Revised March 17, 1999
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-40150
_____________________
JANE DOE, Individually and as next of
friend for her minor children,
Jane and John Doe, Minor Children;
JANE DOE #2, Individually and as next
of friend for her minor child,
John Doe, Minor Child, and John Doe,
Individually,
Plaintiffs-Appellees-Cross Appellants,
versus
SANTA FE INDEPENDENT SCHOOL DISTRICT, ET AL.,
Defendants,
SANTA FE INDEPENDENT SCHOOL DISTRICT,
Defendant-Appellant-Cross Appellee.
_________________________________________________________________
Appeals from the United States District Court for the
Southern District of Texas
_________________________________________________________________
February 26, 1999
Before JOLLY, WIENER, and STEWART, Circuit Judges.
WIENER, JR., Circuit Judge:
In Jones v. Clear Creek Independent School District, 977 F.2d
963 (5th Cir. 1992) (Clear Creek II), we declared Clear Creek’s
policy of allowing a student-selected, student-given, nonsectarian,
nonproselytizing invocation and benediction at high school
graduations (“Clear Creek Prayer Policy”) not violative of the
Establishment Clause of the First Amendment to the United States
Constitution. The primary questions posed by this case are: (1)
whether the constitutionality of a Clear Creek Prayer Policy
depends on its “nonsectarian, nonproselytizing,” features, and (2)
whether the venue of a Clear Creek Prayer Policy may be extended to
high school football games without violating the applicable
provisions of the Constitution of the United States. For the
reasons that follow, we hold that (1) a public school prayer policy
that, unlike a Clear Creek Prayer Policy, permits sectarian,
proselytizing benedictions and invocations cannot pass
constitutional muster, and (2) extending a Clear Creek Prayer
Policy to cover messages delivered before a high school football
games violates the Constitution even if such a policy includes the
“nonsectarian, nonproselytizing” restrictions.
I
FACTS AND PROCEEDINGS
Santa Fe Independent School District (“SFISD”) is a political
subdivision of the State of Texas, and is governed by an elected,
seven-person Board of Trustees. As its name suggests, SFISD is
responsible for overseeing the public educational programs and
facilities of a small community in south Texas. In performing this
role, SFISD supervises over 4,000 students each of whom attends one
of five schools —— two primary schools, one intermediate school,
one junior high school, and one high school. The plaintiffs in
this action (the “Does”) are several children currently or formerly
2
enrolled in SFISD schools and their parents. In light of the
sensitive nature of the action, they have been allowed to proceed
anonymously.1
For some time prior to the onset of this litigation, the Does
believed that SFISD was pursuing policies that were in
contravention of the Establishment Clause. The evidence that the
Does were able to accumulate covered a wide variety of disturbing
incidents and practices, but for purposes of illustration we focus
on the following two items.2
First, in April 1993, while plaintiff Jane Doe II was
attending her seventh grade Texas History class, her teacher, David
Wilson, handed out fliers advertising a Baptist religious revival.
Jane Doe II asked if non-Baptists were invited to attend, prompting
Wilson to inquire about her religious affiliation. On hearing that
she was an adherent of the Church of Jesus Christ of Latter Day
Saints (Mormon), Wilson launched into a diatribe about the non-
1
A decision, we might add, that many SFISD officials
apparently neither agreed with nor particularly respected.
Attempts by SFISD administrators, teachers, and other employees
“overtly or covertly to ferret out the identities of the
Plaintiffs . . . by means of bogus petitions, questionnaires,
individual interrogation, or downright ‘snooping’” eventually
prompted the district court to threaten to visit upon them “THE
HARSHEST POSSIBLE CONTEMPT SANCTIONS” and/or “CRIMINAL LIABILITY”
(emphasis in original) if they did not cease their investigations.
2
Our recitation of the evidence, including the pseudonyms used
for specific anonymous plaintiffs, is taken principally from the
joint stipulations of the parties. References to “SFISD” include
the Board of Trustees, the superintendent, and other responsible
administrative officials as appropriate.
