Doe Ex Rel. Doe v. Beaumont Independent School District

REVISED, JANUARY 30, 2001

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-40429

JANE DOE, JUNE DOE, JANET DOE,
AND JILL DOE, By their next friends,
SUSAN DOE, MARY DOE AND LISA DOE,
Plaintiffs-Appellants,

versus

BEAUMONT INDEPENDENT SCHOOL
DISTRICT,
Defendant-Appellee.

Appeal from the United States District Court
For the Eastern District of Texas

January 26, 2001

Before KING, Chief Judge, and POLITZ, JOLLY, HIGGINBOTHAM, DAVIS,
JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS,
BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Today we consider a challenge to the Beaumont Independent

School District’s “Clergy in the Schools” program, which enlists

various clerical volunteers to counsel groups of students regarding

secular topics. We granted en banc review after a panel of this

court, reversing the district court, held that the student

plaintiffs had standing and that the program violated the
Establishment Clause of the First Amendment. We agree that the

plaintiffs have demonstrated standing sufficient to withstand

summary judgment. However, perhaps because the parties did not

squarely engage each other on the merits, they have produced an

uncertain record burdened with genuine issues of material fact,

including the place of the clergy program in the District’s larger

overall volunteer program.1 We therefore REVERSE, and REMAND to

the district court.

The ultimate question in this Establishment Clause case is

equality of treatment: whether the school board preferred religion

over non-religion. It follows, at trial, that the district court

must not confine its analysis to only “Clergy in the Schools.”

Rather, the court can and should examine the targeted program in

its full context, viewing it as it actually operates in its

setting, including other programs similar in purpose and function.

If the set of programs together comprise a mosaic that is neutral

with regards to religion, then the Establishment Clause is not

offended. The program’s mission and means pose questions of fact,

subsidiary to the ultimate question of whether the school district

has impermissibly preferred religion over non-religion, which

preclude the grant of summary judgment. Although we reverse the

grant of summary judgment and remand for trial, we discuss the

1
We refer to Judge Wiener’s opinion concurring in part and
dissenting in part as the principal dissent because it expresses
the view of the largest number of dissenting judges.

2
record both to locate the genuine issues of material fact and to

provide guidance to the district court, reminding that standing

must be demonstrated at all stages, including trial.

I

The plan presents a novel configuration of Establishment

Clause issues. In 1996, the Beaumont Independent School District

instituted a volunteer program in its elementary and middle schools

called “Clergy in the Schools.” The District solicited volunteers

from area clergy of all local faiths, the majority of which are

Protestant Christian. Participants conducted group counseling on

secular issues including race, divorce, peer pressure, discipline,

and drugs. The program’s stated goals were to provide (1)

meaningful dialogue between the clergy and students regarding civic

values and morality; (2) a safe school atmosphere; and (3)

volunteer opportunities.

Well aware that it was walking a legal high wire, the District

took several steps to avoid constitutional concerns regarding the

content of the counseling sessions. It schooled the clergy

regarding legal strictures, instructing them not to wear clerical

garb, identify their religious affiliations, engage in religious

discussions, or quote the Bible. Requests for prayer were to be

deflected to outside of the school. The District also prohibited

3
discussions regarding sex or abortion. School officials attended

the meetings along with the clergy and students.2

Participation by students in the program was voluntary,

although no parental consent was required. Students who wished to

participate could do so, but participation was also solicited on a

random basis. The record is unclear regarding that mix. The

record is also unclear as to the numbers of students participating:

at the program’s inception, it was to involve one or two visits to

each school per year with about 35 students per session.

The plaintiffs presented several facts in support of their

claim that the program sought to create a stronger school-church

bond. Superintendent Carrol Thomas, who initiated the program, at

one time advocated a need for prayer in schools. At the first

training session for the program, the PTA president distributed a

leaflet entitled, “Reasons for a Church-School Alliance.” After

the filing of the Does’ Complaint, the District sent a letter to

the volunteers clarifying that the goals expressed in the leaflet

were not part of the program. One volunteer quoted the Bible at a

counseling session. In response, the District prepared a “Fact

2
The principal dissent’s recitations regarding these
administrative matters are contrary to the record. The record
reflects that the school selects student participants for some of
its programs (for example, the fraternity program participants are
recommended by teachers) and conducts some programs in small groups
(the Junior League’s activities, for example, may involve whole
classrooms or smaller groups, depending on the teacher’s wishes).
According to the District’s volunteer coordinator, every program
involves oversight by school officials.

4
Sheet” for the volunteers reciting the secular nature of the

program. Outside of the school, the clergy prayed together before

the counseling sessions, and Superintendent Thomas asked them to

preach about substance abuse in their worship services and to help

prepare students for the Texas standardized examinations.

The record reflects a number of volunteer opportunities for

adults, which are administered through its “School Volunteer

Program.” Those programs include a sorority which conducts fairs

and a child safety program; several corporate volunteer programs;

senior citizen volunteering, some of which includes mentoring; and

DARE, an anti-drug program involving police officers. There are

also volunteer programs involving mentoring funded by sources

outside the Beaumont public schools. From the record it is

difficult to decide as a matter of law whether these opportunities

provide services to the students that are comparable to the

counseling and mentoring featured in the clergy program.

Before the District initiated the program, one of the parent

plaintiffs read about the program in the newspaper. She requested

that the District integrate professionals from secular counseling

professions into the program. After the District refused her

request, she and the other Doe plaintiffs brought suit to enjoin

the program from going forward. They alleged that it violated the

Establishment Clause of the First Amendment as well as the Texas

Constitution. The district court denied a temporary restraining

order. Later, on cross-motions for summary judgment, the district

5
court granted summary judgment to the District, holding that the

plaintiffs lacked standing and, alternatively, that the program did

not violate the Establishment Clause. The Doe plaintiffs appealed

to a panel of this court, which reversed the district court. The

District then sought en banc review, which we granted.

II

Article III of the U.S. Constitution requires that a litigant

have standing to invoke the power of a federal court. The focus of

standing is on the parties’ right to have the court decide the

merits of the dispute.3 To demonstrate standing, the plaintiff

must show an “injury in fact,” a requirement assuring that the

court will not “pass upon . . . abstract, intellectual problems,

but will adjudicate concrete, living contest[s] between

adversaries.”4 The injury alleged must be actual or imminent and

not abstract, conjectural, or hypothetical.5

By insisting that a plaintiff have a personal stake – an

individuated interest rather than an interest in good government

shared by all citizens – Article III avoids enlisting federal

courts in policy exercises about how the government operates. This

insistence vindicates principles of separation of powers and

3
See Warth v. Seldin, 422 U.S. 490, 498 (1975).
4
See Federal Election Comm’n v. Akins, 524 U.S. 11, 20 (1998)
(internal quotations omitted).
5
See Friends of the Earth, Inc. v. Laidlaw Envtl. Serv’s,
Inc., 120 S. Ct. 693, 704 (2000).

6
federalism by closing the doors to those who would only entreat the

court to superintend the legal compliance of the other branches and

the states. For example, in Valley Forge Christian College, the

plaintiffs learned of the federal government’s conveyance of

property to a religious institution in another state. Those

plaintiffs had no relationship to the government action at issue

other than an interest in seeing the law enforced.6 They had

suffered no injury from any unconstitutional acts not suffered by

all citizens.

At the same time, the fact that many persons suffer an injury

does not mean that no person has suffered the requisite injury.7

Plaintiffs have standing to assert, for example, that their use or

enjoyment of a public facility is impaired by an alleged violation

of the Establishment Clause.8

Such a claim of standing is even stronger when the plaintiffs

are students and parents of students attending public schools.

Students and their parents enjoy a cluster of rights vis-à-vis

their schools - a relationship which removes them from the sphere

6
Valley Forge Christian College v. Americans United for
Separation of Church and State, Inc., 454 U.S. 464, 485-86 (1982).
7
See Akins, 118 S. Ct. at 1786.
8
See Foremaster v. City of St. George, 882 F.2d 1485, 1490-91
(10th Cir. 1989); Hawley v. City of Cleveland, 773 F.2d 736, 740
(6th Cir. 1985).

7
of “concerned bystanders.”9 The Supreme Court has recognized that

students have a judicially cognizable interest in a right to

receive an education in a racially integrated school.10 Similarly,

the Court has repeatedly stated the right of children and their

parents to receive public education that is compliant with the

First Amendment’s Establishment Clause.11 This is not to suggest

that children and their parents need not have an individuated

injury. Rather, the point is that they have often been found to

have suffered an injury, albeit along with many other students and

parents.

In this case, the question of standing was initially framed by

the District’s contention that the option not to participate in the

program deprives the Does of a cognizable injury. In response, the

panel opinion concluded that the threat of exposure to random

summons to the program was a sufficient injury. We need not return

to that joust: standing may be supported by more direct reasons.

Of course, the parties cannot confine our inquiry into standing to

the initial field of engagement. We must satisfy ourselves of our

9
See Bell v. Little Axe Indep. Sch. Dist. No. 70, 766 F.2d
1391, 1398 (10th Cir. 1985) (holding that parents have standing to
allege that the state acts unconstitutionally to establish a
religious preference).
10
See Allen v. Wright, 468 U.S. 737, 756 (1984).
11
See School Dist. of Abington Township v. Schempp, 374 U.S.
203, 224 n.9 (1963); People ex rel. McCollum v. Board of Educ., 333
U.S. 203, 206 (1948).

8
own and the district court’s jurisdiction, even if the parties are

prepared to concede standing.12

The District’s characterization of standing fails to grasp the

full harm of which the plaintiffs complain. The Does have asked

that this effort to enrich the curriculum be modified so that they

may participate. There is little doubt that limiting access to the

full curriculum offered by the school would injure these students.13

In sum, there is standing beyond the Does’ status as students

or parents of students at the school.14 Opportunities for

counseling and mentoring services are a needed and valued component

of public education. The District supported this mentoring program

12
See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541
(1986).
13
We are persuaded that pleading and proof of the Does’
standing were offered. The District initially moved to dismiss for
lacking of standing as a Rule 12(b)(6) motion. That motion was
still pending when the District moved for summary judgment. The
district court by separate order decided that the filing of the
motion for summary judgment mooted the Rule 12 motion. The
question of standing was then joined in the summary judgment
motion. The Does replied to the motion for summary judgment by
attaching submissions made at an earlier hearing on application for
a temporary restraining order, including a transcript of the oral
testimony of one parent and three affidavits of others. As we read
the affidavits, the parents sought the benefits of a quality
program and believed there were no other programs offering
comparable mentoring opportunities. We need not impose that
contention on them; at trial, the individuals can state their own
testimony and, in proving their standing, quell disagreement over
the reading of the summary judgment record.
14
Cf. Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402, 408
(5th Cir. 1995) (student had no standing to protest the Gideons’
leaving Bibles on a table in a foyer in a building housing lower
grades than the plaintiff’s grade, a building which she never would
have entered).

9
with its money and resources. At bottom, the claim is that the

program unconstitutionally prefers religion over non-religion, that

the students cannot participate in the school’s offered program

without taking part in an unconstitutional practice. If found at

trial, this works a deprivation of a student’s right not to be

excluded from the benefits of a school-financed educational

offering – a concrete, judicially cognizable injury.

III

In evaluating the merits of the Doe plaintiffs’ Establishment

Clause claim,15 we consider their allegations in light of three

lines of analysis developed by the Supreme Court. First, the

three-part inquiry of Lemon v. Kurtzman asks (1) whether the

purpose of the practice is not secular; (2) whether the program’s

primary effect advances or inhibits religion; and (3) whether the

program fosters an excessive government entanglement with

religion.16 The second test, the “coercion” test, measures whether

the government has directed a formal religious exercise in such a

way as to oblige the participation of objectors.17 The final test,

the “endorsement” test, prohibits the government from conveying or

attempting to convey a message that religion is preferred over non-

15
As the district court made no determination as to plaintiffs’
claims that the Program violated the Texas Constitution, we do not
do so here.
16
403 U.S. 602, 612-13 (1971).
17
See Lee v. Weisman, 505 U.S. 577, 586 (1992).

10
religion.18 We will apply the latter two tests to the program’s

effects, rather than its purpose or structure, thus focusing on the

plaintiffs’ strongest contention that the program is non-neutral.

A

Under Lemon, we first analyze whether the Clergy in the

Schools program had a secular purpose.19 Courts normally defer to

a government’s statement of secular purpose. That purpose,

however, must be sincere and not a sham.20

The District’s stated purposes of the program – to provide

dialogue between the clergy and students regarding civic values and

morality, a safe school atmosphere, and volunteer opportunities –

are secular goals. It is permissible for a school to promote

discussions on morality, safety, and volunteering from the

community. That these goals may overlap with some religious views

is of no moment.21

The Does suggest that the stated purposes are a sham, pointing

to Superintendent Thomas’s statement that prayer is needed in

schools; the church-school alliance leaflet distributed to the

volunteers; the District’s encouragement of volunteers to provide

counseling and tutoring in their churches; the prayers conducted by

18
See County of Allegheny v. ACLU, 492 U.S. 573, 592-93 (1989).
19
See Edwards v. Aguillard, 482 U.S. 578, 585 (1987); Lemon,
403 U.S. at 612.
20
Edwards, 482 U.S. at 586-87.
21
See Bowen v. Kendrick, 487 U.S. 589, 612-13 (1988).

11
the volunteers at their pre-counseling meetings; and the Bible

quotation used by one of the volunteers at a student session.

