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

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92-1564

No. 92-___

In The

Supreme Court of the United States

October Term, 1992

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

PETITION FOR WRIT OF CERTIORARI

Bruce V. GrIFFITHS*

4019 Congress, Suite 1550

Houston, Texas 77002

(713) 223-5818

MitTcHELL 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

_ ee ee ae ee ae ee ee ee

QUESTION PRESENTED

Whether Clear Creek Independent School District’s

policy of allowing students to deliver prayers that are

approved by school officials as part of commencement

exercises violates the Establishment Clause as a matter of

law?

LIST OF PARTIES

The caption of the case contains the names of all

parties.

ce A nee

ie :

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES......................._ iv

OPINIONS BELOW................................ l

iS ccc 2

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

STATEMENT OF THE CASE....................__ 3

A. Factual Background ......................... 3

B. Proceedings Below....................._ 7

REASON FOR GRANTING THE WRIT.........___ 9

l. IN THIS CASE, THE FIFTH CIRCUIT HAS

ENTERED AN OPINION CONTRARY TO THE

COURT'S PRECEDENT....................__ 9

a 20

TABLE OF AUTHORITIES

Page

a ASES:

County of Allegheny v. American Civil Liberties

fe a ee 2, een Seer re 12

OM ee ROE sre 14, 17

Hazelwood Sch. Dist. v. Kulhmeir, 484 U.S. 526

Pe or. CULL tenn nn Jee he eee 17

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

ti | POP ee Tees eT er er Te Ce eee errr passim

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

1981), aff'd mem., 455 U.S. 913 (1982)........... 16, 18

Lee v. Weisman, 112 S. Ct. 2649 (1992)........... passim

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

Lynch v. Donnelly, 465 U.S. 668 (1984)............ 11, 13

Marsh v. Chambers, 463 U.S. 783 (1983)............... 7

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

ee Se , SRR eet a ore 10

Westside Community Sch. v. Mergens, 496 U.S. 226

ti DR rarer Greene er nr rer ara ne manage 11, 14, 19

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

wennies, 247 3. Sk. Bae Teme ice a taceves vena 10

CONSTITUTIONAL PROVISIONS:

Sean. ee) RN Ct ely ada ehlee ae Des 2, 14, 18

STATUTES:

Oe Sie MRED bon case cancKdaucey se aceabeeeeee ues 1

OE WiBA. Pe ark aes eh aren breccia eee eras 7

No. 92- |

In The

Supreme Court of the United States

October Term, 1992

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

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The decision of the United States Court of Appeals

for the Fifth Circuit is reported at 976 F.2d 963 (1992) and

is reprinted in the appendix. (App. 1). An earlier decision

of the Court of Appeals in the same case is reported at

930 F.2d 416 and is reprinted in the appendix (App. 24).

The decision of the United States District Court for the

Southern District of Texas is unreported. (App. 46).

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.

On June 29, 1992, the Supreme Court granted Peti-

tioners’ petition for certiorari and vacated the judgment of

the Court of Appeals. Jones v. Clear Creek Indep. School

District, 112 S. Ct. 3020 (1992) (App. 23). It remanded the

case to the Court of Appeals for consideration in light of

Lee v. Weisman, 112 S. Ct. 2649 (1992).

On November 24, 1992, the Court of Appeals again

affirmed the judgment of the district court. Petitioners

filed a timely motion for rehearing en banc. When no

member of the Fifth Circuit voted to grant en banc rehear-

ing, the panel treated the motion as a motion for rehear-

ing and denied it on December 28, 1992. (App. 22).

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-

‘ion 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.”

Pamela Jones and Jane Doe were graduating seniors

at Clear Lake High School, a school operated by Clear

Creek Independent School District (“Clear Creek”) in

1987 and 1988, respectively. All of the Petitioners desired

to attend the graduation ceremony of Jane Doe’s high

school class, which was scheduled for June 1988. Gradua-

tion 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 Peti-

tioner Jane Doe’s graduation ceremony in 1988. All four

of the Petitioners have numerous friends and acquain-

tances who attend, and whose children attend, Clear

Creek’s Schools. The Petitioners can therefore reasonably

expect to have occasion to attend graduation ceremonies

at Clear Lake High School for years to come. Petitioners,

Merritt Jones and John Doe, are taxpayers in the Clear

Creek School District.

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 copy of the 1986 Clear Lake

High School commencement program containing refer-

ence to the invocation and benediction was before the

trial court. In 1986, which was the graduation year of

Merritt Jones’ older child, the invocation and benediction

at the ceremony 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.

Prior to the filing of this lawsuit, the decision

whether or not to include invocations and benedictions in

each year’s proceedings had been made informally by a

group consisting of the senior class principal (a school

district administrator), the student officers of the senior

class, and the senior class valedictorians. In December

1987, a few weeks before the scheduled trial in the district

court, the school board adopted a resolution setting forth,

for the first time in written form, its policy concerning

graduation prayer. The operative portion of the resolu-

tion provides that the decision of whether or not to

include prayers in graduation ceremonies “shall rest

within the discretion of the graduating senior class, with

the advice and counsel of the senior class principal.”

Although the Court of Appeals assumes in its opinion

that the school board resolution contemplates the deci-

sion being made in some democratic fashion by the senior

class as a whole, there is nothing in the record that

indicates that the actual practice has been any different

than the informal consultation practiced before the »dop-

tion of the resolution. In fact, the “whereas clauses” of the

resolution state that the resolution is simply a codifica-

tion of prior practice.! Deposition testimony included in

the appellate record indicates that the prior practice was

for the senior class principal to review the text of prayers

composed by students.

1 The text of the resolution is as follows:

WHEREAS, invocations and benedictions have been a cere-

monial tradition at graduation exercises in this District since its

inception, and at public school commencements, generally,

since the beginning of public schools in this country; and

WHEREAS, invocations and benedictions at graduation

exercises serve to solemnize the occasion, expressing confidence

in the future, and encouraging recognition of what is worthy in

our society; and

WHEREAS, a controversy now exists regarding the use of

invocations and benedictions at high school graduation ceremo-

nies and the practice of this district in connection therewith; and

WHEREAS, to the extent there may be any misunderstand-

ing, it is in the best interests of the students, their parents and

the District, for this Board to make the practice of the District

clearly and expressly known;

NOW THEREFORE, be it resolved by the Board of Trustees

of Clear Creek Independent School District that:

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

3. Consistent with the principle of equal liberty of con-

science, the invocation and benediction shall be nonsectarian

and nonproselytizing in nature.

By passing the December resolution, the school dis-

trict asserted and continues to assert its right to include

prayers in its high school graduation ceremony, so long

as they are delivered by a student and 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)

(“Jones I”). In analyzing the “effect” prong of the Lemon

test, the court found that the age of the students attend-

ing the commencement exercises, the effect of the Invoca-

tion 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 F.2d at 421-422. Finally, the court found that Respon-

dent’s policy requiring its officials to screen proposed

invocations for sectarian or proselytizing content does

not constitute an impermissible entanglement between

school authorities and religious institutions. Id. at 423.

Jones sought certiorari review of Jones I. On June 29,

1992, this Court granted certiorari and summarily

remanded the case to the Court of Appeals. On remand,

the Court of Appeals once again affirmed the district

court’s judgment, purportedly under the principals

announced by the Supreme Court in Lee v. Weisman, supra.

