United States Court of Appeals
F I L E D
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT July 25, 2007
Charles R. Fulbruge III
JOHN DOE, Individually and as next friend of his minor children,
James Doe and Jack Doe,
TANGIPAHOA PARISH SCHOOL BOARD; JIMMIE RICHARDSON, Reverend,
School Board Member, District A; ROBERT POTTS, School Board
Member, District B; LEONARD GENCO, School Board Member,
District C; AL LINK, School Board Member, District D;
DON WILLIAMS, School Board Member, District E; ROBERT CAVES,
School Board Member, District F; MAXINE DIXON, School Board
Member, District G; SANDRA BAILEY-SIMMONS, School Board Member,
District H; CARL BARDWELL, School Board Member, District I; LOUIS
JOSEPH, Superintendent, TANGIPAHOA PARISH SCHOOL SYSTEM,
Appeal from the United States District Court for the Eastern District of Louisiana
Before JONES, Chief Judge, KING, JOLLY, DAVIS, SMITH, WIENER,
BARKSDALE, GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS, CLEMENT,
PRADO, and OWEN, Circuit Judges.
EDITH H. JONES, Chief Judge, joined by JOLLY, SMITH, GARZA, DeMOSS,
CLEMENT, PRADO and OWEN, Circuit Judges:
After the court voted to rehear this case en banc, a
review of the record prompted further inquiry, which we are bound
to make,1 concerning the Does' standing to sue. The Supreme Court
has admonished that,
This obligation to notice defects in a court of appeals'
subject-matter jurisdiction assumes a special importance
when a constitutional question is presented. In such
cases we have strictly adhered to the standing
requirements to ensure that our deliberations will have
the benefit of adversary presentation and a full
development of the relevant facts.
Bender v. Williamsport Area Sch. Dist., 475 U.S. 534
, 541-42, 106 S. Ct. 1326
, 1331 (1986) (footnote omitted). Constitutional
standing requires that the plaintiff personally suffered some
actual or threatened injury that can fairly be traced to the
challenged action and is redressable by the courts.2 Standing to
Standing is a jurisdictional requirement and not subject to waiver.
Lewis v. Casey, 518 U.S. 343
, 349 n.1, 116 S. Ct. 2174
, 2178 n.1 (1996). A
federal court must consider its jurisdiction sua sponte. Steel Co. v. Citizens
for a Better Env't, 523 U.S. 83
, 93, 118 S. Ct. 1003
, 1011 (1998).
As the Supreme Court stated in Valley Forge Christian College v.
Americans United for Separation of Church and State, Inc., 454 U.S. 464
, 472, 102 S. Ct. 752
, 758-59 (1982), and reiterated in Bender, 475 U.S. at 542-43, 106 S.
Ct. at 1332:
At an irreducible minimum, Art. III requires the party who invokes
the court's authority to show that he personally has suffered some
actual or threatened injury as a result of the putatively illegal
conduct of the defendant, and that the injury fairly can be traced
to the challenged action and is likely to be redressed by a
The requirement of actual injury redressable by the court, serves
several of the implicit policies embodied in Article III. It tends
to assure that the legal questions presented to the court will be
resolved, not in the rarified atmosphere of a debating society, but
in a concrete factual context conducive to a realistic appreciation
of the consequences of judicial action. The "˜standing' requirement
serves other purposes. Because it assures an actual factual setting
in which the litigant asserts a claim of injury in fact, a court may
decide the case with some confidence that its decision will not pave
the way for lawsuits which have some, but not all, of the facts of
the case actually decided by the court.
(internal quotation marks and citations omitted); see also Elk Grove Unified Sch.
[End Page 2]
sue must be proven, not merely asserted, in order to provide a
concrete case or controversy and to confine the courts' rulings
within our proper judicial sphere.
Standing to challenge invocations as violating the
Establishment Clause has not previously been based solely on injury
arising from mere abstract knowledge that invocations were said.3
The question is whether there is proof in the record that Doe or
his sons were exposed to, and may thus claim to have been injured
by, invocations given at any Tangipahoa Parish School Board
meeting. As the dissenters agree, there is no basis for taxpayer
standing. More to the point, there is no evidence of such exposure
in the record of this case, which was "fully" tried on
stipulations.4 Plaintiffs' counsel acknowledged both in
Dist. v. Newdow, 542 U.S. 1
, 11-12, 124 S. Ct. 2301
, 2308-09 (2004); Lujan v.
Defenders of Wildlife, 504 U.S. 555
, 559-562, 112 S. Ct. 2130
, 2136-37 (1992).
Cf. Hinrichs v. Bosma, 440 F.3d 393, 396-98 (7th Cir. 2006)(plaintiff
had taxpayer standing); Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276
, 279-80 (4th Cir. 2005) (plaintiff not permitted by county to offer
invocation); Wynne v. Great Falls, 376 F.3d 292
, 294 (4th Cir. 2004)(plaintiff
"regularly attended" council meetings where offending prayers occurred); Bacus
v. Palo Verde Unified Sch. Dist., 52 F.App'x 355, 356 (9th Cir.
2002)(unpublished)(teachers "regularly attend the school board meetings where the
invocations...are recited"); Coles v. Cleveland Bd. of Educ., 171 F.3d 369
(6th Cir. 1999)(student and teacher attended specific board meeting where
offending prayers were offered); Snyder v. Murray City Corp., 159 F.3d 1227
1229-30 (10th Cir. 1998)(plaintiff not permitted to offer invocation); Murray v.
City of Austin, 947 F.2d 147
, 151 (5th Cir. 1991)(plaintiff submitted affidavit
that he was exposed to the cross on city's insignia).
This case was placed before the district court without testimony and
on the basis of stipulations that are woefully inadequate to afford the precise
factual context on which sensitive church-state decisions must be based. See
Staley v. Harris County, 485 F.3d 305
, 309 (5th Cir. 2007)(en banc). An example
is Stipulation No. 18, which states:
In order to avoid the necessity of calling "live" witnesses to
testify at trial, the parties have agreed to stipulate to the
[End Page 3]
supplemental letter briefing and oral argument to the en banc court
that the proof deficiency was unintentional, and he urges us to
infer that the Does attended school board meetings where an
invocation occurred. Unfortunately, the minimal record in this
case affords no basis for drawing that inference, if it were
permitted, which it is not.5
Only three points need be made in response to the
dissents. First, just as there is no evidentiary proof that any of
the Does ever attended a school board session at which a prayer
like those challenged here was recited, so, too, Judge Barksdale
cites no authority to support his implied-admission theory of
standing. It is contrary to the Supreme Court cases cited above.
See supra notes 2 and 3. Interestingly, it also conflicts with an
opinion by now-Justice Alito, which held, after a real trial on the
following testimony as though such testimony was elicited from the
witness stand: the individual defendants called as witnesses at the
trial would testify under oath that the Tangipahoa School Board does
not discriminate on the basis of religious viewpoint and that any
individual who wants to give the invocation prior to a board meeting
can do so regardless of their religious beliefs.