We are not persuaded that these indicia are sufficient to

demonstrate as a matter of law that the purpose of the Program was

not secular. Superintendent Thomas’s requests regarding tutoring

and prayer at church, as well as the volunteers’ prayers before

meetings, were not part of the program and the summary judgment

record indicates no hidden purpose in conducting it. The record

does demonstrate that following the two violations of the program’s

stated goal – the PTA president’s distribution of the information

sheet and the Bible quotation used by one of the volunteers - the

District sent out literature to the volunteers clarifying the

secular purposes of the program.

In reaching its conclusion that the program exhibited an

impermissible purpose, the principal dissent relies on several

statements it claims were made in disseminated “pamphlets,”

“informational materials,” and “publicity.” Again, the principal

dissent’s enthusiasm runs ahead of the record. The quoted language

regarding “doing the right thing” and the benefits of volunteering

for the clergy in their vocations comes from a document entitled

“Meeting with Ministers,” an agenda sheet for the program’s

orientation. There is no evidence in the record that this sheet

was even distributed. The statements contained in the agenda sheet

were listed not under the “Goals” heading of the agenda, but under

“Expect[at]ions.” More importantly, they were cited not as

12
purposes, but as indications of what the clergy could expect from

participation.22 The principal dissent’s finding of an

impermissible purpose cannot be made as a matter of law, if at all.

There is no impermissible purpose in pointing out to potential

volunteers the benefits they can expect or in relating how valuable

their participation will be. Few would deny the difficulty of

recruiting volunteers for schools.

The principal dissent is left with citing the exclusivity of

the clergy program as expressing an impermissible purpose.

Unsatisfied with testimony that the District’s volunteer programs

are routinely grouped around a vocational, corporate, or social

affiliation, and that the clergy were tapped because of their

collective experience with listening to problems and talking to

groups, the principal dissent pieces together a quotation from Joy

James, the District’s volunteer coordinator, and interprets it to

mean that the District believes clergy have unique substantive

experience in the field of morals. James, however, specifically

denied that the purpose of separation was to convey any special

message “that only clergy can convey.” Moreover, the District’s

encouragement of people from all walks of life to participate in

various other mentoring programs rebuts the dissent’s conjecture.

We cannot find here as a matter of law that the stated purposes of

22
The other listed “expect[at]ions” were morning meetings,
visits to different schools in different months, and a timetable
for participation.

13
the program were not permissible or pretextual. Thus, we cannot

find as a matter of law that the program ran afoul of the purpose

prong of Lemon. We leave this issue for trial. The parties may

adduce such evidence as they can bearing on the question of whether

the stated purposes were pretext.

B

The second prong of Lemon examines whether the program at

issue has the primary effect of advancing or inhibiting religion.23

The Court has identified several types of impermissible effects.

Two are relevant here. First, we ask whether the program will

cause state-sponsored inculcation of religious beliefs.24 In the

context of this program, this inquiry dovetails with the coercion

test of Lee v. Weisman, asking whether the District has directed a

religious activity in such a way as to compel participation.25

These impermissible effects turn on whether the Program encourages

religious indoctrination or involves religious services.

The Supreme Court has assumed that a religious organization

may be unable to follow the secular guidelines of a program only if

the organization is “pervasively sectarian.”26 An interfaith group

of clergy in the program’s setting is not “pervasively sectarian.”

23
See Lemon, 403 U.S. at 612.
24
See Agostini v. Felton, 521 U.S. 203, 223 (1997).
25
See Lee, 505 U.S. at 586.
26
See Bowen, 487 U.S. at 612.

14
The volunteers are working in a secular setting with other

volunteers who subscribe to different faiths. Thus, we presume

that the volunteers will comply with the program’s secular

guidelines. The plaintiffs’ only evidence to the contrary, the

Bible quotation by one volunteer, is not sufficient to demonstrate

state-sponsored inculcation.

Similarly, because the counseling does not constitute a

religious exercise, the Program does not violate the coercion test.

We cannot imply from the presence of a minister that the message

cannot be secular – a commonsense observation that is also the law.

If no religious activity is at issue, any speculation as to whether

students might feel pressured to participate is irrelevant. We

conclude that the summary judgment record does not support a

conclusion that the program violates the coercion test.

We turn to the second group of impermissible effects: the core

question of non-neutrality. The Court has required that a

government allocate benefits among secular and religious

organizations in a neutral manner.27 A non-neutral program is

impermissible because it could convey the message that the

religion-oriented recipients are uniquely qualified to carry out

27
See Mitchell v. Helms, 120 S.Ct. 2530, 2541 (2000)
(plurality) (“[W]e have consistently turned to the principle of
neutrality.”); Rosenberger v. Rector & Visitors of the Univ. of
Va., 515 U.S. 819, 842 (1995) (discussing religion-neutral
criteria); Bowen, 487 U.S. at 605.

15
those services.28 Put another way, it is impermissible for the

government to “endorse” religion by conveying a message that

religion is preferred over non-religion.29

Apart from the principal dissent’s disagreement with the

majority’s reading of the record,30 the central disagreement among

the three opinions today is how we should measure the

constitutional significance of a program whose potential non-

neutrality or endorsement stems only from its symbolic affiliation.

This is not a case involving devotional activities,

proselytization, or benefits to religion. We are presented with a

symbolism case, but a unique version of one: one whose symbolism

draws not from a visual symbol, as in Allegheny v. ACLU, but from

a government-sponsored activity.

This difference presents some analytical difficulty, which

both dissents – while reaching opposed results – summarily dismiss.

Judge Jones would exclude the symbolic import of a group of clergy

28
See Bowen, 487 U.S. at 604-05 (permitting aid distributed
neutrally among secular and religious organizations and not
suggesting superiority of religious groups).
29
See Allegheny, 492 U.S. at 593.
30
Standing alone, that disagreement would warrant a remand –
not, as the dissent urges, summary judgment in favor of the Does.
The dissent argues that all reasonable inferences should be
construed in favor of the Does, but that rule extends only to
reviewing the summary judgment in favor of the District, not to
reversing and granting summary judgment to the Does.

16
from the Establishment Clause analysis altogether.31 The principal

dissent seizes upon the notion that “each decisional element” must

be scrutinized for constitutional failing but never bothers to

analyze what constitutes such a decisional element.

A government-sponsored activity such as a volunteer program

may indicate non-neutrality or endorsement. The key question is in

what context we assess that activity – by a narrow examination of

each individual extracurricular program, or from the perspective of

the District’s entire menu of volunteer mentoring and counseling

programs. The Supreme Court has allowed clerical figures to

perform secular duties as long as the government neutrally allowed

those duties to be performed by secular or religious figures.32 The

District argues that it allows and sponsors mentoring opportunities

for both religious and secular figures.

The principal dissent would have us look only at the clergy

program in answering the question of neutrality. We are assessing

a school’s volunteer program, however, not analyzing a statutory

scheme. While a statute addressing a particular matter is

presumably the legislature’s comprehensive treatment of that topic,

the District’s volunteer programs seem to be more piecemeal and

31
We are unsure of what rule Judge Jones’ dissent would
advance. At parts, it seems to contend that the program was
permissible regardless of the context in which it was offered. At
others, it appears to accept that the program’s legality hinges on
the presence of other volunteer programs.
32
See Bowen, 487 U.S. at 613; Roemer v. Board of Public Works,
426 U.S. 736, 745-46 (1976).

17
organized around groups of volunteers. For example, the DARE

program is organized around the participation of local police

officers, not as the District’s last word on the prevention of

substance abuse. Thus, the District’s grouping of clergy does not

appear to be a limit upon mentoring or counseling volunteer

opportunities of other groups. Looking at the District’s policies

in light of its entire volunteer program, we cannot say as a matter

of law that the program is not neutral with respect to religion.

This record, developed as it was on limited summary

proceedings, lacks sufficient detail regarding the overall set of

volunteer programs operated by the District to sustain a summary

judgment in either direction. We therefore leave this issue for

trial and instruct the district court to consider the entire set of

volunteer programs operated by the District – including, but not

limited to the “Clergy in the Schools” program – in answering the

question of whether the District preferred religion over

nonreligion.

The endorsement analysis under Allegheny, which begins with

the element that carries religious symbolism, also requires us to

examine the volunteer program as a whole. In a visual display,

every element carries with it complete symbolic content. The

elements are prototypical symbols, conveying a whole message within

a single visual marker. In our case, an individual clergy member,

wearing no vestments and untitled, is not a symbol. Instead, the

most basic symbolic element in our case is the clergy’s presence as

18
a counseling group. We agree with the Does that the presence of a

group of clergy participating in a program called “Clergy in the

Schools” carries some symbolic weight. Even if the clergy do not

wear their clerical vestments, the program suggests that they have

been chosen as a group because of a perceived expertise in the

fields of civic values and morals.

Again, we look at that symbol not in a vacuum, however, but

within its relevant context. In Allegheny, the Court did not focus

on a government’s decision to display a Chanukah menorah in

isolation, but considered it within the context of the government’s

inclusion of other elements including a Christmas tree and a sign

saluting liberty.33 The Court determined that the particular

setting “negated” any message of endorsement of religion.34

C

The Lemon test’s third prong bars excessive entanglement.35

Administrative cooperation alone does not constitute such a

violation. Only programs that require “pervasive monitoring” run

afoul of the Establishment Clause.36 The Court has held that to

33
Allegheny, 492 U.S. at 598-600, 614-18.
34
Id. at 595. As Justice O’Connor points out in her
concurrence in Allegheny, the setting does not neutralize the
object’s religious significance; rather, it “changes what viewers
may fairly understand to be the purpose of the display.” Id. at
635 (O’Connor, J., concurring) (citations omitted).
35
See Lemon, 403 U.S. at 612-13.
36
See Agostini, 521 U.S. at 232-34.

19
require from religious officials the performance of administrative

duties consistent with and not more onerous than those required

from non-religious officials in analogous programs does not

constitute excessive entanglement.37

In Agostini v. Felton, the Court found no excessive

entanglement where a school district sending public school teachers

to parochial schools under Title I provided training regarding the

secular nature of the program, required the removal of religious

symbols from private school classrooms, and made unannounced visits

to classrooms about once a month.38 The program here is very

similar to the controls in Agostini in terms of training and visual

symbols. The monitoring requirement could be characterized as

“pervasive” because an administrator attends every session, rather

than attending sporadically. Because the District monitors all of

its volunteer programs, however, that supervision imposes no unique

administrative burdens. That the District sent a mailing

soliciting the clergy volunteers appears to have been a function of

having no existing umbrella organization rather than an

administrative need occasioned by the volunteers’ religious

professions. In the absence of a need for the District to

undertake measures it does not follow with respect to other

programs, we find no excessive entanglement.

37
See Roemer, 426 U.S. at 764.
38
Agostini, 117 S. Ct.

20
 IV

Establishment Clause analysis requires that we be sensitive to

the context and circumstances attending each case.39 If the clergy

program is fairly viewed, on a fully developed record, as part of

a larger framework of secular mentoring and counseling programs, it

has not run afoul of the Establishment Clause. Here, the very

simplicity of mixing the clergy with others occasions the need for

a fact finder’s settlement of the reasons for the District’s

rejection of that solution. The record evidence leaves us with a

blurred picture of the District’s volunteer program as a whole. It

is unclear whether the mentoring in other programs is narrow in

scope, or whether it reaches to a meaningful degree the broader

counseling emphasized in the clergy program. This question is not

properly answered by merely considering the names of other programs

or the groups invited to participate. When an athlete comes, for

example, to speak to students about athletic achievement, that

discussion can be thin or thick. It can be a simple discussion of

winning techniques for a specific sport, or it can emphasize larger

themes of teamwork, self-discipline, goal setting, truth telling,

giving, relationships, and hard work; values the “clergy” must also

teach. Their very kindred nature would belie a preference for

religion over nonreligion – unless the district effectively took

the tack that only preachers can teach this subject.

39
See Allegheny, 492 U.S. at 636-37 (O’Connor, J., concurring).

21
 We cannot conclude as a matter of law that there is an absence

of genuine issues of material fact so as to sustain a grant of

summary judgment for either party on the question of whether the

District is preferring religion over non-religion. The district

court may find that only the clergy are invited to imbue these

values, that other programs differ in both mission and means, or it

may find that other professions similarly engage the students,

through the unique lens of their respective professions by active

mentoring through the powerful presence of lives well lived. That

the perspectives of the different programs differ is not a

touchstone of invalidity. To the contrary, the District urges that

it seeks the differing perspectives upon common values and civic

virtues – a quest that will produce different looks for the

components of a larger program. A trial must sort out these

assertions of fact.

V

Facts decide cases at every level and of all types. That a

case or controversy has no disputed questions of fact does not

undercut this statement. Nor is there some exception for cases of

public interest or for cases perceived by some measure to be more

important than others. No member of this Court would openly decide

questions of law that were not before the Court as part of a case

or controversy. This does not mean that it does not happen;

without a sound resolution of fact, this “case or controversy”

remains undefined, leaving its opinions to read like essays or

22
editorials about schools and religion. The dry legal observation

that an opinion fails to accept genuine issues of material fact

conceals its profound consequences. Facts and their resolution lie

too close to the heart of the judicial function to treat them as

little more than pieces of an erector set - available for use in a

writer’s envisioned design.