The Court of Appeals held, basically, that the facts at bar

were distinguishable from those in Lee because the deci-

sion whether or not to include the prayer was made by

the senior class, because the prayer was delivered by a

student rather than a clergyman, and because attendance

at the Clear Lake High School graduation was somehow

less coerced than that in Lee.

ieee iinet iene

REASON FOR GRANTING THE WRIT

I. IN THIS CASE, THE FIFTH CIRCUIT HAS

ENTERED AN OPINION CONTRARY TO THE

COURT’S PRECEDENT

This case raises the same questions the Court

answered in Lee v. Weisman, 112 S. Ct. 2649 (1992). In Lee,

the Court concluded a religious exercise may not be

conducted at a graduation ceremony. See 112 S. Ct. at

2661. Following the Court's ruling in Lee, the Fifth Circuit

held that a school district may permit “student volunteers

to deliver nonsectarian, nonproselytizing invocations at

their graduation ceremonies.” Jones v. Clear Creek Indep.

Sch. Dist., 977 F.2d 963, 964 (5th Cir. 1992).

In Lee, the school district’s policy allowed the princi-

pal, Robert E. Lee, to invite a clergyman to deliver an

invocation and benediction at high school graduations.

112 S. Ct. at 2652. Mr. Lee advised the Rabbi that he was

invited to address the graduates and to make the bene-

diction and invocation nonsectarian. Id. Clear Creek's

policy allows a student to lead those gathered for gradua-

tion in prayer.

Clear Creek’s policy provides:

1. [t]he use of an invocation and/or benedic-

tion at high school graduation exercise[s]

shall rest within the discretion of the gradu-

ating senior class, with the advice and coun-

sel of the senior class principal;

2. [t]he invocation and benediction, if used,

shall be given by a student volunteer; and

3. [cJonsistent with the principle of equal lib-

erty of conscience, the invocation and bene-

diction shall be nonsectarian and

nonproselytizing in nature.

Jones I, 930 F.2d at 417. Clear Creek’s resolution is not

materially different from Providence’s prohibited policy

and in this case is subject to the Court’s ruling in Lee.?

The “dominant facts” that marked and controlled Lee

were:

State officials direct their performance of a for-

mal religious exercise at promotional and grad-

uation ceremonies for secondary schools. Even

for those students who object to the religious

exercise, their attendance and participation in

the state-sponsored religious activity are in a

fair and real sense, obligatory, though the school

district does not require attendance as a condi-

tion for a receipt of the diploma.

112 S. Ct. at 2649.

To distinguish this case from Lee, the Fifth Circuit

viewed this case as an acceptable accommodation of a

majority’s wishes to have commencement prayers. See 977

F.2d at 969 (accommodation of majority of graduating

2 A distinction between Providence’s policy allowing a

clergyman to lead the prayer and Clear Creek’s requirement

that a student make the offering is not meaningful. In Lee, the

Court noted the conflict between the First Circuit’s opinion, 908

F.2d 1090 (1990), and the Sixth Circuit’s opinion in Stein v

Plainwell Community Schools, 822 F.2d 1406 (1987). 112 S. Ct. at

2654. Stein involved student offered commencement prayers.

822 F.2d at 1407. In affirming the First Circuit’s opinion in Lee,

112 S. Ct. at 2655, the Court did not distinguish Stein from Lee on

that, or any other basis.

seniors’ desires). The Fifth Circuit also upheld the policy

under its understanding of the Court’s Establishment

Clause cases.

To support its accommodation argument, the Fifth

Circuit found that Jones “more closely parallels” Westside

Community Sch. v. Mergens, 496 U.S. 226 (1990), than Lee.

See 977 F.2d at 968-69 (concerning endorsement). Com-

mencement questions, however, do not require accom-

modation analysis. See Lee, 112 S. Ct. at 2655 (Lee does not

require review of accommodation principles because con-

trolling precedents render prayer at commencement exer-

cises unconstitutional). To be sure, this is a

commencement prayer case. Jones II, 977 F.2d at 965.

In Jones II, the Fifth Circuit reasoned that Clear Creek

was simply accommodating the wishes of a majority of

the senior class in furnishing a platform for a student-

composed prayer. 977 F.2d at 969. This accommodation

argument underpinned much of the Fifth Circuit’s opin-

ion and served as a basis for distinguishing this case from

Lee. See Jones II, 977 F.2d at 968 (comparing this case to

Mergens and Lynch v. Donnelly, 465 U.S. 668 (1984)). In Lee,

the Court made plain that the offering of prayers at

public high school commencement exercises cannot be

justified as an accommodation of the majority’s wishes.

112 S. Ct. at 2660. Denied this position, Jones I] must be

scrutinized like other school prayer cases. See Lee, 112 S.

Ct. 2660 (commencement like classroom); see also Lee, 112

S. Ct. at 2663-64 n.4 (Blackman, J. concurring) (Court

applies Lemon vigorously in every school prayer case).

In the course of applying the Court’s standard for

Establishment Clause cases, see Lee, 112 S. Ct. at 2663 n.4

(noting Lemon v. Kurtzman, 403 U.S. 602 (1971), the Fifth

Circuit found two additional tests, “endorsement” and

“coercion”. See Jones Il, 977 F.2d at 966-969. Discussion of

the Fifth Circuit’s five tests follows.

In Lemon, the Court held governmental practices

must (1) reflect a clearly secular purpose; (2) have a

primary effect that neither advances nor inhibits religion;

and (3) avoid excessive government entanglement with

religion. Lee, 112 S. Ct. at 2654. In Jones II, the Fifth Circuit

misapplied this test and then used the endorsement and

coercion analysis it found in the Court’s cases to uphold

Clear Creek’s policy. See 977 F.2d at 966-69.

Contrary to the statement in Jones II, finding any

secular purpose in Clear Creek’s policy, 977 F.2d at 966, is

not sufficient. Lee, 112 S. Ct. at 2654 (secular purpose

must be clear); see also Jones II, 977 F.2d at 966 n.6 (noting

secular purpose must be clear). It is difficult to see a clear

secular purpose in the policy. The Fifth Circuit’s argu-

ment that the policy fosters the legitimate purpose of

solemnizing commencement exercises rests on the unin-

structive holding in County of Allegheny v. ACLU, 492 U.S.

537 (1989). See 977 F.2d at 966. Allegheny does not save

Clear Creek’s policy because the Court’s precedents relat-

ing to religious activities in schools control resolution of

commencement prayer cases and Allegheny is not a school

case. See Lee, 112 S. Ct. at 2655. The Fifth Circuit offered

no authority for its proposition that prayer is a proper

method for solemnizing commencement exercise. Lee, in

fact, strongly suggests that prayers may not be offered at

commencement exercises for any purpose. See 112 S. Ct.

at 2656 (government cannot seek to find a prayer unof-

fensive to all for graduation ceremony). Furthermore, the

record before the Fifth Circuit contained no evidence of

Clear Creek’s purpose in adopting the policy. See 977 F.2d

at 965 (affirming summary judgment).

The second prong of the Lemon test, the primary

effect of the challenged conduct, 403 U.S. at 612, was

improperly applied in Jones II. The Fifth Circuit reasoned

that because the Lee Court did not address whether

“solemnization is a legitimate secular purpose of ceremo-

nial prayer,” solemnizing commencement exercises with

prayer is appropriate. See Jones II, 977 F.2d at 966-67.

The issue was not addressed in Lee because the Court

found offering commencement prayers involves the gov-

ernment in religious activity so pervasively that the prac-

tice is unconstitutional without further inquiry. 112 S. Ct.

at 2655. The Lemon question is not what effect Clear Creek

intended the policy to have, but “the legitimacy of its

undertaking the enterprise at all when the object is to

produce a prayer to be used in a formal religious exer-

cise... .” Lee, 112 S. Ct. at 2656; see also Lynch v. Donnelly,

465 U.S. 668, 690 (1984) (O’Conner J. concurring) (effect

prong asks whether practice conveys a message of

endorsement).

