Doe ex rel. Doe v. Beaumont Independent School District

173 F.3d 274

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 16, 1999
• Docket: No. 97-40429
• Status: Published

Opinions

WIENER, Circuit Judge:

Plaintiffs-Appellants Jane Doe, June Doe, Janet Doe and Jill Doe (collectively “the Does” or “the Doe children”), by their next friends, Susan Doe, Mary Doe and Lisa Doe (collectively “the Doe Parents”)¹ appeal the district court’s grant of summary judgment in favor of Defendant-Appellee Beaumont Independent School District (“BISD”). The Does argue that the court erred in concluding that (1) they lack standing to challenge BISD’s “Clergy in Schools” volunteer counseling program (“the Program”), and (2) the Program does not violate the First Amendment’s Establishment Clause. We conclude that the Does have standing to bring this action and that summary judgment in favor of BISD was improvidently granted by the district court. Furthermore, on the basis of the undisputed material facts presented in connection with BISD’s summary judgment motion,² we conclude that judgment should be entered against BISD, holding the Program to be unconstitutional. We therefore reverse the rulings of the district court, holding for the Does on both standing and constitutionality, and remand this case to the district court for (a) entry of judgment consistent with this opinion, (b) determination of reasonable attorneys’ fees and costs to award to the Does, as prevailing parties, and (3) issuance of any orders that may be necessary or desirable to prohibit BISD from conducting the Program, which today we hold unconstitutional.

I

FACTS AND PROCEEDINGS

Dr. Carrol Thomas, Jr., superintendent of BISD, initiated the “Clergy in the Schools” program soon after he was hired in March 1996. Under the Program, BISD invites individual members of the local clergy to provide volunteer counseling to students at the schools during school hours. The Program is an adjunct to — but entirely separate and distinct from — BISD’s broader School Volunteer Program, which comprises a number of different groups³ dedicated to furthering quality education by providing community resources and expertise. Although individual members of the clergy can participate in BISD’s general volunteer program, the “Clergy in the Schools” program, as its name would indicate, is open only to clergymen. BISD rationalizes this restriction by advancing that it is designed to take advantage of the clergy’s special listening and communication skills.⁴

The Program’s stated goals are to provide (1) meaningful dialogue between the clergy and students regarding civic virtues and morality; (2) a safe school atmosphere; and (3) volunteer opportunities for an additional group of stakeholders in the public schools. BISD actively recruits selected area clergymen, inviting their participation through letters sent at taxpayer expense on official letterhead. The vast majority of the clergymen recruited by BISD are Protestant Christians. BISD asserts that it is committed to assembling a group that is both racially and religiously diverse and that the local predominance of Protestant Christians accounts for their disproportionate presence in the Program.

BISD administrators actively train the clergy volunteers. As part of this training, BISD provides the clergymen with written guidelines, which, inter alia, instruct the clergy not to (1) discuss religion, (2) quote religious materials, (3) provide information about church services, (4) identify their church affiliation, or (5) wear distinctive garb that would reveal their religious affiliation. In addition, BISD officials inform the clergy that they are not to offer to pray with students, and that any student who asked for prayer should be encouraged to share that need with a parent or with his individual clergyman outside school. Finally, the BISD administrators admonish the clergymen that discussions are to center on civic values; the volunteers are to refuse to discuss prohibited subjects, such as sex and abortion, but are encouraged to discuss, inter alia, divorce.⁵

At one training session, a leaflet entitled “Reasons for a School-Church Alliance” was distributed to the clergy. The document cites the benefits to children of regularly attending church and religious schools and concludes that “a strong RELIGIOUS base enhances education for socioeconomically disadvantaged children!”⁶ BISD insists that this document was provided by a third party at an initial organizational meeting that was held off school property, and that Dr. Thomas has now informed the clergy by letter that the leaflet is not part of the program.

The Program calls for each elementary school to be visited by members of the clergy once a year and for each secondary school to be visited twice a year. Before each visit, the participating clergymen meet at a local church to discuss issues important to the Program and to receive additional training and orientation by BISD administrators. At one such meeting, BISD’s attorney advised the volunteers regarding the constitutionality of the Program. These meetings, which are not attended by students, conclude with a prayer.

When the members of the clergy arrive on campus, they are escorted into the schools by BISD principals and counselors. The principal and counselor of each school select the student participants, with an eye toward assembling a group diverse in ethnicity, academic ability, and school deportment. BISD officials then remove the selected students from class and assemble them in another schoolroom to participate in the group counseling, without parental notification or consent.⁷ According to BISD, students who are selected have the option of declining to participate. Each counseling session is attended by the school’s principal and counselor. Under the Program’s guidelines, the sessions are designed to comprise approximately thirty-five students and ten to twelve volunteer clergymen; the guidelines proscribe one-on-one meetings. According to the Does, however, on one occasion, a single clergymen counseled five students.⁸

At the counseling sessions, members of the clergy introduce themselves without referring to their titles, and students present topics of concern to themselves. School administrators attend and monitor every counseling session. BISD has on at least one occasion sought participation by the clergy in off-campus volunteer efforts. At a training meeting, Superintendent Thomas told the clergy that their help was needed in ensuring student success on the Texas Assessment of Academic Skills achievement test, and suggested that the clergymen offer tutorial sessions in church and include writing in Sunday school classes. BISD did not make such suggestions to the lay volunteers in the broader volunteer program.

The Doe Parents, on behalf of their minor children, filed suit against BISD. Shortly thereafter, they filed a motion for a Temporary Restraining Order (“TRO”) to enjoin BISD from implementing the Program in the children’s schools. After conducting a hearing, the court denied this motion, which denial the Does appealed. The Does next filed an Emergency Motion to Stay Denial of TRO, which likewise was denied. With the court’s permission, the Does then withdrew their notice of appeal. Several months later, without entertaining oral argument, the district court granted BISD’s motion for summary judgment. The court did not mention whether the Program violated the Texas Constitution— a claim that the Does continue to raise on appeal.

The Does timely appealed. Americans United for Separation of Church and State (“Americans United”) and the Anti-Defamation League (“ADL”) submitted amicus curiae briefs on behalf of the Does.