At oral argument, Plaintiffs' counsel disagreed that this was a statement of fact
and said that the "stipulations" are assertions that could be contradicted in the
event of cross-examination.
See Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., --- U.S. ---
, 127 S. Ct. 1184
, 1191 (2007)(""˜Without jurisdiction the court cannot proceed
at all in any cause'; it may not assume jurisdiction for the purpose of deciding
the merits of the case." (quoting Steel Co., 523 U.S. at 94, 118 S. Ct. at
1012)); Spencer v. Kemna, 523 U.S. 1
, 10-11, 118 S. Ct. 978
, 984-85 (1998)(noting
the ""˜long-settled principle that standing cannot be inferred argumentatively
from averments in the pleadings, but rather must affirmatively appear in the
record,' and that "˜it is the burden of the party who seeks the exercise of
jurisdiction in his favor, clearly to allege facts demonstrating that he is a
proper party to invoke judicial resolution of the dispute.'" (quoting FW/PBS,
Inc. v. Dallas, 493 U.S. 215
, 231, 110 S. Ct. 596
, 608 (1990)(citations
[End Page 4]
merits, that plaintiffs had presented insufficient proof of their
exposure to and personal offense from an allegedly unconstitutional
civic Christmas display to support standing.6 ACLU-NJ v. Township
of Wall, 246 F.3d 258
, 266 (3d Cir. 2001). The opinion notes,
While we assume that the Millers disagreed with the 1999
display for some reason, we cannot assume that the
Millers suffered the type of injury that would confer
standing. As noted, "the party invoking federal juris-
diction bears the burden of establishing [standing] . . .
in the same way as any other matter on which the
plaintiff bears the burden of proof, i.e., with the
manner and degree of evidence required at successive
stages of the litigation." Lujan, 504 U.S. at 561, 112 S. Ct. 2130
. Mere assumption would not satisfy the
plaintiffs' burden to prove an element of their cause of
action at this stage of the litigation and it cannot
satisfy their burden to prove standing.
Second, Judge Barksdale's dissent intimates that lower
courts can infer standing from the Supreme Court's decision in
similar Establishment Clause cases where the issue was not ruled on
by the Court.7 This proposition is incorrect. Going back to Chief
The Alito opinion also alludes to the difficulty of inferring,
without proof, facts necessary to establish standing:
While Mr. Miller testified that he went to the municipal complex and
observed the Township's 1999 display, it is unclear whether he did
so in order to describe the display for this litigation or whether,
for example, he observed the display in the course of satisfying a
civic obligation at the municipal building . . . . Moreover, neither
Mr. Miller nor Mrs. Miller provided testimony regarding their
reaction to the 1999 display, which was significantly different from
the display in 1998.
See Barksdale dissent, citing Murray, 947 F.2d at 151; and later
asserting that "standing is more relaxed for Establishment Clause claims. . . .",
citing Lee v. Weisman, 505 U.S. 577
, 583, 112 S. Ct. 2649
, 2653 (1992)(where the
Court did not reach the issue).
[End Page 5]
Justice Marshall, the Court has consistently held that it "is not
bound by a prior exercise of jurisdiction in a case where
[jurisdiction] was not questioned and it was passed sub silentio."
United States v. LA Trucker Truck Lines, 344 U.S. 33
, 38, 73 S. Ct. 69
(1952)(Jackson, J.)(citations omitted); see also Steel Co., 523
U.S. at 91, 118 S. Ct. at 1011, Lewis, 518 U.S. at 351, 116 S. Ct.
at 2180; Fed. Election Comm'n v. NRA Political Victory Fund, 513 U.S. 88
, 97, 115 S. Ct. 537
, 542-43 (1994).
Finally, Judge Benavides relies on the pretrial order for
the proposition that no "facts" relevant to the Does' standing were
in dispute. Justice Alito's careful opinion again shows the way.
This court can certainly "assume" that the Does may have been
offended by an invocation at a school board meeting, if they
attended one. Unfortunately, there is no correlation between their
attendance and the prayers to which the parties have stipulated.
It is not this court's fault that the connection between their
attendance and allegedly unconstitutional activity is not made in
the record.8 Moreover, Judge Benavides overlooks that Paragraph 8
of the "contested issues of fact" in the pretrial order states that
"All issues of fact implicit in the contested issues of law" remain
Without the requisite specifics, this court would be
speculating upon the facts. This is something we cannot do,
The amended complaint to which Judge Benavides points is not
verified, and therefore cannot constitute record proof.
[End Page 6]
particularly in the standing context, where the facts must be
proven, not merely asserted or inferred. See Lujan, 504 U.S. at
561, 112 S. Ct. at 2136. Notwithstanding the dissents, plaintiffs'
counsel admitted both in briefing and in oral argument to the en
banc court that the necessary proof is absent from the record. No
amount of creative inferences from the pretrial order or
"stipulations" can overcome this defect. As standing is not
subject to waiver by the parties, see supra note 1, the Board's
pretrial, and even post-trial, failures to contest standing cannot,
ipso facto, create jurisdiction in federal court.
To find lack of standing at this late stage no doubt
poses an inconvenience for the parties. On the other hand, it
spares this court from issuing a largely hypothetically-based
ruling on issues of broad importance to deliberative public bodies
in this circuit and beyond.9 Finally, given the ideological nature
of the case, it is not hard to conceive that a more concrete
controversy may arise in the future.
The judgment of the district court is VACATED, and the
case REMANDED WITH INSTRUCTIONS TO DISMISS.
Subject to footnote 4, supra, the parties' Stipulation No. 7 stated:
"In Louisiana, school boards are deliberative bodies constituted to act in the
[End Page 7]
DeMOSS, Circuit Judge, specially concurring:
Under Article III of the Constitution federal courts have the
power to resolve only "cases" and "controversies." This
constitutional limitation has manifested itself in the requirement
that a plaintiff have standing, which requires a showing of (1) an
injury in fact, (2) causation, and (3) redressibility. See Lujan v.
Defenders of Wildlife, 504 U.S. 555
, 560 (1992).1 The importance of
standing is underscored by the fact it "tends to assure that the
legal questions presented to the court will be resolved, not in the
rarified atmosphere of a debating society, but in a concrete
factual context conducive to a realistic appreciation of the
consequences of judicial action." Valley Forge Christian Coll. v.
Americans United for Separation of Church and State, Inc., 454 U.S. 464
, 472 (1982). The Supreme Court has recently recognized in Hein
v. Freedom from Religion Foundation that another important purpose
of the standing requirement is to ensure separation of powers. See
--- S.Ct. ---, No. 06-157, 2007 WL 1803960, at *16 (2007).
