PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 10-1819
_____________
JANE DOE; JOHN DOE, individually and as parents and
next friend of, JORDAN DOE and JAMIE DOE
v.
INDIAN RIVER SCHOOL DISTRICT; INDIAN RIVER
SCHOOL BOARD; HARVEY L. WALLS; MARK A.
ISAACS; JOHN M. EVANS; RICHARD H. COHEE;
GREGORY A. HASTINGS; NINA LOU BUNTING;
CHARLES M. BIRELEY; DONALD G. HATTIER;
REGINALD L. HELMS; M. ELAINE MCCABE, and their
successors in office, in their official capacities as members of
the Indian River School Board,; LOIS M. HOBBS, and her
successors in office, in their official capacities as District
Superintendent,; EARL J. SAVAGE, and his successors in
office, in their official capacities as Assistant District
Superintendent
JANE DOE, JOHN DOE and JAMIE DOE,
Appellants
On Appeal from the United States District Court for the
District of Delaware
District Court No. 1-05-cv-00120
District Judge: The Honorable Joseph J. Farnan, Jr.
Argued January 27, 2011
Before: FUENTES, CHAGARES, and ROTH, Circuit Judges
(Filed: August 5, 2011 )
Thomas J. Allingham II, Esq. (Argued)
Robert S. Saunders, Esq.
Timothy S. Kearns, Esq.
Skadden, Arps, Slate, Meagher & Flom
One Rodney Square
P.O. Box 636
Wilmington, Delaware 19801
Brian G. Lenhard, Esq.
Lightning Bolt Softward, Inc.
8049 West Chester Pike
Upper Darby, PA 19082
Richard S. Horvath, Jr., Esq.
Four Embarcadero Center
Suite 3800
San Francisco, California
Counsel for Appellants
2
Jason P. Gosselin, Esq. (Argued)
Katherine L. Villanueva, Esq.
Michael Metz-Topodas, Esq.
Drinker Biddle & Reath LLP
One Logan Square, Suite 2000
Philadelphia, Pennsylvania 19103
Counsel for Appellees
Ayesha N. Khan, Esq.
Michael A. Blank, Esq.
Americans United For Separation of Church and State
1301 K Street, N.W.
Suite 850, East Tower
Washington, District of Columbia
Amicus for Appellants
Daniel Mach, Esq.
American Civil Liberties Union
915 15th Street, NW
Washington, District of Columbia
Amicus for Appellants
Eric J. Rothschild, Esq.
Kristen H. Jones, Esq.
Shelly A. Solomon, Esq.
Michael J. Hartman, Esq.
Pepper Hamilton LLP
18th & Arch Streets
3000 Two Logan Square
Philadelphia, Pennsylvania
Amicus for Appellants
3
Steven M. Freeman, Esq.
Steven C. Sheinberg, Esq.
Deborah Bensinger, Esq.
Anti-Defamation League
605 Third Avenue
New York, New York
Amicus for Appellants
Roy S. Moore, Esq.
Benjamin D. DuPre, Esq.
John A. Eidsmoe, Esq.
Foundation for Moral Law
One Dexter Avenue
Montgomery, Alabama
Amicus for Appellees
Steven W. Fitschen, Esq.
Wallbuilders, Inc.
The National Legal Foundation
2224 Virginia Beach Boulevard
Suite 204
Virginia Beach, Virginia
Amicus for Appellees
Holly L. Carmichael, Esq.
5096 Selinda Way
Los Gatos, California
Amicus for Appellees
_______________
OPINION OF THE COURT
_______________
4
FUENTES, Circuit Judge.
The Indian River School Board (the “Board”) has a
long-standing policy of praying at its regularly-scheduled
meetings, which are routinely attended by students from the
local school district. Appellants argue that the Board‟s policy
is unconstitutional under the Establishment Clause of the First
Amendment. The Board claims that a school board is like a
legislative body and that its practice of opening board
sessions with a prayer is akin to the practice that was upheld
in Marsh v. Chambers, 463 U.S. 783 (1983). In Marsh, the
Supreme Court held that Nebraska‟s practice of opening
legislative sessions with a prayer was not a violation of the
First Amendment‟s Establishment Clause. The issue in this
case is whether a school board may claim the exception
established for legislative bodies in Marsh, or whether the
traditional Establishment Clause principles governing prayer
in public schools apply. The District Court agreed with the
Board‟s conclusion that its actions were constitutional under
Marsh. For the reasons that follow, we will reverse.
I.
A. Procedural History
The complaint in this case was originally brought by
two sets of plaintiffs who lived and sent their children to
school in the Indian River School District (the “District”),
located in southern Delaware. The first set of plaintiffs,
Mona and Marco Dobrich, brought suit individually and on
behalf of their son, a twelve-year old. Dobrich v. Walls, 380
F. Supp. 2d 366, 370 (D. Del. 2005). The Dobriches were
5
residents of the District. Their son had completed grades one
through five in the district school. The second set of
plaintiffs were Jane and John Doe, who also brought suit
individually and as parents of Jordan and Jamie Doe. Id. At
the time the Complaint was filed, Jamie Doe was a student at
a District elementary school. Jordan Doe, who had
previously attended middle school in the District but
transferred to another school, planned on returning to a
District high school. Id. at 371, 373.
Plaintiffs brought suit pursuant to 42 U.S.C. § 1983
against multiple defendants, including the Indian River
School Board and the Indian River School District.1 The
Dobriches and the Does alleged violations of the First and
Fourteenth Amendments of the Constitution stemming from
various Board and District actions, including the Board‟s
practice of opening its meetings with a prayer. Plaintiffs
noted that students regularly attended these meetings and
argued that the Board‟s prayer policy was therefore
unconstitutional under the Establishment Clause. In addition,
the Complaint challenged other allegedly unconstitutional
practices:
Plaintiffs allege that school sponsored prayer
has pervaded the lives of teachers and students
in the District schools. Plaintiffs allege that
1
Plaintiffs also named as defendants the board members
individually and the District Superintendent and Assistant
Superintendent in their individual and official capacities.
However, the suits against the parties in their individual
capacities were later dismissed.
6
prayers have been recited at graduation
ceremonies, athletic events, potluck dinners, ice
cream socials, awards ceremonies, and other
events. Plaintiffs also allege that District
employees have led three different Bible Clubs,
one for sixth grade students, one for seventh
grade students and one for eighth grade
students, and that students involved in these
clubs have received “special privileges” like
donuts and being able to head the lines to lunch.
Plaintiffs further allege that at least one
elementary school in the District distributed
Bibles during the 2003 school year, and that
religion has become part of the District‟s
curriculum in that several teachers have referred
to religion during their classes.
Id. at 371.
Plaintiffs sought various forms of relief, including
compensatory and nominal damages, a declaratory judgment
stating “that the customs, practices, and policies of the
District with regard to prayer at School Board meetings and
school functions are unconstitutional, both facially and as
applied” and injunctive relief “banning Defendants from
promoting, conducting, or permitting religious exercises or
prayer at school functions, including but not limited to
graduation ceremonies, athletic activities, holiday festivals,
awards presentations and School Board meetings” and
“requiring the District to distribute its school prayer policies
publicly and to establish procedures for reviewing violations
of the policy.” Doe v. Indian River Sch. Dist., 685 F. Supp.
2d 524, 526 (D. Del. 2010).
7
In January 2008, the parties reached a partial
settlement.2 With the exception of those relating to the
Board‟s practice of beginning every School Board meeting
with a prayer, the parties settled all of their claims. The
settlement was approved. In March of 2008, the Dobriches
moved out of the District and voluntarily dismissed the
remainder of their claims, leaving only Jane and John Doe,
individually and as the parents of Jordan and Jamie Doe, as
plaintiffs in the case. In April 2008, the Does and defendants
submitted cross-motions for summary judgment on the issue
of whether the Prayer Policy was constitutional. The District
Court granted summary judgment in favor of defendants. It is
this order that we now review.
B. The Prayer Policy
2
At the motion to dismiss stage, the District Court dismissed
the claims against the defendants in their individual capacities
and held that some of the plaintiffs lacked standing to pursue
some of the claims. The court held that the Dobrich children
lacked standing to pursue claims for prospective damages and
declaratory and injunctive relief, Dobrich, 380 F. Supp. 2d at
373, but had standing to pursue claims based on past
constitutional violations, id. at 374. However, Marco
Dobrich had standing to bring an action for damages and
injunctive and declaratory relief as it pertained to the Board‟s
Prayer Policy. Id. at 374. As for the Doe plaintiffs, they had
“standing to seek injunctive and declaratory relief with
respect to the alleged religious practices of the School District
and School Board” for which they were personally present.
Id. at 373-74.
8
The heart of this case is, obviously, the prayer policy
and practice of the Indian River School Board. The Indian
River School District was created in 1969. Prayers have been
recited at the meetings since that time. Although the Board
prays at every public meeting, it does not pray at its closed-
door or executive sessions. For thirty-five years, no written
policy governed the Board‟s prayer practice. Then, in 2004,
the Board decided to formalize this practice.
The Board‟s decision to write an official prayer policy
was the result of a heated community debate about the
propriety of prayer at local high school graduations and at
School Board meetings. See Indian River, 685 F. Supp. 2d at
528-29. In June 2004, Mona Dobrich complained to the
Board about the recitation of prayer at her daughter‟s high
school graduation. Dobrich‟s complaint and the reaction it
generated caused the Board to become concerned that it might
be the subject of a lawsuit. Id. This led the Board to
“solicit[] legal advice regarding the constitutionality of [its]
practice of opening . . . regular meetings with a moment of
prayer.” Id. at 529. The Policy was drafted and presented to
the Board‟s Policy Committee. In October 2004, the Board
adopted the Policy by vote.
The resulting “Board Prayer at Regular Board
Meetings Policy” (“the Policy”), reads as follows:
1. In order to solemnify its proceedings, the
Board of Education may choose to open
its meetings with a prayer or a moment
of silence, all in accord with the freedom
9
of conscience of the individual adult
Board member.
2. On a rotating basis one individual adult
Board member per meeting will be given
the opportunity to offer a prayer or
request a moment of silence. If the
member chooses not to exercise this
opportunity, the next member in rotation
shall have the opportunity.
3. Such opportunity shall not be used or
exploited to proselytize, advance or
convert anyone, or to derogate or
otherwise disparage any particular faith
or belief.
4. Such prayer is voluntary, and it is among
only the adult members of the Board.
No school employee, student in
attendance, or member of the community
shall be required to participate in any
such prayer or moment of silence.
5. Any such prayers may be sectarian or
non-sectarian, denominational or non-
denominational, in the name of a
Supreme Being, Jehovah, Jesus Christ,
Buddha, Allah, or any other person or
entity, all in accord with the freedom of
conscience, speech and religion of the
individual Board member, and his or her
particular religious heritage.
10
JA 062.3
While the Policy formalizes the Board‟s decades-long
practice of praying at public meetings, the practice
surrounding the recitation of the prayer is essentially the same
as it was prior to the enactment of the formal policy.
The Policy reflects the long-standing tradition of the
Board of rotating the responsibility for reciting the prayer (or
leading the moment of silence) among the board members
that have volunteered for the role. The Policy states that the
prayer is “voluntary” and “among only the adult members of
the Board.” JA 062. In practice, the Board President asks
members to volunteer to lead the prayer or the moment of
silence. The Board President is responsible for keeping track
of which member gave a prayer and thus ensures that the
opportunity is rotated between the volunteering members. A
few days before the regularly-scheduled meeting, the Board
President reminds the next person on the rotation that it is his
or her turn to recite a prayer. When new members are
elected, the Board President asks them to inform him if they
wish to participate in the prayer rotation. The Policy also
ensures that a prayer or moment of silence always occurs at
the meetings, because “[i]f the member chooses not to
exercise this opportunity, the next member in rotation shall
have the opportunity.” JA 062.
The Board meetings usually begin with a call to order
and a roll call. This is followed by the presentation of the
colors and delivery of the prayer. Since the official Prayer
3
“JA” refers to the Joint Appendix.