This leaves bench and bar to puzzle over what we have held

today. It is difficult because the opinions either soar past the

record or delve into its meager content for any inference, not

unlike an advocate preparing a closing argument. Nonetheless, the

principal dissent and this opinion share important common ground.

We agree that the summary judgment must be reversed and the case

remanded for trial, although the principal dissent would go

further, reversing and rendering judgment.

We agree that the ultimate question is whether the school

district impermissibly preferred religion over non-religion. This

agreement reflects our overarching agreement that the school

district owes a duty to be evenhanded in its policies toward

religion and non-religion, a duty of equality. Relatedly, we agree

that context is critical in assessing neutrality. We agree with

the principal dissent’s observation that, “had the school district

offered and factually supported a legitimate alternative

explanation for its clergy only recruitment policy, it would have

created a genuine issue of material fact, making a remand

necessary.” At the same time, this statement frames the difference

23
between our view and that of the dissenting opinion. We say the

record does provide that context, and the principal dissent says it

does not.

The principal dissent makes our point that this case must be

tried. Each of its arguments rest on a starting premise of the

facts. For example, in assessing whether the program has a secular

purpose, the principal dissent determines the question of fact on

appeal finding that there is no such fit. It then lays its accent

upon the failure of the district to include other professionals in

the single program it would examine. In short, virtually all of

the flaws with the program found by the principal dissent flow from

its willingness to accept as fact with no trial that this was a

single stand-alone program with no relevant kinship to the other

programs. With respect, asserting that the other programs are not

relevant begs the basic fact question of the fit of the clergy

program into the larger scheme of providing outside mentoring

opportunities.

We reverse the grant of summary judgment and remand to the

Chief Judge of the Eastern District of Texas for further

proceedings, including trial if necessary.

REVERSED AND REMANDED.

ENDRECORD

24
E. GRADY JOLLY, Circuit Judge, joined by JONES, SMITH, BARKSDALE,

EMILIO M. GARZA,40 and DeMOSS, Circuit Judges, dissenting on the

question of standing:

Article III of the Constitution requires a plaintiff to have

standing to litigate; absent standing, we have no constitutional

authority to consider the controversy. Here, the sole component of

standing at issue is that of “injury in fact.” The record

demonstrates the following indisputable facts: (1) the complaint

contains no allegation of an injury; (2) the plaintiffs’ response

to BISD’s motion to dismiss for lack of standing contains no

allegation of an injury; (3) the summary judgment record contains

no evidence of an injury; and (4) the plaintiffs failed to

articulate any argument to the district court that they have

suffered an injury. Yet, mindful of these facts, a majority of the

members of this court are willing to confer standing on the Does

despite the Supreme Court’s clear command in Lujan:

The party invoking federal jurisdiction bears the burden
of establishing [the elements of standing]. Since they
are not mere pleading requirements but rather an
indispensable part of the plaintiff’s case, each element
must be supported in the same way as any other matter on
which the plaintiff bears the burden of proof, i.e., with
the manner and degree of evidence required at the
successive stages of the litigation. . . . In response
to a summary judgment motion, however, the plaintiff can
no longer rest on such ‘mere allegations,’ but must ‘set
forth’ by affidavit or other evidence ‘specific facts,’

40
Judge Garza would also hold that the Does lack standing for
the reasons stated in his panel dissent. See Doe v. Beaumont
Indep. Sch. Dist., 173 F.3d 274, 300-01 (5th Cir. 1999)(Garza, J.,
dissenting).

25
 which for purposes of the summary judgment motion will be
taken to be true.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (citations

omitted). Further, the Supreme Court has emphasized that there is

no “sliding scale of standing” that would apply a different

standard to an Establishment Clause case. Valley Forge Christian

College v. Americans United for Separation of Church and State, 454

U.S. 464, 484 (1982). Instead, the same stringent requirements of

standing apply regardless of the origin or nature of the right

sought to be vindicated. Id. Consequently, because the plaintiffs

have clearly, unequivocally, and indisputably failed to carry their

burden of demonstrating that this case presents a “case” or

“controversy” under Article III of the Constitution, I respectfully

dissent.

Valley Forge is the only Supreme Court opinion fully to

address standing in the context of a challenge to a state action

under the Establishment Clause. 454 U.S. at 464.41 Valley Forge

41
Although the Supreme Court did not expressly address the
issue of standing in Santa Fe Indep. Sch. Dist. v. Doe, 120 S.Ct.
2266 (2000), its most recent pronouncement on the Establishment
Clause, one could point to language in the Court’s opinion to argue
that the “mere passage” of SFISD’s unconstitutional policy caused
injury to the plaintiffs. Santa Fe, 120 S.Ct. at 2281. Based on
a few sentences in the Santa Fe opinion, it is arguable, then, that
the Court has lowered the threshold for standing in Establishment
Clause cases. Yet we cannot blithely assume that the Court
intended to blur the fundamental distinction between the alleged
constitutional violation and the “injury in fact” that results from
the constitutional violation. The Supreme Court has unequivocally
stated that “[i]f a precedent of this Court has direct application
in a case, yet appears to rest on reasons rejected in some other
line of decisions, the Court of Appeals should follow the case

26
makes the following salient points: (1) “Article III of the

Constitution limits the ‘judicial power’ of the United States to

the resolution of ‘cases’ and ‘controversies.’” Id. at 471. (2)

In the light of this “bedrock requirement, this Court has always

required that a litigant have ‘standing’ to challenge the action

sought to be adjudicated in the lawsuit.” Id. (3) “The exercise

of judicial power, which can so profoundly affect the lives,

liberty, and property of those to whom it extends, is therefore

restricted to litigants who can show ‘injury in fact’ resulting

from the action which they seek to have the court adjudicate.” Id.

at 473 (emphasis added). (4) “The party who invokes the power [of

judicial review] must be able to show not only that the statute is

invalid but that he has sustained or is immediately in danger of

sustaining some direct injury as a result of its enforcement, and

not merely that he suffers in some indefinite way in common with

people generally.” Id. at 477 (citations omitted). (5) Focusing

on the requirement of “injury in fact, . . . citizens generally

which directly controls, leaving to this Court the prerogative of
overruling its own decisions.” Rodriguez de Quijas v.
Shearson/American Express, Inc., 490 U.S. 477, 484-85 (1989); see
also Shalala v. Illinois Council on Long Term Care, Inc., 120 S.Ct.
1084, 1096 (2000)(stating that the “Court does not normally
overturn, or so dramatically limit, earlier authority sub
silentio”); Williams v. Whitley, 994 F.2d 226, 235 (5th Cir.
1993)(stating that “absent clear indication from the Supreme Court
itself, lower courts should not lightly assume that a prior
decision has been overruled sub silentio merely because its
reasoning and results appear inconsistent with later cases”).
Consequently, our court is bound by the principles of standing
established by the Court in Valley Forge and Lujan.

27
[can] not establish standing simply by claiming an interest in

governmental observance of the Constitution, [they must] set forth

instead a particular and concrete injury to a personal

constitutional right.” Id. at 482. Drawing on these

principles, the Valley Forge Court stated:

Although respondents claim that the Constitution has been
violated, they claim nothing else. They fail to identify
any personal injury suffered by them as a consequence of
the alleged constitutional error, other than the
psychological consequences presumably produced by
observation of conduct with which one disagrees. That is
not an injury sufficient to confer standing under Art.
III, even though the disagreement is phrased in
constitutional terms. It is evident that respondents are
firmly committed to the constitutional principle of
separation of church and state, but standing is not
measured by the intensity of the litigant’s interest or
the fervor of his advocacy. That concrete adverseness,
which sharpens the presentation of issues, is the
anticipated consequence of proceedings commenced by one
who has been injured in fact; it is not a permissible
substitute for the showing of injury itself.

Id. at 485-86. Thus, the Court held, because “we simply cannot

see that respondents have alleged an injury of any kind,” they lack

standing to bring the current litigation. Id. at 487.

Focusing on the record in this case--and mindful of where the

burden of proof lies--the plaintiffs have failed utterly to

identify and prove a “particular” and “concrete” injury resulting

from the implementation of the Clergy in Schools Program. The

reason--indeed the wisdom--for the Supreme Court’s insistence that

the plaintiffs prove a concrete, palpable injury is best

illustrated by the confusion among the members of the court in

28
actually determining the injury sustained by the Does. Throughout

the briefing, opinions, and discussions in this case, injury has

been an exceedingly elusive target.42 The panel initially

identified the injury suffered by the Does’ in these words:

[T]he Doe children attend schools in which the program
operates, and they are continually at risk of being
selected by BISD administrators, without advance notice
and without parental consent. . . . The Does are not
simply claiming that the Constitution has been violated
in some distant place, with personal injury predicated on
having been aware of or having observed conduct with
which they disagree. Quite to the contrary, the Does
leave home every morning of the school year to attend
schools in which the program is ongoing. This Damoclean
threat removes the Does’ claim from the realm of
generalized grievances and provides the degree of
‘concrete adverseness’ necessary for the adjudication of
constitutional issues.

Doe v. BISD, 173 F.3d 274, 283-84 (5th Cir. 1999).

This judge-created injury, however, proved to be less than

persuasive to a majority of the members of this court--although it

now appears that Judge Wiener has returned to it in his dissenting

42
In their appellate brief, the plaintiffs--addressing injury
for the first time--allege that they have standing “both as private
litigants and as taxpayers.” Specifically, the plaintiffs allege:
Because BISD implements the ‘Clergy in Schools’ program
in their children’s schools and because their children
are subject, at any time, to being designated by BISD to
receive counseling from the Clergy, Appellants have
established actual and/or threatened injury traceable to
BISD’s conduct. Additionally, because BISD expends
public funds on the ‘Clergy in Schools’ program,
Appellants have standing, as taxpayers, to challenge
BISD’s conduct.

29
opinion.43 During the course of the further briefing, arguing, and

consideration of this appeal, the injury has been re-characterized

several times. For example, one attempt to describe the injury was

articulated as “a Catch-22 avoid-avoid dilemma of having to choose,

instanter and without parental consultation, between participating

in the unconstitutional Program or declining to do so and thereby

subjecting himself to the potential opprobrium of his teachers and

peers.” I make this reference simply to illustrate the imprecision

of actual injury that results when the plaintiffs themselves fail

43
This judge-made injury is even less plausible in the light
of the evidence regarding the adoption of a parental consent
policy. At oral argument before our en banc court, BISD was
directed to supplement the record with evidence of the new consent
policy. In response, BISD submitted various items of evidence
including the affidavit of a program coordinator stating that each
school is now required to obtain parental consent for each student
who participates in the program. Further, it appears that this
policy has been implemented by at least five of the BISD schools.
Before leaping to the unsupported conclusion that standing
exists because of the “Damoclean threat” that hangs over the Does
“every morning of the school year” and proceeding to find a
violation of the Establishment Clause, the case should at least
have been remanded to the district court for a determination of
whether the injury proclaimed by Judge Wiener actually exists
before spending more than a year to produce a wholly fractured
decision on the substantive constitutional issue. See e.g.,
Matthews v. Marsh, 755 F.2d 182, 183-84 (1st Cir. 1985)(remanding
in the light of new evidence to avoid constitutional question);
Concerned Citizens of Vicksburg v. Sills, 567 F.2d 646, 650 (5th
Cir. 1978)(remanding in the light of intervening events so district
court could determine if federal jurisdiction still existed); Korn
v. Franchard Corp., 456 F.2d 1206, 1208 (2d Cir. 1972)(“[W]hen
circumstances have changed between the ruling below and the
decision on appeal, the preferred procedure is to remand to give
the district court an opportunity to pass on the changed
circumstances.”).

30
to identify and prove what particular injury (or threat of injury)

they have suffered.

Now, undaunted by past failures, Judge Higginbotham has recast

the Does’ injury once again--again without record evidence to

support it.44 According to Judge Higginbotham, the Does’ injury is

44
It should be emphasized that contrary to Judge Higginbotham’s
assertion in note 13, there is no evidence in the record that
alleges that the Doe children wanted to participate in the Clergy
in Schools Program, or that as a result of the program’s “religious
content,” they have been injured or threatened with injury. The
evidence that Judge Higginbotham struggles to construe as
supporting his judge-created injury is (1) the correspondence sent
by the Doe parents to the BISD before filing suit that indicated
that lay officials should participate in the Program, and (2) the
testimony of one parent and three affidavits of other parents that
were attached to the Does’ response to BISD’s motion for summary
judgment that raise objections to how the program was being
conducted (e.g., “I believe the Clergy in Schools program should be
broadened to include people from other walks of life;” “I am
particularly concerned that BISD has not notified me that this
program was being administered;” and “I’m simply asking one thing,
and that is to do something to redefine, to redevise this program
where . . . it would include other professionals and not focus on
religious leaders”). Neither the letters nor the evidence
attached to the Does’ response to BISD’s motion for summary
judgment indicated whether the Doe children wanted to participate
in the program--or for that matter, in any counseling program--or
that the Doe children were in some way being injured as a result of
the program’s “religious content.” Consequently, it is hard to
imagine how Judge Higginbotham can find any support for his alleged
injury in these portions of the record.
Judge Wiener’s dissenting opinion again returns to Greek
mythology to create a Damoclean-like injury sufficient to convey
standing upon the Does:

[T]he Does have presented ample record evidence to show
that every single day that their children attend school
they are subjected to the threat of a constitutional
injury. . . . The Does . . . object to their children’s
being forced personally to run the risk every day of
being subjected to a religion-endorsing program that
operates in their very own schools. This ever-present,
tangible risk, faced in the very school buildings that

31
the denial of access to the “full curriculum offered by the

school”:

There is little doubt that limiting access to the full
curriculum offered by the school would injure these
students. . . . Opportunities for counseling and
mentoring services are a needed and valued component of
public education. The District supported this mentoring
program with its money and resources. At bottom, the
claim is that the program unconstitutionally prefers
religion over non-religion, that the students cannot
participate in the school’s offered program without
taking part in an unconstitutional practice. If found
at trial, this works a deprivation of a student’s right
not to be excluded from the benefits of a school-financed
educational offering--a concrete, judicially cognizable
injury.45

they are compelled by law to attend, is more than
sufficient to vest the Does with Article III standing, as
injured parties, to bring their complaint.

