT OF CERTIORARI

o

Bruce V. GriFFITHS*

GREATER Houston CHAPTER

AMERICAN Civit LiBeRTIES UNION

1236 West Gray

Houston, Texas 77019

(713) 524-6021

MitcHELL A. SEIDER

3700 First City Tower

Houston, Texas 77002

(713) 658-8881

Attorneys for Petitioners

* Counsel of Record

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

OR CALL COLLECT (402) 342-2831

—

QUESTION PRESENTED

Whether Clear Creek Independent School District’s

policy of allowing prayers approved by school officials to

be delivered as part of commencement exercises violates

the Establishment Clause as a matter of law?

ii

LIST OF PARTIES

The caption of the case contains the names of all

parties.

ili

TABLE OF CONTENTS

Page

I I PRP RE WUPUNE OEE ow cece cette eee iv

ee ee 1

Ee Sek ekg hn dese s can seen nns eee 2

CONSTITUTIONAL PROVISIONS.................. 2

ee ss ey 2

I nec ects sees etunese 2

ska a ec ee esc cea snes 5

REASONS FOR GRANTING THE WRIT ........... 6

I. THIS CASE INVOLVES QUESTIONS THE

COURT HAS AGREED TO CONSIDER IN

a eee eee ee 6

II. THE FIFTH CIRCUIT’S DECISION IMPROP-

gE 3” a. Eee 9

Gass bask e ek sk nsec beet eeensnes 13

rc.) ius i ssi cs stsneeeds App. 1

iv

TABLE OF AUTHORITIES

Page

Cases:

County of Allegheny v. American Civil Liberties

See, GENE WEA, Bw CURD s dics wai cceevcscscscnens 9

Jager v. Douglas County School Dist., 862 F.2d 824

(11th Cir. 1989), cert. denied, 490 U.S. 1090 (1989) .10, 11

Jones v. Clear Creek Indep. School Dist., 930 F.2d 416

UN 54S SCA CEN RET aa he ON weed aR Cane AS passim

Karen B. v. Treen, 653 F.2d 897 (5th Cir. Unit A

1981), aff'd mem., 455 U.S. 913 (1982).............. 10

Lemon v. Kurtzman, 403 U.S. 602 (1971).......... passim

Lynch v. Donnelly, 465 U.S. 668 (1984)........ 10, 12, 13

Marsh v. Chambers, 463 U.S. 783 (1983) ............... 5

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

St IA os Cy Aww ha Ce ae ance Lc ageNnekanuaws 9

Wallace v. Jaffree, 472 U.S. 38 (1985) ................. 11

Wallace v. Jaffree, 705 F.2d 1526 (11th Cir. 1983),

er ae ee SN Oe CUIIIN 6 ia Kx deh snack decaeseaaeens 11

Weisman v. Lee, 908 F.2d 1090 (1st Cir. 1990) cert.

granted, 111 S. Ct. 1305 (1991) ......... 6, 8, 9, 10, 13

Weisman v. Lee, 728 F. Supp. 68 (D.R.I.), aff'd, 908

Pa WO ROE CO, WOO 6 kerk sic ce siniccsensus 6, 7, 8

Zorach v. Klausen, 343 U.S. 306 (1952) ................ 9

CONSTITUTIONAL PROVISIONS:

es ul eal da odakke nua 2, 5

TABLE OF AUTHORITIES - Continued

Page

STATUTES:

, Bik tom By. ¢ |) ere rer rer rtere rr coo 2

ee ok S| ORR en eer rere ner ayy cr 5

No. 91-___

+

In The

Supreme Court of the United States

October Term, 1991

e

MERRITT E. JONES, individually;

PAMELA JONES, by Merritt E. Jones,

her father and next friend; JOHN DOE,

individually; JANE DOE, by John Doe,

her father and next friend,

Petitioners,

V.

CLEAR CREEK INDEPENDENT SCHOOL DISTRICT,

Respondent.

¢

Petition For A Writ Of Cer.ciorari

To The United States Court Of Appeals

For The Fifth Circuit

+

PETITION FOR WRIT OF CERTIORARI

e

OPINIONS BELOW

The decision of the United States Court of Appeals

for the Fifth Circuit is reported at 930 F.2d 416 (1991) and

is reprinted in the appendix (App. 1). The Fifth Circuit

Order denying the suggestion for rehearing by the Panel

is unreported (App. 21). The decision of the United States

District Court for the Southern District of Texas is also

unreported (App. 23).

a

JURISDICTION

The district court issued its decision granting sum-

mary judgment for the Respondents on May 16, 1989.

Petitioners filed their Notice of Appeal on June 9,

1989. On April 18, 1991 the Fifth Circuit affirmed the

judgment of the district court. A timely Suggestion for

Rehearing by the Panel was denied by the Fifth Circuit on

May 22, 1991.

The jurisdiction of this Court is invoked pursuant to

28 U.S.C. § 1254(1).

.

CONSTITUTIONAL PROVISIONS

The First Amendment to the United States Constitu-

tion provides:

Congress shall make no law respecting an estab-

lishment of religion, or prohibiting free exercise

thereof; or abridging the freedom of speech, or

of the press; or the right of the people peaceably

to assemble, and to petition the Government for

a redress of grievances.

¢

STATEMENT OF THE CASE

A. Factual Background

Petitioner, Merritt E. Jones, is the father of Petitioner,

Pamela Jones. Pamela is a 1987 graduate of Clear Lake

High School. Petitioner, John Doe, is the father of Peti-

tioner, Jane Doe. Jane is a 1988 graduate of Clear Lake

High School. After an Unopposed Motion for Leave to

Proceed in Pseudonyms, the Does adopted the pseud-

onyms to escape retribution from individuals who

strongly oppose their position. Petitioners will be

referred to collectively as “Jones.”

Jane Doe was a senior student at Clear Lake High

School, a school operated by Clear Creek Independent

School District (“Clear Creek”). All of the Petitioners

desired to attend the graduation ceremony of Jane Doe's

high school class, which was scheduled for June 1988.

Graduation ceremonies at Clear Creek’s Clear Lake High

School have been traditionally open to all relatives and

friends of graduating seniors. Petitioners were invited to

Petitioner Jane Doe’s graduation ceremony in 1988. All

four of the Petitioners have numerous friends and

acquaintances who attend, and whose children attend,

Clear Creek’s Schools. The Petitioners can therefore rea-

sonably expect to have occasion to attend graduation

ceremonies at Clear Lake High School for years to come.

Graduation ceremonies at Clear Lake High School

have for some years included an invocation during which

a member of the senior class leads the audience in prayer.

The ceremony is under the direction and control of school

district administrators. A prayer is included in the cere-

mony in accordance with a policy or custom of the school

district. A copy of the 1986 Clear Lake High School

Commencement program containing reference to the

invocation and benediction was before the trial court. The

1986 invocation and benediction were as follows:

INVOCATION

Lord,

Thank you for allowing us to attain this mile-

stone in our lives. Help us all to remember your

great kindness and love [unintelligible] we cele-

brate this great accomplishment in our lives.

Since the high school years are a painful grow-

ing time undoubtedly, for each, the disappoint-

ments and mishaps that have occurred over the

last years have just seemed [backed up?] When

we take the time in the future to talk over our

high school years in the halls of memories, the

victories [unintelligible], the successes and

defeats [unintelligible], and the friendships

above all that never ever meet will all shine

through with brilliant radiance and happiness

that will only become more meaningful and

beautiful as the years pass us by. Thankfully,

nothing short of your Gospel and power will

ever eclipse these great visions and memories. It

is these unequivocal times that we are here to

commemorate this afternoon. [Sentence unintel-

ligible] Just bless and keep each of us over the

years ‘til someday we will all meet again. Amen.

BENEDICTION

Let us pray.

Dear Lord,

As we emerge from the secluded passages

please inspire us with your grace and great

words of [unintelligible] heaven. Instill in us the

spirit of dignity and pride. Inspire us to face all

our challenges with confidence and turn obsta-

cles into steppingstones to success. Amen.

Although the invocations given in subsequent years have

not included overt references to Christian theology, Clear

Creek and its officials continue to assert the right to

include traditional prayers in future graduation ceremo-

nies as long as the prayers are nonsectarian and non-

proselytizing.

B. Proceedings Below

On May 11, 1987, Petitioners filed suit pursuant to 42

U.S.C. § 1983, challenging as unconstitutional Clear

Creek’s policy of allowing invocations containing tradi-

tional Christian prayer at its high school graduation cere-

monies. Petitioners sought a permanent injunction and

declaratory relief that the practice and custom of the

Respondent violates Petitioners’ rights under the First

Amendment to the United States Constitution.

