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United States Court of Appeals,
Fifth Circuit.
No. 94-10416.
John DOE, Individually and as next friend of Jane Doe, a Minor,
et al., Plaintiffs-Appellees,
v.
DUNCANVILLE INDEPENDENT SCHOOL DISTRICT, et al., Defendants-
Appellants.
Dec. 12, 1995.
Appeal from the United States District Court for the Northern
District of Texas.
Before DAVIS and JONES, Circuit Judges, and MAHON1, District Judge.
W. EUGENE DAVIS, Circuit Judge:
Defendants (collectively, the Duncanville Independent School
District or DISD) appeal the district court's permanent injunction
forbidding certain religious practices in curricular and
extracurricular activities at their schools as violations of the
Establishment Clause of the First Amendment of the United States
Constitution. We affirm in part and reverse in part.
I. FACTS
Plaintiffs in this case are Jane Doe, a student in the
Duncanville Independent School District, and John Doe, her father.
Jane Doe first enrolled in the DISD in 1988, when she entered the
seventh grade at the age of twelve. Doe qualified to play on the
girls' basketball team and was placed in an athletic class
specially designated for team members. This class was held during
1District Judge of the Northern District of Texas, sitting
by designation.
1

the last class period of the day and extended into after school
practice. Students received academic credit for this class and for
their participation in the sport. During her first class, Doe
learned that the girls' basketball coach, Coach Smith, included the
Lord's Prayer in each basketball practice. The basketball team
also said prayers in the locker rooms before games began, after
games in the center of the basketball court in front of spectators,
and on the school bus travelling to and from basketball games.
Coach Smith initiated or participated in these prayers. These
prayers had been a tradition for almost twenty years.
When she first became a team member, Doe participated in these
prayers because she did not wish to single herself out. After
Doe's father attended a game and saw his daughter joining in the
center court prayer, he asked her how she felt about participating.
When told that she preferred not to participate, John Doe told his
daughter that she did not have to take part in the prayers.
Thereafter, Jane Doe no longer participated. At games away from
home and at least one home game, Doe was required to stand by while
the team prayed. Her non-participation drew attention from her
fellow students, who asked her "Aren't you a Christian?" and from
one spectator, who called out "Well, why isn't she praying? Isn't
she a Christian?" At one point during her history class, Doe's
history teacher referred to her as a "little atheist."
John Doe complained about the prayers to the assistant
superintendent of schools, Ed Parker, and his successor, Marvin
Utecht. Utecht halted the prayers at pep rallies, although he
2

insisted there was nothing he could do about the post-game prayers.
Jane Doe also joined the choir program at DISD. Students in
this program also receive academic credit for their participation.
In the seventh and eighth grade choruses, Doe was required to sing
the choir theme song Go Ye Now in Peace, which is based on
Christian text. Upon progressing to the high school choirs, Doe
was required to sing another Christian theme song, The Lord Bless
You and Keep You. David McCullar, the director for the ninth
through twelfth grade choirs, testified that The Lord Bless You and
Keep You had been the choirs' theme song for at least 20 years; he
did not know how it had originally been chosen. The choirs learn
this song as part of their overall repertoire, sing it at the end
of class on Fridays, at the end of some performances and during
choral competitions. They also sing this song on the bus on the
way home from performances. The parties stipulated that the
choir's theme song is a "Christian religious song."
DISD also engaged in a number of other religious practices or
customs, such as holding prayers and distributing pamphlets
containing religious songs at awards ceremonies, allowing
student-initiated prayers before football games2, allowing Gideon
Bibles to be distributed to fifth grade classes, and until 1990,
including prayers during school pep rallies.
On August 15, 1991, the Does filed an application for a
2DISD makes no attempt to distinguish the prayers given
before football games and at awards ceremonies from those given
at basketball games. To the extent that these situations are
materially alike, our opinion applies equally.
3

