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

70 F.3d 402, 1995 U.S. App. LEXIS 35233, 1995 WL 697160

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 12, 1995
• Docket: 94-10416
• Status: Published

Opinions

W. EUGENE DAVIS, Circuit Judge:

Defendants (collectively, the Duncanville Independent School District or DISD) appeal the district court’s permanent injunction forbidding certain religious practices in curricular and extracurricular activities at their schools as violations of the Establishment Clause of the First Amendment of the United States Constitution. We affirm in part and reverse in part.

I. FACTS

Plaintiffs in this case are Jane Doe, a student in the Duncanville Independent School District, and John Doe, her father. Jane Doe first enrolled in the DISD in 1988, when she entered the seventh grade at the age of twelve. Doe qualified to play on the girls’ basketball team and was placed in an athletic class specially designated for team members. This class was held during the last class period of the day and extended into after school practice. Students received academic credit for this class and for their participation in the sport. During her first class, Doe learned that the girls’ basketball coach, Coach Smith, included the Lord’s Prayer in each basketball practice. The basketball team also said prayers in the locker rooms before games began, after games in the center of the basketball court in front of spectators, and on the school bus travelling to and from basketball games. Coach Smith initiated or participated in these prayers. These prayers had been a tradition for almost twenty years.

When she first became a team member, Doe participated in these prayers because she did not wish to single herself out. After Doe’s father attended a game and saw his daughter joining in the center court prayer, he asked her how she felt about participating. When told that she preferred not to participate, John Doe told his daughter that she did not have to take part in the prayers. Thereafter, Jane Doe no longer participated. At games away from home and at least one home game, Doe was required to stand by while the team prayed. Her non-participation drew attention from her fellow students, who asked her “Aren’t you a Christian?” and from one spectator, who called out “Well, why isn’t she praying? Isn’t she a Christian?” At one point during her history class, Doe’s history teacher referred to her as a “little atheist.”

John Doe complained about the prayers to the assistant superintendent of schools, Ed Parker, and his successor, Marvin Utecht. Utecht halted the prayers at pep rallies, although he insisted there was nothing he could do about the post-game prayers.

Jane Doe also joined the choir program at DISD. Students in this program also receive academic credit for their participation. In the seventh and eighth grade choruses, Doe was required to sing the choir theme song Go Ye Now in Peace, which is based on Christian text. Upon progressing to the high school choirs, Doe was required to sing another Christian theme song, The Lord Bless You and Keep You. David McCullar, the director for the ninth through twelfth grade choirs, testified that The Lord Bless You and Keep You had been the choirs’ theme song for at least 20 years; he did not know how it had originally been chosen. The choirs learn this song as part of their overall repertoire, sing it at the end of class on Fridays, at the end of some performances and during choral competitions. They also sing this song on the bus on the way home from performances. The parties stipulated that the choir’s theme song is a “Christian religious song.”

DISD also engaged in a number of other religious practices or customs, such as holding prayers and distributing pamphlets containing religious songs at awards ceremonies, allowing student-initiated prayers before football games ², allowing Gideon Bibles to be distributed to fifth grade classes, and until 1990, including prayers during school pep rallies.

On August 15, 1991, the Does filed an application for a temporary restraining order and preliminary injunction. Following a two-day trial, the district court entered a preliminary injunction forbidding DISD from permitting its employees to lead, encourage, promote or participate in prayer with or among students during curricular or extracurricular activities, including sporting events. DISD appealed the preliminary injunction, which was affirmed by this Court in Doe v. Duncanville Independent School District, 994 F.2d 160 (5th Cir.1993) (Doe I).

At the permanent injunction hearing, the parties stipulated that since May 1991, DISD stopped all prayers during class-time.³ Students are still allowed to initiate prayers during athletic events, but the coaches no longer do so. After the hearing, the district court found that DISD violated the Establishment Clause by (1) permitting its employees to lead, encourage, promote or participate in prayers with students during curricular or extracurricular events; (2) permitting its employees to initiate, lead, authorize, encourage or condone the recitation or singing of religious songs as the theme songs of the schools’ choirs; and (3) authorizing, permitting or condoning the distribution at Duncan-ville schools of Gideon Bibles to fifth grade students by representatives of the Gideon Society, except to the extent permitted by the Equal Access Act. Based on these conclusions, the court enjoined DISD from continuing these practices. We discuss each of Appellants’ arguments below.