On January 19, 1988, Respondent filed a motion for

summary judgment and on May 12, 1989, the district

court granted Respondent’s motion. Petitioners appealed

to the Fifth Circuit.

In its opinion, the district court applied the tripartite

test set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971).

The district court rejected the Respondent’s request to

apply the “traditional practice test” developed in Marsh v.

Chambers, 463 U.S. 783 (1983). Relying on the frequency

and duration of the Invocation and Benediction, the age

of the students subjected to it, the conduct of the com-

mencement exercises off of school grounds and the vol-

untary nature of the offering, the district court concluded

that under Lemon the Respondent's practice does not

constitute state endorsement of religion.

On appeal, the Fifth Circuit affirmed the district

court based on its review under Lemon. The court found

that although the Respondent’s policy allows invocations

addressing a deity, “this is as consistent with secular

solemnizing purpose as any religious purpose.” Jones v.

Clear Creek Indep. School Dist., 930 F.2d 416, 420 (1991). In

analyzing the “effect” prong of the Lemon test, the court

found that the age of the students attending the

commencement exercises, the effect of the Invocation on

the entire ceremony, the frequency of the Invocation’s

offering, the Invocation’s length, the policy’s expressed

denominational neutrality and “voluntary observance

provisions” together demonstrated that the effect of Clear

Creek’s policy is not to establish religion. 930 F2d at

421-422. Finally, the court found that Respondent's policy

requiring its officials to screen proposed invocations for

sectar.an or proselytizing content does not constitute an

impermissible entangiement between school authorities

and religious institutions. Id. at 423.

¢

REASONS FOR GRANTING THE WRIT

I. THIS CASE INVOLVES QUESTIONS THE COURT

HAS AGREED TO CONSIDER IN ANOTHER CASE

This case raises the same issues as a case pending

before the Court. The Court has granted a writ of cer-

tiorari in Weisman v. Lee, 908 F.2d 1090 (1st Cir. 1990), cert.

granted, 111 S. Ct. 1305 (1991). In Weisman, the First Cir-

cuit, on similar facts, reached a conclusion contrary to the

Fifth Circuit’s holding in Jones. Compare Weisman v. Lee,

728 F. Supp. 68 (D.R.1.), aff'd, 908 F.2d 1090 (1st Cir. 1990)

with Jones, 930 F.2d at 423 (virtually identical facts yield

different holdings).

In Weisman, the plaintiff was a member of the gradu-

ating class at a public middle school.' The school’s com-

mencement ceremony included an invocation and

benediction delivered by a rabbi which addressed the

Deity, but contained, as might be expected, no reference

to Jesus, or to any particularly Jewish theological concept

or figure. The two prayers were drafted with the guid-

ance of a pamphlet entitled “Guidelines for Civic Occa-

sions,” published by the National Conference of

Christians and Jews and containing, unlike the con-

clusory language of the Clear Creek policy, specific sug-

gestions as to how a prayer should be drafted in order to

be inoffensive enough to serve as a “public prayer in a

pluralistic society.” Notwithstanding the school’s efforts

to render the prayers non-sectarian, the district court and

the First circuit held that offering the prayers violated the

establishment clause and enjoined the district from con-

ducting public prayers in both the middle school from

which the plaintiff had graduated and the high school

which she was attending at the time of trial.

The Fifth Circuit pointed to Clear Creek’s requiring

“non-sectarian” invocations as evidence that the effect of

Clear Creek’s policy is not an endorsement of religion.

See 930 F.2d at 422 (citation omitted). Under the Weisman

decision, because an invocation is by its nature 4 prayer,

whether it is sectarian or non-sectarian is irrelevant:

1 The facts of the case are found in the district court’s

opinion in Weisman v. Lee, 728 F. Supp. 68 (D.R.I. 1990), which

the majority of the First Circuit panel adopted for its opinion.

[flinally, the non-sectarian guidelines used by

the School Committee are not a means of rescue.

They are useful in environments where prayer is

permitted. Here, it is not the particular nature or

wording of the prayers which implicates the

first amendment - it is prayer at the ceremony

which transgresses the Establishment Clause.

Weisman, 728 F. Supp. at 86 (adopted 908 F.2d at 1090).

Moreover, compelling school officials to determine

whether the benedictions and invocations to be offered at

a public school graduation ceremony are non-sectarian

necessarily “entangles” the government in religious

affairs excessively, in violation of the third prong of the

Lemon test.

Appellants make much of the fact that the

school had chosen to give a suitably non-

denominational prayer because school officials

distributed a pamphlet entitled “Guidelines for

Civic Occasions.” These guidelines suggest what

kind of prayers should be written. This supervi-

sion of the content of the prayers by the school

official implicates the entanglement prong. The

school is impermissibly involved in regulating

the content of the prayer.

908 F.2d at 1106 (Bownes, J., concurring).

Contrary to the Jones decision, the Weisman opinion

recognizes the fact that official sponsored school prayers

have, under the Establishment Clause, no place in any

part of the program of a public school, including the

graduation ceremony. Whatever Clear Creek’s policy

means, it allows public prayers, composed under guide-

lines school officials established, to be delivered by stu-

dents acceptable to school administrators in the course of

an event the government sponsors. This practice neces-

sarily creates the impression of government endorsement

of religion and is therefore unconstitutional. County of

Allegheny v. American Civil Liberties Union, 492 U.S. 573

(1989).

In light of Weisman, the present case creates a conflict

in the circuits. See Stein v. Plainwell Community Schools,

822 F.2d 1406 (6th Cir. 1987) (upholding prayers based on

historical acceptance). As this Court has already granted

certiorari in Weisman, it should also hear Jones. Alter-

natively, this Court should hold this petition pending a

final decision in Weisman.

II. THE FIFTH CIRCUIT’S DECISION IMPROPERLY

APPLIED LEMON

In allowing the offering of invocations at its

commencement exercises, Respondent is not accom-

modating religion. The “accommodation” cases involve

arranging the school day to allow students to follow

religious pursuits in activities the school does not control.

See, e.g., Zorach v. Klausen, 343 U.S. 306 (1952). Clear

Creek’s policy, however, charges a school event, gradua-

tion, with the offering of a religious exercise. In so doing,

Clear Creek communicates that it goes beyond accom-

modating religion and, in fact, endorses religion. The

policy, therefore, involves Clear Creek in a practice that is

not acceptable under Lemon. See 403 US. at 612.

Before 1986, Respondent’s commencement exercises

included “overt references to Christianity.” Jones, 930 F.2d

at 417. The Fifth Circuit found that Respondent's policy,

10

adopted on December 15, 1987, would allow for constitu-

tionally permissible invocations to be offered at future

graduation ceremonies. See id. at 424. As the First Circuit

recognized in Weisman, however, the effect of allowing

prayer at a public school is to communicate an endorse-

ment of religion. 908 F.2d at 1060. The cases indicate that

praying is properly seen as a religious exercise. The com-

mon understanding is that an invocation is a call to

prayer.

Regardless of whether a prayer contemplates a

“wholly secular objective,” it is an “inherently religious”

exercise. Karen B. v. Treen, 653 F.2d 897, 901 (Sth Cir. Unit

A 1981), aff'd mem., 455 U.S. 913 (1982). In Jones, the Fifth

Circuit skirted the issue of whether an invocation is a

prayer. See 930 F.2d at 417 n.1. This Court, however, has

recognized that “invocation” is synonymous with prayer.

Cf. Lynch v. Donnelly, 465 U.S. 668, 685 (1984) (debate over

national defense following “a prayer invoking Divine

guidance in Congress” does not “demean or taint the

sacredness of the invocation”). The primary effect of

prayer is to advance religion. Jager v. Douglas County

School Dist., 862 F.2d 824, 831 (11th Cir. 1989), cert. denied,

490 U.S. 1090 (1989) (citation omitted). A school board

may not continue in a practice that has the effect of

“communicating a message of government endorsement”

of religion. See Lynch, 465 U.S. at 692 (O’Connor, J. con-

curring).