II

ANALYSIS

A. Standard of Review

“We review a grant of summary judgment de novo, applying the same standard used by the district court, and in reviewing the facts, we draw all inferences most favorable to the party opposing the motion.”⁹ Summary judgment is appropriate when no genuine issue as to any material fact has been shown, and the moving party is entitled to judgment as a matter of law.¹⁰

B. Standing

The district court held that the Does lack standing to bring this action under Article III of the Constitution. Purporting to consider the evidence in the light most favorable to the non-movant, the district court found that the Does had failed to identify a personal injury suffered or threatened as a result of BISD’s program. Instead, concluded the court, they presented only a generalized public grievance. The court cited the Supreme Court’s opinion in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc.11 for the proposition that federal courts are not the proper forums for public grievances.¹²

1. Legal Standards

“To establish standing under Article III of the United States Constitution, a litigant must demonstrate: [1] that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant ... [2] that the injury fairly can be traced to the challenged action and [3][that the injury] ‘is likely to be redressed by a favorable decision.’ ”¹³ The actual injury requirement ensures that issues will be resolved “not in the rarified atmosphere of a debating society, but in a concrete factual context. ...”¹⁴

Trial courts are exhorted to consider three prudential concerns when making a determination of standing: “1) whether the plaintiff’s complaint falls within the zone of interests protected by the statute or constitutional provision at issue; 2) whether the complaint raises abstract questions amounting to generalized grievances which are more appropriately resolved by the legislative branches; and 3) whether the plaintiff is asserting his or her own legal rights and interests rather than the legal rights and interests of third parties.” ¹⁵

In Valley Forge, the Supreme Court held that respondents—an organization dedicated to the separation of church and state and certain of the organization’s employees—did not have standing either as taxpayers or as citizens to challenge the conveyance of federally owned property in Pennsylvania to a church-related college. The respondents, none of whom lived in Pennsylvania, learned of the conveyance through a press release. The Court commented that the respondents could claim nothing more than that a violation of the Constitution had occurred: “They fail[ed] to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees.” ¹⁶ Such attenuated psychological injury is insufficient to establish standing under Article III.¹⁷ “[Sjtanding is not measured by the intensity of the litigant’s interest or the fervor of his advocacy.”¹⁸ The Court’s express statement that standing may be predicated on noneconomic injury¹⁹ does not alter the requirement that the injury still must be direct and personal.²⁰

With regard to taxpayer standing, we stated in Doe v. Duncanville Independent School District²¹ that to establish state or municipal taxpayer standing to challenge an Establishment Clause violation, a plaintiff must show only that (1) he pays taxes to the relevant entity, and (2) tax revenues are expended on the disputed practice.²² By contrast, to establish federal taxpayer standing, a plaintiff must, in addition to meeting those two requirements, show “direct injury.”²³

2. Analysis

BISD argues that, because no Doe has been selected to participate in the Program and because no Doe or Doe Parent is acquainted with any student who has participated,²⁴ the Does lack private litigant standing to bring this suit. BISD rests its argument oh the twin pillars of Duncanville and Valley Forge. In Duncanville, after first rejecting the plaintiffs claim of taxpayer standing, we stated that the record would not support standing based on the student’s exposure to Bible distribution by the Gideons.²⁵ In so doing, we noted that the student plaintiff in Duncanville had not attended the fifth grade (the only grade to which Bibles were distributed) in the subject school district,'having enrolled there for the first time as a seventh grader. We observed that “the record strongly suggests that [the student] would never have even, seen the Bibles, because the fifth grade is housed in a separate school facility than the seventh through the twelfth grades.”²⁶

BISD submits that, like the student plaintiff in Duncanville, the Does have not been exposed to the allegedly unconstitutional conduct and, based on random selection, may never be chosen to participate.²⁷ Furthermore, advances BISD, even if selected, the Doe children can simply decline to participate. BISD would thus have us conclude that the Does have no more than an abstract interest in seeing that lay persons are incorporated into the program: Their only exposure to the program thus far, contends BISD, is their awareness that once or twice each year, members of the clergy meet with other students in a different room located in a different part of the school. Accordingly, BISD asserts, the Does’s injury, if any, does not rise above the type of attenuated psychological injury Valley Forge held insufficient to confer standing.

BISD’s assertions widely miss the mark: The Does have alleged sufficient injury— more precisely, sufficient threatened injury — to establish their standing to challenge the Program. The threat of injury to the Does is readily distinguishable from that faced by the plaintiffs in Duncanville and Valley Forge. The record in Duncan-ville did not support standing because it showed that there was no reasonable chance that the plaintiff would be subjected to the challenged practice, which was confined to a different grade in a different building. By contrast, the 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. This difference is crucial.

Similarly, the undisputed material facts of the instant case are easily distinguishable from those in Valley Forge. In that case, the plaintiffs did not even live in the state in which the property at issue was located. The Does live in the school district in which the Program is maintained, and are compelled by law to attend some of the very BISD schools in which the Program is implemented. 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’s claim from the realm of generalized griev-anee and provides the degree of “concrete adverseness” necessary for the adjudication of constitutional issues.²⁸ And, the chances of one of the Doe children being selected are real, not merely the extremely remote odds of a lightening strike or a lottery win. This is precisely the kind of threat of personal and direct non-economic injury that is actionable under the Establishment Clause. That the Does have not actually been selected for counseling is immaterial. As we stated in Ingebretsen v. Jackson Public School District, “[t]here is no need ... to wait for ... actual violations of [plaintiffs’] rights under the First Amendment where the [Program] ‘makes inappropriate government involvement in religious affairs inevitable.’ ”²⁹

BISD’s effort to ameliorate the standing situation by protesting that the children now can decline to participate in the Program — thereby arguably making participation “voluntary” — is specious at best. In Lee v. Weisman,30 the Supreme Court addressed the challenge of a public school student and her father to the inclusion of invocations and benedictions in the form of prayer at public school graduation. After observing that “there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools,”³¹ the Court explained that “[t]he undeniable fact is that the school district’s supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the invocation and benediction.”³² The Court concluded that a finding of no violation would “place objectors in the dilemma of participating, with all that implies, or protesting.”³³ This is a position in which “the State may not, consistent with the Establishment Clause, place primary and secondary school children.... ”³⁴

A BISD student selected to participate in the Program is placed in precisely the same kind of “Catch-22” as the plaintiff in Lee — either attend clergy counseling that he and his parents find offensive or decline after being selected and thus be subjected to the one thing that virtually no school child can abide: being perceived by his teachers and his fellow students as “different.” That potentiality undeniably creates pressure from both peers and authority to conform. We hold that the Does have “injured party” standing to challenge the Program.³⁵

C. Establishment Clause Violation

Although the district court held that the Does lack standing to bring this action, it nevertheless went on to address the merits of their claim, granting summary judgment to BISD. The district court assayed the Program by conducting the three-part test crafted by the Supreme Court in Lemon v. Kurtzman³⁶ to determine whether the Program violates the Establishment Clause. Under Lemon, a government practice is unconstitutional if: (1) it does not have a secular purpose; (2) its primary effect either advances or inhibits religion; or (3) it excessively entangles government with religion.³⁷ Applying the Lemon Test, the district court determined that:

1. The Program is “a secular program with appropriate goals and guidelines.”

2. The Program has “a permissible secular purpose of teaching civic values and virtues.”

3. The Program “neither advances nor inhibits religion.”

4.The Program “has sufficient guidelines to ensure no excessive entanglement between church and state.”

