Opposition Brief — Jones v. Clear Creek Independent School District

Suprema Court, us.

{ k i 2 1 1)

No. 92-1564 __MAY_. 17 1993

| OF i iE Uf 1 Hi

In The —— canaineanseeen

Supreme Court of the United States

- UCLOERK

>

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.

On Petition for Writ of Certiorari to the United States Court of

Appeals for the Fifth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

DAVID M. FELDMAN M. KARINNE McCULLOUGH

MYRA C. SCHEXNAYDER Counsel of Record

FELDMAN & ROSENBERG, L.L.P. GIESSEL, STONE, BARKER

12 Greenway Plaza, Suite 1202 & LYMAN

Houston, Texas 77046 2700 Two Houston Center

(713) 960-8300 909 Fannin Street

Houston, Texas 77010-1063

(713) 759-1990

Attorneys for Respondent

3686

Ln ellate (800) 3 APPEAL * (800) 5 APPEAL « (800) BRIEF 21

ervices, inc

QUESTION PRESENTED FOR REVIEW

Whether the Establishment Clause prohibits a school district

from enacting a policy which permits student volunteers, at the

election of the student class (and not school officials), to deliver

nonsectarian, nonproselytizing benedictions at high school

graduation exercises?

ul

LIST OF PARTIES

Parties to the Proceedings Below:

(1)

(2)

(3)

(4)

(5)

Merritt E. Jones, Plaintiff-Appellant

Pamela Jones, Plaintiff-Appellant

John Doe, Plaintiff-Appellant

Jane Doe, Plaintiff-Appellant

Clear Creek Independent School District, Defendant-

Appellee

Amici Curiae in the Proceedings Below:

(1)

(2)

(3)

(4)

(5)

(6)

(7)

(8)

(9)

Aldine Independent School District

Alief Independent School District

Alvin Independent School District

Anahuac Independent School District

Brazosport Independent School District

Columbus Independent School District

Deer Park Independent School District

East Chambers Independent School District

Humble Independent School District

erential

(10)

(11)

(12)

(13)

(14)

il

Katy Independent School District

Klein Independent School District

Rice Consolidated Independent School District

Spring Independent School District

Waller Independent School District

iv

TABLE OF CONTENTS

Question Presented for Review .................008.

a erreen ?. eo aus oa ea eek ce hea ee

Statement of Jurisdiction and Motionto Dismiss .......

ND oc one ne ccckae cabucuelussecens

ge dre

I. The Fifth Circuit’s decision is not in conflict with

this Court’s decision in Lee v. Weisman since the

cases are factually and, therefore, legally

ES PT TT Serr eee Terr

A. This Court’s Holding in Lee v. Weisman Is

Limited to the Facts of that Case. ..........

B. Jones Is Factually Distinguishable from Lee

rere Terr rr rer TT Pre

ear ee er oe

Page

ll

iV

10

Vy

Contents

Page

TABLE OF CITATIONS

| Cases Cited:

Jones v. Clear Creek Independent School District, 930 F.2d

ets catering og | OE OE ate ee aie 2

Jones v. Clear Creek Independent School District, 977 F.2d

PP SID ho kk os eas cua one e ecekn dev kuen. passim

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

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

APPENDIX

Appendix A — Appellants’ Petition for Rehearing En

Banc Dated December7,1992 ................... la

Appendix B — Per Curiam Opinion Denying Rehearing . 19a

Appendix C — Clear Creek Independent School District

en ee EET Cee PP ET eT ere eae ats 21a

No. 92-1564

In The

Supreme Court of the United States

ern

October Term, 1992

MERRITTE. 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,

LAY

CLEAR CREEK INDEPENDENT SCHOOL DISTRICT :

Respondent.

On Petition for Writ of Certiorari to the United States Court of

Appeals for the Fifth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

Respondent Clear Creek Independent School District

respectfully requests that the Petition for Writ of Certiorari filed by

Petitioners Merritt Jones, Pamela Jones, John Doe, and Jane Doe

(“Petitioners”) be dismissed on the grounds that it was untimely

filed. Alternatively, Respondent requests that the Petition be

denied since the Fifth Circuit’s opinion below is not in conflict

2

with this Court’s opinion in Lee v. Weisman, 112 S. Ct. 2649

(1992).

STATEMENT OF JURISDICTION AND MOTION

TO DISMISS

The Fifth Circuit Court of Appeals rendered its initial opinion

in Jones v. Clear Creek Independent School District, 930 F.2d 416

(Sth Cir. 1991), on April 18, 1991, affirming the district court’s

order granting summary judgment in favor of Respondent Clear

Creek Independent School District. This Court subsequently

vacated the Fifth Circuit’s opinion and remanded the case for

consideration in light of Lee v. Weisman, 112S. Ct. 2649 (1992).

