9th Circuit: Native American Student's Suit Over Wearing Eagle Feather at Graduation Should Move Ahead

 In Waln v. Dysart School District, (9th Cir., Dec. 9, 2022), the U.S. 9th Circuit Court of Appeals held that a free speech and free exercise suit against an Arizona school district should not have been dismissed by the district court.  The school district refused to allow a Native American student to wear an eagle feather in her cap during graduation ceremonies. Wearing the eagle feather, which had been blessed and is considered a sacred object, was a religious practice. Sustaining plaintiff's Free Exercise claim, a majority of the court said in part:

Plaintiff has carried her burden, at the motion-to-dismiss stage, to show that the District’s policy [prohibiting decoration of graduation caps] is not generally applicable because it was enforced in a selective manner.

The court also held that plaintiff should be able to move ahead on her free speech claim, saying in part:

Here, the complaint plausibly alleges that the District enforced its facially neutral policy in a selective way.

The majority rejected the school district's contention that it had a compelling interest in complying with the Establishment Clause. 

Judge Baker filed an opinion dissenting in part, contending that plaintiff had not adequately alleged that the school district selectively enforced its policy against decorating graduation caps. However, he believed that the district court erred in not permitting plaintiff to amend her complaint to provide more factual content.

School's Refusal To Allow Modified Graduation Cap Upheld

In Waln v. Dysart School District, 2021 U.S. Dist. LEXIS 38345 (D AZ, Feb. 28, 2021), an Arizona federal district court rejected free exercise, free speech and equal protection challenges to a school district's refusal to allow a graduating senior to wear a decorated cap at graduation ceremonies.  The student was a member of the Sioux tribe and for cultural and religious reasons wanted to wear a beaded cap adorned with an eagle feather. The school district allowed Native American students to wear in their hair, or as a necklace or jewelry, but did not permit altered commencement caps. The court said in part:

[A]dopting an appearance of neutrality with regard to religion or cultural viewpoints, and the avoidance of controversy, have been deemed reasonable bases for subject-matter limitations, such as limitations on religious expression, on a student's free speech rights.... In this matter, all expressive speech, including but not limited to religious speech, was prohibited by the dress code blanketly prohibiting the augmentation of graduation caps, and the restriction was reasonable and related to the purpose of the forum. And, most notably, the prohibition of any adornment of any kind on a student's graduation cap during the commencement ceremonies was content-neutral.

School Graduation In Christian Chapel Violates Establishment Clause

In American Humanist Association v. Greenville County School District, (D SC, Dec. 12, 2017), in a case on remand from the 4th Circuit (see prior posting), a South Carolina federal district court held that a South Carolina school district's practice of holding elementary school graduation ceremonies in the Christian Chapel of a local university violates the Establishment Clause. The court awarded plaintiffs $1 in nominal damages. The court said in part:

... [T]his ruling is limited to the specific facts of this case and should not be construed as a bright line rule regarding a school district’s use of a church-owned facility.... The fact that the district chose to hold the ceremony (which included school-endorsed Christian prayers) in a clearly Christian place of worship in the presence of religious iconography, including, among other things, a cross on the podium and eight stained glass windows depicting Christian imagery, only further created a likelihood that observers would perceive the district as endorsing a particular set of religious beliefs. There has been no showing that the chapel was the only available venue for the graduation ceremony, and in view of the overall circumstances of the event, there can be no doubt that the setting in which the ceremony occurred conveyed a message of religious endorsement and created a likelihood that the school-aged children would perceive a link between church and state.

 In a prior opinion in the case, the court had concluded student-led prayer at the school's past graduation ceremonies was unconstitutional.  In this case, the court held that the organizational plaintiff has standing to challenge the school's revised prayer policy as it is being applied.  Plaintiffs claim that as implemented, the revised policy merely continues past practices.  The court ordered the parties to attempt mediation before proceeding further. American Humanist Association issued a press release announcing the opinion.

Organization Announces Campaign To Promote Graduation Prayer

Liberty Counsel this week announced its annual "Friend or Foe Graduation Prayer Campaign," saying in part:

Liberty Counsel will educate and, if necessary, litigate to ensure that prayer and religious views are not suppressed during graduation ceremonies across the Nation.

Liberty Counsel is making available red prayer wristbands which students can wear as a reminder to pray at graduation and all throughout the school year.... Students have the constitutional right to wear religious jewelry and to pray during noninstructional times while at school. Liberty Counsel also has a free legal memo on graduation prayer.