The court concluded that there was no genuine issue of material fact and that the Program does not violate the First Amendment as a matter of law. As noted, the district court did not address the Does’s claim that the Program violates the Texas Constitution.³⁸

We have identified three tests used by the Supreme Court to determine whether the Establishment Clause has been violated. The first of these is the one used by the district court, the three-pronged Lemon Test.³⁹ As the Lemon Test is disjunctive, a statute or policy that fails to satisfy any one of this test’s three prongs must be struck as violative of the Establishment Clause.⁴⁰

The second test, which the Court set forth in Lee, is the so-called “Coercion Test,” under which school-sponsored religious activity is analyzed to determine the extent, if any, of its coercive effect on students.⁴¹ Although it is conjunctive, this, too, is a tripartite test: “[UJnconstitutional coercion [occurs] when: (1) the government directs (2) a formal religious exercise (3) in such a way as to oblige the participation of objectors.”⁴²

The third test is known as the “Endorsement Test.” It seeks to determine whether the government endorses religion by means of the challenged action.⁴³ The “[g]overnment unconstitutionally endorses religion whenever it appears to take a position on questions of religious belief, or makes adherence to a religion relevant in any way to a person’s standing in the political community.”⁴⁴ “The government creates this appearance when it conveys a message that religion is ‘favored,’ ‘preferred,’ or ‘promoted’ over other beliefs.”⁴⁵ And, the instant case illustrates the well-recognized observation that, as the Establishment Clause refers to “religion” and not “a religion,” government action need not favor nor disfavor a particular theology or denomination to violate the clause: Favoring religion over nonreligion or some other belief system is sufficient.⁴⁶

2. The Lemon Test

a. Secular Purpose

The Does argue that the program fails the first prong of Lemon, as BISD’s purpose in designing, implementing, and administering the program is to endorse and advance religion among its pubhc school students. They assert that BISD’s proffered secular goals of providing a safe school atmosphere and volunteer opportunities for additional stakeholders are merely pretextual, pointing both to Dr. Thomas’s statement that prayer is needed in schools⁴⁷ and to the “Reasons for a School-Church Alliance” leaflet distributed to the clergy in introducing them to the program.⁴⁸ The Does additionally insist that the exclusive counseling arrangement afforded to the clergy, together with BISD’s prompting of the clergy to use their prayers and churches to advance BISD’s objectives, confirm its overarching religious purpose in maintaining the Program.

Predictably, BISD counters that the Program is secular in purpose, fostering the nonreligious goals of (1) instilling values and civic morals in students through open dialogue, and (2) exposing members of the clergy to the real world of today’s students. BISD posits that neither Dr. Thomas’s alleged prayer-in-schools comment nor the alliance leaflet concerned the Program; and, further, that BISD did not distribute the leaflet.

Courts are normally deferential to a government’s articulation of secular purpose; and as BISD asserts, government may play an active role in teaching civic values, virtues, and the community’s moral code, despite the fact that these values may overlap with religious beliefs.⁴⁹ Nevertheless, the government’s statement of secular purpose must be “sincere and not a sham.”⁵⁰

Dr. Thomas’s speech and the “Reasons for a School-Church Alliance” document— which, irrespective of its origin, BISD distributed to the clergy volunteers — constitute strong evidence that BISD’s purpose in confecting, shepherding, and implementing the Program was to promote and endorse religion.⁵¹ Indeed, the procedures permitting students who are selected for participation in counseling sessions to decline to do so implies that BISD itself viewed these exercises as religious in nature.⁵² Nevertheless, in as much as we ultimately conclude that the Program fails both the second and the third prongs of the Lemon test, we need not determine whether the purpose for the Program articulated by BISD is in fact sincere and not a sham.

b. Primary Effect

Even assuming arguendo that the Program slips under the secular purpose rope of Lemon, however, it unmistakably has the primary effect of advancing religion in schools. “The effect prong asks whether, irrespective of government’s actual purpose, the practice under review in fact conveys a message of endorsement or disapproval.”⁵³ This consideration is especially important in the context of public schoolchildren:⁵⁴

The Court has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools. Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family. Students in such institutions are impressionable and their attendance is involuntary.⁵⁵

Citing Agostini v. Felton,⁵⁶ BISD maintains that the Program’s primary effect is the advancement of a religion-neutral, secular dialogue between clergymen and students which neither favors nor disfavors religion; BISD contends that the presence of non-clergy volunteers would not alter the Program’s basic operation. We find these contentions feckless.

In Agostini, the Supreme Court held constitutional a federally-funded program that sent public school teachers into parochial schools to provide remedial education to disadvantaged children. In so doing, the Court recognized that it no longer presumes that public employees will inculcate religion simply because they are in a sectarian environment.⁵⁷ The Court concluded that, because the remedial education program allocated services based on religion-neutral criteria, it did not have the practical effect of advancing religion.⁵⁸

Although the government program in Agostini involved the provision of government services to a religious organization, rather than the introduction of religious representatives into a governmental function as is the case here, the Court’s approach in Agostini is still instructive.⁵⁹ Indeed, we conclude that the Program advances religion precisely because it lacks the neutrality that was key to the Court’s determination in Agostini that remedial education program neither favored nor disfavored religion.

BISD’s creation of a special program that recruits only clergymen to render volunteer counseling makes a clear statement that it favors religion over nonreligion, at least in the context of those deemed suitable to participate in student counseling on matters of morality and virtue. BISD fails to include lay professionals, who are arguably well qualified to mentor students in this regard. In short, notwithstanding BISD’s asseveration to the contrary, BISD does not select its volunteer counselors based on neutral criteria — such as listening or communication skills — but rather on the very fact that they are religious representatives.⁶⁰ Indeed, the sole criterion for participation in the Program — ordination — is bestowed not by BISD but by whatever clerical body is empowered, on purely theological grounds, to confer one of the requisite titles: Reverend, Monsignor, Rabbi, Imam, or the like.

A governmental measure advances religion over irreligión when “it gives a preferential, exceptional benefit to religion that it does not extend to anything else.”⁶¹ This is precisely what BISD has done here. A student who is plucked from his or her classroom, escorted to another part of the school, and addressed by a homogenous group of adults on matters of morality and civic virtue, while two school administrators look on approvingly or join in the activity, will undoubtedly be impressed with the prestige and importance of those adults.⁶² Under BISD’s program, the only faces that the selected students will see at the head of the class will be those of the clergy volunteers. BISD cannot, consistent with the Establishment Clause, wield its power over its students to grant such preferential access to representatives of established religion. The conclusion is inescapable that the Program flunks the primary effect prong of the Lemon test.

c. Excessive Entanglement

The Program patently violates Lemon’s final prong as well. School officials are intimately and continuously involved in an overt and highly visible manner in designing and -administering the Program. School officials (1) actively recruit members of the clergy; (2) provide ongoing clergy training; (3) disseminate counseling guidelines; (4) recommend selected topics — and proscribe other topics— for discussion during the counseling sessions; (5) assemble the clergy volunteers at local churches for briefings by BISD personnel and prayer in advance of counseling sessions; (6) allocate government property, facilities, personnel, and time to the program; (7) select the student participants; (8) actively monitor and facilitate the clergy/student dialogue at counseling sessions; (9) implore participating clergymen to use their prayer services and churches to advance the Program’s objectives; and (10) through its attorney, render legal advice to the clergy.