On November 24, 1992, the Court of Appeals for the Fifth

Circuit once again affirmed the district court’s judgment in favor of

Respondent. Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963

(Sth Cir. 1992) (“Jones IT’). Thereafter, Petitioners filed a Petition

for Rehearing En Banc, requesting reconsideration of the panel

opinion by the full court. See Appendix A. The Court of Appeals

overruled the Petition for Rehearing En Banc on December 28,

1992. See Appendix B.

On March 25, 1993 — approximately 120 days after the Fifth

Circuit issued its opinion in Jones I] — Petitioners filed their

Petition for Writ of Certiorari seeking review of the Fifth Circuit's

opinion. Petitioners have taken the position that their Petition for

Rehearing En Banc constitutes a motion for panel rehearing for the

purpose of tolling the ninety days within which a party may file a

petition for writ of certiorari.' Supreme Court Rule 13.4, however,

1. Petitioners have taken this position regardless of the plain language

contained in their Petition for Rehearing En Banc wherein counsel for Petitioner

states that “consideration by the full court is necessary to secure and maintain

uniformity of decisions in this court.” See Appendix A at p. 4a.

3

expressly provides that “[a] suggestion . . . for rehearing en banc

... 1S not a petition for rehearing.” Thus, the Jones’ Petition for

Writ of Certiorari is untimely because it was filed more than ninety

days after the November 24, 1992, entry of the judgment that

Petitioners seek to have reviewed. Respondent respectfully moves,

therefore, for an order dismissing the Petition for Writ of Certiorari

because it is untimely. In the alternative, Respondent opposes a

grant of certiorari for the reasons set forth below.

STATEMENT OF THE CASE

Petitioner Merritt Jones is the father of Petitioner Pamela

Jones. Pamela is a 1987 graduate of Clear Lake High School.

Petitioner John Doe is the father of Petitioner Jane Doe. Jane is a

1988 graduate of Clear Lake High School. Clear Creek

Independent School District is a duly constituted body politic with

powers and jurisdiction pursuant to Texas law.

On May 11, 1987, Petitioners brought suit to enjoin

Respondent from allowing prayers to be delivered at its high

school graduation ceremonies. In particular, Petitioners

complained of the invocation and benediction presented during the

1986 Clear Lake High School graduation ceremonies.

Invocation

Lord,

Thank you for allowing us to obtain this

milestone in our lives. Help us always to

remember your great kindness and love

2. The parties dispute the exact wording of the invocation and

benediction. Respondent's version is based on a videotape of the ceremony

which was submitted as part of its summary judgment proof. The differences in

the two versions, however, are generally minor

4

whenever something great is accomplished in

our lives. Some say high school years are a very

painful, growing time. Undoubtedly, the many

defeats, the disappointments, and mishaps that

have occurred over the last four years would

suggest this and even back it up. Yet when we

take the time in the future to uncover our high

school years in the vaults of our memories, the

victories against all odds, the successes when

defeat was imminent, and the friendships that

will never, ever end will all shine through with

a brilliant radiance of happiness that will only

become more meaningful and beautiful as the

years pass us by. Thankfully, nothing short of

your awesome will and power will ever eclipse

these great visions and memories. It is these

unequivocal times that we are here to

commemorate this afternoon. [Sentence

unintelligible] Just bless and keep each of us

over the years, until someday we all meet

again. Amen.

Benediction

Let us pray.

Dear Lord,

As we emerge from a secluded high school

please inspire us to greater heights and greater

glories [unintelligible]. Instill in our spirit a

sense of decency and pride. Inspire us to face

all our challenges with confidence and turn

obstacles into stepping stones to success. Let

us look towards the future. Amen.

Ve

5

Petitioners have not complained of any invocations or

benedictions since those delivered at the 1986 graduation

ceremonies. In fact, Petitioners have admitted that both the

invocation and benediction delivered at the 1987 ceremony were

within constitutional parameters.

On December 15, 1987, Respondent adopted a resolution

(“the Resolution”), formalizing its previously unwritten policy

and practice, permitting the inclusion of invocations and

benedictions at high school graduation exercises. The Resolution

specifically provides that student volunteers may present

nonsectarian, nonproselytizing invocations and/or benedictions at

the discretion of the senior class.

On January 19, 1988, Respondent filed a Motion for Summary

Judgment based on case law and the Respondent’s Resolution. The

district court concluded that Petitioner’s suit no longer presented a

justiciable controversy and, further, that Respondent was entitled

to summary judgment as a matter of law.

REASON FOR DENYING THE WRIT

I,

THE FIFTH CIRCUIT’S DECISION IS NOT IN

CONFLICT WITH THIS COURT’S DECISION IN LEE V.

WEISMAN SINCE THE CASES ARE FACTUALLY AND,

THEREFORE, LEGALLY DISTINGUISHABLE.

Petitioners erroneously assert that “[t]his case raises the same

questions the Court answered in Lee v. Weisman” Petition at p.9

(citation omitted). There, according to Petitioners, this Court

concluded that “a religious exercise may not be conducted at a

graduation ceremony.” Petition at p. 9.