3
Christian, cult-like nature of Mormonism, and its general evils.
Wilson’s comments inspired further discussion among Jane Doe II’s
classmates, some of whom reportedly noted that “[h]e sure does make
it sound evil,” and “[g]ee, . . . it’s kind of like the KKK, isn’t
it?” Jane Doe II was understandably upset by this incident, and
two days later, her mother, Jane Doe I, complained to SFISD.
Because Wilson’s actions were concededly contrary to written SFISD
policies barring the distribution of religious literature in class
or the verbal abuse of any student, he was given a written
reprimand and directed to apologize to the Does and to his class.
Second, and of greatest significance to this case, for an
undisclosed period of time leading up to and including the 1992-93
and 1993-94 school years, SFISD allowed students to read overtly
Christian prayers from the stage at graduation ceremonies and over
the public address system at home football games.3 The prayers
3
For example:
1994 Graduation Invocation
Please bow your heads. Dear heavenly Father: Thank you
for allowing us to gather here safely. We thank you for
the wonderful year you have allowed us to spend together
as students of Santa Fe. We thank you for our teachers
who have devoted many hours to each of us. Thank you
Lord for our parents and may each one receive a special
blessing. We pray also for a blessing and guidance as
each student moves forward in the future. Lord, bless
this ceremony and give us all a safe journey home. In
Jesus’s name we pray.
1994 Graduation Benediction
Our most gracious heavenly Father: We thank you for
4
were delivered as “invocations” or “benedictions” for these events,
and typically were given by officers of the student council.4 Of
course, SFISD maintained complete control over the programs and
facilities during the reading of the prayers, including the ability
to mute the microphone or remove the speaker. Furthermore, the
bringing us to this, our graduation. We ask you to be
with us as we start a new beginning to our lives.
Father: We express our gratitude to all that have helped
us over the past three years. Especially do we thank our
parents, teachers, and friends who encouraged us,
counseled us, and always extended a helping hand when
needed. Please see us safely through this night and the
tomorrows of our lives. In Jesus’s name, Amen.
The record contains no examples of the football game prayers, but
we may assume for purposes of this opinion that they were similar
in content. As a bit of further background, it is interesting to
note that the closing paragraph of the salutatory address at the
1994 graduation was actually more proselytizing than the invocation
and benediction:
. . . There is only one thing which we as Christians can
truly rely [on]: the faithfulness and strength of a
loving God. It is now that each of us must stand on a
solid rock of Jesus Christ, stand up for those things on
which we believe. Even if it is alone that we must
stand. We, having done all, must continue to stand in
faith remembering that Christ would have suffered and
died for only one of us. So we begin the journey of
life, not a life of mediocrity and compromise, but the
possible life which Christ has promised, a life of
abundance and joy, being confident of this very thing,
that he who has begun a good work in you will complete it
until the day of Jesus Christ. Thank You.
4
In the case of the football games, the prayers were given by
the student council “chaplain,” a position created by the student-
written constitution and elected by students. It appears that at
graduation the student council president customarily gave the
invocation, and the secretary customarily gave the benediction.
5
text of the graduation invocations and benedictions was screened by
SFISD for content prior to the ceremony.
With regard to the football games, it is undisputed that no
written policy governing the invocations existed prior to the onset
of litigation in this case. With regard to graduation, SFISD did
draft a written policy the “June Policy”), but only in time for the
1994 ceremony. It read as follows:
The Board shall not permit clergymen to deliver
invocations or benedictions at promotional and graduation
ceremonies for secondary schools; nor shall school
officials direct the performance of a formal religious
exercise at such ceremonies. Lee et al. v. Weisman, 112
S.Ct. 2649 (1992) [See also EMI]
Dated June 17, 1993
After the 1994 graduation ceremony, but before the onset of the
instant litigation, SFISD amended its graduation policy (the
“October Policy”) to reflect more closely its interpretation of our
decision in Clear Creek II:
The Board shall not permit clergymen to deliver
invocations or benedictions at promotional and graduation
ceremonies for secondary schools; nor shall school
officials direct the performance of a formal religious
exercise at such ceremonies. Lee et al. v. Weisman, 112
S.Ct. 2649 (1992) [See also EMI (LEGAL)]
The Board may permit the graduating senior
class(es), with the advice and counsel of the senior
class sponsor, to elect to choose student volunteers to
deliver nonsectarian, nonproselytizing invocations and
benedictions for the purpose of solemnizing their
graduation ceremonies. Jones v. Clear Creek ISD, 977
F.2d 963 (5th Cir. 1992), cert. denied, 113 S.Ct. 2950
(1993).
