Jager v. Douglas County School District

862 F.2d 824, 98 A.L.R. Fed. 175, 1989 U.S. App. LEXIS 14

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 3, 1989
• Docket: Nos. 87-8522, 87-8719
• Status: Published

Opinions

JOHNSON, Circuit Judge:

This case involves invocations which are delivered prior to public high school football games in Douglas County, Georgia. These football games are school-sponsored activities which are played at a stadium owned by the school system. The schools furnish the equipment used by the participants, and the coaches who supervise these activities are employed by the school system. Taxpayer funds are used to pay the operating costs for the stadium lights and public address system. We hold that the practice of beginning these games with an invocation violates the Establishment Clause of the First Amendment.

I. FACTS

In the fall of 1985, Doug Jager, then a member of the Douglas County High School marching band,¹ objected to his school principal about the practice of having pregame invocations delivered at home football games.² The invocations often opened with the words “let us bow our heads” or “let us pray” and frequently invoked reference to Jesus Christ or closed with the words “in Jesus’ name we pray.” These invocations conflict with the Jagers’ sincerely held religious beliefs.³ The Douglas County High School principal informed the band director of Doug Jager’s objections to the prayers. The band director proceeded to lecture Doug on Christianity.

On June 2, 1986, Douglas County School Superintendent Kathryn Shehane, the school system attorney, the Jagers and their counsel, and Reverends Jamie E. Jenkins and Donald Mountain of the Douglas County Ministerial Association (“DCMA”) met and discussed two alternative proposals for modifying the invocation practices: an inspirational wholly secular speech and an “equal access” plan that would retain some religious content. The Jagers rejected the equal access approach, and notified the school system attorney that the secular inspirational speech was the only feasible alternative to the invocation practice. Upon the Jagers’ rejection of the equal access plan, Reverends Jenkins and Mountain drafted a compromise proposal. The stated purpose of the alternative draft was to “perpetuate and regulate the traditional invocation as part of the opening ceremonies of school athletic events.” Rl-24-16. In August 1986, the plaintiffs agreed to reconsider the Jenkins/Mountain version of the equal access plan if prayers voluntarily ceased at football games in the interim.

In September 1986, Superintendent She-hane met with the principals of Douglas County high schools. The group decided to proceed with pregame invocations pursuant to the equal access plan. On September 15, 1986, the high school principals informed their schools that the equal access plan, which the district court found to be coextensive with the Jenkins/Mountain plan, would govern future games, including those scheduled for September 26, 1986.⁴

Under the terms of the equal access plan, all school clubs and organizations can designate club members to give invocations, and any student, parent or school staff member can seek to deliver an invoeation. The plan specifies that the student government will randomly select the invocation speaker, and no ministers will be involved in selecting invocation speakers or in delivering invocations. In addition, the schools will not monitor the content of the invocations.⁵

On September 19, 1986, the Jagers filed a complaint in the United States District Court for the Northern District of Georgia. The district court issued a temporary restraining order enjoining the Douglas County School District (“the School District”) from conducting or permitting religious invocations prior to any athletic event at the school stadium.

The case was tried to the district court in November 1986. On February 3, 1987, the district court (1) declared the pregame invocations unconstitutional, (2) denied the Jag-ers’ request for a permanent injunction, (3) rejected the Jagers’ claim based on the Free Exercise of Religion Clause of the First Amendment,⁶ and (4) rejected the Jag-ers’ claim that the School District violated the Georgia Constitution.

After the School District filed a Motion for Clarification, the district court entered an additional order in which it held that the equal access plan was constitutional on its face and did not violate the Establishment Clause. The court expressly declined to determine whether the equal access plan was unconstitutional as applied. The district court denied the Jagers’ request for declaratory and injunctive relief relating to the equal access plan.

On June 2, 1987, the district court determined that the Jagers were “prevailing parties” under 42 U.S.C.A. § 1988 and thus were entitled to attorneys’ fees. On August 31, 1987, the district court awarded attorneys’ fees, after decreasing the amount sought by the Jagers by 25%. The appeals and cross-appeals from the district court’s orders on the merits and on the question of attorneys’ fees were then consolidated.