Furthermore, the Supreme Court has repeatedly stated that the
standing elements "are not mere pleading requirements but rather an
indispensable part of the plaintiff's case, [and] each element must
be supported in the same way as any other matter on which the
plaintiff bears the burden of proof . . . ." See, e.g., Lujan, 504
Lujan defines injury in fact as "an invasion of a legally protected
interest which is (a) concrete and particularized, and (b) actual or imminent,
not conjectural or hypothetical." 504 U.S. at 560 (internal quotation marks and
citations omitted); accord BLACK'S LAW DICTIONARY 801 (8th ed. 2004).
[End Page 8]
U.S. at 561. Because of these indispensable and well-established
requirements, I concur wholeheartedly in the majority's refusal to
infer standing from a record completely lacking evidence on the
subject. As the majority mentions, we have no evidence that the
Does actually attended any meeting of the Tangipahoa Parish School
Board, much less the meetings at which the invocations quoted in
the stipulations were given.
Likewise, the stipulations say nothing about the injury in
fact allegedly suffered by the Does. Unless the Does were actually
exposed to an invocation, they could not possibly have suffered the
kind of individualized injury necessary to confer standing. See
Hein, 2007 WL 1803960 at *11. In Hein, the Court emphasized that "a
generally available grievance about government . . . seeking relief
that no more directly and tangibly benefits [the plaintiff] than it
does the public at large" does not constitute an injury in fact.
Id. (internal quotation marks omitted). Instead, the plaintiff must
present evidence of an individualized and direct injury and seek
relief that will likewise benefit him directly in order to satisfy
the standing requirement. See id. at n.2.2 The Does simply have not
presented any such evidence. As a result of their failure, this
case is like Hein in that the Does have established only a general
In Hein, the individual Respondents asserted standing only on the
basis that they were taxpayers. While Hein dealt with issues involving taxpayer standing, the rule that a plaintiff's injury must affect him individually and the
remedy he seeks must benefit him directly, should be generally applicable in
Establishment Clause cases.
[End Page 9]
grievance indistinguishable from the one that any other non-
attendee citizen could have.
In addition, I feel compelled to comment on the current state
of the Supreme Court's standing jurisprudence in Establishment
Clause cases. On the one hand, the Court has stated that the
standing requirements in Establishment Clause cases are as rigorous
as in other types of cases. See Valley Forge, 454 U.S. at 484, 489
("[W]e know of no principled basis on which to create a hierarchy
of constitutional values or a complementary "˜sliding scale' of
standing."). On the other hand, the Court has implicitly, and
wrongly in my view, assumed standing in Establishment Clause cases
where plaintiffs have not alleged or proved an injury that would
suffice to confer standing in any other type of case.3
The Supreme Court cannot continue to speak out of both sides
of its mouth if it intends to provide real guidance to federal
courts on this issue. That is, it cannot continue to hold expressly
that the injury in fact requirement is no different for
Establishment Clause cases, while it implicitly assumes standing in
cases where the alleged injury, in a non-Establishment Clause case,
would not get the plaintiff into the courthouse. This double
standard must be corrected because, contrary to the standing rules
In order to prevent confusion, let me make clear that I do not intend
to jump ship from the majority's position, as Judge Barksdale suggests in his
dissent. I fully agree with the majority that this record does not contain the
evidence required to establish standing.
[End Page 10]
cited above, it opens the courts' doors to a group of plaintiffs
who have no complaint other than they dislike any government
reference to God.
Regardless, I recognize that these parties may be before this
Court again and I caution them that more evidence of the alleged
injury in fact is essential for us to reach the merits of their
dispute. To me, the critical issue is whether each of the Does has
proved that he individually sustained an injury in fact as a result
of the school board's practice of permitting citizens of the school
district to freely exercise their own rights of religion and free
speech under the First Amendment by offering a prayer or invocation
at the beginning of school board meetings. On the basis of the
stipulations before us in this case, I would find these facts
helpful in evaluating injury in fact: this prayer practice has
existed for more than thirty years, the school board does not
specify or approve the contents of any prayer or invocation in
advance, and in giving the prayer or invocation, the speaker does
not purport to speak for, or on behalf of, the school board. In my
view, the fact that the Does "take offense" to this prayer practice
should not constitute an injury in fact for standing purposes.
[End Page 11]
RHESA HAWKINS BARKSDALE, Circuit Judge, with whom KING, DAVIS,
WIENER, and DENNIS, Circuit Judges, join, dissenting:
What is not said is quite often more important than what is.
The bare-bones majority opinion is a classic example. In that
regard, the majority refuses to give effect to, or simply does not
comprehend, the crucial litigation role played by the Federal Rules
of Civil Procedure. Because the majority fails to correctly apply
basic procedure "" indeed, ignores it "" I dissent. In so doing, I
join Judge Benavides' splendid dissent, which, consistent with my
application of the Rules, employs them to find standing.
All that is needed for deciding standing is stated in part
II.A of my opinion for the initial appeal (my panel opinion). Doe
v. Tangipahoa Parish Sch. Bd., 473 F.3d 188
, 194-196 (5th Cir.
2006), vacated for reh'g en banc (2007). Each of the other two
panel members filed an opinion reaching a different result on the
merits; but mine, which announced the judgment, sua sponte
addressed standing. Although one panel member now inexplicably
joins the majority opinion, neither of those other two panel
opinions mentioned, much less questioned, the standing analysis,
presented infra, in my panel opinion, as noted in it. Id. at 194;
see also id. 205-11 (Stewart, J., concurring in part and dissenting
in part), 211-17 (Clement, J., concurring in part and dissenting in
[End Page 12]
The en banc majority essentially ignores my panel opinion's
implied-admission analysis. Indeed, from reading the majority
opinion, it would appear standing was not even considered until
after our court voted this case en banc. That, of course, is not
correct. A panel opinion is vacated when en banc review is
accorded, but the majority opinion should at least state what
transpired on appeal and attempt to demonstrate in a far more
complete fashion why the analysis employed for standing by our then
undivided panel on that issue is incorrect.
The well-known general rules for standing are presented in the
majority opinion and my panel opinion. There is no dispute about
them. Certainly, it is quite fundamental that parties cannot
concede, or waive, standing as an issue of law. Where we part ways
is the majority's insistence that parties cannot, by implication,
agree upon the underlying facts necessary for deciding that issue.
Nothing, especially in the light of the Federal Rules of Civil
Procedure, precludes their conceding, admitting, or stipulating
That is the case here. As held in my panel opinion concerning
an implied admission under Rule 15(b), and consistent with the
Rules' not permitting form to trump substance, the School Board
admitted by implication the two simple facts, alleged in the
amended complaint, necessary to satisfy standing: the Does
attended School Board meetings; and they were offended by the
[End Page 13]
prayers presented there. See FED. R. CIV. P. 1 (federal civil-
procedure rules to govern all civil actions, save for the non-
applicable exceptions provided in Rule 81, and to "be construed and
administered to secure the just, speedy, and inexpensive
determination of every action"). My panel opinion's standing
analysis, including the factual background, is repeated verbatim as
follows. Doe, 473 F.3d at 191-196.