Moreover, the objective and subjective message of

Clear Creek’s policy should be considered in analyzing

the effect of the policy. Id. at 690. Even if this Court

concludes that an invocation is not necessarily prayer, it

11

nevertheless should consider the subjective understand-

ing those attending Clear Creek’s commencements have

of Clear Creek’s invocations. See id.; cf. Jager, 862 F.2d at

831 (school activities that include prayers put all in atten-

dance in a position of participating in group prayer). The

evidence available to the district court demonstrated that

the 1986 invocations and benediction were objectively

prayers. See 930 F.2d at 417. Nothing in Clear Creek’s

resolution of December 15, 1987 changed its message to

those who attend its ceremonies in which the Diety’s

assistance is requested. See 930 F.2d at 417 n.1.

In applying the purpose prong of Lemon, the Fifth

Circuit did not, as this Court requires, examine “whether

government’s actual purpose is to endorse or disapprove

of religion.” Wallace v. Jaffree, 472 U.S. 38, 56 (1985). As

noted above, it is common ground that an invocation is a

prayer. The purpose of prayer is not secular, it is always

religious. Wallace v. Jaffree, 705 F.2d 1526, 1534 (11th Cir.

1983), aff’d, 472 U.S. 38 (1985). As an “intrinsically reli-

gious practice,” a school activity allowing prayer can

never meet the secular purpose prong of Lemon. Jager, 862

F.2d at 830.

The Fifth Circuit found that a non-sectarian invoca-

tion can “ceremonially serve a legitimate, secular ‘solem-

nizing function.’ ” Jones, 930 F.2d at 420. In her concurring

opinion in Lynch, Justice O’Connor found that displaying

the creche, like declaring Thanksgiving a public holiday,

is “the only way[] reasonably possible in our culture” to

note the solemnity of the occasion. 465 U.S. at 693. The

offering of a prayer, styled an “invocation,” however, is

not the only way to make solemn Clear Creek’s

commencement exercises. For instance, a local civic

12

leader, respected teacher or athletic coach could address

the graduates.

The Fifth Circuit improperly limited its review of the

excessive entanglement prong of Lemon. “In accordance

with Jones’ complaint, we consider the ‘activity’ at issue

here the invocation’s delivery and not its approval and

acceptance into the graduation program.” 930 F.2d at 423.

Clear Creek’s policy was adopted after Jones filed the

complaint and after the deadline for dispositive motions

before the district court. The district court refused Jones’

request for additional discovery of Clear Creek’s officials

regarding the then newly adopted policy. Jones asserted

these matters on appeal to the Fifth Circuit. Cf. 930 F.2d at

423 (Jones asserted lack of opportunity to depose Clear

Creek’s officials regarding policy).

The court should have considered the process Clear

Creek employs for reviewing invocations in its entangle-

ment discussion. Requiring school officials to determine

the acceptable form and appropriate measure of invoking

the Deity’s assistance at commencment ties together the

school and religion.

The other basis of the Fifth Circuit’s entanglement

analysis was a difference the court found between a pub-

lic official’s review of a church written prayer and his

review of a student written prayer. 930 F.2d at 423. To

support this distinction, the court relied on Justice

O’Connor’s concurrence in Lynch. Id. (citing 465 U.S. at

689). Lynch, however, involved the speech an association

of merchants offered on public property. The present case

involves the speech a school district offers at its

13

commencement exercise. Whereas in Lynch, the govern-

ment simply leased property on which religious speech

was offered, in the present case the government is offer-

ing the speech itself. Requiring a secondary school

administrator to review proposed prayers forces Clear

Creek to not only determine how much religion is accept-

able but also whether this appropriate amount of religion

is non-sectarian and non-prosyletizing. This is excessive

entanglement of the state in religious matter.

Ill. CONCLUSION

For the reasons stated herein, the Petition for Writ of

Certiorari should be granted in this case. Alternatively,

the Court should hold this petition pending a final deci-

sion in Weisman.

Respectfully submitted,

Bruce V. GRIFFITHS

GREATER Houston CHAPTER

AMERICAN Civic LispertTics UNION

Counsel of Record

1236 West Gray

Houston, Texas 77019

(713) 524-6021

MitcHELL A. SEIDER

3700 First City Tower

Houston, Texas 77002

(713) 658-8881

DATED: August 19, 1991.

App. 1

APPENDIX

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 89-2638

MERRITT E. JONES, On His

Behalf and as Next Friend of

PAMELA JONES, A Child, ET AL.,

Plaintiffs-Appellants,

versus

CLEAR CREEK INDEPENDENT

SCHOOL DISTRICT,

Defendant-Appellee.

Appeal from the United States District Court for

the Southern District of Texas

(April 18, 1991)

Before REAVLEY, GARWOOD and BARKSDALE, Circuit

Judges.

REAVLEY, Circuit Judge:

Graduating seniors and parents brought this suit to

enjoin a school district from permitting invocations and

benedictions at public high school graduation ceremo-

nies. The district court held that the school district’s

written policy permitting only nonsectarian and non-

proselytizing invocations and benedictions written and

delivered by student volunteers at the ceremonies does

not violate the Establishment Clause. We affirm.

App. 2

1. BACKGROUND

Clear Lake High School (“Clear Lake”) is within

defendant-appellee Clear Creek Independent School Dis-

trict (“Clear Creek”). Clear Lake traditionally includes in

its graduation ceremonies invocations and benedictions!

voluntarily written and presented by members of the

graduating senior class. Pre-1986 Clear Lake graduation

invocations included overt references to Christianity.

Clear Lake’s 1986 graduation invocation mentioned

“Lord,” “Gospel,” “Amen,” and God’s omnipotence. Two

Clear Lake students, joined by their fathers, (collectively

“Jones”) complained that Clear Creek’s policy and

actions permitting invocations consisting of traditional

Christian prayer at high school graduation ceremonies

violated the First Amendment’s Establishment Clause.

On December 15, 1987, three weeks before this case

was to be tried, Clear Creek’s Board of Trustees adopted a

resolution (the “Resolution”) which provides:

1. The use of an invocation and/or benediction

at high school graduation exercise shall rest

within the discretion of the graduating senior

class, with the advice and counsel of the senior

class principal;

2. The invocation and benediction, if used,

shall be given by a student volunteer; and

' Any definitional distinction between an invocation and a

benediction is irrelevant to this case. We use “invocation” to

describe the opening and closing parts of Clear Creek’s gradu-

ation ceremonies wherein a student may request a deity’s

assistance or blessing. See Wessters’ NintH New COoLteciaTe

Dictionary 143 (1985) (defining benediction in terms of invoca-

tion).

App. 3

3. Consistent with the principle of equal lib-

erty of conscience, the invocation and benedic-

tion shall be nonsectarian and nonproselytizing

in nature.

Clear Creek’s Board of Trustees adopted the Resolution at

the request of its attorney in this case, who drafted it to

conform with Judge Merritt’s opinion in Stein v. Plainwell

Community Schools, 822 F.2d 1406, 1409 (6th Cir. 1987) (analo-

gizing to the Supreme Court’s approval of legislative prayer

in Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330 (1983) in

holding that nonsectarian, nonproselytizing graduation

prayer does not violate the First Amendment).

Applying the tripartite test announced in Lemon v.

Kurtzman, 403 U.S. 602, 91 S.Ct. 2105 (1971), Judge

DeAnda held that the Establishment Clause does not

prohibit Clear Creek from permitting invocations that

conform with the Resolution, and granted summary judg-

ment for Clear Creek.

II. ANALYSIS

Jones claims that the Resolution is a facially uncon-

stitutional law respecting an establishment of religion.

Alternatively, she asserts that the district court pre-

maturely granted summary judgment without giving her

an opportunity to discover whether Clear Creek would

enforce the Resolution in a constitutional manner.

A. THE RESOLUTION’S CONSTITUTIONALITY

1. Establishment Clause Applicability

The First Amendment’s proscription of laws

“respecting an establishment of religion” applies to state

App. 4

governments through the Fourteenth Amendment. Ever-

son v. Board of Education of Ewing Township, 330 US. 1, 15,

67 S.Ct. 504, 511 (1947). Because Ciear Creek’s Board of

Trustees promulgated the Resolution pursuant to author-

ity conferred by Texas law, the Resolution is subject to

Establishment Clause scrutiny. Board of Education, Island

Trees Union Free School Dist. v. Pico, 457 U.S. 853, 864, 102

S.Ct. 2799, 2806-07 (1982).

