«SCOTT LANE, on his own behalf and on NUMBER: behalf of his minor children, S.L. and M.L.; AND SHARON LANE, on her own behalf JUDGE: and on behalf of ...»
School-sponsored prayers delivered in these contexts oblige the minor plaintiffs and other students to participate. See, e.g., Santa Fe, 530 U.S. at 310-12 (holding that student-led invocations during pre-game ceremonies at public school football games would be impermissibly coercive); Lee, 505 U.S. at 593-96 (deeming official prayers at public-school graduation ceremony unconstitutionally coercive); Ingebretsen, 88 F.3d at 279-80 (holding that statute allowing “prayers to be given by any person, including teachers, school administrators and clergy at school functions where attendance is compulsory” violated the coercion test because “students will be a captive audience that cannot leave without being punished by the state or School Board for truancy or excessive absences”); Duncanville I, 994 F.2d at 165 (holding that public-school coach’s involvement in prayers at practices, games, and other events was coercive because it ‘“will be perceived by the students as inducing a participation they might otherwise reject’”) (quoting Lee, 505 U.S. at 590); see also, e.g., Collins v. Chandler Unified Sch. Dist., 644 F.2d 759, 762 (9th Cir. 1981) (enjoining student-led prayer during school-day assemblies in the “institutionally coercive setting of primary and secondary [public] schools”).
Defendants cannot avoid this determination by claiming that students may either opt out of participating in the prayers or avoid school events featuring official devotionals. See Engel, 370 U.S. at 430 (“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 Sch. Dist. of Abington Twp. v. Schempp, 374 U.S 203, 224-225 (1963) (“Nor are these required exercises mitigated by the fact that individual students may absent themselves upon parental request, for that fact furnishes no defense to a claim of unconstitutionality under the Establishment Clause.”); Holloman ex rel Holloman v. Harland, 370 F.3d 1252, 1287 (11th Cir. 2004) (“That students were not actually forced to pray during the moment of [silent prayer], and may have been free to leave the room, does not alleviate the constitutional infirmities of [their teacher’s] moment of silence.”). In fact, in many cases, attendance at Sabine Parish events featuring official prayer, including school-day assemblies, is compulsory and students cannot opt out. But even where attendance is not mandatory in the technical sense, students nevertheless face substantial pressure to take part in school events. See, e.g., Santa Fe, 530 U.S. at 312 (noting that the “the choice between attending [football] games and avoiding personally offensive religious rituals is in no practical sense an easy one”). 2 As the Supreme Court has explained, adolescents are impressionable and are “often susceptible to pressure from their peers towards conformity.” See Lee, 505 U.S. at 593; see also Collins, 644 F.2d at 762 (reasoning that, because “students must either listen to a prayer chosen by a select group of students or forego the opportunity to attend a major school function,” it was “difficult to conceive how this choice would not coerce a student wishing to be part of the social mainstream...”). Defendants “may no more use [this] social pressure to enforce [their religious] orthodoxy than [they] may use [more] direct means.” Lee, 505 U.S. at 594.
Indeed, even if attendance at all District events featuring official prayer were “purely voluntary,” Defendants cannot require students “to forfeit [their] rights and benefits” – here, the ability to attend and participate in school activities – “as the price of resisting conformance to state-sponsored religious practice.” See Santa Fe, 530 U.S. at 312 (internal quotation marks omitted). Once at these events, Plaintiffs and other Sabine Parish students are faced with “the dilemma of participating, with all that implies, or protesting.” Lee, 505 U.S. at 593. The Defendants also may not circumvent the constitutional prohibition on religious coercion by designating students to lead official prayers in class or during school events. See Santa Fe, 530 U.S. at 310 (holding that students’ roles in voting for a particular student to lead pregame prayers could “not insulate the school from the coercive element of the final message”);
Holloman, 370 F.3d at 1287 (“School personnel may not facilitate prayer simply because a student requests or leads it.”); see also Ingebretson, 88 F.3d at 279 (noting that statute would have unconstitutionally authorized incorporation of prayer led by students “so long as a student ‘initiates’ the prayer (ostensibly by suggesting that a prayer be given)”); Karen B. v. Treen, 653 F.2d 897, 901 (5th Cir. 1981), aff’d 455 U.S. 1913 (1981) (overturning Louisiana statute authorizing public-school teachers to ask class whether any student wishes to offer a morning prayer and to offer a prayer themselves if no student volunteers); Herdahl v. Pontotoc Cnty. Sch.