4th Circuit Revives Some Claims In Challenge To School District's Graduation Practices

American Humanist Association v. Greenville County School District, (4th Cir., June 21, 2016), is a challenge to the graduation ceremony prayer policy of the Greenville County, South Carolina school district, as well as to its practice of holding some graduation ceremonies at a religious chapel on a local college campus.  In a largely procedural ruling, the U.S. 4th Circuit Court of Appeals vacated in part the district court's dismissal of the case.  On the challenge to graduation prayer, the court held that because the individual plaintiffs named in the lawsuit had moved out of state while the appeal was pending so their children no longer attended school in the district, the suit was moot as to them.  However it remanded for further discovery to determine whether the organizational plaintiff, American Humanist Association, continues to have standing because of the interests of other of its members.

The appeals court agreed with the district court that the claim for injunctive relief to bar holding of future graduation ceremonies in religious venues should be dismissed because while the case was still pending in district court plaintiffs moved within the district to schools that had never used religious venues for school events.  However the appeals court held that plaintiffs continued to have standing to pursue their claim for nominal damages because of past use of the religious chapel for graduation. American Humanist Association issued a press release announcing the decision. (See prior related posting.) Greenville News reports on the decision.

Students Re-Insert Prayer At Graduation Ceremony

Christian Post reported yesterday that graduating high school students in East Liverpool, Ohio took matters into their own hands after the school board ended the 70-year old tradition of the choir singing the Lord's Prayer at commencement ceremonies.  The class valedictorian Jonathan Montgomery invited all the graduates to stand and recite the prayer.  They did so to a roar of applause from the audience in attendance.  The school board's decision came after a complaint about prayer at graduation from the Freedom From Religion Foundation. School Board president Larry Walton said that the "decision [was] made because we don't have a lot of money and we'd rather hire teachers than pay lawyers." He added:

When I was first on this board I expressed a concern about us singing. The comment made was that "we know we are breaking the law, we will do it until we get caught." Well, ladies and gentlemen we got caught. … I'm sorry this happened, but it's a war we can't win.

4th Circuit Hears Oral Arguments In Graduation Prayer and Venue Case

On Tuesday, the U.S. 4th Circuit Court of Appeals heard oral arguments in American Humanist Association v. Greenville County School District. (Audio of full oral arguments.) At issue was the graduation ceremony prayer policy of the Greenville County, South Carolina school district, as well as its practice of holding some graduation ceremonies at a religious chapel on a local college campus. (See prior posting.) Greenville News reports on the oral arguments.

Court Rejects Federal Challenges To School Ban On Graduate Wearing Eagle Feather

Having previously denied a preliminary injunction in the case (see prior posting), this week an Oklahoma federal district court dismissed a lawsuit brought by a Native American high school senior challenging a school policy that barred her from wearing an eagle feather on her mortar board tassel at her high school graduation. The feather had been given to her by a tribal elder, and it would be a sign of disrespect not to wear the feather which is sacred according to her religious beliefs. In Griffith v. Caney Valley Public Schools, (ND OK, Jan. 5, 2015), the court rejected plaintiff's free speech claim, concluding that graduation attire is school-sponsored speech, and that the school had a legitimate pedagogical reason for restricting decorations on graduation caps.   It rejected her First Amendment free exercise claim, finding that the regulation is a neutral rule of general applicability.  Finally the court refused to exercise its supplemental jurisdiction to decide plaintiff's claim that the school's restriction violates Oklahoma's Religious Freedom Act.  Plaintiff remains free to refile that claim in state court.

California School District Settles Allowing Native American Graduate To Wear Eagle Feather

California's Clovis Unified School District reached a settlement yesterday with Christian Titman, a Native American high school senior who had filed suit two days earlier to force the school district to allow him to wear  an eagle feather during graduation ceremonies today.  (ACLU press release.) Titman argued that the refusal to allow him to honor his Native American heritage and family in this way violated his free speech and religious exercise rights.  (Full text of complaint in Titman v. Clovis Unified School District, CA Super. Ct., filed 6/1/2015.)  The settlement agreement (full text) provides in part:

Christian Titman will be permitted to ... wear the agreed upon prepared eagle feather ... in his hair during the graduation ceremony; and ... upon receipt of his diploma ... is permitted to adorn his graduation cap with the agreed upon eagle feather, and to participate in the tassel turn with the eagle feather connected to his tassel....