The Resolution does not escape Establishment Clause

scrutiny by only passively limiting students’ free choice

of graduation speech content. True, the Resolution con-

templates invocations written and delivered by student

volunteers only with the approval of the graduating

senior class. But, according to Clear Creek’s May 1987

letter to parents, “commencement is a scheduled school

activity, and all school regulations [are] enforced.” Clear

Creek undisputably controls its commcncement pro-

grams. Clear Creek’s rental of an auditorium is tanta-

mount to ownership for purposes of facility control. And

“ ‘the State, no less than a private owner of property, has

power to preserve the property under its control for the

use to which it is lawfully dedicated’” .. . “as long as the

regulation on speech is reasonable and not an effart to

suppress expression merely because public officials

oppose the speaker’s view.” Perry Education Ass‘n v. Perry

Local Educators’ Ass'n, 460 U.S. 37, 46, 103 S.Ct. 948, 955

(1983) (quoting United States Postal Service v. Council of

Greenburgh Civic Assns., 453 U.S. 114, 129-30, 101 S.Ct.

2676, 2684 (1981)).

The Resolution is subject to Establishment Clause

scrutiny because it is the mechanism through which the

App. 5

state provides space in a closed forum for arguably reli-

gious speech at a government sponsored event. See Engel

v. Vitale, 370 U.S. 421, 430, 82 S.Ct. 1261, 1266-67 (1962)

(noncompulsory nature of public school prayer does not

“free it from the limitations of the Establishment

Clause”); Jager v. Douglas County School Dist., 862 F.2d

824, 831 (11th Cir.) (considering Establishment Clause

challenge “[wJhen a religious invocation is given via a

sound system controlled by schoo! principals and the

religious invocation occurs at a school-sponsored event at

a school-owned facility”), cert. denied, 490 U.S. 1090, 109

S.Ct. 2431 (1989); Stein, 822 F.2d at 1407 (recognizing

Establishment Clause challenge where graduation invoca-

tions voluntarily written and presented by students).

The Resolution also involves Clear Creek in gradua-

tion invocations by subjecting proposed invocations to

review by the “senior class principal,” a faculty represen-

tative of a class throughout its four-year attendance at

school.

2. Test of Constitutionality

The parties argued the Resolution’s constitutionality

under Marsh while the district court applied Lemon in

deciding Clear Creek’s summary judgment motion.

Judges of the other two circuits considering the constitu-

tionality of invocations at public high school graduation

ceremonies have demonstrated some disagreement on the

test to be applied. Compare Weisman v. Lee, 728 F.Supp. 68,

71-75 (D.R.1.), aff'd, 908 F.2d 1090 (1st Cir. 1990) (applying

Lemon), cert. granted, 59 U.S.L.W. 3635 (1991) with Stein,

App. 6

822 F.2d at 1409 (one judge analogizes to Marsh and the

other two judges apply Lemon as well).

The writer of this opinion is inclined to the opinion

that present Supreme Court decisions require that the

Resolution satisfy Lemon. The Supreme Court has “partic-

ularly relied on Lemon in every case involving the sensi-

tive relationship between government and religion in the

education of our children.” Grand Rapids School Dist. v.

Ball, 473 U.S. 373, 383, 105 S.Ct. 3216, 3222 (1985); see also

id. (“reaffirm[ing] that state action alleged to violate the

Establishment Clause should be measured against the

Lemon criteria”); Wallace v. Jaffree, 472 U.S. 38, 63, 105 S.Ct.

2479, 2493 (1985) (Powell, J., concurring) (extolling

Lemon's analytical usefulness in deciding constitutionality

of silent prayer in public schools).

In Marsh, the Court upheld the Nebraska legislature’s

practice of paying a Christian chaplain to begin sessions

with an invocation due to the historical acceptance of this

practice since our ancestors declared independence from

England. 463 U.S. at 792, 103 S.Ct. at 3336. But the Court |

has later said that

[s}uch a historical approach is not useful in

determining the proper roles of church and state

in public schools, since free public education

was virtually nonexistent at the time the Consti-

tution was adopted.

Edwards v. Aguillard, 482 U.S. 578, 583 n.4, 107 S.Ct. 2573,

2577 n.4 (1987).

App. 7

3. Lemon Application

a. Purpose

Clear Creek satisfies Lemon's first prong by showing

that the Resolution has “a secular purpose.” 403 U.S. at

612-13, 91 S.Ct. at 2111. Clear Creek’s Trust: -s need not

have enacted the Resolution in furtherance of exclusively

secular objectives. Lynch v. Donnelly, 465 U.S. 668, 681 n.6,

104 S.Ct. 1355, 1363 n.6 (1984); accord Wallace, 472 U.S. at

56, 105 S.Ct. at 2489. Though, “[w]hile the Court is nor-

mally deferential to a State’s articulation of a secular

purpose, it is required that the statement of such purpose

be sincere and not a sham.” Edwards, 482 U.S. at 586-87,

107 S.Ct. at 2579.2

2 We believe that the Supreme Court’s requirement of an

actual secular purpose encompasses the aliusions in prior cases

to requirements of secular purpose preeminence. Justice

O’Connor recently elaborated on Lemon’s purpose test:

the inquiry into the purpose [behind challenged state

action] should be deferential and limited. . . . Even if

the text and official history of a statute express no

secular purpose, the statute should be heid to have

an improper purpose only if it is beyond purview

that endorsement of religion or a religious belief

“was and is the law’s reason for existence.” Epperson

v. Arkansas, 393 U.S. 97, 108, 89 S.Ct. 266, 272, 21

L.Ed.2d 228 (1968).

. I have little doubt that our courts are

capable of distinguishing a sham secular purpose

from a sincere one, or that the Lemon inquiry into the

effect of an enactment would help decide those close

cases where the validity of an expressed secular

purpose is in doubt. While the secular purpose

(Continued on following page)

App. 8

Clear Creek contends that it includes invocations in

its graduation ceremonies to solemnize these occasions.

Justice O’Connor recognizes that such “government

acknowledgments of religion serve, in the only ways

reasonably possible in our culture, the legitimate secular

purpose[] of solemnizing public occasions.” Lynch, 465

U.S. at 693, 104 S.Ct. at 1369 (O’Connor J., concurring in

the judgment); accord County of Allegheny v. American Civil

Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 109

(Continued from previous page)

requirement alone may rarely be determinative in

striking down a statute, it nevertheless . . . reminds

government that when it acts it should do so without

endorsing a particular religious belief or practice

that all citizens do not share.

Wallace, 472 U.S. at 75-76, 105 S.Ct. at 2499-500 (O’Connor, J.,

concurring in judgment). A majority of the Court cites Justice

O’Connor’s Lemon purpose analysis in Edwards, 482 U.S. at 587,

107 S.Ct. at 2579.

As articulated by Justice O’Connor above and the majority

opinions in Lynch, Wallace, and Edwards, Lemon’s purpose

prong does not require a determination of whether challenged

state action has a greater secular or religious purpose. The

opinions that strike down legislation as having a “primary” or

“preeminent” religious purpose do so only after analyzing

each secular purpose claimed by the state and finding each

illusory. See, e.g., Edwards, 482 U.S. at 585-94, 107 S.Ct. at

2578-83; Stone v. Graham, 449 U.S. 39, 41-42, 101 S.Ct. 192, 194

(1980); Lubbock Civil Liberties Union v. Lubbock Independent

School Dist., 669 F.2d 1038, 1044 (5th Cir.), reh’g denied, 680 F.2d

424 (1982), cert. denied, 459 U.S. 1155, 103 S.Ct. 800 (1983).

That the Lemon Court required “a” secular purpose along

with a “primarily” nonreligious effect further convinces us that

we need not divine a state’s primary purpose in promulgating

a challenged law. See Lemon, 403 U.S. at 612-13, 91 S.Ct. at 2111.

App. 9

S.Ct. 3086, 3102 n.46 (1989); Stein, 822 F.2d at 1409; Weis-

man, 908 F.2d at 1095 (Bownes, J., concurring).

Jones asserts that Clear Creek’s solemnization ratio-

nale is only a pretext for the Resolution’s introduction of

prayer into public schools. But unlike the plaintiffs in

Wallace, Edwards, or Lubbock, Jones offers no evidence of

religious motivation through legislative history or overt

religious references in the Resolution. In fact, through its

student option, and the nonproselytization and nonsec-

tarian mandates, the Resolution deemphasizes the reli-

gious significance of allowed invocations.

While the Resolution apparently tolerates invocations

addressing a deity, we think that this is as consistent with

the secular solemnizing purpose as any religious pur-

pose. It is precisely in acknowledging a principle of tran-

scendence, with simple terms of universal understanding

— like “God” - that graduation attendees may perceive

the profound social significance of the occasion. It is not

implausible that Clear Creek’s Trustees intended the Res-

olution to foster just such a perception in many, if not

most, attendees. The Resolution’s “reason or effect merely

happens to coincide or harmonize with the tenets of

some... religions.” Lynch, 465 U.S. at 682, 104 S.Ct. at

1364 (citation omitted). We reject a reading of the First

Amendment that would freeze either church and state or

religion and politics into perpetually antagonistic pos-

tures.