II. DISCUSSION

A. Equal Access Plan’s Facial Validity

The district court held that the equal access plan, which involves the random selection of an invocation speaker, was constitutional on its face. The Jagers challenge this holding on appeal.

The. Establishment Clause of the First Amendment forbids the enactment of any law or practice “respecting an establishment of religion.”⁷ U.S. Const. Amend. I. The religion clauses of the First Amendment require that states “pursue a course of complete neutrality toward religion.” Wallace v. Jaffree, 472 U.S. 38, 60, 105 S.Ct. 2479, 2491, 86 L.Ed.2d 29 (1985) (“ Jaffree II ”). To determine whether state action embodies the neutrality that comports with the Establishment Clause, this Court must apply a three-pronged analysis. See Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). We must ask whether (1) the Douglas County School Superintendent and the school principals had a secular purpose for adopting the equal access plan, (2) the plan’s primary effect is one that neither advances nor inhibits religion, and (3) the plan does not result in an excessive entanglement of government with religion. Id. at 612-13, 91 S.Ct. at 2111. State action violates the Establishment Clause if it fails to meet any of these three criteria. Edwards v. Aguillard, 482 U.S. 578, 107 S.Ct. 2573, 2577, 96 L.Ed.2d 510 (1987).

The School District argues that the Lemon test does not apply here. Instead, the School District contends that Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), provides the standard for determining whether the equal access plan violates the Establishment Clause. In Marsh, the Supreme Court upheld Nebraska’s practice of commencing state legislative sessions with a prayer delivered by a chaplain employed by the state. In refusing to declare Nebraska’s legislative invocation unconstitutional, the Court relied on the “unique history” associated with the practice of opening legislative sessions with a prayer. Id. at 791, 103 S.Ct. at 3335-36. The practice existed at the time of the adoption of the First Amendment and had continued in many states to the present. See id. at 792, 103 S.Ct. at 3336 (“In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society.”). Since the Continental Congress and the First Congress opened their sessions with prayers, the Marsh Court concluded that the drafters of the Establishment Clause undoubtedly perceived no threat from legislative prayer and did not intend to prohibit legislative invocations. Id. at 791, 103 S.Ct. at 3335-36.

Because Marsh was based on more than 200 years of the “unique history” of legislative invocations, it has no application to the case at bar. The instant case involves the “special context of the public elementary and secondary school system,” Edwards, 107 S.Ct. at 2577, in which the Supreme Court “has been particularly vigilant in monitoring compliance with the Establishment Clause.” Id. As the Supreme Court recently explained:

[t]he Lemon test has been applied in all cases since its adoption in 1971, except in Marsh v. Chambers, where the Court held that the Nebraska legislature’s practice of opening a session with a prayer by a chaplain paid by the State did not violate the Establishment Clause. The Court based its conclusion in that case on the historical acceptance of the practice. Such a historical approach is not useful in determining the proper roles of church and state in public schools, since free public education was virtually nonexistent at the time the Constitution was adopted.

Edwards, 107 S.Ct. at 2577 n. 4 (citations omitted).⁸ Similarly, the present case does not lend itself to Marsh’s historical approach because invocations at school-sponsored football games were nonexistent when the Constitution was adopted. Therefore, the Lemon test guides this Court’s analysis in the case at bar.⁹

1. Secular Purpose

The first prong of the Lemon test asks whether the challenged practice had a secular purpose. “In applying the purpose test, it is appropriate to ask ‘whether government’s actual purpose is to endorse or disapprove of religion.’ ” Jaffree II, 472 U.S. at 56, 105 S.Ct. at 2489 (quoting Lynch v. Donnelly, 465 U.S. 668, 690, 104 S.Ct. 1355, 1368, 79 L.Ed.2d 604 (1984) (O’Connor, J., concurring)). Clearly, the equal access plan in the case at bar was adopted with the actual purpose of endorsing and perpetuating religion.