The Fifth Circuit’s entanglement analysis under

Lemon was also flawed. The Fifth Circuit attempted to

distinguish Jones II from Lee on the basis that the Estab-

lishment Clause prohibits only entanglement between the

state and religious institutions. 977 F.2d at 967-68. The

Fifth Circuit found that because a student offers the

prayer, the policy avoids excessive entanglement between

the state and religion. Id. This conclusion misinterprets

the law and avoids the facts. Lemon requires government

to avoid entanglement with religion, not just religious

institutions. 403 U.S. at 613. Additionally, Clear Creek’s

policy requires the principal to advise and counsel stu-

dents on the prayer’s content. See 977 F.2d at 964 n.1. The

state cannot edit prayers for presentation at school

events. See Lee, 112 S. Ct. at 2656 (quoting Engel v. Vitale,

370 U.S. 421, 425 (1962)). School officials may not “assist

in composing prayers as an incident to a formal exercise

for their students.” Lee, 112 S. Ct. at 2657 (citation omit-

ted).

After dispatching Lemon, the Fifth Circuit turned to

the first of two other tests it found in the Court's cases,

an endorsement test. See Jones li, 977 F.2d at 968.° After

announcing that the state may not endorse religion, the

Fifth Circuit relied on Mergens to conclude that Clear

Creek’s policy simply accommodates rather than

endorses religion. 977 F.2d at 968-69. This point rests on

the conclusion the Court found unacceptable in Lee, that

commencement prayer should be viewed as a free exer-

cise under the First Amendment. 112 S. Ct. at 2655 (free

exercise “does not supersede the fundamental limitations

imposed by the Establishment Clause.”) Mergens involved

3 Justice O’Conner suggested and defined an endorsement

analysis of Establishment Clause questions in her concurrence

in Lynch. 465 U.S. at 688. As compared to excessive entangle-

ment, government endorsement of religion is a more direct

infringement on the Establishment Clause. Id. “Endorsement

sends a message to nonadherents that they are outsiders, not

full members of the political community. ...” Id. The Court

used the same logic in Lee. 112 S. Ct. at 2658.

after-school club activity, not a school-sponsored event.

496 U.S. 226, 247-253. Unlike extracurricular activities,

graduation is not an optional exercise. See Lee, 112 S. Ct.

at 2660 (graduation is the “one school event most impor-

tant for the student to attend”).

The Fifth Circuit concluded that Clear Creek’s policy

is not an impermissible endorsement because it submits

the decision to have a graduation prayer to the majority

of the senior class.4 977 F.2d at 696. Clear Creek cannot

excuse its policy on the grounds that it represents the

wishes of a majority. Lee, 112 S. Ct. 2660 (under the

Establishment Clause, the majority’s wishes are not con-

trolling.) The methods Clear Creek uses to present

prayers at commencement exercises is immaterial because

the process cannot absolve an unconstitutional result.

To assume, as the Fifth Circuit did, that “a majority of

students can do what the State acting on its own cannot

do to incorporate prayer in public high school graduation

ceremonies,” ignores established law. See 977 F.2d at 972.

The state controls commencement exercises. Lee, 112 S.

Ct. at 2660 (citation omitted). Graduation is a state-spon-

sored activity. Prayers given at commencement under

school policy are offered by the state. See 112 S. Ct. at

2655. Finally, commencement exercises are analogous to

the classroom, Lee, 112 S. Ct. at 2660, where student

‘ The content of the commencement invocation and bene-

diction are edited by the senior class principal. 977 F.2d at 964

n.1. School official may not assist in composing prayers. Lee, 112

S. Ct. at 2657 (citation omitted). The record does not support the

Fifth Circuit’s suggestion that the content of the prayer is deter-

mined exclusively by the senior class.

volunteers may not deliver prayers, Karen B. v. Treen, 653

F.2d 897, 899 (Sth Cir. Unit A 1981), aff'd. mem., 455 U.S.

913 (1982).

After its endorsement analysis, the Fifth Circuit

turned to the three elements of its coercion test. These are

whether (1) the governments directs, (2) a formal exer-

cise, (3) in such a way as to oblige the participation of

objectors. Jones II, 977 F.2d at 970 (citation omitted).

In its “direction” discussion, the Fifth Circuit distin-

guished Lee on the grounds that the Clear Creek policy

does not place the conteni of graduation prayers in the

direct and complete control of the state. As the Court

noted in Lee, control of graduation lies in Clear Creek. 112

S. Ct. at 2660. Moreover, Clear Creek controls the content

of the invocation and benediction because the prayer

must be submitted to the class principal for review before

it may be offered at the commencement. Jones II, 977 F.2d

at 964 n.1. The Fifth Circuit stated that “in evaluating the

Resolution’s facial constitutionality, we are only con-

cerned with whether the resolution necessarily charges

government with the decision of whether to include invo-

cations.” 977 F.2d at 970. The Fifth Circuit then concluded

that “[uJnlike the policy in issue in Lee, the Resolution

does not.” 977 F.2d at 970-71. Because Clear Creek con-

trols commencement completely, allowing prayer is as

inappropriate as requiring it. Clear Creek’s policy

requires the principal to review the proposed prayer and

determine whether it offends the First Amendment. Clear

Creek simply performs the review Providence left to

Rabbi Gutterman - to decide that the prayer was accept-

able. Substituting its principal for a Rabbi does not save

Clear Creek’s policy.

Indeed, to the extent that it makes any difference at

all, the fact that a student delivers the prayer at Clear

Lake High School, while an outside clergyman delivered

it in Lee, cuts in the opposite direction from that supposed

by the Fifth Circuit’s opinion. Because of the extent to

which school officiais may and, in fact, do exercise con-

trol over student speech in the course of officially spon-

sored school activities, Hazelwood Sch. Dist. v. Kuhlmeier,

484 U.S. 562 (1988), a student leading a public prayer in

the course of a public high school graduation ceremony is

more likely to be perceived as constituting a govern-

mental endorsement of religion than is a prayer delivered

by an adult who is not affiliated with the school. In the

case at bar, in fact, the school district exercises its power

over student speech by requiring in its resolution that the

decision whether or not to include prayer in the gradua-

tion be made with the advice and counsel of the senior

principal and by allowing only those prayers that the

district determines to be suitably nonsectarian. By con-

trast, the school district’s control over the content of

Rabbi Gutterman’s prayer in Lee was limited to providing

him with a book, “Guidelines for Civic Occasions,” which

contained suggestions for suitably nonsectarian prayers.

The Court’s opinion in Lee characterized the school dis-

trict’s actions as the district attempting “to compose offi-

cial prayers.” 112 S. Ct. at 2656, quoting Engel v. Vitale,

370 U.S. 421 (1962). Clear Creek’s asserted control over

the prayers recited by its student speakers is certainly

greater than that denounced in Lee.

The second prong of the Fifth Circuit’s coercion anal-

ysis led it to conclude that the graduation prayer was not

a “formal religious exercise.” The Fifth Circuit found this

by deciding that the resolution “tolerates nonsectarian,

nonproselytizing prayer, but does not require it or favor

it.” 977 F.2d at 971. Commencement prayers are formal

religious exercises. Lee, 112 S. Ct., at 2656. Additionally,

under the Fifth Circuit’s own precedent, prayer is inher-

ently religious. See Treen, 683 F.2d at 901.

