AMERICAN HUMANIST ASSOCIATION; ISAIAH SMITH, Plaintiffs-Appellees,
JACK MCCARTY, in His Individual and Official Capacity; JOE D. TOLBERT, in His Individual and Official Capacity; BRAD GREENE, in His Individual and Official Capacity; RICHARD DAVIS, in His Individual and Official Capacity; RALPH KUNKEL, in His Individual and Official Capacity; CARY HANCOCK, in His Individual and Official Capacity; DOLORES WEBB, in Her Individual and Official Capacity, Defendants-Appellants. AMERICAN HUMANIST ASSOCIATION; ISAIAH SMITH, Plaintiffs-Appellants,
BIRDVILLE INDEPENDENT SCHOOL DISTRICT; JACK MCCARTY, in His Individual and Official Capacity; JOE D. TOLBERT, in His Individual and Official Capacity; BRAD GREENE, in His Individual and Official Capacity; RICHARD DAVIS, in His Individual and Official Capacity; RALPH KUNKEL, in His Individual and Official Capacity; CARY HANCOCK, in His Individual and Official Capacity; DOLORES WEBB, in Her Individual and Official Capacity, Defendants-Appellees.
from the United States District Court for the Northern
District of Texas
SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
E. SMITH, Circuit Judge.
American Humanist Association ("AHA") and Isaiah
Smith appeal a summary judgment for defendants, the Birdville
Independent School District and its seven board members
(collectively, "BISD"). AHA and Smith allege that
BISD's policy of inviting students to deliver statements,
which can include invocations, before school-board meetings
violates the First Amendment's Establishment Clause.
Because the practice falls more nearly within the recently
reaffirmed legislative-prayer exception to the Supreme
Court's Establishment Clause jurisprudence, we affirm the
summary judgment in favor of the school district and, in the
accompanying consolidated appeal, we reverse and render on
the denial of qualified immunity to the school board members.
a public school district. Smith is a 2014 graduate of
Birdville High School and a member of AHA, an organization
that "advocate[es] progressive values and equality for
humanists, atheists, and freethinkers." While a student
at Birdville High School and as an alumnus, Smith attended
BISD board meetings, some of which included student-led
prayers. At a board meeting in December 2014, with a
student-led invocation, Smith said that he felt affronted by
the prayer and that it meant that BISD was "favoring
religion over nonreligion." Smith is and has been an
adult at all relevant times.
board holds monthly meetings in the District Administration
Building, which is not located within a school. The meetings
include sessions open to the public. Attendees are free to
enter and leave at any time. Most attendees are adults,
though students frequently attend school-board meetings to
receive awards or for other reasons, such as brief
performances by school bands and choirs.
1997, two students have opened each session-with one leading
the Pledge of Allegiance and the Texas pledge and the other
delivering some sort of statement, which can include an
invocation. Those student presenters, typically either
elementary- or middle-school students,  are given one
minute. BISD officials do not direct them on what to say but
tell them to make sure their statements are relevant to
school-board meetings and not obscene or otherwise
inappropriate. At a number of meetings, the student speakers
have presented poems or read secular statements. But
according to AHA and Smith, they are usually an invocation in
the form of a prayer, with speakers frequently referencing
"Jesus" or "Christ." AHA and Smith claim
that sometimes the prayers are directed at the audience
through the use of phrases such as "let us pray, "
"stand for the prayer, " or "bow your
heads." From 1997 through February 2015, the
student-led presentations were called "invocations"
and were delivered by students selected on
merit. In March 2015, in an apparent response to
AHA's concerns about the invocations,  BISD began
referring to them as "student expressions" and
providing disclaimers that the students' statements do
not reflect BISD's views. BISD began randomly selecting,
from a list of volunteers, the students who would deliver the
Smith sued BISD under 42 U.S.C. § 1983 for monetary
damages from the individual school-board members and
declaratory and injunctive relief. In their amended
complaint, AHA and Smith alleged that BISD has a
"policy, practice, and custom of permitting, promoting,
and endorsing prayers delivered by school-selected
students" at board meetings, in violation of the
Establishment Clause. BISD answered that the student-led
invocations either qualify as private speech, satisfy the
conventional Establishment Clause tests, or fit within the
legislative-prayer exception to those tests.
moved to dismiss, alleging that AHA and Smith had failed to
state a claim and that the school-board members were entitled
to qualified immunity. The district court denied the motion.
The individual-capacity defendants filed an interlocutory
appeal challenging the denial of qualified immunity.
moved for summary judgment. The district court granted that
motion, finding that the legislative-prayer exception
applies. AHA and Smith filed a separate appeal, bringing an
issue of first impression to this court.
Supreme Court generally applies at least one of three tests
under the Establishment Clause: the Lemon test,
the endorsement test,  and the coercion test. But in
Marsh v. Chambers, 463 U.S. 783, 784-85 (1983), a
member of the Nebraska Legislature sued state officials,
claiming that the practice of opening each session with a
chaplain's prayer violated the Establishment Clause. The
Court upheld the practice without applying any of the
conventional tests,  observing that "[t]he opening of
sessions of legislative and other deliberative public bodies
with prayer is deeply embedded in the history and tradition
of this country." Id. at 786.
Court revisited the issue in Town of Greece v.
Galloway, 134 S.Ct. 1811, 1827-28 (2014), stating
unequivocally that the legislative-prayer exception in
Chambers extends to prayers delivered at town-board
meetings. Those prayers, however, must not "denigrate
nonbelievers or religious minorities, threaten damnation, or
preach conversion." Id. at 1823. Moreover,
"[t]he principal audience for these invocations is not .
. . the public but lawmakers themselves, who may find that a
moment of prayer or quiet reflection sets the mind to a
higher purpose and thereby eases the task of governing."
Id. at 1825.
distinguished from legislative-prayer cases, however, the
Supreme Court, in school-prayer cases such as Santa Fe
Independent School District v. Doe, 530 U.S. 290 (2000),
Lee v. Weisman, 505 U.S. 577 (1992), and County
of Allegheny v. ACLU, 492 U.S. 573 (1989), has applied
the conventional Establishment Clause tests. In
Weisman, a graduation-prayer case, the Court, 505
U.S. at 592, explained that "there are heightened
concerns with protecting freedom of conscience from subtle
coercive pressure in the elementary and secondary public
schools" and that "prayer exercises in public
schools carry a particular risk" of unconstitutional
coercion. The Court distinguished Weis-man from
Chambers, noting that the legislative-prayer
exception does not apply in "the public school
context." Id. at 597. In ACLU, the
Court opined that "state-sponsored prayer in public
schools" is "unconstitutional."
question, then, is whether this case is essentially more a
legislative-prayer case or a school-prayer matter. Like
Galloway, this dispute is about the
constitutionality of permitting religious invocations at the
opening, ceremonial phase of a local deliberative body's
public meetings. But like Santa Fe, this case is
about school-district-sanctioned invocations delivered by
students on district property.
agree with the district court that "a school board is
more like a legislature than a school classroom or
event." The BISD board is a deliberative body, charged
with overseeing the district's public schools, adopting
budgets, collecting taxes, conducting elections, issuing
bonds, and other tasks that are undeniably legislative.
See Tex. Educ. Code § 11.1511. ...