In October 2003, John Doe, a resident and taxpayer of
Loranger, Tangipahoa Parish, Louisiana, filed this action against
the Board, including on behalf of his two minor sons. The Board is
a "[p]olitical subdivision" of the State, LA. CONST. art. 6, §
44(2), and a statutorily defined "[p]ublic body", LA. REV. STAT. ANN.
Doe challenged several prayer events permitted by the School
System: pre-game prayers over the public-address system at
athletic events; prayers including student athletes prior to, and
after completion of, such events; prayers by students to the
student body over the public-address system; and the Board's
opening its meetings with a prayer (prayer practice). All but the
challenge to the Board's prayer practice were resolved by a consent
judgment in August 2004. It enjoined those other prayer events,
except for prayers given by students at graduation ceremonies to
the extent permitted by Jones v. Clear Creek Independent School
[End Page 14]
District, 977 F.2d 963
, 972 (5th Cir. 1992) (permitting student-
initiated prayers at graduation ceremonies so long as they do not
have a coercive effect), cert. denied, 508 U.S. 967
Regarding the Board's prayer practice, the parties in
September 2004 entered into the following joint stipulations, the
sole evidence presented in district court. The Board is a
deliberative body that acts in the public interest. It is
responsible for operating and governing the School System's 35
schools, including the high school attended by Doe's two sons. The
Board meets twice each month in the School System's central office.
The Board's president normally presides; the vice-president
presides in his absence. The meetings are open to the public, and
students may attend. (Although it is possible under Louisiana law
for a student to be a Board member, LA. REV. STAT. ANN. §
17:52(E)(1), the stipulations are silent as to whether there is a
student member on the Board.)
Each meeting begins with a prayer, followed by a recitation of
the Pledge of Allegiance. This prayer practice has been followed
since at least 1973; prayers have been offered by Board members,
the Board president, the School System's assistant superintendent,
School System teachers and students, and ministers. An individual
may present a prayer only after being selected by a Board member.
In a sampling of prayers delivered between January 2002 and August
2004, ten were by Board members, nine by students or former
[End Page 15]
students, four by principals or assistant principals, three each by
teachers and the assistant superintendent, and one each by the
Board president and a minister.
The stipulations contained four of the prayers given; each
contained a reference to "Jesus Christ" or "God" and "Lord". The
School System's assistant superintendent presented the following
prayer on 18 February 2003:
Heavenly Father, we thank you for the many
blessings we've received. We thank you for
our health. We thank you for our strength.
We thank you for our peace of mind. We thank
you for allowing us to assemble here tonight,
and we ask that you give this Board and our
Superintendent all the wisdom and the
knowledge, and the understanding they need to
make the correct decisions for our students
and for our parents.
Also Lord, we ask that you throw your strong
arm of protection around our President and
around his Cabinet Members, to help him make
the right decisions that will affect thousands
of U.S. soldiers, airmen, and marines, at this
time. We ask that you give him the same
wisdom that you gave Solomon in making
decisions that's [sic] best for our country.
Also, we thank you for the greatest gift of
all "" your darling son, Jesus Christ. For we
all know that He was born, died, and rose
again, so that we all may be forgiven for our
sins. And Lord, as we leave this meeting
tonight, we ask that you guide us safely to
our various abodes. These things we ask in
your darling son, Jesus Christ's[,] name.
A Board member's son presented the following prayer on 23 September
Almighty God, we make our earnest prayer that
Thou wilt keep the United States in thy holy
protection, that Thou wilt incline in the
[End Page 16]
hearts of the citizens to cultivate a spirit
of subordination and obedience to government,
and entertain a brotherly affection and love
for one another and for their fellow citizens
of the United States at large.
And finally that Thou wilt most graciously be
pleased to dispose us all to do justice, to
love mercy, and to demean ourselves with that
charity, humility, and pacific temper of mind
which were the characteristics of the Devine
[sic] Author of our blessed religion, and
without an [sic] humble imitation of whose
example in these things, we can never hope to
be a happy nation.
Grant our supplications, we beseech Thee,
through Jesus Christ our Lord. Amen.
A School System elementary-school principal presented the following
prayer on 18 May 2004:
Heavenly Father, we thank you for all the
blessings that you have given us. Let us not
take for granted that each breath that we take
is a blessing from you, and even though we
don't understand the hardships that are put
before us at different times in our lives, let
us always remember that the experiences that
we go through have a purpose and even though
we don't understand the purpose, it is your
desire that we have each and every experience
on this earth, for without you we have
Watch over our soldiers that are overseas.
Please keep them safe. Please soften the
hearts of our adversaries and help them see
that we are trying to do what we believe is
good and right and to bring freedom to people
that have been oppressed.
Please guide all the people in this room that
are in charge of setting the education of our
children and setting the future of our
children. Let all of us keep in mind that we
have one focus and that is what is best for
our children. Let us keep them at the front
of all our decision-making processes. Let us
do everything to bring glory and honor to your
name, and we ask all of these things through
Your Son, Jesus Christ. Amen.
[End Page 17]
In the final prayer included in the stipulations, a Board member
presented the following on 15 June 2004:
Father, we thank You for Your many blessings.
Father, we are grateful for the opportunity to
live in this country, the greatest country on
this planet. God, we have the freedom to
choose, to live our lives as we please. We
have the opportunity to pursue any goals we so
Lord, this big Board "" group of people meeting
here tonight has an awesome responsibility to
see that each and every child in the parish
has the opportunity, and the chance to prepare
themselves to the fullest to live their adult
lives. God, we just pray that we in this
parish will have the guidance and the wisdom
to make it happen. In your name we pray.
It was not stipulated that the above four prayers were
representative, or typical, of those offered at Board meetings.
Each prayer in the stipulations is Christian in tenor, if not in
On 3 August 2004, approximately ten months after this action
was filed and only approximately one month before the consent
judgment and joint stipulations, the Board considered "" but
unanimously rejected "" a written policy that would have permitted
only Board members to begin "meetings with a brief non-sectarian,
non-proselytizing invocation to solemnize the occasion".
Accordingly, the Board's unwritten practice of selecting speakers
who give prayers of their own unrestricted choosing remained in
[End Page 18]
This action seeks injunctive and declaratory relief. The
district court held the prayers: fall outside the legislative-
prayer context permitted by Marsh v. Chambers, 463 U.S. 783
and otherwise violate the Establishment Clause pursuant to the
traditional analysis under Lemon v. Kurtzman, 403 U.S. 602
The court permanently enjoined the Board from opening its meetings
with any prayer: "the [Board's] practice of opening each ...
meeting with a religious invocation violates [Doe's] rights under
the Establishment Clause of the First Amendment". Doe v.
Tangipahoa Parish Sch. Bd., No. 03-2870, slip op. at 25 (E.D. La.