The Fifth Circuit determined that the policy did not

oblige members of the graduating class who objected to

the offering of the prayer to participate in an objection-

able manner. 977 F.2d at 971.

We think that the graduation prayers permitted

by the Resolution place less psychological pres-

sure then the prayers at issue in Lee because all

students, after having participated in the decision of

whether prayers will be given, are aware that any

prayers represent the will of their peers, who

are less able to coerce participation than an

authority figure from the state or clergy.

977 F.2d at 971 (emphasis in original). Knowing that the

majority wishes to abrogate rights under the First

Amendment does not make the result any more accept-

able. See Lee, 112 S. Ct. at 2660 (“Constitution forbids the

state to exact religious conformity” as the price of attend-

ing commencement). The Establishment Clause is

expressly designed as a protection for religious minorities

against the majority’s power to favor its own faith and

render non-believers second-class citizens of the civil

community. No one would seriously argue that a school

district could render daily classroom prayers constitu-

tional by the simple expedient of conducting a referen-

dum of the student body. The Fifth Circuit opinion

suggests no reason why a vote of the senior class should

be construed as having the effect of converting otherwise

unconstitutional school prayer into a constitutional free

exercise of religion.

Lee v. Weisman is merely the most recent case in which

the Court has found that the danger of unlawful establish-

ment of religion is particularly high in the context of public

schools. Organized religious activities in public schools are

almost always an unconstitutional establishment of religion

because schools are not traditional fora for free speech and

students are not, therefore inclined to distinguish between

messages compelled by school authorities and those merely

permitted by them. The only case in which the Supreme

Court has upheld organized religious activities in the public

schools is Westside Community Schools v. Mergens, 110 S. Ct.

2356 (1990), and, because of its uniqueness, the Fifth Circuit

relies heavily on it in Jones II. However, Mergens rests its

holding largely on the fact that the religious clubs it com-

pelled were wholly student-initiated and student-run, met

outside normal school hours, were not led or sponsored by

school officials and were organized in schools which had

already created an open forum by recognizing other non-

curricular clubs. Clear Lake High School’s graduation cere-

mony, like that in Lee and most public schools, are clearly

full-blown official school functions that cannot be mistaken

for a private student club or open forum. Given the total

absence of any indication that Respondent has treated its

graduation exercises as afora for student free speech®

Mergens has no applicability to the case at bar.

* Not only is the appellate record void of any indication

that the past practice had opened graduation ceremonies to

student free speech, but the resolution by which Respondent

memorialized its policy contains not even a hint that the school

In Lee v. Weisman, this Court affirmed again that

official prayer has no place in our public schools. The

distinctions between the facts of the case at bar and those

in Lee are insignificant and are clearly not sufficient to

justify a different outcome than that in Lee.

Il. CONCLUSION

For the reasons stated herein, the Petition for Writ of

Certiorari should be granted in this case.

Respectfully submitted this 25 day of March, 1993.

Bruce V. GriFFITHS

Counsel of Record

1019 Congress, Suite 1550

Houston, Texas 77002

(713) 223-5818

MitcHELt A. SEIDER

3700 First City Tower

Houston, Texas 77002

(713) 658-8881

DATED: March 25, 1993.

board was allowing prayers because it was compelled to do so

as an aspect of students’ right of free speech. Rather, the resolu-

tion justifies the practice as a method of solemnization of the

ceremony.

App. 1

Merrit E. JONES, on his behalf and as next friend of

Pamela Jones, a child, et al., Plaintiffs-Appellants,

Vv.

CLEAR CREEK INDEPENDENT SCHOOL DISTRICT,

Defendant-Appellee.

No. 89-2638

United States Court of Appeals,

Fifth Circuit

Nov. 24, 1992

ON REMAND FROM THE SUPREME COURT

OF THE UNITED STATES

Before REAVLEY, GARWOOD and BARKSDALE,

Circuit Judges.

REAVLEY, Circuit Judge:

In Jones v. Clear Creek Independent School Dist., 930

F.2d 416 (Sth Cir. 1991) (Jones 1), vacated, 505 U.S. __, 112

S.Ct. 3020, 120 L.Ed.2d 892 (1992), we held that Clear

Creek Independent School District’s Resolution! permit-

ting public high school seniors to choose student

' The Resolution provides:

1. The use of an invocation and/or benediction at high school

graduation exercise shall rest within the discretion of the grad-

uating 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

3. Consistent with the principle of equal liberty of conscience,

the invocation and benediction shall be nonsectarian and non-

proselytizing in nature.

App. 2

volunteers to deliver nonsectarian, nonproselytizing

invocations at their graduation ceremonies does not vio-

late the Constitution’s Establishment Clause. In applying

the tripartite test of Lemon v. Kurtzman, 403 U.S. 602,

612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971), we

reasoned that the Resolution has a secular purpose of

solemnization, that the Resolution’s primary effect is to

impress upon graduation attendees the profound social

significance of the occasion rather than advance or

endorse religion, and that Clear Creek does not exces-

sively entangle itself with religion by proscribing sec-

tarianism and proselytization without prescribing any

form of invocation. Jones I, 930 F.2d at 419-23.

Then, in Lee v. Weisman, 505 U.S. __, 112 S.Ct. 2649,

120 L.Ed.2d 467, 60 U.S.L.W. 4723 (1992), the Supreme

Court held that Robert E. Lee, a public-school principal

acting in accord with the policy of his Providence, Rhode

Island school district, violated the Establishment Clause

by inviting a local clergy member, Rabbi Leslie Gutter-

man, to deliver a nonsectarian, nonproselytizing invoca-

tion at his school’s graduation ceremony. The Court

reasoned that Lee’s actions represent governmental coer-

cion to participate in religious activities, a paradigmatic

establishment of religion. The Court then granted cert-

iorari in this case, vacated our judgment, and remanded it

to us for further consideration in light of Lee, Jones v. Clear

Creek Indep. Sch. Dist., 505 U.S. __, 112 S.Ct. 3020, 120

L.Ed.2d 892 (1992). Upon reconsideration, we hold that

Lee does not render Clear Creek’s invocation policy

unconstitutional, and again affirm the district court's

summary judgment in Clear Creek’s favor.

App. 3

1. THE SUPREME COURT TELLS THIS COURT WHAT

THE ESTABLISHMENT CLAUSE MEANS

Of the six forms of argument recognized in constitu-

tional interpretation,? it is the doctrinal arguments that

control Establishment Clause cases.? Although the

Supreme Court’s doctrinally-centered manner of resolv-

ing Establishment Clause disputes may be credited with

accommodating a society of remarkable religious diver-

sity, it requires considerable micromanagement of gov-

ernment’s relationship to religion as the Court decides

each case by distilling fact-sensitive rules from its prece-

dents.

For example, in Lynch v. Donnelly, 465 U.S. 668,

681-82, 104 S.Ct. 1355, 1363-64, 79 L.Ed.2d 604 (1984), the

Court compared the effect that a city’s display of a nativ-

ity scene had on the advancement or endorsement of

religion to the effect of governmental actions that it had

considered in previous cases, and concluded that display

of the nativity scene did not violate the Establishment

Clause. Id. at 687, 104 S.Ct. at 1366. Then, in County of

Allegheny v. ACLU, 492 U.S. 573, 598-600, 109 S.Ct. 3086,

3103-05, 106 L.Ed.2d 472 (1989), the Court held that a

county’s display of a nativity scene violated the Estab-

lishment Clause because, inter alia, it was surrounded by

2 See Pure Bossitt, ConstiruTIONAL Fate 7, 93-94 (1982)

(defining six categories of legitimate constitutional argument:

historical, textual,”structural, prudential, doctrinal, and ethi-

cal).