Jones argues that Clear Creek may not employ reli-

gious means to accomplish goals that can be attained by

non-religious means. See Lubbock, 669 F.2d at 1045. This

court has even held that a statute cannot employ an

App. 10

obvious religious means to serve otherwise legitimate

secular interests. Karen B. v. Treen, 653 F.2d 897, 901 (5th

Cir. 1981), aff’d, 455 U.S. 913, 102 S.Ct. 1267 (1982). But to

say that the Resolution employs a “religious means” is to

confuse purpose and effect analyses under Lemon. Unlike

the laws at issue in Lubbock and Treen, the Resolution

takes no position on whether a proposed invocation refer-

ences a deity, and only seeks to limit sectarianism and

proselytization. The Resolution does not employ an obvi-

ously religious means to solemnize Clear Creek gradua-

tion ceremonies.

Moreover, we are unaware of an exclusively secular

equivalent for Clear Creek’s solemnization choice. See

Lynch, 465 U.S. at 716-17, 104 S.Ct. at 1382 (Brennan,

dissenting) (as “ceremonial deism,” invocations are

“uniquely suited to serve such wholly secular purposes

as solemnizing public occasions”). Jones offers no solem-

nization substitute other than a valedictory address,

which Clear Lake supplemented in its 1986 program with

an invocation. We do not consider invocations such as the

1987 proposal approved by Jones? any more secular for

3 Jones agreed that the following invocation is not offen-

Sive:

We ask that people gathered here today be grateful

for the faculty, the administration, and the students

of Clear Lake High School. We are most thankful to

live in a country which stresses the importance of

individual freedom. Thank you for this wonderful

year, for the friendship and fellowship that has

grown among us, and for the memories that we will

cherish forever. Thank you for our past experience,

and please, help us all to be successful in the future.

App. 11

veiling references to a deity in pronouns and hidden

objects.

Because Clear Creek has a secular purpose for allow-

ing invocations at its graduations, we agree with the

district court that the Resolution satisfies Lemon’s first

prong as a matter of law.

b. Effect

Jones urges us to follow Weisman, 728 F.Supp. at 73,

in holding that the primary effect of nondenominational

prayer at a voluntarily attended public high school grad-

uation ceremony is to advance religion in contravention

of Lemon’s second proscription. But

[r]ather than mechanically invalidating all gov-

ernmental conduct or statutes that confer bene-

fits or give special recognition to religion in

general or to one faith - as an absolutist

approach would dictate - the Court [mandates

scrutiny of] challenged legislation or official

conduct to determine whether, in reality, it

establishes a religion or religious faith, or tends

to do so....

In each case, the inquiry calls for line-draw-

ing; no fixed, per se rule can be framed. . . . The

purpose of the Establishment Clause “was to

state an objective, not to write a statute.” .. . The

Clause erects a “blurred, indistinct, and variable

barrier depending on all the circumstances of a

particular relationship.”

Lynch, 465 U.S. at 678, 104 S.Ct. at 1361-62 (quoting Walz

v. Tax Commission of City of New York, 397 U.S. 664, 688, 90

S.Ct. 1409, 1411 (1970) and Lemon, 403 US. at 614, 91 S.Ct.

at 2112) (emphasis added). The facts here differ from

App. 12

those in Weisman, and we conclude that the Resolution’s

primary effect is not to advance or endorse religion.

Constitutional examples of governmental religious

accommodation abound. Nebraska may pay a Protestant

chaplain to open its legislature’s daily sessions with an

invocation. Marsh, 463 U.S. at 795, 103 S.Ct. at 3338. Our

statutorily prescribed national motto is “In God We

Trust.” 36 U.S.C. § 186. The Pledge of Allegiance, recited

daily by thousands of public school children, describes us

as “One nation under God.” Lynch, 465 U.S. at 676, 104 S.

Ct. at 1361. We even begin each public hearing in federal

court with the invocation “God save the United States

and this Honorable Court.”

The principal difference between the legislative

prayer approved in Marsh and any prayer sanctioned by

the Resolution is that the latter occurs during a public

school function. We recognize that we are to be

particularly vigilant in monitoring compliance

with the Establishment Clause in elementary

and secondary schools. Families entrust public

schools with the education of their children, but

condition their trust on the understanding that

the classroom will not purposely be used to

advance religious views that may conflict with

the private beliefs of the student and his or her

family. Students in such institutions are impres-

sionable and their attendance is involuntary.

Edwards, 482 U.S. at 583-84, 107 S.Ct. at 2577; see also

Lubbock, 669 F.2d at 1043 (explaining special concern for

governmental religious neutrality in public schools).

Yet the students affected by the Resolution are the

least impressionable people receiving special protection

App. 13

from religious inferences under the Supreme Court’s

school prayer decisions. The graduation ceremony lies on

the threshold of high school students’ transitions into

adulthood, when religious sensibilities hardly constitute

impressionable blank slates. Ali of the students will have

seen United States currency, and many will have wit-

nessed judicial or legislative proceedings. Given Marsh,

these students enter an adult world in which they are

expected to tolerate some governmental accommodation

of religion.

In determining the Resolution’s primary effect, we

focus on an invocation’s effect in the context of an entire

graduation ceremony. Lynch, 465 U.S. at 679-80, 104 S.Ct.

at 1362 (“[flocus exclusively on the religious component

of any activity would inevitably lead to its invalidation

under the Establishment Clause”). Several characteristics

combine to distinguish the Resolution’s invocations from

the school prayer stricken in Engel, Stone, Wallace, Treen,

Jager, and possibly Weisman. While striking down a New

York regulation prescribing a daily prayer for recitation

by public school children, the Supreme Court even notes

that

[t]here is of course nothing in the decision

reached here that is inconsistent with the fact

that school children and others are officially

encouraged to express love for our country by

reciting historical documents such as the Decla-

ration of Independence which contain references

to the Deity or by singing officially espoused

anthems which include the composer’s profes-

sions of faith in a Supreme Being, or with the

fact that there are many manifestations in our

public life of belief in God. Such patriotic or

ceremonial occasions bear no true resemblance to

App. 14

the unquestioned religious exercise that the

State of New York has sponsored in this

instance.

Engel, 370 U.S. at 435 n.21, 82 S.Ct. at 1269 n.21 (emphasis

added).

Most students witness the invocations sanctioned by

the Resolution once in four years, as opposed to daily or

weekly. Consistent with the Resolution’s nonproselytiza-

tion requirement, the invocations are historically brief -

under one minute. Students deliver the invocations in an

assembly where many parents are present rather than a

classroom setting, where the prospect of subtle official

and peer coercion warrants stricter separation of the state

from things religious.

Nor do we overiook Clear Creek’s passive role in the

invocation inclusion process. The Resolution facilitates

invocations, but it leaves their existence, and reference to

a deity, to the discretion of each graduating class and

student volunteer. And

to have forbidden “effects” under Lemon, it must

be fair to say that the government itself has

advanced religion through its own activities and

influence. As the Court observed in Walz, “for

the men who wrote the Religion Clauses of the

First Amendment the ‘establishment’ of a reli-

gion connoted sponsorship, financial support,

and active involvement of the sovereign in reli-

gious activity.” 397 U.S., at 668, 90 S.Ct., at 2111.

Corp. of Presiding Bishop of the Church of Jesus Christ of

Latter-Day Saints v. Amos, 483 U.S. 327, 337, 107 S.Ct. 2862,

2869 (1987) (emphasis added). Clear Creek’s passive role

distinguishes the state-sanctioned, officially written

prayers stricken in Engel.

App. 15

While a law’s denominational neutrality and volun-

tary observance provisions are not enough alone to “free

it from the limitations of the Establishment Clause,”

Engel, 370 U.S. at 430, 82 S.Ct. at 1266-67, these factors in

concert with the others specified above mollify any

advance or endorsement of religion consistent with the

Resolution.