11
Policy was enacted, it has become customary for a board
member to offer a disclaimer between the presentation of the
colors and the prayer. The purpose of the disclaimer is to
“ensure that any members of the public in attendance
understand the purpose of the prayer policy.” Appellee Br.
11. Appellees offer the following, read on November 16,
2004, as an example of a typical disclaimer:
It is the history and custom of this Board, that,
in order to solemnize the School Board
proceedings, that we begin with a moment of
prayer, in accord with the freedom of
conscience of the individual adult members of
the Board. Further, such prayer is voluntary
and just among the adult members of the School
Board. No school employee, student in
attendance or member of the community is
required to participate in any such prayer or
moment of silence.
JA 0349.
C. Structure, Duties, and Practice of the Board
In support of their contention that the Board functions
as a legislative body, the defendants direct our attention to the
Board‟s composition, responsibilities, and power, which are
set forth in Delaware law.
The Indian River School District serves the Delaware
towns of Selbyville, Frankford, Dagsboro, Gumboro,
Fenwick Island, Bethany Beach, Ocean View, Millsboro, and
Georgetown. See 14 Del. C. § 1068. It is divided into five
12
electoral districts. Id. The District is made up of fourteen
schools, employs 646 full-time teachers, and serves
approximately 8,388 students. Of these fourteen schools,
there are “several elementary schools, two middle schools,
two high schools, and an arts magnet school.” See Indian
River, 685 F. Supp. 2d at 527.
Under Delaware law, a school district is “a clearly
defined geographic subdivision of the State organized for the
purpose of administering public education in that area.” 14
Del. C. § 1002(5). The Indian River School Board has “the
authority to administer and to supervise the free public
schools of the [Indian River School District]” and has “the
authority to determine policy and adopt rules and regulations
for the general administration and supervision of [said
schools].” Id. § 1043. The Board is composed of ten
members, who serve three-year terms.4 See id. § 1068(f).
Two members are elected by the qualified electors of each
district. Id. § 1068(b), (g). Board members are unpaid. Id. §
1046.
Delaware law requires the Board to hold “regular
meetings . . . each month during the year.” Id. § 1048(a).
Special meetings may also be held “whenever the duties and
4
At the time the District Court opinion was issued, the Board
members were: “Robert D. Wilson and Shelly R. Wilson
(District 1); Patricia S. Oliphant and Vice President Kelly R.
Willing (District 2); Randall L. Hughes II and Nina Lou
Bunting (District 3); President Charles M. Bireley and Dr.
Donald G. Hattier (District 4); and Donna M. Mitchell and
Reginald L. Helms (District 5).” Indian River, 685 F. Supp.
2d at 527.
13
business of the school board may require.” Id. § 1048(b).
The Indian River School Board holds its regularly-scheduled
meetings on school property. The policy making
responsibilities of the Board are extensive and touch nearly
all aspects of a student‟s life. The Board must: (1)
“[d]etermine the hours of daily school sessions; the holidays
when district schools shall be closed; the days on which
teachers attend educational improvement activities;” (2) set
the educational policies for the school district; (3) “prescribe
rules and regulations for the conduct and management of the
schools;” (4) enforce school attendance requirements; (5)
“[g]rade and standardize all the public schools under its
jurisdiction and . . . establish kindergartens and playgrounds
and such other types of schools; (6) “[a]dopt courses of
study;” (7) “[s]elect, purchase, and distribute” textbooks and
other school supplies, furniture, and equipment; (8)
“[p]rovide forms” for employees to make reports to the
school board; (9) submit required reports to the Secretary of
Education; (10) “appoint personnel,” id. § 1049; (11) provide
for the care and repair of school property, id. § 1055; and (12)
adopt rules governing use of school property and oversee
requests for use of school property, id. § 1056.
The District also has the power to spend money for the
“support, maintenance and operation of the free public
schools.” Id. § 1702. Although the District receives funding
from the state general assembly, id. §1701, it is also
empowered, through the Board, to levy and collect additional
taxes for “school purposes.” Id. §§ 1902, 1914.
The Board‟s minutes confirm that at its meetings it
hears commentary, discusses, and votes on a wide variety of
issues affecting local schools. For example, at any given
14
meeting, the Board may discuss curriculum development,
changing the length of the school day, capital improvements,
increases or reductions in staffing, and financial matters. The
minutes also disclose that students regularly attend the Board
meetings. While the number of students attending the Board
meetings fluctuates during the year, at least some students
attend nearly all of the meetings held during the school year.
Board President Charles M. Bireley—who, with the exception
of a two-year period, has sat on the board continuously since
1974—estimated that at certain meetings there may be 50
students in attendance while at others there are “very few.”
JA 389. In his calculation, on average “a couple of dozen”
students attend each meeting. Id.
Generally speaking, there are six reasons why a
District student might attend a Board meeting. First, students
facing disciplinary action for serious offenses are permitted to
speak with the Board directly in connection with their
situation. The Board deals with student disciplinary actions
at the closed-door portion of its public meetings.
Second, students belonging to one of the two Junior
Reserve Officers‟ Training Corps (“JROTC”) programs at the
local high schools attend every meeting to perform the
“presentation of the colors.” This tradition started sometime
in 2000, when the JROTC programs at Sussex Central and
Indian River High Schools were created. Typically, the
principal of the school where the meeting is being held will
inform the ROTC students of the location and date of the next
meeting.
Third, students attend the School Board meetings in
their formal role as student government representatives.
15
Sometime between 1993 and 1995, then-Board Member
Richard Cohee submitted a motion to make presentations
from student government representatives an official part of
the meetings. The motion passed; the Board now regularly
devotes a section of its agenda to presentations from student
government leaders and their comments are reflected in the
minutes. The usual practice is for a representative from each
of the two high schools in the district to attend the meetings.
The Board President will “invite the student government
representatives to come forward to speak.” JA 395. During
the school year, student government representatives address
the Board at “most meetings.” JA 395. However, there
“ha[ve] been meetings when [the Board] did not hear from
the [student government] representative.” JA 500.
Fourth, students also attend the meeting to perform a
piece of music or theatre for the Board‟s benefit. These
performances are a regular feature of the meetings.
Fifth, the Board meetings are routinely used to
recognize individual or team achievement. It is for this
purpose that the greatest numbers of students attend the
meetings. At the meeting, the student‟s name will be called
out and he or she will be presented with a letter signed by the
Superintendant and the Board President commemorating his
or her accomplishment. Photographs are also taken, which
may be published in the local newspaper. The Board then
records each student by name in the minutes, which are
posted on the school district website. Prior to 1994, these
types of awards were given out at student assemblies.
The record contains countless examples of these types
of awards. The Board has recognized a broad array of student
16
activities, including Odyssey of the Mind tournament
winners, art contest winners, scholarship recipients, all-state
sports teams, JA 271, other athletic achievements, and
musical achievements. These awards are such an important
part of student life that Board President Bireley was not
aware of any instance where a student declined to attend the
meeting to receive an award, other than for a scheduling
conflict. In fact, the awards portion of the Board meeting has
become so lengthy that the Board has received complaints
from its members about the excessive time spent on this
portion of the meeting. There has been informal discussion
about limiting the number of awards given out or eliminating
this portion altogether in order to decrease the meeting time.
Finally, every Board meeting concludes with a public
comments section that students may also attend. This portion
of the meeting provides members of the community with an
opportunity to “come and talk to [the Board] about things that
[are] on their minds, concerns, or anything like that or have
input.” JA 394.
D. The Content of the Prayers
It is in this environment that the School Board delivers
its prayers. The Policy places several limits on the prayers
that are recited.5 By its terms, it permits a wide range of
prayers—they “may be sectarian or non-sectarian,
denominational or non-denominational” and may refer to
specific religious entities by name. JA 0062. However, the
5
These limitations, of course, also apply to the moments of
silence, although in practice they are obviously aimed at
regulating spoken prayer.
17
prayer may “not be used or exploited to proselytize, advance
or convert anyone, or to derogate or otherwise disparage any
particular faith or belief.” JA 0062.
While by its terms the Policy permits nearly any type
of prayer, the record shows that the prayers recited at the
meetings nearly always—and exclusively—refer to Christian
concepts. The record contains several examples of prayers
given by different Board Members. On February 22, 2005,
Board Member Helms recited the following prayer:
“Heavenly Father, Lord our God. Heavenly Father, please
help the Board with the problems in the School District that
we are going through right now. We ask these things in Jesus‟
Name.” Indian River, 685 F. Supp. 2d at 530. In June 2006,
a Board Member offered the following prayer:
Dear Heavenly Father, among Your many
blessings, we thank You for the beautiful
summer weather and especially for the much
needed rain. We thank You also for the
wonderful school year that has just ended with
so many successes, awards, and
accomplishments of our students and staff once
again. We ask Your continued blessings on
those among us who have devoted so much
time, energy, and expertise to the betterment of
this district and who are now stepping down.
Given [sic] them peace, health, and happiness in
the days to come. Be with our people who have
suffered illness or injury this year, and grant
them a quick return to normal life. Comfort the
families of those who are lost to us and give
them strength in their time of grief. Protect all
18
who are here and return them to us safely in the
fall. We ask that You continue to guide and
direct us in . . . our decision-making, so that
every child in this district receives the
educational skills to be all he/she can be. We
ask these things and all others in the name of
Jesus Christ, our Lord. Amen.
Id. at 547 (ellipsis in original).
As the District Court found, “[i]t is undisputed that
some Board members choose to invoke the name „Jesus,‟
„Jesus Christ,‟ „Heavenly Father,‟ or „Lord our God‟ during
their prayers.” Id. at 530. This is confirmed by testimony
from the Board‟s members. In his deposition, Bireley stated
that, in the nearly thirty years he had been on the Board, he
could not recall a time when three of the current Board
Members regularly responsible for the prayer had given a
prayer that failed to invoke the name of Jesus Christ.
Similarly, Board Member Cohee, who sat on the board from
1993 through approximately 2004 “testified that the
„majority‟ of Board prayers have been „Christian‟” during his
service. Indian River, 685 F. Supp. 2d at 541. He
acknowledged that during his time he could not recall a
spoken prayer being given that did not refer to “[a] religious
deity other than Jesus or the Christian God.” JA 519.
At the time of the original litigation, the responsibility
for reciting the prayer alternated between Board Members
Reginald Helms, Nina Lou Bunting, Donald Hattier, and
Donna Mitchell. Helms testified that he was responsible for
six of the prayers in the fifteen Board meetings held between
July 2005 and October 16, 2006, and at all six meetings he
19
“pray[ed] in the name of Jesus Christ,” JA 780. During her
deposition, Bunting explained, “I could not give what I would
call a non-sectarian prayer, because I would have to mention
Jesus Christ in my prayer, and I would consider that a
sectarian prayer. So if I gave a prayer it would have to be
sectarian and not non-sectarian.” JA 469. Dr. Hattier did not
present any testimony of the type of prayer that he typically
offers except to suggest that they are usually “historical.” JA
656.
The record contains two examples of “historical”
prayers recited by Board Members. At the public Board
meeting that took place on March 22, 2005, Board Member
Walls recited a prayer from a speech given by Martin Luther
King:
God does not judge us by the separate
incidences or the separate mistakes that we
make, but by the total bent of our lives. In the
final analysis, God knows that his children are
weak and they are frail. In the final analysis
what God requires is that your heart is right.
JA 364. Board Member Walls followed this with a brief
statement of the prayer‟s significance:
As we gather here this evening, let us take these
words to heart and put the best interests of the
students, teachers, employees and residents of
the Indian River School District ahead of our
own. Amen.
20
JA 364. On August 24, 2004, at the heated public meeting
about the role of prayer in the District‟s schools, Board
Member Hattier recited a historical prayer described by the
District Court as a “prayer composed by George Washington
and contained in a 1783 letter to the Governors of the newly-
freed states.” Indian River, 685 F. Supp. 2d at 529.
While the Policy permits moments of silence to be
offered in place of a spoken prayer, this appears to happen
infrequently. In the thirty-six Board meetings held between
October 2004 to October 2007, “[three] opened with a
moment of silence.” Id. at 530-31.