Dist., 933 F. Supp. 582, 591 (N.D. Miss. 1996) (enjoining school from permitting student-led prayers over the public-address system and prohibiting teachers from organizing pre-lunch, student-led blessings).
Supreme Court has made clear that public schools simply “may not, consistent with the Establishment Clause, place primary and secondary school children in this position,” id., because it “has the improper effect of coercing those present to participate in an act of religious worship.” Santa Fe, 530 U.S. at 312.
While Defendants’ official prayers may represent their most overtly coercive conduct, their promotion of Christianity in other ways also has a religiously coercive effect on students.
The Supreme Court has recognized that “anytime the government endorses a religious belief there will almost always be some pressure to conform.” See Lee, 505 U.S. at 605 n.6; Engel, 370 U.S. at 431 (“When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.”).3 Defendants openly and routinely make clear to students and their families that they favor Christianity.
Defendants unconstitutionally require students to provide religious affirmations for test credit, supra p. 3-4, and they have urged that C.C. disavow or disassociate from his Buddhist faith, id. p. 5. This conduct runs afoul of the Supreme Court’s now-famous admonition that “neither a State nor the Federal Government can constitutionally force a person ‘to profess a belief or disbelief in any religion.’” Torasco v. Watkins, 367 U.S. 488, 495 (1961). In class, Defendants religiously coerce students by requiring them to sit by as their teachers unlawfully present Biblical events and doctrine, including creationism, supra p. 6, as truth. See Edwards, 482 U.S. at 585 (noting, in striking down Louisiana law mandating that public schools give equal time to teaching creationism and evolution, that “[t]he State exerts great authority and coercive power through mandatory attendance requirements, and because of the students’ emulation of But see Freiler, 185 F.3d at 344 (electing not to apply the coercion test because “the [public school] practice at issue [did] not direct student participation in a formal religious exercise”).
teachers as role models and the children’s susceptibility to peer pressure”); see also Herdahl, 933 F. Supp. at 598 (ruling that class incorporating “fundamentalist Christian doctrine” and Bible study failed the coercion test because students were “faced once a week with the difficult choice of conforming to the overwhelming majority’s participation in the class or absenting themselves in protest”). And Defendants barrage the minor Plaintiffs and other students daily with religious iconography and messages, including portraits of Jesus and Bible verses, which are posted throughout classrooms and hallways. Supra p. 8. This rampant promotion of Christianity by school officials places pressure, though more subtle, on students to conform to Defendants’ favored faith either to curry school officials’ favor or to avoid the disfavor and disdain school officials have directed toward non-Christians.
B. Defendants’ Religious Activities Violate the Lemon and Endorsement Tests.
Coercion is, of course, sufficient to bring about an Establishment Clause violation, but it is not necessary. See, e.g, Engel, 370 U.S. at 430 (“The Establishment Clause... does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not.”). Per Justice Blackmun’s concurring opinion in Lee, “it is not enough that the government restrain from compelling religious practices: It must not engage in them either.” 505 U.S. at 604 (Blackmun, J., concurring). Accordingly, in addition to “the serious constitutional injury that occurs when a student is forced to participate in an act of religious worship because she chooses to attend a school event,” the federal courts have remained acutely aware of “the myriad, subtle ways in which Establishment Clause values can be eroded” and have “guard[ed] against other different, yet equally important, constitutional injuries,” including those inflicted by practices and policies that have “the purpose and perception of government establishment of religion.” Santa Fe, 530 U.S. at 313-14 (internal quotation marks omitted).