We think that the Resolution allows invocations to

enhance the significance of graduation to attendees while

minimizing any governmental advancement or endorse-

ment of religion. The Resolution no more advances or

endorses religion than the myriad of constitutional public

religious accommodations cited above; given its solemni-

zation function, the Resolution has a legitimate primary

effect. Accord Stein, 822 F.2d at 1409 (approving nonsec-

tarian public high school graduation invocations for

solemnization purposes); Bogen v. Doty, 598 F.2d 1110,

1114 (8th Cir. 1979) (“we suggest that establishing solem-

nity is the primary effect of all invocations at gatherings

of persons with differing views on religion”).

c. Entanglement

Jones argues that the Resolution’s provision that

invocations be nonsectarian and nonproselytizing consti-

tutes an excessive entanglernent of government and reli-

gion in violation of Lemon’s third proscription. We

disagree.

“Entanglement is a question of kind and degree.”

Lynch, 465 U.S. at 684, 104 S.Ct. at 1365. Even if school

officials review voluntarily submitted invocations for

App. 16

sectarianism and proselytization,4 any entanglement that

this fosters is not constitutionally excessive. Such review

must occur before the graduation ceremony, so the Reso-

lution does not mandate the “continuing supervision of

nonsecular activity” proscribed in Lubbock. See 669 F.2d at

1047 (school official monitoring of religious meetings

excessive entanglement). In accordance with Jones’ com-

plaint, we consider the “activity” at issue here the invoca-

tion’s delivery and not its approval and acceptance into

the graduation program.

In his Weisman concurrence, Judge Bownes writes

that an invocation policy in which speakers are chosen by

the school district and given guidelines suggesting the

content of prayers violates Lemon’s entanglement prong.

908 F.2d at 1095; cf. Jager, 862 F.2d at 831 (no entangle-

ment when school does not choose invocation speaker or

monitor content). The Resolution does not involve Clear

Creek in choosing among those wishing to prepare and

present graduation invocations, and Jones presents no

evidence that Clear Creek is so involved. As for invoca-

tion content, the Resolution proscribes certain types of

invocations without prescribing any invocation. We think

that Clear Creek seeks to solemnize its graduation cere-

monies in a manner most acceptable to all attendees, and

in doing so may constitutionally pre-screen proposed

invocations for sectarianism and proselytization.

4 The Resolution’s third proviso may be understood as

either an admonition to those student volunteers writing the

invocations or as a mandate that school officials review pro-

posed invocations for sectarianism or proselytization.

App. 17

The Supreme Court has only held state action uncon-

stitutional under Lemon's entanglement prong when it

has found excessive entanglement between governmental

and religious institutions. See Lynch, 465 U.S. at 684, 104

S.Ct. at 1365 (“no evidence of contact with church author-

ities concerning the content or design or the exhibit prior

to or since [city’s] purchase of the créche”); Larkin v.

Grendel’s Den, 459 U.S. 116, 126-27, 103 S.Ct. 505, 511-12

(1982) (zoning ordinance allowing churches veto power

over certain liquor licenses unconstitutional entangle-

ment); Lemon, 403 U.S. at 625, 91 S.Ct. at 2117 (state salary

supplements to teachers of secular subjects in parochial

schools excessive entanglement); Walz, 397 U.S. at 674-75,

90 S.Ct. at 1414 (New York may constitutionally exempt

religious organizations from real property tax).

Justice O’Connor states the proposition directly:

“[t]he entanglement prong of the Lemon test is properly

limited to institutional entanglement.” Lynch, 465 U.S.at

689, 104 S.Ct. at 1368 (O’Connor, J., concurring); accord

Smith, Separation and the “Secular”: Reconstructing the Dis-

establishment Decision, 67 Tex. L. Rev. 955, 971-75 (1989)

(arguing that the original disestablishment decision

sought to separate the institutions of church and state).

By requiring that invocations be nonsectarian and

written and presented by student volunteers, the Resolu-

tion effectively excludes religious institutions from its

purview. Such exclusion renders entanglement impossi-

ble under Justice O’Connor’s statement of Lemon’s third

test.

Thus, because the Resolution has a secular solemniz-

ing purpose and primary effect, and does not excessively

App. 18

entangle Clear Creek with religion, we agree with the

district court that the Resolution does not violate the

Establishment Clause.

B. Discovery ADEQUACY

Jones does not complain of any language included in

a Clear Creek graduation ceremony after 1986 and agrees

that the 1987 invocation was not offensive. Yet she asserts

that the district court prematurely granted summary

judgment based on the Resolution’s constitutionality

without giving her an opportunity to depose Clear Creek

officials and discovery whether Clear Creek would con-

stitutionally zpply the Resolution. Jones characterizes the

Resolution as Clear Creek’s last minute attempt to dodge

an injunction given its pre-1987 blatantly sectarian invo-

cations.

Injunctive relief is inappropriate when sought to pre-

vent injury that is speculative at best. Carter v. Orleans

Parish Public Schools, 725 F.2d 261, 263 (Sth Cir. 1984).

Even where school districts have “very reluctantly com-

plied with constitutional standards,” this court has twice

refused to reverse a district court’s denial of equitable

relief. See Lubbock, 669 F.2d at 1049 (emphasis in original);

Meltzer v. Board of Public Instruction of Orange County,

Florida, 548 F.2d 559, 568 (5th Cir. 1977), aff’d on rehearing,

577 F.2d 311 (1978), cert. denied, 439 U.S. 1089, 99 S.Ct. 872

(1979). We find no abuse of discretion, see United States v.

W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897 (1953),

in the district court's final denial of injunctive and declar-

atory relief in this case.

App. 19

III., CONCLUSION

Because the Resolution does not violate the Establish-

ment Clause and the district court did not abuse its

discretion in denying Jones equitable relief based on

Clear Creek’s pre-Resolution actions, we AFFIRM.

GARWOOD, Circuit Judge, with whom Barksdale, Circuit

Judge, joins specially concurring.

The district court applied the tripartite test of Lemon

v. Kurtzmann, 91 S.Ct. 2105 (1971), and upheld the school

district’s policy. Appellants do not argue that some other

test should be applied, but rather contend that Lemon

controls and that the policy fails te meet Lemon’s require-

ments. Appellees defend the policy under Lemon and also

rely on Marsh v. Chambers, 103 S.Ct. 3330 (1983). Judge

Reavley’s opinion convincingly demonstrates that Lemon

is satisfied, and we completely agree. Moreover, in the

present context, it seems apparent that Lemon poses the

challenged policy’s highest hurdle, and if it clears Lemon

then it passes establishment clause muster under any

reasonably conceivable test. Accordingly, we join in so

much of Judge Reavley’s opinion as deals with whether

the policy is constitutional under Lemon, but without

reaching the question of whether some less restrictive or

rigid test might be more properly applied in this setting.!

1 In Lynch v. Donnelly, 104 S.Ct. 1353, 1362 (1984), the

Court observed that “we have repeatedly emphasized our

(Continued on following page)

App. 20

That is a matter on which the Supreme Court may weli

further enlighten us before long. See Weisman v. Lee, 908

F.2d 1090 (1st Cir. 1990), cert. granted 59 U.S.L.W. 3635

(1991).

(Continued from previous page)

unwillingness to be confined to any single test or criteria in

this sensitive area.” There are good arguments why a case of

this kind might be better analyzed under Marsh, or some

variant thereof, than under Lemon. See Jager v. Douglas County

School District, 862 F.2d 824, 836-838 (11th Cir. 1988) (dissenting

opinion of Chief Judge Roney); Stein v. Plainwell Community

Schools, 822 F.2d 1406, 1409-10, 1412-15 (6th Cir. 1987) (opinions

of Judges Merritt and Wellford); Weisman v. Lee, 908 F.2d 1090,

1098-99 (1st Cir. 1990) (dissenting opinion of Judge Campbell),

cert. granted 59 U.S.L.W. 3635 (1991). It also appears to us that

the force of certain of our precedents in this area, particularly

Lubbock Civil Liberties Union v. Lubbock Independent School Dis-

trict, 669 F.2d 1038 (Sth Cir.), reh’g denied, 680 F.2d 424 (1982),

cert. denied, 103 S.Ct. 800 (1983), may have been called into

question by Board of Education of Westside Community Schools v.

Mergens, 110 S.Ct. 2356, 2366, 2370-73 (1990). Where that might

lead were the policy at issue here somewhat different likewise

need not be reached.

App. 21

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 89-2638

MERRITT E. JONES, on his behalf and as

next friend of PAMELA JONES, a child, ET AL.,

Plaintiffs-Appellants,

versus

CLEAR CREEK INDEPENDENT SCHOOL DISTRICT,

Defendant-Appellee.