This “ample record evidence” remains unidentified, a secret
safeguarded from the rest of us. It does seem that some plaintiff
would have at least observed this omnipresent threat that is a
feature of his/her daily life. There is not, however, a
scintilla of evidence in the record to suggest that any plaintiff
ever felt “threatened” by the Clergy in Schools Program.
It is worth noting that the completely different arguments
with respect to standing offered by Judge Higginbotham and Judge
Wiener underscore the total absence of any alleged injury or proof
of injury in the record. These arguments make pellucid that the
different injuries asserted by them are simply judge-created.
45
To conclude that the Does have suffered an injury, it is
necessary for Judge Higginbotham to brush aside Supreme Court
authority and to rely on three opinions of our sister circuits.
After reviewing these opinions, it is still unclear where the
support for Judge Higginbotham’s conclusion can be found.
In Foremaster v. City of St. George, 882 F.2d 1485, 1490 (10th
Cir. 1989), the plaintiff “alleged that he suffered economic injury
because the subsidy [paid by the city owned power company to light
a local Mormon temple at night] caused him to pay higher rates for
electricity.” Id. at 1487. The court, relying on evidence in the
record establishing that the plaintiff had bought electric power
from the city between 1983 and 1987, held that as a result of the
city’s expenditure of funds to pay for the lighting of the temple,

32
 This newly minted injury, however, fares little better than

its predecessors when analyzed in the light of Valley Forge and

Lujan. The supposed individualized injury of denial of full

the plaintiff had “suffered a ‘distinct and palpable’ injury.” Id.
at 1487-88. The court reasoned that “[t]o the extent that this
subsidy diminished total revenues for the City’s Utility
Department, the Utility Department and the purchasers of
electricity are less well off and those purchasers may very well
pay higher rates.” Id. at 1487.
In Hawley v. City of Cleveland, 773 F.2d 736 (6th Cir. 1985),
the plaintiffs specifically alleged in their complaint “that they
‘regularly use Cleveland Hopkins International Airport’” and that
the “presence of a sectarian chapel at Cleveland Hopkins impairs
[their] use and enjoyment of the public facility.” Id. at 739.
The court, holding that the plaintiffs had suffered a sufficient
injury to convey standing stated: “Even if [the plaintiffs] can
avoid the chapel area by utilizing different concourses or
stairways, this impingement on their right to use the airport is
sufficient to confer standing since it would ‘force them to assume
special burdens’ to avoid ‘unwelcome[d] religious exercises.’” Id.
at 740; see also ACLU v. City of St. Charles, 794 F.2d 265, 269
(7th Cir. 1986)(stating that the plaintiff’s testimony “that she
detours from her accustomed route to avoid the cross when it is
lit . . . is all that is needed to enable the suit to be
maintained”).
Finally, in Bell v. Little Axe Indep. Sch. Dist. No. 70, 766
F.2d 1391 (10th Cir. 1985), the “[t]estimony in the record
indicat[ed] that other students asked the [plaintiffs] why they had
not chosen to attend the meetings, asserting that they therefore
must not believe in God.” Id. at 1196. Further, the plaintiffs’
parents testified that “they have the right to guide their
children’s religious education without interference at school.”
Finally, testimony was offered that indicated that the plaintiffs’
parents were forced to remove their children from the public school
they attended “because of the continuing harassment generated by
the lawsuit.” Id. at 1399. Thus, the court concluded that the
plaintiffs “had standing to bring this lawsuit.” Id.
In each of the three cases cited by Judge Higginbotham, the
plaintiffs specifically alleged that they suffered definite
particularized injuries resulting from the challenged conduct.
Further, in each of these cases, the plaintiffs offered evidence in
support of these alleged injuries. These two critical facts are
absent in the case before us where the injury is purely judge
created.

33
participation in the school’s curriculum, is, if it exists at all,

remote, abstract, and nonconcrete. No Doe has ever indicated that

he or she wants counseling services. The record is clear that none

of the Does has ever been asked to participate in the program. No

evidence exists that the Doe children will ever be selected for the

program. Thus, the injury suffered by the Does cannot be the

deprivation of the actual opportunity to participate in the full

curriculum of the school, because none of the Does either have been

selected for the program or have shown that they are potential

candidates for selection.

Consequently, the injury (or threat of injury) created by

Judge Higginbotham from a wanting record can be reduced to one

arising from the unalleged, unproved possibility that if one of the

Doe children were to be asked to participate in the Program, he or

she might be compelled to refuse because of religion-based

objections, and thus be denied the benefit of counseling that the

particular program (Clergy in Schools) offers--a program in which

he or she may not wish to participate in any event. As we have

noted, because the record was not developed with this injury in

mind--or for that matter with any injury in mind--the plaintiffs

have failed to carry their burden of establishing that such an

injury is concrete as opposed to merely hypothetical or

speculative.46

46
The plaintiffs have failed to offer any evidence
demonstrating that the Doe children fall into any one or more of

34
 I stress what I have previously stated: The Supreme Court has

stated on numerous occasions that the injury suffered by the

plaintiff must be “an invasion of a legally protected interest

which is (a) concrete and particularized, and (b) actual or

imminent, not conjectural or hypothetical. Abstract injury is not

enough.” City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983).

Remote threat of injury is not enough. Id. “The plaintiff must

show that he has sustained or is immediately in danger of

sustaining some direct injury as a result of the challenged

official conduct. . . .” Id. Stated differently, the Supreme

Court has “emphasized repeatedly, [the injury] must be concrete in

both a qualitative and temporal sense. The complainant must allege

an injury to himself that is distinct and palpable, as opposed to

merely abstract, and the alleged harm must be actual or imminent,

not conjectural or hypothetical.” Whitmore v. Arkansas, 495 U.S.

149, 155 (1990)(citations omitted).47 Further, the Supreme Court

the categories that would make them eligible for selection into the
Clergy in Schools Program. Although the categories are defined in
very broad terms, they nonetheless identify a specific set of
criteria upon which the school is to rely in identifying potential
participants for the program. In the absence of evidence
indicating which characteristics the Doe children possess, it is
impossible to determine whether they would have been eligible for
selection.
47
The Supreme Court’s most recent opinion addressing standing
expressly acknowledges these principles. See Friends of the Earth,
Inc. v. Laidlaw Environmental Services, 528 U.S. 167, 180-81
(2000) (quoting Lujan, 504 U.S. at 560-61). In Laidlaw, the Court
began its discussion of standing by stating: “The relevant showing
for purposes of Article III standing . . . [is] injury to the
plaintiff.” Id. at 181. The Court then went on to outline in

35
has made clear that the burden of establishing the presence of such

a concrete and palpable injury falls squarely on the shoulders of

the plaintiff. See Lujan, 504 U.S. at 561. It is incontrovertible

on the record in this case--and neither Judge Higginbotham nor

Judge Wiener denies this fact--that the plaintiffs have failed,

completely and totally, to offer allegations or proof of an injury.

Finally, it is important to note that my disagreement with the

majority of the members of this court is not that the plaintiffs

could have under no set of circumstances alleged and offered

sufficient evidence of “injury in fact.” Instead, my disagreement

is solely that the plaintiffs in this case have failed even to

allege--much less offer any proof of--any injury suffered as a

result of attending schools that participate in the Clergy in

Schools Program. Consequently, because a majority of the members

of this court, without citing any authority that would permit them

to do so, are willing to create an injury when none has been

alleged and proved, I must respectfully dissent.

ENDRECORD

great detail the numerous affidavits and depositions in the record
that establish the existence of an injury to the “affiants’
recreational, aesthetic, and economic interests.” Id. at 183-84.
Thus, the Court concluded that “[t]hese sworn statements, as the
District Court determined, adequately documented injury in fact.”
Id. at 183.

36
EDITH H. JONES, Circuit Judge, join by SMITH, BARKSDALE, EMILIO M.

GARZA and DeMOSS, Circuit Judges, dissenting:

We respectfully dissent from the decision to remand this

case for further proceedings in the district court.

One must pity the parties and the district court when, or

if, they grapple with remand. Since there is no majority legal

rationale to follow, they need a hint: count heads. Eight of us

say that the clergy in schools (CIS) program is or may be

constitutional, six say it can never be so, and one abstains on the

merits for jurisprudential reasons. To read the three “remanders,”

who quote often and approvingly from the “principal dissent,” the

reader might not remember where they came out. But they appear to

conclude that CIS can play a constitutionally approved role in the

Beaumont Independent School District if it has a secular purpose

and if it is arrayed among other voluntary programs that teach

similar shared civic values. While posing as the sensible middle

between contentious factions, the remanders’ position nevertheless

inflicts damage -- on a sense of legal proportion and on the

already-turbid law of the Establishment Clause.

I. NO SENSE OF PROPORTION

What is the value of remand here? The remanders never

clearly state what additional facts may be proved in order to

establish the heretofore uncontested proposition that BISD had a

37
legitimate secular purpose for creating the CIS program.48 It is

both legitimate and secular to invite semi-official visitors to

campus to reinforce in public school students the existence and the

desirability of conforming to shared standards of community

morality. Placing emphasis on the substance of the program, rather

than on the irrelevant and wholly personal, unofficial motives of

a few of the program’s supporters, there is no genuine issue of

material fact that needs further development.

Similarly opaque is the remanders’ discussion about what

further information the district needs to elicit concerning other

volunteer programs in order to prove its religious “neutrality.”

Our legal objections to this holding will be discussed shortly.

What is troubling at this point is the idea that the school

district must spend additional tens of thousands of dollars in

attorneys’ fees to defend a program that may reach 60-70 students

in the high school twice a year for a total of four hours.49 CIS

is a program of exceedingly modest scope and exceedingly stringent

limitations on its clergy participants. If this tiny innovation in

community values-based education must run a prohibitively expensive

legal gauntlet, then the remanders’ position can hardly be

differentiated in practical terms from Judge Wiener’s dissent.

48
The original panel majority opinion did not quarrel that this
first prong of the Lemon test was satisfied. See Doe v. Beaumont
ISD, 173 F.3d 274, 287 (5th Cir. 1999).
49
The number of students potentially affected in other BISD
schools is similarly small.

38
Rational school districts cannot afford to litigate over similar

innovations and will be discouraged from pursuing any initiatives

that call into question their appearance of neutrality between

religion and non-religion. The remanders’ position may ultimately

vindicate BISD, but at great cost to schools’ autonomy and

creativity in addressing the pressing subject of values-based

education.

II. ESTABLISHMENT CLAUSE CONFUSION

Unlike the remanders and Judge Wiener’s dissent, we are

not constitutionally concerned about the alleged pro-religious

symbolism connoted by the Clergy in Schools program, nor would we

chide the Beaumont school board for making “a difficult case out of

an easy one” by excluding lay counselors from this volunteer

program.50 The other opinions are unnecessarily overwrought by the

Allegheny endorsement test, which has been applied only to prohibit

government-sponsored religious speech. The more clearly analogous

cases51 are those that “endorse” government’s sending “even a

cleric” to perform wholly secular tasks.

The endorsement test “preclude[s] government from

conveying or attempting to convey a message that religion or a

particular religious belief is favored or preferred.” County of

50
Several of us concur in Judge Jolly’s separate opinion on
standing, but we reach the merits because the rest of the court
does so.
51
And it must be admitted that hardly anything is “clear” under
the Court’s Establishment Clause caselaw.

39
Allegheny v. ACLU, 492 U.S. 573, 593, 109 S.Ct. 3086, 3101 (1989)

(quoting Wallace v. Jaffree, 472 U.S. 38, 70, 105 S.Ct. 2479, 2497

(1985)). The content of the CIS program does not do so. By its

very nature and proven operation, the CIS program does not

inculcate religious beliefs or practices. Quite the contrary, the

record refutes any suggestion of improper proselytizing by the

clergy volunteers.52 The volunteers are required to shed all

evidence of their profession -- from clerical collars to scriptural

quotations -- in order to participate. The facts that the purpose

and operation of the program are wholly secular, and that the Does

find no constitutional fault in the content of the program,

reinforce that there is no government-sponsored religious speech

and no inculcation or endorsement of religious beliefs.

The Does contend instead that because clergy are

exclusively involved in the program, the District has singled them

out for special status and has effected “a symbolic union” with

organized religion. This argument fails for at least three

reasons. First, Supreme Court caselaw does not support this

contention. Agostini expressly disavowed the presumption applied

in earlier Court cases that the presence of government-subsidized

teachers or assistants on parochial school premises inherently

involves unconstitutional indoctrination or symbolic union.

52
The one instance in which a volunteer quoted scripture and
was reproved is the exception that, on this record, proves the
rule.