6

In fact, the Lee opinion does not announce a per se ban on the

inclusion of prayer in graduation exercises. Rather, this Court’s

opinion repeatedly emphasizes that the Establishment Clause

prohibits clergy-delivered prayer that is initiated and directed by

the state. Since the Resolution at issue before this Cc’:;* does not

provide for state-initiated or state-directed prayer of any sort, the

Fifth Circuit’s analysis was not constrained by the Lee holding and,

thus, the decision in Jones I] does not conflict with Lee.

A. This Court’s Holding in Lee v. Weisman Is Limited to the

Facts of that Case.

Contrary to what Petitioners suggest, Lee v. Weisman, 112 S.

Ct. 2649 (1992), does not announce an inflexible prohibition on all

religious expression in school-related activities. In the Lee

opinion, this Court emphasized that Establishment Clause

jurisprudence is an area of “line drawing, of determining at what

point a dissenter’s rights of religious freedom are infringed by the

State.” Jd. at 2661. Indeed, this Court expressly stated that its

holding should be limited to the particular facts set forth in Lee:

We do not hold that every state action

implicating religion is invalid if one or a few

citizens find it offensive. People may take

offense at all manner of religious as well as

unreligious messages, but offense alone does

not in every case show a violation. We know,

too, that sometimes to endure social isolation

or even anger may be the price of conscience or

conformity. But, by any reading of our cases,

the conformity required of the student in this

case was too high an exaction to withstand the

test of the Establishment Clause. The prayer

exercises in this case are especially improper

because the State has in every practical sense

compelled attendance and participation in an

=

7

explicit religious exercise at an event of

singular importance to every student, one the

objecting student had no real alternative to

avoid.

Id. at 2661 (emphasis added).

Invocations and benedictions delivered at school-related

activities and ceremonies are not — as Petitioners contend —

inherently unconstitutional. Rather, the Lee opinion clarifies that it

was the significant degree of “state involvement” in the

preparation and delivery of the benediction and invocation that

rendered that particular prayer unconstitutional.

Aschool official, the principal, 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

Statute decreed that the prayer must occur. The

principal chose the religious participant, here a

rabbi, and that choice is also attributable to the

State.

The State’s role did not end with the decision to

include a prayer and with the choice of

clergyman. [The principal] provided [the

rabbi] with a copy of. . . [a pamphlet prepared

by the National Conference of Christians and

Jews entitled) “Guidelines for Civic

Occasions,” and advised him that his prayers

should be nonsectarian. Through these means

the principal directed and controlled the

content of the prayer.

Id. at 2655-56. From those facts, this Court concluded that the

“degree of school involvement. . . made it clear that the graduation

prayers bore the imprint of the State and thus put school-age

children who objected in an untenable position.” /d. at 2657.

B. Jones Is Factually Distinguishable from Lee v. Weisman.

Petitioners erroneously maintain that Respondent’s

Resolution “is not materially different from Providence’s

prohibited policy.” Petition at p. 10. Notwithstanding Petitioners’

characterization of the facts and Resolution at issue here, Lee is

distinguishable in at least four very important respects.

First, unlike the prayers at issue in Lee, the benedictions and

invocations delivered at Clear Creek Independent School District

(“CCISD”) high school graduation ceremonies are student

generated, rather than the product of significant state involvement.

The CCISD Resolution expressly provides that the use of an

invocation and/or benediction at high school graduation exercises

“shall rest within the discretion of the graduating senior class... .”

See Appendix C. Second, the CCISD Resolution provides that the

invocation and benediction, if used, shall be written and delivered

by a student volunteer, as opposed to a member of the clergy. /d.

Student volunteers, unlike members of the clergy, are not clothed

with the indicia of religion.

Third, the students who participate in CCISD graduation

exercises are high school seniors, normally eighteen years of age

and adults in the eyes of the law, whereas the students who attended

the promotion exercises in Lee were adolescents, primarily

fourteen years old.’ Fourth, CCISD high school graduation

3. While this Court addressed both middle school and high school

graduations, the evidence presented in Lee primarily pertained to middle school

“promotional exercises.” In fact, this Court took special note of the distinction

between “mature adults” and “primary and secondary school children. . . [who]

are often susceptible to pressure from their peers towards conformity.” Lee, 112

S. Ct. at 2658-59.

9

ceremonies are traditionally conducted off campus. The promotion

exercises in Lee, on the other hand, were conducted on school

premises.

Petitioners argue in their Petition (as they did in the court

below) that the above-referenced factors do not set this case apart

from Lee. If anything, Petitioners argue, the CCISD Resolution is

“more likely to be perceived as constituting a governmental

endorsement of religion” than the policy and practice at issue in

Lee. Petition at p. 17. Petitioners’ position, however, completely

ignores the thrust of this Court’s opinion. The gravamen of the Lee

opinion is the prohibition of state involvement in religious

exercises. Nowhere in the opinion does the Court even begin to

address prayer which is prepared and delivered outside the aegis of

the state. In fact, a careful review shows that this Court took great

pains to narrowly tailor the question presented in Lee, i.e.,

“whether including clerical members who offer prayers as part of

the official school graduation ceremony is consistent with the

Religion Clauses of the First Amendment?” Lee, 112 S. Ct. at 2652.

