Doe v. Santa Fe Indep Sch , 171 F.3d 1013 ( 1999 )

  •                       Revised March 17, 1999
                          FOR THE FIFTH CIRCUIT
                               No. 97-40150
    JANE DOE, Individually and as next of
    friend for her minor children,
    Jane and John Doe, Minor Children;
    JANE DOE #2, Individually and as next
    of friend for her minor child,
    John Doe, Minor Child, and John Doe,
                                  Plaintiffs-Appellees-Cross Appellants,
                               Defendant-Appellant-Cross Appellee.
          Appeals from the United States District Court for the
                        Southern District of Texas
                             February 26, 1999
    Before JOLLY, WIENER, and STEWART, Circuit Judges.
    WIENER, JR., Circuit Judge:
         In Jones v. Clear Creek Independent School District, 
    977 F.2d 963
     (5th Cir. 1992) (Clear Creek II), we declared Clear Creek’s
    policy of allowing a student-selected, student-given, nonsectarian,
    nonproselytizing   invocation    and     benediction   at   high   school
    graduations (“Clear Creek Prayer Policy”) not violative of the
    Establishment Clause of the First Amendment to the United States
    Constitution.    The primary questions posed by this case are: (1)
    whether the constitutionality of a Clear Creek Prayer Policy
    depends on its “nonsectarian, nonproselytizing,” features, and (2)
    whether the venue of a Clear Creek Prayer Policy may be extended to
    high   school   football    games   without    violating    the   applicable
    provisions of the Constitution of the United States.                For the
    reasons that follow, we hold that (1) a public school prayer policy
    that, unlike a Clear Creek Prayer Policy, permits sectarian,
    proselytizing     benedictions       and      invocations    cannot     pass
    constitutional muster, and (2) extending a Clear Creek Prayer
    Policy to cover messages delivered before a high school football
    games violates the Constitution even if such a policy includes the
    “nonsectarian, nonproselytizing” restrictions.
                               FACTS AND PROCEEDINGS
           Santa Fe Independent School District (“SFISD”) is a political
    subdivision of the State of Texas, and is governed by an elected,
    seven-person Board of Trustees.          As its name suggests, SFISD is
    responsible for overseeing the public educational programs and
    facilities of a small community in south Texas.        In performing this
    role, SFISD supervises over 4,000 students each of whom attends one
    of five schools —— two primary schools, one intermediate school,
    one junior high school, and one high school.            The plaintiffs in
    this action (the “Does”) are several children currently or formerly
    enrolled in SFISD schools and their parents.               In light of the
    sensitive nature of the action, they have been allowed to proceed
         For some time prior to the onset of this litigation, the Does
    believed   that      SFISD   was     pursuing   policies    that      were    in
    contravention of the Establishment Clause.          The evidence that the
    Does were able to accumulate covered a wide variety of disturbing
    incidents and practices, but for purposes of illustration we focus
    on the following two items.2
         First,     in   April   1993,   while   plaintiff   Jane   Doe    II    was
    attending her seventh grade Texas History class, her teacher, David
    Wilson, handed out fliers advertising a Baptist religious revival.
    Jane Doe II asked if non-Baptists were invited to attend, prompting
    Wilson to inquire about her religious affiliation. On hearing that
    she was an adherent of the Church of Jesus Christ of Latter Day
    Saints (Mormon), Wilson launched into a diatribe about the non-
          A decision, we might add, that many SFISD officials
    apparently neither agreed with nor particularly respected.
    Attempts by SFISD administrators, teachers, and other employees
    “overtly or covertly to ferret out the identities of the
    Plaintiffs . . . by means of bogus petitions, questionnaires,
    individual interrogation, or downright ‘snooping’” eventually
    prompted the district court to threaten to visit upon them “THE
    (emphasis in original) if they did not cease their investigations.
          Our recitation of the evidence, including the pseudonyms used
    for specific anonymous plaintiffs, is taken principally from the
    joint stipulations of the parties. References to “SFISD” include
    the Board of Trustees, the superintendent, and other responsible
    administrative officials as appropriate.
    Christian, cult-like nature of Mormonism, and its general evils.
    Wilson’s comments inspired further discussion among Jane Doe II’s
    classmates, some of whom reportedly noted that “[h]e sure does make
    it sound evil,” and “[g]ee, . . . it’s kind of like the KKK, isn’t
    it?”       Jane Doe II was understandably upset by this incident, and
    two days later, her mother, Jane Doe I, complained to SFISD.
    Because Wilson’s actions were concededly contrary to written SFISD
    policies barring the distribution of religious literature in class
    or the verbal abuse of any student, he was given a written
    reprimand and directed to apologize to the Does and to his class.
           Second, and of greatest significance to this case, for an
    undisclosed period of time leading up to and including the 1992-93
    and 1993-94 school years, SFISD allowed students to read overtly
    Christian prayers from the stage at graduation ceremonies and over
    the public address system at home football games.3       The prayers
            For example:
           1994 Graduation Invocation
           Please bow your heads. Dear heavenly Father: Thank you
           for allowing us to gather here safely. We thank you for
           the wonderful year you have allowed us to spend together
           as students of Santa Fe. We thank you for our teachers
           who have devoted many hours to each of us. Thank you
           Lord for our parents and may each one receive a special
           blessing. We pray also for a blessing and guidance as
           each student moves forward in the future. Lord, bless
           this ceremony and give us all a safe journey home. In
           Jesus’s name we pray.
           1994 Graduation Benediction
           Our most gracious heavenly Father: We thank you for
    were delivered as “invocations” or “benedictions” for these events,
    and typically were given by officers of the student council.4    Of
    course, SFISD maintained complete control over the programs and
    facilities during the reading of the prayers, including the ability
    to mute the microphone or remove the speaker.     Furthermore, the
         bringing us to this, our graduation. We ask you to be
         with us as we start a new beginning to our lives.
         Father: We express our gratitude to all that have helped
         us over the past three years. Especially do we thank our
         parents, teachers, and friends who encouraged us,
         counseled us, and always extended a helping hand when
         needed. Please see us safely through this night and the
         tomorrows of our lives. In Jesus’s name, Amen.
    The record contains no examples of the football game prayers, but
    we may assume for purposes of this opinion that they were similar
    in content. As a bit of further background, it is interesting to
    note that the closing paragraph of the salutatory address at the
    1994 graduation was actually more proselytizing than the invocation
    and benediction:
         . . . There is only one thing which we as Christians can
         truly rely [on]: the faithfulness and strength of a
         loving God. It is now that each of us must stand on a
         solid rock of Jesus Christ, stand up for those things on
         which we believe.    Even if it is alone that we must
         stand. We, having done all, must continue to stand in
         faith remembering that Christ would have suffered and
         died for only one of us. So we begin the journey of
         life, not a life of mediocrity and compromise, but the
         possible life which Christ has promised, a life of
         abundance and joy, being confident of this very thing,
         that he who has begun a good work in you will complete it
         until the day of Jesus Christ. Thank You.
          In the case of the football games, the prayers were given by
    the student council “chaplain,” a position created by the student-
    written constitution and elected by students. It appears that at
    graduation the student council president customarily gave the
    invocation, and the secretary customarily gave the benediction.
    text of the graduation invocations and benedictions was screened by
    SFISD for content prior to the ceremony.
         With regard to the football games, it is undisputed that no
    written policy governing the invocations existed prior to the onset
    of litigation in this case.     With regard to graduation, SFISD did
    draft a written policy the “June Policy”), but only in time for the
    1994 ceremony.   It read as follows:
              The Board shall not permit clergymen to deliver
         invocations or benedictions at promotional and graduation
         ceremonies for secondary schools; nor shall school
         officials direct the performance of a formal religious
         exercise at such ceremonies. Lee et al. v. Weisman, 
    112 S. Ct. 2649
     (1992) [See also EMI]
         Dated June 17, 1993
    After the 1994 graduation ceremony, but before the onset of the
    instant   litigation,   SFISD   amended   its   graduation   policy   (the
    “October Policy”) to reflect more closely its interpretation of our
    decision in Clear Creek II:
              The Board shall not permit clergymen to deliver
         invocations or benedictions at promotional and graduation
         ceremonies for secondary schools; nor shall school
         officials direct the performance of a formal religious
         exercise at such ceremonies. Lee et al. v. Weisman, 
    112 S. Ct. 2649
     (1992) [See also EMI (LEGAL)]
              The Board may permit the graduating senior
         class(es), with the advice and counsel of the senior
         class sponsor, to elect to choose student volunteers to
         deliver nonsectarian, nonproselytizing invocations and
         benedictions for the purpose of solemnizing their
         graduation ceremonies. Jones v. Clear Creek ISD, 
    977 F.2d 963
     (5th Cir. 1992), cert. denied, 
    113 S. Ct. 2950
         Dated October 20, 1994
           In April 1995, the Does filed suit against SFISD in the
    Federal District Court for the Southern District of Texas.5                  Citing
    the instances described above and others, they alleged that SFISD
    maintains policies and practices in violation of the Establishment
    Clause.         They demanded prospective injunctive and declaratory
    relief in addition to money damages under 42 U.S.C. § 1983.
           In the following month, acting in response to the Does’ motion
    for a temporary restraining order regarding the imminent 1995
    graduation ceremonies, the district court ruled that, consistent
    with SFISD’s October Policy and our decision in Clear Creek II,
    student-selected,           student-given,     nonsectarian,     nonproselytizing
    invocations and benedictions would be permitted, and that such
    invocations        and      benedictions       could   take     the   form   of     a
    “nondenominational prayer.”             Although cautioning that SFISD should
    play       no   role   in   selecting    the    students   or   scrutinizing      and
    approving the content of the invocations and benedictions, the
    district court went on to note gratuitously that “generic prayers
    to the ‘Almighty’, or to ‘God’, or to ‘Our Heavenly Father (or
    Mother)’, or the like, will of course be permitted.                   Reference to
    any particular deity, by name, such as Mohammed, Jesus, Buddha, or
    the like, will likewise be permitted, as long as the general thrust
    of the prayer is non-proselytizing, as required by [Clear Creek
          The Does also sued several members of SFISD’s Board of
    Trustees and administrators in their individual capacities, but all
    of these defendants were dismissed in the early stages of the case.
    II].”6     In anticipation of addressing the central issues of the
    case, the trial court also admonished that SFISD would in due
    course be directed to clarify a number of its Establishment Clause
    policies, and, in particular, “to establish or to clarify existing
    policies    to   deal    with   either    banning   all   prayer,   or   firmly
    establishing reasonable guidelines to allow nonsectarian and non-
    proselytizing prayer at all relevant school functions.”
         As an initial and, by its own admission, “emergency” response
    to the court’s order, prior to the 1995 graduation, SFISD made a
    few changes (the “May Policy”) to its pre-litigation October
              The Board has chosen to permit the graduating senior
         class, with the advice and counsel of the senior class
         principal or designee, to elect by secret ballot to
         choose whether an invocation and benediction shall be a
         part of the graduation exercise. If so chosen the class
         shall elect by secret ballot, from a list of student
         volunteers,    students    to    deliver    nonsectarian,
         nonproselytizing invocations and benedictions for the
         purpose of solemnizing their graduation ceremonies.
         Jones v. Clear Creek ISD, 
    977 F.2d 963
     (5th Cir. 1992)
         cert. denied 
    113 S. Ct. 2950
         Dated May 23, 1995
         By July, SFISD apparently had a chance to conduct a more
    thorough    review      of   its   fundamental      position   on   graduation
    invocations and benedictions.            At this point, the May Policy was
    superseded by a new and, for purposes of this appeal, final version
    (the “July Policy”):
          Emphasis added.
              The Board has chosen to permit the graduating senior
         class, with the advice and counsel of the senior class
         principal or designee, to elect by secret ballot to
         choose whether an invocation and benediction shall be a
         part of the graduation exercise. If so chosen, the class
         shall elect by secret ballot, from a list of student
         volunteers,   students   to   deliver   invocations   and
         benedictions for the purpose of solemnizing their
         graduation ceremonies.
              If the District is enjoined by court order from the
         enforcement of this policy, then and only then will the
         following policy automatically become the applicable
         policy of the school district.
              The Board has chosen to permit the graduating senior
         class, with the advice and counsel of the senior class
         principal or designee, to elect by secret ballot to
         choose whether an invocation and benediction shall be a
         part of the graduation exercise. If so chosen, the class
         shall elect by secret ballot, from a list of student
         volunteers,    students    to    deliver    nonsectarian,
         nonproselytizing invocations and benedictions for the
         purpose of solemnizing their graduation ceremonies.
         Dated July 24, 1995
    As SFISD readily admits, the fact that the initial paragraph of
    this final graduation prayer policy intentionally removes the words
    “nonsectarian, nonproselytizing” constitutes an additional and very
    substantial deviation from both Clear Creek II and SFISD’s October
    and May Policies.   Indeed, it is this deviation that ultimately
    forms the core of the issues before us today.
         Less than two weeks later, the district court made good on its
    earlier suggestion and formally ordered SFISD “to finalize a
    unified 1st Amendment religion/expression policy addressing all
    issues with options in content clearly set out” by October 13.   The
    court also directed both parties to prepare and submit stipulations
    of fact by the same date.
          In October 1995, SFISD for the first time adopted a written
    policy to address football game invocations.                  Its provisions were
    essentially identical to those of the July Policy on graduations.
    The football game prayer policy (“Football Policy”) provides for a
    student-selected, student-given “brief invocation and/or message to
    be   delivered      during   the     pre-game      ceremonies    of    home   varsity
    football      games     to   solemnize       the     event,     to     promote    good
    sportsmanship and student safety, and to establish the appropriate
    environment for the competition.”                  As with the July Policy on
    graduation, the Football Policy was to provide no further guidance
    as   to    content      (i.e.,       no     “nonsectarian,      nonproselytizing”
    limitation) unless SFISD should be “enjoined by a court order” to
    do so.    “Then and only then” was an alternate policy containing a
    “nonsectarian, nonproselytizing” content limitation to take effect
    automatically.        On the preordained date, SFISD submitted the July
    Policy and the Football Policy for the court’s consideration.