temporary restraining order and preliminary injunction. Following
a two-day trial, the district court entered a preliminary
injunction forbidding DISD from permitting its employees to lead,
encourage, promote or participate in prayer with or among students
during curricular or extra-curricular activities, including
sporting events. DISD appealed the preliminary injunction, which
was affirmed by this Court in Doe v. Duncanville Independent School
District, 994 F.2d 160 (5th Cir.1993) (Doe I ).
At the permanent injunction hearing, the parties stipulated
that since May 1991, DISD stopped all prayers during class-time.3
Students are still allowed to initiate prayers during athletic
events, but the coaches no longer do so. After the hearing, the
district court found that DISD violated the Establishment Clause by
(1) permitting its employees to lead, encourage, promote or
participate in prayers with students during curricular or
extracurricular events; (2) permitting its employees to initiate,
lead, authorize, encourage or condone the recitation or singing of
religious songs as the theme songs of the schools' choirs; and (3)
authorizing, permitting or condoning the distribution at
Duncanville schools of Gideon Bibles to fifth grade students by
representatives of the Gideon Society, except to the extent
permitted by the Equal Access Act. Based on these conclusions, the
court enjoined DISD from continuing these practices. We discuss
each of Appellants' arguments below.
3However, it appears that prayers did not stop during
basketball practice.
4

II. ANALYSIS
As we noted in Doe I, modern Establishment Clause
jurisprudence is rife with confusion. 994 F.2d at 166 n. 7. This
Court attempted to bring some order to the organization and
application of the existing precedents in Jones v. Clear Creek
Indep. School District, 977 F.2d 963 (5th Cir.1992) (Jones II ), by
identifying three tests that the Supreme Court has used to
determine whether a government action or policy constitutes an
establishment of religion. First, we identified the Establishment
Clause test of longest lineage: the Lemon test. Lemon v.
Kurtzmann, 403 U.S. 602, 612-613, 91 S.Ct. 2105, 2111-12, 29
L.Ed.2d 745 (1971). Under Lemon, a government practice is
constitutional if (1) it has a secular purpose, (2) its primary
effect neither advances nor inhibits religion, and (3) it does not
excessively entangle government with religion. Id. We then
recognized that the Court has also analyzed school-sponsored
religious activity in terms of the coercive effect that the
activity has on students. Lee v. Weisman, 505 U.S. 577, 112 S.Ct.
2649, 120 L.Ed.2d 467 (1992). Lastly, we found that the Court has
disapproved of governmental practices that appear to endorse
religion. See e.g., County of Allegheny v. ACLU, 492 U.S. 573,
594, 109 S.Ct. 3086, 3101-02, 106 L.Ed.2d 472 (1989). See also
Capitol Square Review Board v. Pinette, --- U.S. ----, ---- - ----,
115 S.Ct. 2440, 2452-2456, 132 L.Ed.2d 650 (1995) (O'Connor, J.,
concurring). We will adhere to this approach today.
A. Prayer at Curricular and Extra-Curricular Activities
5

The district court enjoined DISD, its employees and its agents
from:
1. leading, encouraging, promoting, or participating in
prayers with or among students during curricular or
extracurricular activities, including before, during, or after
school-related sporting events. Students, however, are not
enjoined from praying, either individually or in groups.
Students may voluntarily pray together, provided such prayer
is not done with school participation or supervision.
DISD argues that the district court erred by forbidding DISD
employees from participating in or supervising student-initiated
prayers. We will address each asserted error separately.
1. Participation
DISD contends that it cannot prevent its employees from
participating in student prayers without violating their employees'
rights to the free exercise of religion, to association, and to
free speech and academic freedom. We do not agree. As we noted in
Doe I, " "the principle that government may accommodate the free
exercise of religion does not supersede the fundamental limitations
imposed by the Establishment Clause.' " 994 F.2d at 165 (quoting
Lee, 505 U.S. at 586-87, 112 S.Ct. at 2655). See also Berger v.
Rensselaer Central School Corp., 982 F.2d 1160, 1168 (7th Cir.1993)
(free expression rights must bow to the Establishment Clause
prohibition on school-endorsed religious activities). This is
particularly true in the instant context of basketball practices
and games. The challenged prayers take place during
school-controlled, curriculum-related activities that members of
the basketball team are required to attend. During these
activities DISD coaches and other school employees are present as
6