This level of involvement far exceeds the entanglement that in Lee was held sufficient to be unconstitutional. In Lee, after noting that school officials (1) decided to include prayer as part of the graduation ceremonies, (2) selected the clergyman to give it, (3) provided guidelines, and (4) advised that the prayer should be nonsectarian, the Supreme Court concluded that “[t]he government involvement with religious activity ... [was] pervasive, to the point of creating a state-sponsored and state-directed religious exercise in a public school.”⁶³ Here, BISD recruits clerics for a year-round program — not just a memorable, one-time event like graduation, justifying solemnity — and dedicates untold hours of direct participation by school personnel, making BISD’s involvement considerably more pervasive and inextricably intertwined than the participation of the school administrators in Lee.64 BISD thus garners a failing grade on the excessive entanglement prong of Lemon as well. Making F’s on at least two of the three prongs under the Lemon test, when failure of only one of the three spells unconstitutionality, dispels any possible doubt.

3. The Coercion Test

As stated above, a government practice has an unconstitutional coercive effect if “(1) the government directs (2) a formal religious exercise (3) in such a way as to oblige the participation of objectors.” ⁶⁵ BISD first insists that the Program does not rise to the level of a “formal religious exercise” and, second, that participants are not obliged to take part in the Program but are merely “invited.”

We easily dispense with the latter contention. Under the Program, BISD administrators — officials with extensive actual and perceived power and authority over students’ lives⁶⁶ — select students for immediate participation without notifying the their parents, much less obtaining parental consent. A selected student who does not wish to participate is placed in the untenable position of having to choose either to attend a session he truly wants to avoid or to decline the “invitation” and thereby risk actual or perceived opprobrium and ostracism from BISD administrators and faculty, not to mention from his peers. This affords the student no real choice, just a “Hobson’s Choice” — either to participate in the Program against his wishes or decline at the risk of becoming a pariah. The Supreme Court made clear in Lee that under these circumstances participation is never “voluntary.”⁶⁷

Turning to the BISD’s first contention, the Supreme Court has neither defined what constitutes a “formal religious exercise” nor furnished any detailed guidance as to how to make such a determination. This failure is not surprising, given that the unconstitutional practice in question in Lee was a graduation prayer delivered by a rabbi — -an activity undeniably religious in nature. Here, the question is somewhat less pellucid. As an initial matter, the relevant inquiry is clearly not coextensive with the inquiry conducted under the first prong of Lemon — that is, we are not examining whether BISD had a religious purpose in designing the Program but whether its actual character is religious. Nowhere in Lee did the Supreme Court examine the school’s motive for adopting the graduation prayer policy. The question of a program’s purpose is logically distinct from the program’s actual character.

Thus, our focus is on the Program’s design, implementation, and effect, and not its purpose or goal. The Supreme Court’s analyses in Lynch v. Donnelly and County of Allegheny v. American Civil Liberties Union are instructive. In Lynch, the Court held that a city’s Christmas display, which included a creche, or nativity scene, did not run afoul the Establishment Clause.⁶⁸ In so concluding, the Court admonished that exclusive focus on the religious component of an activity would inevitably lead to invalidation under the Establishment Clause⁶⁹ and emphasized that the creche was but a “passive symbol”⁷⁰ and constituted only a single component of the larger, religion-neutral display.⁷¹ In her concurrence, Justice O’Connor placed particular' emphasis on this latter point, stating that both because the creche is “a traditional symbol” of Christmas, itself a holiday with strong secular elements, and because the creche was “displayed along with purely secular symbols,” the overall arrangement “negates any message of endorsement” of “Christian beliefs represented by the creche.”⁷²

In Allegheny, the Court majority adopted the method of analysis employed by Justice O’Connor in her Lynch concurrence.⁷³ Allegheny also concerned the constitutionality of a creche displayed at Christmas time. In contrast to the creche in Lynch, however, the Allegheny nativity scene was the central element of the Christmas display, accompanied only by a fence, some poinsettias and some small trees.⁷⁴ The Court concluded that, because nothing in the display ameliorated the creche’s religious message, the display constituted an endorsement of religion and therefore violated the Establishment Clause.⁷⁵ Also at issue in Allegheny was the constitutionality of a display featuring a Chanukah menorah, a 45-foot Christmas tree, and a sign saluting liberty. Employing the same contextual approach, the Court concluded that the this combination- — particularly in light of the dominance of the 45-foot, secular Christmas tree— constituted a secular celebration of Christmas and thus did not offend the Establishment Clause.⁷⁶

Although presented in a different context, the Court’s analysis sheds considerable light on our present inquiry. When these two cases are read in pari materia, the central message that emerges from the Lynch-Allegheny dichotomy is that, to pass constitutional muster, the religious component of any governmental practice or policy cannot overwhelm the nonreligious portions. The Program fails this test resoundingly.

The clergy volunteers do not simply constitute a small part of a larger, nonreligious endeavor. They are, so to speak, the whole show. To paraphrase the Court in Allegheny, in the Program, the clergy “stand alone.”⁷⁷ Neither is it insignificant that the nature of counseling the clergy volunteers provide is essentially identical to that which they provide in their strictly religious roles as spiritual leaders of their respective religious communities. Thus, although in a vacuum student counseling is not an inherently religious undertaking, when the practice under scrutiny consists of a group of counselors made up entirely of clergymen addressing a captive audience of primary and secondary public school students — at school, during school hours, under the aegis of school administrators — concerning morals and virtue, the exercise loses its secular character entirely. Accordingly, we conclude that, because the Program consists solely of members of the clergy engaged in conduct closely tracking prototypical pastoral endeavors and activities, it constitutes a formal religious exercise. And, as there is no dispute that BISD directed the Program, the Program fails the Coercion Test of constitutionality.

4. The Endorsement Test

For its third and final strike, the Program proves to be unconstitutional under the Endorsement Test as well. The palpably ubiquitous involvement of BISD and its highest officials — superintendent, school principals, and counselors — conveys the unmistakable message that religion is favored, preferred, and even promoted, over other beliefs. By adopting a counseling program specifically designed for volunteer clergymen only,⁷⁸ then underscoring its exalted position by taking students out of academic classes at special times during the -school day to participate in this project, these public school officials unmistakably endorse religion in a constitutionally impermissible way.⁷⁹ Theirs is a message of endorsement that cannot possibly be lost on the young, impressionable, easily influenced schoolchildren whom the law entrusts to these very officials, in loco parentis, for the entire school day.

Under each of the Supreme Court’s tests, we find the Program to be antithetical to the Establishment Clause. We are therefore constrained to hold it unconstitutional both as confected and as conducted.

D. The Dissent

We briefly address what we perceive to be mischaracterization of some of the facts and applicable law by Judge Garza’s dissent, lest they go undetected. Rather than setting forth all of our disagreements with Judge Garza’s version, we speak only to the most important errors. For example, Judge Garza makes the unequivocal statement that there is no evidence in the record that the students selected to participate in the Program know that the volunteers addressing them are members of the clergy. No party has made such an assertion and such a conclusion is clearly contrary to the record. Not only do the materials distributed to the clergy volunteers undeniably envision the clergy revealing their occupation (if not their particular religious affiliation) to the students,⁸⁰ counsel for BISD admitted in oral argument that the children knew the volunteers were members of the “Clergy in the School” Program.⁸¹ Moreover, in testifying at the TRO hearing regarding the possible psychological and social pressure Program places on children who are not of the Christian faith or who decide not to participate, Rabbi Peter Hyman, a clergy participant in the Program, stated that students had indicated to him that the “Clergy in Schools” Program had made them feel uncomfortable — obviously based on their awareness that the volunteers were clergy members. Indeed, BISD’s argument that the Program is constitutional rests, in part, on the fact that the school district gives the children to opportunity to decline to participate in the Program if they are not comfortable with the idea of meeting with a group of clergymen. In short, Judge Garza’s assertion that there is no evidence that the children know that the occupation of the clergy volunteers misstates the record.