          Pursuant to a supplemental court order, the Does and SFISD
    eventually submitted 131 joint stipulations of fact.                     In February
    1996, SFISD filed a motion for summary judgment on the basis that
    no evidence supported the conclusion that the school district
    currently or formerly sanctioned a policy or practice in violation
    of the Establishment Clause.              The Does responded to this motion,
    but did not file a counter motion for summary judgment.
          Early    in     June   1996,    the    district   court        issued   a   broad
    preliminary ruling addressing many of the issues in the case.
    Beginning with SFISD’s liability for past practices, the court
    denied the school district’s pending motion for summary judgment
    and instead granted summary judgment, sua sponte, in favor of the
    Does.     Analyzing   the   question   under   the   three   parallel
    Establishment Clause tests applied by this court in Clear Creek II,
    977 F.2d at 966-72, and Ingebretsen v. Jackson Public School
    88 F.3d 274
    , 278-79 (5th Cir.), cert. denied sub nom.
    Moore v. Ingebretsen, __ U.S. __, 
    117 S. Ct. 388
     (1996), the
    district court found that many of the incidents identified by the
    Does constituted impermissible coercion, endorsement, or purposeful
    advancement of religion by the State, and that SFISD could be
    fairly charged with having had de facto policies favoring the
    incidents because they “occurred amidst the School District’s
    repeated tolerance of similar activities and oftentimes with [its]
    awareness and explicit approval.” In reaching this conclusion, the
    court noted that it relied on such of the Does’ factual averments
    as had been acquiesced in by SFISD in addition to those identified
    in the joint stipulations, but that the court would afford SFISD a
    limited opportunity to object to the liability finding at the
    subsequent trial on damages, which the court tentatively scheduled
    for mid-July 1996.
         In addressing the question of prospective injunctive relief
    from current policies, the district court decided to grant SFISD’s
    motion for summary judgment on that point. It ruled that, whatever
    may have happened in the past, SFISD had abandoned any potentially
    problematic policies other than those concerning invocations and
    benedictions at graduations and football games.                  As to these
    policies, the court noted that they were essentially identical to
    the policies upheld by this Court in Clear Creek II, “except for
    the   crucial   distinction   that    the   School      District’s   [primary]
    policies do not require that any prayers delivered be nonsectarian
    and   non-proselytizing.”      Because      it   read    Clear   Creek   II   as
    mandating this additional limitation, the court held that the
    initial paragraph of SFISD’s July Policy and Football Policy
    constitutionally deficient.          As each policy also contained an
    alternative provision that was fully consistent with Clear Creek
    II, and was specified to clutch in automatically if the court were
    to find the basic policy constitutionally lacking, however, the
    court ultimately concluded that injunctive relief would not be
    appropriate; the court could simply “order” SFISD to implement the
    fall-back provisions of the July Policy and the Football Policy.
    The court therefore denied the Does’ request for injunctive relief
    of any kind.
          In December 1996, following a two-day trial on damages, the
    district court entered its final judgment.           Citing Collins v. City
    of Harker Heights, 
    503 U.S. 115
    , 120-21 (1992), and Bennett v. City
    of Slidell, 
    728 F.2d 762
    , 768 (5th Cir. 1984), the court held that
    imputed liability is not cognizable under § 1983, and that the Does
    had to prove more than the occurrence of isolated incidents to
    demonstrate that SFISD maintained an unconstitutional policy or
    custom for which it could be held liable in money damages under
    that statute.   Reversing an unclear portion of its earlier ruling,
    the court found that each of the incidents for which the Does
    claimed actual, compensable harm, particularly the David Wilson
    “Mormon” matter, were nothing more than isolated occurrences, and
    were not attributable to a policy or custom of SFISD.    The court
    further ruled, in the alternative, that, even if the claimed
    incidents could be attributed to SFISD policies, the Does had
    failed to prove any actual, compensable harm.   The court concluded
    by entering a take-nothing judgment against the Does.   Because it
    also concluded that the Does were unsuccessful as to every major
    issue in the litigation, the court ruled that they were not
    prevailing parties and denied their motion for attorney’s fees
    under 42 U.S.C. § 1988.   The court stated in the alternative that,
    even if the Does were technically prevailing parties, it would
    nonetheless deny them attorney’s fees as an exercise of discretion,
    given that their success had been so limited and that they had
    protracted the litigation unnecessarily by insisting on going to
    trial on their damage claims. From this final judgment, both SFISD
    and the Does timely appealed.
         In its appeal, SFISD primarily challenges the district court’s
    determination that a Clear Creek Prayer Policy must require that
    prayers or statements be “nonsectarian, nonproselytizing” to be
    constitutional.    Should we be inclined to reverse the district
    court as to the denial of damages and attorney’s fees, however,
    then SFISD also challenges the finding of liability for past
    Establishment       Clause    violations,     claiming   both   procedural    and
    substantive errors on the part of the district court.
           In their appeal, the Does argue that the district court erred
    in     (1)    defining     “nonsectarian,     nonproselytizing”     to   permit
    reference to particular deities; (2) allowing SFISD to extend a
    Clear Creek Prayer Policy to football games; (3) denying injunctive
    relief; and (4) refusing to award attorney’s fees.              One plaintiff,
    referred to above as Jane Doe II, also appeals the denial of
    damages for the David Wilson “Mormon” incident.
           We begin with SFISD’s primary argument that a Clear Creek
    Prayer Policy need not include the “nonsectarian, nonproselytizing”
    requirements to be constitutional. SFISD rests this argument on two
    complementary contentions: (A) the nonsectarian, nonproselytizing
    restrictions of Clear Creek II were irrelevant to the court’s
    Establishment Clause holding; and (B) SFISD, in its July Policy,
    has created a limited public forum and, therefore, not only need
    not,    but     lawfully    cannot,    restrict    the   student   speakers   to
    nonsectarian, nonproselytizing invocations and benedictions, as
    such        restrictions     would    constitute    impermissible    viewpoint
    discrimination under the Free Speech Clause.7
          Although for the sake of simplicity and clarity we address
    SFISD’s arguments only as they relate to graduation ceremonies, our
    analysis applies with equal, if not greater, force to the Football
    A.    The Establishment Clause
          In beginning our analysis, it is well to note that our role is
    necessarily limited to elucidating our prior precedent in the light
    of its context and such subsequent clarifications as the Supreme
    Court has announced.          See Hogue v. Johnson, 
    131 F.3d 466
    , 491 (5th
    Cir. 1997) (“One panel of this Court may not overrule another
    [absent an intervening decision to the contrary by the Supreme
    Court or the en banc court . . .].”), cert. denied, __ U.S. __, 118
    S.   Ct.    1297    (1998).      The    initial     question    may    therefore   be
    conveniently summarized by reviewing the holdings of Clear Creek II
    and its Supreme Court predecessor, Lee. By way of background,
    however, we first set forth the Supreme Court’s three Establishment
    Clause tests.
          1.     Three Supreme Court Tests
          As we have often observed, Establishment Clause jurisprudence
    is   less    than    pellucid.         We   examine    practices      challenged   on
    Establishment        Clause     grounds     under     three    complementary    (and
    occasionally overlapping) tests established by the Supreme Court.
    Clear Creek II, 977 F.2d at 963; Ingebretsen, 88 F.3d at 278.
                 a.      The Lemon Test
          The first test, and the one of the longest pedigree, is the
    disjunctive        three-part    Lemon      test,   under     which   a   government
    practice is unconstitutional if (1) it lacks a secular purpose; (2)
    Policy as well.
    its primary effect either advances or inhibits religion; or (3) it
    excessively entangles government with religion. Lemon v. Kurtzman,
    403 U.S. 602
    , 612-13 (1971).
                 b.     The Coercion Test
          The second test, which the Court announced in Lee v. Weisman,
    505 U.S. 577
        (1992)   (invalidating   school   district’s   policy
    permitting school principals to invite clergy to give invocations
    and benedictions in form of “nonsectarian” prayer at graduation
    ceremonies), is commonly referred to as the Coercion Test.          Under
    this test, school-sponsored religious activity is analysed to
    determine the extent, if any, to which it has a coercive effect on
    students.      “[U]nconstitutional coercion [occurs] when: (1) the
    government directs (2) a formal religious exercise (3) in such a
    way as to oblige the participation of objectors.”         Clear Creek II,
    977 F.2d at 970 (citation omitted).
                 c.     The Endorsement Test
          The third test, known as the Endorsement Test, seeks to
    determine whether the government endorses religion by means of the
    challenged action.        County of Allegheny v. ACLU, 
    492 U.S. 573
    (1989).      The government unconstitutionally endorses religion when
    “it conveys a message that religion is ‘favored,’ ‘preferred,’ or
    ‘promoted’ over other beliefs.”         Id. at 593.
          2.     Lee and Clear Creek II
          In Lee, the Supreme Court declared a school district’s policy
    of allowing a high school principal to invite a religious official
    to give a nonsectarian, nonproselytizing invocation and benediction
    at graduation to be an unconstitutional “coercion” of participation
    in a state-directed religious exercise.           Lee, 505 U.S. at 586.
    Four Justices appeared to find the policy to be an unconstitutional
    “endorsement” of religion as well.          Id. at 604-05 (Blackmun, J.,
    joined by Stevens & O’Connor, JJ., concurring) & 629-30 & n.8
    (Souter, J., joined by Stevens & O’Connor, JJ., concurring); cf.
    Allegheny, 492 U.S. at 594 (discussing endorsements).
         Then,   in   Clear   Creek   II,      applying   the   three   of   the
    Establishment Clause tests set forth above, we held that Clear
    Creek’s policy    of   allowing   a   student-selected,     student-given,
    nonsectarian, nonproselytizing invocation and benediction at a high
    school graduation ceremony —— SFISD’s fall-back provision in the
    July Policy —— did not violate the dictates of the Establishment
    Clause.   Clear Creek II, 977 F.2d at 968-72.
         SFISD asserts that a close reading of Clear Creek II reveals
    that the school district’s graduation policy escaped the result in
    Lee not because of its “nonsectarian, nonproselytizing” content
    limitation, but rather solely because it permitted invocations and
    benedictions as long as they are student-selected and student-
    given.    Inasmuch as our opinion in Clear Creek II specifically
    relied on the school district’s requirement that the student-led
    graduation prayers be nonsectarian and nonproselytizing in holding
    that its policy did not offend the Establishment Clause, we find
    SFISD’s reading of Clear Creek II to be specious at best.
         First,    we   concluded     in   Clear    Creek    II     that   the    twin
    restrictions served the dual functions of enhancing the graduation
    ceremony’s solemnization, thus permitting the policy to clear
    Lemon’s secular purpose hurdle, while simultaneously reducing the
    possibility of endorsing religion.          Clear Creek II, 977 F.2d at 971
    (“[T]he Resolution imposes two one-word restrictions 70 F.3d 402
    , 406 (5th Cir.
    1995)     (distinguishing       “quintessentially        Christian       prayer”
    basketball team prayers from nonsectarian, nonproselytizing prayers
    in Clear Creek II). Moreover, as the primary-effect prong of Lemon
    “asks whether . . . the practice under review in fact conveys a
    message of endorsement or disapproval,” Lynch v. Donnelly, 
    465 U.S. 668
    , 690 (1984) (emphasis added), the character of the prayer being
    scrutinized is clearly relevant to the Supreme Court’s closely-
    related    Endorsement   Test     as   well.     Finally,       we   rested    our
    determination that the graduation prayers did not constitute a
    “formal religious exercise” for the purposes of Lee’s Coercion Test
    in principal part on the fact that Clear Creek’s policy permitted
    only nonsectarian, nonproselytizing prayers.     Clear Creek II, 977
    F.2d at 971.
         Thus, contrary to SFISD’s conclusional suggestion, Clear Creek
    II did not hold that a policy is insulated from constitutional
    scrutiny under the Establishment Clause merely because it permits,
    rather than requires, religious speech when selected and given by
    students.8     Much more than mere window dressing, the content
    restrictions that SFISD now attempts to cast aside were, in fact,
    central to our holding in the Clear Creek II.9    More to the point,
    we now conclude, in obeisance to the ineluctable precedent of Clear
    Creek II, that a knock-off of a Clear Creek Prayer Policy that does
    not limit speakers to nonsectarian, nonproselytizing invocations
    and benedictions violates the dictates of the Establishment Clause.
         3.      Applying the Tests
         In his dissent, Judge Jolly places great emphasis on the fact
    that the Supreme Court has held that the nonsectarian nature of a
    graduation prayer cannot resuscitate an otherwise unconstitutional
    graduation prayer. We do not hold otherwise. Rather, we simply
    follow Clear Creek II’s unmistakable conclusion that, although not
    sufficient, a policy’s nonsectarian, nonproselytizing requirements
    are necessary.
           More generally, it is beyond peradventure that government
    measures that lend succor to a particular religion, denominaiton or
    sect fall at the very core of the conduct proscribed by the
    Establishment Clause. See, e.g., Larson v. Valente, 
    456 U.S. 228
    246 (1982) (“Since Everson v. Board of Education, this Court has
    adhered to the principle, clearly manifested in the history and
    logic of the Establishment Clause, that no State can 512 U.S. 687
    , 696 (1994) (emphasizing
    neutrality among religious sects is central to Establish Clause
           Given   the     posture      of    this       case,   we    limit    our   primary
    discussion     to     those    portions         of    the    Supreme    Court’s     three
    Establishment        Clause   tests       with      regard   to    which    Clear   Creek
    II discussed the twin restrictions.                       Turning first to Lemon’s
    secular purpose requirement, SFISD argues that, as in Clear Creek
    II, its     July     Policy    is   designed         to   solemnize    its     graduation
    ceremonies.        We are, of course, mindful of the deference courts
    typically afford a government’s articulation of secular purpose.