24 Feb. 2005).
Neither in district court, nor on appeal, has the Board
challenged Doe's standing to bring this action. Nor did the
district court address it. Because standing is jurisdictional,
however, we must address it sua sponte before considering this
Establishment Clause issue of first impression in our circuit. Doe
v. Sch. Bd. of Ouachita Parish, 274 F.3d 289
, 292 (5th Cir. 2001);
see Bender v. Williamsport Area Sch. Dist., 475 U.S. 534
(1986) ("This question the court is bound to ask and answer for
itself, even when not otherwise suggested, and without respect to
the relation of the parties to it.") (quoting Mansfield, C. & L. M.
Ry. Co. v. Swan, 111 U.S. 379
, 382 (1884)).
[End Page 19]
Neither of the separate opinions contests the following
standing analysis. This inquiry has two components. First
addressed are constitutional limitations, derived from the
Constitution's case-and-controversy requirement in Article III;
second, judicially-created prudential limitations are examined.
McClure v. Ashcroft, 335 F.3d 404
, 408 (5th Cir. 2003).
To establish Article III standing, Doe "must show that the
conduct of which he complains has caused him to suffer an "˜injury
in fact' that a favorable judgment will redress". Elk Grove
Unified Sch. Dist. v. Newdow, 542 U.S. 1
, 12 (2004) (quoting Lujan
v. Defenders of Wildlife, 504 U.S. 555
, 560-61 (1992)). "[T]he
concept of injury for standing purposes is particularly elusive in
Establishment Clause cases". Littlefield v. Forney Indep. Sch.
Dist., 268 F.3d 275
, 294 n.31 (5th Cir. 2001) (alteration in
original) (quoting Murray v. City of Austin, 947 F.2d 147
, 151 (5th
Cir. 1991), cert. denied, 505 U.S. 1219
(1992)). Our "rules of
standing recognize that noneconomic or intangible injury may
suffice to make an Establishment Clause claim justiciable". Id.
(quoting Suhre v. Haywood County, 131 F.3d 1083
, 1086 (4th Cir.
1997)). For example, direct exposure to a mandatory school-uniform
policy satisfied the "intangible injury" requirement for
Establishment Clause standing. Id. Parents and students
challenged this policy, claiming, inter alia, its opt-out
procedures "favor[ed] certain established religions at the expense
[End Page 20]
of other religions and thus violate[d] the Establishment Clause".
Id. at 282.
In the context of the Establishment Clause, "we attach
considerable weight to ... standing ... not [having] been an issue
in the Supreme Court in similar cases". Murray, 947 F.2d at 151.
For example, standing existed for a claimed Establishment Clause
violation that had impaired "use or enjoyment of a public
facility". Sch. Bd. of Ouachita Parish, 274 F.3d at 292.
Standing is bolstered when, as here, the plaintiffs are public
school students and their parents, "who enjoy a cluster of rights
vis-a-vis their schools" and thus transcend the realm of mere
bystanders. Id. A parent may be permitted to bring an action as
the next friend of his or her children; however, for an action for
themselves as well, parents must "assert an injurious deprivation
of their own legal rights or interests". Ward v. Santa Fe Indep.
Sch. Dist., 393 F.3d 599
, 606 (5th Cir. 2004).
Doe appears to assert two standing bases: (1) as a parent of
two students in the School System, he (as well as his two sons) has
attended, and been offended by, Board meetings; and (2) as a
resident and taxpayer of Tangipahoa Parish, where the school
district is located. (Because we hold Doe has standing under the
first basis, we need not address taxpayer standing.)
In his original 14 October 2003 complaint, Doe stated: he was
"a domiciliary and resident" and "a taxpayer and registered voter"
[End Page 21]
of Tangipahoa Parish, and also the father of two school-system
students; and he and his sons found "objectionable the non-secular
manner in which the Board's meetings are conducted.... By
commencing the meetings with a prayer, the Board is conveying its
endorsement of religion". He noted explicit references to God and
Jesus Christ at Board meetings. In seeking injunctive relief, Doe
explained his family "ha[d] suffered, and will continue to suffer,
immediate and irreparable harm in the event that [the Board is]
allowed to continue permitting, authorizing, encouraging, and
acquiescing in the delivery of ... religious invocations at the
start of each board meeting".
As permitted by Federal Rule of Civil Procedure 15(a), Doe's
26 November 2003 amended complaint was filed before the Board
answered. The amendment added: "Plaintiffs, John Doe, James Doe,
and Jack Doe, have been in attendance at school board meetings
which were opened with a prayer".
In its 26 January 2004 answer, the Board admitted its meetings
were open to the public; it denied, but only for a lack of
information, Doe's allegations regarding attendance and
involvement. No mention was made whether Doe had standing to bring
Instead, the parties on 30 August 2004 entered into the
earlier-discussed consent judgment, which resolved all claims in
Doe's complaint except his challenge to the Board's prayer
practice. Four days later, on 3 September 2004, the parties
[End Page 22]
entered into the stipulations discussed supra. These stipulations
did not address the standing issue directly, noting only that Doe
was "a person of full age of majority and a resident and
domiciliary of ... [Tangipahoa] Parish ... wherein he is a
registered voter and taxpayer" and parent of two students within
the School System. The remainder of the stipulations do not
address Doe personally.
The Board's failure to challenge Doe's assertions that he
attended Board meetings and was offended by their content was never
challenged, beyond the lack-of-information denial in its answer,
filed more than eight months before the consent judgment. As this
action progressed, the Board had many opportunities "" including
during the bench trial "" to contest Doe's standing; the Board's
failure to challenge either Doe's attendance at Board meetings or
his assertion that he was offended is the equivalent of an implied
Although we have not located any precedent for this implied-
admission concept regarding standing, we find it sufficiently
analogous to the approach taken by Federal Rule of Civil Procedure
15(b). That rule states, in part: "When issues not raised by the
pleadings are tried by express or implied consent of the parties,
they shall be treated in all respects as if they had been raised in
the pleadings". Similarly, the Board's decision to proceed on the
merits of Doe's claim, without challenging either that he attended
Board meetings or was offended by them, permits an inference that
[End Page 23]
the Board conceded these allegations in Doe's complaint. Further,
the Board's entering into the consent judgment and stipulations
with Doe permits the inference that, had the Board disagreed with
Doe's allegations that he attended Board meetings and was offended
by its prayer practice, it would not have entered into the consent
judgment and stipulations. We may make such inferences from the
record. Cf. Ladue v. Chevron, U.S.A., Inc., 920 F.2d 272
, 277 (5th
Cir. 1991) (inferring from the record the cause of injury in a
products liability action). Nor do we have any reason to believe
the interests of Doe, in his role as next friend, conflict with
those of his sons. In contrast, such a conflict arose in Newdow
with evidence that the interests of a non-custodial father
conflicted with those of his child. 542 U.S. at 15.