II. ANALYSIS

As we noted in Doe I, modern Establishment Clause jurisprudence is rife with confusion. 994 F.2d at 166 n. 7. This Court attempted to bring some order to the organization and application of the existing precedents in Jones v. Clear Creek Indep. School District, 977 F.2d 963 (5th Cir.1992) (Jones II), by identifying three tests that the Supreme Court has used to determine whether a government action or policy constitutes an establishment of religion. First, we identified the Establishment Clause test of longest lineage: the Lemon test. Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111-12, 29 L.Ed.2d 745 (1971). Under Lemon, a government practice is constitutional if (1) it has a secular purpose, (2) its primary effect neither advances nor inhibits religion, and (3) it does not excessively entangle government with religion. Id. We then recognized that the Court has also analyzed school-sponsored religious activity in terms of the coercive effect that the activity has on students. Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992). Lastly, we found that the Court has disapproved of governmental practices that appear to endorse religion. See e.g., County of Allegheny v. ACLU, 492 U.S. 573, 594, 109 S.Ct. 3086, 3101-02, 106 L.Ed.2d 472 (1989). See also Capitol Square Review Board v. Pinette, — U.S. -, ---, 115 S.Ct. 2440, 2452-2456, 132 L.Ed.2d 650 (1995) (O’Connor, J., concurring). We will adhere to this approach today.

A. Prayer at Curricular and Extra-Curricular Activities

The district court enjoined DISD, its employees and its agents from:

1. leading, encouraging, promoting, or participating in prayers with or among students during curricular or extracurricular activities, including before, during, or after school-related sporting events. Students, however, are not enjoined from praying, either individually or in groups. Students may voluntarily pray together, provided such prayer is not done with school participation or supervision.

DISD argues that the district court erred by forbidding DISD employees from participating in or supervising student-initiated prayers. We will address each asserted error separately.

1. Participation

DISD contends that it cannot prevent its employees from participating in student prayers without violating their employees’ rights to the free exercise of religion, to association, and to free speech and academic freedom. We do not agree. As we noted in Doe I, “ ‘the principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause.’ ” 994 F.2d at 165 (quoting Lee, 505 U.S. at 586-87, 112 S.Ct. at 2655). See also Berger v. Rensselaer Central School Corp., 982 F.2d 1160, 1168 (7th Cir.1993) (free expression rights must bow to the Establishment Clause prohibition on school-endorsed religious activities). This is particularly true in the instant context of basketball practices and games. The challenged prayers take place during school-controlled, curriculum-related activities that members of the basketball team are required to attend. During these activities DISD coaches and other school employees are present as representatives of the school and their actions are representative of DISD policies. See Bishop v. Aronov, 926 F.2d 1066, 1073 (11th Cir.1991) (“a teacher’s [religious] speech can be taken as directly and deliberately representative of the school”). DISD representatives’ participation in these prayers improperly entangles it in religion and signals an unconstitutional endorsement of religion. See also Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226, 251, 110 S.Ct. 2356, 2372-73, 110 L.Ed.2d 191 (1990) (quoting Edwards v. Aguillard, 482 U.S. 578, 584, 107 S.Ct. 2573, 2577-78, 96 L.Ed.2d 510 (1987)) (EAA valid because it expressly forbids teacher participation and “avoids the problems of ‘the students’ emulation of teachers as role models’ ”).⁴

For these reasons, we find that the district court did not err in enjoining DISD employees and agents from participating in student-initiated prayers.

2. Supervision

DISD contends that the district court’s statement that “[s]tudents may voluntarily pray together, provided such prayer is not done with school participation or supervision” contradicts the Supreme Court’s holding in Mergens, 496 U.S. 226, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990).

In Mergens, the Supreme Court upheld the Equal Access Act (EAA) requirement that a non-curricular student prayer group be given the same access to school facilities as other student groups. Under the EAA, school employees can be present at these religious meetings for custodial purposes. Id. at 253, 110 S.Ct. at 2373-74.

However, as we explained in Doe I, Mer-gens does not apply to the type of activities at issue here. 994 F.2d at 164-65. The facts before us do not even vaguely resemble a Mergens situation. Membership on the basketball team is at least extra-curricular: it is directly related to the school’s physical education classes and students receive academic credit for their participation. The games are school-sponsored and -controlled events that do not provide any sort of open forum for student expression and DISD makes no claim that it has created such a forum for its basketball team or any other athletic group. Because neither the injunction nor the facts of this case purport to address a genuine Mergens situation, we decline to do so here.