Likewise, the Court took great pains to narrowly tailor the reach of

its holding: “These dominant facts mark and control the confines of

our decision: State officials direct the performance of a formal

religious exercise at promotional and graduation ceremonies for

secondary schools.” /d. at 2655 (emphasis added).

In light of the factual distinctions addressed above, Jones I]

and Lee are not in conflict and, thus, the Petition for Writ of

Certiorari should be denied.‘

4. Although they have not couched the issue as an independent ground for

granting review, Petitioners have, nevertheless, taken the Fifth Circuit to task for

applying the so-called “endorsement” and “coercion” methods of analysis, in

addition to the traditional three-part test set forth in Lemon v. Kurtzman, 403 U.S.

602 (1971). See, e.g., Petition at p. 12. The Fifth Circuit's reference to alternate

methods of analyzing Petitioners’ Establishment Clause claims does not,

however, justify Supreme Court review. The only issue here is whether the Fifth

Circuit's decision is in conflict with Lee.

10

CONCLUSION

For the reasons set forth above, Respondent respectfully

requests that the Petition for Writ of Certiorari should be dismissed

for want of jurisdiction or, alternatively, denied.

Respectfully submitted,

M. KARINNE McCULLOUGH

Counsel of Record

GIESSEL, STONE, BARKER

& LYMAN

2700 Two Houston Center

909 Fannin Street

Houston, Texas 77010-1063

(713) 759-1990

DAVID M. FELDMAN

MYRAC. SCHEXNAYDER

FELDMAN & ROSENBERG, L.L.P.

12 Greenway Plaza, Suite 1202

Houston, Texas 77046

(713) 960-8300

Attorneys for Respondent

la

APPENDIX A — APPELLANTS’ PETITION FOR

REHEARING EN BANC DATED DECEMBER 7, 1992

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel hereby certifies that the following

list of persons has an interest in the outcome of this case:

A. Plaintiffs below and appellants here are:

Merritt E. Jones

Pamela Jones

John Doe

Jane Doe

B. Defendant below and appellee here is:

Clear Creek ISD'

nd Amici Curiae in support of appellee (upon remand from

the Supreme Court) are:

Aldine ISD

Alief ISD

Alvin ISD

Anahuac ISD

Brazosport ISD

Columbus ISD

Deer Park ISD

East Chambers County Consolidated ISD

Humble ISD

1 “ISD” is used throughout this pleading as an abbreviation for “Independent

School District.” All of the school districts listed in this certificate of interested

persons are Texas school districts located in the Southern District of Texas.

$$$

2a

Appendix A

Katy ISD

Klein ISD

Rice Consolidated ISD

Spring ISD

Waller ISD

D. The following attorneys represent the parties and amici.

1. Appellants’ attorneys:

Bruce V. Griffiths, 1019 Congress, Suite 1550,

Houston, Texas 77002-1702;

Mitchell A. Seider, 3700 First City Tower, Houston,

Texas 77002.

2. Appellee’s attorneys:

M. Karinne McCullough, GIESSEL, STONE,

BARKER & LYMAN, 909 Fannin, Suite 2700,

Houston, Texas.

3. Attorneys for Amici Curiae:

David M. Feldman, VINSON & ELKINS, 2837 First

City Tower, Houston, Texas 77002-6760;

Myra C. Schexnayder, VINSON & ELKINS, 2837

First City Tower, Houston, Texas 77002-6760;

Kelly Frels, BRACEWELL & PATTERSON, 2900

South Tower Pennzoil Place, Houston, Texas 77002;

3a

Appendix A

John David Thompson, BRACEWELL &

PATTERSON, 2900 South Tower

Pennzoil Place, Houston, Texas 77002;

Janet L. Horton, BRACEWELL &

PATTERSON, 2900 South Tower

Pennzoil Place, Houston, Texas 77002.

/S/

Bruce V. Griffiths

4a

Appendix A

STATEMENT OF COUNSEL

I express a belief, based on a reasoned and studied

professional judgment, that the panel decision is contrary to the

following decision of the Supreme Court of the United States, and

that consideration by the full court is necessary to secure and

maintain uniformity of decisions of this Court:

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

I express a belief, based on a reasoned and studied

professional judgment that this appeal involves one or more

questions of exceptional importance:

1. Does the fact that a prayer included in the

program at a public high school graduation

ceremony is delivered by a graduating senior

rather than a clergyman take the practice

outside the holding of Lee v. Weisman, 112

S.Ct. 2649 (1992), that such prayers violate the

Establishment Clause of the First Amendment?

2. May the Court of Appeals affirm a summary

judgment that was granted three years before

the Supeme Court announced the applicable

legal standard without allowing the party

against whom summary judgment was granted

the opportunity to produce evidence relevant to

the new standard?