Based on the unchallenged allegations in the complaint, Doe
has shown an injury; he and his sons have attended Board meetings
and have been offended by the Board's prayer practice, which they
"find wholly objectionable". This suffices for a noneconomic,
intangible injury under our Establishment Clause jurisprudence.
Littlefield, 268 F.3d at 294 n.31.
Doe's injury, caused by that practice, would be redressed by
an injunction against it. Nothing has been offered to suggest that
the Board did not comply with the one imposed by the district
court, so Doe's injury appears sufficiently redressed by it.
[End Page 24]
Accordingly, three prudential factors are considered: (1)
whether Doe's complaint fits "within the zone of interests
protected by the ... constitutional provision at issue"; (2)
"whether [his] complaint raises [more than] abstract questions
amounting to generalized grievances which are more appropriately
resolved by the legislative branches"; and (3) "whether [Doe] is
asserting his ... own legal rights and interests", as opposed to
those of third parties. Murray, 947 F.2d at 151 (quoting Cramer v.
Skinner, 931 F.2d 1020
, 1024 (5th Cir. 1991)). None of the
prudential limitations bars Doe's standing: his assertion that the
prayer practice of the Board, a political subdivision of the state,
impermissibly "inject[s] religion" into Board meetings, fits within
the zone of Establishment Clause claims; he raises not abstract,
generalized grievances, but his own experiences at Board meetings;
and, finally, he asserts both his own injury, as well as those of
his sons as next friend. Id. (This ends the applicable portion of
my panel opinion.)
The foregoing panel-opinion analysis remains sufficient for
our en banc court to hold standing present. In this regard,
similar to the School Board's not questioning standing either in
district court, or on appeal, it did not challenge it here until
shortly before en banc oral argument, when our court required
supplemental letter briefs on standing. In other words, even
[End Page 25]
though my panel opinion addressed standing sua sponte, the School
Board did not question it in either its en banc petition or initial
en banc briefs (in addition to its opening en banc brief, it was
permitted to file a reply brief).
Again, parties cannot concede, or waive, standing as a
question of law; but, certainly, we should accord considerable
weight to the School Board's initial acceptance of my panel
opinion's implied-admission analysis. Its silence until its
ordered supplemental en banc brief on standing has, in effect,
elevated its implied admission in district court for the facts
necessary for standing to a judicial admission in our en banc
Restated, until our en banc court suggested otherwise, by
requiring supplemental briefing, the School Board accepted my
implied-admission analysis. The factual posture for standing did
not change after the initial appeal, unlike the situation for our
recent en banc mootness decision in Staley v. Harris County, 485 F.3d 305
(5th Cir. 2007) (en banc). Instead, apparently deciding
that "half a loaf [possible dismissal on standing] is better than
none [possibly losing on the merits]", the School Board suddenly
decided standing is lacking, even though the underlying facts have
My implied-admission analysis does not, as the majority
claims, "intimate that lower courts can infer standing from the
[End Page 26]
Supreme Court's decision in similar Establishment Clause cases
where the issue was not ruled on by the Court". Maj. Opn. at 6.
Rather, my analysis simply concludes that courts should hold
standing exists when the parties repeatedly admit by implication
the facts necessary to satisfy standing. Along that line, in
taking me to task for supposedly "cit[ing] no authority [in my
panel opinion] to support [my] implied-admission theory of
standing", id. at 5, suggesting I attempted to sneak this analysis
under the door, the majority goes far astray in two ways. First,
my panel opinion does cite "authority" "" by analogizing to Rule
15(b). 473 F.3d at 195. Second, my panel opinion candidly admits
no "precedent [had been located] for this implied-admission
concept". Id. (emphasis added). Surely, the majority recognizes
courts must sometimes decide issues of first impression.
Concomitantly, standing must, of course, be viewed in context.
E.g., Littlefield, 268 F.3d at 294 n.31. Moreover, as reflected in
my panel opinion, 473 F.3d at 194, standing is more relaxed for
Establishment Clause claims, especially concerning schools. E.g.,
Lee v. Weisman, 505 U.S. 577
, 583 (1992) (holding plaintiff had
standing to challenge future clergy-presence and prayers at a high-
school graduation based on stipulated facts and assumptions
concerning the offering and content of the prayers from an earlier
middle-school graduation). For the majority to state that, in Lee,
[End Page 27]
"the Court did not reach the issue" of this relaxed standard is
simply blinking at reality. Maj. Opn. at 6 n.7.
Regarding the Court's relaxed-standing standard, JUDGE DeMOSS'
special concurrence arguably creates a majority on this point for
our en banc court by agreeing standing is relaxed for Establishment
Clause cases. MY BROTHER protests that the Supreme Court "speak[s]
out of both sides of its mouth" on its "standing jurisprudence in
[such] cases". Spec. Con. at 3. He posits that, while the Court
has applied strict standing requirements in some Establishment
Clause cases, in others, it "has implicitly, and wrongly in [his]
view, assumed standing in [such] cases where plaintiffs have not
alleged or proved an injury that would suffice to confer standing
in any other type of case". Id. "Oh that mine enemy would write
a book!" (This epigram, often used long ago by at least two
outstanding lawyers (one now retired; the other, deceased) in my
former law firm, is based on Job's lament: "Oh that my words were
written! Oh that they were inscribed in a book!" THE BOOK OF JOB,
I disagree, of course, with JUDGE DeMOSS' assertion that the
Court has been inconsistent. A fair reading of its opinions leaves
no doubt standing is consistently more relaxed for such cases, as
discussed above and in my panel opinion. In any event, by
acknowledging the Court's employing this relaxed standard (but, in
his view, only in some instances), JUDGE DeMOSS arguably agrees
[End Page 28]
with my recognizing this somewhat different standard for
Establishment Clause cases. Therefore, for this point on the
standing standard, he arguably crosses the aisle from the slim
eight-seven majority on standing vel non to join the seven in
dissent. As stated, his position arguably constitutes the eighth
vote needed for an en banc majority recognizing this relaxed-
standard rule. He's most welcome aboard. (As he makes quite
clear, he concludes, however, that standing is lacking for this
For the context of this case, in which all but one of the
claims were settled shortly before trial and the parties entered
into the above-described stipulations, the School Board, by
implication, admitted the Does' allegations regarding attending the
Board's meetings and being offended by the prayers.1 In short, the
well-known constitutional and prudential reasons for requiring
standing are more than satisfied here. Surely, had the School
Board felt the Does lacked standing, it would not have stipulated
In unnecessarily calling the stipulations "woefully inadequate",
the majority incorrectly characterizes an oral-argument answer by Doe's counsel,
concerning stipulation 18, which stated only what the School Board's testimony
would have been on a point. The stipulation did not state the Does agreed with
the position that would have been asserted in that "testimony". The majority states that counsel "disagreed that this was a statement of fact". What counsel
correctly pointed out was that the stipulation was only what the Board's
testimony would have been. That is a "fact". But, contrary to the majority's
characterization, counsel did not state that stipulations "are assertions that
could be contradicted in the event of cross-examination". Instead, he stated
correctly: the stipulation presented only the testimony the Board would have
given; and the stipulation did not state the Does agreed with that testimony
(position). The "cross-examination" comment apparently was simply an analogy to
the procedure that would have been followed, had live testimony been given,
instead of a stipulation presenting only one side's position on an issue.