Dated October 20, 1994
6
In April 1995, the Does filed suit against SFISD in the
Federal District Court for the Southern District of Texas.5 Citing
the instances described above and others, they alleged that SFISD
maintains policies and practices in violation of the Establishment
Clause. They demanded prospective injunctive and declaratory
relief in addition to money damages under 42 U.S.C. § 1983.
In the following month, acting in response to the Does’ motion
for a temporary restraining order regarding the imminent 1995
graduation ceremonies, the district court ruled that, consistent
with SFISD’s October Policy and our decision in Clear Creek II,
student-selected, student-given, nonsectarian, nonproselytizing
invocations and benedictions would be permitted, and that such
invocations and benedictions could take the form of a
“nondenominational prayer.” Although cautioning that SFISD should
play no role in selecting the students or scrutinizing and
approving the content of the invocations and benedictions, the
district court went on to note gratuitously that “generic prayers
to the ‘Almighty’, or to ‘God’, or to ‘Our Heavenly Father (or
Mother)’, or the like, will of course be permitted. Reference to
any particular deity, by name, such as Mohammed, Jesus, Buddha, or
the like, will likewise be permitted, as long as the general thrust
of the prayer is non-proselytizing, as required by [Clear Creek
5
The Does also sued several members of SFISD’s Board of
Trustees and administrators in their individual capacities, but all
of these defendants were dismissed in the early stages of the case.
7
II].”6 In anticipation of addressing the central issues of the
case, the trial court also admonished that SFISD would in due
course be directed to clarify a number of its Establishment Clause
policies, and, in particular, “to establish or to clarify existing
policies to deal with either banning all prayer, or firmly
establishing reasonable guidelines to allow nonsectarian and non-
proselytizing prayer at all relevant school functions.”
As an initial and, by its own admission, “emergency” response
to the court’s order, prior to the 1995 graduation, SFISD made a
few changes (the “May Policy”) to its pre-litigation October
Policy:
The Board has chosen to permit the graduating senior
class, with the advice and counsel of the senior class
principal or designee, to elect by secret ballot to
choose whether an invocation and benediction shall be a
part of the graduation exercise. If so chosen the class
shall elect by secret ballot, from a list of student
volunteers, students to deliver nonsectarian,
nonproselytizing invocations and benedictions for the
purpose of solemnizing their graduation ceremonies.
Jones v. Clear Creek ISD, 977 F.2d 963 (5th Cir. 1992)
cert. denied 113 S.Ct. 2950 (1993).
Dated May 23, 1995
By July, SFISD apparently had a chance to conduct a more
thorough review of its fundamental position on graduation
invocations and benedictions. At this point, the May Policy was
superseded by a new and, for purposes of this appeal, final version
(the “July Policy”):
6
Emphasis added.
8
The Board has chosen to permit the graduating senior
class, with the advice and counsel of the senior class
principal or designee, to elect by secret ballot to
choose whether an invocation and benediction shall be a
part of the graduation exercise. If so chosen, the class
shall elect by secret ballot, from a list of student
volunteers, students to deliver invocations and
benedictions for the purpose of solemnizing their
graduation ceremonies.
If the District is enjoined by court order from the
enforcement of this policy, then and only then will the
following policy automatically become the applicable
policy of the school district.