II.
Tasked with deciding the constitutionality of this
Policy, the District Court was first obliged to tackle the
threshold question of what legal framework to employ. The
parties presented two possibilities. Defendants argued that
the Indian River School Board‟s Policy was constitutional
under the legislative prayer exception set forth in Marsh v.
Chambers, 463 U.S. 783 (1983), while plaintiffs maintained
that the Supreme Court‟s school prayer jurisprudence
provided a more suitable framework, citing specifically to
Lee v. Weisman, 505 U.S. 577, 592 (1992). Several elements
of the School Board‟s actions took it outside the purview of
Marsh, plaintiffs argued: the attendance and participation of
children in the Indian River School Board meetings, the
Board‟s essential role in public school education, the Board‟s
history of promoting sectarian prayer, and Marsh‟s unique
historical context. Plaintiffs‟ argument would have required
the District Court to forego the special allowance for
legislative bodies and examine the constitutionality of the
21
Policy under “other Establishment Clause tests-i.e., the
Lemon test, the „endorsement‟ test or the „coercion‟ test.”
Indian River, 685 F. Supp. 2d at 536.
Faced with these two choices, the District Court “ha[d]
little trouble concluding that the School District qualified as
the type of „deliberative body‟ contemplated by Marsh.” 685
F. Supp. 2d at 537. In concluding that the legislative prayer
exception applied, the court cited the following facts: (1) the
Board is created by statute; (2) Board Members are popularly
elected; (3) the Board‟s duties include “setting educational
policies . . . hiring and firing administrators and teachers,
creating and approving curriculum, administering the
District‟s budget;” (4) the Board holds public meetings to
vote on these issues; and (5) members of the community
attend Board meetings to “express their views and concerns.”
Id. The District Court rejected plaintiffs‟ argument that
because the Board lacked authority to pass laws or levy taxes
without a public referendum, it was not a “legislative body.”
Id. The court explained that Marsh did not hinge on the
“level of government in which a legislative or deliberative
body falls or . . . the differences in the power and
responsibilities such bodies exercise.” Id. In support, the
court drew attention to cases where Marsh was applied
beyond its traditional context, including a county
commission, see Pelphrey v. Cobb Cnty., 547 F.3d 1263,
1276 (11th Cir. 2008), county board of supervisors, see
Simpson v. Chesterfield Cnty. Bd. of Supervisors, 404 F.3d
276, 278 (4th Cir. 2005), and a city council, see Snyder v.
Murray City Corp., 159 F.3d 1227, 1228 (10th Cir. 1998).
Plaintiffs also advanced the argument that Marsh was
inapplicable because “public schools and public school
22
boards were „virtually nonexistent at the time the Constitution
was adopted.‟” Indian River, 685 F. Supp. 2d at 537 & n.107
(quoting Edwards v. Aguillard, 482 U.S. 578, 583 n.4
(1987)). The District Court rejected that argument, noting
that there was no support for the proposition that the prayer
exception was limited to the types of legislative bodies in
existence at the time that the First Amendment was adopted.
Id. at 537-38.
The District Court next addressed plaintiffs‟
contention that the relationship between the public school
system and school boards rendered Marsh inapplicable. None
of the features plaintiffs identified were particularly
persuasive to the court. First, school board meetings are not
“akin to a classroom setting or a graduation ceremony.” Id. at
538-39. In the former, “attendance is involuntary and
students are under the exclusive control of school personnel.”
Id. at 539. A board meeting is also dissimilar from a school
graduation, because graduations were “the one school event
most important for the student to attend” and one where “the
„influence and force‟ exercised over the students by the
school personnel is „far greater.‟” Id. at 539 (quoting Lee,
505 U.S. at 591). Second, board meetings are not analogous
to school extracurricular activities, because the former are
“part of a complete educational experience” and “important to
many students.” Id. (internal quotation marks omitted).
Attending a board meeting, on the other hand, is “at best
incidental to a student‟s public school experience.” Id. “In
sum, a school board meeting does not implicate the same
concerns as the coercive effect of classroom prayers,
graduation prayers, or prayers during extracurricular
activities.” Id.
23
In reaching this conclusion, the District Court
distinguished the present case from the only other Court of
Appeals decision to have tackled the question of whether a
school board‟s prayer are subject to Marsh, Coles v.
Cleveland Board of Education, 171 F.3d 369 (6th Cir. 1999).
In Coles, the Sixth Circuit found in similar circumstances that
school boards were distinct from legislative bodies, and thus
board prayers should be analyzed under the school prayer
case law, i.e. Lee, not Marsh. 171 F.3d at 379. The District
Court was not persuaded by the Sixth Circuit‟s reasoning: “it
strains credulity to equate a School Board meeting with a
public school classroom” and “no Supreme Court precedent
supports the proposition that the same concerns that apply in
school settings . . . also apply in every „public school
setting.‟” Indian River, 685 F. Supp. 2d at 539 n.120. The
court seized on Coles‟s reference to “public school settings,”
which it warned could be used to invalidate prayer at “a
teacher‟s conference in the evening or during the week,” a
“PTA supper in the school gym,” or “any other activity
conducted on school property.” Id. (citing Coles, 171 F.3d at
387 (Ryan, J. dissenting)).
Nor did the “frequent[] attend[ance]” of students at the
board meetings or the fact that “students may feel disinclined
to leave during an opening prayer” render Marsh inapplicable,
the court explained. Id. at 540. The court acknowledged Jane
Doe‟s testimony that she felt “peer pressure to bow her head”
which made her “feel uncomfortable and excluded.” Id.
(internal quotation marks omitted). While noting that it was
“not insensitive to these concerns,” id., the court nonetheless
dismissed them. Other than Jane Doe‟s testimony, there was
“no evidence [in the record] that any student has felt coerced
or pressured to participate in a prayer given during a public
24
Board meeting.” Id. The court also drew attention to the
perceived risk of finding that the presence of students at a
legislative prayer invalidated the practice: “[S]tudents across
this country attend legislative sessions, including sessions of
the United States Senate and House of Representatives, for
similar purposes, including field trips, presentation of the
colors, and to be recognized for their accomplishments. If the
mere presence of school children were enough to invalidate
prayers in legislative and other deliberate bodies, such
practices would be unconstitutional in virtually every
setting.” Id.
Having decided that Marsh applied, the District Court
then tackled the question of whether the prayers were
constitutional under that precedent. It ultimately found that
“Marsh did not intend to authorize only nonsectarian” prayer,
and thus the content of the Board‟s prayers was not
dispositive. Id. at 541-42. Nevertheless, the court took issue
with the plaintiffs‟ characterization of the prayers as
“overwhelmingly sectarian.” Id. at 540-41. At most, the
court explained, “the Board Members often reference Jesus
Christ in their prayer.” Id. Moreover, references to religious
figures, including “God” and “Jesus Christ” do not
necessarily render a prayer “sectarian,” because “[a]ny prayer
has a religious component.” Id. at 542 (internal quotation
omitted). The District Court also rejected plaintiffs‟
argument that the Prayer Policy was unconstitutional under
Marsh because it “advances” Christianity and has been used
to “proselytize.” Id. at 543. The court disagreed, explaining
that “the brief references to Jesus Christ in [some of the]
prayers” did not “transform those prayers into an
impermissible attempt to proselytize or advance Christianity.”
Id. at 544. In addition, several features of the Policy ensured
25
the Board did not stray into constitutionally dubious territory:
(1) the policy explicitly prohibits prayers that proselytize or
advance Christianity; (2) the Policy explicitly permits non-
sectarian prayer; (3) responsibility for the prayer is rotated
among Board Members; and (4) certain Board Members
choose to lead a moment of silence rather than pray.
While recognizing the fact that the Board Members
themselves had the responsibility of monitoring and enforcing
compliance with the Prayer Policy was an “entanglement
problem” that “would be cognizable” under the Supreme
Court‟s school prayer jurisprudence, the District Court
concluded that the Policy “d[id] not run afoul of Marsh.” Id.
at 544-45. Similarly, the fact that the board members
themselves gave the prayers did not render the Policy
unconstitutional. Citing to Snyder, 159 F.3d at 1233, the
court noted that Marsh is not violated simply because the
government “chooses [a] particular person” to give that
prayer. Indian River, 685 F. Supp. 2d at 549. Moreover, in
this case, the Indian River Policy was even more inclusive
than the practice in Marsh, because here the “unpaid,
popularly elected members” rotated the prayer opportunity
among themselves without regard to the Board Members‟
religious beliefs. Id. at 549-50. Finally, the District Court
rejected plaintiffs‟ various arguments that the school board
had an impermissible motive in adopting the Policy, finding
that the evidence in the record did not support that assertion.
The District Court thus granted summary judgment in
favor of defendants and denied plaintiffs‟ motion for
26
summary judgment. Plaintiffs timely filed this notice of
appeal.6
III.
A. The Establishment Clause
Our starting point, naturally, is the Establishment
Clause of the First Amendment. The Establishment Clause
provides that “Congress shall make no law respecting an
establishment of religion.” Const. amend. I. The
Establishment Clause was “designed as a specific bulwark
against [the] potential abuses of governmental power.” Flast
v. Cohen, 392 U.S. 83, 104 (1968). It therefore prohibits the
government from “promot[ing] or affiliat[ing] itself with any
religious doctrine or organization, . . . discriminat[ing] among
persons on the basis of their religious beliefs and practices, . .
. delegat[ing] a governmental power to a religious institution,
and . . . involv[ing] itself too deeply in such an institution‟s
affairs.” Cnty of Allegheny v. Am. Civil Liberties Union
Greater Pittsburgh Chapter, 492 U.S. 573, 590-91 (1989).
The Clause “applies equally to the states, including public
school systems, through the Fourteenth Amendment.”
Borden v. Sch. Dist. of Twp. East Brunswick, 523 F.3d 153,
175 (3d Cir. 2008) (citing Wallace v. Jaffree, 472 U.S. 38, 49-
50 (1985)).
6
We have jurisdiction over an appeal from a final decision of
the District Court pursuant to 28 U.S.C. § 1291. The District
Court had subject matter jurisdiction pursuant to 28 U.S.C. §
1331.
27
The Supreme Court‟s Establishment Clause
jurisprudence is vast and comprised of interlocking lines of
cases applying the Clause in particular situations. However,
at the very least, the Court has ascribed to the First
Amendment the following general meaning:
Neither a state nor the Federal Government can
set up a church. Neither can pass laws which aid
one religion, aid all religions, or prefer one
religion over another. Neither can force nor
influence a person to go to or to remain away
from church against his will or force him to
profess a belief or disbelief in any religion. No
person can be punished for entertaining or
professing religious beliefs or disbeliefs, for
church attendance or non-attendance. No tax in
any amount, large or small, can be levied to
support any religious activities or institutions,
whatever they may be called, or whatever form
they may adopt to teach or practice religion.
Neither a state nor the Federal Government can,
openly or secretly, participate in the affairs of
any religious organizations or groups and vice
versa.
Everson v. Bd. of Ed. of Ewing Twp., 330 U.S. 1, 15-16
(1947). In the present case, we focus only on two lines of
Establishment Clause jurisprudence—the cases governing
prayer in the public school system and the legislative prayer
exception stated in Marsh.
1. The School Prayer Cases
28
The Supreme Court first tackled the question of school
prayer in Engel v. Vitale, 370 U.S. 421 (1962). In that case,
New York State implemented a regulation requiring school
officials to recite a prayer aloud at the start of every day. Id.
at 423. The prayer, which was composed by state officials,
read in its entirety: “Almighty God, we acknowledge our
dependence upon Thee, and we beg Thy blessings upon us,
our parents, our teachers and our Country.” Id. at 422. The
Supreme Court held that the practice of “using [the] public
school system to encourage recitation of the Regents‟ prayer”
was “wholly inconsistent with the Establishment Clause.” Id.
at 424. It reasoned that the prayer amounted to “religious
activity” and served to “officially establish” the beliefs
professed therein. Id. 424, 430. The Court warned that “it is
no part of the business of government to compose official
prayers for any group of the American people to recite as a
part of a religious program carried on by government.” Id. at
425. That the prayer was “nondenominational” or permitted
students to remain silent or leave the classroom during the
prayer did not cure its constitutional defects. This is because
the Establishment Clause is violated by “enactment of laws
which establish an official religion whether those laws
operate directly to coerce nonobserving individuals or not.”