    Bethel Sch. Dist. v. Fraser, 
    478 U.S. 675
     (1986); Clear Creek II,
    977 F.2d at 965-66.           Nevertheless, the government’s statement of
    secular purpose cannot be a mere “sham.” Edwards v. Aguillard, 
    482 U.S. 578
    ,    586-87    (1987).          Here       we   simply   cannot    fathom   how
    permitting students to deliver sectarian and proselytizing prayers
    can possibly be interpreted as furthering a solemnizing effect.
    Such prayers would alter dramatically the tenor of the ceremony,
    shifting its focus —— at least temporarily —— away from the
    students and the secular purpose of the graduation ceremony to the
    religious content of the speaker’s prayers.                         Indeed, an almost
    inevitable consequence of permitting the uttering of such prayers
    would be the polarizing and politicizing of an event intended to
    recognize      and    celebrate          the     graduating        students’      academic
    achievements and the commonality of their presence and the path on
    which they are about to embark.                In short, rather than solemnize a
    graduation, sectarian and proselytizing prayers would transform the
    character of the ceremony and conceivably even disrupt it.
           The   context      of   the   evolutionary     history   in   which   SFISD
    developed its series of prayer policies further confirms the school
    district’s penumbral religious purpose.               As described above, SFISD
    first formulated an “almost” Clear Creek Prayer Policy, one which
    permitted students to deliver nonsectarian and nonproselytizing
    prayers (the October Policy); then, following the district court’s
    initial ruling, adopted a “pure” Clear Creek Prayer Policy (the May
    Policy); and finally, on further reflection, created its ultimate
    twin-tiered policy (the July Policy), initially dropping the key
    content restrictions until and unless the district court should
    hold   the    primary      policy    unconstitutional     and   thereby   trigger
    automatic implementation of the fall-back provision.                 As students
    were already permitted to deliver invocations and benedictions
    (even in the form of prayer) under SFISD’s previously articulated
    policies, it is impossible to conclude that this final revision was
    anything but an attempt to encourage sectarian and proselytizing
    prayers      ——   a     purpose   which   is    the   antithesis     of   secular.
    See Ingebretsen, 88 F.3d at 279 (holding school district’s policy
    permitting student-initiated prayer at compulsory or non-compulsory
    school events did not have secular purpose because (1) its clear
    intent was to inform students, teachers, and administrators they
    can pray at school events as long as student “initiated” prayer and
    (2)    policy     was    passed   as   part    of   legislature’s    reaction   to
    punishment of school president who championed prayer in school).
    Our cynicism about the school board’s proffered secular purpose is
    galvanized by SFISD’s inclusion of the fall-back alternative that
    would   re-insert   the    twin   restrictions   ipso   facto    should    the
    district court invalidate the basic provision of the July Policy.
         Second, we conclude that, when shorn of the nonsectarian,
    nonproselytizing restrictions, SFISD’s modified Clear Creek Prayer
    Policy fails Lemon’s primary effect prong as well.              “The effect
    prong asks whether, irrespective of government’s actual purpose,
    the practice under review in fact conveys a message of endorsement
    or disapproval.”     Lynch, 465 U.S. at 690.         This consideration is
    especially important in the context of public schoolchildren.
    Aguillard, 482 U.S. at 583-84; cf. Lubbock Civil Liberties Union v.
    Lubbock Indep. Sch. Dist., 
    669 F.2d 1038
    , 1048 (5th Cir. 1982)
    (holding that high school was not public forum and stating “[w]hile
    students have First Amendment rights to political speech in public
    school, sensitive Establishment Clause considerations limit their
    right to air religious doctrines.”).
         Again, in Clear Creek II, we determined that a student-led,
    nonsectarian, nonproselytizing prayer would serve to solemnize the
    graduation ceremony and thus would not have the primary effect of
    advancing religion.       Clear Creek II, 977 F.2d at 967.      As our later
    cases of Ingebretsen and Duncanville make abundantly clear, though,
    the mere fact that prayers are student-led or student-initiated, or
    both, does   not    automatically    ensure   that    the   prayers   do   not
    transgress Lemon’s second prong.          Ingebretsen, 88 F.3d at 279
    (holding school district’s policy permitting student-initiated
    prayer at compulsory and non-compulsory school events had primary
    effect   of    advancing       religion);       Duncanville,         70     F.3d   at   407
    (distinguishing     Clear       Creek   II      and    holding      school    officials’
    supervision of student-initiated and student-led prayers preceding
    basketball games violated Establishment Clause, in part because
    prayers were “quintessentially Christian”).                    Indeed, if subjecting
    a prayer policy to a student vote were alone sufficient to ensure
    the policy’s constitutionality, what would keep students from
    selecting a formal religious representative, such as the rabbi in
    Lee, to present a graduation prayer?                  Indeed, to take the argument
    one step further, there would be no reason to deny the students the
    authority to designate a formal religious representative to deliver
    a   full-fledged,       fire-and-brimstone,            Bible-       or    Koran-quoting,
    sectarian sermonette (in the dress for a prolonged invocation or
    benediction) at graduation; for, by putting the ultimate choice to
    the   students,     the       sermonette     would       not     facially      bear     the
    government’s imprimatur.
          But government imprimatur is not so easily masked: Prayers
    that a school “merely” permits will still be delivered to a
    government-organized          audience,      by       means    of        government-owned
    appliances and equipment, on government-controlled property, at a
    government-sponsored event, thereby clearly raising substantial
    Establishment Clause concerns.               Cf. Lee, 505 U.S. at 597 (School
    officials     “retain     a   high   degree      of    control      over     the   precise
    contents of [a graduation ceremony], the speeches, the timing, the
    movements, the dress, and the decorum of the students.”); Jones v.
    Clear Creek Ind. Sch. Dist., 
    930 F.2d 416
    , 418 (5th Cir. 1991)
    (“Clear   Creek   I”)   (Graduation   prayer   policy   “is    subject   to
    Establishment Clause scrutiny because it is the mechanism through
    which the state provides space in a closed forum for arguably
    religious speech at a government sponsored event.”), vacated, 
    505 U.S. 1215
     (1992); Jager v. Douglas County Sch. Dist., 
    862 F.2d 824
    831 (11th Cir. 1989) (examining school practice under Establishment
    Clause “[w]hen 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”). And when
    the school “permits” sectarian and proselytizing prayers —— which,
    by definition, are designed to reflect, and even convert others to,
    a particular religious viewpoint and which, as stated above, do not
    serve (and even run counter to) the permissible secular purpose of
    solemnizing an event —— such “permission” undoubtedly conveys a
    message not only that the government endorses religion, but that it
    endorses a particular form of religion.
         For the very same reasons, SFISD’s prayer policy obviously
    violates the Supreme Court’s Endorsement Test as well, which asks
    whether the government has appeared to take a position on questions
    of religious belief or has conveyed a message that religion is
    favored, preferred, or promoted over other beliefs.           Ingebretsen,
    88 F.3d at 280.
         Having    concluded      that     student-selected,     student-given,
    sectarian,    proselytizing    invocations    and   benedictions   at   high
    school graduations violate both the Lemon test and the Endorsement
    test, we are not required to determine that such public school
    prayer policies also run afoul of the Coercion Test to hold them
    antithetical to the Establishment Clause.           We nevertheless offer
    the following observation for the sake of completeness.
         As alluded to above, Clear Creek II held that the Clear Creek
    Prayer Policy did not constitute a “formal religious exercise”
    because (1) the prayers were not delivered by a member of the
    clergy, and (2) the prayers were nonsectarian and nonproselytizing.
    Clear Creek    II,   977   F.2d   at   971.   Prayer,   of   course,    is    a
    “quintessential religious practice,” Karen B. v. Treen, 
    653 F.2d 897
    , 901 (5th Cir. 1981), aff'd, 
    455 U.S. 913
     (1982); and prayer in
    school raises particularly sensitive constitutional concerns.                As
    the Supreme Court stated in Aguillard:
         The Court has been particularly vigilant in monitoring
         compliance with the Establishment Clause in elementary
         and secondary schools. Families entrust public schools
         with the education of their children, but condition their
         trust on the understanding that the classroom will not
         purposely be used to advance religious views that may
         conflict with the private beliefs of the student and his
         or her family.      Students in such institutions are
         impressionable and their attendance is involuntary.”).
    Aguillard, 482 U.S. at 583-84. Only the combination of the factors
    relied on in Clear Creek II —— that the prayer was student-led and
    nonsectarian, nonproselytizing —— saved that school district’s
    graduation prayers from being anathematized a “formal religious
    exercise” for the purposes of Lee’s Coercion Test. Cf. Lee, 505
    U.S. at 588-90 (holding nonsectarian, nonproselytizing graduation
    prayer delivered by rabbi was “formal religious exercise”). Again,
    because sectarian and proselytizing prayers are by their very
    nature designed to promote a particular religious viewpoint rather
    than solemnize an otherwise purely secular event, they cannot find
    sanctuary in the tightly circumscribed safe harbor of Clear Creek
    II and thereby avoid the appellation “formal religious exercise.”10
         Nevertheless, as the Coercion Test is conjunctive and there is
    no distinguishing difference between SFISD’s policy and the policy
    of Clear Creek ISD in Clear Creek II with regard to the test’s
    other    two   prongs   ——   government   direction   and   obligatory
    participation —— we need not and therefore do not belabor the point
    by addressing today whether SFISD’s policy violates the Coercion
    Test.    It suffices that, when stripped of one of the foundational
    elements on which Clear Creek II is constructed, SFISD’s graduation
    prayer policy is so constitutionally deficient that it cannot
    stand. By failing to prohibit sectarian and proselytizing prayers,
          SFISD advances the argument that, because SFISD permits but
    does not require prayer, such a prayer does not constitute a formal
    religious exercise.    See Clear Creek II, 977 F.2d at 971 (“By
    contrast [to Lee], the Resolution tolerated nonsectarian,
    nonproselytizing prayer, but does not require or favor it.”). This
    contention is wholly unpersuasive, as a religious practice derives
    its religious nature from its content and historical significance,
    not from whether it is permitted or required by the school.
    Neither a baptism nor a bar mitzvah, for examples, would be somehow
    transformed into a secular events if a school set up a procedure by
    which its students were permitted to vote to include such a ritual
    in its graduation ceremony.
    the July Policy not only lacks a secular purpose, but has the
    primary effect       of   advancing,   and    unconstitutionally       endorsing
    B.    The Free Speech Clause
          Finding the landscape of Establishment Clause jurisprudence
    inhospitable,       SFISD    alternatively        seeks    sanctuary   for     its
    graduation prayer policy in the Free Speech Clause, a contention to
    which we now turn.          SFISD asserts that its July Policy survives
    constitutional scrutiny because through this policy it has created
    a “limited public forum.” This being the case, continues SFISD, it
    is   not   simply   permissible     for     the   school    district   to    allow
    sectarian and proselytizing student prayers, but SFISD would be
    guilty of unconstitutional viewpoint discrimination were it to do
    otherwise. We disagree with these assertions for the simple reason
    that as a matter of law SFISD has not created a limited public
    forum.     See American Civil Liberties Union of New Jersey v. Black
    Horse Pike Reg’l Bd. of Ed., 
    84 F.3d 1471
    , 1477-78 (3d Cir. 1996)
    (holding that school board’s graduation prayer policy permitting
    students to vote to include prayer in graduation ceremony did not
    create limited public forum); Harris v. Joint Sch. Dist. No. 241,
    41 F.3d 447
    , 456-57 (9th Cir. 1994) (same), vacated as moot, 
    515 U.S. 1154
          We begin with the basics. “There are three classifications of
    fora.”      Hobbs v. Hawkins, 
    968 F.2d 471
    , 481 (5th Cir. 1992)
    (quoting Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473
    27 U.S. 788
    , 802 (1985)); Perry Educ. Ass’n v. Perry Local Educators’
    460 U.S. 37
    , 45 (1983)).              The first category is the
    traditional public forum.       These are places, such as public parks
    and streets, “‘which by long tradition or by government fiat have
    been devoted to assembly and debate.’” Id. (quoting Cornelius, 473
    U.S. at 802).       Second, there is “‘the public forum created by
    government designation.’”         Id.       This type of forum “‘may be
    created     by   government   designation    of    a   place   or    channel   of
    communication [not traditionally open to assembly and debate] for
    use by the public at large for assembly and speech, for use by
    certain speakers, or for the discussion of certain subjects.’” Id.
    Finally, there is the “‘nonpublic’ forum.” Id. (quoting Cornelius,
    473 U.S. at 803).     “This is the residual class of government-owned
    property, to which the First Amendment does not guarantee access.”
           A graduation ceremony is quite obviously not a traditional
    public forum.      The question, therefore, under the July Policy is
    whether SFISD’s      commencement    program      constitutes    a   government
    designated public forum, or, more accurately, whether the portions
    of    the   commencement   program   allocated      to   the   invocation      and
    benediction constitute designated public fora. Two factors are key
    to determining whether the State has transformed its property into
    a designated public forum.           The first is governmental intent.
    Cornelius, 473 U.S. at 802 (“[T]he Court has looked to the policy
    and practice of the government to ascertain whether it intended to
    designate a place not traditionally open to assembly and debate as
    a public forum”).          The nature of the State property and its
    compatibility with expressive activity are important indicia of
    intent.        Id. at 802; see also Arkansas Educational Television
    Commission v. Forbes, 
    118 S. Ct. 1633
    , 1639 (1998) (holding public
    television broadcasting not generally a public forum and stating in
    broadcasting “broad rights of access for outside speakers would be
    antithetical, as a general rule, to the discretion that stations .