Second, Judge Garza implies that BISD’s other volunteer programs are similar in nature to the “Clergy in Schools” Program. To the contrary, as BISD admitted in oral argument, the volunteers of only two of their other programs ever discuss issues of civic values with the students — a group of retired persons, which addresses issues of “making the right choices,” and police officers participating in the national Drug Abuse Resistance Education, or DARE, program. The volunteers of BISD’s other programs either discuss their particular profession or provide services such as tutoring. The Program is certainly not, as Judge Garza intimates, just one of a multitude of volunteer programs, in which members of the community engage the school children on issues of values and morality. The record leaves no doubt that the Program is unique.

Judge Garza’s primary legal error is his assertion that the Program’s constitutionality is somehow affected by the makeup or mere existence of other volunteer programs. Judge Garza essentially asserts that, because BISD has invited several nonreligious groups to volunteer at its schools, it has remained neutral as between religion and non-religion and thus is permitted to invite a group composed solely of clergy to address school children plucked from their classrooms. He purports to buttress this argument with citations to cases (1) upholding the constitutionality of programs that involve the neutral provision of governmental services that only incidentally benefit sectarian institutions (“Neutral Provision Cases”)⁸² and (2) holding that the government cannot discriminate against religiously-affiliated groups when the government has created a public forum by granting the public, or some neutrally-defined subset thereof, “general access”⁸³ to, or “indiscriminate use”⁸⁴ of, government-controlled property (“Public Forum Cases”).⁸⁵

Judge Garza’s argument suffers from two fatal flaws. First, the cases on which he relies are inapposite — at least to the proposition for which Judge Garza cites them. The underlying principle of both sets of cases is that, when the government provides a neutrally-defined benefit to the community in general or to some subset of the community- — either by distributing a service, disbursing funds, or establishing a public forum — it cannot exclude religious organizations merely because of their religious affiliation. To do so would violate the Free Exercise Clause. BISD, however, is not providing a neutrally-defined benefit to the community by bringing volunteers into address school children. In other words, BISD is not providing something to the community but rather is introducing representatives of the community into public school context,⁸⁶ an issue that requires a different perspective than the cases on which Judge Garza relies.

Second, Judge Garza’s insistence on analyzing the “Clergy in School” Program with reference to BISD’s other volunteer programs is unavailing for the very simple reason that the individual school children who are removed from their classes as part of the Program are addressed not by a broad cross-section of BISD’s volunteers, but rather by a handful of clergymen. To accept the argument that the other volunteer programs somehow rescue the Program from unconstitutionality would be to endorse the proposition that the government could introduce religious activities into public school as long as it also separately introduced nonreligious activities of a broadly similar nature into the public school as well. Put in more concrete terms, if we were to accept Judge Garza’s argument, the Supreme Court’s holding in Lee v. Weisman that the school district was not permitted to have a rabbi deliver a prayer at a high school graduation ceremony would have to fall because the school district also invited a speaker not affiliated with a religious organization to deliver the main graduation address. Such a result clearly is not required.⁸⁷ Because, under the Program, the group of volunteers that address the children are clergy and clergy alone, the Program’s constitutionality must rise and fall without reference to BISD’s other volunteer programs.

We further take issue with Judge Garza’s remarkable assertion that neither the Doe children nor BISD students generally faces any psychological pressure to participate in the Program. Judge Garza concludes that, because they purportedly face no such pressure, the Does do not have private litigant standing to bring this suit⁸⁸ and the Program does not unconstitutionally coerce student participation in a religious exercise. After setting forth the role of psychological pressure in the Supreme Court’s Establishment Clause jurisprudence, Judge Garza essentially asserts that, because the BISD students who wish to decline to participate in the Program would “assume no special burden” and would not be required to follow “a routine different than the majority of the students,” they do not face the type of psychological pressure sufficient to constitute coercion under the relevant Supreme Court precedent.

Judge Garza’s account of the relevant precedent is flawless. His conclusion, however, is a non sequitur. As the following passage from Schempp indicates (and which Judge Garza quotes in his dissent), a governmental policy unconstitutionally coerces students if it requires them to signal in front of their instructors and their peers that they do want to participate in a religious activity:

[B]y requiring what is tantamount in the eyes of teachers and schoolmates to a profession of disbelief, or at least of nonconformity, the [excusal] procedure may well deter those children who do not wish to participate for any reason based upon the dictates of conscience from exercising an indisputably constitutional right to be excused.... [E]ven devout children may well avoid claiming their right and simply continue to participate in exercises distasteful to them because of an understandable reluctance to be stigmatized as atheists or nonconformists simply on the basis of their request.⁸⁹ ■

A BISD student, if he does not wish to participate in the Program, must so state in a classroom, where he is required to be present by State law, and which is filled with his peers, his teacher, and the school official who has arrived without warning to shepherd him to the room full of clergy members. The Program certainly places that student in a more difficult position than the students in Lee, who could avoid the rabbi’s graduation prayer speech by simply not attending the non-mandatory graduation ceremony. Judge Garza’s assertion otherwise is without foundation.

Finally, only a very brief response is required to Judge Garza’s specious assertion that the majority opinion would prohibit individual members of the clergy, such as the late Reverend Martin Luther King, Jr. or Archbishop Desmond Tutu, from meeting with public school children to talk about civic virtues and, therefore, places BISD in a constitutionally untenable position of requiring it to discriminate against the clergy. Our opinion simply does no such thing. Rather, it holds that BISD cannot design and implement a volunteer counseling program consisting solely of clergy members. The opinion in no way affects BISD’s ability to create a broad-based program that truly integrates the clergy with nonreligious community representatives and certainly does not mandate that BISD discriminate against the clergy or bar a high-profile public figure from advising the student body simply because such figure happens to be a cleric: Civil rights leaders like King and Tutu speaking as civil rights leaders do not lose their eligibility to speak publicly by virtue of their ordination.

Ill

CONCLUSION

Although there are some discrete facts in “genuine” dispute, they are not material, particularly in light of the plethora of material facts about the Program that are not in dispute — at least not genuinely. Indeed, BISD confirmed this when it filed its motion for summary judgment, the essence of which is the moving party’s representation to the court that there are no genuine factual matters in dispute and that the case is ripe for disposition on legal issues alone. For the reasons set forth above, we hold that (1) the Does have legal standing to contest the constitutionality of the Program, and (2) the program is unconstitutional because it violates the Establishment Clause of the First Amendment of the United States Constitution. We therefore reverse the district court’s ruling on standing and its grant of BISD’s motion for summary judgment, and we remand this case to the district for entry of a judgment (1) invalidating the Program and prohibiting its further implementation, (2) awarding costs and reasonable attorneys’ fees to the Does, as prevailing parties, and (3) conducting any additional proceedings and entering any additional orders, consistent herewith, as may be necessary or desirable.