Under the agreement, the school will issue a statement indicating that while it remains committed to its tradition of decorum at graduation, it is also committed to working with students and families on accommodations for sincerely held religious beliefs.

Court Refuses To Allow High School Senior To Wear Eagle Feather On Cap At Graduation

In Griffith v. Caney Valley Public Schools, (ND OK, May 20, 2015), an Oklahoma federal district court adopted a magistrate's recommendaiton (full text) and refused to grant a preliminary injunction to high school student Hayden Griffith who wanted to wear an eagle feather on her mortar board tassel at her high school graduation last night.  The court rejected Griffith's claim that the school district's ban on cap decorations violates her free speech and free exercise rights and her rights under the Oklahoma Religious Freedom Act (ORFA). Discussing the ORFA claim, the court concluded that Griffith had not shown that the policy substantially burdens her free exercise of religion, saying:

[Griffith] testified that wearing the feather shows her respect for God and for the tribal elder who gave the feather to her, but that failing to attach the feather to her cap would not result in any religious detriment to her. Thus, attaching the feather to her graduation cap would be a personal expression of religious significance to Griffith, but it is not a religiously motivated “practice” ... or an activity that is “fundamental” to her religion.... Nor does the policy prohibiting decorations on graduation caps during the ceremony “meaningfully curtail” her ability to express adherence to her faith..... The policy does not prevent Griffith from attaching the feather to her cap at any time other than the graduation ceremony. She may attach it to her cap it up until she enters the graduation ceremony, and she may affix the feather to her cap immediately after the ceremony. The school superintendent also offered to re-pose for the professional photographer with Griffith wearing her feather on her cap after the ceremony. In sum, Griffith may display the feather as she wishes throughout her celebration of her graduation, other than during the graduation ceremony with her fellow classmates.

Tulsa World reported on the decision.

A Graduation Prayer Decision Worth Reading At Length

Constitutional doctrine surrounding the issue of student-led prayer at elementary school graduation is sufficiently well settled that one would expect an opinion on the issue to be rather routine.  Those expectations are upset by the literate opinion handed down Monday by South Carolina federal district court Judge Bruce Howe Hendricks.  American Humanist Association v. South Carolina Department of Education, (D SC, May 18, 2015) involves a challenge to policies of the Greenville County School District.  Initially many schools in the district selected 5th grade students to deliver an opening and closing prayer at graduation ceremonies.  The content of each prayer-- consistently Christian-- was reviewed in advance and approved by school officials.

After suit was filed, the school district admitted the problems with its practices and switched to a neutral policy.  If a student is selected to speak at graduation on the basis of neutral criteria such as class rank or academic merit, the student may decide on the content of the speech, which can be a religious message or prayer or can be a secular inspirational message.  The court issued an injunction against the school district's original policy, but refused to enjoin its more recent neutral approach, saying in part:

To the undersigned there is no more sacred liberty than an individual’s personal view of his or her cosmological origin – divine or chance, intentional or naturally selective. And, cultures have developed various names for the posture we assume in the direction of our creative source, most notably, prayer. But, also meditation and pilgrimage. Namaste. Surfing. Fly fishing. Science. The citizens of this country have the privilege of electing between the innumerable alternatives in religious practice. Our constitution has established but one caveat: “The First Amendment’s Religion Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State.” ...

The Christian community, in certain parts, feels besieged. This sense has two sources. The first is the view that people of faith cannot practice their religion and its tenets as they wish. The second is a genuine compassion for this country -- that it know a redeeming faith. To certain parts of Western Christianity, the lack of prayer in the public sector is not only a symptom of declining religiosity and moralism but is, in part, the cause itself.

In contrast, those of different faith or no religious faith at all are exhausted of this historical conflation of judeo-christianism and public ceremony persistent even to now and our exceedingly modern and pluralistic times. Those that oppose religious practice in schools are exasperated.

The Court has sympathy for both views, indeed, relates. But, the undersigned’s most overwhelming rhetorical reaction to all of this is how in 2015 is there still any debate or legal nuance to hash over prayers at graduation? One side insists on securing every slight remaining loophole of religious demonstration in school and the other is chasing to the ends of the earth the last pitiful vestiges of these practices that have been essentially neutered of all possible eternal meaning and effect....  It is conceivable, however, that, in this war over the private conscious made public, the better strategy is arms laid down in recognition of the human psychology that we are always made more in our submission than our entitlement....