The district court found that pregame invocations serve four purposes: (1) to continue a longstanding custom and tradition, (2) to add a solemn and dignified tone to the proceedings, (3) to remind the spectators and players of the importance of sportsmanship and fair play,¹⁰ and (4) “to satisfy the genuine, good faith wishes on the part of a majority of the citizens of Douglas County to publicly express support for Protestant Christianity.” Rl-24-19. The School District could serve all of its cited secular purposes by requiring wholly secular inspirational speeches about sportsmanship, fair play, safety, and the values of teamwork and competition.¹¹ Indeed, the Jagers offered to accept a pregame invocation consisting of a secular inspirational speech. Since the School District rejected this compromise even though it would have fulfilled the three secular purposes of pregame invocations, it is clear that the School District was most interested in the fourth purpose served by the invocations. That is, the School District wanted to have invocations that publicly express support for Protestant Christianity.

“The unmistakable message of the Supreme Court’s teachings is that the state Cannot employ a religious means to serve otherwise legitimate secular interests.” Karen B. v. Treen, 653 F.2d 897, 901 (5th Cir. Unit A 1981), aff'd mem., 455 U.S. 913, 102 S.Ct. 1267, 71 L.Ed.2d 455 (1982). In choosing the equal access plan, the School District opted for an alternative that permits religious invocations, which by definition serve religious purposes, just like all public prayers. See Jaffree v. Wallace, 705 F.2d 1526, 1534 (11th Cir.1983) (“Recognizing that prayer is the quintessential religious practice implies that no secular purpose can be satisfied_”), aff'd, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (“Jaffree I”). The School District’s rejection of the alternative of wholly secular invocations makes it very clear that the School District’s actual purpose in having pregame invocations was religious. Consequently, the equal access plan fails to survive the Lemon test.

The conclusion that an intrinsically religious practice cannot meet the secular purpose prong of the Lemon test finds support in other cases. In Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980), the Supreme Court held that Kentucky’s statute requiring the posting of a copy of the Ten Commandments in all public classrooms had no secular purpose. The Kentucky legislature required the following notation in small print at the bottom of each copy of the Ten Commandments: “The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.” Id. at 41, 101 S.Ct. at 193 (quoting Ky.Rev.Stat. § 158.178 (1980)). Nonetheless, the Supreme Court held that “[t]he pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact.” Id. at 41, 101 S.Ct. at 194 (footnote omitted). Likewise, the facts in the present case demonstrate that, although the School District emphasized at trial the secular purposes behind the pregame invocations, the preeminent purpose behind having invocations was to endorse Protestant Christianity. This is prohibited by the Establishment Clause. See Abington School Dist. v. Schempp, 374 U.S. 203, 223, 83 S.Ct. 1560, 1572, 10 L.Ed.2d 844 (1963) (daily reading of Bible verses and Lord’s Prayer in the public schools held unconstitutional, despite school district’s assertion of such secular purposes as “the promotion of moral values, the contradiction to the materialistic trends of our times, the perpetuation of our institutions and the teaching of literature”); Graham v. Central Community School Dist. 608 F.Supp. 531, 535 (S.D.Iowa 1985) (striking down commencement invocation and benediction for lack of secular purpose). In light of the controlling case law and the nature of the challenged practice, we hold that, because the equal access plan fails to satisfy the first prong of the Lemon test, the plan violates the Establishment Clause of the First Amendment.

2. The Primary Effect

Even assuming, arguendo, that the equal access plan survives the first prong of the Lemon test, we would still find that the plan is facially unconstitutional because it fails the primary effect prong of the Lemon test. “The effect prong asks whether, irrespective of government’s actual purpose, the practice under review in fact conveys a message of endorsement or disapproval [of religion].” Jaffree II, 472 U.S. at 56 n. 42, 105 S.Ct. at 2489 n. 42 (quoting Lynch, 465 U.S. at 690, 104 S.Ct. at 1368 (O’Connor, J., concurring)).

In the present case, as noted above, the School District could satisfy its secular objectives by prescribing a strictly secular invocation. The equal access plan, however, permits religious invocations. When a religious invocation is given via a sound system controlled by school principals and the religious invocation occurs at a school-sponsored event at a school-owned facility, the conclusion is inescapable that the religious invocation conveys a message that the school endorses the religious invocation. See Jaffree I, 705 F.2d at 1534-35 (“The primary effect of prayer is the advancement of ones religious beliefs.”). This message becomes even clearer when the context of these pregame prayers is understood. In the past, pregame invocation speakers at the Douglas County High School, with very few exceptions, have been Protestant Christian ministers. In addition, Protestant Christianity is the majority religious preference in Douglas County. Therefore, the likely result of the equal access plan will be the continuation of Protestant Christian invocations, which have been delivered since 1947. Moreover, the equal access plan places those attending football games in the position of participating in a group prayer. Consequently, the plan violates the primary effect prong of the Lemon test. Accord Graham, 608 F.Supp. at 536 (“invocation and benediction portions of defendant’s commencement exercises have as their primary effect the advancement of the Christian religion”).

