John Doe, Individually and as Next Friend of Jane Doe, a Minor v. Duncanville Independent School District

MAHON, District Judge,

dissenting in part:

Although I join in the majority opinion with respect to DISD’s involvement in prayer and the distribution of Gideon Bibles, I respectfully disagree with my colleagues that DISD’s choice of religious theme songs for its choirs is consistent with the First Amendment. Viewed as a whole, the facts in this case fully support the district court’s prohibition of DISD’s participation, in any form, in the use by its choirs of religious theme songs. Accordingly, I dissent from the majority’s decision to reverse the district court’s ruling on this issue.

Although the majority opinion sets forth many of the facts in the case, it will help to recount here those facts which demonstrate the similarity between the DISD’s choice of a religious theme song and its other religious practices, which the majority agree are unconstitutional.

It is undisputed that for some twenty years, DISD, through the actions of its teachers and other employees, permitted, encouraged and even sponsored the recitation of prayers during curricular and extracurricular activities. Prayers were recited during classes. Many events were begun and closed with a prayer. Sports teams recited prayers before games in the locker rooms, after games on the field and in the buses returning to school. At award ceremonies, prayers were recited and DISD teachers distributed pamphlets of religious songs for participants to sing. The prayers and songs were always Christian.

During the same twenty year period, DISD choir teachers treated as the theme song for the ninth grade and high school choirs what the parties have stipulated is a *411Christian religious song entitled The Lord Bless You and Keep You. The song is in the form of a prayer seeking God’s blessings on behalf of a third party.1 The theme song was sung at the end of each performance except when circumstances made it inappropriate, such as when members of the choir performed as a barbershop quartet. In addition, the choir sang the song on the bus on the way home from performances and at the end of class each Friday. The students were not given an opportunity to choose a new theme song each year or to determine whether to have a theme song at all. Rather, the song was passed on as an established tradition to incoming choir teachers, who in turn taught it to each new group of students. Although there apparently was no formal, written designation of the theme song, choir teachers and students were aware that the specified song was the theme song and treated it accordingly.

DISD’s intermediate school choir had a different theme song, which was also a Christian religious song. Although the record is less developed as to this song, Go Ye Now in Peace, the evidence shows that it also was sung at the end of each performance.

The district court did not make many specific factual findings with respect to the theme songs, and did not address the songs as a separate legal issue. Rather, the court analyzed DISD’s religious practices, including the use of prayers and religious theme songs, as part of a single pattern. Applying the three part test set forth in Lemon v. Kurtzman,2 the court concluded that there was no secular purpose for the practices, that their primary effect was to advance religion, specifically the Christian faith, and that they fostered an excessive entanglement of DISD with the Christian creed. Going further, the district court found that DISD’s policy endorsed religion, and was coercive because students were pressured to participate in the religious practices. Any one of these findings would have been a basis for determining that DISD’s practices constituted an impermissible establishment of religion. See Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (government’s compulsion of attendance at and participation in religious exercise violates First Amendment); County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 591-93, 109 S.Ct. 3086, 3100-01, 106 L.Ed.2d 472 (1989) (government may not act in way that endorses religion); Doe v. Duncanville Indep. Sch. Dist., 994 F.2d 160, 163 (5th Cir.1993) (violation of Establishment Clause where challenged practice fails to satisfy any one of Lemon factors). It is important to note that although the district court therefore prohibited DISD from any involvement in the choice or use of religious theme songs for its choirs, the court expressly acknowledged that religious songs could be presented objectively for their artistic and historic qualities as part of a secular music program.

The district court did not err in viewing DISD’s choice of religious theme songs as an inseparable part of its historical pattern of encouraging and endorsing Christian religious beliefs through the activities of its teachers. This is not a case where the choice of theme songs was the only arguably religious practice involved, but one where expression of religious belief was permitted and approved at almost every level of school life. In virtually the same way that prayers were recited during classes, sports and other events, the choirs’ theme songs were used to mark the close of performances and the week, and to unify participants in a common outlook. Viewed in this context, the theme songs served as yet another vehicle for inculcating a Christian attitude, and their singing constituted a religious exercise.