40
Agostini v. Felton, 521 U.S. 203, 222, 117 S.Ct. 1997, 2010 (1997);

see also Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1,

12-13, 113 S.Ct. 2462, 2468-69 (1993). In the same way, it should

not be presumed that the presence of clergy on a public school

campus automatically raises constitutional questions.53 If

anything, given the fact that in some religious denominations, non-

ordained pastors and religious workers support themselves by

holding teaching positions, no such assumption is warranted.

Further support for this conclusion is found in a series

of cases in which the Court emphasizes that the government may send

“even a cleric” to perform a secular task. Bradfield v. Roberts,

175 U.S. 291, 298, 20 S.Ct. 121, 123 (1899) (holding that the

religious affiliation of a hospital was “wholly immaterial” to the

Establishment Clause analysis); Roemer v. Bd. of Pub. Works of

Maryland, 426 U.S. 736, 746, 96 S.Ct. 2337, 2344 (1976). In Bowen

v. Kendrick, the Court approved the facial constitutionality of a

federal statute that subsidized both religious and nonreligious

organizations to counsel pregnant, unwed teenagers in nonsectarian

matters. Bowen, like Agostini, distinguished between aid that

serves religious and that which serves nonsectarian functions.54

53
See McDaniel v. Paty, 435 U.S. 618, 629, 98 S.Ct. 1322, 1329
(1978) (“[there is]no persuasive support for the fear that
clergymen . . . will be less careful of anti-establishment
interests . . . than their unordained counterparts.”).
54
The Court also stated in Bowen: “. . . there is nothing
inherently religious” about the activities of education and
counseling authorized by the federal statute. 487 U.S. at 605; 108

41
And in Bowen, the Court rejected the “symbolic union” argument in

a more complex situation than is presented here. The counseling

programs authorized by Congress could occur off-campus, in and

around religious facilities, and there was no prohibition, as there

is in the CIS program, of one-on-one counseling. Continuous

monitoring of the counseling was not required, and the program

contemplated that individual unwed mothers could be counseled by

members of one religious organization. Bowen refused to presume

that the statute would be implemented in an unconstitutional

manner. 487 U.S. at 611-12, 108 S.Ct. at 2575-76. The decision

holds that religious agencies may be assigned and even subsidized

by government to perform secular tasks under appropriate

guidelines. Bowen would seem to ordain the approval of a program

like CIS, which enforces even more rigorous guidelines for secular

counseling and uses clergy as sporadic, unpaid volunteers.

Second, as Rosenberger makes clear, courts must focus “on

the nature of the benefit received by the recipient.” Rosenberger

v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 843, 115

S.Ct. 2510, 2523 (1995). In funding cases, the benefit is apparent

-- financial assistance. In order for a funding program to pass

the endorsement test, the government cannot define the recipients

of aid by reference to religion or otherwise encourage religious

activity as a condition of receipt of aid. Agostini, 521 U.S. at

S.Ct. at 2572.

42
230-31, 117 S.Ct. at 2014. But this criterion does not apply in

the present case because neither subsidies nor religious activities

are involved. Moreover, there is no evidence that students were

invited to participate in CIS because of any religious test or

affiliation. Thus, any benefit to religion is too attenuated to

violate the Establishment Clause. As the Court noted in Bowen,

“religious organizations can help solve the problems to which the

[program] is addressed. Nothing in our previous cases prevents

[BISD] from making such a judgment or from recognizing the

important part that religion or religious organizations may play in

resolving certain secular problems... To the extent that this ...

recognition has any effect of advancing religion, the effect is at

most ‘incidental and remote.’” Bowen, 478 U.S. at 607, 108 S.Ct.

at 2573.55

Finally, the Does’ argument that the flaw in the program

is its exclusive reliance on clergy proves too much. Clergy

members are not inanimate religious symbols whose mere presence in

55
The remanders’ opinion asserts that this analysis of the
status of the CIS program within BISD’s panoply of volunteer
counseling programs is ambiguous. We disagree. First, the fact
that CIS was treated no differently from other volunteer programs
reinforces the conclusion that any benefit to or preference for
religion was incidental and remote. See Bowen, supra, 478 U.S. at
607, 108 S.Ct. at 2573. Second, to the minor extent that Allegheny
is relevant to this case, we agree with the majority that the
proper context in which to consider the possible endorsement of
religion is the full scope of the BISD volunteer programs, not the
novel “single decisional element” test espoused by the dissent. If
anything, it is the remanders’ novel “thick and thin” theory of
religious neutrality that is ambiguous.

43
a school generates constitutional suspicion. Compare Allegheny,

supra. Indeed, in Roemer, the Court upheld a government subsidy to

Maryland’s schools of higher education though well aware that in

most of the recipient schools, priests wearing clerical garb would

teach the subsidized classes. Roemer, 426 U.S. at 756, 96 S.Ct. at

2350; see also Bradfield, supra. Critically, however, those

classes were secular. Likewise, the presence of clergy volunteers

should not alone imply endorsement.56 Their prescribed message is

secular. The clergy members were avowedly recruited because of

their expertise in counseling, communication, and understanding of

the community -- in other words, for their secular, not their

religious skills.57 The District no more endorsed religion by

sponsoring CIS than it would by inviting a speaker like Archbishop

Desmond Tutu or Rabbi Hyman to deliver a non-proselytizing address

to the students.

56
As Justice Brennan notes in Paty, the Establishment Clause
“does not license government to treat religion and those who teach
or practice it, simply by virtue of their status as such, as
subversive of American ideals and therefore subject to unique
disabilities.” 435 U.S. at 641, 98 S.Ct. at 1335 (Brennan, J.,
concurring).
57
Whether or not this court subscribes to the District’s
attribution of unique counseling and communication skills, as well
as specific training in ethics, to the clergy is not
constitutionally relevant. School districts are free to experiment
with the curriculum, particularly in areas as important as the
inculcation of fundamental shared civic values, so long as they do
not prescribe religious exercises or compel assent to religious
belief.

44
 Because we believe that the relevant cases here are

Agostini, Bowen, Roemer, and Bradfield, and that Allegheny’s test

offers more chance for mischief than clarification in the school

context, we dissent from remanding this case and would affirm the

district court’s judgment that it is constitutional as a matter of

law.

45
WIENER, Circuit Judge, joined by POLITZ, BENAVIDES, STEWART, PARKER, and

DENNIS, Circuit Judges, concurring in part and dissenting in part:

Even though I agree with a majority of the fifteen judges comprising

this en banc court58 that (1) the Does have standing to bring their claims,

(2) the district court improvidently granted summary judgment to the

Beaumont Independent School District (sometimes “BISD” or “the School

District”), and (3) the ultimate question in this appeal is whether Clergy

in Schools (sometimes “the Program”) is neutral toward religion, I am

constrained to write separately for two principal reasons: First, because,

like the five other judges who join me to form today’s six-judge

plurality,59 I am convinced that the record in this appeal is more than

sufficient to support a summary judgment that the Program is

unconstitutional; and second, because a tiny minority of three out of

fifteen judges (“the Controlling Minority”60) has managed to consign this

three-year-old appeal to jurisprudential limbo (if not purgatory) by

remanding it to the district court, even though the remaining twelve judges

58
Since the granting of en banc review in this case, Judge
Politz has elected senior status. He remains, however, a member of
the en banc court by virtue of his active status at the time that
en banc review was granted.
59
See Black’s Law Dictionary 1154 (6th ed. 1990) (“[a]n
opinion of an appellate court in which more justices join than in
any concurring opinion (though not a majority of the court)”).
60
See Marks v. United States, 430 U.S. 188, 193 (1977) (“When
a fragmented Court decides a case . . . the holding of the Court
may be viewed as that position taken by those Members who concurred
in the judgments on the narrowest grounds.”).

46
stand ready to dispose of the case, one way or the other, on the existing

record.

The “silver lining” of this otherwise clouded result is that nine of

fifteen judges now agree that, when reduced to its essentials, this case

turns on a single substantive issue: Does a government decision-maker

violate the Establishment Clause by using status as a clergyman as the sole

criterion for recruiting participants to staff and run a government-created

public school program, i.e., when the one and only selection criterion is

patently not neutral toward religion? Both now and on remand, when applied

to the challenged Program, this one question encapsulates the entire

Establishment Clause analysis in this case, primarily the assessment of the

Program’s neutrality toward religion, but also its endorsement effect and

its compliance with each of the three disjunctive prongs of Lemon.61 So,

even though nine of the fifteen judges who considered the en banc rehearing

are in full agreement that the case turns on that question, and twelve of

the fifteen judges are ready to answer it, one way or the other, based on

the summary judgment evidence before us today, this case is being remanded

—— a quintessential example of the tail wagging the dog.

As for the nine of us who agree that this case turns on whether Clergy

in Schools is neutral toward religion, the three judges comprising the

Controlling Minority part company with the remaining six of us when it

comes to the frame of reference within which to test the constitutionality

of the Program. The Controlling Minority constructs a huge —— and, in my

61
Lemon v. Kurtzman, 403 U.S. 602 (1971).

47
view, vastly overbroad —— framework: the School District’s entire School

Volunteer Program, which the record amply shows to be no more than a

hodgepodge of disparate activities furnished to BISD by pre-existing,

external organizations —— not a cohesive, coordinated group of programs

created or assembled by BISD —— with one exception: Clergy in Schools, the

only volunteer program created “from scratch” by BISD. More importantly,

it is the only volunteer program that, from the very beginning, has been

staffed by “volunteers” actively recruited by BISD; and, most importantly,

BISD has used religious ordination as the sole litmus test for recruiting

these volunteers. In addition, the Controlling Minority has subtly

substituted the Equal Protection Clause for the Establishment Clause,

impermissibly framing the ultimate issue in terms of “equality of

treatment” rather than the neutrality that the Constitution demands.62 This

simply cannot be squared with the position taken in June 2000 by five

Justices of the Supreme Court who agreed in Mitchell v. Helms that “our

most recent use of ‘neutrality’ to refer to generality or evenhandedness

of distribution . . . is not alone sufficient to qualify [government] aid

as constitutional.”63

The Program’s exclusionary recruitment criterion and its facial lack

of neutrality have convinced the six-judge plurality for whom I write today

62
See Controlling Minority Opinion at 2 (“The ultimate
question in this Establishment Clause case is equality of
treatment: whether the school board preferred religion over non-
religion.”).
63
__ U.S. __, 120 S.Ct. 2530, 2557-58 (2000) (O’Connor, J.,
concurring) (punctuation and citation omitted).

48
to choose a much narrower framework than that confected and applied by the

Controlling Minority. For the six of us, I shall proceed to test the

Program’s neutrality on its own elements —— as we must —— even though, for

context and contrast, I shall also consider and compare features of other

volunteer programs to confirm the uniqueness of Clergy in Schools.

The wide-angle lens fabricated by the Controlling Minority works to

obscure the core issue of this appeal, the Program’s neutrality toward

religion, by laying a smokescreen of wholly unrelated, truly voluntary

programs that are (1) furnished to BISD (not created by it) by pre-

existing, external, wholly secular organizations and (2) conducted by their

own members (who are not selected by BISD). Only by thus unduly broadening

the framework for its analysis, from the specific program under challenge,

i.e., Clergy in Schools, to the entire School Volunteer Program, can the

Controlling Minority craft a rationale to support a remand. In fact, quite

recently, our colleagues of the Sixth Circuit repudiated the Controlling

Minority’s notion that if a “set of [government] programs together comprise

a mosaic that is neutral with regard to religion, then the Establishment

Clause is not offended.”64 In Simmons-Harris v. Zelman, that court was

unpersuaded by the government’s argument that other, secular educational

options available to parents were in any way even relevant to the

Establishment Clause analysis of the challenged school voucher program.65

64
See Controlling Minority Opinion at 2.
65
No. 00-3055/3060/3063, 2000 WL 1816079, at *12 (6th Cir.
Dec. 11, 2000) (“Analyzing the scholarship program choices as
compared to choices or schools outside the program is asking this
Court to examine the entire context of Ohio education. Such a

49
The court thus flatly rejected the government’s effort to expand the frame

of reference for its Establishment Clause analysis beyond the one school

program that had been challenged.66 Like the voucher program, Clergy in

Schools is a free-standing government program, which must therefore be

tested independently.

Moreover, the Controlling Minority’s avowed purpose of remand is to

adduce evidence that I see as not only irrelevant and immaterial but also

nonexistent. Indeed, were there evidence of multiple volunteer groups

being coordinated by the School District to indoctrinate comprehensively

the students of Beaumont public schools in morals and civic virtues, BISD’s

able counsel would surely have gotten it into the record.

More astonishing is the fact that BISD has never advanced that it

solicits or accepts any other volunteer efforts, much less secular ones,

for the purpose of inculcating morality and civic virtues in the students.

To the contrary, counsel for the School District candidly admitted at oral

argument that Clergy in Schools is the only program designed by BISD to

address morality and civic virtues. Yet the Controlling Minority has now

“lawyered” this fiction of “programs similar in purpose and function” for

question is not before this court. . . . [T]he school voucher
program, and only the school voucher program, was challenged by
Plaintiffs in this lawsuit. . . . We may not view these two
programs as inextricably interdependent when the plain language of
the statutory scheme demonstrates the opposite. . . . [W]e are
presented only with the question of whether the school voucher
program violates the Establishment Clause, and we must limit
ourselves to that issue, regardless of the temptations Defendants’
arguments present.”).
66
Id.