3. Entanglement

On the face of the equal access plan, the School District is not entangled with religion at all. The School District does not monitor the content of the invocations, and the DCMA will no longer choose the invocation speakers or deliver the pregame prayers. Nonetheless, the lack of entanglement cannot save the equal access plan because the plan violates the first two prongs of the Lemon test.

4. The School District’s Arguments

The School District sets forth several arguments for distinguishing school prayer cases, claiming that these distinctions permit a finding that religious invocations at high school football games are constitutional. The School District first argues that the school prayer cases are not implicated here because pregame invocations occur outside the instructional environment of the classroom. This argument is meritless. Even though not occurring in the classroom, the invocations take place at a school-owned stadium during a school-sponsored event. In Doe v. Aldine Ind. School Dist., 563 F.Supp. 883 (S.D.Tex.1982), the United States District Court for the Southern District of Texas rejected the argument that the School District asserts here. In Doe, a public high school sponsored extracurricular activities at which a prayer was sung. The defendants argued that the prayer did not violate the Establishment Clause because it occurred outside the classroom. The Doe court rejected this argument:

Pep rallies, football games, and graduation ceremonies are considered to be an integral part of the school’s extracurricular program and as such provide a powerful incentive for students to attend.... “[I]t is the Texas compulsory education machinery that draws the students to the school event and provides any audience at all for the religious activities.... ” Since these extracurricular activities were school sponsored and so closely identified with the school program, the fact that the religious activity took place in a nonreligious setting might create in a student’s mind the impression that the state’s attitude toward religion lacks neutrality.

Id. at 887 (citation omitted). The Doe court’s reasoning applies equally well in the present case.

The School District next contends that football invocations do not invoke the teacher-student relationship, and are directed to a far less impressionable audience of adults and sixteen-to-eighteen year olds. However, the equal access plan does permit teachers to deliver religious invocations, thereby impacting on the teacher-student relationship. Furthermore, to persons of any age who do not believe in prayer, religious invocations permitted by the equal access plan convey the message that the state endorses religions believing in prayer and denigrates those religions that do not. If these prayers are delivered by authority figures, such as teachers, as is possible under the equal access plan, the message endorsing prayer becomes even stronger.

The School District argues further that the invocations are constitutional because they are given at public events at which attendance is entirely voluntary. Courts upholding invocations at graduation ceremonies have stressed that attendance is voluntary. See, e.g., Wood v. Mt. Lebanon Township School Dist., 342 F.Supp. 1293, 1294 (W.D.Pa.1972). However, the Supreme Court and this Court have not held that public prayer becomes constitutional when student participation is purely voluntary. See Engel v. Vitale, 370 U.S. 421, 430, 82 S.Ct. 1261, 1266-67, 8 L.Ed.2d 601 (1962) (“Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause”); see also Karen B. v. Treen, 653 F.2d at 902. The School District attempts to distinguish these cases on the ground that they involved students who were compelled by law to be in attendance in the classrooms where prayer took place. The School District suggests that, because attendance at football games is voluntary, a constitutional violation is avoided. This argument lacks merit because whether the complaining individual’s presence was voluntary is not relevant to the Establishment Clause analysis. Bell v. Little Axe Ind. School Dist. No. 70, 766 F.2d 1391, 1405 (10th Cir.1985). The Establishment Clause focuses on the constitutionality of the state action, not on the choices made by the complaining individual.