Id. at 430.
The next year, in School District of Abington
Township, Pennsylvania v. Schempp, 374 U.S. 203 (1963),
the Supreme Court again invalidated two state policies of
prayer in public schools: a Pennsylvania law requiring “[a]t
least ten verses from the Holy Bible [to] be read, without
comment at the opening of each public school on each school
day,” id. at 205, and a policy adopted by the Board of School
Commissioners of Baltimore, Maryland, that called for every
29
school day to open with a reading “of a chapter in the Holy
Bible and/or the use of the Lord‟s Prayer,” id. at 211. In both
cases, children could be excused from participating or
observing the prayer. Id. at 207, 211 n.4.
Neither practice withstood the Supreme Court‟s
scrutiny. Three aspects of the states‟ policies rendered them
unconstitutional: the fact that the state was “requiring the
selection and reading at the opening of the school day of
verses from the Holy Bible and the recitation of the Lord‟s
Prayer by the students in unison,” the fact that the practice
was “prescribed as part of the curricular activities of students
who are required by law to attend school,” and finally, that
the prayer was recited “in the school buildings under the
supervision and with the participation of teachers employed
in those schools.” Id. at 223. Citing Engel, the Court
explained that the fact that students could absent themselves
from the prayer did not remedy the policy‟s
unconstitutionality. Id. at 225.
By the time the Court decided its next school prayer
case, Wallace v. Jaffree, 472 U.S. 38 (1985), it had already
announced the well-known “Lemon test” as the standard for
determining the constitutionality of state action under the
Establishment Clause. In Lemon v. Kurtzman, the Court
identified three factors that assist it in determining whether
government action violates the Establishment Clause: (1)
whether the government practice had a secular purpose; (2)
whether its principal or primary effect advanced or inhibited
religion; and (3) whether it created an excessive entanglement
of the government with religion. 403 U.S. 602, 612-13
(1971). Applying those factors, the Wallace Court held that
an Alabama statute authorizing “a period of silence for
30
„meditation or voluntary prayer,‟” in public schools, 472 U.S.
at 41, was unconstitutional. Specifically, the Supreme Court
found that the statute failed the “purpose prong” of the
Lemon test: the evidence of legislative intent revealed that
the explicit purpose of the statute was to return voluntary
prayer to schools. Id. 57-60.
The key case in this series—and the one plaintiffs
primarily rely on—is Lee v. Weisman, supra. In Lee, the
Supreme Court held that a Rhode Island policy of permitting
principals to choose clergymen to give nonsectarian prayers
at school graduations was unconstitutional. The Court
identified several aspects of the state‟s control over the prayer
that were constitutionally problematic: First, because “[a]
school official, the principal decided that an invocation and a
benediction should be given; . . . . from a constitutional
perspective it is as if a state statute decreed that the prayers
must occur.” 505 U.S. at 587. Second, the principal chose
who should give a prayer, a “choice [that] is also attributable
to the State . . . [that has] the potential for divisiveness.” Id.
Third, because the principal provided the selected clergyman
with guidelines for the prayer, the state “directed and
controlled the content of the prayers.” Id. at 588. In effect,
the government itself composed the prayer, a fact completely
incompatible with the Establishment Clause. Id. Fourth,
school officials‟ “effort to monitor prayer w[ould] be
perceived by the students as inducing a participation they
might otherwise reject.” Id. at 590. In sum, “[t]he degree of
school involvement here 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.” Id.
31
The Lee Court wrote at length about the “heightened
concerns,” regarding prayers in the public school educational
system, which “carry a particular risk of indirect coercion.”
Id. at 592. Although that concern exists outside of the context
of schools, “it is most pronounced there.” Id. Thus, courts
must be careful to “protect[] freedom of conscience from
subtle coercive pressure in the elementary and secondary
public schools.” Id. In emphasizing the special nature of the
school context, the Court compared the case to Marsh:
“Inherent differences between the public school system and a
session of a state legislature distinguish this case from [Marsh
v. Chambers].” Id. at 596. First, “[t]he atmosphere at the
opening of a session of a state legislature where adults are
free to enter and leave with little comment and for any
number of reasons cannot compare with the constraining
potential of the one school event most important for the
student to attend.” Id. at 597. Second, a school graduation
has “far greater” “influence and force” than the “prayer
exercise we condoned in Marsh.” Id. At a high school
graduation, where school administrations “retain a high
degree of control over the precise contents of the program, the
speeches, the timing, the movements, the dress, and the
decorum of the students,” the school‟s involvement in the
invocation and benediction “combine to make the prayer a
state-sanctioned religious exercise in which the student was
left with no alternative but to submit.” Id. This, too,
distinguished Marsh from Lee.
The Court again rejected the argument that the prayer
was constitutional because students had the choice to stand
silently during the benediction or refuse to attend the
graduation altogether. Although the pressure to “stand as a
group” during the invocation might be “subtle and indirect,”
32
it was “as real as any overt compulsion.” Id. at 593. The
Court acknowledged that although standing silently might be
interpreted as a personal act of dissent, the “reasonable
perception” would be that any student standing or remaining
silent during the prayer was participating in the prayer. Id.
In support, Lee drew from research showing that “adolescents
are often susceptible to pressure from their peers towards
conformity, and that the influence is strongest in matters of
social convention.” Id. at 593-94.
Of course, a student could always choose to absent
herself from the graduation ceremony altogether. But this
“choice” was no choice at all. While the parties had
stipulated that attendance at the graduation was “voluntary,”
the Court disagreed with this characterization. “[T]o say a
teenage student has a real choice not to attend her high school
graduation is formalistic in the extreme.” Id. at 595. “Law
reaches past formalism.” Id. Graduations have significant
personal and cultural meaning; they are an opportunity for the
student and her family to “celebrate success and express
mutual wishes of gratitude and respect.” Id. To require a
student to absent herself from her graduation in order to
express her disapproval of the school prayer policy would
contradict the First Amendment. This is because “the State
cannot require one of its citizens to forfeit his or her rights
and benefits as the price of resist[ance.]” Id. at 596.
The “heightened concerns” attendant to students more
recently led the Supreme Court to strike down school policies
permitting prayer at events where attendance is even more
“voluntary.” Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290
(2000). In Santa Fe, the Court tackled the question of
whether student-led and student-initiated invocations
33
authorized by school policy that were given prior to a football
game violated the Establishment Clause. Id. at 294. Under
that policy, the senior class elected the students responsible
for delivering a “brief invocation and/or message,” the
purpose of which was to “solemnize” the “home varsity
football games.” Id. at 296-97 & n.6.
With the principles of Lee in mind, id. at 301-02, the
Court found that, despite student involvement in selecting and
composing the invocation, the state was in fact extensively
“entangled” in this religious activity, id. at 305-08. The
school had crafted the policy permitting student prayer and
thus was responsible for selection of the speakers and their
messages; the prayer was delivered “as part of a regularly
scheduled, school-sponsored function conducted on school
property” and “the message [wa]s broadcast over the school‟s
public address system, which remain[ed] subject to the
control of school officials” and the prayers took place at
football games replete with school symbols. Id. at 307.
The Supreme Court also rejected the school‟s
argument that Lee‟s warnings about the coercive aspects of
school graduations were absent in extracurricular events like
football games. While accepting the proposition that
attendance at a football game was in some ways more
voluntary than attendance at a high school graduation, the
Court noted that for some students—the players, cheerleaders,
band members—attendance was essentially mandatory. For
others, football games were important “traditional
gatherings.” Id. at 312. Citing Lee, 505 U.S. at 596, Justice
Stevens reiterated that the First Amendment does not permit
the school to “force” students to make the “difficult choice”
34
between “attending these games and avoiding personally
offensive religious rituals.” 530 U.S. at 312.
2. The Legislative Prayer Exception in Marsh
In Marsh v. Chambers, 463 U.S. 783 (1983), the
Supreme Court addressed the constitutionality of the
Nebraska legislature‟s practice of opening each session with a
prayer given by a chaplain who was paid with public funds.
Marsh is atypical within the Establishment Clause
jurisprudence in that the Supreme Court did not employ its
usual Establishment Clause “tests” to analyze the contested
state practice. Rather, the Court‟s decision, which found that
the practice was constitutional, is premised on the long
history of prayer by legislative and deliberative bodies in the
United States.
Writing for the Court, Justice Burger set forth that
history:
The opening of sessions of legislative and other
deliberative public bodies with prayer is deeply
embedded in the history and tradition of this
country. From colonial times through the
founding of the Republic and ever since, the
practice of legislative prayer has coexisted with
the principles of disestablishment and religious
freedom. . . .
The tradition in many of the colonies was, of
course, linked to an established church, but the
Continental Congress, beginning in 1774,
adopted the traditional procedure of opening its
35
sessions with a prayer offered by a paid
chaplain.
Marsh, 463 U.S. at 787 (internal citations omitted). Marsh
paid particular attention to the timing of the enactment of the
Bill of Rights, which played a pivotal role in the Court‟s
reasoning. The Court observed that while “prayers were not
offered during the Constitutional Convention, the First
Congress, as one of its early items of business, adopted the
policy of selecting a chaplain to open each session with
prayer.” Id. at 787-88. This led the Senate to create a
committee to appoint a suitable chaplain on April 7, 1789. Id.
at 788. On April 9, 1789, the House of Representatives
created a similar committee. Id. The Senate elected its first
chaplain on April 25, 1789, while the House did the same a
few days later on May 1, 1789. Id. On September 22, 1789,
a statute providing for the payment of these chaplains was
enacted. Id. A mere three days after Congress authorized
payment for the chaplains, “final agreement was reached on
the language of the Bill of Rights.” Id.
The Supreme Court ascribed to this chronology great
significance, explaining that this series of events “shed[] light
. . . on how [the draftsmen] thought that [the Establishment]
Clause applied to the practice” of legislative prayer. Id. at
790. The fact that the First Amendment was written only
days after the Senate had authorized payment for the
chaplains suggested to the Court that legislative prayer did
not offend the First Amendment. The history was evidence of
the following:
Clearly, the men who wrote the First
Amendment Religion Clause did not view paid
36
legislative chaplains and opening prayers as a
violation of that Amendment, for the practice of
opening sessions with prayer has continued
without interruption ever since that early
session of congress.
...
It can hardly be thought that in the same week
Members of the First Congress voted to appoint
and to pay a Chaplain for each House and also
voted to approve the draft of the First
Amendment for submission to the States, they
intended the Establishment Clause of the
Amendment to forbid what they had just
declared acceptable.
Id. at 788, 790. Given this “unambiguous and unbroken
history of more than 200 years” of Congressional prayer, the
Court explained, “there can be no doubt that the practice of
opening legislative sessions with prayer has become part of
the fabric of our society.” Id. at 792. Nebraska‟s century-old
practice of legislative prayer was “consistent with two
centuries of national practice” and thus would not “be cast
aside.” Id. at 790. However, the Court did not define a
“legislative” or “deliberative” body anywhere in its opinion.
The second issue in Marsh was whether the specific
prayers offered by the Nebraska Legislature violated the
Establishment Clause. The Court found that they did not,
again drawing from the history of legislative prayer in the
First Congress. The Court identified three potentially
problematic aspects of the Nebraskan prayer practice: (1) the
prayers were given by “a clergyman of only one
denomination-Presbyterian-[who] has been selected for 16
37
years;” (2) “the chaplain is paid at public expense;” and (3)
“the prayers are in the Judeo-Christian tradition.” Id. at 793.
None of these factors, considered against the “unique
history” of legislative prayers, rendered the Nebraska practice
unconstitutional. Id. Again, the Court explained that at the
First Congress, “delegates did not consider opening prayers as
a proselytizing activity or as symbolically placing the
government‟s official seal of approval on one religious view.”
