Opposition Brief — Jones v. Clear Creek Independent School District

Supreme Court, us. |

rFIiIL SE D

(2) SEP 17 1991

4

No. 91-310 ; QOSFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1991

o

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,

vV.

CLEAR CREEK INDEPENDENT SCHOOL DISTRICT,

Respondent.

o

Petition For Writ Of Certiorari

To The United States Court Of

Appeals For The Fifth Circuit

4

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

4

Davip M. FELDMAN James D. Rosinson

Myra S. CHICKERING Atice M. GIesseE.”*

Vinson & ELKINS GiessEL, STONE, BARKER

1001 Fannin Street & LYMAN

Houston, Texas 77002-7670 2700 Two Houston Center

(713) 758-2260 Houston, Texas 77010-1063

Of Counsel (713) 759-1990

* Counsel of Record

For Respondent

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 nonproselytizing, nonsectarian invoca-

tions and benedictions by student volunteers at high

school graduation exercises violates the Establishment

Clause of the First Amendment as a matter of law?

il

LIST OF PARTIES

The parties to the proceedings in the United States

Court of Appeals for the Fifth Circuit are correctly identi-

fied in the caption of this Opposition.

ili

TABLE OF CONTENTS

Page

QUESTION PRESENTED ............... Gyeas ease i

ET eee eee EEE ETE ii

iY MMMM MER, 5 sess sys cccsesccceccenrsess iii

TABLE OF AUTHORITIES eee ee eee ee eee eee iv

5s 6 n6 soy roe necadéees cas nes 1

i he baiehs bok pnp hs sbesceees sos > 2

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

waeeeueeees Gee Bete CASE.................00000. 2

oss sete nce sesnsiveens 2

SPORT Eee ee Tee 5

REASONS FOR DENYING THE WRIT............. 6

A. The Present Case Is Factually Distinguishable

Co EE ee 6

B. The Fifth Circuit Correctly Applied the Lemon

IGE eG etna Sees eve a Cees teen asses 7

1. The Effect Prong | Gere re ener 7

eS eee eee 8

3. ime Entanglement Prong................. 3

Ns oc ce pone vn on ste eeee Ses ceen ree 9

iv

TABLE OF AUTHORITIES

Page

Cases:

Jones v. Clear Creek Independent School District, 930

ee OE SUE aid rkecewencapsacuncadavccees 6, 7, 8, 9

Lemon v. Kurtzman, 403 U.S. 602 (1971)........ 5, 6, 7, 5

Lynch v. Donnelly, 465 U.S. 668 (1984).............. 8, 9

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

granted, 111 S. Ct. 1305 (1991) ............4. 6, 7, 10

Zorach v. Clauson, 343 U.S. 306 (1952) .............45. 9

Wallace v. Jaffree, 472 U.S. 38 (1985) ..............55-- 8

STATUTE:

ee Lee ee ae 5

No. 91-310

¢

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,

V.

CLEAR CREEK INDEPENDENT SCHOOL DISTRICT,

Respondent.

¢

Petition For Writ Of Certiorari

To The United States Court Of

Appeals For The Fifth Circuit

:

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

e

OPINIONS BELOW

In May of 1989, the United States District Court for

the Southern District of Texas entered final judgment in

favor of Clear Creek Independent School District. This

judgment was not reported. Subsequently, the United

States Court of Appeals for the Fifth Circuit rendered a

decision in favor of the School District which was

reported at 930 F.2d 416 (1991). The Motion for Rehearing

was denied by the Fifth Circuit. Copies of these decisions

have been attached as an Appendix to the Petition for

Writ of Certiorari, and for the sake of brevity, will not be

reprinted here.

JURISDICTION

This Court’s jurisdiction is not in question.

¢

CONSTITUTIONAL PROVISIONS

The First Amendment to the United States Constitu-

tion provides the following guidance in this case:

Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exer-

cise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peacea-

bly to assemble, and to petition the Government

for a redress of grievances.

¢

STATEMENT OF THE CASE

A. Underlying Facts

Petitioner, Merritt 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 who was added to the suit to remedy a

standing problem. Petitioners will be referred to collec-

tively as “Jones.” Clear Creek Independent School Dis-

trict is a duly constituted body politic, with powers and

jurisdiction pursuant to Texas law. Respondent will be

referred to as “School District” or “District.”

