Jones v. Clear Creek Independent School Dist.

United States Court of Appeals,

Fifth Circuit.

No. 89–2638.

Merritt E. JONES, on his behalf and as next friend of Pamela Jones, a child, et al.,
Plaintiffs–Appellants,

v.

CLEAR CREEK INDEPENDENT SCHOOL DISTRICT, Defendant–Appellee.

Nov. 24, 1992.

Appeal from the United States District Court for the Southern District of Texas.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before REAVLEY, GARWOOD and BARKSDALE, Circuit Judges.

REAVLEY, Circuit Judge:

In Jones v. Clear Creek Independent School Dist., 930 F.2d 416 (5th Cir.1991) (Jones I ),

vacated, 505 U.S. ––––, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992), we hel d that Clear Creek

Independent School District's Resolution1 permitting public high school seniors to choose student

volunteers to deliver nonsectarian, nonproselytizing invocations at their graduation ceremonies does

not violate the Constitution's Establishment Clause. In applying the tripartite test of Lemon v.

Kurtzman, 403 U.S. 602, 612–13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971), we reasoned that

the Resolution has a secular purpose of solemnization, that the Reso lution's primary effect is to

impress upon graduation attendees the profound so cial significance of the occasion rather than

advance or endorse religion, and that Clear Creek does not excessively entangle itself with religion

1
The Resolution provides:

1. The use of an invocation and/or benediction at high school graduation exercise
shall rest within the discretion of the graduating senior class, with the advice and
counsel of the senior class principal;

2. The invocation and benediction, if used, shall be given by a student volunteer;
and

3. Consistent with the principle of equal liberty of conscience, the invocation and
benediction shall be nonsectarian and nonproselytizing in nature.
by proscribing sectarianism and proselytization without prescribing any form of invocation. Jones

I, 930 F.2d at 419–23.

Then, in Lee v. Weisman, 505 U.S. ––––, 112 S.Ct. 2649, 120 L.Ed.2d 467, 60 U.S.L.W.

4723 (1992), the Supreme Court held that Robert E. Lee, a public-school principal acting in accord

with the policy of his Providence, Rhode Island school district, violated the Establishment Clause by

inviting a local clergy member, Rabbi Leslie Gutterman, to deliver a nonsectarian, nonproselytizing

invocation at his school's graduation ceremony. The Court reasoned that Lee's actions represent

governmental coercion to participate in religious activities, a paradigmatic establishment of religion.

The Court then granted certiorari in this case, vacated our judgment, and remanded it to us for further

consideration in light of Lee. Jones v. Clear Creek Independent School Dist., 505 U.S. ––––, 112

S.Ct. 3020, 120 L.Ed.2d 892 (1992). Upon reconsideration, we hold that Lee does not render Clear

Creek's invocation policy unconstitutional, and again affirm the district court's summary judgment in

Clear Creek's favor.

I. THE SUPREME COURT TELLS THIS COURT WHAT THE ESTABLISHMENT CLAUSE
MEANS

Of the six forms of argument recognized in constitutional interpretation,2 it is the doctrinal

argument s that control Establishment Clause cases.3 Although the Supreme Court's

doctrinally-centered manner of resolving Establishment Clause disputes may be credited with

accommodating a society of remarkable religious diversity, it requires considerable micromanagement

of government's relationship to religion as the Court decides each case by distilling fact-sensitive rules

from its precedents.

For example, in Lynch v. Donnelly, 465 U.S. 668, 681–82, 104 S.Ct. 1355, 1363–64, 79

L.Ed.2d 604 (1984), the Court compared the effect that a city's display of a nativity scene had on the

advancement or endorsement of religion to the effect of governmental actions that it had considered

2
See PHILIP BOBBITT, CONSTITUTIONAL FATE 7, 93–94 (1982) (defining six categories of
legitimate constitutional argument: historical, textual, structural, prudential, doctrinal, and
ethical).
3
See PHILIP BOBBITT, CONSTITUTIONAL INTERPRETATION 18–20 (1991) (employing an
Establishment Clause hypothetical to explain doctrinal argument).
in previous cases, and concluded that display of the nativity scene did not violate the Establishment

Clause. Id. at 687, 104 S.Ct. at 1366. Then, in County of Allegheny v. ACLU, 492 U.S. 573,