/S/

Bruce V. Griffiths

Attomey of Record for Appellants

Sa

Appendix A

TABLE OF CONTENTS

Statement of Interested Persons

Statement of Counsel

Table of Contents

Table of Authorities

Statement of the Issues

Statement of the Case

i. Course of Proceedings

li. Statement of Facts

Argument and Authorities

I. THE RULE OF LEE V. WEISMAN

PROHIBITS THE INCLUSION OF PRAYERS

IN PUBLIC HIGH SCHOOL GRADUATION

CEREMONIES EVEN IF THE PRAYERS ARE

DELIVERED BY GRADUATING SENIORS

RATHER THAN CLERGY

Il. THE SUPREME COURT’S DECISION IN

LEE V. WEISMAN REQUIRES, AT LEAST,

THAT THIS CASE BE REMANDED TO THE

DISTRICT COURT SO THAT THE COURT

nw

6a

Appendix A

Page

MAY APPLY THE FACTS OF THIS CASE TO

THE NEWLY ANNOUNCED - LEGAL

STANDARD 1]

Conclusion

Certificate of Service 3

TABLE OF AUTHORITIES

[OMITTED]

«4

Ja

STATEMENT OF THE ISSUES

‘ THE RULE OF LEE V. WEISMAN PROHIBITS THE

INCLUSION OF PRAYERS IN PUBLIC HIGH

SCHOOL GRADUATION CEREMONIES EVEN IF

THE PRAYERS ARE DELIVERED BY

GRADUATING SENIORS RATHER’ THAN

CLERGYMEN.

Il. THE SUPREME COURT’S DECISION IN LEE V.

WEISMAN REQUIRES, AT LEAST, THAT THIS

CASE BE REMANDED TO THE DISTRICT COURT

SO THAT THE COURT MAY APPLY THE FACTS OF

THIS CASE TO THE NEWLY ANNOUNCED LEGAL

STANDARD.

STATEMENT OF THE CASE

i. Statement of the Course of proceedings and disposition of

the case.

This case arises out a lawsuit filed in the spring of 1987 by

Merritt Jones and his daughter, Pamela Jones, then a senior at

Clear Lake High School, a public high school near Houston,

Texas. The Joneses? objected to and sought to enjoin the Clear

Creek Independent School District’s practice of having members

of the graduating class deliver prayers at the high school’s

graduation ceremony. Approximately six weeks before the case

was to be tried, the defendant school district adopted a formal

resolution governing invocations at its graduation exercises, and, a

few weeks later, moved for summary judgment on the basis that its

2. The Joneses were, during the pendency of the action, joined by another

father and daughter who proceeded under the pseudonym of “John Doe” and Jane

Doe.” All four plaintiffs are hereafter referred to as “Jones.”

8a

Appendix A

policy, as set out in the school district resolution, was

constitutional. The trial court canceled fhe trial setting and, 16

months later, granted the summary judgment for the school

district.

Jones appealed and this Court affirmed, Jones v. Clear Creek

1.S.D., 930 F.2d 416 (Sth Cir. 1991). Jones’ suggestion for

rehearing was denied and the plaintiffs applied to the United States

Supreme Court for writ of certiorari. On June 29, 1992, the

Supreme Court entered a brief order granting Jones’ petition,

vacating the judgment of this Court, and remanding for

consideration in light of Lee v. Weisman, 112 S.Ct. 2649 (1992),

which had been decided five daysearlier.

On November 24, 1992, a panel of this Court issued an

opinion, distinguishing the facts of this case from those of Lee and

again upholding the judgment of the district court. In response to

that decision, Jones files this petition for rehearing en banc.

ii. Statement of the Facts

For many years, it has been the practice at Clear Lake High

School’ for the high school graduation ceremony to include public

prayers (“invocations” and “benedictions”) delivered by members

of the senior class. In 1986, Merritt Jones learned of this practice

while attending the graduation exercise for his son. The following

year, the year of his daughter Pamela’s graduation, Jones contacted

school officials and requested that the 1987 ceremonies not include

prayers on the grounds that such religious activities by a public

school district had the effect of endorsing religion and thus

3. Clear Lake High School is one of two high schools operated by appellee

Clear Creek ISD.

9a

. Appendix A

violated the Establishment Clause of the First Amendment. When

school officials refused to modify their policy, Merritt and‘Pamela

Jones brought this action, seeking a temporary injunction barring

the district from including prayers in the 1987 graduation

ceremony. Jones withdrew his request for a preliminary injunction

when the district agreed to include in the 1987 ceremonies an

“invocation” which included none of the traditional attributes of a

prayer, i.e., it did not address a deity, it did not invoke the name of

God, Jesus, or any other religious figure, and it did not close with

“amen” or any similar phrase. According to his affidavit in

opposition to Clear Creek’s motion for summary judgment, Jones

agreed to the inclusion of this invocation in the 1987 ceremony not

because the invocation was “non-denominational,” but because

the invocation was not, by his lights, a prayer at all. (R.181).