    .   .   must    exercise   to   fulfill    their    journalistic   purpose   and
    statutory obligations.”); Muir v. Alabama Educ. Television Comm’n,
    688 F.2d 1033
    , 1042 (5th Cir. 1982) (“A facility is a public forum
    only if it is designed to provide a general public right of access
    to its use, or if such public access has historically existed and
    is not incompatible with the facility’s primary activity.”).
            The    second   factor    relevant     to    determining   whether the
    government has established a public forum is the extent of the use
    granted.       See Perry, 460 U.S. at 46-47.        A designated public forum
    may, of course, be limited to a specified class of speakers or to
    discussion of specified subjects —— thus the term “limited public
    forum.” Estiverne v. Louisiana State Bar Assoc., 
    863 F.2d 371
    , 378
    (5th Cir. 1989).           Nevertheless, the State does not create a
    designated public forum “by inaction or by permitting limited
    discourse.”        Cornelius, 473 U.S. at 802 (emphasis added).               To
    create such a forum, the government must allow “general access” to,
    Id. at 802, or “indiscriminate use” of, Perry, 460 U.S. at 47, the
    forum in question by the general public, or by particular speakers,
    or for the discussion of designated topics.
          Regarding the first factor —— governmental intent —— it is
    clear that the government’s proffered intent does not govern this
    inquiry, else it would be a limited inquiry indeed.              In the typical
    case, to justify a limitation it has placed on the speech of
    private individuals, the State asserts that it has not created a
    designated public forum. In the instant case, the reverse is true:
    SFISD attempts to evade the requirements of the Establishment
    Clause by running for the protective cover of a designated public
    forum.    We must, therefore, view skeptically SFISD’s own self-
    serving   assertion      of     its   intent     and   examine      closely    the
    relationship between the objective nature of the venue and its
    compatibility with expressive activity.
          In Estiverne, we framed the relevant inquiry as: “Does the
    character of the place, the pattern of usual activity, the nature
    of its essential purpose and the population who take advantage of
    the general invitation extended make it an appropriate place for
    communication      of   views    on   issues     of    political     and    social
    significance?” Estiverne, 863 F.2d at 378-79. SFISD’s July Policy
    flunks this test hands down.
          Neither its character nor its history makes the subject
    graduation ceremony in general or the invocation and benediction
    portions in particular appropriate fora for such public discourse.
    See   Brody   v.   Spang,     
    9577 F.2d 1108
    ,   1117   (3d    Cir.     1992)
    (“Graduation ceremonies have never served as forums for public
    debate or discussions, or as a forum through which to allow varying
    groups to voice their views.”) (quotation and citation omitted);
    cf. Hays County Guardian v. Supple, 
    969 F.2d 111
    , 116-18 (5th Cir.
    1992) (concluding that university campus was limited public forum
    because it served as central site of student body and because
    university’s written policies established a “general policy of open
    access”).       For    obvious     reasons,        graduation     ceremonies           ——   in
    particular, the invocation and benediction portions of graduation
    ceremonies      ——    are    not   the    place       for    exchanges       of       dueling
    presentations on topics of public concern.                     See Duncanville, 70
    F.3d at 406 (“The [basketball] games are school-sponsored and
    controlled events that do not provide any sort of open forum for
    student expression . . . .”). Such presentations would undoubtedly
    clash with a ceremony’s “primary activity.”                   See Muir, 688 F.2d at
    1042.      Indeed,     a    graduation        ceremony   comprises         but    a   single
    activity which is singular in purpose, the diametric opposite of a
    debate or other venue for the exchange of competing viewpoints.
          It is not surprising then that SFISD has not, in fact, opened
    the ceremony to such exchanges, which brings us to the second
    relevant factor —— extent of use.                  In no way can SFISD be said to
    have granted “general access” to a class speakers at its graduation
    ceremony.       Rather,      it    has    simply      concocted       a    thinly-veiled
    surrogate process by which a very limited number of speakers —— one
    or   two   ——   will   be    chosen      to    deliver      prayers       denominated       as
    invocations and benedictions.     These speakers, moreover, will not
    be given free reign to address issues, or even a particular issue,
    of political and social significance.     Rather, they will be chosen
    to deliver very circumscribed statements that under any definition
    are prayers.   See   Webster’s Third New International Dictionary at
    1190 (defining “invocation” as “the action or an act of petitioning
    for help or support”) & 203 (defining “benediction,” similarly, as
    “an expression or utterance of blessing or good wishes”) (1993).
    SFISD has thus granted no one, not even the students elected to
    give the invocations and benedictions, “indiscriminate use” of its
    government controlled channel of communication. Perry, 460 U.S. at
    47; see also Hazelwood Sch. Dist. v. Kuhlmeier, 
    484 U.S. 260
    , 270
    (1988)   (holding    that   school-run   student   newspaper   was   not
    designated forum because school officials “did not evince either by
    policy or practice any intent to open the pages of [newspaper] to
    indiscriminate use by its student reporters and editors, or by the
    student body generally”) (quotations and citations omitted).
         In short, even though the government may designate a forum
    only for particular speakers or for the discussion of particular
    topics, Cornelius, 473 at 802, SFISD’s restrictions so shrink the
    pool of potential speakers and topics that the graduation ceremony
    cannot possibly be characterized as a public forum — limited or
    otherwise —— at least not without fingers crossed or tongue in
    cheek.   Cf. Forbes, 118 S.Ct. at 1640 (1998) (holding candidate
    debates constitute narrow exception to general rule that public
    broadcasting does not constitute public form because (1) “debate
    was by design a forum for political speech by candidates,” and (2)
    candidate debates are, by tradition, of exceptional significance in
    electoral   process);   Capitol   Square   Review   &   Advisory   Bd.   v.
    515 U.S. 753
    , 770 (1995) (“Religious expression cannot
    violate the Establishment Clause where it (1) is purely private and
    (2) occurs in a traditional or designated public forum, publicly
    announced and open to all on equal terms.”) (emphasis added).
         Clear Creek II does not hold to the contrary.          Although our
    opinion in that case does advert to Board of Education of Westside
    Community Schools v. Mergens, 
    496 U.S. 226
     (1990), which rests, in
    part, on public forum analysis, Clear Creek II does not rely on
    Mergens for the conclusion that the Clear Creek ISD had created a
    public forum.    Rather, Clear Creek II adverts to Mergens only
    within the limited context of its Endorsement Test analysis,
    concluding that the graduation prayer policy at issue “paralleled”
    the practices held constitutional in Mergens.11 Clear Creek II, 977
          There is, moreover, a crucial distinction between the speech
    involved in Mergens and the speech that SFISD’s policy would allow.
    In Mergens, the Court held that permitting the Christian student
    organization to meet on school grounds after class and to recruit
    members through the school newspaper, bulletin boards, and public
    address system, did not violate the Establishment Clause. Thus,
    the organization was not permitted to deliver a religious message
    directly to the student body. The religious organization did not
    use any of the various methods of communication controlled by the
    school to proselytize —— or to deliver religious messages of any
    nature —— but rather confined such activities to meetings held
    after class with virtually no trace of governmental imprimatur.
    Clear Creek II took Mergens one baby step closer to the brink,
    allowing delivery of prayer to the student body but only if such
    F.2d at 968-69.     Indeed, nowhere in the Clear Creek II opinion does
    the term “public forum” even appear.
          This should surprise no one.                For, if a graduation program,
    open, as it is, to such a limited number of student-elected or
    selected      speakers,    constitutes        a    limited       public   forum,   the
    graduation prayer policy blessed in Clear Creek II would, in fact,
    be   unconstitutional       ——   not,   however,       as    a    violation   of   the
    Establishment       Clause,       but         as     impermissible          viewpoint
    discrimination: Once the State has established a limited public
    forum,   it    cannot     discriminate    against       speech      because   of   the
    message, even if that message is religious in nature.                     Rosenberger
    v. Rector & Visitors of the Univ. of Virginia, 
    515 U.S. 819
    , 828-31
    (1995) (holding unconstitutional university’s decision to deny
    generally-available school funds to student organization publishing
    newspaper because of newspaper’s Christian editorial viewpoint);
    Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 
    508 U.S. 384
    , 393-96 (1993) (holding unconstitutional school’s policy of
    denying school facilities to group desiring to show film series
    addressing child-rearing questions from a “Christian perspective”
    as impermissible viewpoint discrimination).                  Thus, if public forum
    analysis were applicable, then Clear Creek’s proscription of prayer
    prayer were nonsectarian and nonproselytizing.      SFISD’s July
    Policy, however, would plunge over the cliff, by permitting
    students to present overtly sectarian and proselytizing religious
    prayers to a group of students clearly assembled at the behest of
    the government.
    that   is    sectarian   and   proselytizing   would   violate   the   First
    Amendment after all, but would do so on grounds we never considered
    in Clear Creek II.12
           In sum, our Clear Creek II opinion explicitly ——          and (we are
    bound by stare decisis to acknowledge) correctly —— relies on Clear
    Creek ISD’s nonsectarian, nonproselytizing restrictions to dodge
            Judge Jolly accuses us of unprecedentedly permitting the
    government to review (and thus control) the content of citizens’
    purely private speech (in the form of prayer) to determine whether
    that    speech    transgresses     the    required    nonsectarian,
    nonproselytizing restrictions. Judge Jolly’s accusation, however,
    only serves to highlight that Clear Creek II did not hold that the
    school district had created a public forum. In that decision, we
    explicitly approved a school district’s review of the content of
    the student-initiated, student-led graduation prayers. Clear Creek
    II, 9777 F.2d at 967 (“We know of no authority that holds yearly
    review of unsolicited material for sectarianism and proselytization
    to constitute excessive entanglement.”). Judge Jolly is thus faced
    with a dilemma —— either, contrary to his assertions, we did not
    hold in Clear Creek II that the school district created a public
    forum or, as Judge Jolly argues, we did so hold, but additionally
    approved the type of governmental review he now condemns.
         Because (1) we do not believe that the student-initiated,
    student-led invocation and benediction portions of a graduation
    ceremony satisfy the requirements of a public forum, (2) the Clear
    Creek II opinion never once utters the term “public forum” despite
    its consideration of Mergens, a public forum case, and (3) the
    Clear Creek II opinion explicitly approves the school district’s
    review of the students’ graduation prayers for sectarianism and
    proselytization, a review that would undoubtedly constitute
    impermissible viewpoint discrimination if the students’ graduation
    prayers constituted purely private speech, we will not, as Judge
    Jolly urges, strain to read our earlier decision to hold contrary
    to its plain language that the school district had carved out a
    limited public forum. Whether or not we agree with Clear Creek
    II’s conclusion that the student-led graduation prayers do not
    transgress the Establishment Clause even though they do not
    constitute private speech, we are bound by its judgment unless and
    until this Court reconsiders the matter en banc or the Supreme
    Court holds otherwise.
    the   outcome     otherwise     dictated     by   Lee.    Without     these   twin
    restrictions,      a   Clear    Creek   Prayer      Policy   cannot    withstand
    constitutional scrutiny. Moreover, SFISD cannot escape this result
    by piously wrapping itself in the false banner of “limited public
    forum.”    The July Policy created no forum at all and therefore
    could not, and did not, trigger the First Amendment’s prohibition
    of viewpoint discrimination.         The limited number of speakers, the
    monolithically non-controversial nature of graduation ceremonies,
    and the tightly restricted and highly controlled form of “speech”
    involved, all militate against labeling such ceremonies as public
    fora of any type.        Absent feathers, webbed feet, a bill, and a
    quack, this bird just ain’t a duck!
          The district court, therefore, did not err in rejecting
    SFISD’s stretch to reach limited public forum status for its
    graduation and through it find viability for the July Policy in the
    Free Speech Clause.        Neither did the court err in holding that
    provisions of the initial paragraph of SFISD’s July Policy violates
    the Establishment Clause or in ordering SFISD to institute the
    fall-back alternative —— a pure Clear Creek Prayer Policy —— in its
          We   need   only   note    briefly     that   the   district    court   did,
    however, clearly err in overbroadly defining “nonsectarian” to
    include reference to specific “deities,” see, e.g., Webster’s Third
    New International Dictionary at 1538 (defining “nonsectarian” as
    “not restricted to or dominated by a particular religious group”),
    a mistake the district court can easily correct on remand. A
    nonsectarian, nonproselytizing prayer that, for example, invokes
    the name of Buddha or Mohammed or Jesus or Jehovah is an obvious
    C.   Football Games
         Having concluded that SFISD’s modified Clear Creek Prayer
    Policy does not pass constitutional muster, we must next address
    whether   the   pure    Clear   Creek    Prayer   Policy   embodied   in   the
    alternative fall-back provision of the policy can be extended to
    football games through the Football Policy.            In Duncanville, we
    confronted virtually the identical issue.             There, the district
    court had enjoined employees of the school district from, inter
    alia, supervising student-initiated, student-led prayers during
    athletic events.       Duncanville, 70 F.3d at 406.        In upholding the
    injunction, we distinguished Clear Creek II, stating:
         In concluding that [the Clear Creek] resolution did not
         violate the Establishment Clause, we emphasized that high
         school graduation is a significant, once-in-a-lifetime
         event that could appropriately be marked with a prayer,
         that the students involved were mature high school
         seniors and the challenged prayer was to be non-sectarian
         and non-proselytizing.    Here, we are dealing with a
         setting [football and basketball games] far less solemn
         and extraordinary, a quintessentially Christian prayer,
         and students of twelve years of age . . . .” Id.
         SFISD argues that the present case is more closely analogous
    to Clear Creek II than to Duncanville because in the latter the
    students spontaneously initiated the prayers in question, whereas
    here, as in Clear Creek II, they do so by vote.            SFISD’s argument,
    however, widely misses the mark.        The controlling feature here is
    the same as in Duncanville: The prayers are to be delivered at
    football games —— hardly the sober type of annual event that can be
    appropriately solemnized with prayer.         The distinction to which
    SFISD points is simply one without difference.           Regardless of
    whether the prayers are selected by vote or spontaneously initiated
    at these frequently-recurring, informal, school-sponsored events,
    school officials are present and have the authority to stop the
    prayers.     Thus, as we indicated in Duncanville, our decision in
    Clear Creek II hinged on the singular context and singularly
    serious nature of a graduation ceremony.        Outside that nurturing
    context, a Clear Creek Prayer Policy cannot survive.       We therefore
    reverse the district court’s holding that SFISD’s alternative Clear
    Creek Prayer Policy can be extended to football games, irrespective
    of the presence of the nonsectarian, nonproselytizing restrictions.