3 See Pur Bossitt, CONSTITUTIONAL INTERPRETATION 18-20

(1991) (employing an Establishment Clause hypothetical to

explain doctrinal argument).

App. 4

flora, instead of Santa Claus and reindeer as was the

nativity scene at issue in Lynch.4

The Court has repeatedly held that the Establishment

Clause forbids the imposition of religion through public

education. That leads to difficulty because of public

schools’ responsibility to develop pupils’ character and

decisionmaking skills, a responsibility more important in

a society suffering from parental failure. If religion be the

foundation, or at least relevant to these functions and to

the education of the young, as is widely believed, it

follows that religious thought should not be excluded as

irrelevant to public education. There is a deep public

concern that radical efforts to avoid pressuring children

to be religious actually teach and enforce notions that

pressure the young to avoid all that is religious.®

Nevertheless, it is neither our object nor our place to

opine whether the Court’s Establishment Clause jurispru-

dence is good, fair, or useful. What the Establishment

Clause finally means in a specific case is what the Court

says it means. We sit only to apply the analytical methods

sanctioned by the Court in accord with its precedent.

4 Some say that the Court has thus found a “three plastic

animals rule” in the Constitution. Michael W. McConnell, Reli-

gious Freedom at a Crossroads, 59 U.cni.L.Rev. 115, 127 (1992).

5 See Board of Educ. of Westside Community Sch. v. Mergens,

496 U.S. 226, 248, 110 S.Ct. 2356, 2371, 110 L.Ed.2d 191 (1990)

(“[I]f a State refused to let religious groups use facilities open

to others, then it would demonstrate not neutrality but hostil-

ity toward religion.”).

App. 5

Il. FROM LEMON TO LEE

In Jones I, we applied Lemon's tripartite test® rather

than the historical approach that the Court employed in

Marsh v. Chambers, 463 U.S. 783, 792, 103 S.Ct. 3330, 3336,

77 L.Ed.2d 1019 (1983). Jones I, 930 F.2d at 419 (citing

Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373, 383, 105 S.Ct.

3216, 3222 (1985), and Edwards v. Aguillard, 482 U.S. 578,

583 n. 4, 107 S.Ct. 2573, 2577 n. 4, 96 L.Ed.2d 510 (1987)).

The Lee Court agreed that Marsh's historical analysis is

inappropriate, ___ U.S. at __, 112 S.Ct. at 2660, yet it

considered Lemon analysis unnecessary to decide whether

Lee violated the Establishment Clause.” The Court instead

held Lee’s actions unconstitutional under a coercion anal-

ysis. Id. _-_~*OU.S. at __, 112 S.Ct. at 2655. At least four

Justices would also hold that Lee’s actions had the effect

of unconstitutionally endorsing religion. Id. __ US. at

governmental practice must (1) reflect a clearly secular pur-

pose; (2) have a primary effect that neither advances nor

inhibits religion; and (3) avoid excessive government entangle-

ment with religion.” Lee, —=»-~XU.S. at __, 112 S.Ct. at 2654

(citations omitted).

7 The Court stated:

We can decide th[is] case without reconsidering the

general constitutional framework by which public

schools’ efforts to accommodate religion are mea-

sured. Thus we do not accept the invitation of [Lee]

and amicus the United States to reconsider our deci-

sion in Lemon. . .

Id.___ U.S. at __, 112 S.Ct. at 2655; but cf. id. =» ~U.S. at __,

112 S.Ct. at 2685 (Scalia, J., dissenting) (equating Court's

neglect of Lemon with rejection).

App. 6

__, 112 S.Ct. at 2665 n. 9 (Blackmun, J., concurring), at

__, 112 S.Ct. at 2671-72 (Souter, J., concurring).

Thus, in the time between Lemon and Lee, the Court

has used five tests to determine whether public schools’

involvement with religion violates the Establishment

clause. To fully reconsider this case in light of Lee, we

reanalyze the Resolution under all five tests that the

Court has stated are relevant. We address any statements

in Lee that bear on our analysis in Jones | and apply Lee's

coercion test for the first time.

A. SECULAR PURPOSE

Nothing in Lee abrogates our conclusion that the

Resolution has a secular purpose of solemnization, and

thus satisfies Lemon’s first requirement. See Jones I, 930

F.2d at 419-21. The Resolution represents Clear Creek’s

judgment that society benefits if people attach impor-

tance to graduation. A meaningful graduation ceremony

can provide encouragement to finish school and the

inspiration and self-assurance necessary to achieve after

graduation, which are secular objectives.

The Lee Court stated that the Providence school dis-

trict’s solemnization argument would have “considerable

8 See Lynch, 465 US. at 679, 104 S.Ct. at 1362 (Establishment

Clause “erects a ‘blurred, indistinct, and variable barrier depend-

ing on all the circumstances of a particular relationship’ ” and

Court is “unwilling[ ] to be confined to any single test or criterion

in this sensitive area”) (citations omitted); Lee, | U.S. at __, 112

S.Ct. at 2661 (“Establishment Clause jurisprudence remains a

delicate and fact sensitive one... . ”).

App. 7

force were it not for the constitutional constraints applied

to state action....” —U.S.at__,112S.Ct. at 2660. The

Court did not question its members’ previous acknowl-

edgements that solemnization is a legitimate secular pur-

pose of ceremonial prayer. See Allegheny, 492 U.S. at 595,

n. 46, 109 S.Ct. at 3102 n. 46; id. at 630, 109 S.Ct. at 3120-21

(O’Connor, J., concurring); Lynch, 465 U.S. at 693, 104

S.Ct. at 1369-70 (O’Connor, J., concurring); see also Engel v.

Vitale, 370 U.S. 421, 435 n. 21, 82 S.Ct. 1261, 1269 n. 21, 8

L.Ed.2d 601 (1962). Thus, we take the Lee Court to agree

with our holding in Jones | that a law may pass Lemon's

secular-purpose test by solemnizing public occasions, yet

still be stricken as an unconstitutional establishment

under another test mandated by the Court. See Jones I, 930

F.2d at 420.

B. Primary EFrect

In Jones I, we held that the Resolution’s primary effect

was to solemnize graduation ceremonies, not to “advance

religion” in contravention of Lemon’s second requirement.

Id., at 421-22. Lee calls into question three statements that

we made in support of our advancement holding. We

stated that graduating high school seniors would be less

easily influenced by prayer than would be their junior

schoolmates, id. at 421, but the Court held that all stu-

dents under school supervision would be unduly influ-

enced by Rabbi Gutterman’s prayers. Lee, _§-: U'S. at __,

112 S.Ct. at 2658. We distinguished the graduation setting

from the classroom setting because parents and guests are

present only at graduation and school officials can pay

much greater attention to individual students in the class-

room than at graduation, Jones I, 930 F.2d at 422, but the

App. 8

Court stated that the two settings are “analogous.” Lee,

___ U.S. at __, 112 S.Ct. at 2660. We stated that the

brevity and infrequency of the permissible prayers under

the Resolution tempered any advancement of religion,

Jones I, 930 F.2d at 422, but the Court rejected a de minimis

characterization of the brief prayers at issue in Lee. __

U.S. at __, 112 S.Ct. at 2659.

Lee commands that we not rely on these three points

in deciding whether the Resolution’s primary effect is to

advance religion. Yet even without them, we remain con-

vinced that the Resolution’s primary effect is to solem-

nize graduation ceremonies.