Id. at 792 (internal quotation marks and citation omitted).
Moreover, there was no evidence that the chaplain‟s long
tenure “stemmed from an impermissible motive” and thus his
reappointment did “not in itself conflict with the
Establishment Clause.” Id. at 793-94. That the chaplain was
paid from public funds was similarly “grounded in historic
practice” and thus not unconstitutional. Id. at 794. The
content of the prayer was “not of concern” because “there is
no indication that the prayer opportunity has been exploited to
proselytize or advance any one, or to disparage any other,
faith or belief.” Id. at 794-95. In sum, the prayers were
“simply a tolerable acknowledgment of beliefs widely held
among the people of this country.” Id. at 792.
B. Application to the Indian River School Board
In light of this jurisprudential background, we must
determine whether our analysis of the Indian River School
Board‟s Prayer Policy is guided by the principles endorsed in
Lee v. Weisman or by the exception established in Marsh v.
Chambers. For the reasons below, we conclude that Marsh‟s
38
legislative prayer exception does not apply and find that Lee
provides a better framework for our analysis.7
Lee and the Supreme Court‟s other school prayer cases
reveal that the need to protect students from government
coercion in the form of endorsed or sponsored religion is at
the heart of the school prayer cases. This reflects the
fundamental guarantee of the First Amendment that
“government may not coerce anyone to support or participate
in religion or its exercise.” Lee, 505 U.S. at 587. The risk of
coercion is heightened in the public school context: “prayer
exercises in public schools carry a particular risk of indirect
coercion.” Id. The possibility of coercion is greater in
schools because children are more “susceptible to pressure
from their peers.” Id. at 593; see also Edwards v. Aguillard,
482 U.S. 578, 584 (1987) (“Students in [elementary and
secondary schools] are impressionable . . . . The State exerts
great authority and coercive power . . . because of . . . the
7
We review a district court‟s grant of summary judgment de
novo. Pichler v. UNITE, 542 F.3d 380, 385 (3d Cir. 2008).
In doing so, we apply the same standard as the district court.
Id. That is, summary judgment should be granted “if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). In deciding whether
summary judgment is warranted, we “must view the facts in
the light most favorable to the nonmoving party and draw all
inferences in that party‟s favor.” Stratechuk v. Bd. of Educ.,
South Orange-Maplewood Sch. Dist., 587 F.3d 597, 603 (3d
Cir. 2009) (citing Norfolk S. Ry. v. Basell USA, Inc., 512
F.3d 86, 91 (3d Cir. 2008)).
39
children‟s susceptibility to peer pressure.”). Thus, the
Supreme Court has “recognized a distinction when
government-sponsored religious exercises are directed at
impressionable children who are required to attend school, for
then government endorsement is much more likely to result in
coerced religious beliefs.” Wallace, 472 U.S. at 81
(O‟Connor, J., concurring).
Marsh does not adequately capture these concerns.
The Indian River School Board carries out its practice of
praying in an atmosphere that contains many of the same
indicia of coercion and involuntariness that the Supreme
Court has recognized elsewhere in its school prayer
jurisprudence. While there is no doubt that school board
meetings do not necessarily hold the same type of personal
and cultural significance as a high school graduation or
perhaps even a football game, we take to heart the Supreme
Court‟s observation that, in this respect, “[l]aw reaches past
formalism.” Lee, 505 U.S. at 595. In Lee, although the
parties stipulated that attendance at the graduation was
“voluntary,” the Court rejected that characterization:
Attendance may not be required by official
decree, yet it is apparent that a student is not
free to absent herself from the graduation
exercise in any real sense of the term
“voluntary,” for absence would require
forfeiture of those intangible benefits which
have motivated the student through youth and
all her high school years. Graduation is a time
for family and those closest to the student to
celebrate success and express mutual wishes of
gratitude and respect, all to the end of
40
impressing upon the young person the role that
it is his or her right and duty to assume in the
community and all of its diverse parts.
505 U.S. at 595.
In Santa Fe, the school district also argued that
attendance at a high school game was distinguishable from
the “involuntary” nature of graduation exercises that Lee
recognized. 530 U.S. at 311. The Supreme Court agreed that
“[a]ttendance at a high school football game . . . is certainly
not required in order to receive a diploma,” but rejected the
formalism inherent in the district‟s argument. Id. For certain
students, namely the “cheerleaders, members of the band, and
of course, the team members themselves,” attendance at the
football game is mandatory as part of their “seasonal
commitment.” Id. The Supreme Court cautioned against
“minimiz[ing] the importance . . . of attending and
participating in extracurricular activities as part of a complete
educational experience.” Id. Of course, some students may
choose not to attend the games. However, for a second group
of students—those who have no formal role at the football
games—the event still is nonetheless a meaningful one and
“the choice between attending these games and avoiding
personally offensive religious rituals is in no practical sense
an easy one.” Id. at 312.
The Indian River Board meetings are akin to those
events. It is true that attendance at the Indian River School
Board meetings is not technically mandatory. Nevertheless,
the meetings bear several markings of “involuntariness” and
the implied coercion that the Court has acknowledged
elsewhere.
41
First, like graduations, the Board‟s recognition of
student achievement allows “family and those closest to the
student to celebrate success.” Id. For years, the Indian River
School Board has used its regular meeting to recognize
student accomplishment of various types. These are awards
that were previously given out at student assemblies, but the
Board deliberately decided to change the location of the
awards to its meetings. This change had the effect of
ensuring student attendance at nearly all the Board meetings
that take place during the school year. Over the years,
hundreds of individual students and students groups have
attended a Board meeting in order to be recognized for their
academic, athletic, or artistic skills and achievements. Their
families are asked to join them in the celebration. At the
meeting, the student‟s name is called and they are presented
with a letter commemorating the experience. The award is
reflected in the minutes and may be published in the local
newspaper. Thus, by virtue of the way in which it gives out
these awards, the Board does more than casually celebrate
student accomplishments; it effectively cloaks them in official
recognition.
Therefore, like commencement exercises, a student
who decides not to attend the meeting will “forfeit . . .
intangible benefits” that “have motivated the student.” Lee,
505 U.S. at 595. They will be giving up an opportunity to
“celebrate success and express mutual wishes of gratitude and
respect.” Id. Of course, attendance at a meeting of the Board
does not bear all of the same hallmarks of personal and
cultural significance that a high school graduation ceremony
does. It may not be “one of life‟s most significant occasions.”
Id. at 595. It may not be as exciting an event as a football
42
game. But the Indian River School Board has deliberately
made its meetings meaningful to students in the district. The
significance of the awards portion of the meeting is borne out
by Bireley‟s testimony. Bireley testified that it was an “honor
for [the students] to come to receive an award” at the
meetings. JA 393. These awards are such an important part
of student life that Bireley was not aware of any instance
where a student declined to attend the meeting to receive an
award, other than for a scheduling conflict.
Thus, for these students, the meetings are a
culmination of their extracurricular activities.8 This has
additional implications for awards given out to teams. In
situations where entire teams are honored, a student may feel
especially coerced to attend a meeting where the Board
recites a prayer. A student may feel pressure to attend the
meeting with their team; to do otherwise could be construed
as abandoning the team. At the very least, a team member
who absents herself will not receive the same tangible and
intangible benefits as her teammates.
8
For example, the Board “recognized and presented
certificates” to the following individuals and teams “for their
accomplishments” at the April 26, 2005 meeting: 28 students
belonging to the 2005 Odyssey of the Mind Team; four
members of the JROTC State Champion Shooting Team and
three members of the JROTC State Champion Color Guard of
the Indian River High School; two state wrestling champions
from Indian River High School, two students who won first
place at the “Science Olympiad;” four students who won first
place at a Future Farmers of America competition; and ten
members of the Academic All-State Wrestling Team from the
Indian River High School.
43
In this context, the Supreme Court‟s observation that
students are particularly vulnerable to peer pressure in social
context is an important one. Santa Fe, 530 U.S. at 311-12
(“We stressed in Lee the obvious observation that adolescents
are often susceptible to pressure from their peers towards
conformity, and that the influence is strongest in matters of
social convention.”) (internal citations and quotation marks
omitted). Given this pressure, we question whether an
individual team member will feel free to choose not to attend
the meeting in order to avoid participating in the prayer when
the rest of the team is being honored at the meeting. The
existence of such pressure is borne out by a critical fact in the
record: students have never decided not to attend the
meetings, other than for a scheduling conflict.
Moreover, for at least some students, attendance at the
Board meetings is more formally part of their extracurricular
activities, and thus is closer to compulsory. JROTC members
are one example. Every Board meeting begins with a
“presentation of the colors” of the high school where the
Board meeting is taking place. There are only two such
JROTC programs, and thus the students in the JROTC must
attend the meetings.
Attendance also borders on compulsory for student
government representatives. Student government members
are invited to the Board meetings in their official capacity as
representatives of the two local high schools. Their
presentations to the Board are a specific part of the Board‟s
agenda. The record confirms that student government leaders
routinely attend the meetings and speak on a wide variety of
issues relating to the student experience in the Indian River
44
School District. Thus, they directly represent student
interests at the Board‟s meeting. The meeting gives student
government representatives—and therefore all the students—
an opportunity to draw attention to issues that affect their
educational experience. As befits their role, student
representatives may speak on a number of different issues.
An example from the minutes illustrates the nature of these
presentations. At the March 22, 2005 Board meeting, a
student representing Sussex Central Student Council gave a
lengthy presentation identifying the issues affecting the
student body, including students‟ reactions to the new school
lunch menu, the themes and locations of the school‟s
upcoming prom, the result of efforts to raise funds for disaster
relief, problems with the athletic fields, accomplishments at
various athletic competitions, efforts by the guidance office to
assist with college applications, and the administration of
state educational exams.
To say that the attendance of student government
representatives is not part of their extracurricular obligations
is to undermine the contributions these students make to their
school and their communities. In this regard, they are more
like the “cheerleaders, members of the band, and, of course,
the team members themselves, for whom seasonal
commitments mandate their attendance” at football games.
Santa Fe, 530 U.S. at 290. 9
9
For these reasons, we also disagree with the District Court‟s
conclusion that school board meetings are unlike
extracurricular activities because they are not “important” or
“part of a complete educational experience.”
45
The Board argues that its meetings are distinguishable
from graduations because “audience members, including
students, may freely enter and exit—and they do. If
Appellants or anyone else finds it truly intolerable to hear a
brief prayer they can easily absent themselves for that short
portion of the meeting.” Appellee Br. 29. They point out
that, under Lee, “the ability to come and go freely without
notice or interference is highly relevant to the inquiry.” Id.
Appellees misunderstand the lesson in Lee. Simply
put, giving a student the option to leave a prayer “is not a cure
for a constitutional violation.” Lee, 505 U.S. at 596; see also
Engel, 370 U.S. at 425; Santa Fe, 530 U.S. at 312. “It is a
tenet of the First Amendment that the State cannot require
one of its citizens to forfeit his or her rights and benefits as
the price of resisting conformance to state-sponsored religious
practice.” Lee, 505 U.S. at 596. The First Amendment does
not allow the state to force this kind of choice upon a student.
Additional contextual elements of the Board meetings
betray the possibility that students will feel coerced into
participating in the prayer practice. The meetings take place
on school property. The Board retains complete control over
the meeting; it sets the agenda and the schedule, for example.
Cf. Lee, 505 U.S. at 597 (“At a high school graduation,
teachers and principals must and do retain a high degree of
control over the precise contents of the program, the
speeches, the timing, the movements, the dress, and the
decorum of the students.”). It is in this context that the Board
itself composes and recites the prayer. Thus, the Board is
involved in every aspect of the prayer. In these
circumstances, it is particularly difficult to imagine that a
student would not feel pressure to participate in the practice,
46
or at least appear to agree with it—particularly a student
appearing in front of the Board to contest a disciplinary
action.