    See Jager, 862 F.2d at 832-33 (holding “equal access” policy for
    football game invocations unconstitutional).
    D.    Injunctive Relief
          Turning next to the Does’ equitable claim, we review the
    district court’s denial of an injunction for abuse of discretion.
    Lubbock, 669 F.2d at 1049.     As we agree with the district court
    that it can simply order SFISD to put into effect the fall-back
    alternative of the July Policy, we address only whether the Does
    are   entitled   to   injunctive   relief    regarding   SFISD’s   other
    practices.     The district court expressly found that SFISD had
    ceased all such unlawful practices.        Given a trial court’s greater
    ability to evaluate the evidence regarding a defendant’s future
    propensity to engage in proscribed activities, we are generally
    reluctant to overturn a denial of injunctive relief. Id. (refusing
    to reverse trial court’s denial of injunctive relief even though
    defendant had engaged in impermissible practices over several years
    and only ceased on eve of trial); Meltzer v. Board of Pub.
    Instruction of Orange County, 
    548 F.2d 559
    , 562-568 (5th Cir. 1977)
    (refusing to reverse district court’s denial of injunctive relief
    even though school district had proved very reluctant to comply
    with constitutional requirements of Establishment Clause), aff’d on
    577 F.2d 311
     (1978).          The Does, moreover, point to no
    evidence in support of their contention that a threat of future
    unconstitutional practices exists other than the fact of SFISD’s
    removal of the “nonsectarian, nonproselytizing” language from its
    final graduation and football game policies, a threat negated by
    the district court in ordering implementation of the fall-back
    alternative and extinguished by us in this appeal.             We therefore
    conclude that the district court’s denial of injunctive relief was
    not an abuse of discretion.
    E.   Attorney’s Fees
         Under   §   1988,   the   district   court   may   make   an   award   of
    attorney’s fees only if it determines that the claimant is a
    “prevailing party.”      Walker v. HUD, 
    99 F.3d 761
    , 767 (5th Cir.
    1996); Hensley v. Eckerhart, 
    461 U.S. 424
    , 433 (1983).               A party
    prevails when he succeeds on “any significant issue in litigation
    which achieve[s] some of the benefit [he] sought in bringing suit.”
    Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 
    489 U.S. 782
    , 791 (1989) (quoting Nadeau v. Helgemoe, 
    581 F.2d 275
    , 278-79
    (1st Cir. 1978)).    “The touchstone of the prevailing party inquiry
    must be the material alteration of the legal relationship of the
    parties in a manner which Congress sought to promote in the fee
    statute.”    Id. at 792-93.
           In this case, the Does have obtained a judgment vindicating
    the Santa Fe students’ important First Amendment rights in both
    graduation ceremony and football game contexts.               They “have thus
    served the 656 F.2d 999
    , 1003
    (5th Cir. 1981) (holding plaintiffs who prevailed on claims that
    high school’s morning devotional readings over public address
    system and teaching elective Bible literature course were violative
    of   Establishment       Clause    were    entitled   to    attorney’s   fees).
    Accordingly, on remand the district court shall award the Does
    reasonable and realistic attorney’s fees as prevailing parties.
    F.     Monetary Damages
           Addressing next Jane Doe II’s appeal from the denial of
    damages for the David Wilson “Mormon” incident, we need do no more
    than    simply   state     our    agreement    with   the    district    court’s
    assessment of the evidence on that point.                   Regardless of the
    outcome of the question whether SFISD truly had a policy of
    tolerating Establishment Clause abuses, our independent review of
    the summary judgment record leaves us with no doubt that it is
    simply    devoid      of       evidence      establishing      a    genuine   dispute   of
    material fact that Jane Doe II suffered any compensable harm
    stemming from Wilson’s insensitive and misguided conduct.                               See
    Patterson v. P.H.P. Healthcare Corp., 
    90 F.3d 927
    , 940 (5th Cir.
    1996)    (requiring        that       the    evidence    “manifest[]      some    specific
    discernable injury to the claimant’s emotional state”), cert.
    denied, __ U.S. __, 
    117 S. Ct. 767
    G.     Toleration of Establishment Clause Violations
           Finally, because we do not disturb the district court’s
    rulings on damages and because we base our decision that the Does
    are entitled to attorney’s fees on our holdings regarding SFISD’s
    graduation and football game prayer policies —— not on a finding
    that    SFISD    had       a    policy       of   tolerating       Establishment    Clause
    violations      ——    we       need    not    consider   SFISD’s      challenge    to   the
    district court’s summary judgment ruling on liability for past
    Establishment Clause violations.
           For the foregoing reasons, we (1) AFFIRM the district court’s
    ruling    that       the       words     “nonsectarian,        nonproselytizing”        are
    constitutionally necessary components of a viable Clear Creek
    Prayer Policy; (2) REVERSE that court’s holding that SFISD’s Clear
    Creek Prayer Policy can permissibly extend to prayers before (or
    after) football games; (3) AFFIRM the court’s judgment that neither
    damages nor injunctive relief are appropriate in this case; and (4)
    REVERSE the district court’s denial of attorney’s fees for the Does
    and REMAND this case for determination of reasonable attorney’s
    fees and an award of such fees to the Does, consistent with this
    AFFIRMED in part; REVERSED in part; and REVERSED and REMANDED in
    part, with instructions.
    E. GRADY JOLLY, Circuit Judge, dissenting:
          Today, for the first time in our court’s history, the majority
    expressly exerts control over the content of its citizens’ prayers.
    And it does so notwithstanding that the Supreme Court has never
    required, suggested, hinted, or implied that the Constitution
    controls the content of citizens’ prayers in any context.                To the
    contrary,     Supreme    Court    precedent    clearly     indicates   that   the
    majority’s view transgresses the most fundamental First Amendment
    rights.     I therefore respectfully dissent.
          The majority’s exegesis contains two primary flaws that allow
    it   to    free   fall   into    the   black   pit   of   the   constitutionally
    forbidden, that school districts must control the content of
    graduation prayers to assure that they are “nonsectarian and
    nonproselytizing.”13 First, the majority reads Jones v. Clear Creek
           The nonsectarian, nonproselytizing restriction constitutes
    viewpoint, not subject matter, discrimination. Such a restriction
    clearly allows the subject matter of religion, or ultimate reality,
    to enter the graduation ceremony.      The majority does not, and
    indeed could not, disagree with this characterization.          See
    generally Rosenberger v. Rectors and Visitors of the Univ. of
    515 U.S. 819
    , 830-31 (1995); see also Chaudhuri v.
    130 F.3d 232
    , 237 (6th Cir. 1997) (noting that the
    nonsectarian prayer at issue “evoke[s] a monotheistic tradition not
    shared” by some religious peoples, including Hindus), cert. denied,
    118 S. Ct. 1308
     (1998). Furthermore, it is instructive to note that
    the term “proselytize” is simply a word used--sometimes
    pejoratively--in lieu of the term “persuade.” See Webster’s Third
    New International Dictionary at 1821 (defining the verb “proselyte”
    as “to convert from one religion, belief, opinion, or party to
    another”).    Free market enthusiasts and environmentalists can
    attempt to “proselytize” as well as Baptists and Mormons.
    Indep. Sch. Dist., 
    977 F.2d 963
     (5th Cir. 1992)14 in a way that
    openly oppugns the Supreme Court’s reasoning in Lee v. Weisman, 
    505 U.S. 577
           (1992).15        The   Court    in    Lee    clearly   held    that   the
    nonsectarian nature of a graduation prayer cannot save an otherwise
    unconstitutional graduation policy from the Establishment Clause.
    Yet    in        the   face   of    this    holding,     the    majority   nevertheless
    audaciously            concludes     that   a    “nonsectarian,      nonproselytizing”
    requirement constitutes a necessary element to our court’s decision
    upholding the graduation policy in Clear Creek II.
           The majority makes its second mistake by failing to recognize
    that the government may not restrict religious speech based on
    viewpoint          when   the      government     has    created    a    forum   for    the
    expression of privately held views.16                         This mistake leads the
            As a point of nomenclature, our court has in the past
    referred to this case as Jones II. See, e.g., Doe v. Duncanville
    Indep. Sch. Dist., 
    70 F.3d 402
    , 405 (5th Cir. 1995); Ingebretsen v.
    Jackson Pub. Sch. Dist., 
    88 F.3d 274
    , 278 (5th Cir.), cert. denied,
    117 S. Ct. 388
     (1996).    I join the majority in at least one of
    several breaks with precedent and refer to the case as Clear Creek
          The majority omits any mention of the fact that the Supreme
    Court vacated our decision in Jones v. Clear Creek Indep. Sch.
    930 F.2d 416
     (5th Cir. 1991) (Clear Creek I), vacated, 
    505 U.S. 1215
     (1992), and specifically instructed our court to
    reconsider the case in the light of Lee. This is the context in
    which we issued our Clear Creek II opinion.
           This mistake is, undoubtedly, a product of the majority’s
    decision to treat the Free Speech Clause as an isolated
    afterthought. By first engaging in a separate Establishment Clause
    analysis, the majority virtually preordains the outcome before it
    majority to reach a conclusion, which, however handy and expedient
    it may be, frustrates the neutral accommodation of religious
    viewpoints.         When    the   government   restricts   sectarian   and
    proselytizing       religious     speech,   while   embracing   ecumenical
    religious speech, the government has engaged in illegitimate,
    viewpoint discrimination.         That is why the Free Speech Clause is
    violated when the majority forces a nonsectarian, nonproselytizing
    requirement upon the speakers.         In short, the majority’s control
    over        the   content    of    students’    prayers    achieves    the
    jurisprudentially rare result of offending not only one, but three
    provisions within the First Amendment.17
    addresses the Free Speech Clause.       This approach fails to
    acknowledge the complex interaction of the Free Exercise,
    Establishment, and Free Speech Clauses.     One prominent First
    Amendment scholar has described the source of this complexity in
    the following way:
            The central feature of the constitutional law of speech
            and   press   is  a   prohibition    on  “content-based”
            discrimination, except in the most compelling of
            circumstances. Yet the distinction between religion and
            nonreligious ideologies and institutions — a distinction
            seemingly demanded by the very text of the Religion
            Clauses — is based on the content of ideas and beliefs.
            The content-neutral thrust of the Free Speech Clause thus
            coexists uneasily with the special status of religion
            under the Free Exercise and Establishment Clauses.
    Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. Chi.
    L. Rev. 115, 118 (1992).
         These three provisions, read together, state: “Congress shall
    make no law respecting an establishment of religion, or prohibiting
    the free exercise thereof; or abridging the freedom of
         Let me try to fit this case into the context of our precedent.
    The question before us is, quite simply, what was it about the
    Clear Creek II policy that allowed it to escape the result in Lee?
    To put the question another way, is it enough for an invocation to
    be student-elected and student-given, or is the addition of a
    “nonsectarian, nonproselytizing” content limitation required in
    order to pass constitutional muster?           The majority makes the
    unprecedented assumption that the content of a speaker’s prayer--
    specifically, whether the prayer is sectarian or persuasive--can
    have some effect on its status under the Establishment Clause.
    Jurists cannot draw many categorical conclusions about the Supreme
    Court’s treatment of the Establishment Clause.         Nevertheless, the
    majority’s assumption has the vice of offending one immutable
    holding of the Court’s Establishment Clause jurisprudence:               The
    government   may    not   mitigate   Establishment   Clause   concerns    by
    requiring prayers to be nonsectarian and nonproselytizing.          I can
    locate no place in the Court’s extensive Establishment Clause
    jurisprudence for a “nonsectarian, nonproselytizing” exception to
    the Clause’s command.         The additional verbiage was therefore
    unnecessary in upholding the graduation policy in Clear Creek II.
    speech . . .”      U.S. CONST. amend. I.
           I begin with some first principles.               From its earliest forays
    into    interpretation         of   the    Establishment       Clause,     the    Court
    consistently characterized it as prohibiting more than the direct
    establishment       of     a   single     national      (or,   after     Cantwell    v.
    310 U.S. 296
     (1940), and Everson v. Board of Educ.,
    330 U.S. 1
     (1947), state) church.                See, e.g., Davis v. Beason, 
    133 U.S. 333
    , 342 (1890) (noting that “[t]he first amendment to the
    Constitution . . . was intended . . . to prohibit legislation for
    the support of any religious tenets, or the modes of worship of any
    sect”); Reynolds v. United States, 
    98 U.S. 145
    , 164 (1878) (holding
    that    “Congress        was   deprived     of    all    legislative      power     over
    [religious] opinion” by the Clause); Watson v. Jones, 80 U.S. (13
    Wall.) 679, 730 (1871) (noting that the Clause serves both to
    “‘rescue[] the temporal institutions from religious interference,’”
    and to “‘secure[] religious liberty from the invasion of the civil
    authority’”) (quoting Harmon v. Dreher, 17 S.C. Eq. (Speer’s Eq.)
    87, 120 (S.C. 1843)); Terrett v. Taylor, 13 U.S. (9 Cranch) 43, 52
           The Court’s modern jurisprudence has continued the tradition
    set by the early cases, and makes clear that the Establishment
    Clause paints in broad prohibitive strokes when it comes to state
    or federal action in the spiritual domain.                       As Justice Black
    explained in Everson:
         The “establishment of religion” clause of the First
         Amendment means at least this: Neither a state nor the
         Federal Government can set up a church. Neither can pass
         laws which aid one religion, aid all religions, or prefer
         one religion over another. . . . Neither a state nor the
         Federal Government can, openly or secretly, participate
         in the affairs of any religious organizations or groups
         and vice versa.