We also note that Jones II does not require a different result. Jones II upheld a school resolution which permitted high school students to choose whether to have a student volunteer deliver a non-sectarian and non-proselytizing invocation and benediction during high school graduation. In concluding that this resolution did not violate the Establishment Clause, we emphasized that high school graduation is a significant, once-in-a-lifetime event that could be appropriately marked with a prayer, that the students involved were mature high school seniors, and that the challenged prayer was to be nonsectarian and non-proselytizing. 977 F.2d at 966-972. Here, we are dealing with a setting that is far less solemn and extraordinary, a quintessentially Christian prayer, and students of twelve years of age (the age at which Jane Doe first encountered basketball team prayers). These facts place the prayer at issue here in a materially different position than the one we permitted in Jones II.

B. DISD Choirs’ Theme Song

DISD contends that the district court erred by enjoining DISD from permitting DISD choirs to sing songs with religious content as their theme songs. The district court enjoined DISD, its employees and agents from:

2. initiating, leading, authorizing, encouraging, or condoning the recitation or singing of religious songs as a theme song of the Duncanville school choirs. Keligious songs may be sung, however, for their artistic and historic qualities if presented objectively as part of a secular program of education.

The district court made only two findings specific to this issue: (1) that “Jane Doe is a member of the DISD choir and receives academic credit for her participation in the choir”; and (2) that “[a]s a DISD choir member, Jane Doe was required to sing a religious Christian song entitled, The Lord Bless You and Keep You. This song is sung at each DISD choir performance and has been adopted by school personnel and students as the choir’s theme song.”⁵

All parties recognize that the Establishment Clause does not prohibit DISD choirs from singing religious songs as part of a secular music program, in accord with School District of Abington Township v. Schempp, 374 U.S. 203, 225, 83 S.Ct. 1560, 1573, 10 L.Ed.2d 844 (1963). Thus, the Does essentially contend that the act of treating The Lord Bless You and Keep You as the theme song, rather than as simply one song in the repertoire, transforms the permissible practice of singing this song into an endorsement of religion. The record reveals that two practical effects flow from designating this as the theme song: it is sung often and it is carried over from year to year.⁶

Legitimate secular reasons exist for maintaining The Lord Bless You and Keep You as the theme song. As the choir director, David McCullar, testified, this song is particularly useful to teach students to sight read and to sing a capella. In Mr. MeCullar’s words, it is also “a good piece of music ... by a reputable composer.”

Neither does utilizing The Lord Bless You and Keep You as a theme song advance or endorse religion. The Does do not argue that the choir sings the theme song as a religious exercise per se⁷ so we do not accept the notion that repeated singing of a particular religious song amounts to an endorsement of religion. At trial, Mr. McCullar estimated that 60-75 percent of serious choral music is based on sacred themes or text. Given the dominance of religious music in this field, DISD can hardly be presumed to be advancing or endorsing religion by allowing its choirs to sing a religious theme song. As a matter of statistical probability, the song best suited to be the theme is more likely to be religious than not. Indeed, to forbid DISD from having a theme song that is religious would force DISD to disqualify the majority of appropriate choral music simply because it is religious. Within the world of choral music, such a restriction would require hostility, not neutrality, toward religion.⁸

A position of neutrality towards religion must allow choir directors to recognize the fact that most choral music is religious. Limiting the number of times a religious piece of music can be sung is tantamount to censorship and does not send students a message of neutrality. Where, as here, singing the theme song is not a religious exercise, we will not find an endorsement of religion exists merely because a religious song with widely recognized musical value is sung more often than other songs. Such animosity towards religion is not required or condoned by the Constitution.⁹

We conclude that the district court erred by enjoining DISD from using songs with religious content as theme songs for its choirs.

C. Distribution of Gideon Bibles

Lastly, the district court enjoined DISD from:

3. leading, authorizing, permitting or condoning the distribution of Bibles to students on school premises and during school hours.

DISD argues that this order is flawed for several reasons. We do not reach these arguments, however, because we conclude that the Does lack standing to assert this claim. Although the district court did not address standing, we will consider this jurisdictional issue first. In re Taxable Municipal Bond Securities Litigation, 51 F.3d 518, 521 (5th Cir.1995).

The Does concede that Jane Doe was never a member of any class to which the Gide-ons distributed Bibles; she did not attend fifth grade in the DISD and first enrolled there in the seventh grade. Instead, the Does argue that John Doe has standing to challenge this policy because he pays taxes in support of the DISD. However, under the specific facts at hand, we conclude that John Doe’s status as a taxpayer does not vest him with standing.

