Revised April 9, 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
_________________________________________________________________
April 7, 1999
Before JOLLY*, WIENER, and STEWART, Circuit Judges.
PER CURIAM:
The Petition for Rehearing is denied, and the court having
been polled at the request of one of the members of the court and
a majority of the judges who are in regular active service not
*
Judge Jolly’s opinion dissenting from the court’s
refusal to grant rehearing en banc is filed herewith.
having voted in favor, (FED. R. APP. P. and 5TH CIR. R. 35) the
Suggestion for Rehearing En Banc is also DENIED.
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E. GRADY JOLLY, Circuit Judge, with whom HIGGINBOTHAM, JONES,
SMITH, BARKSDALE, EMILIO M. GARZA, and DeMOSS, Circuit Judges,
join, dissenting:
I respectfully dissent from the court’s denial of the petition
for en banc hearing.
Every judge on this court must surely know that the policy
announced by the majority of the panel--permitting students’
ecumenical religious prayers or speech, but excluding all other
religious prayers or speech by students--is unconstitutional. Yet
a majority of this court has voted against an en banc proceeding to
correct constitutional error. Although I have great respect for
each of these judges who is unwilling to step up to bat, I must say
to them that we fail our constitutional and professional duty when
we shy away from attempting to straighten out our muddled
jurisprudence. The judges who voted against en banc are certainly
not to be faulted for disagreeing with the viewpoint expressed in
the dissent to the panel opinion--it may be a correct view of the
case or it may not. But for the reasons that are pointed out in
the panel dissent, the majority is surely, surely wrong in
fundamental ways, and yet the majority of the judges on our court
wish to remain silent on an issue of great importance--and great
confusion--in the circuit. With due respect, I regret their
choice.
The majority opinion in Santa Fe appears to be a conscious
decision, not merely to refuse to follow Supreme Court precedent,
but to abdicate its duty to provide reasons for not following that
precedent. The majority finds that the First Amendment allows
ecumenical religious speech, but then somehow concludes--under the
very same conditions--that the First Amendment prohibits religious
speech expressing any other viewpoint. See Santa Fe, 1999 WL
104884, at *19 (“the words ‘nonsectarian, nonproselytizing’ are
constitutionally necessary components”). The majority acknowledges
that this ruling endorses viewpoint discrimination.
Yet the fact that the Supreme Court has repeatedly stated that
the government cannot engage in viewpoint discrimination when it
creates any kind of a forum--even a nonpublic forum--does not give
the majority pause. See, e.g., Cornelius v. NAACP Legal Defense
and Educ. Fund, Inc., 473 U.S. 788, 806 (1985) (“Control over
access to a nonpublic forum can be based on subject matter and
speaker identity so long as the distinctions drawn . . . are
viewpoint neutral.”); Perry Education Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 46 (1983). The Supreme Court has
specifically recognized--after our opinion in Clear Creek II--that
this Free Speech Clause prohibition operates in the realm of
religious speech. Lamb’s Chapel v. Center Moriches Union Free Sch.
Dist., 508 U.S. 384, 394 (1993). The panel majority’s response to
these admonitions? Silence. Now, because we decline to take this
case en banc, our full court responds in silence as well. This
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silence is inexplicable in the light of the Supreme Court’s recent
statement that “[t]he first danger to liberty lies in granting the
State the power to examine publications to determine whether or not
they are based on some ultimate idea and, if so, for the State to
classify them.” Rosenberger v. Rector and Visitors of the Univ. of
Virginia, 515 U.S. 819, 835 (1995) (concluding that the state
unconstitutionally excluded a religious viewpoint from general
funding of student publications). The danger lurks just as
ominously when the State exercises this power over students’
speech, and this court greatly enhances the danger when it--an
institution insulated from democratic restraints--refuses to
explain why it allocates this power to the State in the face of
contrary Supreme Court precedent.
The Santa Fe majority also casts our Circuit’s Establishment
Clause jurisprudence into throes of uncertainty. The majority
opinions in Santa Fe and Jones v. Clear Creek Independent Sch.
Dist., 977 F.2d 963 (5th Cir. 1992), are so clearly in conflict
with each other that school districts within our jurisdiction will
have no guidance on how to interpret our confused precedent.
