Harris v. Joint School District No. 241

EUGENE A. WRIGHT, Circuit Judge,

concurring in Part I and dissenting from Parts II and III.

This is not a prayer case involving classrooms or school assemblies. Nor does it concern the selection by a high school principal of a clergyman to provide a graduation prayer. Rather, the issue is whether a school district in a rural Idaho community may delegate to graduating students the planning and execution of their commencement, including the decision to offer an invocation and a benediction.

Because I believe that the limited role of School District No. 241 does not convey a message of state endorsement of religion, I respectfully dissent from that portion of the majority opinion finding an Establishment Clause violation. Without such a violation, there is also no need for the majority to address the free speech and free exercise issues. I do agree that the district court properly declined to decide the state law claims.

In disposing of the merits, this court should follow the lead of the Fifth Circuit in Jones v. Clear Creek Independent Sch. Dist, 977 F.2d 963 (5th Cir.1992), cert. denied, — U.S. —, 113 S.Ct. 2950, 124 L.Ed.2d 697 (1993), and the test spelled out by the Supreme Court in Lee v. Weisman, — U.S. —, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992). Both provide better guidance than our opinion in Collins v. Chandler Unified Sch. Dist, 644 F.2d 759 (9th Cir.), cert. denied, 454 U.S. 863, 102 S.Ct. 322, 70 L.Ed.2d 163 (1981).

In Collins we held that student-sponsored prayer at school assemblies violates the Establishment Clause. Id. at 762. We explained that classroom prayer cases such as Abington Sch. Dist v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), and Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962), supported “no meaningful distinction between school authorities actually organizing the religious activity and officials merely ‘permitting’ students to direct the exercises.” Collins, 644 F.2d at 761.

But our holding in Collins must be limited to the context of school day assemblies. That students rather than officials made the decision could not have made a difference because the assembly prayers, like those invalidated in Abington and Engel, were held in an intrinsically coercive environment. All were conducted regularly on school grounds during time allocated for curricular activities when school attendance was legally mandated. See Abington, 374 U.S. at 223, 83 S.Ct. at 1572; Engel, 370 U.S. at 422, 82 S.Ct. at 1262; Collins, 644 F.2d at 760-61.

We must instead look to the test articulated by the Supreme Court in Lee, — U.S. at —, 112 S.Ct. at 2657-61, to measure the constitutionality of commencement prayer.1 The Court held in Lee that a school *460violates the Establishment Clause when it exercises a high degree of control over graduation prayer, which in conjunction with the compelled nature of attendance, creates an unacceptable risk that students will be coerced to participate. Id. The school principal in that case decreed that an invocation and a benediction would be offered, chose the religious participant and prescribed the content. Id. at-, 112 S.Ct. at 2655-56. The Court emphasized that Establishment Clause analysis is “delicate and fact-sensitive,” id. at -, 112 S.Ct. at 2661, and carefully limited its holding to the circumstances of the case. Id. at-, 112 S.Ct. at 2655.

The majority finds the necessary degree of control because School District No. 241 retains ultimate authority over commencement, and sponsors the event by underwriting the costs.2 It reasons that “school officials cannot divest themselves of constitutional responsibility by allowing the students to make crucial decisions.” See majority opinion, supra at -. This analysis, however, does not answer the underlying question examined in Lee: Does the School District’s involvement in the decision to have and the presentation of an invocation and a benediction make it clear that the prayer bears the imprint of the state? — U.S. at —, 112 S.Ct. at 2657. 3

The answer is no. As the district court concluded, “the record demonstrates that faculty and administrators have little or no involvement in that process.” Harris v. Joint Sch. Dist. No. 24l, 821 F.Supp. 638, 643 (D.Idaho 1993). The seniors independently plan their commencement, and decide whether to offer an invocation and a benediction. See majority opinion, supra at 452-53. The disclaimer in the commencement program reaffirms that the School District does not endorse any religious content. See majority opinion, supra at 452-53. Absent the requisite state control there is no coercive effect. Student-sponsored and initiated graduation prayer “place[s] 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 he given, are aware that any prayers represent the will of their peers.” Jones, 977 F.2d at 971.4

The School District merely accommodates the students’ decision. Accommodation of and incidental benefits to religion do not violate the Establishment Clause. Lynch v. Donnelly, 465 U.S. 668, 681-83, 104 S.Ct. 1355, 1363-64, 79 L.Ed.2d 604 (1984). Accommodation does not endorse religious belief over disbelief, but rather shows respect for the fundamental values of others. Lee, — U.S. at — —, 112 S.Ct. at 2676-77 (Souter, J., concurring).

And this accommodation in particular does not threaten to advance religion. Invocation and benediction have historically been integral and accepted elements of high school and college graduation ceremonies in this country. They have been part of a broader tradition of opening public ceremonies with prayer. Such formalities “serve, in the only ways reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society.” Lynch, 465 U.S. at 693, 104 S.Ct. at 1369 (O’Connor, J., concurring).

Presidents have regularly offered prayers in inaugural addresses.5 School days begin *461with the Pledge of Allegiance and its reference to “one nation under God.” The constitutionally valid practice of convening Congress with prayer dates back over two centuries to the year the Senate and House of Representatives reached final agreement on the language of the Bill of Rights. Marsh v. Chambers, 463 U.S. 783, 788, 103 S.Ct. 3330, 3334, 77 L.Ed.2d 1019 (1983). The new graduates in School District 241 deserve to so dignify their commencement. I would affirm.

. In contrast to school assemblies, commencement comes annually outside of the regular cur*460riculum. It is a community event held not for the entire student body, but for maturing seniors.

. The Supreme Court has clarified that custodial oversight "does not impermissibly entangle government in the day-to-day surveillance or administration of religious activities." Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226, 253, 110 S.Ct. 2356, 2373, 110 L.Ed.2d 191 (1990).

. For a full summary of the elements of control relied on in Lee see Jones, 977 F.2d at 970.

. I also agree with the Fifth Circuit that student initiated and presented prayer at commencement satisfies the Lemon test. See Jones, 977 F.2d at 966-68; see also Adler v. Duval County Sch. Board, 851 F.Supp. 446, 451-55 (M.D.Fla.1994).

. President Bush in his inaugural address said:

And my first act as President is a prayer. I ask you to bow your heads:
Heavenly Father, we bow our heads and thank You for Your love. Accept our thanks for the peace that yields this day and the shared faith *461that makes its continuance likely. Make us strong to do Your, work, willing to heed and hear Your will, and write on our hearts these words: “Use power to help people.” For we are given power not to advance our own purposes, nor to make a great show in the world, nor a name. There is but one just use of power, and it is to serve people. Help us to remember it, Lord. Amen.
Inaugural Addresses of the Presidents of the United States 346 (1989).