Appeal from the United States District

Court for the Southern District of Texas

ON PETITION FOR REHEARING

(May 22, 1991)

Before REAVLEY, GARWOOD and BARKSDALE, Circuit

Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the

same is hereby denied.

CLERKS NOTE:

SEE FRAP AND LOCAL

RULES 41 FOR STAY OF THE

MANDATE.

App. 22

ENTERED FOR THE COURT:

/s/ Thomas M. Reavley

United States Circuit Judge

App. 23

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

MERRITT E. JONES, On his §

behalf and as Next Friend §

of PAMELA JONES, § CIVIL ACTION NO.

A Child § N-87-1463

VS. :

CLEAR CREEK §

INDEPENDENT §

SCHOOL DISTRICT §

MEMORANDUM AND ORDER

(MAY 16 1989)

Pending before the Court in the above referenced

cause is Defendant Clear Creek Independent School Dis-

trict’s motion for summary judgment. Plaintiffs filed this

civil rights action on May 11, 1987, pursuant to 42 U.S.C.

section 1983, challenging the constitutionality of Chris-

tian invocations and benedictions at the graduation cere-

monies of public Clear Lake High School. On December

15, 1987, six months after this suit was initiated, the

school district’s Board of Trustees adopted a resolution

permitting only nonproselytizing, nonsectarian invoca-

tions and benedictions, written by volunteer students, to

be delivered at graduation exercises away from the high

school’s grounds. The court considered Defendant’s

motion for summary judgment during a conference on

February 3, 1988, when the Court ordered Plaintiff to

respond in writing and took the matter under advise-

ment. Now, for reasons delineated below, after reviewing

the record and the applicable law, the Court concludes

that Clear Creek Independent School District’s current

App. 24

policy regarding commencement invocations and bene-

dictions is constitutional. Accordingly, the Court is of the

opinion that there is no longer a justiciable controversy in

the case at bar and that as a matter of law summary

judgment should be granted to Defendant.

The facts here are not disputed. This suit was origi-

nally filed on May 11, 1987, less that. two weeks before a

scheduled graduation ceremony, by senior student Pam-

ela Jones and her father Merritt Jones. Plaintiffs withdrew

their request for an injunction against the May 1987 invo-

cation after reviewing the proposed statement and find-

ing it to be unoffensive and nonsectarian, in contrast to

the distinctly Christian prayer given at the previous

year’s ceremony. After Pamela graduated in 1987, with

leave of Court an anonymous daughter and father, under

the pseudonyms Jane and John Doe, were substituted as

nominal Plaintiffs following a standing challenge because

the Court found the issue to be “capable of repetition but

evading review.” See Roe v. Wade, 410 U.S. 113 (1973);

Grossberg v. Deusebio, 380 F.Supp. 285, 292 (E.D. Va. 1974);

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

Cir. 1987).

In contrast to the once bright-line wall of separation

between church and state, the Court perceives in United

States Supreme Court decisions over the past thirty-five

years a growing emphasis upon accommodation between

government and religion,’ within the ambit of a required

1 In the context of kindergarten-twelfth grade public

schools, see, e.g., Everson v. Board of Education, 330 U.S. 1 (1947)

(permitting state transportation of children to and from

(Continued on following page)

App. 25

policy of neutrality, as a frequently appropriate means to

resolve tension between the free exercise and establish-

ment clauses of the first amendment.

Justice Douglas declared thirty-seven years ago,

We are a religious people whose institutions

presuppose a Supreme Being. We guarantee the

freedom to worship as one chooses. We make

room for as wide a variety of beliefs and creeds

as the spiritual needs of man deem necessary.

We sponsor an attitude on the part of the gov-

ernment that shows no partiality to any one

group and that lets each flourish according to

the zeal of its adherents and the appeal of its

dogma. When the state encourages religious

instruction or cooperates with religious authori-

ties by adjusting the schedule of public events to

sectarian needs, it follows the best of our tradi-

tions. For it then respects the religious nature of

our spiritual needs. To hold that it may not

would be to find in the Constitution a require-

ment that the government show a callous indif-

ference to religious groups. That would be

preferring those who believe in no religion over

those who do believe.

Zorach v. C!auson, 343 U.S. 306, 313-14 (1952).

(Continued from previous page)

church-related schools); Zorach v. Clauson, 343 U.S. 306 (1952)

(sustaining a released time program for children to attend

religious classes off school grounds); Board of Education v. Allen,

392 U.S. 236 (1968) (allowing state-supplied secular textbooks

for church-affiliated elementary schools; Mueller v. Allen, 463

U.S. 388 (1983) (upholding a Minnesota statute permitting tax

deductions to parents for their children’s educational expenses

in any elementary or secondary school as promoting the secu-

lar goal of education).

App. 26

We have long been used to “such government

acknowledgement of religion as legislative prayers... ,

government declaration of Thanksgiving as a public holi-

day, printing of ‘In God We Trust’ on coins, and opening

court sessions with ‘God save the United States and this

honorable Court.’ Those government acknowledgements

of religion serve, in the only ways reasonably possible in

our culture, the legitimate secular purpose of solemnizing

public occasions, expressing confidence in the future and

encouraging recognition of what is worthy of apprecia-

tion in society.” Lynch v. Donneliy, 465 U.S. 668, 692-93

(1984) (O’Connor, Jr., concurring). Justice O’Connor

recently proclaimed that “the Constitution . . . af-

firmatively mandates accommodation, not merely toler-

ance, of all religions, and forbids hostility toward any.”

Id. at 673. Her statement falls within a long line of

Supreme Court acknowledgements of the traditional, cul-

tural significance of religion in American life.

The Supreme Court has developed two key tests,

both reflecting the spirit of accommodation and the grow-

ing perception of the wall of separation between church

and state as a “blurred, indistinct and variable barrier

depending on all the circumstances of a particular rela-

tionship,” in determining whether a law, program, or

practice violates the establishment clause. Lemon v. Kurtz-

man, 403 U.S. 602, 614 (1971). Under the primary one, set

out in Lemon v. Kurtzman, to avoid an establishment

clause issue the court must find the challenged practice

(1) to have a secular purpose, (2) with a principal effect of

neither advancing nor inhibiting religion, and (3) to not

foster an excessive entanglement of the state with reli-

gion. Id. at 612-13.

App. 27

In Lynch v. Donnelly, the majority of the Supreme

Court negated a per se rule or “absolutist” application of

Lemon to establishment clause questions. 465 U.S. 668, 678

(1984) (rejecting establishment clause objection to a

creche set up on public property at Christmas season).

The Court defined, as an “absolutist” approach, one

“mechanically invalidating all governmental conduct or

statutes that confer benefits or give recognition to reli-

gion in general or to one faith.” Id. at 679; see also Mueller

v. Allen, 463 U.S. 388, 394 (1983) (a helpful signpost); Meek

v. Pittinger, 421 U.S. 349, 359 (1975); Hunt v. McNair, 413

U.S. 734, 741 (1973). Instead, the challenged practice

should be examined in context to evaluate its purpose

and effect. See, e.g., Bogen v. Doty, 598 F.2d 1110, 1114-14

(8th Cir. 1979).

The other test, applied in Marsh v. Chambers when the

Supreme Court sustained Nebraska’s practice of opening

its state legislature with daily prayer led by a chaplain

paid from public funds, is based on historical practice.

463 U.S. 783 (1983). Because of the long history of such

legislative prayers, the Supreme Court concluded that the

framers of the Constitution did not intend and would not

have considered this deeply rooted tradition, a national

practice for over two hundred years, to be offensive to

the establishment clause. Id.

Defendant’s motion for summary judgment relied

upon a Sixth Circuit case, Stein v. Plainwell Community

Schools, 822 F.2d 1406 (6th Cir. 1987), the first federal

appellate decision focusing upon the constitutionality of

high-school, commencement invocations and benedic-

tions. in that case, the appellate court held that gradua-

tion invocations should not automatically be deemed

App. 28

unconstitutional. Id. at 1409. Analogizing the “solemniz-

ing function” of invocations and benedictions at gradua-

tion exercises to the ceremonial prayer in legislative

sessions in Marsh and applying the Marsh historical tradi-

tion test in a very generalized and expansive fashion, the

Sixth Circuit ruled that such a practice can be constitu-

tional if it “preserve[s] the principle of equal liberty of

conscience” and does not “go beyond the American civil

religion” into sectarian and/or proselytizing concerns. Id.

at 1409. Clear Lake High School’s recently adopted policy

meets the nonsectarian standards set out in Stein and

even echoes the court’s language.