The Board has chosen to permit the graduating senior
class, with the advice and counsel of the senior class
principal or designee, to elect by secret ballot to
choose whether an invocation and benediction shall be a
part of the graduation exercise. If so chosen, the class
shall elect by secret ballot, from a list of student
volunteers, students to deliver nonsectarian,
nonproselytizing invocations and benedictions for the
purpose of solemnizing their graduation ceremonies.
Dated July 24, 1995
As SFISD readily admits, the fact that the initial paragraph of
this final graduation prayer policy intentionally removes the words
“nonsectarian, nonproselytizing” constitutes an additional and very
substantial deviation from both Clear Creek II and SFISD’s October
and May Policies. Indeed, it is this deviation that ultimately
forms the core of the issues before us today.
Less than two weeks later, the district court made good on its
earlier suggestion and formally ordered SFISD “to finalize a
unified 1st Amendment religion/expression policy addressing all
issues with options in content clearly set out” by October 13. The
court also directed both parties to prepare and submit stipulations
of fact by the same date.
9
In October 1995, SFISD for the first time adopted a written
policy to address football game invocations. Its provisions were
essentially identical to those of the July Policy on graduations.
The football game prayer policy (“Football Policy”) provides for a
student-selected, student-given “brief invocation and/or message to
be delivered during the pre-game ceremonies of home varsity
football games to solemnize the event, to promote good
sportsmanship and student safety, and to establish the appropriate
environment for the competition.” As with the July Policy on
graduation, the Football Policy was to provide no further guidance
as to content (i.e., no “nonsectarian, nonproselytizing”
limitation) unless SFISD should be “enjoined by a court order” to
do so. “Then and only then” was an alternate policy containing a
“nonsectarian, nonproselytizing” content limitation to take effect
automatically. On the preordained date, SFISD submitted the July
Policy and the Football Policy for the court’s consideration.
Pursuant to a supplemental court order, the Does and SFISD
eventually submitted 131 joint stipulations of fact. In February
1996, SFISD filed a motion for summary judgment on the basis that
no evidence supported the conclusion that the school district
currently or formerly sanctioned a policy or practice in violation
of the Establishment Clause. The Does responded to this motion,
but did not file a counter motion for summary judgment.
Early in June 1996, the district court issued a broad
preliminary ruling addressing many of the issues in the case.
10
Beginning with SFISD’s liability for past practices, the court
denied the school district’s pending motion for summary judgment
and instead granted summary judgment, sua sponte, in favor of the
Does. Analyzing the question under the three parallel
Establishment Clause tests applied by this court in Clear Creek II,
977 F.2d at 966-72, and Ingebretsen v. Jackson Public School
District, 88 F.3d 274, 278-79 (5th Cir.), cert. denied sub nom.
Moore v. Ingebretsen, __ U.S. __, 117 S.Ct. 388 (1996), the
district court found that many of the incidents identified by the
Does constituted impermissible coercion, endorsement, or purposeful
advancement of religion by the State, and that SFISD could be
fairly charged with having had de facto policies favoring the
incidents because they “occurred amidst the School District’s
repeated tolerance of similar activities and oftentimes with [its]
awareness and explicit approval.” In reaching this conclusion, the
court noted that it relied on such of the Does’ factual averments
as had been acquiesced in by SFISD in addition to those identified
in the joint stipulations, but that the court would afford SFISD a
limited opportunity to object to the liability finding at the
subsequent trial on damages, which the court tentatively scheduled
for mid-July 1996.
In addressing the question of prospective injunctive relief
from current policies, the district court decided to grant SFISD’s
motion for summary judgment on that point. It ruled that, whatever
may have happened in the past, SFISD had abandoned any potentially
11
problematic policies other than those concerning invocations and
benedictions at graduations and football games. As to these
policies, the court noted that they were essentially identical to
the policies upheld by this Court in Clear Creek II, “except for
the crucial distinction that the School District’s [primary]
policies do not require that any prayers delivered be nonsectarian
and non-proselytizing.” Because it read Clear Creek II as
mandating this additional limitation, the court held that the
initial paragraph of SFISD’s July Policy and Football Policy
constitutionally deficient. As each policy also contained an
alternative provision that was fully consistent with Clear Creek
II, and was specified to clutch in automatically if the court were
to find the basic policy constitutionally lacking, however, the
court ultimately concluded that injunctive relief would not be
appropriate; the court could simply “order” SFISD to implement the
fall-back provisions of the July Policy and the Football Policy.