Pre-trial discovery showed that the program of Clear Lake

High School had traditionally been established by an ad hoc

committee of senior class officers and academic honorees

(valedictorians), subject to the approval of the senior class

principal (a school district administrator). (R.21-25) It also

showed that the graduation ceremonies were clearly official school

events sponsored and paid for by the school district. District

administrators annually issued detailed directives to students and

parents, setting out rules of dress and deportment for these

ceremonies. (R.207-210).. The 1987 directive stated, “The

commencement is a scheduled school activity, and school

regulations shall be enforced.” (R.207). There is absolutely no

evidence in the record that the Clear Lake High School graduation

ceremony has been or has been perceived as being a public forum

in which all comers can have access to the program to speak their

minds. Rather, it is clearly a school event, sponsored by the school

district and subject to its control, at which a small group of

officially recognized representatives of the senior class are entitled

to speak.

10a

Appendix A

On December 15, 1987, a few weeks before this case was set to

be tried, the Clear Creek ISD school board adopted a resolution

which, for the first time, enacted a written policy concerning

graduation prayers. Its operative clauses read as follows:

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 conscience, the invocation and

benediction shall be nonsectarian and

nonproselytizing in nature.

(R.234).

Three weeks before the scheduled trial date, Clear Creek filed

a motion for summary judgment with a copy of the resolution

attached as the only exhibit. Jones opposed the summary judgment

and sought a continuance so that he could do additional discovery

on the issue of how this policy would actually be applied. (R.212-

225). The question of the application of the policy was particularly

problematic because the “whereas clauses” of the resolution

suggested that the written policy was a codification of previous

practice, while other evidence showed that in prior years the

district had made no effort to enforce a requirement that the

graduation prayers be nonsectarian. (R.180-183, 188-204, 21-25).

The district court denied the opportunity to do additional discovery

and granted the district’s motion for summary judgment.

lla

Appendix A

ARGUMENTS AND AUTHORITIES

THE RULE OF LEE V. WEISMAN PROHIBITS THE

INCLUSION OF PRAYERS IN PUBLIC HIGH

SCHOOL GRADUATION CEREMONIES EVEN IF

THE PRAYERS ARE DELIVERED BY

GRADUATING SENIORS RATHER’ THAN

CLERGYMEN.

The district court, in its memorandum opinion granting the

defendant’s motion for summary judgment, acknowledged that the

Supreme Court “has traditionally been highly protective of

primary and secondary school students in barring patently

religious activities . . .”. (R.127) It distinguished the Clear Lake

High School graduation exercises from these “protective” cases on

seven grounds (R.128):

(1) Theceremonies were not held on the school campus;

(2) The prayers were very brief;

(3) They were only held once a year;

(4) The audience is older than the usual student body,

consisting primarily of graduating seniors and their

parents;

(5) The school district policy requires that prayers be

nonsectarian;

(6) The prayer is delivered by a student volunteer; and

(7) Attendance at the high school graduation ceremony is

not mandatory.

12a

Appendix A

In Lee v. Weisman, 112 S.Ct. 2649 (1992), the Supreme Court,

in holding a graduation prayer to be a violation of the

Establishment Clause, expressly considered and rejected as

important distinctions all but two of the factors listed in the district

court’s opinion. Specifically, the facts at bar differ from those in

Lee in that the graduation in Lee took place on the school campus

and that the prayers in question were delivered by a student rather

than aclergyman.

On remand, the panel opinion of the Court of Appeals, while

purporting to engage in a complex analysis of the rule of Lee, in

fact seriously misreads that opinion and holds, essentially, that this

case is different from Lee because students rather than a rabbi lead

the prayers.‘

Lee v. Weisman is only the latest Supreme Court decision

holding that religious observances in public primary and

secondary schools are particularly likely to run afoul of the

Establishment Clause because the fact that school authorities

exercise such extensive control over school activities means that

religious activities in the public schools are highly likely to be

perceived as being endorsed by school officials. In a recent, post-

Lee, opinion, the Court of Appeals for the Sixth Circuit recognized

the same point:

Schools are not traditional public fora, and

4. The panel opinion also argues that student attendance was somehow more

“coerced” in Lee than in Jones. (Slip Op. p.1022) This argument is difficult to

understand because this Court's opinion in Lee holds that the fact that a student who

objects to prayer at his graduation is put to the choice of listening to the prayer or not

attending his high school graudation makes attendance mandatory, at least for

purposes of determining the constitutionality of graduation prayers. Pamela Jones

and Jane Doe, the graduating seniors in this case were put to exactly the same choice.

There is no distinction between the two set of facts.

13a

Appendix A

governments have much broader power over

student speech than other types of private

speech. “A school need not tolerate student

speech that is inconsistent with its ‘basic

educational mission,” even though the

government could not censor similar speech

outside the school.” Hazelwood Sch. Dist. v.

Kuhlmeier, 484 U.S. 260, 266, 108 S. Ct. 562,

567, 98 L. Ed. 2d 592 (1988) (citation omitted).