    330 U.S. at 15-16; see also Lee, 505 U.S. at 602 (Blackmun, J.,
    joined by Stevens & O’Connor, JJ., concurring) (noting that the
    modern Court “‘has consistently held that the clause withdrew all
    legislative power respecting religious belief or the expression
    thereof’”) (quoting School Dist. v. Schempp, 
    374 U.S. 203
    , 222
         In    Engel    v.   Vitale,   
    370 U.S. 421
       (1962),   this   broadly
    proscriptive reading of the Establishment Clause was applied for
    the first time to the particularly sensitive area of school prayer.
    The controversy concerned a short prayer selected by the State
    Board of Regents for students to read aloud at the beginning of the
    school day.18      Stating that “[n]either 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,” the Supreme Court struck
    it down as an unconstitutional attempt by the State to use “the
          The prayer read in full: “Almighty God, we acknowledge our
    dependence upon Thee, and we beg Thy blessings upon us, our
    parents, our teachers and our Country.” 370 U.S. at 422.
    power, prestige and financial support of government” to exert
    “indirect coercive pressure upon religious minorities to conform to
    the prevailing officially approved religion.”           Engel, 370 U.S. at
    430-31.   But for today’s majority, not to worry.
         Yet Lee, the most recent and relevant precedent, continues to
    maintain and extends this broadly proscriptive reading of the
    Clause,   and   refutes   the   notion    that   a   government-sponsored,
    “nonsectarian,    nonproselytizing”       prayer     might   be   any   less
    constitutionally deficient than a sectarian, proselytizing one.
    Addressing the almost identical contention in that case--that the
    invocation at issue was constitutionally sound because the school
    directed it to be nonsectarian and nonproselytizing--the Court
         We are asked to recognize the existence of a practice of
         nonsectarian prayer, prayer within the embrace of what is
         known as the Judeo-Christian tradition, prayer which is
         more acceptable than one which, for example, makes
         explicit reference to the God of Israel, or to Jesus
         Christ, or to a patron saint. There may be some support,
         as an empirical observation, to the statement . . . that
         there has emerged in this country a civic religion, one
         which is tolerated when sectarian exercises are not. If
         common ground can be defined which permits once
         conflicting faiths to express the shared conviction that
         there is an ethic and a morality which transcend human
         invention, the sense of community and purpose sought by
         all decent societies might be advanced. . . . Though
         the efforts of the school officials in this case to find
         common ground appear to have been a good-faith attempt to
         recognize the common aspects of religions and not the
         divisive ones, our precedents . . . caution us to measure
         the idea of a civic religion against the central meaning
         of the Religion Clauses of the First Amendment, which is
         that all creeds must be tolerated and none favored. The
         suggestion that government may establish an official or
         civic religion as a means of avoiding the establishment
         of a religion with more specific creeds strikes us as a
         contradiction that cannot be accepted.
    505 U.S. at 589-90 (emphasis added).     Today’s majority opinion
    lacks any attempt to address this authoritative reasoning, which
    seems to be so at odds with its holding.19   However, like boys on
    a summer night blithely whistling as they walk through a graveyard,
    for the panel majority it is not to worry so long as it is brave
    enough to look straight ahead and pretend that authoritative
    precedents are merely ghosts of the past not to be feared.
         Indeed, the majority’s opinion reveals a willful aversion to
    accommodating the respective reasoning of Lee and Clear Creek II.
    See, e.g., ante at 35 (finding that the district court judge
    “clearly err[ed]” in defining nonsectarian to include reference to
    “specific deities” when Clear Creek II, 977 F.2d at 967, upheld a
    policy under which students may “employ the name of any deity”);
    ante at 26 (relying on another circuit’s case that expressly
    disagreed with our own Clear Creek II precedent, and doing so in
    the midst of explaining why the reasoning of Clear Creek II could
         Baffling indeed is the majority’s “cf.” citation, ante at 24,
    to pages 588-90 of Lee.     In those pages, the Court explicitly
    rejects the idea that the nonsectarian nature of a prayer mitigates
    any Establishment Clause problems.
    not possibly rest on the fact that the policy created a limited
    public forum); ante at 32 n.11 (describing Clear Creek II as a case
    taking our First Amendment jurisprudence one step closer to the
    brink   of   a    cliff);   ante   at    18    (feigning    “obeisance    to   the
    ineluctable precedent of Clear Creek II”).                  To avoid the real
    issues presented in this case, the majority must paper over the
    unmistakable language in cases like Lee and Engel.                   It is beyond
    argument,        however,   that    the        Supreme     Court’s     consistent
    interpretation of the Establishment Clause allows no exception for
    the nonsectarian and nonproselytizing prayer. The Clause prohibits
    the establishment of religion and, as interpreted by the Supreme
    Court, it denies government the ability to favor a composite
    ecumenical religion just as surely as it denies the ability to
    favor some select one of its components. The majority’s contention
    that the words “nonsectarian, nonproselytizing” could somehow save
    an otherwise unconstitutional policy in this case is a regrettable
            And despite any implications in Clear Creek II to the
    contrary. Although we did note in Clear Creek II that having a
    nonsectarian, nonproselytizing requirement might serve to “minimize
    any . . . advancement of religion,” the argument was clearly
    cumulative in nature. See id., 977 F.2d at 967. Furthermore, the
    point was made exclusively in the context of one prong of the Lemon
    test.    See Lemon v. Kurtzman, 
    403 U.S. 602
    , 612-13 (1971).
    Although the Supreme Court has yet specifically to overrule Lemon,
    see Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 
    508 U.S. 384
    , 395 & n.7 (1993), a strict application of the case is of
    doubtful continuing relevance in this context, having been largely
    abandoned in favor of the “coercion” and “endorsement” tests of Lee
    and Allegheny.
         In Lee, for example, the Court struck down the graduation
    prayer policy at issue on the sole basis that it was an
    unconstitutional coercion of participation in a religious exercise.
    See id., 505 U.S. at 599. Two concurrences would have found an
    unconstitutional endorsement as well, see id. at 604-05 (Blackmun,
    J., joined by Stevens & O’Connor, JJ., concurring); id. at 630-31
    (Souter, J., joined by Stevens & O’Connor, JJ., concurring), but
    only three Justices, O’Connor, Stevens, and the since-departed
    Justice Blackmun, bothered to so much as recite the elements of the
    Lemon test.     See id. at 602-03 & n.4.        Even this limited
    acknowledgment was ambivalent, however, as the discussion that
    followed addressed the sole question whether the government
    “‘plac[ed] its official stamp of approval’ on the prayer”--and that
    is just the endorsement test rephrased. See id. at 603 (quoting
    Engel, 370 U.S. at 429). The dissenters in Lee would have found no
    constitutional fault at all based on a historical/coercion approach
    to the problem, see id. at 632-46 (Scalia, J., joined by Rehnquist,
    CJ., and White & Thomas, JJ., dissenting), which prompted Justice
    Scalia to declare that “[t]he Court today demonstrates the
    irrelevance of Lemon by essentially ignoring it . . . and the
    interment of that case may be the one happy byproduct of the
    Court’s otherwise lamentable decision.”     Id. at 644.    See also
    Rosenberger, 515 U.S. at 837-46 (omitting any mention of Lemon
    whatsoever when analyzing an Establishment Clause challenge).
         Even before Lee, however, Lemon had long since been pushed
    into a small corner of the Court’s jurisprudence. In both County
    of Allegheny v. ACLU, 
    492 U.S. 573
     (1989), and Board of Educ. of
    Westside Community Sch. v. Mergens, 
    496 U.S. 226
     (1990), the
    Court’s two most significant Establishment Clause cases leading up
    to Lee, the Lemon test failed to command a majority. As in Lee,
    the primary analysis of each majority, plurality, concurring, and
    dissenting opinion in those cases ultimately turned on the
    principles of endorsement and/or coercion--not on any strict
    application of the Lemon test. See Allegheny, 492 U.S. at 593-94
    (stating that “[w]hether the key word is ‘endorsement,’
    ‘favoritism,’ or ‘promotion,’ the essential principle remains the
    same . . . [t]he Establishment Clause, at the very least, prohibits
    government from appearing to take a position on questions of
    religious belief”); id. at 627 (O’Connor, J., joined in part by
    Brennan & Stevens, JJ., concurring in part and in the judgment)
    (stating that “the endorsement test captures the essential command
    of the Establishment Clause”); id. at 638 (Brennan, J., joined by
    Marshall & Stevens, JJ., concurring in part and dissenting in part)
    (agreeing that the Establishment Clause should be interpreted to
    assure that government neither “signals an endorsement of” nor
    “shows favoritism towards” religion); id. at 650 (Stevens, J.,
    joined by Brennan & Marshall, JJ., concurring in part and
    dissenting in part) (noting that “[w]hether the vice . . . is
    characterized as ‘coercion,’ or ‘endorsement,’ or merely as state
    action with the purpose and effect of providing support for
    specific faiths, it is common ground that . . . symbolic government
    speech ‘respecting an establishment of religion’ may violate the
    Constitution”) (citations omitted); id. at 655-79 (Kennedy, J.,
    joined by Rehnquist, CJ., and White & Scalia, JJ., concurring in
    the judgment in part and dissenting in part) (advancing the
    coercion test); Mergens, 496 U.S. at 250 (finding the Equal Access
    Act, 20 U.S.C. § 4071 et seq., constitutional because “secondary
    students are . . . likely to understand that a school does not
    endorse or support student [religious] speech that it merely
    permits on a nondiscriminatory basis”); id. at 260-61 (Kennedy, J.,
    joined by Scalia, J., concurring in part and in the judgment)
    (finding the Act constitutional on the basis that “[n]othing on the
    face of the Act or in the facts of the case . . . demonstrates that
    enforcement of the statute will result in the coercion of any
    student to participate in a religious activity”); id. at 266
    (Marshall, J., joined by Brennan, J., concurring in the judgment)
    (noting concern for the “appearance of school endorsement” of
    religious views caused by the procedures permitted under the Act);
    id. at 287 (Stevens, J., dissenting) (not reaching the
    constitutional issue, but noting endorsement and coercion
         Finally, Justice Scalia’s assessment of Lee’s effect on Lemon
    has been sanctioned by another (post-Lamb’s Chapel) panel of this
    court. See Doe v. Duncanville Indep. Sch. Dist., 
    994 F.2d 160
    , 166
    n.7 (5th Cir. 1993) (eschewing “Lemon analysis in favor of a more
    case-bound approach” because, although normally “‘it is neither
    [this court’s] object nor [its] place to opine whether the Court’s
    Establishment Clause jurisprudence is good, fair, or useful,’ . .
    . recent indications suggest that the Court agrees with [a
    terminal] assessment of Lemon, essentially ignoring it in Lee in
    favor of the school prayer cases”) (quoting Jones, 977 F.2d at 966,
    and citing to Justice Scalia’s dissent in Lee); see also Bauchman
    v. West High School, 
    132 F.3d 542
    , 551-52 (10th Cir. 1997)
    (“Justice O’Connor’s ‘endorsement test’ is now widely accepted as
    the controlling analytical framework for evaluating Establishment
    Clause claims.”), cert. denied, 
    118 S. Ct. 2370
     (1998); but see
         Furthermore,    the      inclusion    of   a        “nonsectarian,
    nonproselytizing”   content   limitation   offends   a     particularly
    longstanding and independent constitutional doctrine upon which the
    Clear Creek II decision must and does rely: the principle of
    neutral accommodation.
         In Everson, Justice Black expressly noted that the courts must
    “be sure that [they] do not inadvertently prohibit [government]
    from extending its general . . . benefits to all . . . citizens
    Helms v. Picard, 
    151 F.3d 347
    , 362 (5th Cir. 1998) (“[T]he Supreme
    Court has not abandoned, nor even fundamentally changed, the Lemon
    test.”), amended No. 97-30231, 
    1999 WL 11488
     (Jan. 13, 1999).
         Even if the Supreme Court has not yet effectively abandoned
    the Lemon test, the majority’s insistence that schools bar
    sectarian and proselytizing prayers would surely fail Lemon’s
    excessive entanglement test. Compare, Ingebretsen v. Jackson Pub.
    Sch. Dist., 88 F.3d at 279 (to the extent that a statute requires
    school officials to review the content of prayers to ensure that
    they meet nonsectarian and nonproselytizing requirements, that
    statute excessively entangles government with religion); Lee, 505
    U.S. at 617 (Souter, J., concurring) (describing as “undefinable”
    the point at which a state-approved, ecumenical prayer becomes so
    closely identified with the sacred text of a specific religion that
    a breach of the Establishment Clause has occurred); and Widmar v.
    454 U.S. 263
    , 272 n.11 (1981) (finding that a university
    would entangle itself with religion by attempting to exclude
    “religious speech” because enforcing that exclusion would require
    officials to distinguish between religious and nonreligious
    speech); with Clear Creek II, 977 F.2d at 968 (stating that “we
    know of no authority that holds yearly review of unsolicited
    material for sectarianism and proselytization to constitute
    excessive entanglement”).
    without regard to their religious belief” by being overzealous in
    their enforcement of the Establishment Clause.       330 U.S. at 16.
    This concern was explicated with some eloquence by Justice Douglas
    in the following case of Zorach v. Clauson, 
    343 U.S. 306
         We are a religious people whose institutions presuppose
         a Supreme Being. We guarantee the freedom to worship as
         one chooses.    We make room for as wide a variety of
         beliefs and creeds as the spiritual needs of man deem
         necessary.    We sponsor an attitude on the part of
         government that shows no partiality to any one group and
         that lets each flourish according to the zeal of its
         adherents and the appeal of its dogma.          When the
         state . . . cooperates with religious authorities by
         adjusting the schedule of public events to sectarian
         needs, it follows the best of our traditions. For it
         then respects the religious nature of our people and
         accommodates the public service to their spiritual needs.