The Resolution can only advance religion by increas-

ing religious conviction among graduation attendees,

which means attracting new believers or increasing the

faith of the faithful. Its requirement that any invocation

be nonsectarian and nonproselytizing minimizes any

such advancement of religion. The Lee Court held that the

nonsectarian nature of the prayers there at issue did not

change the fact that Lee directed graduation attendees to

participate in a religious exercise. __ U.S. at __, 112

S.Ct. at 2656; see also id. at __, 112 S.Ct. at 2667-71

(Souter, J., concurring). Nevertheless, the nonsectarian

nature of a prayer remains relevant to the extent to which

a prayer advances religion.

The fact that Lemon only condemns government

action that has the primary effect of advancing religion,

see Lemon, 403 U.S. at 612, 91 S.Ct. at 2111, requires us to

compare the Resolution’s secular and religious effect. The

Resolution may or may not have any religious effect. The

students may or may not employ the name of any deity;

App. 9

heads may or may not be bowed; indeed, an invocation

may or may not appear on the program. If the students

choose a nonproselytizing, nonsectarian prayer, the effect

may well marshal attendees’ extant religiosity for the

secular purpose of solemnization; but no one would

likely expect the advancement of religion by the initiation

or increase of religious faith through these prayers. The

Resolution’s primary effect is secular.

C. ENTANGLEMENT

We held in Jones I that the Resolution’s proscription

of sectarianism does not of itself, excessively entangle

government with religion. We know of no authority that

holds yearly review of unsolicited material for sectaria-

nism and proselytization to constitute excessive entangle-

ment. Cf. Weisman v. Lee, 908 F.2d 1090, 1095 (1st Cir.1990)

(Bownes, J., concurring) (finding excessive entanglement

where school district directs that a prayer be given,

chooses a clergy member to deliver the prayer, and

requests that prayer be nonsectarian and nonproselytiz-

ing), aff'd __ U.S. __, 112 S.Ct. 2649, 120 L.Ed.2d 467

(1992); id., at__, 112 S.Ct. at 2617 (Souter, J., concurring)

(state decisions as to sectarianism constitute illicit com-

parative theology). Moreover, nothing in Lee abrogates

our reading of the Court’s entanglement precedent to

limit violative entanglement to institutional entanglement.

Jones I, 930 F.2d at 423 (citing, inter alia, Lynch, 465 US. at

689, 104 S.Ct. at 1368 (O’Connor, J., concurring)). That a

rabbi wrote and delivered the prayer at issue in Lee

makes entanglement analysis relevant to that case, but

the Resolution keeps Clear Creek free of all involvement

with religious institutions.

App. 10

D. ENDORSEMENT

Like Lemon’s advancement test, the Court’s endorse-

ment analysis focuses on the effect of a challenged gov-

ernmental action. This is why, perhaps mistakenly, we

conflated advancement and endorsement analysis in Jones

I. Because the Court has never tolerated a government

endorsement of religion that is incidental to a primary

secular effect, as it has with incidental religious advance-

ments, we will not now compare endorsement to legiti-

mate effects of the Resolution. See Allegheny, 492 U.S. at

595 & n. 46, 109 S.Ct. at 3102 & n. 46 (Justice Blackmun,

writing for himself and Justice Stevens, rejects any and all

government endorsement of religion).

From the Court’s various pronouncements, we

understand government to unconstitutionally endorse

religion when a reasonable person would view the chal-

lenged government action as a disapproval of her con-

trary religious choices. See Lee, __-~*U.S. at __, 112 S.Ct. at

2665 n.9 (Blackmun, J., concurring) (unconstitutional

endorsement when “government makes adherence to reli-

gion relevant to a person’s standing in the political com-

munity”) (quoting Wallace v. Jaffree, 472 U.S. 38, 69, 105

S.Ct. 2479, 2496, 86 L.Ed.2d 29 (1985) (O’Connor, J., con-

curring)); Allegheny, 492 U.S. at 631, 109 S.Ct. at 3121

(O’Connor, J., concurring) (“The question under endorse-

ment analysis... is whether a reasonable observer would

view [government action] as a disapproval of his or her

particular religious choices. ... ”).

We may compare the Resolution to the facts in two

somewhat similar cases where members of the Court

discussed endorsement of religion. Both Lee concurrences

App. 11

consider invocations directed by Lee to be unconstitu-

tional endorsements of religion. -§.-:; U.S. at —_, 112 S.Ct.

at 2665-66 (Blakmun, J., concurring); id at _, 112 S.Ct. at

2677-78 (Souter, J., concurring). These concurrences

attracted the votes of four Justices,? including Justice

O’Connor, who first articulated the endorsement test for

the Court in Lynch, 465 U.S. at 688-89, 104 S.Ct. at 1367

(O’Connor, J., concurring). On the other hand, a plurality

of the Court recently held that a public school does not

unconstitutionally endorse religion by permitting a

Christian club to meet on school grounds after class and

recruit members through the school’s newspaper, bulletin

boards, public address system, and annual Club Fair, as

long as the school accords equal privileges to other non-

curriculum-oriented student organizations. See Board of

Educ. of Westside Community Sch. v. Mergens, 496 U.S. 226,

247-53, 110 S.Ct. 2356, 2370-73, 110 L.Ed.2d 191 (1990).

To compare the Resolution with Lee and Mergens, we

consider exactly what it does. Unlike the policy at issue

in Lee, it does not mandate a prayer. The resolution does

not even mandate an invocation; it merely permits one if

the seniors so choose. Moreover, the students present

Clear Creek with their proposed invocation under the

Resolution, while in Lee the school explained its idea for

an invocation to a member of an organized religion and

directed him to deliver it. = US. at __, 112 SCt. at

% Justice Kennedy, writing for the Court, took no position

on endorsement in Lee. Justice Scalia, writing for the four

dissenters, found no endorsement on the facts in Lee. Id. __

U.S. at __, 112 S.Ct. at 2683-84 (Scalia, J., dissenting).

App. 12

2652-53. The Resolution is passive compared to the gov-

ernmental overture toward religion at issue in Lee.

Concerning endorsement, the instant case more

closely parallels Mergens because a graduating high

school senior who participates in the decision as to whether

her graduation will include an invocation by a fellow student

volunteer will understand that any religious references are

the result of student, not government, choice. The

Mergens plurality states the point directly:

there is a crucial difference between government

speech endorsing religion, which the Establish-

ment Clause forbids, and private speech endors-

ing religion, which the Free Speech and Free

Exercise Clauses protect. We think that second-

ary school students are mature enough and are

likely to understand that a school does not

endorse or support student speech that it merely

permits on a non-discriminatory basis.

496 US. at 250, 110 S.Ct. at 2372. In Jones I, we recognized

that invocations permitted by the Resolution “may”

include supplication to a deity. 930 F.2d at 417 n.1. But the

Resolution permits invocations free of all religious con-

tent, and the 1987 student proposal was acceptable to the

plaintiff-appellants. See id. at 420 n. 3. The record does

not disclose how each senior class chooses whether to

include an invocation nor how the student volunteer who

delivers the speech is chosen.!° We can imagine

10 The appellants ask us to remand this case so that they

can adduce evidence of unconstitutional applications of the

Resolution. We understand our present task to be limited to

(Continued on following page)

App. 13

discriminatory methods of implementing the Resolution

that would make it a tool for governmental endorsement

of religion, but the Resolution itself is constitutional

unless there is no way to implement it on a non-

discriminatory basis.