representatives of the school and their actions are representative
of DISD policies. See Bishop v. Aronov, 926 F.2d 1066, 1073 (11th
Cir.1991) ("a teacher's [religious] speech can be taken as directly
and deliberately representative of the school"). DISD
representatives' participation in these prayers improperly
entangles it in religion and signals an unconstitutional
endorsement of religion. See also Board of Education of Westside
Community Schools v. Mergens, 496 U.S. 226, 251, 110 S.Ct. 2356,
2372-73, 110 L.Ed.2d 191 (1990) (quoting Edwards v. Aguillard, 482
U.S. 578, 584, 107 S.Ct. 2573, 2577-78, 96 L.Ed.2d 510 (1987)) (EAA
valid because it expressly forbids teacher participation and
"avoids the problems of "the students' emulation of teachers as
role models' ").4
For these reasons, we find that the district court did not err
in enjoining DISD employees and agents from participating in
student-initiated prayers.
2. Supervision
DISD contends that the district court's statement that
"[s]tudents may voluntarily pray together, provided such prayer is
not done with school participation or supervision" contradicts the
4However, we note that neither the Establishment Clause nor
the district court's order prevent DISD employees from treating
students' religious beliefs and practices with deference and
respect; indeed, the constitution requires this. Nothing
compels DISD employees to make their non-participation vehemently
obvious or to leave the room when students pray in, for example,
a Mergens style setting. However, if while acting in their
official capacities, DISD employees join hands in a prayer circle
or otherwise manifest approval and solidarity with student
religious exercises, they cross the line between respect for
religion and endorsement of religion.
7

Supreme Court's holding in Mergens, 496 U.S. 226, 110 S.Ct. 2356,
110 L.Ed.2d 191 (1990).
In Mergens, the Supreme Court upheld the Equal Access Act
(EAA) requirement that a non-curricular student prayer group be
given the same access to school facilities as other student groups.
Under the EAA, school employees can be present at these religious
meetings for custodial purposes. Id. at 253, 110 S.Ct. at 2373-74.
However, as we explained in Doe I, Mergens does not apply to
the type of activities at issue here. 994 F.2d at 164-65. The
facts before us do not even vaguely resemble a Mergens situation.
Membership on the basketball team is at least extra-curricular: it
is directly related to the school's physical education classes and
students receive academic credit for their participation. The
games are school-sponsored and -controlled events that do not
provide any sort of open forum for student expression and DISD
makes no claim that it has created such a forum for its basketball
team or any other athletic group. Because neither the injunction
nor the facts of this case purport to address a genuine Mergens
situation, we decline to do so here.
We also note that Jones II does not require a different
result. Jones II upheld a school resolution which permitted high
school students to choose whether to have a student volunteer
deliver a non-sectarian and non-proselytizing invocation and
benediction during high school graduation. In concluding that this
resolution did not violate the Establishment Clause, we emphasized
that high school graduation is a significant, once-in-a-lifetime
8

event that could be appropriately marked with a prayer, that the
students involved were mature high school seniors, and that the
challenged prayer was to be non-sectarian and non-proselytizing.
977 F.2d at 966-972. Here, we are dealing with a setting that is
far less solemn and extraordinary, a quintessentially Christian
prayer, and students of twelve years of age (the age at which Jane
Doe first encountered basketball team prayers). These facts place
the prayer at issue here in a materially different position than
the one we permitted in Jones II.
B. DISD Choirs' Theme Song
DISD contends that the district court erred by enjoining DISD
from permitting DISD choirs to sing songs with religious content as
their theme songs. The district court enjoined DISD, its employees
and agents from:
2. initiating, leading, authorizing, encouraging, or condoning
the recitation or singing of religious songs as a theme song
of the Duncanville school choirs. Religious songs may be
sung, however, for their artistic and historic qualities if
presented objectively as part of a secular program of
education.
The district court made only two findings specific to this issue:
(1) that "Jane Doe is a member of the DISD choir and receives
academic credit for her participation in the choir"; and (2) that
"[a]s a DISD choir member, Jane Doe was required to sing a
religious Christian song entitled, The Lord Bless You and Keep You.
This song is sung at each DISD choir performance and has been
adopted by school personnel and students as the choir's theme
9