Moving to examine the school district's modified policy, the court said in part:

[P]recisely because of the historical inclusion of prayer and religious speech at graduations, in this school district and State, it is conceivable that the cultural residue of prior practices might continue to color and confuse the application and invitation of, even now, constitutionally neutral practices. The undersigned is vigilant to identify any kind of wink and nod maneuvering.

But, the plaintiffs now have a serious kind of evidentiary problem. The impropriety of the old practice having been entirely confessed, the majority of the plaintiffs’ legal precedent and factual history are neutralized.....

What is continuously confused by the proponents of prayer in school or public forum is that these affirmative attempts to invite or measure the “voluntary choice” of students to pray, in the very same moment, renders that choice less than wholly voluntary. The very act of raising the issue alters the degree of its voluntariness. It is like the Observer Effect. In the moment we measure it, it is changed. So, when the decisions talk of private speech, in this perilous hybrid of public ceremony conducted by actual individuals and citizens, the expectation, if it means anything, is that the religiosity, if any at all, must spring forth from the imagination solely of the speaker and not as the result of expectations and pressures attributable, or historic, to, state action in the graduation or event itself. Moved in the spirit, so to speak....

This Court sits in one of the great parts of the world, in people and heritage. There are many in our city and county and State who are the inheritance of a meaningful practice of various religion, maybe Christianity most predominately. Their tenets and freedom to live them matter. But, there is a new and growing richness of population, here, in culture and background, that is transforming the complexion of mores and discourse and daily experience, in both public and private ways. The new practice of the defendant is constitutional. But, plaintiffs are affirmed. Not in their full request for legal remedy but in their aspiration for equal liberty. For too long school districts have cleverly resisted, with every manner of contortion, the force of Establishment jurisprudence to justifiably eliminate all state-sponsored rite. At least one has gotten it exactly right.

Concomitant to the effectiveness of the defendant’s new practice is the need that it be effectively communicated. The legacy of the historic inclusion of such prayers at graduation might still be coercively operative on contributing students.... Without affirmative instruction that prayer and religious messaging are no longer required, there is some risk that a student may yet still feel compelled. The defendant school district must, therefore, reasonably publicize the new practice to students participating in any graduations.

The American Humanist Association announced that it would appeal the decision.  Last week in a separate opinion (full text), the district court dismissed on mootness and standing grounds a challenge in the same case to the school district's policy of holding some graduation ceremonies at a religious chapel on a local college campus.

4th Circuit Vacates and Remands Challenge To Elementary School Graduation In Christian Chapel

In American Humanist Association v. Greenville County School District, (4th Cir., May 16, 2014), the 4th Circuit Court of Appeals vacated the district court's denial of a preliminary injunction in a suit challenging the holding of graduation ceremonies for a South Carolina elementary school at the chapel of a Christian college and including prayer as part of the official graduation ceremony.  In his ruling from the bench, the district court judge had said that plaintiffs "were making a mountain out of a mole hill." (See prior posting.) The 4th Circuit concluded:

In denying Plaintiffs’ motion for a preliminary injunction, the district court provided no analysis of the law and made no attempt to apply the four factors [to be considered in granting a preliminary injunction] ... to the facts as alleged in the complaint. Thus, we are constrained to remand the case for reconsideration of the issue.

The 4th Circuit similarly vacated and remanded the district court's denial of plaintiffs' unopposed motion to proceed using pseudonyms.  The court also agreed with plaintiffs that on remand the case should be reassigned to a different district court judge. AP reports on the decision.

Preliminary Injunction Denied In Challenge To Elementary School Graduation At Christian College

A South Carolina federal district court on Tuesday denied a preliminary injunction in American Humanist Association v. Greenville County School District.  The lawsuit challenges on Establishment Clause grounds the practice of holding graduation for a Taylors, South Carolina elementary school in the chapel of North Greenville University, a Christian college.  (See prior posting.) The ruling came in response to a motion to bar the Greenville school district, pending final resolution of the case, from permitting prayers as part of any school-sponsored event, including graduation ceremonies, and from holding school-sponsored events in churches, chapels and other places of worship. The State reported on the judge's ruling from the bench:

Senior U.S. District Judge G. Ross Anderson Jr., at a court hearing, said the American Humanist Association’s allegations against the Greenville County school district lacked proof and were "making a mountain out of a mole hill."

The judge also told an attorney for the association that "with all due respect and apologies" he had never heard of the Washington, D.C.-based nonprofit, founded in 1941.

Anderson called the association’s charges against the school district bold "and disturbing."