The Santa Fe opinion conflicts with Clear Creek II in multiple
ways--each important, and each without any explanation by the Santa
Fe majority. First, and perhaps most puzzling, is the Santa Fe
majority’s holding that the Establishment Clause will not allow
students to mention specific deities in their graduation messages,
Santa Fe, 1999 WL 104884, at *16, when in Clear Creek II, our court
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upheld a policy that allowed students to “employ the name of any
deity.” Clear Creek II, 977 F.2d at 967; see also id. at 969
(“invocations permitted by the Resolution ‘may’ include
supplication to a deity”). The Santa Fe majority makes no effort
to explain away its stark departure from our precedent. School
districts are left to wonder whether they may allow students to
state the name of Buddha, Jesus, Jehovah, or Mohammed in their
graduation messages. Because Clear Creek II stands as prior
precedent, school districts will be free to follow it, instead of
the upstart rule announced in Santa Fe.
In yet another unexplained departure from Clear Creek II, the
Santa Fe majority interpreted a policy allowing “invocations and/or
benedictions” so as to allow only religious prayers. Santa Fe,
1999 WL 104884, at *14 (students “will be chosen to deliver very
circumscribed statements that under any definition are prayers”).
The Clear Creek II panel also interpreted a policy allowing for
“invocations and/or benedictions.” That panel, however, held that
the policy “permits invocations free of all religious content.”
Clear Creek II, 977 F.2d at 969. Yet again, there is no
articulated authority to legitimize a holding that contradicts
precedent.
Still another element of the jurisprudential quagmire
following Santa Fe is the majority’s decision to ignore the
analytical approach that our precedent dictates when addressing a
facial challenge to a school policy. In Clear Creek II, the panel
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recognized that because it was faced with a suit challenging the
facial constitutionality of a school policy, the court must find
that the policy “is constitutional unless there is no way to
implement it on a nondiscriminatory basis.” Clear Creek II, 977
F.2d at 969. Without even so much as discussing the fact that the
case presented a facial challenge to Santa Fe’s policy, the Santa
Fe majority assumed, for example, that the policy would restrict
the number of student speakers to either one or two, and also
assumed that the school would strictly limit the topics that the
elected students could address. Santa Fe, 1999 WL 104884, at *14.
The majority assumed these “facts” even though the policy--and the
record--is silent as to these hypothetical restrictions.
Santa Fe is not our Circuit’s only case to hide from the
analytical rule required by Clear Creek II. The panel in
Ingebretsen v. Jackson Public School Dist., 88 F.3d 274, 279 n.2
(5th Cir. 1996), also ignored the rule without mentioning Clear
Creek II. In its refusal to differentiate between a facial and an
“as-applied” Establishment Clause challenge, the Ingebretsen panel
cited two Supreme Court decisions, handed down in the late
Eighties, in a footnote. Id., 88 F.3d at 279 n.2. Given our
decision in Clear Creek II, however, the Ingebretsen panel’s
opinion on this issue was a day late and a Supreme Court citation
short of relying on legitimate authority. See Barber v. Johnson,
145 F.3d 234, 237 (5th Cir. 1997) (stating the rule that in this
circuit one panel may not overrule another prior panel absent
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intervening legislation, a decision by our en banc court, or a
decision of the Supreme Court).
Upon reading Santa Fe, Ingebretsen, and Clear Creek II, it
seems, with regard to the Establishment Clause, that panels of our
court pay little regard to previous jurisprudence. One might think
that a specific holding of a prior opinion is no more than a puff
of wind. Santa Fe disregards Clear Creek II today. The next panel
can disregard Santa Fe tomorrow. When judges can pick and choose
without the constraints imposed by precedent, the public is left
stranded, vulnerable to liability, helplessly dependent on the
panel it draws. We could fulfill our constitutional and
professional duty to the public, vote this case en banc, and be of
a single voice. But when our court refuses to rehear en banc cases
such as Santa Fe, this unrestrained decision-making goes
uncorrected. This failure to act, in turn, allows individual
members of our court to continue to engage in an activity that has
all the appearance of simply advancing personal philosophy.
For these reasons, I respectfully DISSENT from the denial of
rehearing en banc.
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