598–600, 109 S.Ct. 3086, 3103–05, 106 L.Ed.2d 472 (1989), the Court held that a county's display

of a nativity scene violated the Establishment Clause because, inter alia, it was surrounded by flora,

instead of Santa Claus and reindeer as was the nativity scene at issue in Lynch.4

The Court has repeatedly held that the Establishment Clause forbids the imposition of religion

through public education. That leads to difficulty because of public schools' responsibility to develop

pupils' character and decisionmaking skills, a responsibility more important in a society suffering from

parental failure. If religion be the foundation, or at least relevant to these functions and to the

education of the young, as is widely believed, it follows that religious thought should not be excluded

as irrelevant to public education. There is a deep public concern that radical efforts to avoid

pressuring children to be religious actually teach and enforce notions that pressure the young to avoid

all that is religious.5

Nevertheless, it is neither our object nor our place to opine whether the Court's Establishment

Clause jurisprudence is good, fair, or useful. What the Establishment Clause finally means in a

specific case is what the Court says it means. We sit only to apply the analytical methods sanctioned

by the Court in accord with its precedent.

II. FROM LEMON TO LEE

In Jones I, we applied Lemon's tripartite test 6 rather than the historical approach that the

Court employed in Marsh v. Chambers, 463 U.S. 783, 792, 103 S.Ct. 3330, 3336, 77 L.Ed.2d 1019

(1983). Jones I, 930 F.2d at 419 (citing Grand Rapids School Dist. v. Ball, 473 U.S. 373, 383, 105

4
Some say that the Court has thus found a "three plastic animals rule" in the Constitution.
Michael W. McConnell, Religious Freedom at a Crossroads, 59 U.CHI.L.REV. 115, 127 (1992).
5
See Board of Educ. of Westside Community Schools v. Mergens, 496 U.S. 226, 248, 110
S.Ct. 2356, 2371, 110 L.Ed.2d 191 (1990) ("if a State refused to let religious groups use facilities
open to others, then it would demonstrate not neutrality but hostility toward religion").
6
Lemon holds that, to satisfy the Establishment Clause, "a governmental practice must (1)
reflect a clearly secular purpose; (2) have a primary effect that neither advances nor inhibits
religion; and (3) avoid excessive government entanglement with religion." Lee, ––– U.S. at
––––, 112 S.Ct. at 2654 (citations omitted).
S.Ct. 3216, 3222 (1985), and Edwards v. Aguillard, 482 U.S. 578, 583 n. 4, 107 S.Ct. 2573, 2577

n. 4, 96 L.Ed.2d 510 (1987)). The Lee Court agreed that Marsh's historical analysis is inappropriate,

––– U.S. at ––––, 112 S.Ct. at 2660, yet it considered Lemon analysis unnecessary to decide whether

Lee violated the Establishment Clause.7 The Court instead held Lee's actions unconstitutional under

a coercion analysis. Id. ––– U.S. at ––––, 112 S.Ct. at 2655. At least four Justices would also hold

that Lee's actions had the effect of unconstitutionally endorsing religion. Id. ––– U.S. at ––––, 112

S.Ct. at 2665 n. 9 (Blackmun, J., concurring), at ––––, 112 S.Ct. at 2671–72 (Souter, J., concurring).

Thus, in the time between Lemon and Lee, the Court has used five tests to determine whether

public schools' involvement with religion violates the Establishment Clause. To fully reconsider this

case in light of Lee, we reanalyze the Reso lution under all five tests that the Court has stated are

relevant.8 We address any statements in Lee that bear on our analysis in Jones I and apply Lee's

coercion test for the first time.

A. SECULAR PURPOSE

Nothing in Lee abrogates our conclusion that the Resolution has a secular purpose of

solemnization, and thus satisfies Lemon's first requirement. See Jones I, 930 F.2d at 419–21. The

Resolution represents Clear Creek's judgment that society benefits if people attach importance to

graduation. A meaningful graduation ceremony can provide encouragement to finish school and the

inspiration and self-assurance necessary to achieve after graduation, which are secular objectives.

The Lee Court stated that the Providence school district's solemnization argument would

7
The Court stated:

We can decide th[is] case without reconsidering the general constitutional
framework by which public schools' efforts to accommodate religion are measured.
Thus we do not accept the invitation of [Lee] and amicus the United States to
reconsider our decision in Lemon....