         To hold that it may not would be to find in the
         Constitution a requirement that the government show a
         callous indifference to religious groups. That would be
         preferring those who believe in no religion over those
         who do believe. Government may not finance religious
         groups nor undertake religious instruction nor blend
         secular and sectarian education nor use secular
         institutions to force one or some religion on any person.
         But we find no constitutional requirement which makes it
         necessary for government to be hostile to religion and to
         throw its weight against efforts to widen the effective
         scope of religious influence.
    343 U.S. at 313-14; see also Committee for Public Educ. & Religious
    Liberty v. Nyquist, 
    413 U.S. 756
    , 792-93 (1973) (stating that “[a]
    proper respect for both the Free Exercise and the Establishment
    Clauses compels the State to pursue a course of neutrality toward
    religion”);   Wallace   v.   Jaffree,   
    472 U.S. 38
    ,   60   (1985)
    (interpreting the Clause, similarly, as requiring government to
    “pursue a course of complete neutrality toward religion”).
          Adapting      this   “neutral      accommodation”           principle        to   the
    scholastic setting, in Widmar v. Vincent, 
    454 U.S. 263
    , 273-74
    (1981),   the    Court     held   that    it    was   not    a    violation        of   the
    Establishment Clause for a public university to allow a religious
    student group to take advantage of the university’s general policy
    of allowing registered student groups to use university facilities
    for their meetings on a neutral and nondiscriminatory basis.
    Reasoning that the university had created a designated public forum
    by   making   the     facilities      “generally      open    for      use    by   student
    groups,” the Court clarified that, in general, “an open forum in a
    public university does not confer any imprimatur of state approval
    on religious sects or practices” that make use of the forum.                            Id.
    at 267, 274.
          Following up on Widmar, in 1984, Congress enacted the Equal
    Access    Act,   20    U.S.C.     §   4071   et    seq.,     to   make       the   neutral
    accommodation       principle     expressly       applicable      to    the    secondary
    public schools.         Upholding the Act as constitutional under the
    Establishment Clause, the Court noted in Mergens that:
          [T]here is a crucial distinction between government
          speech endorsing religion, which the Establishment Clause
          forbids, and private speech endorsing religion, which the
          Free Speech and Free Exercise Clauses protect. We think
          that secondary school students are mature enough and are
          likely to understand that a school does not endorse or
         support [religious] student speech that it merely permits
         on a nondiscriminatory basis.      The proposition that
         schools do not endorse everything they fail to censor is
         not complicated.
    496 U.S. at 250 (citations omitted).          The majority fails to
    appreciate this “crucial distinction” between government speech
    endorsing religion and private speech endorsing religion when it
    reads Clear Creek II as requiring school policies to adopt the
    nonsectarian, nonproselytizing requirements.
         This distinction was not lost on the Clear Creek II panel.
    Clear Creek II is indeed a case about neutral accommodation, and
    relies    on   a   central   principle   of   Establishment   Clause
    jurisprudence.21   In upholding the policy under consideration in
          This principle of neutral accommodation is fully consistent
    with and anticipated by Lee, see id., 505 U.S. at 598-99 (“We
    recognize that, at graduation time and throughout the course of the
    educational process, there will be instances when religious values,
    religious practices, and religious persons will have some
    interaction with the public schools and their students.”) (citing
    Mergens); id. at 630 n.8 (Souter, J., joined by Stevens & O’Connor,
    JJ., concurring) (“If the State had chosen its graduation day
    speakers according to wholly secular criteria, and if one of those
    speakers (not a state actor) had individually chosen to deliver a
    religious message, it would have been harder to attribute an
    endorsement to the State.”), and has been both sustained and
    augmented by the Court’s more recent cases.             See, e.g.,
    Rosenberger, 515 U.S. at 842 (stating, once again, that “[i]t does
    not violate the Establishment Clause for a public university to
    grant access to its facilities on a religion-neutral basis to a
    wide spectrum of student groups, including groups which use meeting
    rooms for sectarian activities”); Capitol Square Review and
    Advisory Board v. Pinette, 
    515 U.S. 753
    , 766 (1995) (plurality)
    (“Religious expression cannot violate the Establishment Clause
    Clear Creek II, we expressly noted that, “unlike the policy at
    issue in Lee, [the Clear Creek II policy] does not mandate a
    prayer.”   977 F.2d at 968.    Although conceding that the policy
    allows for “supplications to a deity,” we clarified that it also
    “permits invocations free of all religious content.”     Id. at 969.22
    Relying expressly on Mergens’s proposition that “there is a crucial
    difference between government speech endorsing religion, which the
    Establishment   Clause   forbids,   and   private   speech   endorsing
    religion, which the Free Speech and Free Exercise Clauses protect,”
    we concluded that the policy was an essentially neutral directive
    where it (1) is purely private and (2) occurs in a traditional or
    designated public forum, publicly announced and open to all on
    equal terms.”); Board of Education v. Grumet, 
    512 U.S. 687
    , 696
    (1994) (“‘A proper respect for both the Free Exercise and the
    Establishment Clauses compels the State to pursue a course of
    neutrality toward religion,’ favoring neither one religion over
    others nor religious adherents collectively over nonadherents.”)
    (quoting Nyquist, 413 U.S. at 792-93); Zobrest v. Catalina
    Foothills Sch. Dist., 
    509 U.S. 1
    , 8 (1993) (noting that “government
    programs that neutrally provide benefits to a broad class of
    citizens defined without reference to religion are not readily
    subject to an Establishment Clause challenge,” for, if the reverse
    were true, “then ‘a church could not be protected by the police and
    fire departments, or have its public sidewalk kept in repair’”)
    (quoting Widmar, 454 U.S. at 274-75).
           On this point, it is important to note that Clear Creek II
    clearly   rests   on  an   interpretation   of   “invocation”   and
    “benediction” that is itself free of all religious content. Clear
    Creek II, 977 F.2d at 969.      This fact goes some way towards
    distinguishing the result in Clear Creek II from the contrary
    decision of the Third Circuit in ACLU v. Black Horse Pike Reg’l Bd.
    of Educ., 
    84 F.3d 1471
     (3d Cir. 1996) (en banc), where the
    challenged policy provided for a student-elected, student-given,
    “invocation and benediction prayer.” Id. at 1475 (emphasis added).
    of accommodation for private religious and other speech that
    neither favored nor disfavored religion on its face, and was
    therefore not unconstitutional.       Id.
         Because it is clear that Clear Creek II relies on Mergens’s
    neutral accommodation principle to escape the proscriptive effect
    of Lee, we need only apply that principle to the facts before us.
         We have expressly stated that for the Constitution to require
    neutral accommodation of religious speech, the government must have
    established at least what has been called a “limited public forum.”
    Duncanville, 994 F.2d 164-65.23        As the majority points out, a
    “limited public forum” is one of several types of fora recognized
    by the Supreme Court.      The other categories of fora include
    traditional public, designated public, and nonpublic fora.        The
    majority errs, however, by failing to understand the difference
    between a “designated public forum” and a “limited public forum.”
    The government creates a designated public forum when it “has
    intentionally designated a place or means of communication as a
    public forum.”   Cornelius, 473 U.S. at 800.   A subset of designated
    public fora is the “limited public forum.”     Such a forum is created
          But see Lamb’s Chapel, 508 U.S. at 392-93 (suggesting, prior
    to our decision in Duncanville, that even in a nonpublic forum, the
    neutral accommodation principle applies).
    when the government limits the purpose of the forum by, for
    example, placing a limitation on use by certain groups or on the
    discussion of certain subjects.             Perry, 460 U.S. at 45 n.7; Brody
    v. Spang, 
    957 F.2d 1108
    , 1118 (3d Cir. 1992) (describing a limited
    public   forum    as     “a    subset     type    of    forum,   whose   scope    is
    circumscribed either by subject matter or category of speaker”);
    Travis v. Owego-Apalachin School Dist., 
    927 F.2d 688
    , 692 (2d Cir.
    1991) (describing a limited public forum as a sub-category of the
    designated forum that the government creates when it opens a
    nonpublic forum but limits the expressive activity to certain kinds
    of speakers or to the discussion of certain subjects).
         SFISD’s policy only limits the benedictions or invocations by
    limiting the potential class of speakers to graduating students.
    Contrary to the majority’s assertion, the policy in this facial
    challenge does not require that the messages have a religious
    component.       Neither      the   dictionary      definitions    cited   by    the
    majority,    ante      at     30,   nor   our     own   precedents   require     an
    interpretation      of      “invocation”     or    “benediction”     grounded     in
    religion.    See Clear Creek II, 977 F.2d at 969 (interpreting the
    terms “invocation” and “benediction” in a way that is free from all
    religious content).           Furthermore, SFISD’s policy grants absolute
    access to the graduation podium to any student speaker that the
    senior class elects; once the class of elected student speakers is
    chosen, SFISD maintains no power, discretionary or otherwise, to
    bar any duly chosen speaker from accomplishing his task.                      Because
    the policy effectuates this relinquishment of control, the policy
    unmistakably creates a limited public forum and the majority cannot
    make it otherwise.
           In arguing that SFISD has not created a “true” forum, the
    majority states its ex cathedra view that a graduation ceremony is
    not an appropriate place for communication of views on issues of
    political and social significance.                 Ante at 29.    Historical facts,
    of course, contradict the majority’s view.                        While graduation
    ceremonies do not often exhibit “duelling presentations,” they
    almost always include speakers attempting to impart wisdom and
    reflect      on    life’s     higher   (that     is,   morally    superior)    goals.
    Furthermore, graduation ceremonies often play host to controversial
    public figures.          See, e.g., Lydia Lum, Commencement Time Begins as
    Politicians Head List of Speakers, HOUSTON CHRONICLE, May 4, 1998, at
    16 (stating that “commencement speakers . . . vary from year to
    year, but         1998   apparently     is   the    Year   of    the   Politician.”).
    Finally, our country’s public schools have, of course, a long
    tradition of hosting religious prayers at graduation ceremonies.
    Lee,   505    U.S.       at   635-36   (Scalia,     J.,    dissenting).       In   sum,
    graduation ceremonies have often presented a forum for expressing
    the most profound of thoughts on society, politics, religion, and
    the nature of humankind.24
         Besides its failure to properly distinguish between designated
    and limited public fora, the majority further errs by applying
    precedent that is inapplicable to the case at hand.   The cases upon
    which the majority relies for guidance in its forum analysis--
         The majority cites only one case in support of its rigid view
    that a graduation ceremony (or portions thereof) could not
    constitute a public forum. In its citation of, and quotation from,
    that case the majority takes more liberties than should be
    allowable. In quoting Brody v. Spang, the majority panhandles a
    remote district court’s musings as Third Circuit law without proper
    attribution. The quotation reads,
         Graduation ceremonies have never served as forums for
         public debate or discussions, or as a forum through which
         to allow varying groups to voice their views.
    Ante at 29 (quoting Brody v. Spang, 
    957 F.2d 1108
    , 1119-20 (3d Cir.
    1992) (quoting Lundberg v. West Monona Community Sch. Dist., 731 F.
    Supp. 331 (N.D. Iowa 1989))). But the Brody court did not indicate
    any agreement in quoting the Iowa district court. In fact, the
    Brody court followed its discussion of Lundberg with the following
         Nonetheless,   it  is   certainly   possible  that   the
         commencement exercises at Downingtown Senior High School
         could qualify as a public forum, and nothing in the
         present   record    demonstrates   otherwise.       More
         specifically, although the terms of the consent decree
         [at issue in this case] suggest that the pool of
         potential graduation speakers is confined to members of
         the school community and invited guests, this simply
         indicates that any forum created is a limited one, and
         does not preclude a finding that the ceremony has been
         designated as a public forum.
    Brody, 957 F.2d at 1120 (citing Hazelwood Sch. Dist. v. Kuhlmeier,
    484 U.S. 260
    , 267 (1988)).
    Cornelius, Perry, Forbes, Estiverne, Muir and Hobbs--all dealt with
    “as-applied”    challenges     in   which   the   defendants    (governmental
    entities) applied their policies to bar forum access to those
    wishing   to   express   the   ideas   that   the    plaintiffs    sought   to
    communicate. Here, in this facial challenge, SFISD has not applied
    its policy to bar anyone or any expression.            Instead, its policy
    invites expression, restricted only by time, place, and manner.
         Here, we address a facial challenge to a policy under which
    the school district argues that it has indeed established a public
    forum.    A facial challenge requires that we must not condemn the
    policy unless there is no way to implement it in a constitutional
    manner.    Clear Creek II, 977 F.2d at 969; cf. United States v.
    481 U.S. 739
    , 745 (1987) (“A facial challenge to a
    legislative Act is, of course, the most difficult challenge to
    mount successfully, since the challenger must establish that no set
    of circumstances exists under which the Act would be valid.”); see
    also Doe v. Madison Sch. Dist. No. 321, 
    147 F.3d 832
    , 836 & n.6
    (9th Cir. 1998) (refusing to view a school district’s intentions
    skeptically when analyzing a facial challenge to a graduation
    policy). The difference between facial challenges and “as-applied”
    challenges is critically important, and yet the majority has
    erroneously decided to treat them identically.                 This error, in
    turn, causes the majority to stumble through the inappropriate
    process of applying forum tests and factors wholly inapplicable in
    the context of this appeal.     See, e.g., ante at 28 (attempting to
    apply the factor of “governmental intent,” but then stating that
    (in this facial challenge) “the government’s proffered intent does
    not govern this inquiry”); ante at 30-31 (analyzing the “extent of
    the   use   granted”   factor   when    the   policy   has   never   been
          But the SFISD policy clearly survives a facial challenge.
    When a policy creating a forum places no barriers other than
    reasonable time, place, and manner restrictions on the speech, that
    policy creates a public forum.26        As already stated, the SFISD
    policy only limits the class of potential speakers to graduating
    students; this lone restriction merely requires us to characterize
    the forum as a “limited” public forum.