The court therefore denied the Does’ request for injunctive relief
of any kind.
In December 1996, following a two-day trial on damages, the
district court entered its final judgment. Citing Collins v. City
of Harker Heights, 503 U.S. 115, 120-21 (1992), and Bennett v. City
of Slidell, 728 F.2d 762, 768 (5th Cir. 1984), the court held that
imputed liability is not cognizable under § 1983, and that the Does
had to prove more than the occurrence of isolated incidents to
demonstrate that SFISD maintained an unconstitutional policy or
12
custom for which it could be held liable in money damages under
that statute. Reversing an unclear portion of its earlier ruling,
the court found that each of the incidents for which the Does
claimed actual, compensable harm, particularly the David Wilson
“Mormon” matter, were nothing more than isolated occurrences, and
were not attributable to a policy or custom of SFISD. The court
further ruled, in the alternative, that, even if the claimed
incidents could be attributed to SFISD policies, the Does had
failed to prove any actual, compensable harm. The court concluded
by entering a take-nothing judgment against the Does. Because it
also concluded that the Does were unsuccessful as to every major
issue in the litigation, the court ruled that they were not
prevailing parties and denied their motion for attorney’s fees
under 42 U.S.C. § 1988. The court stated in the alternative that,
even if the Does were technically prevailing parties, it would
nonetheless deny them attorney’s fees as an exercise of discretion,
given that their success had been so limited and that they had
protracted the litigation unnecessarily by insisting on going to
trial on their damage claims. From this final judgment, both SFISD
and the Does timely appealed.
In its appeal, SFISD primarily challenges the district court’s
determination that a Clear Creek Prayer Policy must require that
prayers or statements be “nonsectarian, nonproselytizing” to be
constitutional. Should we be inclined to reverse the district
court as to the denial of damages and attorney’s fees, however,
13
then SFISD also challenges the finding of liability for past
Establishment Clause violations, claiming both procedural and
substantive errors on the part of the district court.
In their appeal, the Does argue that the district court erred
in (1) defining “nonsectarian, nonproselytizing” to permit
reference to particular deities; (2) allowing SFISD to extend a
Clear Creek Prayer Policy to football games; (3) denying injunctive
relief; and (4) refusing to award attorney’s fees. One plaintiff,
referred to above as Jane Doe II, also appeals the denial of
damages for the David Wilson “Mormon” incident.
II
ANALYSIS
We begin with SFISD’s primary argument that a Clear Creek
Prayer Policy need not include the “nonsectarian, nonproselytizing”
requirements to be constitutional. SFISD rests this argument on two
complementary contentions: (A) the nonsectarian, nonproselytizing
restrictions of Clear Creek II were irrelevant to the court’s
Establishment Clause holding; and (B) SFISD, in its July Policy,
has created a limited public forum and, therefore, not only need
not, but lawfully cannot, restrict the student speakers to
nonsectarian, nonproselytizing invocations and benedictions, as
such restrictions would constitute impermissible viewpoint
discrimination under the Free Speech Clause.7
7
Although for the sake of simplicity and clarity we address
SFISD’s arguments only as they relate to graduation ceremonies, our
analysis applies with equal, if not greater, force to the Football
14
A. The Establishment Clause
In beginning our analysis, it is well to note that our role is
necessarily limited to elucidating our prior precedent in the light
of its context and such subsequent clarifications as the Supreme
Court has announced. See Hogue v. Johnson, 131 F.3d 466, 491 (5th
Cir. 1997) (“One panel of this Court may not overrule another
[absent an intervening decision to the contrary by the Supreme
Court or the en banc court . . .].”), cert. denied, __ U.S. __, 118
S. Ct. 1297 (1998). The initial question may therefore be
conveniently summarized by reviewing the holdings of Clear Creek II
and its Supreme Court predecessor, Lee. By way of background,
however, we first set forth the Supreme Court’s three Establishment
Clause tests.