The Jones brought suit to enjoin the Schoo! District

from allowing “prayers” to be given at high school grad-

uations. In particular, the Jones complain of the invoca-

tion and benediction given during the 1986 Clear Lake

High School graduation ceremonies. While there is some

dispute over the exact wording, the Jones contend that

the 1986 invocation and benediction were given as fol-

lows:

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 times 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 ali

our challenges with confidence and turn obsta-

cles into stepping stones to success. Amen.

The Jones have not complained of any invocations or

benedictions since those delivered at the 1986 graduation

ceremonies. In fact, the Jones have admitted that the

invocation and benediction given at the 1987 ceremony

were within constitutional parameters.

On December 15, 1987, the School District adopted a

resolution, formalizing a previously unwritten doctrine,

allowing for the inclusion of invocations and benedic-

tions that are “nonsectarian” and “nonproselytizing” in

nature. On January 19, 1988, the School District filed a

Motion for Leave to Supplement or File Dispositive

Motion Beyond Cut-Off. This motion was prompted by

recent case law developments, the school board resolu-

tion and the late filing of a responsive pleading by the

Jones. The district court granted the School District the

requested relief.

— a,

The Jones claimed the resolution was still unconstitu-

tional and that further discovery was necessary. The

district court found there was no longer a justiciable

controversy and summary judgment was granted in favor

of the School District.

B. Proceedings Below

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

U.S.C. § 1983, challenging as unconstitutional the School

District’s policy of allowing invocations and benedictions

allegedly containing traditiona! Christian prayer at its

high school graduation ceremonies. Petitioners sought a

permanent injunction and declaratory relief that the prac-

tice and custom of the Respondent violated Petitioners’

rights under the First Amendment of the United States

Constitution.

The School District was granted summary judgment

by the district court on May 12, 1989. This finding was

premised on the School District’s Board of Trustee’s reso-

lution adopted on December 15, 1987 which permitted

only the delivery of nonproselytizing, nonsectarian invo-

cations and benedictions, written by volunteer students,

to be delivered at graduation exercises away from the

high school’s grounds. The court reasoned that this prac-

tice does not constitute state endorsement of religion

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

appealed to the Fifth Circuit.

The Fifth Circuit affirmed the lower court's holding.

The Fifth Circuit also held that the School District’s prac-

tice passes constitutional muster under the tripartite

Lemon test. The invocations (the term being used syn-

onymously with benedictions) served to solemnize the

graduations. Jones v. Clear Creek Independent School Dis-

trict, 930 F.2d 416, 420 (1991). The effect of the invocations

neither advanced nor endorsed religion, but was merely

on accommodation of religion. Id. at 422. Lastly, there is

no excessive entanglement as the School District was not

involved with any religious institutions in its approval of

the invocations. Id. at 423.

¢

REASONS FOR DENYING THE WRIT

A. The Present Case Is Factually Distinguishable From

Weisman v. Lee.

Petitioners claim that the facts-in this case are “vir-

tually identical” to those found in the case of Weisman v.

Lee, 908 F.2d 1090 (ist Cir. 1990), cert. granted, 111 S. Ct.

1305 (1991). However, Weisman is distinguishable in a

number of very important respects. First, the invocation

at issue in Weisman was delivered by a rabbi. In the

present case, the invocations were presented by student

volunteers. Unlike the rabbi, the student volunteers were

not clothed with the indicia of religion. Second, the pre-

sentation of an invocation by a rabbi implies a certain

degree of entanglement with a particular religion, namely

Judaism. The volunteer students do not give the appear-

ance of any affiliation or association. with a given reli-

gious sect. Third, the age of the students at issue provides

another critical distinction between the two cases. In

Weisman, the plaintiff was a member of the graduating

class at a public middle school. In Jones, the plaintiffs were

members of a high school graduating class. Finally, the

location of the ceremonies at issue is also important. In

Weisman, the graduation exercises were held on school

grounds. In Jones, the graduation exercises were held

away from school grounds. Due to each of these factual

differences, Jones should not be tied to Weisman and the

jurisprudence in Jones need not be delayed, pending the

outcome in Weisman. Petitioners’ request to hold this

petition, therefore, should be denied.

B. The Fifth Circuit Correctly Applied the Lemon Test.

The Fifth Circuit, in a unanimous decision, found the

actions of the School District to be constitutional under

the Lemon test. The Petitioners argue, however, that the

Fifth Circuit improperly applied each of the three prongs

of the test.