Moreover, “the Court has been particularly

vigilant in monitoring compliance with the

Establishment Clause in elementary and

secondary schools. ... Students in such

institutions are impressionable and _ their

attendance is involuntary.” Edwards y.

Aguillard, 482 U.S. 578, 583-84, 107 S. Ct.

2573, 2577, 96 L. Ed. 2d 510 (1987). “The

Supreme Court has emphasized that the

avoidance of religious divisiveness is nowhere

more important than in public education, for

‘the government’s activities in this area can

have a magnified impact on impressionable

young minds... .’ ” Mozert v. Hawkins County

Bd. of Educ., 827 F.2d 1058, 1072 (6th Cir.

1987) (Kennedy, J., concurring) (quoting

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

373, 383, 105 S. Ct. 3216, 3222, 87 L. Ed. 2d

267 (1985)), cert. denied, 484 U.S. 1066, 108

S. Ct. 1029 (1988). See also Lee v. Weisman,

120 L. Ed. 2d 467, 112 S. Ct. 2649, 2658 (1992)

(“There are heightened concerns. with

protecting freedom of conscience from subtle

coercive pressure in the elementary and

secondary public schools.”’)

l4a

Appendix A

Americans United for Separation of Church and State v. City of

Grand Rapids, 1992 U.S.App. LEXIS 29934, p. 25 (6th Cir.

November 16, 1992).

Because of the extent to which school officials may and, in

fact, do control student speech in the course of school activities,

Hazelwood School District, supra, a student leading a public

prayer in the course of a high school graduation ceremony is more

likely to be perceived as representing the governmental

endorsement of religion than an outside clergyman who is not

subject to control by school officials. In the primary and secondary

school context, religious activities as part of an official school

activity will almost always be endorsements 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 ones merely permitted by them.

Indeed, the only Supreme Court case approving religious

activities in the context of the public schools, Westside Community

Schools v. Mergens, 110 S.Ct. 2356 (1990), rests its analysis

largely on the fact that the religious clubs whose recognition it

compelled were wholly student initiated and run, met outside

normal school hours, were not led or sponsored by school officials,

and were organized in schools which already recognized other

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

ceremony, like that in Lee and most public school graduation

exercises, are clearly full-blown school functions that cannot be

mistaken for a private student club, or an open forum. Lundberg v.

West Monona Community School Dist., 731 F-Supp. 331 (W.D.la.

1989).

Neither would it be particularly significant, if it were true’,

5. As the panel notes, at page 1021 of the slip opinion, the record does not

(Cont'd)

1Sa

Appendix A

that the senior class voted to have prayers in the graduation

program. Any prayer included as part of the program of the official,

governmentally sponsored and controlled graduation ceremony

will be perceived by a reasonable observer as a governmental

endorsement of religion and will therefore be unconstitutional.

That conclusion is not changed by the fact that the school board

has, at least formally, delegated its authority to decide what will be

in the program to the senior class “with the advise and counsel of

the senior class principal.” It would require an abandonment of

district control over the ceremony much greater than is indicated

in this record before a reasonable observer could perceive these

prayers as private and unofficial.

The fact that the Lee holding would not be different if the

prayer had been led by a student instead of clergyman is

additionally demonstrated by the Supreme Court’s treatment of the

Sixth Circuit’s opinion in Stein v. Plainwell Community Schools,

822 F.2d 1406 (6th Cir. 1987), acase upholding graduation prayers

delivered by a student volunteer. Both the majority and the dissent

in the First Circuit’s opinion in Weisman v. Lee, 908 F.2d 1090 (1st

Cir. 1990) perceived Stein and Weisman as inconsistent, the

Supreme Court apparently agreed and granted certiorari to resolve

the conflict. Lee, supra, at 2655. Had the student prayer leader

been enough to save graduation prayer, it seems likely that the

Court would have explicitly distinguished Stein on that ground.

At the time of the original decision of this case, many

(Cont'd)

indicate how the “graduating senior class exercises its “discretion” to decide whether

or not to have prayers in the graduation ceremony. In light of the fact that the school

board resolution purports to be a codification of prior practice, it seems likely that the

class does not vote, but that the class officers and valedictorians make the decision

informally in consultation with the senior class principal.

16a

Appendix A

observers anticipated that the Supreme Court would use Lee v.

Weisman to repudiate the past thirty years of Establishment Clause

jurisprudence. In fact, the Court used Lee to reaffirm its precedents

and to hold that graduation prayers were unconstitutional. This

Court is compelled by stare decisis to follow the holding of the

Supreme Court and reverse the judgment of the district court.

Il. THE SUPREME COURT’S DECISION IN LEE V.

WEISMAN REQUIRES, AT LEAST, THAT THIS

CASE BE REMANDED TO THE DISTRICT COURT

SO THAT THE COURT MAY APPLY THE FACTS OF

THIS CASE TO THE NEWLY ANNOUNCED LEGAL

STANDARD.