song."5
All parties recognize that the Establishment Clause does not
prohibit DISD choirs from singing religious songs as part of a
secular music program, in accord with School District of Abington
Township v. Schempp, 374 U.S. 203, 225, 83 S.Ct. 1560, 1573, 10
L.Ed.2d 844 (1963). Thus, the Does essentially contend that the
act of treating The Lord Bless You and Keep You as the theme song,
rather than as simply one song in the repertoire, transforms the
permissible practice of singing this song into an endorsement of
religion. The record reveals that two practical effects flow from
designating this as the theme song: it is sung often and it is
carried over from year to year.6
Legitimate secular reasons exist for maintaining The Lord
Bless You and Keep You as the theme song. As the choir director,
David McCullar, testified, this song is particularly useful to
teach students to sight read and to sing a capella. In Mr.
McCullar's words, it is also "a good piece of music ... by a
reputable composer."
Neither does utilizing The Lord Bless You and Keep You as a
theme song advance or endorse religion. The Does do not argue that
5Although the parties place both theme songs in the record
at issue, the record is more fully developed with regard to The
Lord Bless You and Keep You. We presume that both songs are
identical in the material ways but in the interest of specificity
we will discuss this song in particular.
6Although students are apparently aware that certain songs
are their theme songs, the only concert program in the record
does not identify any song as a "theme song."
10

the choir sings the theme song as a religious exercise per se7 so
we do not accept the notion that repeated singing of a particular
religious song amounts to an endorsement of religion. At trial,
Mr. McCullar estimated that 60-75 percent of serious choral music
is based on sacred themes or text. Given the dominance of
religious music in this field, DISD can hardly be presumed to be
advancing or endorsing religion by allowing its choirs to sing a
religious theme song. As a matter of statistical probability, the
song best suited to be the theme is more likely to be religious
than not. Indeed, to forbid DISD from having a theme song that is
religious would force DISD to disqualify the majority of
appropriate choral music simply because it is religious. Within
the world of choral music, such a restriction would require
hostility, not neutrality, toward religion.8
7This distinguishes the song here from the prayer set to
music in Doe v. Aldine Indep. School District, 563 F.Supp. 883
(S.D.Tex.1982). In Aldine, the challenged song was a
school-composed prayer set to music which students sang before
athletic events. The song in Aldine was more akin to the
pre-game prayers dealt with above than the widely recognized
choral music at issue here.
The fact that singing these songs is not a religious
exercise also means that maintaining them as theme songs
does not impermissibly entangle government with religion or
coerce students into participating in a religious activity.
8The argument that students likely identify their choir by
its theme song is well taken but misses the crucial point that
particularly in the world of choral music, singing about religion
is not the same as endorsing or exercising religion. Students
who identify DISD's choir with The Lord Bless and Keep You will
certainly feel unity with past choirs from the same school but we
are hard pressed to find that this unity necessarily stems from a
common belief in Christianity or Judaism rather than the fact
that the earlier students also attended the same high school.
11

A position of neutrality towards religion must allow choir
directors to recognize the fact that most choral music is
religious. Limiting the number of times a religious piece of music
can be sung is tantamount to censorship and does not send students
a message of neutrality. Where, as here, singing the theme song is
not a religious exercise, we will not find an endorsement of
religion exists merely because a religious song with widely
recognized musical value is sung more often than other songs. Such
animosity towards religion is not required or condoned by the
Constitution.9
We conclude that the district court erred by enjoining DISD
from using songs with religious content as theme songs for its
choirs.
C. Distribution of Gideon Bibles
Lastly, the district court enjoined DISD from:
3. leading, authorizing, permitting or condoning the
distribution of Bibles to students on school premises and
during school hours.
DISD argues that this order is flawed for several reasons. We do
not reach these arguments, however, because we conclude that the
Does lack standing to assert this claim. Although the district
court did not address standing, we will consider this
jurisdictional issue first. In re Taxable Municipal Bond
9The dissent claims that we give DISD more than it asks for
on this point by allowing it to continue to sing its theme songs
without a student referendum on the subject. However, a fair
reading of DISD's argument reveals that DISD is contesting the
injunction as entered. DISD's references to student-chosen theme
songs are merely attempts to characterize the theme songs
currently in place as student initiated.
12