REVERSED and REMANDED with instructions.

1 . Susan, Mary, and Lisa Doe are parents and a grandparent of minor children who attend elementary and secondary schools of the Beaumont Independent School District in which the Program that is the subject of this litigation has been implemented.

2 . BISD has averred that the Program has been modified since the commencement of this litigation. The judgment we render today, and the instructions accompanying our remand, apply equally to the version of the Program currently in effect, regardless of any insignificant modifications or any amendments that fail to change substantially the aspects that we here reject.

3 . Over lire years, these groups have included business partners, fraternities and sororities, the Beaumont Optimist Club, the Junior League, Junior Achievement, refinery workers, police officers, Special Friends, and retired and senior volunteers.

4 . After he was hired, but before began to serve as superintendent, Dr. Thomas informed area clergy at a luncheon that prayer needed to return to public schools. BISD asserts that the speech was unrelated to the Program and reflected only Dr. Thomas's persona] views on public school prayer.

5 .The Program “Fact Sheet” includes the following as suggested topics: dress code, why have rules, violence, peer pressure, racial issues, stereotyping, jealousy, unity, self-esteem, self-discipline, setting goals, divorce, diversity, gossip, harassment, alcohol, drugs and respect.

6 . Appellant brief, p.4 (quoting Defendant's Exhibit 8).

7 . Counsel for BISD stated at oral argument that BISD has instituted a consent policy with respect to the Program. Counsel did not, however, argue that this case is now moot, that the Program is no longer in place, that the Program had been so transmuted that it is not the same, or that what had been done since the appeal was filed was material to the hearing; rather, counsel stated that she felt there was no problem with the Program from the onset. For purposes of this appeal, then, we consider the Program as it existed before the district court.

8 .Although BISD denies such a meeting took place, we consider it for purposes of BISD’s summary judgment motion, viewing the version of the facts most favorable to the non-movant.

9 . Aubrey v. School Bd. of Lafayette Parish, 92 F.3d 316, 318 (5th Cir.1996) (citing Elliott v. Lynn, 38 F.3d 188, 190 (5th Cir.1994), cert. denied, 514 U.S. 1117, 115 S.Ct. 1976, 131 L.Ed.2d 865 (1995)).

10 . F'ed.R.Civ.P. 56(c).

11 . 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982).

12 . Id. at 472-73, 102 S.Ct. at 758-59.

13 . Murray v. City of Austin, 947 F.2d 147, 151 (5th Cir.1991) (internal quotation marks and citation omitted), cert. denied, 505 U.S. 1219, 112 S.Ct. 3028, 120 L.Ed.2d 899 (1992).

14 . Valley Forge, 454 U.S. at 472, 102 S.Ct. at 758.

15 . Murray, 947 F.2d at 151 (internal quotation marks and citation omitted).

16 . Valley Forge, 454 U.S. at 485, 102 S.Ct. at 765.

17 . Id.

18 . Id. at 486, 102 S.Ct. at 766.

¹⁹

20 . See id. at 486-87 n. 22, 102 S.Ct. at 766 n. 22. The Court rejected respondents' argument that any person asserting an Establishment Clause violation has a "spiritual stake” sufficient to confer standing. The Court explained that the “spiritual stake” language was taken from its decision in Abington School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), a case in which the plaintiffs were children who attended public schools where the Bible was read each morning, and their parents. The Court in Schempp noted: "It goes without saying that the laws and practices involved here can be challenged only by persons having standing to complain. ... The parties here are school children and their parents, who are directly affected by the laws and practices against which their complaints are directed. These interests surely suffice to give the parties standing to complain.” Id. at 225 n. 9, 83 S.Ct. at 1573 n. 9. The Court in Valley Forge explained, "[t]he plaintiffs in Schempp had standing, not because their complaint rested on the Establishment Clause — for as Doremus demonstrated, that is insufficient — but because impressionable schoolchildren were subjected to unwelcome religious exercises or were forced to assume special burdens to avoid them.” Valley Forge, 454 U.S. at 487 n. 22, 102 S.Ct. at 767 n. 22.

21 . 70 F.3d 402 (5th Cir.1995).

22 . Id. at 408 (citing Gonzales v. North Township of Lake County, Ind., 4 F.3d 1412, 1415-16 (7th Cir.1993); Cammack v. Waihee, 932 F.2d 765, 770 (9th Cir.1991) (surveying cases), cert. denied, 505 U.S. 1219, 112 S.Ct. 3027, 120 L.Ed.2d 898 (1992); Friedmann v. Sheldon Community Sch. Dist., 995 F.2d 802, 803 (8th Cir.1993)). In Duncanville we concluded that the student and her father lacked taxpayer standing to challenge the school district's practice of permitting distribution of Bibles to students by a private organization, as there was no evidence that the district expended any funds or resources on distribution. See also Freedom From Religion Found. v. Zielke, 845 F.2d 1463 (7th Cir.1988). The appellants in that case failed to satisfy the two threshold criteria for establishing municipal taxpayer standing: "First, the appellants failed to allege or prove that Grams [a resident of La Crosse and an appellant] actually is a La Crosse municipal taxpayer. Second, even if we [the court] presume that Grams is a taxpayer, the appellants did not establish that the City of La Crosse has used tax revenues on the allegedly unconstitutional display in Cameron Park.” Id. at 1470.

23 . ASARCO, Inc. v. Kadish, 490 U.S. 605, 613-14, 109 S.Ct. 2037, 2043, 104 L.Ed.2d 696 (1989) (distinguishing the standing requirements for municipal taxpayers from those for state taxpayers, who must have a "direct injury” like that required of federal taxpayers); see also Cammack, 932 F.2d at 770 (concluding that "municipal taxpayer standing simply requires the 'injury' of an allegedly improper expenditure of municipal funds, and in this way mirrors our [the 9th Circuit] threshold for state taxpayer standing.”): Zielke, 845 F.2d at 1470 (applying the two threshold criteria for establishing municipal taxpayer standing).

24 .BISD's record citation in support of this allegation is inapt; it makes no reference to acquaintance whatsoever, failing to back up this statement.

25 . Duncanville, 70 F.3d at 409 n. 11.

²⁶

27 . Clergy visited Central High — where Jane Doe and June Doe attended tenth grade during 1996-97 — twice during the school year and met with seventy students out of a student population of 1,695.

28 . Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). Accord Berger v. Rensselaer Central Sch. Corp., 982 F.2d 1160, 1164 n. 4 (7th Cir.) (stating that the district court correctly decided that the plaintiffs had standing to challenge a policy permitting the Gideons to distribute Bibles, even though the children had not personally received Gideon materials [the Gideons did not distribute Bibles to the fifth grade that year so as to sidestep litigation], as the school board had affirmed its policy permitting distribution and could have renewed the allegedly wrongful activity at any time), cert. denied, 508 U.S. 911, 113 S.Ct. 2344, 124 L.Ed.2d 254 (1993).