*412The majority does not disagree with the legal principles applied by the district court. Instead, by ignoring the role and effect of theme songs in general, and the connection between DISD’s theme songs and its other religious practices in particular, the majority reaches the conclusion that DISD’s religious theme songs had a secular purpose and did not have the effect of advancing or endorsing religion. An analysis of the majority’s reasoning shows it to be faulty in several respects.

Before addressing the majority’s conclusions, it is important to review DISD’s own justification for the choice of religious theme songs for each of its choirs. DISD has offered two purportedly secular reasons for this practice. It asserts, first, that the theme songs solemnize events as did the prayer found to be constitutional in Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963 (5th Cir.1992). The holding in Jones, however, was limited to very specific circumstances which are not present here. Jones upheld a school district resolution that permitted the delivery of a non-sectarian, non-proselytizing prayer in only one context, a high school graduation ceremony, where solemnization was found appropriate to mark a onee-in-a-lifetime occasion.3 By contrast, DISD’s choirs’ theme songs were sung repeatedly, not only at performances throughout the year, but also on the buses returning from performances and at the end of class each Friday, occasions not generally thought of as requiring a solemnizing ceremony. In asserting that a religious theme song is needed to achieve solemnity in such circumstances, some of the same ones in which DISD traditionally initiated or permitted the recitation of prayers, DISD inadvertently supports the conclusion that it chose religious theme songs not for any secular reason, but for the very purpose of encouraging religious reverence through yet another avenue.

DISD next contends its theme songs provide unity and comraderie for choir members. To the extent DISD means simply that having a theme song serves to unify choir members, this explanation adds nothing to the analysis, because the challenged injunction does not forbid the use of theme songs, per se. Nor does the reference to unity and comraderie, by itself, answer the question of the purpose of having religious theme songs. DISD does not specify which elements of its theme songs are critical to creating unity and comraderie. We already know, however, that DISD believes the songs have a solemnizing function, that is, a function most often played by prayer. See Jones v. Clear Creek Indep. Sch. Dist., 930 F.2d 416, 420 (5th Cir.1991) (indicating there is no secular equivalent of a prayer for solemnization purposes). The theme songs were sung in circumstances likely to emphasize their religious message. Further, we cannot ignore the long history of this school district authorizing and encouraging the recitation of Christian prayers, especially as a means to unify the school and its teams before and after competitions and other special events. In light of this history, DISD’s choice of theme songs that essentially are prayers can hardly be viewed as a coincidence. Rather, the religious nature of the songs clearly was expected to be an inextricable part of their role in fostering unity and group identification.

Apparently not satisfied with DISD’s explanation, the majority finds its own secular reasons for maintaining God Bless You and Keep You as the high school choirs’ theme song: the song’s usefulness for teaching students to sing a capella and its worth as a good piece of music by a reputable composer. These characteristics of the song, however, do not answer the question of DISD’s purpose in designating it, or any religious song, as a theme song. DISD is free to teach religious songs and obtain their secular benefits as part of the music curriculum without giving them the special treatment it has accorded its theme songs. Moreover, the evi*413dence shows that God Bless You and Keep You is not unique in the characteristics singled out by the majority. DISD’s high school choir director testified that there are from 25 to 50 secular songs that are sung a capella and would make suitable theme songs for the choir. In fact, DISD itself has not argued that it chose religious theme songs for their educational or musical qualities, as the majority suggests. Under the circumstances, the majority’s attempt to propose secular reasons not even offered by DISD carries no weight. Once it was clear DISD’s purported secular purposes for using religious theme songs were actually religious in nature, the district court was justified in concluding that the choice of religious theme songs had no secular purpose.

As with the question of purpose, the majority’s narrow findings regarding the effects of designating a religious theme song — that the song was sung often and was carried over from year to year — disregard the characteristic role and resulting effects of a theme song. In common understanding, a theme song is a song used by a group to represent or identify itself. See Webster’s New World Dictionary of the American Language 1474 (2d College ed. 1972). By choosing a particular song, the group expresses a shared emotion, experience or outlook. The theme song is played at each of the group’s meetings or performances and has special significance for the group and for others who identify the group by its song.