The School District’s final attempt to distinguish the school prayer cases centers on the contention that the invocations constitute a de minimis violation of the Establishment Clause because they last 60 to 90 seconds. See Grossberg v. Deusebio, 380 F.Supp. 285, 290 (E.D.Va.1974) (no Establishment Clause violation “from the brief periods allotted to the invocation and benediction contemplated as part of the graduation ceremony”). This approach is flawed. It is “no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment.” Schempp, 374 U.S. at 225, 83 S.Ct. at 1573. The Establishment Clause does not focus on the amount of time an activity takes, but rather examines the religious character of the activity. See Hall v. Bradshaw, 630 F.2d 1018, 1021 (4th Cir.1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1480, 67 L.Ed.2d 613 (1981). As the Fourth Circuit recognized in Bradshaw, “[a] prayer, because it is religious, does advance religion, and the limited nature of the encroachment does not free the state from the limitations of the Establishment Clause.” Id. at 1021.

None of the arguments offered by the School District are persuasive in the present case. Each alleged distinction overlooks the single fact that a state or its subdivision cannot endorse or advance religion. Nor can a state use religious means to achieve secular purposes where, as here, secular means exist to achieve those purposes.

In short, the equal access plan is unconstitutional because it has a religious purpose and a primary effect of advancing religion. By using a purely secular invocation, the School District could avoid any problems of entanglement, fulfill its secular purposes, and not advance religion, thereby complying with the requirements of Lemon and its progeny. Because the School District rejected the alternative of a purely secular pregame speech, and instead adopted a plan which fails to satisfy the Lemon test, we hold that the equal access plan is unconstitutional on its face.

B. Invocations Before Equal Access Plan Implemented

The district court declared that the pregame invocation system that was in place prior to the “adoption” of the equal access plan¹² was unconstitutional. The School District contends that the question of the constitutionality of the invocation practices as they existed prior to the equal access plan was moot and, therefore, the district court lacked jurisdiction to make such a declaration. Alternatively, the School District argues that, if the issue was not moot, the district court erroneously declared the prior pregame invocation practice to be unconstitutional.

1. Mootness

The School District first raised mootness as a jurisdictional impediment when the district court prepared to award attorneys’ fees to the Jagers. The district court rejected the School District’s argument because it was not absolutely clear that the prior practice of having religious invocations given by DCMA ministers would not recur. See United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968).

Ordinarily, the defendant’s voluntary cessation of a challenged practice will not moot an action because “the defendant is free to return to his old ways.” United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). In the case at bar, the district court held that:

the issue of the constitutionality of the pre-“equal access” plan practice of pregame prayer is not moot. In fact, the practice was temporarily enjoined by this court prior to adjudication on the merits. At no point during the hearing on the motion by plaintiffs for a temporary restraining order or during the trial on the merits was the mootness argument raised. Both plaintiffs and defendants have steadfastly litigated the allegedly moot issue.

R2-48-3.

In arguing that the district court’s holding was error, the School District seeks to distinguish Concentrated Phosphate and W.T. Grant. It contends that voluntary cessation in those cases occurred after the complaint was filed, whereas the Douglas County School Superintendent and the school principals decided to implement the equal access plan four days before the Jag-ers filed their complaint. This argument is unavailing. In Hall v. Board of School Comm’rs, 656 F.2d 999, 1000 (5th Cir. Unit B Sept.1981), this Court held that the defendant school board’s voluntary cessation of morning devotionals upon learning that a lawsuit was going to be filed did not moot the plaintiff’s Establishment Clause challenge to the practice. The Hall Court noted that the defendant school board had disputed the constitutionality of the practice up to the day of trial, when defense counsel indicated for the first time that the board had no intention of reviving the devotionals. Additionally, although the school superintendent knew that the practice was unconstitutional and had informed the school principals of this fact, he made no further attempt to ensure that all schools discontinued the practice. Id.

Hall controls the mootness issue in the present case. Under the imminent threat of the Jagers’ lawsuit, the School District voluntarily ceased the practice of having pregame religious invocations delivered by Protestant ministers, and it implemented the equal access plan. However, the equal access plan was merely implemented by the school principals. It was not a formal policy adopted by the School District or the Douglas County Board of Education, and the defendants never promised not to resume the prior practice.¹³ In fact, the defendants continue to press on appeal that the voluntarily ceased conduct should be declared constitutional. Thus, as in Hall, the controversy concerning the pri- or invocation practices is not moot.