Id. ––– U.S. at ––––, 112 S.Ct. at 2655; but cf. id. ––– U.S. at ––––, 112 S.Ct. at 2685
(Scalia, J., dissenting) (equating Court's neglect of Lemon with rejection).
8
See Lynch, 465 U.S. at 679, 104 S.Ct. at 1362 (Establishment Clause "erects a "blurred,
indistinct, and variable barrier depending on all the circumstances of a particular relationship' "
and Court is "unwilling[ ] to be confined to any single test or criterion in this sensitive area")
(citations omitted); Lee, ––– U.S. at ––––, 112 S.Ct. at 2661 ("Establishment Clause
jurisprudence remains a delicate and fact sensitive one").
have "considerable force were it not for the constitutional constraints applied to state action...." –––

U.S. at ––––, 112 S.Ct. at 2660. The Court did not question its members' previous

acknowledgements that solemnization is a legitimate secular purpose of ceremonial prayer. See

Allegheny, 492 U.S. at 595 n. 46, 109 S.Ct. at 3102 n. 46; id. at 630, 109 S.Ct. at 3120–21

(O'Connor, J., concurring); Lynch, 465 U.S. at 693, 104 S.Ct. at 1369–70 (O'Connor, J.,

concurring); see also Engel v. Vitale, 370 U.S. 421, 435 n. 21, 82 S.Ct. 1261, 1269 n. 21, 8 L.Ed.2d

601 (1962). Thus, we take the Lee Court to agree with our holding in Jones I that a law may pass

Lemon's secular-purpose test by solemnizing public occasions, yet still be stricken as an

unconstitutional establishment under another test mandated by the Court. See Jones I, 930 F.2d at

420.

B. PRIMARY EFFECT

In Jones I, we held that the Resolution's primary effect was to solemnize graduation

ceremonies, not to "advance religion" in contravention of Lemon's second requirement. 930 F.2d at

421–22. Lee calls into question three statements that we made in support of our advancement

holding. We stated that graduating high school seniors would be less easily influenced by prayer than

would be their junior schoolmates, id. at 421, but the Court held that all students under school

supervision would be unduly influenced by Rabbi Gutterman's prayers. Lee, ––– U.S. at ––––, 112

S.Ct. at 2658. We distinguished the graduation setting from the classroom setting because parents

and guests are present only at graduation and school officials can pay much greater attention to

individual students in the classroom than at graduation, Jones I, 930 F.2d at 422, but the Court stated

that the two settings are "analogous." Lee, ––– U.S. at ––––, 112 S.Ct. at 2660. We stated that the

brevity and infrequency of the permissible prayers under the Resolution tempered any advancement

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

prayers at issue in Lee. ––– U.S. at ––––, 112 S.Ct. at 2659.

Lee commands that we not rely on these three points in deciding whether the Resolution's

primary effect is to advance religion. Yet even without them, we remain convinced that the

Resolution's primary effect is to solemnize graduation ceremonies.
 The Resolution can only advance religion by increasing religious conviction among graduation

attendees, which means attracting new believers or increasing the faith of the faithful. Its requirement

that any invocation be nonsectarian and nonproselytizing minimizes any such advancement of religion.

The Lee Court held that the nonsectarian nature of the prayers there at issue did not change the fact

that Lee directed graduation attendees to participate in a religious exercise. ––– U.S. at ––––, 112

S.Ct. at 2656; see also id. at ––––, 112 S.Ct. at 2667–71 (Souter, J. concurring). Nevertheless, the

nonsectarian nature of a prayer remains relevant to the extent to which a prayer advances religion.

The fact that Lemon only condemns government action that has the primary effect of

advancing religion, see Lemon, 403 U.S. at 612, 91 S.Ct. at 2111, requires us to compare the

Resolution's secular and religious effect. The Resolution may or may not have any religious effect.

The students may or may not employ the name of any deity; heads may or may not be bowed;

indeed, an invocation may or may not appear on the program. If the students choose a

nonproselytizing, nonsectarian prayer, the effect may well marshall attendees' extant religiosity for

the secular purpose of solemnization; but no one would likely expect the advancement of religion

by the initiation or increase of religious faith through these prayers. The Resolution's primary effect

is secular.