[End Page 29]
as it did, including for the four prayers that had been presented
at School Board meetings. Those stipulations followed on the heels
of a consent judgment concerning other challenged prayer events.
Simply put, the School Board more than recognized its
requisite adversarial position with the Does. This is consistent
with the Does' en banc position for standing. Contrary to the
majority's interpretation of the Does' position, they did not
"admit both in briefing and in oral argument to the en banc court
that the necessary proof is absent from the record". Maj. Opn. at
7 (emphasis added). While admitting such evidence could certainly
(and quite easily) have been more complete, the Does correctly
maintained: for deciding standing vel non, this action must be
examined globally; and the record evidence is sufficient to provide
a basis for holding standing present.
In opposition to this plain truth, the majority relies heavily
on a Third Circuit opinion, ACLU-NJ v. Township of Wall, 246 F.3d 258
(3d Cir. 2001). Maj. Opn. at 5. (In doing so, the majority
even notes three times the opinion was written by now-Justice
Alito. Id. at 5-6. "None dare call it [pandering]." See SIR JOHN
HARINGTON, EPIGRAMS, bk. 4, no. 5 (1618) ("Treason doth never prosper,
what's the reason? For if it prosper, none dare call it
treason.").) ACLU-NJ is so distinguishable that one can only
wonder why the majority would cite it, much less rely so heavily on
it. For starters, unlike here, defendants early on, and
[End Page 30]
consistently, contested standing. 246 F.3d at 261-62. Moreover,
unlike the implied-admission basis I employ under Rule 15(b), or
the complementary basis employed by Judge Benavides under Rule 16
(the pretrial order), ACLU-NJ involved evidence having been
presented concerning a holiday display in one year but relief
having been requested instead for a quite different display in the
next. Id. at 266.
It is fundamental that courts have an independent duty to
ensure standing. My panel opinion did so sua sponte.
Concomitantly, courts have a duty to recognize standing when it
exists, as in this instance, and reach the merits. Along that
line, dismissing for lack of standing obviously has far more
serious effects than, as the majority sugar-coats it, being "an
inconvenience for the parties". Maj. Opn. at 7. The majority
ignores reality "" what transpired in district court and here "" in
holding standing lacking.
To find standing is not engaging in "speculation", as decried
by the majority. Id. at 7. Far from it. Instead, for the reasons
stated in Judge Benavides' and my dissents, it is simply giving
proper effect to the Federal Rules of Civil Procedure. They do not
treat differently from other situations the procedure to be
utilized for considering parties' acts or omissions regarding the
evidence necessary for satisfying standing. Restated, the Rules
contain no heightened exception for such evidence. Because the
[End Page 31]
majority commits a most grievous and unpardonable judicial sin of
exalting form over substance, I dissent. For many reasons, some
more obvious than others, this is a sad day for our court.
[End Page 32]
BENAVIDES, Circuit Judge, with whom KING, DAVIS, WIENER, BARKSDALE,
STEWART, and DENNIS, Circuit Judges, join, dissenting:
Disregarding months of active litigation, a bench trial in the
district court, and three lengthy opinions on the merits by a panel
of this Court, the majority today announces that the appellees
never had standing to bring this suit in the first place.
According to the majority, there is no proof in the record that the
Does were ever exposed to, and thus injured by, a prayer offered at
a School Board meeting. I disagree. The Does plainly alleged that
they had attended Board meetings and that they had witnessed the
invocations offered there, and the Pretrial Order reveals that the
Board conceded this fact. Yet the majority sidesteps this record
evidence, choosing instead to redraw the parameters of this dispute
and assert that standing is now lacking. I dissent.
In their amended complaint, filed with the district court on
November 26, 2003, the plaintiffs stated:
The Board meetings are open to the public, including
students. Each Board meeting is opened with a prayer,
followed by the pledge of allegiance. Board member
Bardwell has given the invocation. Plaintiffs, John
Doe, James Doe, and Jack Doe, have been in attendance at
school board meetings which were opened with a prayer.
Amd. Compl. Â¶ 9 (emphasis added). In its answer, filed on January
26, 2004, the School Board denied the claim of attendance, but only
for lack of information:
The allegation that meetings of the board are open to the
public is admitted. The remaining allegations of
[End Page 33]
Paragraph 9 are denied for lack of information sufficient
to justify a belief therein.
Answ., Part VII, Â¶ 9. Thus did the parties set the stage for the
district judge: The plaintiffs alleged the crucial fact, plain as
day, and the School Board responded that it did not yet have enough
information to either admit or refute it.
At that time, the fact was legitimately in dispute. Seven
months later, however, it was not. We know this much not due to
any inference or assumption on our part, but because the district
judge and the parties told us so in the Pretrial Order of August
18, 2004. That Order contains an enumerated list entitled
"CONTESTED ISSUES OF FACT." Pretrial Order at 10. Conspicuously
absent from that list is anything about the Does' attendance at the
Board meetings. In other words, as of August 18, 2004, the School
Board no longer contested the factual allegation that the Does had
attended Board meetings. The only contested facts at that point
relate to the merits of the case; they have nothing at all to do
The list reads as follows:
VIII. CONTESTED ISSUES OF FACT
1. Whether the meetings of the Tangipahoa Parish Board are an
integral component of the Tangipahoa public school system?
2. Whether the opening of meetings of [a] public school board,
particularly the Tangipahoa Parish School Board, with prayer is
deeply embedded in the history of this country?
3. Whether public school boards are legislative and deliberative
bodies akin to state legislative bodies?
4. Whether the act of board members, particularly Reverend
[End Page 34]
The Order goes on to say that if necessary, the plaintiffs
could call John, James and Jack Doe to testify, and that all three
would testify regarding the "[f]acts set forth in original and
amending complaints, particularly the events transpiring at the
Tangipahoa Parish School Board Meeting."2 It explains that such
live testimony may not be necessary, however, because "[t]he issue
in this case is purely legal." Pretrial Order at 13 (emphasis
added). This proved to be true. The parties agreed to have the
case tried before a judge on stipulations, and no live witnesses
were called to testify. This was possible solely because there
were no longer any relevant facts in dispute, so no witness
testimony, including that of the Does, was necessary. Viewed in
context, the Pretrial Order and the pleadings provide ample record
Richardson, the board president, and the assistant superintendents,
initiating and leading everyone in prayer prior to the commencement
of board meetings sends a loud, clear message that the board favors
religion and, in this case, Christianity?