Because the School District’s posture on appeal suggests it may revert to the practices it engaged in prior to the development of the equal access plan, the present case is distinguishable from Saladin v. City of Milledgeville, 812 F.2d 687, 693 (11th Cir.1987). In Saladin, this Court held an action moot where the City voluntarily ceased displaying an official seal in which the word “Christianity” appeared, and it promised not to display the seal again in the future. Importantly, the Court noted that there was no indication that the City would break its word. Id. Conversely, in the present case, there is no indication that the School District will refrain from resuming its forty-year-old practice of having clergy deliver religious invocations before high school football games. Therefore, because Hall, not Saladin, controls the question of mootness, we will reach the merits of the Jagers’ challenge to the pre-equal access plan practices.

2. Merits

The School District appeals the district court’s declaration that the practice of having ministers give religious invocations violated the Establishment Clause. However, under the Lemon test,¹⁴ this argument is without merit. First, the invocations were prayers, delivered by ministers, and thus fail the secular purpose prong of the Lemon test for the reasons set forth in Part A, supra. Second, the primary effect of advancing religion was clear for the reasons given by the district court: “[o]ne of the effects of the prior practices in regard to invocations was to create the appearance or impression that the school system endorsed Protestant Christianity.” Rl-24-19. The School District labels this finding clearly erroneous, but such a finding is inescapable where the person giving the invocation was identified by name and, frequently, by church affiliation. Third, excessive entanglement occurred because the School District delegated the authority to deliver invocations and to choose invocation speakers to the DCMA, a Protestant ministerial group. We therefore hold that the prior practice violated the Establishment Clause.¹⁵

C. Attorneys’ Fees

On June 2, 1987, the district court determined that the Jagers were a “prevailing party” within the meaning of 42 U.S.C.A. § 1988. On August 31, 1987, the district court awarded the Jagers approximately $66,000, consisting of attorneys’ fees and costs. The plaintiffs’ attorneys had submitted a figure of approximately $71,000 for attorneys’ fees; however, the district court reduced this figure by 25%, for time related to the unsuccessful equal access plan claim. Because we find in favor of the plaintiffs on the equal access plan claim, we remand to the district court to determine an attorneys’ fee award in light of this holding.

III. CONCLUSION

In sum, we REVERSE the district court’s order declaring the equal access plan constitutional on its face, and we AFFIRM the lower court’s order declaring that the pregame invocations were unconstitutional. Because we award relief to the plaintiffs on both of their Establishment Clause claims, we REMAND to the district court to determine the amount of attorneys’ fees to be awarded.

1 . Doug Jager has now graduated from high school. He and his father, William Jager, continue this suit as taxpayers and as people who attend the football games. In addition, Mark Jager (William’s other son) attends Douglas County High School and plays in the marching band.

2 . Pregame invocations have been given at Douglas County High School football games at least since 1947. From 1947 to September 1986, an announcer would introduce the invocation speaker, usually identifying the church of affiliation. Student government initially invited invocation speakers. Starting in 1950, local ministers began to give the invocations. In the early 1970s, an assistant football coach delegated the task of furnishing invocation speakers to Reverend Leon Jeffords, a Presbyterian clergyman. From the early 1970s through 1986, Jef-fords recruited invocation speakers through the Douglas County Ministerial Association, a group of ordained clergy whose membership consisted exclusively of Protestant Christian ministers. With perhaps five exceptions, Protestant Christian clergymen gave every invocation delivered at Douglas County High School games from 1974 to 1986.

3 .The Jagers are Native Americans.

4 . Although the Douglas County Board of Education never formally adopted a policy concerning pregame invocations, the School District does not deny that the school superintendent met with the school principals and instructed them to follow the equal access plan. The school superintendent testified that, after she and the principals decided to proceed in accordance with the equal access plan, the principals informed their respective student bodies that the equal access plan would be the method by which pregame invocation speakers would be chosen. R5-90-91. Therefore, the plan was enacted by those with authority to do so.

5 . As noted above, the district court found that the School District’s equal access plan was "coextensive" with the Jenkins/Mountain plan. The School District does not dispute this. In fact, the Jenkins/Mountain plan, which stated that its purpose was to "perpetuate and regulate the traditional invocation as part of the opening ceremonies of school athletic events,” was introduced into evidence as Plaintiff's Exhibit 2. At trial, the school superintendent referred to the Jenkins/Mountain plan (that is, Exhibit 2) as the equal access plan which she and the principals enacted. See R5-90-91. Thus, the specifics of the equal access plan are defined in the record.