C. ENTANGLEMENT

We held in Jones I that the Resolution's proscription of sectarianism does not, of itself,

excessively entangle government with religion. We know of no authority that holds yearly review

of unsolicited material for sectarianism and proselytization to constitute excessive entanglement. Cf.

Weisman v. Lee, 908 F.2d 1090, 1095 (1st Cir.1990) (Bownes, J., concurring) (finding excessive

entanglement where school district directs that a prayer be given, chooses a clergy member to deliver

the prayer, and requests that prayer be nonsectarian and nonproselytizing), aff'd, ––– U.S. ––––, 112

S.Ct. 2649, 120 L.Ed.2d 467 (1992); id., at ––––, 112 S.Ct. at 2617 (Souter, J. concurring) (state

decisions as to sectarianism constitute illicit comparative theology). Moreover, nothing in Lee

abrogates our reading of the Court's ent anglement precedent to limit violative entanglement to

institutional entanglement. Jones I, 930 F.2d at 423 (citing, inter alia, Lynch, 465 U.S. at 689, 104
S.Ct. at 1368 (O'Connor, J., concurring)). That a rabbi wrote and delivered the prayer at issue in Lee

makes entanglement analysis relevant to that case, but the Resolution keeps Clear Creek free of all

involvement with religious institutions.

D. ENDORSEMENT

Like Lemon's advancement test, the Court's endorsement analysis focuses on the effect of a

challenged go vernmental action. This is why, perhaps mistakenly, we conflated advancement and

endorsement analysis in Jones I. Because the Court has never tolerated a government endorsement

of religion that is incidental to a primary secular effect, as it has with incidental religious

advancements, we will not now compare endorsement to legitimate effects of the Resolution. See

Allegheny, 492 U.S. at 595 & n. 46, 109 S.Ct. at 3102 & n. 46 (Justice Blackmun, writing for himself

and Justice Stevens, rejects any and all government endorsement of religion).

From the Court's various pronouncements, we understand government to unconstitutionally

endorse religion when a reasonable perso n would view the challenged government action as a

disapproval of her contrary religious choices. See Lee, ––– U.S. at ––––, 112 S.Ct. at 2665 n. 9

(Blackmun, J., concurring) (unconstitutional endorsement when "government makes adherence to

religion relevant to a person's standing in the political community") (quoting Wallace v. Jaffree, 472

U.S. 38, 69, 105 S.Ct. 2479, 2496, 86 L.Ed.2d 29 (1985) (O'Connor, J., concurring)); Allegheny,

492 U.S. at 631, 109 S.Ct. at 3121 (O'Connor, J., concurring) ("The question under endorsement

analysis ... is whether a reasonable observer would view [government action] as a disapproval of his

or her particular religious choices....").

We may compare the Resolution to the facts in two somewhat similar cases where members

of the Court discussed endorsement of religion. Both Lee concurrences consider invocations directed

by Lee to be unconstitutional endorsements of religion. ––– U.S. at ––––, 112 S.Ct. at 2665–66

(Blackmun, J., concurring); id. at ––––, 112 S.Ct. at 2677–78 (Souter, J., concurring). These

concurrences attracted the votes of four Justices,9 including Justice O'Connor, who first articulated

9
Justice Kennedy, writing for the Court, took no position on endorsement in Lee. Justice
Scalia, writing for the four dissenters, found no endorsement on the facts in Lee. Id. ––– U.S. at
––––, 112 S.Ct. at 2683–84 (Scalia, J., dissenting).
the endorsement test for the Court in Lynch, 465 U.S. at 688–89, 104 S.Ct. at 1367 (O'Connor, J.,

concurring). On the other hand, a plurality of the Court recently held that a public school does not

unconstitutionally endorse religion by permitting a Christian club to meet on school grounds after

class and recruit members through the school's newspaper, bulletin boards, public address system, and

annual Club Fair, as long as the school accords equal privileges to other noncurriculum-oriented

student organizations. See Board of Educ. of Westside Community Schools v. Mergens, 496 U.S.

226, 247–53, 110 S.Ct. 2356, 2370–73, 110 L.Ed.2d 191 (1990).