29 . 88 F.3d 274, 278 (5th Cir.) (quoting Karen B. v. Treen, 653 F.2d 897, 902 (5th Cir.1981), aff'd, 455 U.S. 913, 102 S.Ct. 1267, 71 L.Ed.2d 455 (1982)); see also Lee v. Weisman, 505 U.S. 577, 584, 112 S.Ct. 2649, 2654, 120 L.Ed.2d 467 (1992) (holding plaintiff had standing because “from the record it appears likely, if not certain, that an invocation and benediction will be conducted at her high school graduation.”).

30 . 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992).

31 . Id. at 592, 112 S.Ct. at 2658.

32 . Id. at 593, 112 S.Ct. at 2658.

³³

34 . Id. at 593, 112 S.Ct. at 2658-59. The Court noted that "[Research in psychology supports the common assumption that adolescents are often susceptible to pressure from their peers towards conformity, and that the influence is strongest in matters of social convention.” Id. at 593, 112 S.Ct. at 2659 (citing Brittain, Adolescent Choices and Parent-Peer Cross-Pressures, 28 Am. Soc. Rev. 385 (June 1963); Ciasen & Brown, The Multidimension-ality of Peer Pressure in Adolescence, 14 J. of Youth & Adolescence 451 (Dec. 1985); Brown, Ciasen, & Eicher, Perceptions of Peer Pressure, Peer Conformity Dispositions, and Self-Reported Behavior Among Adolescents, 22 Developmental Psychology 521 (July 1986)).

35 . Our determination that the Does have alleged sufficient actual or threatened injury to confer standing makes it unnecessary to reach the Does’s alternative claim of taxpayer standing.

36 . 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).

37 . Id. at 612-13, 91 S.Ct. at 2111.

38 . As the district court did not address the Program's constitutionality under the Texas Constitution, we decline to do so on appeal. We do not refrain for lack of authority to consider the issue in our de novo review of the district court’s grant of summary judgment, but because we find it unnecessary in light of our ruling under the United States Constitution.

39 . Lemon, 403 U.S. at 612-13, 91 S.Ct. at 2111.

40 . See, e.g., Edwards v. Aguillard, 482 U.S. 578, 583, 107 S.Ct. 2573, 2577, 96 L.Ed.2d 510 (1987); Wallace v. Jaffree, 472 U.S. 38, 56, 105 S.Ct. 2479, 2489-90, 86 L.Ed.2d 29 (1985) (striking down statute for lacking secular purpose).

41 . Lee, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (invalidating school district's policy permitting school principals to invite clergy to give invocations and benedictions in form of "nonsectarian” prayer at graduation ceremonies).

42 . Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963, 970 (5th Cir.1992) (relying on Lee, 505 U.S. at 586, 112 S.Ct. at 2655), cert. denied, 508 U.S. 967, 113 S.Ct. 2950, 124 L.Ed.2d 697 (1993).

43 . County of Allegheny v. ACLU, 492 U.S. 573, 592-93, 109 S.Ct. 3086, 3100-01, 106 L.Ed.2d 472 (1989).

44 . Ingebretsen, 88 F.3d at 280 (5th Cir.1996) (internal quotation marks and citation omitted).

45 . Id. (quoting Allegheny, 492 U.S. at 593, 109 S.Ct at 3101).

46 . See, e.g., Everson v. Bd. of Educ. of Ewing, 330 U.S. 1, 15-16, 67 S.Ct. 504, 511-12, 91 L.Ed. 711 (1947).

47 . See supra note 4.

48 . The Does also highlight testimony by program coordinator and BISD board member, Reverend Whittaker, who, when asked, "[w]ell, as a governmental question or a political question, would you like to see this nation adopt Christianity as the state religion?" responded that he "would like to see Christianity to be utilized in any form it can be in order to implement better morals or persons, yes."

49 .Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986) (finding that school district had authority to impose sanctions on student in response to his offensively lewd and indecent speech, which was not protected by the First Amendment, and noting that the role and purpose of the public school system is to inculcate the fundamental values of "habits and manners of civility,” including tolerance of divergent political and religious views); see also Jones, 977 F.2d at 965-66.

50 . Aguillard, 482 U.S. at 586-87, 107 S.Ct. at 2579.

51 . See Lynch v. Donnelly, 465 U.S. 668, 690-91, 104 S.Ct. 1355, 1368-69, 79 L.Ed.2d 604 (1984) (O'Connor, J., concurring) (noting purpose prong "is not satisfied ... by mere existence of some secular purpose, however, dominated by religious purposes.”); Aguillard, 482 U.S. at 589-94, 107 S.Ct. at 2580-83 (finding pre-eminent purpose of Louisiana Balanced Treatment for Creation Science in Public School Instruction Act was to endorse religion); Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199, (1980) ("The preeminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature.”); Schempp, 374 U.S. at 223, 83 S.Ct. at 1572 (holding unconstitutional daily reading of Bible verses and Lord's Prayer despite school - district’s assertion of secular purpose of promoting moral values).

52 . See id. (“|T]he legislature's provision for excusing students who do not desire to participate in the daily prayer session betrays its recognition of the fundamentally religious character of the exercise.”)

53 . Lynch, 465 U.S. at 690, 104 S.Ct. at 1368 (O'Connor, J., concurring).

54 . Aguillard, 482 U.S. 578, 107 S.Ct. 2573, 96 L.Ed.2d 510.

55 . Id. at 583-84, 107 S.Ct. at 2577.

56 . 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997).

57 . Id. 117 S.Ct. at 2010.

58 . Id. at 2014; see also Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 842, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (“It does not violate the Establishment Clause for a public university to grant access to its facilities in a religion-neutral basis to a wide spectrum of student groups, including groups which use meeting rooms for sectarian activities (emphasis added); Board of Ed. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 696, 114 S.Ct. 2481, 2487, 129 L.Ed.2d 546 (1994) ("'A proper respect for both the Free Exercise and the Establishment Clauses compels the State to pursue a course of "neutrality’’ toward religion,’ favoring neither one religion over others nor religious adherents collectively over nonadherents.”) (quoting Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U.S. 756, 792-793, 93 S.Ct. 2955, 2975, 37 L.Ed.2d 948 (1973)); Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 10, 113 S.Ct. 2462, 2467, 125 L.Ed.2d 1 (1993) (holding that permitting deaf student to bring his state-employed sign-language interpreter did not impermissibly advance religion because governmental program was administered based on religion-neutral criteria).