The facts in Stein were not disputed. Two public high

schools in western Michigan included invocations and

benedictions in their commencement ceremonies, at

which attendance was voluntary and not a prerequisite

for receipt of a diploma. At Plainwell High School, two

unsupervised, volunteer students drafted and presented

their own statements, while at Portage Central High

School, graduating seniors for the previous fifteen years

had asked local Christian clergymen to deliver an invoca-

tion and benediction. The court, referring generally to the

tradition of ceremonial prayer in public circumstances to

accommodate the multiplicity of religions in the United

States, recognized its “guiding principle” as “equal lib-

erty of conscience,” which must be limited only when it

oversteps “the common interest in public order and secu-

rity” and thereby violates the establishment clause. Id. at

1408-09. The Sixth Circuit concluded that the contents of

the challenged invocations and benedictions in Stein went

beyond the acceptable bounds of this American civil reli-

gion, undefined by the court, and thus required that the

App. 29

plaintiff’s liberty of conscience give way to the state

interest in “public order and tradition.” Id. at 1409.

Although noting there is less chance for religious indoc-

trination at a public ceremonial gathering in the presence

of parents and other adults than in a closed class room

with a supervising teacher as an authority figure, the

court still decided that the actual language of the dis-

puted invocations and benedictions constituted a govern-

ment endorsement of exclusively Christian religion.

While this Court finds some of the Sixth Circuit’s

analysis of specific factors valuable, upon review of the

law the Court concludes that the Stein court’s approach

through the Marsh traditional practice test is incorrect.

First, the high school practice in the Stein schools as well

as that in the case at bar existed at the longest for only a

couple of decades. Marsh’s concern with the framers’

intent in drafting the first amendment and with the prac-

tices of their time is not relevant to contemporary public

school graduation exercises.? Second, the Supreme Court

has suggested that in establishment clause challenges

affecting primary public schools, the appropriate test is

the far more frequently used, fact-oriented Lemon evalua-

tion. See, e.g, Edwards v. Aguillard, 107 S.Ct. 2573, 2577 n.4,

2578 (1987); Grand Rapids School Dist. v. Ball, 473 U.S. 373,

2 Moreover, since formal education was largely conducted

at religiously affiliated private schools at the time the Constitu-

tion was written, and since the secular public school did not

come into existence until around 1840, efforts to determine the

framers’ intentions concerning them are merely speculation.

See Wood, Religion and Education in American Church-State Rela-

tions, 26 T. Church & State 31 (1984); See also, Schempp, 374 U.S.

at 238 (Brennan, J., concurring).

App. 30

383 (1985). Accordingly, this Court has applied the Lemon

test to the facts in the case at bar.

In regard to the first prong of the Lemon test, a solely

secular purpose is not required. Wallace v. Jaffree, 105 S.Ct.

2479, 2490 (1985); Lynch, 465 U.S. at 681, n.6; Abington

School District v. Schempp, 374 U.S. 203, 296-303 (1963)

(Brennan, J., concurring). While a shared religious tradi-

tion is reflected in a brief, nonsectarian invocation, the

Court finds that such a practice can ceremonially serve a

legitimate, secular “solemnizing function,” as suggested

by Justice O’Connor, to add cultural significance to an

important moment in the lives of graduates and their

families without being pedagogical or proselytizing.

Lynch 465 U.S. at 692-93.

The second prong of Lemon, requires that the primary

effect of the practice neither advance nor inhibit religion.

The Lemon test’s focus upon factual circumstances per-

mits a significant distinction between a flexible approach

to nondenominational invocations by volunteer students

at an optional graduation ceremony and the Supreme

Court’s hard and fast prohibition of activities suggestive

of religious instruction or worship in the classroom dur-

ing the vulnerable years of compulsory elementary and

secondary education.

The United States Supreme Court has traditionally

been extremely protective of primary and secondary

school students in barring patently religious activities

and instruction on school premises. See, e.g., McCollum v.

Board of Education, 333 U.S. 203 (1948) (release-time pro-

gram for religious instruction in public school classrooms

violates establishment clause); school prayer cases,

App. 31

including Engel v. Vitale, 370 U.S. 421 (1962) (daily recita-

tion of nondenominational prayer, composed by state

officials, in public schools is unconstitutional) and School

District of Abington Township v. Schempp, 374 U.S. 203

(1963) (invalidation of Pennsylvania State law requiring

daily reading of ten Bible verses even though children

could be excused from participation upon parental writ-

ten request); Stone v. Graham, 449 U.S. 39 (1980) (striking

down a Kentucky statute prescribing posting of Ten Com-

mandments on every classroom wall); Wallace v. Jaffree,

472 U.S. 38 (1985) (holding an Alabama statute mandating

a moment of silence unconstitutional because legislative

history revealed its sole purpose was to encourage and

endorse religion); and Edwards v. Aguiilard, 107 S.Ct. 2573

(1987) (Louisiana statute forbidding teaching of evolution

without balancing instruction in “creation science” is

unconstitutional because its primary purpose was to

advance a particular religious belief). In recognition of

the fundamental role of public schools in teaching and

transmitting values, the courts have expressed as reasons

for the special shielding of this captive and vulnerable

student audience the expectations of families entrusting

their children that public schools will not indoctrinate

students with religious beliefs potentially contrary to

their own; impressionability of youngsters; compulsory

attendance; emulation of teachers as role models; and

susceptibility of children to peer pressure. See, e.g.,

Aguillard 107 S.Ct. at 2577.

Many factors here distance the minimally involved

school district from a potential perception of its gradua-

tion exercise as a state endorsement of religion. The Clear

Lake High School graduation is held away from school

App. 32

grounds at the University of Houston’s Hofheinz

Pavillion. The very brief invocation and benediction,

given by volunteer students not daily, weekly, or

monthly, but only once a year, are aimed at a largely

adult audience of diverse religious beliefs which changes

each time, thus diminishing any opportunity for indoc-

trination. Indeed, the graduating class is comprised of

young adults, the majority over eighteen years of age,

who are embarking upon careers in a multiform society

in which they will be exposed to various sects and to

which they presumably now bring developed ideas and a

mature capacity to evaluate. The school district’s policy,

while not dictating the precise content of the invocation,

insures that no individual faith is advanced at the

expense of others. Not only is the inclusion of the invoca-

tion and/or benediction voluntary, dependent upon a

student’s willing involvement, but attendance at the cere-

mony is optional, is not necessary for graduation, and in

fact does not guarantee that participants will receive their

diplomas, which are sent out only to those who pass final

examinations after the ceremony. While each factor alone

is not dispositive, together the circumstances work

against a simplistic characterization of the invocation or

benediction as a dangerous government endorsement of

religion.

The last prong of the Lemon test prohibits excessive

entanglement of church and state. As noted above, the

link between the school and the annual commencement

program is minimal, with students voluntarily develop-

ing most of the content. Oversight by the graduating

class’s principal, who gives advice and consent to insure

App. 33

that any proposed invocation or benediction is “consis-

tent with the principle of equal liberty of conscience” and

“nonsectarian and nonproselytizing in nature,” is not

sufficient entanglement to violate the establishment

clause. Resolution of Board of Trustees of the Clear Creek

Independent Schooi District, December 15, 1987.

Accordingly, because the Court finds that the inclu-

sion of a brief invocation and/or benediction in Clear

Lake High School’s graduation ceremony, under the facts

presented here, does not as a matter of law violate the

first amendment’s establishment clause, the Court

ORDERS that summary judgment is GRANTED to

Defendant and this case is DISMISSED with prejudice.

DONE in Houston, Texas, this 12th day of May, 1989.

/s/ James DeAnda

JAMES DeANDA

CHIEF JUDGE

UNITED STATES

DISTRICT COURT

App. 34

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

MERRITT E. JONES, On his §

behalf and as Next Friend §

of PAMELA JONES,

A Child

VS.

CLE/-R CREEK

INDEPENDENT

SCHOOL DISTRICT

CIVIL ACTION NO.

H-87-1463

§

§

§

§

§

§

§

FINAL JUDGMENT

(MAY 16 1989)

Pursuant to the Memorandum and Order signed on

this date, the Court

ORDERS that final judgment is entered in favor of

DEFENDANT Clear Creek Independent School District.

Each party shall bear its own costs.

This is a Final Judgment.

DONE in Houston, Texas, this 12th day of May, 1989.

/s/ James DeAnda

JAMES DeANDA

CHIEF JUDGE

UNITED STATES

DISTRICT COURT