In order to establish state or municipal taxpayer standing to challenge an Establishment Clause violation, a plaintiff must not only show that he pays taxes to the relevant entity, he must also show that tax revenues are expended on the disputed practice. Gonzales, 4 F.3d at 1415-1416. This factor is required to establish both state and municipal taxpayer standing. Cammack v. Waihee, 932 F.2d 765, 770 (9th Cir.1991) (surveying cases); Friedmann v. Sheldon Community School District, 995 F.2d 802, 803 (8th Cir.1993). We find no evidence in the record that even suggests that DISD expends any funds on the Gideons’ Bible distribution. The Gideons themselves supply the Bibles and simply lay them on a table on the school foyer. The Gideons do not address the students, the school does not make any announcement informing the students about the Bibles, and no school district employees handle the Bibles.¹⁰ There is no evidence that the school district bought the table especially for the Bible distribution or that the table has been set aside for this sole purpose. In sum, there is nothing in the record that would allow us to conclude that DISD expends any funds or resources on its policy of permitting the Gideons to distribute Bibles to the fifth grade class.

For this reason, we conclude that John Doe does not have standing.¹¹ Accordingly, we vacate the district court’s judgment as to DISD’s policy on Bible distribution and remand for the court to dismiss that portion of the complaint.

For the above reasons, the final judgment and order of the district court is AFFIRMED in part, REVERSED in part, and REMANDED in part for dismissal.

2 . DISD makes no attempt to distinguish the prayers given before football games and at awards ceremonies from those given at basketball games. To the extent that these situations are materially alike, our opinion applies equally.

3 . However, it appears that prayers did not stop during basketball practice.

4 . However, we note that neither the Establishment Clause nor the district court's order prevent DISD employees from treating students' religious beliefs and practices with deference and respect; indeed, the constitution requires this. Nothing compels DISD employees to make their non-participation vehemently obvious or to leave the room when students pray in, for example, a Mergens style setting. However, if while acting in their official capacities, DISD employees join hands in a prayer circle or otherwise manifest approval and solidarity with student religious exercises, they cross the line between respect for religion and endorsement of religion.

5 . Although the parties place both theme songs in the record at issue, the record is more fully developed with regard to The Lord Bless You and Keep You. We presume that both songs are identical in the material ways but in the interest of specificity we will discuss this song in particular.

6 . Although students are apparently aware that certain songs are their theme songs, the only concert program in the record does not identify any song as a “theme song.”

7 .This distinguishes the song here from the prayer set to music in Doe v. Aldine Indep. School District, 563 F.Supp. 883 (S.D.Tex.1982). In Al-dine, the challenged song was a school-composed prayer set to music which students sang before athletic events. The song in Aldine was more akin to the pre-game prayers dealt with above than the widely recognized choral music at issue here.

The fact that singing these songs is not a religious exercise also means that maintaining them as theme songs does not impermissibly entangle government with religion or coerce students into participating in a religious activity.

8 .The argument that students likely identify their choir by its theme song is well taken but misses the crucial point that particularly in the world of choral music, singing about religion is not the same as endorsing or exercising religion. Students who identify DISD's choir with The Lord Bless and Keep You will certainly feel unity with past choirs from the same school but we are hard pressed to find that this unity necessarily stems from a common belief in Christianity or Judaism rather than the fact that the earlier students also attended the same high school.

9 . The dissent claims that we give DISD more than it asks for on this point by allowing it to continue to sing its theme songs without a student referendum on the subject. However, a fair reading of DISD's argument reveals that DISD is contesting the injunction as entered. DISD’s references to student-chosen theme songs are merely attempts to characterize the theme songs currently in place as student initiated.

10 . In his testimony, Ed Stevens, superintendent of DISD, suggested that a number of years earlier the DISD was more directly involved with the Gideon’s Bible distribution. The Does do not contend that either DISD or the Gideons wish to resume this practice.

11 . The Does also do not contend that Jane Doe has standing by virtue of her exposure to the Bible distribution, see Washegesic v. Bloomingdale Public Schools, 33 F.3d 679, 681-83 (6th Cir.1994), and we note that the record would not support such a claim. Indeed, the record strongly suggests that Jane Doe would never have even seen the Bibles, because the fifth grade is housed in a separate school facility than the seventh through twelfth grades.