59 . We note, however, that these two opposing fact patterns present different, albeit related, concerns. When the government administers programs and distributes benefits according to neutral criteria which only incidentally benefit religious organizations, there is little danger that people will perceive any official endorsement of those organizations’ beliefs. By contrast, there is a much greater danger that, when religious organizations and representatives participate in the affairs of government — at least when they do so not as an indistinguishable part of a larger effort, but rather in a manner clearly distinct and identifiable- — such participation will create the clear impression that the government has reached out to such religious organizations and representatives precisely because of their religious affiliations. On a similar note, although we may no longer presume that public employees will inculcate religion simply because they are in a sectarian environment, Agostini, 117 S.Ct. at 2010, it does not follow that we should, or will, abandon the close scrutiny we have traditionally applied to any introduction of religion into public schools. See, e.g., Duncanville, 70 F.3d at 406-07 (holding unconstitutional school district’s practice of allowing its employees to participate and supervise student prayers during basketball games and practices). For Establishment Clause examinations, the public primary and secondary school setting is sui generis and thus has no true analog. See Aguillard, 482 U.S. at 583-84, 107 S.Ct. at 2577.

60 .Cf. Kiryas Joel, 512 U.S. at 698, 114 S.Ct. at 2488 ("State may not delegate its civic authority to group chosen according to religious criterion”); Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 103 S.Ct. 505, 74 L.Ed.2d 297 (1982) (holding unconstitutional Massachusetts statute vesting in the governing bodies of churches and schools the power effectively to veto applications for liquor licenses within a 500-foot radius of the church or school).

61 . Ingebretsen, 88 F.3d at 279.

62 . The Program contrasts sharply with the graduation prayers we held constitutional in Jones. There, not only did the prayers make only a small part of the larger exercise, the attending students elected to attend the ceremony — though as the Supreme Court noted in Lee, graduation ceremonies are not "voluntary” exercises for the graduating students— and do not have the type of personal interaction with the religious aspects of the exercise as do the students selected to participate in the Program. Jones, 977 F.2d at 967.

63 . Lee, 505 U.S. at 587-88, 112 S.Ct. at 2655-56; see also Ingebretsen, 88 F.3d at 279 ("The statute [School Prayer Statute] will inevitably involve school officials in determining which prayers are 'nonsectarian and nonproselytiz-ing’ and in determining who gets to say the prayer at each event. To the extent that school administrators participate in prayers in their official capacity or review the content of prayers to ensure that they meet these requirements, the School Prayer Statute excessively entangles government with religion.”).

64 . BISD's involvement in the Program surpasses that of the school in Jones as well. There, school officials did nothing more than conduct a once-a-year review of unsolicited material for sectarianism. Jones, 977 F.2d at 967-68.

65 . Id. at 970 (relying on Lee, 505 U.S. at 586, 112 S.Ct. at 2655), cert. denied, 508 U.S. 967, 113 S.Ct. 2950, 124 L.Ed.2d 697 (1993).

66 . See Aguillard, 482 U.S. at 584, 107 S.Ct. at 2578 (“The State exerts authority and coercive power through mandatory attendance requirements, and because of the students’ emulation of teachers as role models and the children’s susceptibility to peer pressure.’’).

67 . See Lee, 505 U.S. at 592-94, 112 S.Ct. at 2658-59.

68 . Lynch, 465 U.S. at 687, 104 S.Ct. at 1367.

69 . Id. at 680, 104 S.Ct. at 1362.

70 . Id. at 686, 104 S.Ct. at 1366.

71 . Id. at 671, 104 S.Ct. at 1358.

72 . Id. at 692, 104 S.Ct. at 1369 (O'Connor, J„ concurring).

73 . Allegheny, 492 U.S. at 595-96, 109 S.Ct. at 3102-03.

74 . Id. at 580-81, 109 S.Ct. at 3094.

75 . Id. at 601-02, 109 S.Ct. at 3105.

76 . Id. at 617-18, 109 S.Ct. at 3113-14.

77 . Id. at 598, 109 S.Ct. at 3104.

78 . BISD’s reliance on Jones in supporl of its argument that the Program does not convey the message that religion is favored or preferred over other beliefs is entirely misplaced. There, the school merely permitted students to deliver nonsectarian, nonproselytizing prayers if they voted to do so. Jones, 977 F.2d at 968-69. The school policy was "passive” neither mandating prayer nor prohibiting it, thereby reducing the likelihood that students would perceive the student-led, student-initiated prayers as an endorsement of religion by the school. Id. at 968. Here, by contrast, the school engineered and implemented the Program from beginning to end. There is no mistaking the fact that the clergy are in the schools at the school's behest.

79 . See Ingebretsen, 88 F.3d at 280 ("The School Prayer Statute is an unconstitutional endorsement of religion because it allows school officials in their capacity as representatives of the state to lead students in prayer and sets aside special time for prayer that it does not set aside for anything else. It also places the coercive power of the state in the position of forcing students to attend school and then forcing them to listen to prayers offered there.”).

80 . One document lists as a strength of the Program "Students aware that ministers are aware of what’s happening in schools.” Another document lists as a Do (as opposed to a Don't) "let students know you [a clergy member] are human.” BISD has, moreover, repeatedly stated that one of its primary goals is to provide members of the clergy with an opportunity to connect with the students. BISD acknowledges that this goal is distinct from its desire to give students a chance to discuss issues that may be troubling them. BISD has failed to explain why a public school includes in its mission goals designed to aid religious representatives.

81 .When specifically asked the question "Are the children aware that the counselors all have a religious tie?” Counselor for BISD responded, "The students are aware that this is a 'Clergy in School’ Program.” Later, Counselor for BISD asserted that Plaintiff Doe testified at the TRO hearing she did not "even know how the' Program worked.” In response to the question whether Plaintiff Doe knew that the counselors were all clergy, Counselor for BISD stated "I don’t know even she knew that.” Not once did Counselor suggest that the children were not aware that volunteers in the Program were all members of the clergy.

82 . See, e.g., Agostini, 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (federally-fund.ed program that sent public school teachers into parochial schools to provide remedial education); Roemer v. Board of Pub. Works of Md., 426 U.S. 736, 96 S.Ct. 2337, 49 L.Ed.2d 179 (1976) (public aid program to colleges and universities).

83 . Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985).

84 . Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 47, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983).

85 .See, e.g., Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (holding that, because university’s student activity fund ("SAF”) was available to broad range of groups under neutral guidelines, SAF constituted limited public forum and University could not, therefore, deny funds to Christian newspaper because of editorial viewpoint); Board of Educ. of Westside Community Schls. v. Mergens, 496 U.S. 226, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990) (holding school’s policy of granting access to school facilities after school hours created limited public forum and, therefore, school could not deny such access to student religious organization).

86 . Introducing elements of the community into public school context is, of course, a laudable practice. It is simply constrained by the Establishment Clause.

87 . In fact, Judge Garza’s argument is arguably more relevant to Lee's graduation ceremony than to the Program because at least, in a graduation ceremony, the State-introduced religious and nonreligious components are directed at the same set of students. Nevertheless, the Supreme Court's focus remained squarely on the graduation prayer, just as our focus must be on the “Clergy in School” Program independent of BISD's other volunteer programs.

88 .Judge Garza additionally asserts that the Does do not have taxpayer standing. As we do not reach that issue in our opinion, it is unnecessary to respond to Judge Garza's arguments. See supra note 35.

89 . Schempp, 374 U.S. at 289-90, 83 S.Ct. at 1607, 10 L.Ed.2d at 896-97.