6 .The Jagers do not appeal this determination.

7 . The Establishment Clause applies to the states. Everson v. Board of Education, 330 U.S. 1, 8, 67 S.Ct. 504, 507-08, 91 L.Ed. 711 (1947); Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). In addition, as long as state action is present, the reach of the Establishment Clause is not limited by a lack of statutory authorization. See Smith v. Board of School Comm'rs, 827 F.2d 684, 689 n. 3 (11th Cir.1987).

8 . At the end of this past term, the Supreme Court applied the Lemon test in a case involving federal funding of religiously affiliated organizations that operate programs to help reduce the problems associated with teenage pregnancy. See Bowen v. Kendrick, — U.S.-, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988).

9 . The Sixth Circuit recently held that Marsh governed the analysis of the validity of invocations and benedictions at high school graduation ceremonies. Stein v. Plainwell Community Schools, 822 F.2d 1406 (6th Cir.1987). However, Stein did not address the limitations placed on Marsh by the Supreme Court in Edwards. In fact, Stein did not even mention Edwards. The Sixth Circuit overlooked that Marsh was grounded in historical practice which dates from the time of the drafting of the Constitution. As Edwards indicates, Marsh created an exception to the Lemon test only for such historical practice. There is no rationale for applying this limited, historically-based exception to religious invocations that occur prior to high school football games.

Likewise, Van Zandt v. Thompson, 839 F.2d 1215 (7th Cir.1988), is inapposite here. Van Zandt involved an Establishment Clause challenge to the Illinois state legislature’s decision to provide a prayer room in the state capítol building. The Seventh Circuit applied the Marsh test and concluded that there was no violation of the Establishment Clause. The Van Zandt court’s decision to extend the Marsh test to the case of a prayer room in the state capital building can be understood because both cases dealt with legislative prayer issues. However, Van Zandt's adoption of the Marsh test is irrelevant in the present case involving public schools.

10 . The district court issued a temporary restraining order against invocations during the 1986 season. Despite the fact that no invocations were delivered during the 1986 season, the district court found that "the School System experienced no measurable increase in fan violence, rowdiness or unsportsmanlike behavior.” Rl-24-18.

11 . The district court found that the School District cited no secular purposes for the invocations until after the Jagers filed suit. In fact, at the September 23, 1986 hearing which ultimately led to the district court’s issuing a temporary restraining order, the following conversation occurred between the court and the school system attorney:

COURT: Does the practice of invocations in the Douglas County stadium that we are talking about have any secular purpose?

MR. HELMS: It has no secular purpose whatsoever, Your Honor.

R4-33 (emphasis added). Attorney Helms went on to explain that:

The whole football program is wholly secular from start to finish, and I submit that the ... injection or the beginning of that two or three hour period with the invocation does not convert the whole program to a non-secular event.

Id. Although Helms’ explanation suggests that he did not mean to concede that one of the prongs of the Lemon test was not satisfied, his statement is consistent with our reading of the

record. While his admission does not constitute conclusive evidence that the pregame invocations fail the first prong of the Lemon test, the statement reinforces our conclusion that the actual purpose behind both the equal access plan and the prior invocation practice was to endorse Protestant Christianity.

12 . As noted above, the Douglas County Board of Education has never formally adopted the equal access plan. Rather, the school superintendent and the principals decided to follow the plan at future games.

13 . Superintendent Shehane stated that, if the schools were permitted to continue football invocations, she would “encourage” the school principals to adhere to the equal access plan. Since the school principals control access to the public address system at football games, there is no guarantee that the practice of having religious invocations delivered by ministers will not resume.

14 . The School District again urges that Marsh should govern this Court’s analysis. This argument fails for the reasons set forth in Part A, supra.

15 .The Jagers also alleged a violation of article I, section 2, paragraph 7 of the Georgia Constitution, which provides:

No money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, cult, or religious denomination or of any sectarian institution.

Because we hold that both the equal access plan and the pre-plan practices violated the Establishment Clause of the First Amendment to the United States Constitution, we find it unnecessary to decide the state constitutional issue.