Second, regardless of whether the Board is a
“deliberative or legislative body,” we conclude that Marsh is
ill-suited to this context because the entire purpose and
structure of the Indian River School Board revolves around
public school education. The District Court‟s starting
position was that Marsh applied because the School Board
was a “legislative body.” We find this analysis unpersuasive.
To conclude that, merely because the Board has duties and
powers similar to a legislative body Marsh applies, is to
ignore the Board‟s role in Delaware‟s system of public school
education.
Every aspect of the Indian River School Board is
intended to promote and support the public school system.
By statute, the Board‟s purpose is to “administer and to
supervise the free public schools of the . . . school district”
and “determine policy and adopt rules and regulations for the
general administration and supervision” of the schools. 14
Del. C. § 1043. All of the Board‟s policy making
responsibilities are aimed at educating students or otherwise
administering the public school system. For example, the
Board determines the number of hours in a school day,
enforces school attendance, evaluates schools within the
District, decides whether to establish kindergartens, sets the
“educational policies” of the school, “adopt[s] courses of
study; purchases textbooks and other equipment,” and
“appoint[s] personnel.” 14 Del. C. § 1049. More generally,
the Board also has the responsibility of “prescrib[ing] rules
and regulations for the conduct and management of the
47
schools.” Id. at § 1049(2). Even the power to levy taxes—
which the Board points out is a hallmark of a legislative
body—is limited to “school purposes.” Id. at § 1902.
The Board‟s responsibilities serve to further highlight
the compulsory nature of student attendance at Board
meetings. A student wishing to comment on school policies
or otherwise participate in the decision-making that affects
his or her education must attend these meetings. Thus, while
such meetings may technically be “voluntary,” in practice
they are not. The First Amendment does not require students
to give up their right to participate in their educational system
or be rewarded for their school-related achievements as a
price for dissenting from a state-sponsored religious practice.
Lee, 505 U.S. at 593-94 (recognizing that, for elementary and
secondary school students, the government cannot force one
to choose between appearing to participate in state-sponsored
religious practice or protesting). As the presence of hundreds
of students, parents, teachers, and community members at the
Board‟s contentious August 24, 2004 meeting makes plain,
Board meetings are the site of community discussion about
school policies and events.
In this respect, we find the Sixth Circuit‟s discussion
of the role of school boards instructive. In Coles v. Cleveland
Board of Education, 171 F.3d 369, 371 (6th Cir. 1999), the
Court of Appeals confronted the same question we have
before us: “Are the prayers in question more like „school
prayers‟ prohibited by Lee or closer to „legislative prayer‟
permitted by Marsh?” The Sixth Circuit held that the purpose
and nature of the school board “remove[d] it from the logic in
Marsh and . . . place[d] it squarely within the history and
precedent concerning the school prayer line of cases.” Id. at
48
381. The court identified several features of the school
board‟s structure that distinguished it from a traditional
legislative body:
Although the school board, like many other
legislative bodies, is composed of publicly
elected officials drawn from the local
community, that is where the similarity ends. . .
. Simply stated, the fact that the function of the
school board is uniquely directed toward
school-related matters gives it a different type
of “constituency” than those of other legislative
bodies-namely, students. Unlike ordinary
constituencies, students cannot vote. They are
thus unable to express their discomfort with
state-sponsored religious practices through the
democratic process. Lacking a voice in the
electoral process, students have a heightened
interest in expressing their views about the
school system through their participation in
school board meetings. . . . .
[U]nlike officials of other legislative bodies,
school board members are directly
communicating, at least in part, to students.
They are setting policies and standards for the
education of children within the public school
system, a system designed to foster democratic
values in the nation‟s youth, not to exacerbate
and amplify differences between them. . . .
Meetings of the board serve as a forum for
students to petition school officials on issues
49
affecting their education. Simply put, students
do not sit idly by as the board discusses various
school-related issues. School board meetings
are therefore not the equivalent of galleries in a
legislature where spectators are incidental to the
work of the public body; students are directly
involved in the discussion and debate at school
board meetings.
Id. at 381-82.
We agree with the Sixth Circuit‟s analysis. The very
purpose of the Indian River School Board distinguishes it
from other deliberative bodies. For this reason, the fact that
other courts have extended Marsh to other legislative or
deliberative bodies is not relevant. See Pelphrey v. Cobb
Cnty., 547 F.3d at 1276 (county commission meetings);
Simpson v. Chesterfield Cnty. Bd. of Supervisors, 404 F.3d
276, 281 (4th Cir. 2005) (county board of supervisors);
Snyder, 159 F.3d at 1228 (city council).10
10
Other Courts of Appeals have also been cautious in
extending Marsh beyond legislative sessions. See, e.g.,
Coles, 171 F.3d at 381 (“As far as Marsh is concerned, there
are no subsequent Supreme Court cases. Marsh is one-of-a-
kind.”); Mellen v. Buntin, 327 F.3d 355, 370 (4th Cir. 2003)
(refusing to apply Marsh to daily “supper prayer” at state-
operated military college because “Marsh is applicable only
in narrow circumstances” and supper prayer at the military
institute “does not share Marsh‟s „unique history.‟”; Warner
v. Orange Cnty. Dep‟t of Prob., 115 F.3d 1068, 1076 (2d Cir.
1997) (expressing reluctance to apply Marsh to inmate‟s
compulsory participation in Alcoholics Anonymous program
50
We begin by noting that the District Court‟s reasoning
ignores Marsh‟s suggestion that the presence of children
would affect its calculus. In its historical analysis of
legislative prayer, the Marsh Court cited to several statements
and letters from the Founding Fathers, concluding that this
“interchange emphasizes that the delegates did not consider
opening prayers as a proselytizing activity or as symbolically
placing the government‟s official seal of approval on one
religious view.” 463 U.S. at 792 (internal citations and
quotations omitted). Yet the Court expressed a note of
caution: “Here, the individual claiming injury by the practice
is an adult, presumably not readily susceptible to religious
indoctrination, or peer pressure.” Id. (internal citations and
quotations omitted).
Moreover, although the Marsh Court referenced
“other” deliberative bodies, Marsh‟s entire approach rests on
the long-standing and “unique” history of legislative prayer.
There may be some truth to the District Court‟s conclusion
that, “nothing in Marsh . . . suggests that the Court intended
to limit its approval of prayer . . . to those [legislative and
deliberative bodies] that were in existence when the First
Amendment was adopted.” Id. at 537-38. However, at least
one Supreme Court decision after Marsh suggests that
Marsh‟s analysis is not suitable to public schools. In Edwards
v. Aguillard, 482 U.S. 578 (1987), the Court addressed the
question of whether Louisiana‟s “Creationism Act,” which
forbade the teaching of the theory of evolution in public
elementary and secondary schools unless accompanied by
because Marsh “relied heavily on the long tradition of public
prayer in the [legislative context]”).
51
instruction in the theory of “creation science,” violated the
Establishment Clause. Id. at 581-82. Explaining that the
appropriate legal test was Lemon, the Court warned that
Marsh‟s 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
Constitution was adopted.” Id.
We find additional support in the Supreme Court‟s
subsequent treatment of Marsh. The Court has consistently
emphasized the narrow, historical underpinnings of Marsh
and has proven reluctant to extend Marsh outside of its
narrow historical context. See, e.g., McCreary Cnty., Ky. v.
Am. Civil Liberties Union, 545 U.S. 844, 860 n.10 (2005)
(describing Marsh as a “special instance[]”); Allegheny, 492
U.S. at 603-05 (1989) (while Marsh recognized a “unique
history” of legislative prayer, it “plainly does not stand for the
sweeping proposition . . . that all accepted practices 200 years
old and their equivalents are constitutional today”); Wallace,
472 U.S. at 63 & n.5 (explaining that since Lemon was
adopted, only Marsh has been decided “without resort to [the]
three-pronged test” and Marsh was “based primarily on . . .
long historical practice”) (Powell, J., concurring). Only one
Supreme Court case has drawn extensively on Marsh‟s
historical analysis, and, even in that case, the Court ultimately
applied the Lemon test to determine that a city‟s display of
the nativity scene violated the Establishment Clause. See
Lynch v. Donnelly, 465 U.S. 668, 673-74 (1984).
Appellees argue that “to suggest that Board prayer
becomes unconstitutional simply because a handful of
students . . . attend a monthly meeting where a sixty-second
prayer is offered, is absurd.” Appellee Br. 31. This
52
overstatement does not reflect our holding.11 The “mere
presence” of students at a legislative session is not what
makes the Indian River policy unconstitutional. Our decision
is premised on careful consideration of the role of students at
school boards, the purpose of the school board, and the
principles underlying the Supreme Court‟s school prayer case
law. It does not endanger the centuries-long practice of
prayer at legislative sessions.12 We are tasked with
“protect[ing] freedom of conscience from subtle coercive
pressure in the elementary and public schools.” Lee, 505
U.S. at 592. In the public school context, the need to protect
students from coercion is of the utmost importance.
In sum, because we find that the type of potentially
coercive atmosphere the Supreme Court asks us to guard
against is present here, because of the nature of the
relationship between the Board and Indian River students and
schools, and in light of Marsh‟s narrow historical context, we
11
Moreover, we question whether the length of the prayer
would even be a relevant consideration. See Engel, 370 U.S.
at 436 (fact that 22-second prayer was “brief” or “general”
did not render it constitutional); see also Schempp, 374 U.S.
at 225 (“[I]t is no defense to urge that the religious practices
here may be relatively minor encroachments on the First
Amendment.”).
12
For the same reason, we reject the District Court‟s
conclusion that, if “the mere presence of school children were
enough to invalidate prayers in legislative and other
deliberative bodies,” then the practice of prayer “would be
unconstitutional in virtually every setting.”
53
hold that the District Court erred in applying the legislative
exception to the Indian River Prayer Policy.
V.
A. The Establishment Clause Tests
Having decided that this case is controlled by the
principles in Lee v. Weisman, we must next decide whether
the Indian River Policy violates the Establishment Clause.13
In this regard, we confront another threshold question—what
Establishment Clause “test” to apply. In the public school
context, the Supreme Court has been inclined to apply the
Lemon test. See Grand Rapids Sch. Dist. v. Ball, 473 U.S.
373, 383 (1985) (noting that the Court has “particularly relied
on Lemon in every case involving the sensitive relationship
between government and religion in the education of our
children”). However, we note that Lemon has “been the
subject of critical debate in recent years.” Am. Civil Liberties
Union of New Jersey v. Black Horse Pike Reg‟l Bd. of Educ.,
84 F.3d 1471, 1484 (3d Cir. 1996). “[I]ts continuing vitality
has been called into question by members of the Supreme
Court and by its noticeable absence from the analysis in some
of the Court‟s recent decisions.” Id.; see also Van Orden v.
Perry, 545 U.S. 677, 686 (2005) (describing Supreme Court‟s
reluctance to apply Lemon). Under Lemon, a three-part
inquiry determines whether a challenged government action is
13
In the District Court, both parties moved for summary
judgment. On appeal, there are no disputed issues of material
fact and the parties briefed the constitutionality of the Policy
under Lemon. Therefore, we find it appropriate to address
the merits of this issue.
54
constitutional under the Establishment Clause: “(1) whether
the government practice had a secular purpose; (2) whether its
principal or primary effect advanced or inhibited religion; and
(3) whether it created an excessive entanglement of the
government with religion.” 403 U.S. at 612-13.
The “endorsement test” advocated by Justice
O‟Connor in her concurrence in Lynch v. Donnelly, 465 U.S.