DISD intended its choirs’ religious theme songs to play this role. Though the theme songs were singled out from the overall music program by their continual singing throughout the year, thereby achieving a prominence not enjoyed by other songs, this was not the sole effect of their designation. More importantly, the theme songs were given special emphasis by their placement at the close of performances and, in the case of the high school choirs’ song, its use to end class on Fridays, treatment that served to highlight the songs’ sacred character.4 Choir members were informed that the song was their theme song and a tradition at the school, thereby being directed, in effect, to at least superficially identify themselves with it. Indeed, the choir teacher testified that the theme song was supposed to give the students a sense of unity, comraderie, belonging, and something to identify with. Since any student, upon learning that a particular song is his or her group’s theme song, would look to the words of the song as an important part of its special meaning, the school’s designation of a theme song that consists entirely of calls for God’s blessing could not help but reinforce existing religious belief and convey the impression to believers and nonbelievers alike that the school favored religion. In fact, Jane Doe indicated she felt the choirs’ theme songs reflected and embodied DISD’s favor for Christian beliefs. The district court did not err in determining that DISD’s choice of religious theme songs had the primary effect of advancing and endorsing religion. See Jones II, 977 F.2d at 967 (practice advances religion if it increases religious conviction); County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 593-94, 109 S.Ct. 3086, 3101, 106 L.Ed.2d 472 (1989) (endorsement occurs where government gives message that religion or a particular religious belief is favored or preferred).

Adopting DISD’s reasoning, the majority attempts to minimize the significance of the choice of a religious theme song by pointing to the choir teacher’s estimate that 60-75 percent of serious choral music is based on sacred themes or text. Considering these figures, it suggests, statistical probability would predict that a religious song would be best suited to serve as the theme song. This apparent logic obscures the real questions at issue — the purpose and effects of DISD choosing religious theme songs. This is not a case where the students, or even the teachers, have picked a theme song each year and statistics would predict the choice of a religious song some percentage of the time. Nor has DISD directly claimed that it chose its particular theme songs because they were *414better suited to that purpose than any secular songs.5 Thus, there is no basis to conclude that the relative percentages of religious and secular music have had any bearing on DISD’s purpose in choosing a religious theme song. Similarly, that religious songs may constitute the majority of serious choral music does not minimize the religious effects, discussed above, of DISD designating a religious theme song.6

Not only does the majority stretch to circumvent the district court’s reasonable conclusions, but it grants greater relief than DISD has argued for in its appellate briefs. The district court’s injunction enjoins DISD from “initiating, leading, authorizing, encouraging or condoning” the recitation or singing of religious songs as theme songs. DISD does not argue that this entire part of the injunction should be overturned, as the majority has done, but only that, under Jones II, if students choose a religious theme song, the school should be able to lead, authorize and condone its singing. In other words, DISD essentially concedes that the school district itself may not properly initiate or encourage the choice of a religious song as a theme song. Therefore, at a minimum, we should affirm the injunction to the extent it prohibits the school from initiating or encouraging the choice of religious theme songs.7

In addition, however, we should also affirm as to the prohibition on DISD authorizing, leading or condoning a student-chosen religious theme song. First, the evidence shows that a large number of DISD students are well aware, through the chain of siblings and teachers, that the district schools have a tradition of prayer and using specific religious theme songs. Most DISD students have supported these traditions. As a result, any choice of a theme song by students from a pool of songs that includes DISD’s “traditional” theme songs is unlikely to be truly free.