50
the first time on appeal —— a ploy that would be summarily dismissed on

grounds of waiver if BISD’s lawyers had tried it. The most regrettable

side effect of this judicial overreaching is the sweeping of this 3-year-

old appeal back under the carpet for the untold additional years it will

take for the district court to conduct a futile evidentiary exercise to

adduce facts that, even if they existed, would be irrelevant and

immaterial, and for us to hear another appeal and, quite likely, another

rehearing en banc.

When Clergy in Schools is tested, as it should be, in the proper frame

of reference, remand is seen to be entirely futile and unnecessary. As I

shall demonstrate, the record is more than sufficient to test the Program

for neutrality toward religion —— and thus for this court to vote it up or

down on summary judgment —— without causing the hollow act of a regrettably

lengthy, costly, wasteful, and (it seems to me) improvident remand.67

I.

67
As the primary purpose of this dissent is to demonstrate
that the Does are entitled to summary judgment, I shall throughout
this opinion construe the facts in the light most favorable to the
School District. Under the summary judgment standards recently
articulated by the Supreme Court, “the court must draw all
reasonable inferences in favor of the nonmoving party, and it may
not make credibility determinations or weigh the evidence.
Credibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions,
not those of a judge. Thus, although the court should review the
record as a whole, it must disregard all evidence favorable to the
moving party that the jury is not required to believe. That is,
the court should give credence to evidence favoring the nonmovant
as well as that evidence supporting the moving party that is
uncontradicted and unimpeached, at least to the extent that that
evidence comes from disinterested witnesses.” Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. __, 120 S.Ct. 2097, 2110 (2000).

51
 The Neutrality Principle: County of Allegheny v. ACLU68

The Supreme Court has repeatedly held that the Establishment Clause

requires the government to maintain “a course of neutrality among

religions, and between religion and nonreligion.”69 The granting of

preferential treatment according to a purely religious criterion

indisputably creates a strong perception of government endorsement of

religion,70 and at times may even directly aid the religiously affiliated

in the pursuit of their sectarian endeavors.71 Endorsement of and direct

aid to religion are equally proscribed by the Establishment Clause, and

both have consistently been held by the Supreme Court to have the

68
492 U.S. 573 (1989).
69
See Bowen v. Kendrick, 487 U.S. 589, 607 (1988). See also
School Dist. of Abington Twnshp. v. Schempp, 374 U.S. 203, 225
(1963) (striking down a school program because of its “breach of
neutrality”); Roemer v. Bd. of Public Works of Maryland, 476 U.S.
736, 747 (1976) (“Neutrality is what is required”); Bowen, 487 U.S.
at 607 (upholding a grant program that “reflect[ed]... [a]
successful maintenance of a course of neutrality among religions,
and between religion and nonreligion”); Wallace v. Jaffree, 472
U.S. 38, 60 (1985) (ruling that the characterization of prayer as
a favored practice “is not consistent with the established
principle that the government must pursue a course of complete
neutrality toward religion”); Bd. of Education of Kiryas Joel
Village School Dist. v. Grumet, 512 U.S. 687, 709 (1994) (“the
statute before us fails the test of neutrality.”); Mitchell, 120
S.Ct. at 2541 (2000) (plurality) (“we have consistently turned to
the principle of neutrality”).
70
See Kiryas Joel, 512 U.S. 687.
71
See, e.g., Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989)
(plurality) (invalidating a tax exemption applicable only to
religious publications).

52
impermissible primary effect of advancing religion.72 This is why those of

my learned colleagues who today would refuse to hold Clergy in Schools

unconstitutional have not been able to cite a single case in which the

Supreme Court has upheld the government’s use of a religion-preferring

selection criterion.

The non-neutrality of the Program’s recruitment criterion endorses

religion symbolically. By exclusively recruiting members of the clergy to

instruct students in civic virtues and morality, the School District holds

the clergy up to its students as those members of the community who are

uniquely best-qualified to perform that task.73 This unmistakable symbolic

endorsement of religion strikes at the core concern of the Establishment

Clause: The protection of citizens from the specter of government

interference and favoritism in the inextricably intertwined domains of

conscience, religion, and morality. Furthermore, the Supreme Court has

consistently applied a heightened level of scrutiny in the hyper-sensitive

72
See, e.g., Wallace, 472 U.S. at 60 (striking down a moment
of silence “enacted ... for the sole purpose of expressing the
State’s endorsement of prayer activities”); Texas Monthly, 489 U.S.
at 17 (tax exemption limited to religious periodicals “effectively
endorses religious belief”); County of Allegheny v. ACLU, 492 U.S.
573, 593-94 (1989) (“The Establishment Clause, at the very least,
prohibits government from . . . making adherence to a religion
relevant in any way to a person’s standing in the political
community”) (punctuation and citation omitted).
73
See, e.g., Bowen, 487 U.S. at 604-05 (observing that the
government is not allowed to convey the message that a religiously
affiliated group is uniquely well-qualified to perform a particular
task).

53
venue of public education.74 In our public schools, more than anywhere

else, assiduous attention to neutrality is mandated by the Establishment

Clause.

Only by misreading and misapplying the Supreme Court’s plurality

opinion in County of Allegheny v. ACLU,75 I submit, can the Controlling

Minority conclude that the symbolic endorsement effect of BISD’s exclusive

recruitment policy may somehow be neutralized or diluted merely by

swallowing the nostrum of “other programs similar in purpose and function”76

operating within the School District’s eclectic volunteer groups. The

fundamental difference between the Controlling Minority’s manufactured

framework, in which the constitutionality of the School Volunteer Program

as a whole —— which has never been challenged —— must be tested, and my

framework, in which the constitutionality of Clergy in Schools’ recruiting

and staffing criterion is tested independently, becomes crystal clear in

the context of a proper reading of Allegheny.

In Allegheny, the Supreme Court separately tested the endorsement

effects of two separately displayed religious symbols, a crèche77 (the sole

74
See, e.g., Edwards v. Aguillard, 482 U.S. 578, 583-84
(1987).
75
492 U.S. 573 (1989).
76
See Controlling Minority Opinion at 2.
77
A “crèche” is a tableau of the stable scene at Bethlehem,
with the infant Jesus surrounded by the adoring Mary, Joseph,
shepherds, and magi.

54
symbol in a seasonal display inside the County Courthouse), and a menorah78

(one of several symbols comprising an outdoor seasonal display on public

property one block from the County Courthouse). The scenes that the Court

separately examined were but two among the Pittsburgh community’s numerous

seasonal holiday displays. Importantly, the Court did not examine either

religious symbol (the menorah and the crèche) or either government display

(“Salute to Liberty” and the manger scene) as components of the community’s

overall Christmas/Hanukkah/New Year’s seasonal display program —— like

BISD’s School Volunteer Program, a loose amalgamation of disparate public

groups and entities involving separate governmental decisions. Rather, the

Court tested each display and each symbol separately, essentially in a

vacuum. The reason for the Court’s independent evaluation of the two

displays and the two otherwise sectarian symbols is obvious: Even though

both symbols and both displays celebrated the same set of year-end

holidays, each conveyed a vastly separate and distinct message. Implicit

in the Court’s methodology is recognition of the constitutional truism that

no message conveyed by the government may have the effect of endorsing

religion: The government does not somehow earn a “free shot” to convey a

message that does endorse religion simply by conveying other messages that

do not.79

78
A “menorah” is a candelabrum used in the celebration of
Hanukkah.
79
So, for example, a public school cannot, by virtue of having
offered religion-neutral courses such as history and chemistry,
empower itself to offer a religion-fostering course in, say, Jewish
theology, scripture and prayer.

55
 In Allegheny, the Court evaluated the endorsement effect of each

challenged religious symbol and display by focusing on the message that the

government’s choice of each communicated, i.e.,“‘what viewers may fairly

understand to be the purpose of the display.’”80 The Court concluded that

the menorah, which was located next to a Christmas tree more than twice its

height and a sign reading “Salute to Liberty,” conveyed a secular message

of “pluralism and freedom of belief during the holiday season” and thus did

not endorse religion.81 In contrast, the Court found that the County’s

display of the crèche violated the Establishment Clause by “sen[ding] an

unmistakable message that [the County] supports and promotes the Christian

praise to God that is the creche’s religious message.”82 The Court

concluded that the crèche display had clearly been independently selected

by the County to convey a message separate and distinct from those of other

public displays in the community. Although in one sense the crèche

display, like the “Salute to Liberty” display, was part of a much broader,

perfectly constitutional community-wide celebration of the season, in

another sense the religion-endorsing message conveyed by that one, single-

symbol display rendered it —— but not the community’s holiday celebration

as a whole —— unconstitutional. More significant is the obverse: The fact

that the community’s celebration as a whole was constitutional could not

80
Allegheny, 492 U.S. at 595, quoting Lynch v. Donnelly, 465
U.S. 668, 692 (1984) (O’Connor, J., concurring).
81
Allegheny, 492 U.S. at 635 (O’Connor, J., concurring).
82
Allegheny, 492 U.S. at 600.

56
rescue, through “equality” or dilution, the government’s crèche display

from its unconstitutional endorsement of religion.

Even though the Controlling Minority acknowledges that the School

District’s clergy-only recruitment policy “suggests that [the clergy] have

been chosen as a group because of a perceived expertise in the field of

civic values and morals,”83 it nevertheless insinuates that the overarching

aegis of the School Volunteer Program may somehow so dilute any message of

endorsement as to neutralize the Program’s otherwise unconstitutional

preferring of religion.84 The Controlling Minority, however, mistakes

Allegheny Court’s emphasis on the importance of the particular physical

setting of the religious symbol displayed —— whether, e.g., in a museum,

which would neutralize any message of endorsement, or in the seat of county

government, which would strengthen any endorsement effect, or in a public

school, where the Establishment Clause must be applied “with special

sensitivity”85 —— for the appropriate context in which to conduct the

constitutional analysis. The Court in Allegheny made clear that the

presence of “Santas or other [secular] Christmas decorations” elsewhere in

the same building that housed the crèche failed to negate, neutralize, or

immunize the latter’s endorsement effect.86 Not even the penumbra of the

83
See Controlling Minority Opinion at 19.
84
Id.
85
The Court explicitly noted that even the display of a
menorah alongside a Christmas tree might raise additional
constitutional questions if located in a public school. See
Allegheny, 492 U.S. at 629 n.69.
86
Id. at 598 n.48.

57
community-wide holiday celebration program was deemed sufficient by the

Court to sanitize the unconstitutionality of the message of endorsement

inherent in the display consisting entirely of that one religious symbol.

There is simply no support to be found in Allegheny, then, for the

Controlling Minority’s novel theory that the existence of neutral, secular

programs similar in purpose and function within the School District could

somehow rescue Clergy in Schools —— a non-neutral program that, as the

Controlling Minority clearly (if not expressly) acknowledges, would have

to be held unconstitutional if tested alone on the extant record. In

Allegheny, the local government’s use of one religious symbol (the

menorah), together with other neutral symbols, to convey a secular message

could not legitimate the unconstitutional endorsement effect of the

government’s use of a separate, free-standing symbol (the crèche) that did

convey a religious message only. How, then, could the presence of other,

religion-neutral volunteer programs in the schools of Beaumont possibly

legitimate the unconstitutional endorsement effect of the clergy-only

recruitment policy used by the School District to staff Clergy in Schools?

The obvious answer is that it could not and does not. The School District

was constitutionally obligated to use a religion-neutral selection

criterion to recruit the staff for the Program, and it not only failed to

do so, it flatly refused to do so.

Direct evidence already in the record establishes that the School

District refused several parental requests to integrate secular

professionals into the Program: This cannot be explained on any but

religious grounds. Onlookers in the Beaumont community and, more to the

58
point, students in BISD’s schools, cannot help but conclude that the School

District recruited the clergy, to the exclusion of all others, to staff its

morals and ethics program precisely because it agrees with and exalts the

quasi-religious brand of morality that BISD assumes the clergy will

convey.87

There can be no serious question that, in creating and staffing Clergy

in Schools, the School District has overtly advanced religion by granting

preferential status to the clergy. Despite boldly (and, based on the

summary judgment evidence, pretextually) rationalizing its clergy-only

criterion as a proxy for communication skills, the School District has made

no effort to identify a subset of skilled communicators among the set of

all local clergymen. BISD’s invitations went out to any and every member

of the community whom the School District could identify as an ordained or

self-proclaimed minister. And BISD did so without making any effort

whatsoever to consider, much less determine, other religion-neutral

credentials or qualifications of these ministerial invitees. The School

District even ignored warnings voiced by one of its own hand-picked clergy

participants that it had cast its clergy-only net too widely, recruiting

many ministers who had no formal training in interpersonal counseling.88

87
It is hardly a coincidence, then, that the newspaper article
that originally alerted the Does to the Program begins, “In an age
when police officers roam the halls to enforce the peace, Beaumont
school Superintendent Carroll Thomas would like to see ministers in
the same place enforcing values.”
88
The Reverend James Fuller wrote to the local school board
and to Superintendent Thomas, advising them that they needed a
“[b]etter understanding of which categories of ministers are
appropriate participants. Categories represented in the first

59
 The undeniable perception that this exclusive recruitment policy

endorses religion is magnified by the undisputed record evidence that

Clergy in Schools is the only volunteer program (1) designed exclusively

by the School District (2) for which the School District actively recruits

the individual participants. We are not reviewing a situation in which the

government has simply accepted an offer of help from a pre-existing outside

organization that coincidentally happens to be religiously affiliated. On

the contrary, by creating its own ministerial organization, the School

District has purposefully targeted the clergy, building Clergy in Schools

around them from the ground up. As the summary judgment record confirms,

the School District conceded that (1) it never created from scratch any of

the other programs, (2) no other program is conducted by an organization

that was not pre-existing, and, most importantly, (3) Clergy in Schools is

the only volunteer program in the entire galaxy of such programs for which

the School District both designated and applied the selection criterion for

choosing volunteers rather than accepting self-selected volunteers. BISD

had ample opportunity during the district court proceedings to adduce

evidence to the contrary but never did so —— for the best of all possible

reasons: none exists.

visit included: pastors, associate pastors, lay ministers, [and]
lay chaplains. Some of these participants have educational
training in ministry while some do not.” In a separate letter,
Reverend Fuller specifically complained that another clergy
participant in the program “does not have the temperament,
experience, or credentials to participate in the kind of program
which Dr. Thomas envisions. . . . [He] will be perceived as self-
righteous and abrasive by students and I am not willing to risk
such associations.”