1. The Effect Prong.

Petitioners would have this Court hold that, regard-

less of the context in which it is uttered, any reference to

a deity is “prayer,” and thus, violative of the “effect”

prong in Lemon. To reach this conclusion, however, would

undercut the logic of the Lemon test: namely, to treat each

Establishment Clause case as fact specific.

As the Fifth Circuit correctly noted, in determining

the primary effect of the School District’s Resolution, the

Resolution must be viewed in the context of an entire

graduation ceremony. Jones, 930 F.2d at 421. Moreover, the

Resolution must be viewed from the perspective of its

intended audience, namely, high school seniors and their

parents, the majority of whom have reached the age of

adulthood. Viewed in this light, the “effect” of the School

District’s Resolution is to solemnize and enhance the

significance of the graduation ceremony to its attendees.

Given, in particular, the age of the ceremony’s attendees

and the location of the event, the Resolution no more

communicates an endorsement of religion than does our

country’s national motto or Pledge of Allegiance.

2. The Purpose Prong.

Petitioners have argued that the Fifth Circuit failed to

examine the “actual purpose” behind the School District’s

Resolution. Contrary to what Petitioners contend, how-

ever, the Fifth Circuit did, in fact, examine the Resolu-

tion’s actual purpose and subsequently concluded that

the School District’s “solemnization” rationale does not

constitute a pretext for the introduction of prayer into the

schools. Jones, 930 F.2d at 420. Moreover, the Fifth Cir-

cuit’s inquiry fully satisfied the “deferential and limited”

review that the Supreme Court has deemed proper. Wal-

lace v. Jaffree, 472 U.S. 38, 75-76 (1985).

3. The Entanglement Prong.

As Justice O’Connor stated in Lynch, “(t]he entangle-

ment prong of the Lemon test is properly limited to insti-

tutional entanglement.” Lynch v. Donnelly, 465 U.S. 668,

689 (1984) (emphasis added). To date, the Petitioners have

yet to identify the religious institution or institutions that

will become excessively entangled with Clear Creek Inde-

pendent School District by virtue of the School District’s

adoption of the Resolution. For that matter, because the

Resolution explicitly dictates that invocations must be

nonsectarian and written and presented by student vol-

unteers, the Resolution “effectively excludes religious

institutions from its purview.” Jones, 930 F.2d at 423.

The Petitioners argue that Justice O’Connor’s concur-

rence in Lynch is not dispositive, given the factual distinc-

tions between Lynch and Jones. However, in their attempt

to distinguish the two cases, Petitioners have mischarac-

terized the operation of the Resolution. The administra-

tive review mandated by the Resolution is nothing more

than a cursory screening process which occurs in advance

of the graduation ceremony. The “government,” as the

Jones contend, is by no means “offering” the invocation.

The task, as is the task of composing the invocation’s text,

is reserved exclusively for student volunteers.

~

CONCLUSION

In effect, the Petitioners seek a holding that all

prayers are unconstitutional. Neither the Fifth Circuit not

this Court’s previous holdings agree. The Fifth Circuit

stated: “We reject a reading of the First Amendment that

would freeze either church and state or religion and

politics into perpetually antagonistic postures.” Jones, 930

F.2d at 420. This Court has also addressed this conflict.

“Our history is replete with official references to the

value and invocation of Divine guidance in deliberations

and pronouncements of the Founding Fathers and con-

temporary leaders.” Lynch v. Donnelly, 465 U.S. 668, 675

(1984). “We are a religious people whose institutions pre-

suppose a Supreme Being.” Zorach v. Clauson, 343 U.S.

10

306, 313 (1952). These pronouncements illustrate that not

all “prayers” are constitutional. In the case at bar, the

Fifth Circuit has found the “prayers” in question to be

constitutional.

The Petition for Writ of Certiorari should be denied,

and this petition should not be held pending the final

outcome of Weisman.

Respectfully submitted,

Davip M. FELDMAN

Myra S. CHICKERING

VINSON & ELKINS

James D. RosINSON

Auice M. Giessev*

1001 Fannin Street GiesseL, STONE, BARKER

Houston, Texas 77002-7670 _& Lyman

Of Counsel 2700 Two Houston Center

Houston, Texas 77010-1063

(713) 759-1990

*Counsel of Record

For Respondent

DATED: September 17, 1991