To compare the Resolution with Lee and Mergens, we consider exactly what it does. Unlike

the policy at issue in Lee, it does not mandate a prayer. The Resolution does not even mandate an

invocation; it merely permits one if the seniors so choose. Moreover, the students present Clear

Creek with their proposed invocation under the Resolution, while in Lee the school explained its idea

for an invocation to a member of an organized religion and directed him to deliver it. ––– U.S. at

––––, 112 S.Ct. at 2652–53. The Resolution is passive compared to the governmental overture

toward religion at issue in Lee.

Concerning endorsement, the instant case more closely parallels Mergens because a

graduating high school senior who participates in the decision as to whether her graduation will

include an invocation by a fellow student volunteer will understand that any religious references are

the result of student, not government, choice. The Mergens plurality states the point directly:

there is a crucial difference between government speech endorsing religion, which the
Establishment Clause forbids, and private speech endorsing religion, which the Free Speech
and Free Exercise Clauses protect. We think that secondary school students are mature
enough and are likely to understand that a school does not endorse or support student speech
that it merely permits on a nondiscriminatory basis.

496 U.S. at 250, 110 S.Ct. at 2372. In Jones I, we recognized that invocations permitted by the

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

invocations free of all religious content, and the 1987 student proposal was acceptable to the

plaintiff-appellants. See id. at 420 n. 3. The record does not disclose how each senior class chooses
whether to include an invocation nor how the student volunteer who delivers the speech is chosen.10

We can imagine discriminatory methods of implementing the Resolution that would make it a tool

for governmental endorsement of religion, but the Resolution itself is constitutional unless there is

no way to implement it on a nondiscriminatory basis.

We think that Clear Creek does not unconstitutionally endorse religion if it submits the

decision of graduation invocation content, if any, to the majority vote of the senior class. Clear Creek

is legit imately concerned with solemnizing its graduation ceremonies, and the Resolution simply

permits each senior class to decide how this can best be done. School districts commonly provide

similarly secular criteria for the selection of other student graduation speakers, and no court has held

that their religious speech at graduation represents government endorsement of religion.11 Cf. Guidry

v. Broussard, 897 F.2d 181, 182 (5th Cir.1990) (relying on defendants' immunity to avoid deciding

whether school liable for censoring valedictorian's religious graduation address). After participating

in a student determination of what kind of invocation their graduation will contain, we do not believe

that students will perceive any more government endorsement of religion from the Resolution than

do students in Westside Community schools who are regularly recruited during school hours to join

a Christian club. Clear Creek students certainly perceive a less-direct relationship between state and

religion under the Resolution than Providence students did before Lee. See Lee, ––– U.S. at ––––,

112 S.Ct. at 2661 ("[A]t graduation time and throughout the course of the educational process, there

will be instances when religious values, religious practices, and religious persons will have some

interaction with the public schools and their students.") (citing Mergens ). We find no

unconstitutional endorsement.

E. COERCION

10
The appellants ask us to remand this case so that they can adduce evidence of
unconstitutional applications of the Resolution. We understand our present task to be limited to
determination of the Resolution's facial constitutionality, and nothing in this case prevents the
appellants from filing a declaratory judgment action if they believe that the Resolution has been
unconstitutionally applied. See Jones I, 930 F.2d at 423–24.
11
That some attendees choose to stand and remain silent during an invocation is
indistinguishable from their decision to accord a standing ovation to a moving valedictory address
with religious inferences.
 Instead of directly considering any of the tests that we have previously discussed, the Lee

Court invalidated the Providence school district's policy on its evaluation of the coercive effect of

Lee's actions. The Court held that Lee coerced graduation attendees to join in a formal religious

exercise. Lee, at ––––, 112 S.Ct. at 2655. The Court summarized its entire analysis of the

constitutionality of the school policy at issue in Lee as follows:

These dominant facts mark and control the confines of our decision: State officials direct the
performance of a formal religious exercise at promotional and graduation ceremonies for
secondary schools. Even for those students who object to the religious exercise, their
attendance and participation in the state-spo nsored religious activity are in a fair and real
sense obligatory....