We think that Clear Creek does not unconstitu-

tionally endorse religion if it submits the decision of

graduation invocation content, if any, to the majority vote

of the senior class. Clear Creek is legitimately concerned

with solemnizing its graduation ceremonies, and the Res-

olution simply permits each senior class to decide how

this can best be done. School districts commonly provide

similarly secular criteria for the selection of other student

graduation speakers, and no court has held that their

religious speech at graduation represents government

endorsement of religion.1! Cf. Guidry v. Broussard, 897

F.2d 181, 192 (5th Cir. 1990) (relying on defendants’

immunity to avoid deciding whether school liable for

censoring valedictorian’s religious graduation address).

After participating in a student determination of what

kind of invocation their graduation will contain, we do

(Continued from previous page)

determining of the Resolution’s facial constitutionality, and

nothing in this case prevents the appellants from filing a

declaratory judgment action if they believe that the Resolution

has been unconstitutionally applied. See Jones 1, 930 F.2d at

423-24.

11 That some attendees choose to stand and remain silent

during an invocation is indistinguishable from their decision to

accord a standing ovation to a moving valedictory address

with religious inferences.

App. 14

not believe that students will perceive any more govern-

ment endorsement of religion from the Resolution than

do students in Westside Community schools who are

regularly recruited during school hours to join a Chris-

tian club. Clear Creek students certainly perceive a less-

direct relationship between state and religion under the

Resolution than Providence students did before Lee. See

Lee, __ U.S. at __, 112 S.Ct. at 2661 (“[A]t graduation

time and throughout the course of the educational pro-

cess, there will be instances when religious values, reli-

gious practices, and religious persons will have some

interaction with the public schools and their students.”)

(citing Mergens). We find no unconstitutional endorse-

ment.

E. CoercION

Instead of directly considering any of the tests that

we have previously discussed, the Lee Court invalidated

the providence school district’s policy on its evaluation of

the coercive effect of Lee’s actions. The Court held that

Lee coerced graduation attendees to join in a formal reli-

gious exercise. Lee, at __, 112 S.Ct. at 2655. The Court

summarized its entire analysis of the constitutionality of

the school policy at issue in Lee as follows:

These dominant facts mark and control the con-

fines of our decision: State officials direct the

performance of a formal religious exercise at

promotional and graduation ceremonies for sec-

ondary schools. Even for those students who

object to the religious exercise, their attendance

App. 15

and participation in the state-sponsored reli-

gious activity are in a fair and real sense obliga-

tory. ...

Id. Thus, Lee identifies unconstitutional coercion when (1)

the government directs (2) a formal religious exercise (3)

in such a way as to oblige the participation of objectors.

See also Mergens, 496 U.S. at 261, 110 S.Ct. at 2378 (Ken-

nedy J., concurring) (“The inquiry with respect to coer-

cion must be whether the government imposes pressure

upon a student to participate in a religious activity.”)

Before Lee, no one contended that the Resolution coerced

participation in prayer at Clear Creek’s graduation cere-

monies, and we failed to appreciate the need to address

this issue from the Court’s precedent that we discussed in

Jones I. Upon considering this case in light of Lee’s coer-

cion analysis, we find that the Resolution does not suc-

cumb to one, let alone all three, of the elements of

unconstitutional coercion, and thus survives the analysis

that felled graduation prayer in Lee.

1. Direction

Throughout Lee’s entire coercion analysis, the Court

repeatedly stresses the government's direct and complete

control over the graduation prayers there at issue as

determinative of the establishment question. E.g.,___ U.S.

at ___, 112 S.Ct. at 2655 (“[Glovernment involve-

ment .. . is pervasive, to the point of creating a state-

sponsored and state-directed religious exercise in a public

school [which] suffices to determine the [constitutional]

question. ...”); id. at__, 112 S.Ct. at 2656 (First Amend-

ment does not “permit the government to undertake [the

App. 16

task of defining common ground necessary for the spiri-

tual development of humankind] for itself”); id. at ___,

112 S.Ct. at 2657 (“The degree of school involvement here

made it clear that the graduation prayers bore the imprint

of the State... . ”); id. at __, 112 S.Ct. at 2658 (“[I]f

citizens are subjected to state-sponsored, religious, exer-

cises, the State disavows its own duty to guard [its peo-

ple’s freedom of conscience].”); id. (a graduating senior at

a Providence graduation ceremony would have “a rea-

sonable perception that she is being forced by the State to

pray”); id. at __, 112 S.Ct. at 2659 (“[T]he State... in

effect required participation in a religious exercise.”); id.

at__, 112 S.Ct. at 2660 (“[T]he state-imposed character of

an invocation and benediction by clergy selected by the

school combine to make the prayer in state-sanctioned

religious exercise. ...”); id. at__, 112 S.Ct. at 2661 (“the

prayer exercises in this case are especially improper

because the State has in every practical sense compelled

attendance and participation in an explicit religious exer-

| ee |

The Court deplored three instances of government

involvement in graduation prayer in Lee, none of which is

tolerated, let alone prescribed, by the Resolution. First,

the Court found that Lee “decided that an invocation and

benediction should be given; this is a choice attributable

to the State, and from a constitutional perspective it is as

if a state statute decreed that the prayers must occur.” Id.

at__, 112 S.Ct. at 2655. The Resolution requires that the

state not decide whether an invocation will occur; it

respects the graduating class’s choice on the matter. The

Resolution acknowledges that a school official may offer

“advise and counsel” to the senior class in deciding

App. 17

whether to include invocations at graduation, and offi-

cials could exploit this clause to impose their will on the

students. But, again,'* in evaluating the Resolution’s

facial constitutionality, we are only concerned with

whether the Resolution necessarily charges government

with the decision of whether to include invocations.

Unlike the policy at issue in Lee, the Resolution does not.

Second, the Court was critical of the fact that “[t]he

principal chose the religious participant, here a rabbi, and

that choice is also attributable to the State.” Id. In con-

trast, the Resolution explicitly precludes anyone but a

student volunteer from delivering Clear Creek’s invoca-

tions. Moreover, the Resolution says nothing of govern-

ment involvement in the selection of the person who

delivers any invocation. That the government can remain

detached from the selection consistent with the Resolu-

tion maintains the Resolution’s facial constitutionality.

The Court recognized that Lee completed his control

over the invocation at his school’s graduation ceremonies

when he “provided Rabbi Gutterman with a copy of the

‘Guidelines for Civic Occasions,’ and advised him that his

prayers should be nonsectarian.” Id. at ___, 112 S.Ct. at

2656. In three respects, Clear Creek exercises significantly

less control over the content of invocations at its schools.

Clear Creek does not solicit invocations; the Resolution

only forbids Clear Creek schools from accepting sectarian

or proselytizing invocations. Moreover, because a gradu-

ating senior drafts proposed invocations each year under

the Resolution, the same person will never repeatedly

12 See supra note 10 and accompanying text.

App. 18

propose an invocation. Compare id. (noting that Lee could

refine an official prayer by repeatedly inviting the same

clergy member to deliver invocations). Finally, the Reso-

lution imposes two one-word restrictions “nonsectarian

and nonproselytizing” which enhance solemnization and

minimize advancement of religion, instead of a pamphlet

full of invocation suggestions.

We conclude that Clear Creek does not direct prayer

presentations at its graduation ceremonies.

2. Religiosity

Lee directed Rabbi Gutterman to pray, and the Court

characterized this as a “formal religious observance.” Id.

at __, 112 S.Ct. at 2655. By contrast, the Resolution

tolerates nonsectarian, nonproselytizing prayer, but does

not require or favor it.