668 (1984), has emerged as an alternative. Under the
endorsement test, “[w]hat is crucial is that a government
practice not have the effect of communicating a message of
government endorsement or disapproval of religion.” Lynch,
465 U.S. at 692 (O‟Connor, J., concurring). This analysis
adopts the viewpoint of a “reasonable observer familiar with
the history and context of the display” and asks whether they
“would perceive the display as a government endorsement of
religion.” Borden v. Sch. Dist. of Twp. East Brunswick, 523
F.3d 153, 175 (3d Cir. 2008) (citing Modrovich v. Allegheny
Cnty., Pa., 385 F.3d 397, 400 (3d Cir. 2004)). The Supreme
Court applied the “endorsement test” in its most recent school
prayer case. Santa Fe, 530 U.S. at 308. The endorsement test
and the second Lemon prong are essentially the same. Black
Horse Pike, 84 F.3d at 1486 (“Whether „the endorsement test‟
is part of the inquiry under Lemon or a separate inquiry apart
from it, the import of the test is the same.”); see also
Freethought Soc. of Greater Philadelphia v. Chester Cnty.,
334 F.3d 247, 269 (3d Cir. 2003) (describing “effect” prong
of Lemon as a “cognate to endorsement”).
This Court has applied both tests. See Busch v.
Marple Newtown Sch. Dist., 567 F.3d 89, 100-01 (3d Cir.
2009) (applying Lemon); Borden, 523 F.3d at 175 (applying
endorsement test); Black Horse Pike, 84 F.3d at 1484
55
(applying Lemon but noting that it had been “the subject of
critical debate in recent years”). Because Lemon has not been
overruled, we will apply it here. However, as we have done
elsewhere, “[i]n light of the critique of the Lemon test,” we
will “also consider [the] claim that the [Board‟s Policy] fails
the „endorsement test.‟” Stratechuk v. Bd. of Educ., South
Orange-Maplewood Sch. Dist., 587 F.3d 597, 603 (3d Cir.
2009); see also Modrovich, 385 F.3d at 406 (“we will apply
both the endorsement test and the Lemon test, in case a higher
court prefers to apply the traditional Lemon test”).
B. The Lemon Test14
14
We find it useful to begin by commenting on one aspect of
the District Court‟s application of Marsh to the present case.
The District Court acknowledged that Doe felt “pressured” to
participate in the Board‟s prayer by bowing her head but
“nonetheless conclude[d] that” plaintiff‟s testimony “d[id] not
render the Board‟s Prayer Policy unconstitutional.” 685 F.
Supp.2d at 594. The Court also stated that “[p]laintiffs have
offered no evidence that any student has felt coerced or
pressured to participate in a prayer given during a public
Board meeting.” 685 F. Supp.2d at 594. We disagree with
this analysis. Plaintiff Doe clearly claimed that she felt
coerced into participating in the prayer. Therefore, the court
erred in relying on the absence of additional evidence of
injury to find the Board Prayer Policy constitutional. There is
no “de minimis” defense to a First Amendment violation.
Elrod v. Burns, 427 U.S. 347, 374 (1976) (“The loss of First
Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.”); see also
Schempp, 374 U.S. at 225 (“[I]t is no defense to urge that the
56
Proceeding under Lemon, “the challenged action is
unconstitutional if (1) it lacks a secular purpose, (2) its
primary effect is to either advance or inhibit religion, or (3) it
fosters an excessive entanglement of government with
religion. Modrovich, 385 F.3d at 401 (citing Lemon, 403
U.S. at 612-13).
1. The Secular Purpose Prong
“In applying the purpose [prong],” we ask “whether
government‟s actual purpose is to endorse or disapprove of
religion.” Wallace, 472 U.S. at 56 (internal quotations marks
omitted). Under Lemon, if the statute has some secular
purpose, then it survives the first prong. Freethought, 334
F.3d at 262 (“[T]he purpose prong of Lemon only requires
some secular purpose, and not that the purposes . . . are
exclusively secular.”) (quotations omitted). The stated
secular purpose, however, must be sincere and not a mere
sham. Edwards, 482 U.S. at 586.
The Board argues that the purpose of the Prayer Policy
is to “solemnify” its meetings, and thus that the Government
has a secular purpose in promoting prayer. We will not take
issue with the appellees‟ characterization of their policy,
which we note is “entitled to some deference.” Santa Fe, 530
U.S. at 308. However, even assuming the Board‟s primary
purpose is to solemnify the meetings, we nonetheless hold
that the Policy violates the Establishment Clause because, as
religious practices here may be relatively minor
encroachments on the First Amendment.”).
57
we determine below, its primary effect is to advance religion
and it fosters excessive government entanglement in religion.
See Stone v. Graham, 449 U.S. 39, 41 (1980) (“If a statute
violates any of these three principles [of Lemon], it must be
struck down under the Establishment Clause.”).
2. The Primary Effect Prong
Under the second prong of Lemon, a state‟s practice
“can neither advance, nor inhibit religion.” Black Horse Pike,
84 F.3d at 1486. This means that “regardless of its purpose,”
the government practice “cannot symbolically endorse or
disapprove of religion.” Busch, 567 F.3d at 100. As
explained earlier, the second prong of Lemon is akin, if not
identical, to the endorsement test. 15 Black Horse Pike, 84
F.3d at 1486. This Court “must determine whether, under the
totality of the circumstances, the challenged practice conveys
a message favoring or disfavoring religion.” Id. In doing so,
we adopt the viewpoint of the reasonable observer and may
take into account “the „history and ubiquity‟ of [the]
practice,” since it “„provides part of the context in which a
reasonable observer evaluates whether a challenged
governmental practice conveys a message of endorsement of
religion.‟” Id. (quoting Sch. Dist. of Grand Rapids v. Ball,
473 U.S. 373, 390 (1985)).
Appellees concede that the Prayer Policy has “the
incidental effect of advancing religion.” Appellee Br. 52.
15
For that reason, cases discussing both are useful. See, e.g.,
Stratechuk, 587 F.3d at 606 (using case law and language
describing the endorsement test to set forth the “effect prong”
of the Lemon test).
58
They argue nonetheless that there is “no evidence from which
a reasonable observer could conclude that advancing religion
is the prayer policy‟s primary effect.” Rather, the primary
purpose of the Policy is to solemnify the Board‟s
proceedings. For the two reasons that follow, we find that the
Policy impermissibly endorses religion.
First, the largely religious content of the prayers would
suggest to a reasonable person that the primary effect of the
Policy is to promote Christianity. Of course, by its very
terms, the Policy permits references to any religious figure
and allows non-sectarian prayer. As discussed earlier, the
majority of the prayers delivered by the Board are—by the
Board Members‟ own admission—sectarian. Only
occasionally have Board Members used this opportunity to
propose a moment of silence. These prayers therefore
constitute “religious activity.” Lee, 505 U.S. at 603
(Blackmun, J., concurring) (“In the words of Engel, the
Rabbi‟s prayer „is a solemn avowal of divine faith and
supplication for the blessings of the Almighty. The nature of
such a prayer has always been religious.‟”) (citation omitted).
We will again cite to the following example as an illustration:
Dear Heavenly Father, among Your many
blessings, we thank You for the beautiful
summer weather and especially for the much
needed rain. We thank You also for the
wonderful school year that has just ended with
so many successes, awards, and
accomplishments of our students and staff once
again. We ask Your continued blessings on
those among us who have devoted so much
time, energy, and expertise to the betterment of
59
this district and who are now stepping down.
Given them peace, health, and happiness in the
days to come. Be with our people who have
suffered illness or injury this year, and grant
them a quick return to normal life. Comfort the
families of those who are lost to us and give
them strength in their time of grief. Protect all
who are here and return them to us safely in the
fall. We ask that You continue to guide and
direct us in . . . our decision-making, so that
every child in this district receives the
educational skills to be all he/she can be. We
ask these things and all others in the name of
Jesus Christ, our Lord. Amen.
Indian River, 685 F. Supp. 2d at 547.
Given that the prayers recited are nearly exclusively
Christian in nature, including explicit references to God or
Jesus Christ or the Lord, we find it difficult to accept the
proposition that a “reasonable person” would not find that the
primary effect of the Prayer Policy was to advance religion.
Appellees maintain that the purpose and effect of the
prayer is to solemnify the meetings. It is true, as the previous
example reveals, that the prayers ask for guidance on school-
related matters. In this respect the Indian River policy is
similar to the policy the Supreme Court considered in Santa
Fe, whose stated purpose was also to “solemnize the event.”
530 U.S. at 306. The Court acknowledged that “[a] religious
message is the most obvious method of solemnizing an
event.” Santa Fe, 530 U.S. at 306. However, the fact that the
purpose of the policy is to solemnify the Board meetings does
60
not mean that it does not also impermissibly endorse religion.
The two are separate components of our inquiry. See Borden,
523 F.3d at 177-78 (“First, the inquiry is not whether Borden
intends to endorse religion, but whether a reasonable
observer, with knowledge of the history and context of the
display, would conclude that he is endorsing religion.”). The
second prong of the Lemon test asks us to adopt the
viewpoint of a reasonable observer, regardless of what
purpose the Board might have had. In light of that obligation,
we find that a reasonable observer would view the content of
the Board‟s prayers as promoting religion.16
We are also instructed to consider the “history and
ubiquity” of the challenged practice in assessing how a
reasonable person would view it. Our decision in Borden
showcases the significance of the history and context of a
contested practice to its constitutionality. In Borden, we
tackled the head high school football coach‟s practice of
“engag[ing] in the silent act[] of bowing his head during his
team‟s pre-meal grace and taking a knee with his team during
a locker-room prayer.” Id. at 158. Borden, who had been the
16
Since enacting the Policy, the Board recites a disclaimer
prior to delivering the prayer (although the disclaimer is not
mandated by the Policy). However, the disclaimer does not
render the Board‟s practice constitutional. See Black Horse
Pike, 84 F.3d at 1482 (“The disclaimer required . . . does help
to recapture some of the separation between church and state
that has been obscured by the state‟s control over the
graduation. However, the Board cannot sanction coerced
participation in a religious observance merely by disclaiming
responsibility for the content of the ceremony.”).
61
head football coach since 1983, had a long history of
engaging in similar conduct:
For twenty-three years, Borden led the team in a
pre-game prayer in the locker room. During that
same period of time, Borden orchestrated a pre-
meal grace for his team. He originally had a
chaplain conduct the pre-meal grace. This
practice changed only after school officials
asked him to stop; then he had the chaplain
write the grace and he selected seniors on the
team to recite it. Additionally, during at least
three seasons, Borden led the team in the first
prayer of the season. Both of these activities,
the locker room preparations and the pre-game
meals, were school-sponsored events.
Id. at 176. Relying in part on “the history of Borden‟s
conduct with the team‟s prayers” we found that “his acts
cross the line and constitute an unconstitutional endorsement
of religion.” Id. at 178. We drew support from Santa Fe,
where in addressing the constitutionality of a prayer recited
over loud speakers at football games, the Supreme Court
“considered the many years of pre-game prayers at the
school, and the evolution of the policy, including the name
„Prayer at Football Games‟ and its stated purpose.” Id. at 176
(citing Santa Fe, 530 U.S. at 308-09).
The history and context of the Indian River Policy is
similarly revealing. Prayer in school and at school events has
been a contentious issue in the Indian River School District
for some time. In fact, the Board‟s decision to write an
official prayer policy grew out of this debate and efforts to
62
stall a possible civil action against the Board. The original
event to kindle this heated debate was the Indian River
School District‟s policy of permitting official prayer at school
graduations. While that claim eventually settled, the
underlying events inform our understanding of the history of
prayer in the District. In 2004, recall, the School District
invited a pastor to recite an “invocation and benediction” at
one of the district high school graduation ceremonies. Indian
River, 685 F. Supp. 2d at 528. The benediction “explicitly
invoked Jesus Christ. For example, in the benediction,
Reverend Fike stated: „Heavenly Father . . . direct
[graduates] into the truth, and eventually the truth that comes
by knowing Jesus.‟” Id.
Mona Dobrich, one of the original plaintiffs,
complained about the prayer during the Board‟s regularly-
scheduled meeting on June 14, 2004. Id. at 529. Dobrich‟s
complaint garnered significant media attention from
Delaware newspapers. News that the ACLU was threatening
to sue the District spread quickly and the complaint was
widely reported by the local news media. At the Board‟s July
27, 2004 meeting, “[t]hirteen residents, including five
religious leaders, spoke up both for and against allowing
prayer at the district‟s functions, particularly graduation
ceremonies.”17 JA 81. “[M]ore than 100 people attended [the
meeting] with the majority interpreting Dobrich‟s request as a
move to stifle their religious freedom and to degrade the
moral fiber of the community.” JA 81. One newspaper
described some of the comments made:
17
A different newspaper report stated that 11 people made
statements.