60
 The recent Supreme Court case of Mitchell v. Helms89 highlights this

critical distinction between, on one hand, a program like Clergy in Schools

that is “volunteer” in name only and for which each and every constitutive

decision is attributable to the government and to the government alone;

and, on the other hand, bona fide volunteer programs, such as the ones

offered to the School District by the Junior League or the Kappa Alpha Psi

Fraternity,90 that are the result of “the genuinely independent and private

choices of individuals.”91 In Mitchell, a plurality of the Court emphasized

that “if numerous private choices, rather than the single choice of a

government,” determine the beneficiaries of a government program “pursuant

to neutral eligibility criteria, then a government cannot, or cannot

easily, grant special favors that might lead to a religious

establishment.”92 It follows, then, that even if on remand the School

District could point to other volunteer programs such as the Boy Scouts in

89
__ U.S. __, 120 S.Ct. 2530.
90
The participation of these groups, in particular, in the
School District’s volunteer program underscores the importance of
this distinction. Membership in the Junior League is restricted to
women; the membership of the fraternity is composed solely of
African-American men. The constitutionality of such explicitly
discriminatory selection criteria, if used by the government, would
have to survive heightened scrutiny and strict scrutiny,
respectively, and it seems doubtful that either could hold up under
such exacting analysis. See, e.g., Wygant v. Jackson Bd. of Ed.,
476 U.S. 267, 276 (1986) (concluding that school board's policy of
extending preferential protection against layoffs to some employees
on the basis of race could not be justified by the school board's
interest in providing minority role models).
91
See Mitchell, 120 S.Ct. at 2541.
92
See id. (emphasis added).

61
which civic virtues and morality are addressed, the existence of any such

programs, the staffing and goals of which are solely attributable to the

private choices of individuals, still can do nothing to mitigate the

religion-preferring choice that is the sole issue in this case and that is

wholly attributable to government: BISD’s conscious decision to restrict

participation in the Program to the clergy and the clergy alone.

Frankly, I am mystified that anyone can read the entire record in this

case, even, as we must, in the light most favorable to the non-moving

School District, and somehow conclude that it is insufficient to support

—— even compel —— a holding that (1) the School District’s exclusive

recruitment policy creates a perception of religious favoritism and (2) the

School District has selected the clergy to staff the Program on the basis

of religious credentials rather than on the basis of one or more neutral

criteria. If Clergy in Schools were emblematic of a general policy under

which the School District itself actively recruited members of many

professions and vocations, and thereafter assigned them to homogenous

volunteer sub-groups segregated by profession, one might at least argue

that the Program is neutral with respect to religion. Such a policy would

be more in keeping with the Supreme Court’s recent admonition that

neutrality, together with private choices, is necessary to eliminate any

possible attribution to the government of a religion-preferring message.93

The clergy certainly are not consigned to a disfavored status by the

Establishment Clause, and they may participate freely in the public

93
See Mitchell, 120 S.Ct. at 2530.

62
sphere.94 But the record is totally devoid of evidence of any such plan or

policy in the School District; were it otherwise, able counsel for the

School District surely would have had the record so reflect.

Notwithstanding the Controlling Minority’s protestations to the

contrary, the record contains a surfeit of evidence confirming beyond cavil

that the religious credentials of the clergy —— and only these credentials

—— were what the School District looked to when it proceeded to implement

its exclusive recruitment policy. Conversely, the record contains not a

scintilla of evidence that BISD ever made any attempt to recruit volunteers

across the board, then separate them according to vocation. The

Controlling Minority implies that in limiting participation in the Program

to clergy only, the School District was simply following a policy favoring

the segregation of different professional groups into separate volunteer

programs. The record is simply not susceptible of any such reading, and

there is no justification for giving BISD another opportunity to make it

read that way. The record shows that the only other program in the School

District that is composed of a single vocational group,95 the DARE (Drug

94
See, e.g., McDaniel v. Paty, 435 U.S. 618 (1978)
(invalidating a provision of the Tennessee constitution
disqualifying clergy from holding public office).
95
In a letter written four days prior to trial and addressed
to “all clergy,” Superintendent Thomas asserted that “[i]n an
effort to broaden volunteer opportunities for other professional
groups and to tap other underutilized community resources, [BISD]
has taken steps to actively recruit other volunteers including: (1)
Federal Correctional Officers; (2) Lamar Student Government; [and]
(3) National Association of Blacks in Criminal Justice.”
Superintendent Thomas’s letter has no apparent purpose other than
to serve as a trial exhibit; unlike other letters that he sent to
the clergy, he did not even bother to sign it. Indeed, there is no

63
Abuse Resistance Education) program, is not a volunteer program at all.

The DARE curriculum, including content, materials and testing, was adopted

by the Texas Education Agency, and is taught by specially trained and

certified law enforcement officers as part of their job responsibilities.96

Furthermore, School Volunteer Program Coordinator Joy James testified that,

even though all of the volunteers in each of the School District’s “school-

business partnerships” share the same employer, the volunteers have diverse

vocations and different areas of substantive expertise.

Neither did the School District advance even one of its myriad “other”

volunteer programs as paralleling Clergy in Schools’ purpose of inculcating

morals and civic virtue. This lacuna is no accident: Were there any such

evidence “out there,” the record would contain it. Simply put, there is

no just reason to consign this case to the additional multi-year delay of

a remand just to re-confirm this truism.

The undeniable inference of preferring religion that springs from the

special treatment accorded to the clergy by BISD is strengthened by the

circumstances in which the Clergy in Schools program was created.97 The

evidence in the record that the letter was ever distributed to the
purported addressees. The credibility of the letter is further
called into question by the fact that the three volunteer groups
mentioned in it are not mentioned anywhere else in the record.
Superintendent Thomas’ letter certainly does not constitute the
kind of “uncontradicted and unimpeached . . . evidence com[ing]
from [a] disinterested witness” on which summary judgment can be
based. See Reeves, 120 S.Ct. at 2110.
96
See generally Bureau of Justice Assistance, An Introduction
to Dare: Drug Abuse Resistance Education (2d. ed. 1991).
97
“Our inquiry into this question not only can, but must,
include an examination of the circumstances surrounding its

64
School District cannot acknowledge, on one hand, that one of its purposes

in creating Clergy in Schools was to “[help ministers] know better how to

attend to needs of young people in church,” then claim, on the other hand,

that its exclusive recruitment policy was instituted without regard to the

clergy’s religious credentials and functions. Similarly, the School

District’s dogged resistance to including secular professionals in the

Program —— even those professionals whom it has acknowledged under oath

possess the same skills and qualifications as do the clergy —— can only be

explained by stating the obvious: The School District deemed the clergy’s

pastoral vocation to be the distinguishing characteristic that set them

apart in a class of their own.

Indisputable in the record is the fact that the School District has

lavished special attention on the clergy that has not been accorded to any

other vocational or volunteer group. And we are not, as a matter of law,

permitted to presume that other, secular groups will receive similar

preferential treatment in the future: The Supreme Court flatly rejected

such an approach in Kiryas Joel, noting that “we have no assurance that the

next similarly situated group [will receive similar treatment].”98 The

School District’s actions must stand or fall on the palpably sufficient

summary judgment record in this case. Whatever else may be “uncertain” in

that record, the Program’s lack of neutrality toward religion is not; to

the contrary, overt favoritism towards religion is amply established.

enactment.” Santa Fe Independent School District v. Doe, __ U.S.
__, 120 S.Ct. 2266, 2282 (2000).
98
512 U.S. at 703.

65
 II.

Non-secular Purpose

The vigilance of the courts in maintaining religion-neutrality is at

its most indispensable when questions regarding the establishment of

religion arise in the arena of our public schools.99 For that is where the

political majority experiences the greatest temptation to use its public

power to enforce the dictates of its own belief system, and that is where

the audience is most impressionable, malleable, and vulnerable. School

boards and administrators across the country must regularly make difficult

decisions concerning how to instill morality and civic virtues in our

children without inculcating religion in the process. In drawing the

necessary dividing lines between civic virtues and a religious perspective

on those virtues, it is critical that school boards and officials remain

sensitive to the susceptibility of their charges to even the subtlest of

influence and ensure that students are provided an educational environment

in which religion is not put into play.100

Our public educators are both constrained and aided in their

decisionmaking by the relatively clear and simple neutrality rules that are

99
See Aguillard, 482 U.S. at 583-84 (“The Court has been
particularly vigilant in monitoring compliance with the
Establishment Clause in elementary and secondary schools.”).
100
See Santa Fe, 120 S.Ct. at 2280 (striking down a
government-created student election mechanism that “encourage[d]
divisiveness along religious lines in a public school setting, a
result at odds with the Establishment Clause.”)

66
imposed by the Establishment Clause: Leave religion out of the equation;101

do not use religious symbols as part of the educative process;102 do not

conduct formal religious exercises on school property;103 do not tailor a

curriculum to foster religious beliefs;104 do not use a selection criterion

that favors religion in hiring, in choosing educational materials, or in

designating extracurricular activities.105

Regrettably, BISD transgressed these well-established boundaries when

it created the Clergy in Schools program. The central idea of the Program

—— to educate students about morality and civic virtue —— is not just

permissible; it is commendable. And the Does have not challenged that

101
The government can, of course, make use of the secular
aspects of religious texts, icons, and individuals. For example,
a school district could certainly use the Bible as one of several
texts in a comparative religion class. In so doing, however, the
government must focus solely on the secular value of such
materials: Religion qua religion can never truly be permitted to
become a factor in government decision-making.
102
See Stone v. Graham, 449 U.S. 39 (1981) (Ten Commandments).
103
See Abington, 374 U.S. 203 (Bible readings); Engel v.
Vitale, 370 U.S. 421 (1962) (classroom prayer).
104
See Aguillard, 482 U.S. 587 (creationism); Epperson v.
Arkansas, 393 U.S. 97 (1968) (creationism); McCollum v. Board of
Education, 333 U.S. 203 (1948) (sectarian classes on public school
campuses).
105
See, e.g., Widmar v. Vincent, 454 U.S. 263 (1981)
(requiring equal access to school facilities for all
extracurricular groups); Texas Monthly, 489 U.S. 1 (invalidating a
tax exemption applicable only to religious publications); Kiryas
Joel, 512 U.S. 687 (invalidating the New York State legislature’s
use of a religion-preferring criterion in establishing school
districts); Santa Fe, 120 S.Ct. 2266 (striking down a government-
created student election mechanism used to select student speakers
at football games).

67
idea; neither have they challenged the School District’s inclusion of

clerics in the Program. Where the School District knowingly crossed the

bright line that separates the permissible from the impermissible, however,

was in deliberately choosing to limit participation in the Program

exclusively to clergymen. The only purpose that the School District could

possibly have had in consciously excluding members of all other vocations

and professions from participating in the Program was to ensure that the

students it would select to attend the sessions and be instructed would

receive a perspective on morality grounded in religion.106 That is not a

religion-neutral purpose, and that is not permissible under the

Establishment Clause.

If a government action is deemed to have been taken for the purpose

of favoring, advancing, or endorsing religion, then no further analysis is

required to conclude that an Establishment Clause violation has occurred.107

This bedrock principle of Establishment Clause jurisprudence is best

recognized today as the first prong of the so-called Lemon test, which

106
It is no coincidence that one of the clerical participants
in Clergy in Schools slipped at one point in a counseling session
and quoted the Bible: To him, the Bible was the source of the
moral truth that he was speaking. Quotations, of course, can be
restrained by administrative policing, but perspectives surely
cannot: It is unavoidably a religious view of morality that is
offered to students by the Clergy in Schools program, at least as
it is currently constructed. See Mitchell, 120 S.Ct. 2530, in
which five Justices (O’Connor, Breyer, Souter, Ginsburg, and
Stevens) reaffirmed the Court’s longstanding presumption that
religious instructors will inevitably interject religion into their
lessons even when teaching purely secular topics. Rabbi Hyman, one
of the participants in the program, expressed exactly this concern
in his record testimony.
107
Aguillard, 482 U.S. at 585.

68
assays the purpose of a government practice to determine whether that

purpose is sectarian.108 The challenged government practice in the instant

case is the School District’s decision exclusively to recruit clerics to

staff the only volunteer program that was designed by the School District

to address civic virtues and morality and for which the School District

actively seeks participants.