3. Participation

The Lee Court held that government-mandated

prayer at graduation places a constitutionally impermis-

sible amount of psychological pressure upon students to

participate in religious exercises. Id. at __, 112 S.Ct. at

2658-59. We think that the graduation prayers permitted

by the Resolution place less psychological pressure on

students than the prayers at issue in Lee because all

students, after having participated in the decision of whether

prayers will be given, are aware that any prayers represent

the will of their peers, who are less able to coerce partici-

pation than an authority figure from the state or clergy.

App. 19

We also consider the age of the graduating seniors

relevant to the determination of whether prayers under

the Resolution can coerce these young people into partici-

pating in a religious exercise. See Jones I, 930 F.2d at 421.

Lee explains that the state-initiated clergy prayers there at

issue have a coercive effect on public-school students

regardless of age, see__~;U.S. at ___, 112 S.Ct. at 2658-59

but it nowhere compromises the Court’s previous recog-

nition that graduating seniors “are less impressionable

than younger students.” Mergens, 496 U.S. at 235-37, 110

S.Ct. at 2364-65 (approving Congress’ extension of the

court’s reasoning in Widmar v. Vincent, 454 U.S. 263, 274 n.

14, 102 S.Ct. 269, 276-77 n. 14, 70 L.Ed.2d 440 (1981), that

age is inversely proportional to impressionability, from

university students to secondary school students); see also

id. 496 U.S. at 250, 110 S.Ct. at 2372 (endorsing Justice

Powell's dissent in Bender v. Williamsport Area School Dist.,

475 U.S. 534, 556, 106 S.Ct. 1326, 1339, 89 L.Ed.2d 501

(1986)).

Accordingly, we think that the coercive effect of any

prayer permitted by the Resolution is more analogous to

the innocuous “God save the United States and this Hon-

orable Court” stated by and to adults than the government

mandated message delivered to young people from reli-

gious authority that the Court considered in Lee. Cf. Lee,

___-; US. at __, 112 S.Ct. at 2659 (refusing to “address

whether [the choice between participation and protest] is

acceptable if the affected citizens are mature adults”).'3

13 Nor did the Court criticize the fact that, before Rabbi

Gutterman delivered the prayers ordered by Lee, the assembly

(Continued on following page)

App. 20

None of Lee’s three elements of coercive effect exist

here. Prayers allowed under the Resolution do not uncon-

stitutionally coerce objectors into participation.

III. FROM SEA TO SHINING SEA, GREAT GOD OUR

KING"

The practical result of our decision, viewed in light of

Lee, is that a majority of students can do what the State

acting on its own cannot do to incorporate prayer in

public high school graduation ceremonies. In Lee, the

Court forbade schools from exacting participation in a

religious exercise as the price for attending what many

consider to be one of life’s most important events. This

case requires us to consider why so many people attach

importance to graduation ceremonies. If they only seek

government’s recognition of student achievement,

diplomas suffice. If they only seek God’s recognition, a

(Continued from previous page)

stood for the Pledge of Allegiance, which of course recounts

our subjugation to a deity. See id. ___:* U.S. at __, 112 S.Ct. at

2653; id. at __, 112 S.Ct. at 2682 (Scalia J., dissenting).

14 America! America!

God shed His Grace on thee,

And crown they good with brotherhood

From sea to shining sea.

America the Beautiful

Long may our land be bright.

With freedom’s holy light;

Protect us by Thy might,

Great God, our King.

America

App. 21

privately-sponsored baccalaureate will do. But to experi-

ence the community's recognition of student achievement,

they must attend the public ceremony that other inter-

ested community members also hold so dear. By attend-

ing graduation to experience and participate in the

community’s display of support for the graduates, people

should not be surprised to find the event affected by

community standards. The constitution requires nothing

different.1°

We again affirm the district court’s judgment denying

injunctive and declaratory relief from the Resolution.

AFFIRMED.

15 Cf. Employment Div., Dept. of Human Resources v. Smith,

494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990).

App. 22

MERRIT E. JONES, on his behalf and as next friend of

PAMELA JONES, a child, ET AL., Plaintiffs-Appellants, v.

CLEAR CREEK INDEPENDENT SCHOOL DISTRICT,

Defendant-Appellee.

No. 89-2638

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

December 28, 1992, Decided

December 28, 1992, Filed

JUDGES: Before REAVLEY, GARWOOD and BARKS-

DALE, Circuit Judges.

OPINIONBY: PER CURIAM; THOMAS M. REAVLEY

OPINION: ON SUGGESTION FOR REHEARING EN

BANC

PER CURIAM:

Treating the suggestion for rehearing en banc as a

petition for panel rehearing, it is ordered that the petition

for panel rehearing is DENIED. No member of the panel

nor Judge in regular active service of this Court having

requested that the Court be polled on rehearing en banc

(Federal Rules of Appellate Procedure and Local Rule 35),

the suggestion for Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

Thomas M. Reavley

United States Circuit Judge

Judge KING and Judge DeMOSS did not participate in

the consideration of the suggestion for rehearing en banc.

App. 23

THE SUPREME COURT

OF THE UNITED STATES

Merritt E. JONES, et al., petitioners, v.

CLEAR CREEK INDEPENDENT

SCHOOL DISTRICT.

No. 91-310.

Case below, 930 F.2d 416.

June 29, 1992. On petition for writ of certiorari to the

United States Court of Appeals for the Fifth Circuit. The

petition for writ of certiorari is granted. The judgment is

vacated and the case is remanded to the United States

Court of Appeals for the Fifth Circuit for further consid-

eration in light of Lee v. Weisman, 505 U.S. __, 112 S.Ct.

2649, __—SaxL.Ed.2d ___— (19922).

App. 24

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. 25

I. 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 COot.eciaAtE

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

tion).

App. 26

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.

Il. 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. Trt RESOLUTION’S CONSTITUTIONALITY

1. Estabiishment Clause Applicability

The First Amendment’s proscription of laws

“respecting an establishment of religion” applies to state

App. 27

governments through the Fourteenth Amendment. Ever-

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

67 S.Ct. 504, 511 (1947). Because Clear 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 commencement 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 effort 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

aia aici ie

App. 28

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 “[w]hen a religious invocation is given via a

sound system controlled by school 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.I.), aff'd, 908 F.2d 1090 (1st Cir. 1990) (applying

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

App. 29

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. 30

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 Trustees 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 US. 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 allusions 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 held 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).

. . | 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. 31

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. 32

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 schodis. 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. 33

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. 34

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]jather 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

tc 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 US. 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 U.S. at 614, 91 S.Ct.

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

App. 35

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 US. 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. 36

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. All of the students will have

seer. 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. 37

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 overlook 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.

iii eaten ieee

App. 38

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 entanglement 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

7 i

App. 39

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. 40

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. 41

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 apply 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 (5th 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 (Sth 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.

I sateen

App. 42

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 to 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)

| rom

App. 43

That is a matter on which the Supreme Court may well

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. 44

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.

aera eaninnraetenieeiieel

App. 45

ENTERED FOR THE COURT:

/s/ Thomas M. Reavley

United States Circuit Judge

App. 46

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.

CLEAR CREEK

INDEPENDENT

SCHOOL DISTRICT

CIVIL ACTION NO.

H-87-1463

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. 47

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 than 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

‘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. 48

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. Clauson, 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. 49

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. Donnelly, 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. 50

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. /d.

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. 51

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. 52

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. 53

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, n6; 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.@., 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. 54

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. Aguillard, 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. 55

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. 56

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 School 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. 57

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

§ CIVIL ACTION NO.

VS. ;

H-87-1463

CLEAR CREEK

INDEPENDENT

SCHOOL DISTRICT

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

N DISTRICT COURT

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