Moreover, even if made without pressure of any sort, a majority student vote would not validate the choice of a religious theme song. Since DISD has not indicated otherwise, we can assume that if students chose a religious theme song, DISD would treat it in the same fashion as in the past. In other words, the sacred qualities of the song would be emphasized such that its singing would be a form of religious exercise. This would be true in any event because, as discussed earlier, designation of a theme song, whether by faculty or students, is certain to endow the words of the song with special meaning and demand facial allegiance from the group. School supervision, leadership and control of the choir, including the teaching, practicing and performance of the theme song, would place pressure on all choir members to participate in and identify with that song. Thus, the school district’s authorizing, leading and condoning of a student-chosen religious theme song would still have the effect of *415advancing and endorsing religion and would act as a coercive force on dissenters. See Lee, 505 U.S. at 592-93, 112 S.Ct. at 2658 (school district’s supervision and control of graduation ceremony pressures attending students, at a minimum, to show respect for invocation and benediction). As the majority notes with respect to student-initiated prayer, neither Jones nor Board of Education of Westside Community Schools v. Mergens8 permit this kind of school involvement in student-initiated religious activities during the regular curriculum-related program.

Because the record supports the injunction against any school involvement in the choice or use of a religious theme song, I would affirm the district court on this issue.

. The words of the song are:

The Lord bless you and keep you, the Lord lift His countenance upon you; and give you peace, and give you peace, the Lord make his face to shine upon you, and be gracious unto you, be gracious, the Lord be gracious, gracious unto you. Amen, Amen, Amen, Amen, Amen.

This text, taken from the Old Testament, Numbers VI, 24-26, would be better characterized as Judeo-Christian.

. 403 U.S. 602, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). Under Lemon, to survive an Establishment Clause challenge, a statute or practice must have a secular purpose, its primaiy effect must neither advance nor inhibit religion, and it must not foster excessive government entanglement with religion.

. In addition, the prayer in Jones withstood challenge only because students determined whether to have a prayer and what its contents would be without any direction from school officials. 977 F.2d at 970 (comparing Lee, where the Supreme Court found a non-sectarian, non-proselytizing prayer at graduation unconstitutional because of the state’s involvement in soliciting it and defining its contents). Here it is undisputed that DISD faculty, not students, chose to perpetuate religious theme songs. This aspect of the theme songs is discussed further below.

. The evidence suggests that DISD choir performances were carefully arranged to give religious songs, including the theme songs, the role that prayers played in other DISD events. For example, during the time that Jane Doe was in the intermediate school choir, one performance began with the song Before Our Lord and King and ended with the theme song. The rest of the songs in the performance were secular in nature.

. Of course, to the extent DISD has argued that the purpose of its religious theme songs is to promote solemnity and unity, it implies that the religious nature of the songs is the very quality that makes them best suited to the purpose. Presumably, however, when the majority speaks of a song being best suited to be a theme song, it refers to secular qualities it imagines might be important in a theme song.

. The majority also adopts DISD’s argument that because religious songs constitute a majority of choral music, preventing DISD from choosing a religious theme song actually amounts to hostility against religion. However, neither DISD nor the majority have shown that DISD’s use of only secular songs as theme songs would have the effect of inhibiting religion or denying the importance of religious choral music. The district court’s injunction does not limit in any way the number or percentage of religious songs the choir may include in its music program, or the number of times any religious song may be sung; based on the conclusion that DISD's religious theme song had an impermissible purpose and effect, it simply prevents a religious song from being given the special treatment associated with a theme song. Though the effect may be to limit religious exercises in some circumstances, requiring the government to refrain from practices that advance or endorse religion does not constitute hostility against religion. See Lee, 505 U.S. at 586-87, 112 S.Ct. at 2655; School Dist. of Abington Township v. Schempp, 374 U.S. 203, 225-26, 83 S.Ct. 1560, 1573, 10 L.Ed.2d 844 (1963); Karen B. v. Treen, 653 F.2d 897, 902-03 (5th Cir.1981), aff'd, 455 U.S. 913, 102 S.Ct. 1267, 71 L.Ed.2d 455 (1982).

.Since the evidence shows that DISD’s affirmative involvement in the choice of a religious theme song had no secular purpose and had the primary effect of advancing and endorsing religion, even if DISD did not concede this point the injunction should be upheld in this respect.

. 496 U.S. 226, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990).