1. Three Supreme Court Tests
As we have often observed, Establishment Clause jurisprudence
is less than pellucid. We examine practices challenged on
Establishment Clause grounds under three complementary (and
occasionally overlapping) tests established by the Supreme Court.
Clear Creek II, 977 F.2d at 963; Ingebretsen, 88 F.3d at 278.
a. The Lemon Test
The first test, and the one of the longest pedigree, is the
disjunctive three-part Lemon test, under which a government
practice is unconstitutional if (1) it lacks a secular purpose; (2)
Policy as well.
15
its primary effect either advances or inhibits religion; or (3) it
excessively entangles government with religion. Lemon v. Kurtzman,
403 U.S. 602, 612-13 (1971).
b. The Coercion Test
The second test, which the Court announced in Lee v. Weisman,
505 U.S. 577 (1992) (invalidating school district’s policy
permitting school principals to invite clergy to give invocations
and benedictions in form of “nonsectarian” prayer at graduation
ceremonies), is commonly referred to as the Coercion Test. Under
this test, school-sponsored religious activity is analysed to
determine the extent, if any, to which it has a coercive effect on
students. “[U]nconstitutional coercion [occurs] when: (1) the
government directs (2) a formal religious exercise (3) in such a
way as to oblige the participation of objectors.” Clear Creek II,
977 F.2d at 970 (citation omitted).
c. The Endorsement Test
The third test, known as the Endorsement Test, seeks to
determine whether the government endorses religion by means of the
challenged action. County of Allegheny v. ACLU, 492 U.S. 573
(1989). The government unconstitutionally endorses religion when
“it conveys a message that religion is ‘favored,’ ‘preferred,’ or
‘promoted’ over other beliefs.” Id. at 593.
2. Lee and Clear Creek II
In Lee, the Supreme Court declared a school district’s policy
of allowing a high school principal to invite a religious official
16
to give a nonsectarian, nonproselytizing invocation and benediction
at graduation to be an unconstitutional “coercion” of participation
in a state-directed religious exercise. Lee, 505 U.S. at 586.
Four Justices appeared to find the policy to be an unconstitutional
“endorsement” of religion as well. Id. at 604-05 (Blackmun, J.,
joined by Stevens & O’Connor, JJ., concurring) & 629-30 & n.8
(Souter, J., joined by Stevens & O’Connor, JJ., concurring); cf.
Allegheny, 492 U.S. at 594 (discussing endorsements).
Then, in Clear Creek II, applying the three of the
Establishment Clause tests set forth above, we held that Clear
Creek’s policy of allowing a student-selected, student-given,
nonsectarian, nonproselytizing invocation and benediction at a high
school graduation ceremony —— SFISD’s fall-back provision in the
July Policy —— did not violate the dictates of the Establishment
Clause. Clear Creek II, 977 F.2d at 968-72.
SFISD asserts that a close reading of Clear Creek II reveals
that the school district’s graduation policy escaped the result in
Lee not because of its “nonsectarian, nonproselytizing” content
limitation, but rather solely because it permitted invocations and
benedictions as long as they are student-selected and student-
given. Inasmuch as our opinion in Clear Creek II specifically
relied on the school district’s requirement that the student-led
graduation prayers be nonsectarian and nonproselytizing in holding
that its policy did not offend the Establishment Clause, we find
SFISD’s reading of Clear Creek II to be specious at best.
17
First, we concluded in Clear Creek II that the twin
restrictions served the dual functions of enhancing the graduation
ceremony’s solemnization, thus permitting the policy to clear
Lemon’s secular purpose hurdle, while simultaneously reducing the
possibility of endorsing religion. Clear Creek II, 977 F.2d at 971
(“[T]he Resolution imposes two one-word restrictions