To address these concerns, the courts have evaluated public-school promotion of religion through two additional lenses. First, under the three-part test set forth Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), the challenged governmental policy or action (1) must have a secular purpose; (2) may not have the principal or primary effect of advancing religion; and (3) cannot excessively entangle the government with religion. “Failure of any prong of the test results in a finding of unconstitutionality.” Doe v. Sch. Bd. of Ouachita Parish, 274 F.3d 289, 293 (5th Cir.
2001); accord Edwards, 482 U.S. at 583 (“State action violates the Establishment Clause if it fails to satisfy any of these prongs.”). Defendants’ conduct falls short under all three prongs.
Second, under the endorsement test, the Court must inquire whether an “objective observer,” acquainted with the full history of the challenged governmental action and the context in which it occurs, “would perceive it as a state endorsement of [religion] in public schools.” See Santa Fe, 530 U.S. at 308 (internal quotation marks omitted). Because the endorsement test and the effects prong of Lemon are very similar,4 Plaintiffs treat them jointly below.
Under Lemon, this Court must first “inquire as to the purpose of the government action to determine whether it is predominantly secular in nature.” Trunk v. City of San Diego, 629 F.3d 1099, 1107 (9th Cir. 2011), cert. denied, 132 S. Ct. 2535 (2012); cf. McCreary County v. ACLU of Ky., 545 U.S. 844, 860 (2005) (“When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality, there being no neutrality when the government’s ostensible object is See Freiler, 185 F.3d at 346 (“Lemon’s second prong... is similar to analysis pursuant to the endorsement test”).
to take sides.”). School-sponsored prayers during class, assemblies, athletic competitions, and other school events unquestionably have a religious purpose. See Treen, 653 F.2d at 901 (“Prayer is perhaps the quintessential religious practice,” and “its observance in public school classrooms has, if anything, a more obviously religious purpose....”); Holloman, 370 F.3d at 1285 (“Because prayer is a primary religious activity in itself, a teacher or administrator’s intent to facilitate or encourage prayer in a public school is per se an unconstitutional intent to further a religious goal.”) (internal citation and quotation marks omitted); see also Ouachita Parish, 274 F.3d at 294-95 (holding that amendment to state statute intended to promote verbal student prayer in public schools violated purpose prong); Ingebretsen, 88 F.3d at 279 (“Returning prayer to public schools is not a secular purpose.”); N.C. Civil Liberties Union Found. v. Constangy, 947 F.2d 1145, 1150 (4th Cir. 1991) (holding that “an act so intrinsically religious as prayer cannot meet... the secular purpose prong of the Lemon test”); Jager v. Douglas County School Dist., 862 F.2d 824, 830 (11th Cir. 1989) (finding that “the pre-eminent purpose behind having invocations [before football games] was to endorse Protestant Christianity”).
Likewise, proselytizing students by, among other things, teaching them creationism and other Biblical doctrine as fact and dismissing evolution as “stupid” serves no secular purpose. In Edwards, for example, the Supreme Court rejected the State’s argument that a law requiring public schools to devote equal instruction time to evolution and creation-science was animated by the desire to protect academic freedom. 482 U.S. at 586-88. Instead, the Court found that the law aimed to “discredit evolution by counterbalancing its teaching at every turn with the teaching of creationism” and that, therefore, “[t]he preeminent purpose of the Louisiana Legislature was clearly to advance the religious viewpoint that a supernatural being created humankind.” See id. at 582, 591 (internal quotation marks omitted); see also Doe v. Porter, 370 F.3d 558, 562-63 (6th Cir. 2004) (teaching the Bible as “religious truth” can have no secular purpose).
Defendants similarly cannot point to a predominantly secular purpose that justifies their display of religious iconography and messages, such as the portrait of Jesus or the scrolling LED Bible verse display, or their distribution of proselytizing materials like the “Truth for Youth” Bible and religious tract provided to Plaintiff M.L. by his teacher. Supra p. 9. As in Stone v.