Purpose is assessed as of the time the government decision in question

is made.109 We look first to the explanation offered by the government in

support of its decision.110 If the proffered explanation is patently

inadequate or if there is reason to believe that it is a sham, we turn to

the events surrounding the making of the governmental decision as

contextual evidence of the government’s true purpose.111 Contemporaneous

108
See Lemon, 403 U.S. at 612. The Lemon test has fallen into
disfavor with several of the Justices currently sitting on the
Supreme Court. See Santa Fe, 120 S.Ct. at 2284-85 (Rehnquist,
C.J., dissenting) (setting forth a list of opinions in which the
Lemon test has been criticized). Nevertheless, the Supreme Court
continues to apply the Lemon test, see Santa Fe, 120 S.Ct. at 2281.
I discuss the Program’s failure of the Lemon test in greater detail
in Part III, infra.
109
See generally Aguillard, 482 U.S at 585-96; Wallace, 472
U.S. at 56-61.
110
Aguillard, 482 U.S. at 585-86.
111
Id. at 586-87. Presumably subscribing to the maxim that an
offense is the best defense, the Controlling Minority accuses me of
ignoring the relevancy of context in Establishment Clause analysis.
On the contrary, context is the “clincher” in this case, as it is
in almost every Establishment Clause case. See Santa Fe, 120 S.Ct.
at 2282 (“Our inquiry into this question not only can, but must,
include an examination of the circumstances surrounding its
enactment.”).

69
statements and incidents are highly relevant to this inquiry, even when,

as here, the constitutional challenge is facial only.112

The School District has offered no plausible secular explanation in

support of its decision exclusively to recruit clergy to staff the Program.

As I have noted, the School District on several occasions was urged by

concerned parents and participating clergy to integrate laymen and diverse

professionals into the Program, and on each occasion the School District

flatly refused. Superintendent Thomas, who first conceived of Clergy in

Schools, and Joy James, who serves as coordinator of the School Volunteer

Program, were asked in their courtroom testimony to justify the School

District’s initial and subsequent decisions to exclude all other vocations

from the Program. Both conceded under questioning that mental health

professionals, such as psychologists and social workers, have the same

level of counseling and communication skills as do the clergy, and that

they would provide equally good role models for the students.

Nevertheless, these school administrators insisted that the clergy qua

clergy possess some special quality justifying the School District’s

decision actively to recruit them to the exclusion of all other

professions. James, after stating that she did not believe that “there

would be any harm” in including secular professionals in the Program,

explained that the School District did not do so because:

112
See Aguillard, 482 U.S. at 595. See also Santa Fe, 120
S.Ct. at 2282 (“To properly examine this policy on its face, we
must be deemed aware of the history and context of the community
and forum.”) (punctuation and citation omitted).

70
 [T]hat’s not necessarily part of the mission

that we are hoping to accomplish with Clergy

in Schools. . . . Because the Clergy in

Schools follows a particular mission, which

has been stated earlier today. . . . Let me

just say that we’re tapping the expertise of

the clergy for this particular program, okay?

. . . If we’re doing something in the area of

engineering, engineers, we’re not going to ask

an accountant to come in and work with them if

they’re talking about engineering business for

that’s the expertise the engineers can give us

in that particular program.

When these remarks are viewed in pari materia with the School

District’s concession that mental health professionals have

counseling skills equal to those of clergy members and that they

are equally good role models, it becomes clear that James could

only have been referring to a substantive expertise that the School

District considers to be possessed by the clergy and no others.

But, whereas engineers clearly do possess a unique substantive

expertise in matters of engineering that accountants lack, clerics

have no corner on the substantive expertise market in matters of

virtue and morality (as distinct from theology) —— at least none

that the Establishment Clause permits the government to recognize

71
and act on. The School District’s “particular mission” in

implementing the Clergy in Schools program —— to impart to students

the particular brand of morality that it expected the clergy to

convey113 —— does not come close to articulating a permissible

purpose under the Establishment Clause.

The events surrounding the creation of Clergy in Schools,

which are well documented in the record, permit no inference other

than that the School District’s exclusive recruitment policy was

religiously motivated from its very inception. In distributing

pamphlets to engender support for the Program, the School District

was quite candid about its intent to aid the clergy in their

religious as well as their secular endeavors.114 The informational

materials proudly declare that the program will “provide more

volunteer opportunities for clergy,” “expos[ing] members of the

clergy to the real world of today’s students.” They further

113
Although the Controlling Minority dismisses James’s
testimony, see Controlling Minority Opinion at 13, it studiously
avoids offering any alternative explanation as to what “particular
mission” the School District could possibly have had in mind for
the clergy that would have been interfered with by adding other
professionals to the program.
114
BISD has not gone to any great lengths to conceal its
religion-fostering purposes: In her closing argument to the trial
court, the School District’s attorney declared that the Clergy in
Schools program has “a two-fold mission, not just one, your honor,
and it’s clear from our mission statement that part of this
program, a large part of this program, is to educate the clergy
about what it is really like to be a student in BISD.” Teaching
clergy how better to minister to their flocks is not a
constitutionally legitimate end for a public school district to be
pursuing.

72
advance that “by ministers being exposed to problems of schools”

they “will be aware of problems in schools and know better how to

attend to needs of young people in church.”115

The record evidence describing other contemporaneous incidents

only serves to bolster the conclusion that the School District

initiated its exclusive recruitment policy for the purpose of

pursuing constitutionally impermissible ends. Shortly before

implementing Clergy in Schools, Superintendent Thomas delivered a

speech to a group of clergymen about the need to return prayer to

the public schools. On a strictly personal level, he is entitled

to this view, and there is no evidence in the record that as

Superintendent he has ever overtly acted on this specific goal.116

Nevertheless, the Superintendent’s vocal support of school prayer

115
This statement, the functional equivalent of which appears
in at least two BISD documents, clearly represents what the School
District considered to be a positive accomplishment of the Clergy
in Schools program. The Controlling Minority’s contention that the
statement appears in the agenda of the School District’s meeting as
nothing more than an inducement for the clergy to join the program,
see Controlling Minority Opinion at 13, is nothing short of
ludicrous. By that reading of the document, “Morning Meetings -
10:00 a.m,” which appears in the same column in the document, would
also represent an inducement, which makes no sense at all.
Moreover, with admirable candor, the School District has admitted
throughout the course of this litigation that one of the primary
goals of Clergy in Schools is to make the clergy more effective in
performing their church-related duties.
116
There is, however, evidence in the record that
Superintendent Thomas frequently blurred the line between State and
Church functions. For example, on at least one occasion he
requested area clergy to deliver sermons on designated education-
related topics.

73
girds the burgeoning impression that Clergy in Schools was intended

by the School District to interject as much religion as it could

get away with into the public school system.

So, too, does the School District’s distribution of a leaflet

entitled “Reasons for a School-Church Alliance” at its first Clergy

in Schools organizational meeting. Neither the fact that the flyer

was initially prepared by the president of the PTA nor the School

District’s post-litigation disavowal of the document can change the

firmly established fact that, at the time of the organizational

meeting, the School District found the views expressed in the flyer

to be sufficiently coextensive with its own that it elected to

distribute that brochure.117 Rabbi Hyman, who attended that

organizational meeting, testified that he came away with the

distinct impression that the flyer “was obviously put in there to

engender some support and provide some facts for this kind of

program.”

Not once has the Supreme Court upheld a government program

that so blatantly endorses religious professionals as uniquely

competent to pursue public ends, or one that so frankly declares

117
In flagrant disregard of the uncontested record testimony
of Superintendent Thomas and Rabbi Hyman —— key witnesses for
opposing sides in this litigation —— the Controlling Minority
baldly declares that the PTA President not only created the
document, but also personally distributed it. See Controlling
Minority Opinion at 4. Nothing in the record supports this
contention. To the contrary, Superintendent Thomas testified
quite plainly that the document “was distributed by us” at an
organizational meeting of Clergy in Schools.

74
its intent to aid religious leaders in their sectarian endeavors.

That a program, taken as a whole, may be directed toward a

constitutional end has never before been permitted to shield

essential features of such program from individual constitutional

scrutiny.

In Wallace v. Jaffree, for example, the Supreme Court

invalidated a government-mandated moment of silence that was set

aside by the Alabama State legislature for “meditation or voluntary

prayer.”118 Although five Justices expressed the view that moments

of silence generally have a legitimate secular purpose,119 the Court

nevertheless struck down the particular moment of silence then

under review because the Justices could discern no secular purpose

for the addition of the words “or voluntary prayer” in the

implementing statute. Similarly, in Edwards v. Aguillard, the

Court invalidated the Louisiana Creationism Act for lack of a

secular purpose even though the science curriculum of which it was

a component part clearly pursued a legitimate secular end.120 In

like manner, when the Program is tested for a secular purpose, the

governmental decision to recruit only clergy to conduct this morals

118
472 U.S. 38 (1985) (emphasis added).
119
Justice Powell, 472 U.S. at 62; Justice O’Connor, 472 U.S.
at 76-77; Justice Burger, 472 U.S. at 84-90; Justice White, 472
U.S. at 90-91; and then-Justice Rehnquist, 472 U.S. at 91-114.
120
482 U.S. 578 (1987).

75
and ethics program cannot stand. It’s just that simple.

III.

The Supreme Court’s Establishment Clause Tests

My discussion of the neutrality requirement in Part I of this

opinion is independently sufficient to demonstrate that the School

District’s clergy-only recruitment policy is patently

unconstitutional. Nevertheless, to square my dissent against the

accompanying opinions that deny the Program’s unconstitutionality

and to expose their flawed legal reasoning, I will also assess

briefly the Program’s constitutionality by running Clergy in

Schools through the battery of tests designed by the Supreme Court

to determine the compatibility of government action with the

Establishment Clause.

The Supreme Court assesses compliance with the Establishment

Clause through three separate tests: Coercion, Endorsement, and the

so-called Lemon test. As the Program’s counseling sessions do not

constitute formal religious exercises, the coercion test is

inapplicable to the instant case. And I have already demonstrated,

in part I above, that the clergy-only recruitment and staffing

policy of Clergy in Schools fails the Endorsement test by conveying

the unconstitutional message that the School District favors

76
religion over nonreligion.121 All that remains is to confirm that

Clergy in Schools cannot clear even one prong of the tripartite

Lemon test.

A. The Lemon Test’s First Prong: Secular Purpose

We first look to see whether the government action in question

had a secular purpose.122 If the action is determined to have been

taken for the purpose of favoring, advancing, or endorsing

religion, “no consideration of the second or third criteria of

Lemon is necessary.”123 I have already shown, in part II of this

opinion, that the summary judgment record contains a surfeit of

evidence that the Program’s clergy-only recruitment and staffing

policy was implemented by BISD for the unconstitutional purpose of

endorsing a distinctly religious approach to the inculcation of

morality and civic virtues. When tested under Lemon’s disjunctive

secular purpose prong, therefore, the School District’s decision to

recruit only clergy to conduct the Program cannot stand.

B. The Lemon Test’s Second Prong: Primary Effect

121
See Allegheny, 492 U.S. at 592-93 (1989).
122
See Santa Fe, 120 S.Ct. at 2281 (“Our Establishment Clause
cases involving facial challenges . . . have not focused solely on
the possible applications of the statute, but rather have
considered whether the statute has an unconstitutional purpose.”).
123
Aguillard, 482 U.S. at 585 (punctuation omitted).

77
 Both the Endorsement Test and the second prong of the Lemon

test, which the Controlling Minority examines in tandem, inquire

whether the challenged government program has the primary effect of

advancing religion by conveying a message that religion is

preferred over nonreligion. As such, the ultimate question under

both tests is whether the challenged program is neutral toward

religion.124 I have already demonstrated, in part I of this

opinion, the flagrant non-neutrality of BISD’s policy of recruiting

only clergy to staff the only volunteer program designed by the

School District to inculcate morality and civic virtues.

Accordingly, Clergy in Schools does not pass constitutional muster

under either the Endorsement test or the second prong of Lemon.

Nevertheless, as astonished as I am at the boldness of the

Controlling Minority Opinion in “presum[ing] that the volunteers

will comply with the program’s secular guidelines” and refrain from

any indoctrination of religion, I admire its subtle cleverness in

leading the gullible down that primrose path.125 Even though the

Supreme Court has abandoned the presumption that public school

teachers assigned to religious schools will inevitably indoctrinate

124
Lemon, 403 U.S. at 612. As the instant case involves a
facial challenge only, individual incidents that have occurred
during the operation of the Clergy in Schools program are
irrelevant to this inquiry.
125
See Controlling Minority Opinion at 15.

78
their students in religion,126 in Mitchell v. Helms,127 five Justices

(O’Connor, Breyer, Souter, Ginsburg, and Stevens) reaffirmed the

Court’s longstanding converse presumption —— precisely opposite the

presumption slipped in by the Controlling Minority —— that

religious instructors will inevitably interject religion into their

lessons even when teaching purely secular topics.128 It is

inconceivable that the Ball presumption would not be applied “in

spades” to full-fledged religious ministers teaching classes in

public schools on such a religion-related topic as morality. Other

than calling the Controlling Minority’s hand on this bit of

legerdemain, however, I refrain from expressing any opinion on this

issue because we need not reach it to conclude that, as currently

constructed, Clergy in Schools is unconstitutional.

C. Third Prong of the Lemon Test: Entanglement

In the wake of the Supreme Court’s decision in Agostini v.

Felton,129 Lemon’s third prong has evolved as the least defined of

the Establishment Clause tests. It is now clear that

“[e]ntanglement must be