Securities Litigation, 51 F.3d 518, 521 (5th Cir.1995).
The Does concede that Jane Doe was never a member of any class
to which the Gideons distributed Bibles; she did not attend fifth
grade in the DISD and first enrolled there in the seventh grade.
Instead, the Does argue that John Doe has standing to challenge
this policy because he pays taxes in support of the DISD. However,
under the specific facts at hand, we conclude that John Doe's
status as a taxpayer does not vest him with standing.
In order to establish state or municipal taxpayer standing to
challenge an Establishment Clause violation, a plaintiff must not
only show that he pays taxes to the relevant entity, he must also
show that tax revenues are expended on the disputed practice.
Gonzales, 4 F.3d at 1415-1416. This factor is required to
establish both state and municipal taxpayer standing. Cammack v.
Waihee, 932 F.2d 765, 770 (9th Cir.1991) (surveying cases);
Freidmann v. Sheldon Community School District, 995 F.2d 802, 803
(8th Cir.1993). We find no evidence in the record that even
suggests that DISD expends any funds on the Gideons' Bible
distribution. The Gideons themselves supply the Bibles and simply
lay them on a table on the school foyer. The Gideons do not
address the students, the school does not make any announcement
informing the students about the Bibles, and no school district
employees handle the Bibles.10 There is no evidence that the school
10In his testimony, Ed Stevens, superintendent of DISD,
suggested that a number of years earlier the DISD was more
directly involved with the Gideon's Bible distribution. The Does
do not contend that either DISD or the Gideons wish to resume
this practice.
13

district bought the table especially for the Bible distribution or
that the table has been set aside for this sole purpose. In sum,
there is nothing in the record that would allow us to conclude that
DISD expends any funds or resources on its policy of permitting the
Gideons to distribute Bibles to the fifth grade class.
For this reason, we conclude that John Doe does not have
standing.11 Accordingly, we vacate the district court's judgment
as to DISD's policy on Bible distribution and remand for the court
to dismiss that portion of the complaint.
For the above reasons, the final judgment and order of the
district court is AFFIRMED in part, REVERSED in part, and REMANDED
in part for dismissal.
EDITH H. JONES, Circuit Judge, concurring and dissenting:
I concur in Judge Davis's opinion insofar as it rejects an
Establishment Clause challenge to the DISD choir's choice of songs
or "theme song" and holds the Gideon Bible controversy moot. I
dissent with qualifications in the majority's upholding an
injunction against active teacher "participation" and "supervision"
of the voluntary student-initiated prayers. "Participation", in
one sense, cannot constitutionally be prevented by this court,
while "supervision," rightly understood, cannot be broader than the
11The Does also do not contend that Jane Doe has standing by
virtue of her exposure to the Bible distribution, see Washegesic
v. Bloomingdale Public Schools, 33 F.3d 679, 681-83 (6th
Cir.1994), and we note that the record would not support such a
claim. Indeed, the record strongly suggests that Jane Doe would
never have even seen the Bibles, because the fifth grade is
housed in a separate school facility than the seventh through
twelfth grades.
14