63
Pastor Richard Blades . . . spoke of Biblical
mandate for prayer in Jesus‟ name, adding, “our
school district has prayed in Jesus‟ name for
many, many years.” Pastor Marvin Morris
received hardy applause after suggesting doing
away with prayer will lead to an erosion of [the]
community‟s foundations. Another offered the
opinion that if it hadn‟t been for prayer, the
school district could be in a greater mess than it
currently is.
Those on the other side of the debate argued for
tolerance and acceptance of all faiths . . . .
Mona Dobrich, the Jewish mother who first
brought the issue to the public‟s attention, read
a prepared speech, charging the district with a
legal obligation to do away with secular prayer.
JA 81.
The Board grew concerned that it would be the subject
of a lawsuit. Dobrich, 380 F. Supp. 2d at 371. The District
Court explained what happened next:
On August 23, 2004, the Board convened a
special meeting to discuss prayer at the
beginning of Board meetings. According to the
minutes of that session, which lasted several
hours, “several board members expressed that
their constituents d[id] not want the Board to
change its practice of opening the meetings with
a prayer.”
64
Indian River, 685 F. Supp. 2d at 529. The Board‟s
next regularly-scheduled meeting took place the next
day. This meeting:
attracted more than twice the attendance of a
typical public meeting. At the beginning of the
meeting, then-Board President Walls asked
Board Member Hattier to “lead the Board in a
moment of prayer.” Several members of the
crowd applauded. President Walls gaveled the
room back to order. [Board] Member Hattier
then gave [another prayer]. . . . . During the
portion of the meeting devoted to public
comments, several attendees spoke in favor of
continuing the practice of having an invocation
at public school graduations and other school
events.
Id.
A newspaper reported that approximately 800 people
attended the meeting, “a majority . . . [of whom] supported
the board‟s decision to open with prayer and continue the
practice at commencement.” JA 202. Jane Doe testified that
attendees were shouting “Amen” and “hallelujah” during the
meeting. JA 135. The newspaper article confirmed this:
attendees “shouted out „Amen‟ or „Praise Jesus‟ after
scripture passages were quoted during the public comment
period.” JA 202. The article goes on to describe the
attendees holding signs reading “Jesus is the Light of the
Word” and “Let us Pray, God is Listening.” JA 202. In
addition, “[l]ocal churches and community members
65
organized a prayer vigil before the meeting.” JA at 203. One
community member “present[ed] the board with a petition
signed by 320 people who want to see prayer continued at
graduation.” JA at 203. The meeting was also attended by
several state representatives. During the public comment
period, one of them stated to the Board, “You have the public
behind you . . . If you do not do the right thing, the public will
take you out, not the ACLU.” JA 87. Board Member Bireley
conceded that the vast majority of comments at the meeting
were “probably” intended to be intimidating to opponents of
school board prayer. JA 415.
This history is illuminating. This sequence of events
shows that the Board‟s Prayer Policy is closely linked to the
desire to maintain prayer at Indian River school events,
including at graduations. After all, it was in response to this
community uproar that the Board was compelled to draft a
formal Prayer Policy. Indian River, 685 F. Supp. 2d at 529.
These events also show how the public viewed the prayer
issue. As exemplified by the August 24, 2004 meeting, there
was clearly broad support among community members for the
practice of prayer at the School Board meetings and District
graduations. Not only did most of the attendees support the
Board‟s practice, but their conduct reveals that in the minds
of many, the issue of prayer at the Board meetings and
graduations was closely intertwined with religion. In Board
Member Helms‟s words, “it was apparent to me that not only
did they want to take away prayer before graduation, but they
wanted to take my right to pray at a Board meeting.” JA 767.
The Policy was drafted in order to safeguard against a
potential lawsuit challenging the Board‟s unwritten practice
of praying at every public meeting. The Policy was also
drafted in an atmosphere of contention and hostility towards
66
those who wanted prayers to be eliminated from school
events. A reasonable person aware of this history would
conclude that the primary effect of the Board‟s Policy was to
endorse religion.
3. The Excessive Entanglement Prong
Part three of the Lemon test provides that government
conduct may “not foster an excessive government
entanglement with religion.” Lemon, 403 U.S. at 613. “[T]o
assess entanglement, we have looked to „the character and
purpose of the institutions that are benefitted, the nature of the
aid that the State provides, and the resulting relationship
between the government and religious authority.‟” Agostini
v. Felton, 521 U.S. 203, 233 (1997) (quoting Lemon, 403
U.S. at 615). We must also bear in mind that “excessive
entanglement” “requires more than mere „[i]nteraction
between church and state,‟ for some level of interaction has
always been „tolerated.‟” Child Evangelism Fellowship of
N.J. Inc. v. Stafford Twp. Sch. Dist., 386 F.3d 514, 534 (3d
Cir. 2004) (Alito, J.) (quoting Agostini, 521 U.S. at 233).
Several institutional aspects of the recitation of the
prayer are troubling. The prayers are not spontaneous, but a
formal part of the Board‟s activities. The Board explicitly
decided that a prayer or a moment of silence should be part of
every School Board meeting. The “decis[ion] that an
invocation and a benediction should be given . . . is a choice
attributable to the State.” Lee, 505 U.S. at 587. That level of
“involvement,” the Supreme Court cautions, is “troubling.”
Id. In this case, the Policy resulted from, and was sanctioned
by, the Board‟s institutional authority in that it was enacted
through a vote.
67
Second, the prayers are recited in official meetings that
are completely controlled by the state. The Board sets the
agenda for the meeting, chooses what individuals may speak
and when, and in this context, recites a prayer to initiate the
meeting. Thus, the circumstances surrounding the prayer
practices suggest excessive government entanglement.
The practice and the Prayer Policy bear two additional
hallmarks of state involvement: the Board composes and
recites the prayer. Government participation in the
composition of prayer is precisely the type of activity that the
Establishment Clause guards against. See Lee, 505 U.S. at
590 (“[O]ur precedents do not permit school officials to assist
in composing prayers as an incident to a formal exercise for
their students.”). In this case, the Board always composes the
prayers recited at the public meetings. Per the Policy‟s stated
terms, only Board Members are permitted to “offer a prayer
or request a moment of silence.” The Policy ensures that a
prayer or moment of silence is offered at every meeting, since
the duty rotates in the case that a member declines to
“exercise this opportunity.” Unsurprisingly, Board Members
who volunteer for this duty take their responsibility seriously,
carefully choosing the words and message they wish to
deliver.
The composition of the prayer is “a hallmark of state
involvement.” See Adler v. Duval Cnty. Sch. Bd., 250 F.3d
1330, 1337 (11th Cir. 2001) (“The ability to regulate the
content of speech is a hallmark of state involvement.”). The
Supreme Court has found that when government has been
involved in the composition of prayer recited in front of
students, this violates the principles of the Establishment
68
Clause. In Engel, the Supreme Court struck down a school
prayer that was composed by New York State officials. The
Court found it significant that the “prayer was composed by
government officials as part of a governmental program to
further religious beliefs.” Engel, 370 U.S. at 425. At the very
least, the Court explained, “the constitutional prohibition
against laws respecting an establishment of religion must . . .
mean that in this country it is no part of the business of
government to compose official prayers for any group of the
American people to recite as a part of a religious program
carried on by government.” Id. In Lee, the Court again drew
attention to the excessive control of the state over the content
of the prayer, explaining that “[t]he State‟s role did not end
with the decision to include a prayer and with the choice of a
clergyman. [The principal] provided [the rabbi] with a copy
of the „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 prayers.”
505 U.S. at 588. Citing Engel, the Lee Court confirmed that
the government could play “no part” in the composition of
“official prayers.” Id.
Another element of the Policy revealing excessive
entanglement is that the Board recites the prayer. In doing so,
the state‟s involvement goes further than in Santa Fe, where
the student body elected a student volunteer, and in Engel,
where students recited a prayer composed by the state.
Because of the Board President‟s procedure for implementing
the Policy, there is never a meeting where a prayer or a
moment of silence is not given.
These circumstances are akin to those considered by
the Fourth Circuit in Mellen v. Bunting, where the Court of
69
Appeals tackled the constitutionality of a daily prayer recited
before dinner at a state military college. 327 F.3d 355 (4th
Cir. 2003). In Mellen, the prayer was delivered by a chaplain
employed by the state, and thus, as in this case, the
government both composed and recited the prayer. The
Fourth Circuit found that the military college‟s prayer policy
was unconstitutional under the Lemon test. In assessing the
“excessive entanglement” prong, the court found that the state
“composed, mandated, and monitored a daily prayer for its
cadets” and that, in doing so, “[the school] has taken a
position on what constitutes appropriate religious worship—
an entanglement with religious activity that is forbidden by
the Establishment Clause.” Id. at 375. “[T]he Establishment
Clause prohibits a state from promoting religion by authoring
and promoting prayer for its citizens.” Id.
Coles is also instructive. The Sixth Circuit found that
the school board practice of reciting a prayer at every meeting
violated all three prongs of the Lemon test. Discussing the
excessive entanglement prong, the Court of Appeals found
the board‟s involvement “indistinguishable from the situation
in Lee.” Coles, 171 F.3d at 385. The following features
revealed the imprimatur of the state: “The school board
decided to include prayer in its public meetings, chose which
member from the local religious community would give those
prayers, and has more recently had the school board president
himself compose and deliver prayers to those in the
audience.” Id.
The Board directs us to four aspects of the Prayer
Policy which, in its view, show that there is no excessive
entanglement. First, the Board Policy permits all types of
prayers. Second, all Board Members are permitted to “lead
70
the group in accordance with his own conscience.” Appellee
Br. 52. Third, Board Members and the public are not
required to participate in the prayer—“[t]hey are free to
listen, to stand in respectful silence, or simply to think of
something else. Those who are truly bothered . . . may
temporarily leave.” Appellee Br. 53. Fourth, the Policy does
not require the expenditure of public funds.
We are not persuaded that these elements of the prayer
practice disentangle the Board from its involvement in
religion. While it is true that Board Members have significant
flexibility in deciding what the prayer should say, they are
still government actors composing and delivering prayer.
Moreover, the record shows that for the most part, the prayers
recited refer to one particular faith. We earlier rejected the
Board‟s argument that a student‟s ability to dissent from the
prayer transforms the practice into a constitutional one.
Finally, we have never required that public spending be an
element of excessive state entanglement in religion.
In short, the indicia of state involvement in the Board‟s
Prayer Policy are overwhelming. Therefore, we find that the
Board‟s complete control over the Policy, combined with its
explicit sectarian content, rises above the level of interaction
between church and state that the Establishment Clause
permits.
C. The Endorsement Test
The endorsement test is essentially “the same” as the
second Lemon prong. Black Horse Pike, 84 F.3d at 1486.
Because of the reasons we set forth for finding that the Policy
71
did not survive the “effect prong” of Lemon, we also find that
the Policy fails under the endorsement test.
V.
If the history of this litigation has shown us anything,
it is that the proper role of prayer in the Indian River school
system has been the subject of sincere and passionate debate.
Yet “[t]he question is not the good faith of the school in
attempting to make the prayer acceptable to most persons, but
the legitimacy of its undertaking that enterprise at all.” Lee,
505 U.S. at 588-89. In arriving at this outcome, we
recognize, as the Supreme Court has, that “religion has been
closely identified with our history and government.”
Schempp, 374 U.S. at 212. But we take to heart the
observation in Engel that “[i]t is neither sacrilegious nor
antireligious to say that each separate government in this
country should stay out of the business of writing or
sanctioning official prayers and leave that purely religious
function to the people themselves.” 370 U.S. at 435. In this
regard, the Indian River School Board Prayer Policy rises
above the level of interaction between church and state that
the Establishment Clause permits.
For the reasons above, we will reverse the District
Court and grant summary judgment in favor of appellants.
72