In his original brief on appeal, Jones argued that the district

court had erred in granting defendant’s motion for summary

judgment because he had been denied an opportunity to develop

important factual issues when the court granted summary

judgment based on the school district’s eleventh hour adoption of a

formal policy. Jones has always contended that there were material

factual disputes which were relevant to the decision of this case

and which precluded summary judgment. This argument is even

stronger in the current posture of the case.

The panel opinion distinguishes this case from Lee on its facts,

yet, not surprising, the facts in a five-year old summary judgment

record that was created years before the applicable legal standard

for graduation prayers was announced by the Supreme Court are

somewhat sparse. The panel decided, in essence, that the

involvement of the “senior class” in the decision to have prayers at

graduation distinguishes this case from Lee, yet it admits that it

does not know from the record how the senior class makes this

decision. Assuming arguendo that some level of student decision-

17a

Appendix A

making could distinguish this case from Lee, it might make a

difference to the outcome of the case if during the five years since

the adoption of the Resolution the decision to pray or not to pray

(and who would conduct the prayer) has been made by school

administrators in consultation with a small group of seniors (as had

been done previously), as opposed to the decision being made in a

democratic fashion. That fact is not in the record because at the

time appellee moved for summary judgment the Resolution had

never been carried out. Five Clear Lake High School graduations

have taken place since the district filed its motion for summary

judgment, and evidence as to how the Resolution works in practice

is highly relevant to a just and legal resolution of this matter. The

panel opinion based its decision on imagined facts when the actual

facts are available on remand.

The panel opinion reveals another inappropriate reason for

refusing to remand the case for a trial. In footnote 10 of the opinion,

the Court states “We understand our present task to be limited to

determination of the Resolution’s facial constitutionality ...”.

This understanding is mistaken. This lawsuit was not filed as a

challenge to the facial constitutionality of the Resolution; it was

and is an attack on the district’s practice of permitting prayers

during its graduation ceremony. Months after plaintiffs sued them,

Clear Creek adopted the Resolution as a defense to the lawsuit and

asserted its facial constitutionality as its sole grounds for summary

judgment. Plaintiffs have always sought and continue to seek the

opportunity to try their case and to prove that defendant’s practice

is violative of the Establishment Clause, whatever its formal policy

may say.

18a

Appendix A

CONCLUSION

Jones respectfully prays that the Court of Appeals, for the

reasons set forth in this petition grant a rehearing en banc, and upon

said hearing, reverse the judgment below and remand for trial.

Respectfully submitted,

/S/

Bruce V. Griffiths

1109 Congress, Suite 1150

Houston, Texas 77002-1702

Telephone: (713) 223-5817

Facsimile: (713) 223-5821

Mitchell A. Seider

3700 First City Tower

Houston, Texas 77002

(713) 658-8881

ATTORNEYS FOR

PLAINTIFFS-APPELLANTS

CERTIFICATE OF SERVICE

I, Bruce V. Griffiths, hereby certify that I have served true

copies of the foregoing petition for rehearing en banc on counsel of

record by mailing same this seventh day of December, 1992.

/S/

Bruce V. Griffiths

19a

APPENDIX B — PER CURIAM OPINION DENYING

REHEARING

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, achild, ETAL.,

Plaintiffs-Appellants,

versus

CLEAR CREEK INDEPENDENT SCHOOL DISTRICT,

Defendant-Appellee.

Appeal from the United States District Court for the

Southern District of Texas

ON SUGGESTION FOR REHEARING EN BANC

(OPINION NOVEMBER 24, 19925CIR.,19__, F.2d )

(December 28, 1992)

Before REAVLEY, GARWOOD and BARKSDALE, Circuit

Judges.

PER CURIAM:

(X) 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

20a

Appendix B

rehearing en banc (Federal Rules of Appellate Procedure and Local

Rule 35), the suggestion for Rehearing En Banc is DENIED.

() Treating the suggestion for rehearing en banc as a petition for

panel rehearing, the petition for panel rehearing is DENIED. The

judges in regular active service of this Court having been polled at

the request of one of said judges and a majority of said judges not

having voted in favor of it (Federal Rules of Appellate Procedure

and Local Rule 35), the suggestion for Rehearing En Banc is

DENIED.

ENTERED FOR THE COURT:

/S/

United States Circuit Judge

Judge KING and Judge DeMOSS did not participate in the

consideration of the suggestion for rehearing en banc.

2la

APPENDIX C — CLEAR CREEK INDEPENDENT

SCHOOL DISTRICT RESOLUTION

RESOLUTION

STATE OF TEXAS §

§

COUNTY OF GALVESTON §

WHEREAS, invocations and benedictions have been a

ceremonial 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

ceremonies and the practice of this District in connection

therewith; and

WHEREAS, to the extent there may be any

misunderstanding, 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 exercises shall rest within the discretion of the

graduating senior class, with the advice and counsel of the senior

class principal;

22a

Appendix C

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 nonproselytizing in nature.

PASSED, APPROVED, AND ADOPTED this 15th day of

December, 1987.

/s/

President, Board of Trustees

ATTEST:

/s/

Secretary, Board of Trustees