concept of the school's encouraging, promoting or leading the
prayers.
This decision, like that in Doe I, does not prevent students
from exercising their constitutional rights of free speech,
association and free exercise by praying at appropriate times and
in an appropriate manner during athletic practices or games.
Further, we must abide by the Supreme Court's decisions, reflected
in the injunction, that prevent active school leadership,
encouragement or promotion of the prayers. The only questions here
are how teachers may respond to student-initiated prayers and to
what extent the school may "supervise" the prayers. My differences
with the majority are those of emphasis.
There is practically no doubt that the trend in Supreme Court
establishment clause cases supports the majority's decision insofar
as it prevents teachers from actively joining in the student-led
prayers, e.g., by joining hands in the prayer circle. Such actions
would, according to at least five members of the Supreme Court, too
easily connote official endorsement and would imply coercion of
non-participants. As the majority properly observed, however,
teachers are not prohibited from exercising deference and respect
toward student-initiated prayers. I would add to this that the
line between deference and sympathetic reverence is a fine one that
cannot and should not be policed, if teachers' individual freedom
of conscience is to retain any meaning in this context. The
federal courts may currently prevent school-sponsored or -promoted
religious devotional exercises, but surely they may not reach into
15

the minds of individual teachers to prescribe their responses to
student-initiated prayers. Neither Jane Doe nor any federal court
in the United States of America may insist upon a purge of the
teachers' spiritual response to student prayers.
As for the term "supervision," I agree that this is not
technically a Mergens case involving the Equal Access Act. What
"supervision" means in the context of basketball practices and
games is, however, ambiguous. At a broad level, everything that
goes on during practice or competition, including student-initiated
locker-room or basketball court prayer, is subject to the coaches'
"supervision." To outlaw supervision on this level would be to
outlaw the otherwise constitutional student-led prayers. Neither
the majority nor the district court intends this untenable result.
It must be, then, that the injunction pertains only to active
supervision and is thus redundant of the cautions that the school
may not promote, encourage or lead prayers.
Finally, the majority's citation of Bishop v. Aronov, 926 F.2d
1066, 1073 (11th Cir.1991) should not be taken as endorsing the
entire holding and discussion of that case. Bishop involved the
very different and troubling question whether a teacher has the
right to express his personal religious convictions during the
teaching of college classes. The Supreme Court has repeatedly held
that teaching about religion is a significant part of students'
educational experience. See Edwards v. Aguillard, 482 U.S. 578,
605, 107 S.Ct. 2573, 2589-90, 96 L.Ed.2d 510 (1987) (Powell, J.,
concurring) (familiarity with the nature of religious beliefs is
16

necessary to understand historical and contemporary events);
School District of Abington Township v. Schemp, 374 U.S. 203, 225,
83 S.Ct. 1560, 1573, 10 L.Ed.2d 844 (1963) (one's education is not
complete without the study of religion and its relationship to
civilization). Integrating religion into the curriculum in
subjects where it is clearly appropriate for discussion raises a
host of issues beyond the scope of this opinion. Because I do not
doubt that the Supreme Court would hold that DISD coaches and other
school employees may be taken to represent the school if they
actively join in the student-initiated prayers, Bishop is relevant
only on this narrow point.
MAHON, District Judge, dissenting in part:
Although I join in the majority opinion with respect to DISD's
involvement in prayer and the distribution of Gideon Bibles, I
respectfully disagree with my colleagues that DISD's choice of
religious theme songs for its choirs is consistent with the First
Amendment. Viewed as a whole, the facts in this case fully support
the district court's prohibition of DISD's participation, in any
form, in the use by its choirs of religious theme songs.
Accordingly, I dissent from the majority's decision to reverse the
district court's ruling on this issue.
Although the majority opinion sets forth many of the facts in
the case, it will help to recount here those facts which
demonstrate the similarity between the DISD's choice of a religious
theme song and its other religious practices, which the majority
agree are unconstitutional.
17