            As these citations reveal, the majority applies factors
    designed for use in analyzing “as-applied” challenges to government
    restrictions on speech when the plaintiff has brought a facial
    challenge to a policy not yet implemented.
           See, e.g., Ward v. Rock Against Racism, 
    491 U.S. 781
    , 791
    (1989) (“[E]ven in a public forum the government may impose
    reasonable restrictions on the time, place, or manner of protected
    speech, provided [that] the restrictions ‘are justified without
    reference to the content of the regulated speech, that they are
    narrowly tailored to serve a significant governmental interest, and
    that they leave open ample alternative channels for communication
    of the information.’”) (quoting Clark v. Community for Creative
    468 U.S. 288
    , 293 (1984)).
         Even if the SFISD policy did not create a limited public
    forum, the majority’s decision to accept ecumenical prayers while
    barring other prayers contradicts established First Amendment law.
    Once the government creates a forum--whether a traditional public
    forum, a limited public forum, or even a nonpublic forum--and lets
    in some religious viewpoint, the government may not then exclude
    any other religious viewpoint. In other words, the government must
    neutrally   accommodate   all    religious   viewpoints   once   any   one
    religious viewpoint (e.g., an ecumenical viewpoint) has entered the
         This result is dictated by the Supreme Court’s consistent rule
    that even in nonpublic fora, the government may not engage in
    viewpoint discrimination.       See Perry, 460 U.S. at 46 (government
    may not discriminate based on viewpoint in even a nonpublic forum);
    Cornelius, 473 U.S. at 806 (“Control over access to a nonpublic
    forum can be based on subject matter and speaker identity so long
    as the distinctions drawn are reasonable in light of the purpose
    served by the forum and are viewpoint neutral.”) (emphasis added
    and citation omitted); Hobbs v. Hawkins, 
    968 F.2d 471
    , 481 (5th
    Cir. 1992) (“viewpoint discrimination violates the First Amendment
    regardless of the forum’s classification”).       Of utmost importance
    to the instant case, the Supreme Court has applied this hard and
    fast rule in the realm of religious speech.           In the midst of
    chastising a school district’s decision to exclude a religious
    group from using school premises solely because of the group’s
    religious viewpoint, the Supreme Court stated that
           denial on that basis was plainly invalid under our
           holding in Cornelius that although a speaker may be
           excluded from a non-public forum if he wishes to address
           a topic not encompassed within the purpose of the
           forum . . . or if he is not a member of the class of
           speakers for whose especial benefit the forum was
           created . . . , the government violates the First
           Amendment when it denies access to a speaker solely to
           suppress the point of view he espouses on an otherwise
           includible subject.
    Lamb’s Chapel, 508 U.S. at 394 (quotation marks and citations
    omitted; placement of ellipses in original).          It is not surprising
    that   the   Supreme   Court   has   applied   this   prohibition   against
    viewpoint restriction to religious speech. The Court has stated in
    graphic and certain terms that the First Amendment’s Free Speech
    Clause fully applies to religious speech:
           Our precedent establishes that private religious speech,
           far from being a First Amendment orphan, is as fully
           protected under the Free Speech Clause as secular private
           religion. Indeed, in Anglo-American history, at least,
           government suppression of speech has so commonly been
           directed precisely at religious speech that a free-speech
           clause without religion would be Hamlet without the
           prince. Accordingly, we have not excluded from free-
           speech protections religious proselytizing, or even acts
           of worship.
    Pinette, 515 U.S. at 760 (citations omitted).
           In sum, even if we assume that the graduation policy creates
    only a nonpublic forum, the government may place some reasonable
    restrictions on the speech but it most assuredly cannot restrict
    speech because of its viewpoint.      Thus, the majority creates a
    subset of constitutional violations when it allows the school
    district to create a forum where students can offer ecumenical
    prayers, but not the prayers of any other religion.27   See American
    Civil Liberties Union v. Black Horse Pike Reg’l Bd. of Ed., 
    84 F.3d 1471
    , 1492 (3d Cir. 1996) (Mansmann, J., dissenting) (contrasting
    the Clear Creek II policy with another policy that “is more liberal
    in that it extends the scope of its toleration to include even
    sectarian prayer, if the graduates so choose,” and concluding that
    the latter policy “comports with the First Amendment’s prohibition
    against the inhibition of the practice of religion or of free
    expression”).   Whatever criticisms one may make of the reasoning
              Lamb’s Chapel and Pinette positively suggest that a
    “nonsectarian, nonproselytizing” content limitation is itself
    unconstitutional in this setting. See Lamb’s Chapel, 508 U.S. at
    394 (noting that “‘government violates the First Amendment when it
    denies access to a speaker solely to suppress the point of view he
    espouses,’” and holding that a requirement of no religious content
    constitutes such an impermissible viewpoint restriction) (quoting
    Cornelius, 473 U.S. at 806); Pinette, 515 U.S. at 766 (stating that
    “giving sectarian religious speech preferential access to a forum
    . . . would violate the . . . Free Speech Clause, since it would
    involve a content limitation,” and thereby implying that the
    reverse would also be true). Although Clear Creek II clearly held
    that a “nonsectarian, nonproselytizing” content limitation was
    constitutionally permissible in the context of a limited public
    forum, see Clear Creek II, 977 F.2d at 967 & 971, Lamb’s Chapel and
    Pinette are subsequent decisions of the Supreme Court, so it would
    appear that this holding has been overruled.
    in Clear Creek II,28 there can be no contention that a content
    limitation would in any way improve the situation. It is therefore
    clear to me that the district court erred in requiring SFISD to
    incorporate these additional restrictions into their policy.
         Now we come to the remarkable holding of the majority that,
    for the most curious reasons, the First Amendment allows speech at
    graduation ceremonies but bars speech at sporting events.                     In
    short, there is a total absence of merit to the contention that the
    Football         Policy   might   be   constitutionally   deficient   when   the
    graduation policy is not.29            As I have tried to explain, the reason
              Although the question is not before us, courts and
    commentators have criticized the idea that an elected class could
    qualify either as “religion neutral” or even as a proper class for
    public forum and Mergens purposes. See, e.g., Doe v. Madison Sch.
    Dist. No. 321, 
    147 F.3d 832
    , 834 n.7 (9th Cir. 1998) (finding
    selection by grade point a superior method in this regard); Black
    Horse, 84 F.3d at 1477-78; Recent Case, 110 Harv. L. Rev. 781, 783-
    84 (1997); Rick A. Swanson, Time for a Change: Analyzing Graduation
    Invocations and Benedictions under Religiously Neutral Principles
    of the Public Forum, 26 U. Mem. L. Rev. 1405, 1422-25, 1432-33 &
    n.95 (1996); cf. Widmar, 454 U.S. at 275 (making explicit exception
    for the situation where “empirical evidence [shows] that religious
    groups will dominate the forum”); Pinette, 515 U.S. at 766 (noting
    that “one can conceive of a[n unconstitutional] case in which the
    governmental entity manipulates its administration of the public
    forum in such a manner that only certain religious groups take
    advantage of it”); Clear Creek II, 977 F.2d at 969 (stating that
    “[w]e can imagine discriminatory methods of implementing the
    [policy] that would make it a tool for governmental endorsement of
              The Football Policy states:
    a Clear Creek II policy works is that it neutrally accommodates
    both religious and nonreligious speech in a limited public forum.
    Constitutionally   speaking,   there   are   no   location   or   other
    restrictions on where the state may elect to create its designated
    or limited public fora, see Estiverne, 863 F.2d at 376.      It follows
    therefore that if the school policy at issue facially creates a
    limited public forum, that policy (here, the Football Policy)
    necessarily passes constitutional muster to allow the designated
    class of speakers to engage in both religious and non-religious
         The board has chosen to permit students to deliver a
         brief invocation and/or message to be delivered during
         the pre-game ceremonies of home varsity football games to
         solemnize the event, to promote good sportsmanship and
         student safety, and to establish the appropriate
         environment for the competition.
         Upon advice and direction of the high school principal,
         each spring, the high school student council shall
         conduct an election, by the high school student body, by
         secret ballot, to determine whether such a statement or
         invocation will be a part of the pre-game ceremonies and
         if so, shall elect a student, from a list of student
         volunteers, to deliver the statement or invocation. The
         student volunteer who is selected by his or her
         classmates may decide what message and/or invocation to
         deliver, consistent with the goals and purposes of this
    Like the graduation policy, the Football Policy contains a fallback
    provision that goes into effect if a court enjoins the enforcement
    of the primary policy provisions. If this occurs, the policy goes
    into effect with the following sentence added to the last
         Any message and/or invocation delivered by a student must
         be nonsectarian and nonproselytizing.
    speech.     But see Jager v. Douglas County Sch. Dist., 
    862 F.2d 824
    (11th Cir. 1989) (finding “equal access” policy for football game
    invocations unconstitutional, but without reference to public forum
    analysis and in the apparent assumption that the “invocations” at
    issue were certain to be religious in content).
         On the other hand, the majority, which apparently feels
    measurable discomfort with our precedent, takes the Football Policy
    as an opportunity to break free from the constraints of Clear Creek
    II, and argues that, unlike graduation ceremonies, football games
    lack solemnity, which, the majority concludes, undermines any
    legitimate reasons for the policy’s application to such sporting
    events.30      It may well be headline news to the majority, but a
    “solemn” ceremony is not the only occasion when many citizens feel
    the need for serious thoughts and words. Of course, football games
    do not possess the solemnity of a graduation ceremony.          But that
    fact has all the relevance to our First Amendment discussion today
    as the fact that a hog was slaughtered to make SFISD’s football.
    There are in fact several secular reasons for allowing a brief,
    serious message before football games--some of which SFISD has
    listed    in   its   policy.   At   sporting   events,   messages   and/or
             The majority also claims to find support in Doe v.
    Duncanville Indep. Sch. Dist., 
    70 F.3d 402
     (5th Cir. 1995), for
    striking the Football Policy.    But Duncanville was an entirely
    different case, involving private prayers among team members--not
    “public” prayers or messages in any sense.
    invocations can promote, among other things, honest and fair play,
    clean   competition,   individual       challenge   to   be   one’s   best,
    importance of team work, and many more goals that the majority
    could conceive would it only pause to do so.
         Having again relinquished all editorial control, SFISD has
    created a limited public forum for the students to give brief
    statements or prayers concerning the value of those goals and the
    methods for achieving them. As with the graduation messages, there
    will be no “dueling debates.”       But make no mistake, whatever the
    subject--whether it be sportsmanship, the value of winning, the
    importance of safety, etc.--students will have different views on
    the subjects to be expressed.           Because the SFISD policy does
    nothing to discriminate based on viewpoint, and certainly does not
    direct any particular viewpoint (religious or secular), the primary
    SFISD Football Policy does not violate the First Amendment.
         Our   court’s     dalliance     in    prayer-writing      will    not,
    unfortunately, end with this case.          Now that we have required
    prayers to be nonsectarian and nonproselytizing in content, we
    undoubtedly will have to give definition to those terms.         This will
    prove no easy task.    In Lee, the rabbi’s benediction read in part:
         The graduates now need strength and guidance for the
         future, help them to understand that we are not complete
         with academic knowledge alone. We must each strive to
         fulfill what You require of us all: To do justly, to love
         mercy, to walk humbly.
    As Justice Blackmun pointed out, the last sentence of this excerpt
    includes a direct quotation of Judeo-Christian scripture.31                            Lee,
    505 U.S. at 604, n.5 (Blackmun, J., concurring). Because the Court
    refused to find that the nonsectarian nature of a prayer could save
    it from Establishment Clause scrutiny, the Court did not need to
    decide            whether    this   oration    qualifies       as     nonsectarian      or
    nonproselytizing.              Our court will have to decide such issues.32              If
    the prayer calls upon “Father” instead of “God,” will we intervene?
    (Must        the       invocation   be   gender-neutral?)            See   Chaudhuri     v.
    130 F.3d 232
    , 241 n.2 (6th Cir. 1997) (Jones, J.,
    concurring             and   dissenting)    (noting     that   the    supplication      to
    “‘Heavenly Father’ contains a package of religious bias”), cert.
    118 S. Ct. 1808
     (1998). If a student begins his benediction
    message           by   saying,   “Blessed     be   He   who    decked      the   sky   with
    constellations and set in it a lamp and a shining moon”33 will we
           The quote is from the Book of the Prophet Micah, ch. 6, v.
    8 (“He has showed you, O man, what is good. And what does the Lord
    require of you? To act justly and to love mercy and to walk humbly
    with your God.”).
            Cf. Rosenberger, 515 U.S. at 835 (“The first danger to
    liberty lies in granting the State the power to examine
    publications to determine whether or not they are based on some
    ultimate idea and, if so, for the State to classify them.”).
            The Koran, Al-Furqan 25:63, at 256 (N.J. Dawood trans.,
    Penguin Books 1997).
    characterize this direct quotation of the Koran as sectarian and
    proselytizing?      Our court’s evolving prayer control will fashion
    the standard utterance at high school graduations throughout our
    Circuit: as students grope for a lawful way to express their most
    deeply held beliefs, on one of the most ceremonious days in their
    young   lives,    they    will    offer    up   the    Fifth   Circuit      Court    of
    Appeals’s prayer.
         The majority fails to realize that what is at issue in this
    facial challenge to this school policy is the neutral accommodation
    of non-coerced, private, religious speech, which allows students,
    selected by students, to express their personal viewpoints.                         The
    state is not involved.            The school board has neither scripted,
    supervised,      endorsed,       suggested,     nor     edited      these   personal
    viewpoints.       Yet    the    majority   imposes      a   judicial    curse   upon
    sectarian religious speech.          Because I believe that this result is
    at   war   with    three       clauses    within      the   First     Amendment,      I
    respectfully dissent.