5. Whether prayers given to solemnize present the same "coercive
effect" inherent in the classroom at school-sponsored events like a
6. Whether Defendants have exploited the board's practice of
opening its meetings with a prayer to proselytize or advance any
one, or to disparage any other, faith or belief?
7. The amount of attorneys' fees and costs, if any, Plaintiffs are
entitled to recover[.]
8. All issues of fact implicit in the contested issues of law.
Pretrial Order at 10.
As has already been said, the amended complaint specifically asserts
that the Does attended Board meetings and witnessed prayers. The original
complaint states that they were offended by those prayers. See infra note 5.
[End Page 35]
evidence that there was not, and indeed is not, any dispute about
the fact of the Does' attendance at the meetings.
This conclusion becomes all the more certain when we consider
the nature and importance of pretrial orders in litigation.
Federal Rule of Civil Procedure 16(e) states that pretrial orders
"shall control the subsequent course of the action unless modified
by a subsequent order." FED. R. CIV. P. 16(e). One purpose of the
pretrial order is to put the parties on notice as to the evidence
they must be prepared to present. Morris v. Homco Int'l, Inc., 853 F.2d 337
, 342 (5th Cir. 1988) ("The purpose of Rule 8(c), like the
purpose of the requirement that the pretrial order contain all
relevant claims and legal theories, is to inform the court and the
parties how the case will be tried."). In Shell Oil v. M/T GILDA,
790 F.2d 1209
(5th Cir. 1986), we explained as follows:
A party need not offer proof as to matters not contested
in the pre-trial order. A contrary holding would be
inconsistent with the requirement that the pre-trial
order "shall control the subsequent course of the action
unless modified by subsequent order". Indeed, such a
holding would not be consonant with the requirement of
the first rule of the Rules of Civil Procedure: The rules
"shall be construed to promote the just, speedy, and
inexpensive determination of every action".
Id. at 1215 (citing United States v. First Nat'l Bank of Circle,
652 F.2d 882
, 886 (9th Cir. 1981); FED. R. CIV. P. 1, 16(e))
(emphasis added). To dismiss this case now for lack of standing
violates that closing maxim, but worse yet, it creates a contested
fact question where the parties and the district judge agreed there
was not one.
[End Page 36]
Rule 16 and our precedent could not be more clear: Pretrial
orders control the scope of the trial, and those facts not
contested in the pretrial order are not up for debate at a later
date, even if a majority of this court now wants to debate them.
Since 1986, we have told litigants that "[a] party need not offer
proof as to matters not contested in the pre-trial order." Id.
Today we are telling the Does that they had to do just that. This
is not merely an "inconvenience" for the parties (and the district
court); it is trial by ambush. First Nat'l Bank of Circle, 652
F.2d at 886 ("Disregard of these principles would bring back the
days of trial by ambush and discourage timely preparation by the
parties for trial.").3 "Unless pretrial orders are honored and
enforced, the objectives of the pretrial conference to simplify
issues and avoid unnecessary proof by obtaining admissions of fact
will be jeopardized if not entirely nullified." Id. (citing FED.
R. CIV. P. 16).
The Pretrial Order in this case was perfectly typical. It came
about as the product of a pre-trial conference held before the
Ordinarily when we use this term, it is to express our concern that
one party might ambush another. The irony in this case is that the trap was set
not by one of the parties, but by a majority of this en banc Court. In fact, the
parties conscientiously worked to move this case forward toward a ruling on the
merits in a timely fashion. They conducted a productive pretrial hearing; they
entered into a consent judgment that disposed of seven of the eight original
claims; they stipulated to all the necessary and relevant facts. They simply
wanted an answer to the constitutional question presented. Small wonder, then,
that the School Board did not mention standing in either its original or its en
banc brief, the latter of which was filed after the panel addressed the question sua sponte. The reason for this is not that the School Board overlooked standing, but that standing was no longer an issue, nor could it have been given
the procedural history of the case.
[End Page 37]
district judge. It concludes with a very explicit statement drawn
directly from FED. R. CIV. P. 16:
This Pre-Trial Order has been formulated after a
conference at which counsel for the respective parties
have appeared in person. Reasonable opportunity has been
afforded counsel for corrections, or additions, prior to
signing. Hereafter, this order will control the course
of trial and may not be amended except by consent of the
parties and the Court, or by order of the Court to
prevent manifest injustice.
Pretrial Order at 14 (emphasis added). The order is signed by the
district judge and counsel for both parties. The parties must be
held to their word, and we must be held to ours. The pretrial
order controls, and the fact of the Does' attendance is not up for
The record bears out that the Does attended School Board
meetings at which prayers were offered. That exposure gave them
The majority suggests in passing that the clause leaving open "[a]ll
contested issues of fact implicit in the contested issues of law" can be read to
encompass the facts at issue today. See supra note 1 (setting forth "Contested
Issues of Fact"). This is a misreading of the clause, which does not refer
generally to any issues of law that may someday become contested, but rather to
the specifically enumerated "Contested Issues of Law," set forth in the Pretrial
Order. None of those issues has anything at all to do with standing, nor can any
of them be read to implicate the discrete fact of the Does' attendance at the
Board meeting. Of course, standing has become a contested issue now, but this
is not the sort of legal contest that was envisioned or encompassed by the
Moreover, by the time this case went to trial, the parties had entered into
a consent judgment that left the court with only a single "contested issue of
law" to decide: Which case, Lemon or Marsh, governs prayers at a School Board
meeting? The Does' attendance at the Board meeting is not "implicit" in that
legal question. The Does' attendance is implicated only by the question of standing, which is wholly separate from the merits of the case. See Warth v.
Seldin, 422 U.S. 490
, 498 (1975) ("In essence, the question of standing is
whether the litigant is entitled to have the court decide the merits of the
dispute or of particular issues."); Whitmore v. Ark., 495 U.S. 149
, 155 (1990)
(quoting Warth v. Seldin, supra, 422 U.S. at 500) ("[The] threshold inquiry into standing 'in no way depends on the merits of the petitioner's contention that
particular conduct is illegal.'").
[End Page 38]
standing to bring this suit then, and it gives them standing to
maintain it now.5 They are entitled to a decision on the merits,
and we should give them one. I dissent.
Of course, this evidence speaks only to the "injury in fact" prong
of the standing analysis, but that is the only prong at issue in this case.
Neither the majority nor the School Board has suggested that this case poses any
problems of causation or redressability. See Valley Forge Christian College v.
Americans United for Separation of Church and State, Inc., 454 U.S. 464
(1982) (discussing three factors). I note also that, though I have focused solely on the question of the Doe's attendance, there is also no dispute that the
Does were offended by the prayers they witnessed, which is necessary to show
injury in fact. They explicitly alleged as much in their original complaint, see
Orig. Compl. Â¶ 14., and this fact was not in dispute by the time the parties and
the court signed the pre-trial order.
[End Page 39]