It is undisputed that for some twenty years, DISD, through the
actions of its teachers and other employees, permitted, encouraged
and even sponsored the recitation of prayers during curricular and
extracurricular activities. Prayers were recited during classes.
Many events were begun and closed with a prayer. Sports teams
recited prayers before games in the locker rooms, after games on
the field and in the buses returning to school. At award
ceremonies, prayers were recited and DISD teachers distributed
pamphlets of religious songs for participants to sing. The prayers
and songs were always Christian.
During the same twenty year period, DISD choir teachers
treated as the theme song for the ninth grade and high school
choirs what the parties have stipulated is a Christian religious
song entitled The Lord Bless You and Keep You. The song is in the
form of a prayer seeking God's blessings on behalf of a third
party.1 The theme song was sung at the end of each performance
except when circumstances made it inappropriate, such as when
members of the choir performed as a barbershop quartet. In
addition, the choir sang the song on the bus on the way home from
performances and at the end of class each Friday. The students
1The words of the song are:
The Lord bless you and keep you, the Lord lift His
countenance upon you; and give you peace, and give you
peace, the Lord make his face to shine upon you, and be
gracious unto you, be gracious, the Lord be gracious,
gracious unto you. Amen, Amen, Amen, Amen, Amen.
This text, taken from the Old Testament, Numbers VI, 24-26,
would be better characterized as Judeo-Christian.
18

were not given an opportunity to choose a new theme song each year
or to determine whether to have a theme song at all. Rather, the
song was passed on as an established tradition to incoming choir
teachers, who in turn taught it to each new group of students.
Although there apparently was no formal, written designation of the
theme song, choir teachers and students were aware that the
specified song was the theme song and treated it accordingly.
DISD's intermediate school choir had a different theme song,
which was also a Christian religious song. Although the record is
less developed as to this song, Go Ye Now in Peace, the evidence
shows that it also was sung at the end of each performance.
The district court did not make many specific factual findings
with respect to the theme songs, and did not address the songs as
a separate legal issue. Rather, the court analyzed DISD's
religious practices, including the use of prayers and religious
theme songs, as part of a single pattern. Applying the three part
test set forth in Lemon v. Kurtzman,2 the court concluded that
there was no secular purpose for the practices, that their primary
effect was to advance religion, specifically the Christian faith,
and that they fostered an excessive entanglement of DISD with the
Christian creed. Going further, the district court found that
DISD's policy endorsed religion, and was coercive because students
were pressured to participate in the religious practices. Any one
2403 U.S. 602, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971).
Under Lemon, to survive an Establishment Clause challenge, a
statute or practice must have a secular purpose, its primary
effect must neither advance nor inhibit religion, and it must not
foster excessive government entanglement with religion.
19

of these findings would have been a basis for determining that
DISD's practices constituted an impermissible establishment of
religion. See Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120
L.Ed.2d 467 (1992) (government's compulsion of attendance at and
participation in religious exercise violates First Amendment);
County of Allegheny v. American Civil Liberties Union, 492 U.S.
573, 591-93, 109 S.Ct. 3086, 3100-01, 106 L.Ed.2d 472 (1989)
(government may not act in way that endorses religion); Doe v.
Duncanville Indep. Sch. Dist., 994 F.2d 160, 163 (5th Cir.1993)
(violation of Establishment Clause where challenged practice fails
to satisfy any one of Lemon factors). It is important to note that
although the district court therefore prohibited DISD from any
involvement in the choice or use of religious theme songs for its
choirs, the court expressly acknowledged that religious songs could
be presented objectively for their artistic and historic qualities
as part of a secular music program.
The district court did not err in viewing DISD's choice of
religious theme songs as an inseparable part of its historical
pattern of encouraging and endorsing Christian religious beliefs
through the activities of its teachers. This is not a case where
the choice of theme songs was the only arguably religious practice
involved, but one where expression of religious belief was
permitted and approved at almost every level of school life. In
virtually the same way that prayers were recited during classes,
sports and other events, the choirs' theme songs were used to mark
the close of performances and the week, and to unify participants
20