Id. Thus, Lee identifies unconstitutional coercion when (1) the government directs (2) a formal

religious exercise (3) in such a way as to oblige the participation of objectors. See also Mergens, 496

U.S. at 261, 110 S.Ct. at 2378 (Kennedy, J., concurring) ("The inquiry with respect to coercion must

be whether the government imposes pressure upon a student to participate in a religious activity.").

Before Lee, no one contended that the Resolution coerced participation in prayer at Clear Creek's

graduation ceremonies, and we failed to appreciate the need to address this issue from the Court's

precedent that we discussed in Jones I. Upon considering this case in light of Lee's coercion analysis,

we find that the Resolution does not succumb to one, let alone all three, of the elements of

unconstitutional coercion, and thus survives the analysis that felled graduation prayer in Lee.

1. Direction

On every single o ne of the seven pages that comprise Lee 's entire coercion analysis, the

Court stresses the government's direct and complete control over the graduation prayers there at issue

as determinative of the establishment question. E.g., ––– U.S. at ––––, 112 S.Ct. at 2655

("[G]overnment involvement ... is pervasive, to the point of creating a state-sponsored and

state-directed religious exercise in a public school [which] suffices to determine the [constitutional]

question...."); id. at ––––, 112 S.Ct. at 2656 (First Amendment does not "permit the government to

undertake [the task of defining common ground necessary for the spiritual development of

humankind] for itself"); id. at ––––, 112 S.Ct. at 2657 ("The degree of school involvement here made

it clear that the graduation prayers bore the imprint of the State...."); id. at ––––, 112 S.Ct. at 2658
("[I]f citizens are subjected to state-sponsored religious exercises, the State disavows its own duty

to guard [its people's freedom of conscience]."); id. (a graduating senior at a Providence graduation

ceremony would have "a reasonable perception that she is being forced by the State to pray"); id.

at ––––, 112 S.Ct. at 2659 ("[T]he State ... in effect required participation in a religious exercise.");

id. at ––––, 112 S.Ct. at 2660 ("[T]he state-imposed character of an invocation and benediction by

clergy selected by the school combine to make the prayer a state-sanctioned religious exercise....");

id. at ––––, 112 S.Ct. at 2661 ("The prayer exercises in this case are especially improper because the

State has in every practical sense compelled attendance and participation in an explicit religious

exercise....").

The Court deplored three instances of government involvement in graduation prayer in Lee,

none of which is tolerated, let alone prescribed, by the Resolution. First, the Court found that Lee

"decided that an invocation and benediction should be given; this is a choice attributable to the State,

and from a constitutional perspective it is as if a state statute decreed that the prayers must occur."

Id. at ––––, 112 S.Ct. at 2655. The Resolution requires that the state not decide whether an

invocation will occur; it respects the graduating class's choice on the matter. The Resolution

acknowledges that a school official may offer "advice and counsel" to the senior class in deciding

whether to include invocations at graduation, and officials could exploit this clause to impose their

will on the students. But, again,12 in evaluating the Resolution's facial constitutionality, we are only

concerned with whether the Resolution necessarily charges government with the decision of whether

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

Second, the Court was critical of the fact that "[t]he principal chose the religious participant,

here a rabbi, and that choice is also attributable to the State." Id. In contrast, the Resolution

explicitly precludes anyone but a student volunteer from delivering Clear Creek's invocations.

Moreover, the Resolution says nothing of government involvement in the selection of the person who

delivers any invocation. That the government can remain detached from this selection consistent with

the Resolution maintains the Resolution's facial constitutionality.

12
See supra note 10 and accompanying text.
 The Court recognized that Lee co mpleted his control over the invocation at his school's

graduation ceremonies when he "provided Rabbi Gutterman with a copy of the "Guidelines for Civic

Occasions,' and advised him that his prayers should be nonsectarian." Id. at ––––, 112 S.Ct. at 2656.

In three respects, Clear Creek exercises significantly less control over the content of invocations at

its schools. Clear Creek does not solicit invocations; the Resolution only forbids Clear Creek schools

from accepting sectarian or proselytizing invocations. Moreover, because a graduating senior drafts

proposed invocations each year under the Resolution, the same person will never repeatedly propose

an invocation. Compare id. (noting that Lee could refine an official prayer by repeatedly inviting the

same clergy member to deliver invocations). Finally, the Resolution imposes two one-word

restrictions, which enhance solemnization and minimize advancement of religion, instead of a

pamphlet full of invocation suggestions.

