Case 4:15-cv-00377-A Document 89 Filed 08/01/16 Page 1 of 7 PageID 2279

U.S. lllSTR!CT COURT

NORTIIERN Jli;;fHICTO;' TEXA.S
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IN THE UNITED STATES DISTRI T COU~----.. --~
NORTHERN DISTRICT OF TE AS . AUG ... I "DIS
FORT WORTH DIVISION I 1 i
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AMERICAN HUMANIST ASSOCIATION,
ET AL.,


Cf.FI<f:, LS. DISTidCTCOt:HT
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Plaintiffs,

vs. NO. 4:15-CV-377-A

BIRDVILLE INDEPENDENT SCHOOL
DISTRICT, ET AL.,

Defendants.

ORDER

Came on for consideration the motion of defendants,

Birdville Independent School District, Cary Hancock, Jack

Mccarty, Dolores Webb, Joe Tolbert, Brad Greene, Richard Davis,

and Ralph Kunkel, for summary judgment. The court, having

considered the motion, the response of plaintiffs, American

Humanist Association and Isaiah Smith, the record, the summary

judgment evidence, and applicable authorities, finds that the

motion should be granted.

I.

Plaintiffs' Claims

Plaintiffs' operative pleading is their amended complaint

filed June 15, 2015. In it, they allege that defendants have a

policy, practice, and custom of permitting, promoting, advancing,

sponsoring, and endorsing prayers at school board meetings in

violation of the Establishment Clause of the First Amendment to

 Case 4:15-cv-00377-A Document 89 Filed 08/01/16 Page 2 of 7 PageID 2280

the United States Constitution. Plaintiffs seek a declaration to

that effect and a permanent injunction enjoining defendants from

allowing prayers to be delivered as part of any school-sponsored

event, including school board meetings. They also seek damages,

attorney's fees, and costs. Doc. 1 14.

The individual defendants filed a motion to dismiss the

claims against them based on their assertion of qualified

immunity. The court denied the motion and the matter is currently

before the United States Court of Appeals for the Fifth Circuit

on interlocutory appeal. Doc. 26.

II.

Grounds of the Motion

Defendants assert two grounds in support of their motion.

First, the Establishment Clause claim is moot. Second, and in the

alternative, the Establishment Clause claim fails as a matter of

law.

III.

Applicable Legal Principles

Rule 56(a) of the Federal Rules of Civil Procedure provides

that the court shall grant summary judgment on a claim or defense

if there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law. Fed. R. Civ.

'The "Doc." reference is to the number of the item on the docket in this action.

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P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247

(1986) . The movant bears the initial burden of pointing out to

the court that there is no genuine dispute as to any material

fact. Celotex Corp. v. Catrett, 477 u.s. 317, 323, 325 (1986).

The movant can discharge this burden by pointing out the absence

of evidence supporting one or more essential elements of the

nonmoving party's claim, "since a complete failure of proof

concerning an essential element of the nonmoving party's case

necessarily renders all other facts immaterial." Id. at 323.

Once the movant has carried its burden under Rule 56(a), the

nonmoving party must identify evidence in the record that creates

a genuine dispute as to each of the challenged elements of its

case. Id. at 324; see also Fed. R. Civ. P. 56(c) ("A party

asserting that a fact . . is genuinely disputed must support

the assertion by citing to particular parts of materials in

the record ."). If the evidence identified could not lead

a rational trier of fact to find in favor of the nonmoving party

as to each essential element of the nonmoving party's case, there

is no genuine dispute for trial and summary judgment is

appropriate. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587, 597 (1986). In Mississippi Prot. & Advocacy

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Sys., Inc. v. Cotten, the Fifth Circuit explained:

Where the record, including affidavits,

interrogatories, admissions, and depositions could not,
as a whole, lead a rational trier of fact to find for
the nonmoving party, there is no issue for trial.

929 F.2d 1054, 1058 (5th Cir. 1991).

The standard for granting a motion for summary judgment is

the same as the standard for rendering judgment as a matter of

law. 2 Celotex Corp., 477 u.s. at 323. If the record taken as a

whole could not lead a rational trier of fact to find for the

non-moving party, there is no genuine issue for trial.

Matsushita, 475 u.s. at 597; see also Mississippi Prot. &

Advocacy Sys., 929 F.2d at 1058.

IV.

Analysis

Defendants first urge that the case is moot inasmuch as they

have revised the policy regarding an opening invocation to call

it "student expression." Students will be selected to speak based

on a random drawing and their speeches will not be reviewed by

defendants or any school district employee. Changing the policy,

however, does not moot the question of whether an invocation

before school board meetings meets constitutional muster. That

'In Boeing Co. v. Shipman, 411 F.2d 365,374-75 (5th Cir. 1969) (en bane), the Fifth Circuit
explained the standard to be applied in determining whether the court should enter judgment on motions
for directed verdict or for judgment notwithstanding the verdict.

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is, there is no reason to believe that the practice of offering

prayer before the meetings will not continue.

Defendants alternatively argue that the Establishment Clause

claim fails as a matter of law. They make a number of arguments,

but the determinative issue is whether school board meetings are

more akin to legislative sessions, at which an invocation is

allowed, Town of Greece v. Galloway, 134 S. Ct. 1811 (2014);

Marsh v. Chambers, 463 U.S. 783 (1983), or to a high school

graduation ceremony or other school event, at which an invocation

would violate the Establishment Clause, Lee v. Weisman, 505 u.s.

577 (1992). The issue is not settled in the Fifth Circuit. See

Doe v. Tangipahoa Parish School Bd., 631 F. Supp. 2d 823 (E.D.

La. 2009).

The court is persuaded, as in Tangipahoa, that a school

board is more like a legislature than a school classroom or

event. Thus, the mere fact that school board meetings may open

with a prayer does not violate the Establishment Clause. However,

use of such prayers to exploit or proselytize Christianity is

improper. 631 F. Supp. 2d at 839-40.

Plaintiffs admit that it has been the policy, practice, and

custom of the school district since at least 1997 to open

meetings with a prayer. Doc. 80 at 2. Plaintiffs have not come

forward with summary judgment evidence to raise a genuine fact

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issue as to the motive of defendants in enacting the policy in

question. Nor is there reason to genuinely question whether the

opportunity to speak is used to proselytize or to disparage other

faiths or beliefs. There is no evidence that citizens who attend

meetings are coerced to support or participate or singled out if

they do not participate. Town of Greece, 134 S. Ct. at 1825-26.

Plaintiffs admit that Smith is an adult who should not be

influenced by the opening proceedings. See Marsh, 463 U.S. at

792.

Finally, contrary to plaintiffs' argument, the most recent

change to district policy regarding selection of speakers and

their freedom to choose a topic does not confirm excessive

entanglement of church and state, but rather shows that the

district is going even further to distance itself from religious

expressions. Students are chosen at random to participate and

they alone select the topic of their presentation. That the

student expressions may be Christian in nature does not prove

discrimination against, or coercion of, others who do not embrace

those beliefs.

v.
Order

The court ORDERS that defendants' motion for summary

judgment be, and is hereby, granted; that plaintiffs take nothing

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on their claims against defendants; and that such claims be, and

are hereby, dismissed.

SIGNED August 1, 2016.

'
District o;/ ge