We conclude that Clear Creek does not direct prayer presentations at its graduation

ceremonies.

2. Religiosity

Lee directed Rabbi Gutterman to pray, and the Court characterized this as a "formal religious

observance." Id. at ––––, 112 S.Ct. at 2655. By contrast, the Resolution tolerates nonsectarian,

nonproselytizing prayer, but does not require or favor it.

3. Participation

The Lee Court held that government-mandated prayer at graduation places a constitutionally

impermissible amount of psychological pressure upon students to participate in religious exercises.

Id. at ––––, 112 S.Ct. at 2658–59. We think that the graduation prayers permitted by the Resolution

place less psychological pressure on students than the prayers at issue in Lee because all students,

after having participated in the decision of whether prayers will be given, are aware that any prayers

represent the will of their peers, who are less able to coerce participation than an authority figure

from the state or clergy.

We also consider the age of the graduating seniors relevant to the determination of whether

prayers under the Resolution can coerce these young people into participating in a religious exercise.
See Jones I, 930 F.2d at 421. Lee explains that the state-initiated clergy prayers there at issue have

a coercive effect on public-school students regardless of age, see ––– U.S. at ––––, 112 S.Ct. at

2658–59, but it nowhere compromises the Court's previous recognition that graduating seniors "are

less impressionable than younger students." Mergens, 496 U.S. at 235–37, 110 S.Ct. at 2364–65

(approving Congress' extension of the Court's reasoning in Widmar v. Vincent, 454 U.S. 263, 274

n. 14, 102 S.Ct. 269, 276–77 n. 14, 70 L.Ed.2d 440 (1981), that age is inversely proporti onal to

impressionability, from university students to secondary school students); see also id. 496 U.S. at

250, 110 S.Ct. at 2372 (endorsing Justice Powell's dissent in Bender v. Williamsport Area School

Dist., 475 U.S. 534, 556, 106 S.Ct. 1326, 1339, 89 L.Ed.2d 501 (1986)).

Accordingly, we think that the coercive effect of any prayer permitted by the Resolution is

more analogous to the innocuous "God save the United States and this Honorable Court" stated by

and to adults than the government-mandated message delivered to young people from church

authority that the Court considered in Lee. Cf. Lee, ––– U.S. at ––––, 112 S.Ct. at 2659 (refusing

to "address whether [the choice between participation and protest] is acceptable if the affected

citizens are mature adults").13

None of Lee's three elements of coercive effect exist here. Prayers allowed under the

Resolution do not unconstitutionally coerce objectors into participation.

III. FROM SEA TO SHINING SEA, GREAT GOD OUR KING14

13
Nor did the Court criticize the fact that, before Rabbi Gutterman delivered the prayers
ordered by Lee, the assembly stood for the Pledge of Allegiance, which of course recounts our
subjugation to a deity. See id. ––– U.S. at ––––, 112 S.Ct. at 2653; id. at ––––, 112 S.Ct. at
2682 (Scalia, J., dissenting).
14
America! America! God shed His grace on thee,

And crown thy good with brotherhood

From sea to shining sea.

America the Beautiful

Long may our land be bright.

With freedom's holy light;
 The practical result of our decision, viewed in light of Lee, is that a majority of students can

do what the State acting on its own cannot do to incorporate prayer in public high school graduation

ceremonies. In Lee, the Court forbade schools from exacting participation in a religious exercise as

the price for attending what many consider to be one of life's most important events. This case

requires us to consider why so many people attach importance to graduation ceremonies. If they only

seek government's recognition of student achievement, diplomas suffice. If they only seek God's

recognition, a privately sponsored baccalaureat e will do. But to experience the community's

recognition of student achievement, they must attend the public ceremony that other interested

community members also hold so dear. By attending graduation to experience and participate in the

community's display of support for the graduates, people should not be surprised to find the event

affected by community standards. The Constitution requires nothing different.15

We again affirm the district court's judgment denying injunctive and declaratory relief from

the Resolution.

AFFIRMED.

Protect us by Thy might,

Great God, our King.

America
15
Cf. Employment Div., Dept. of Human Resources v. Smith, 494 U.S. 872, 110 S.Ct. 1595,
108 L.Ed.2d 876 (1990).