in a common outlook. Viewed in this context, the theme songs
served as yet another vehicle for inculcating a Christian attitude,
and their singing constituted a religious exercise.
The majority does not disagree with the legal principles
applied by the district court. Instead, by ignoring the role and
effect of theme songs in general, and the connection between DISD's
theme songs and its other religious practices in particular, the
majority reaches the conclusion that DISD's religious theme songs
had a secular purpose and did not have the effect of advancing or
endorsing religion. An analysis of the majority's reasoning shows
it to be faulty in several respects.
Before addressing the majority's conclusions, it is important
to review DISD's own justification for the choice of religious
theme songs for each of its choirs. DISD has offered two
purportedly secular reasons for this practice. It asserts, first,
that the theme songs solemnize events as did the prayer found to be
constitutional in Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d
963 (5th Cir.1992). The holding in Jones, however, was limited to
very specific circumstances which are not present here. Jones
upheld a school district resolution that permitted the delivery of
a non-sectarian, non-proselytizing prayer in only one context, a
high school graduation ceremony, where solemnization was found
appropriate to mark a once-in-a-lifetime occasion.3 By contrast,
3In addition, the prayer in Jones withstood challenge only
because students determined whether to have a prayer and what its
contents would be without any direction from school officials.
977 F.2d at 970 (comparing Lee, where the Supreme Court found a
non-sectarian, non-proselytizing prayer at graduation
21

DISD's choirs' theme songs were sung repeatedly, not only at
performances throughout the year, but also on the buses returning
from performances and at the end of class each Friday, occasions
not generally thought of as requiring a solemnizing ceremony. In
asserting that a religious theme song is needed to achieve
solemnity in such circumstances, some of the same ones in which
DISD traditionally initiated or permitted the recitation of
prayers, DISD inadvertently supports the conclusion that it chose
religious theme songs not for any secular reason, but for the very
purpose of encouraging religious reverence through yet another
avenue.
DISD next contends its theme songs provide unity and
comraderie for choir members. To the extent DISD means simply that
having a theme song serves to unify choir members, this explanation
adds nothing to the analysis, because the challenged injunction
does not forbid the use of theme songs, per se. Nor does the
reference to unity and comraderie, by itself, answer the question
of the purpose of having religious theme songs. DISD does not
specify which elements of its theme songs are critical to creating
unity and comraderie. We already know, however, that DISD believes
the songs have a solemnizing function, that is, a function most
often played by prayer. See Jones v. Clear Creek Indep. Sch.
Dist., 930 F.2d 416, 420 (5th Cir.1991) (indicating there is no
unconstitutional because of the state's involvement in soliciting
it and defining its contents). Here it is undisputed that DISD
faculty, not students, chose to perpetuate religious theme songs.
This aspect of the theme songs is discussed further below.
22

secular equivalent of a prayer for solemnization purposes). The
theme songs were sung in circumstances likely to emphasize their
religious message. Further, we cannot ignore the long history of
this school district authorizing and encouraging the recitation of
Christian prayers, especially as a means to unify the school and
its teams before and after competitions and other special events.
In light of this history, DISD's choice of theme songs that
essentially are prayers can hardly be viewed as a coincidence.
Rather, the religious nature of the songs clearly was expected to
be an inextricable part of their role in fostering unity and group
identification.
Apparently not satisfied with DISD's explanation, the majority
finds its own secular reasons for maintaining God Bless You and
Keep You as the high school choirs' theme song: the song's
usefulness for teaching students to sing a capella and its worth as
a good piece of music by a reputable composer. These
characteristics of the song, however, do not answer the question of
DISD's purpose in designating it, or any religious song, as a theme
song. DISD is free to teach religious songs and obtain their
secular benefits as part of the music curriculum without giving
them the special treatment it has accorded its theme songs.
Moreover, the evidence shows that God Bless You and Keep You is not
unique in the characteristics singled out by the majority. DISD's
high school choir director testified that there are from 25 to 50
secular songs that are sung a capella and would make suitable theme
songs for the choir. In fact, DISD itself has not argued that it
23

chose religious theme songs for their educational or musical
qualities, as the majority suggests. Under the circumstances, the
majority's attempt to propose secular reasons not even offered by
DISD carries no weight. Once it was clear DISD's purported secular
purposes for using religious theme songs were actually religious in
nature, the district court was justified in concluding that the
choice of religious theme songs had no secular purpose.
As with the question of purpose, the majority's narrow
findings regarding the effects of designating a religious theme
song--that the song was sung often and was carried over from year to
year--disregard the characteristic role and resulting effects of a
theme song. In common understanding, a theme song is a song used
by a group to represent or identify itself. See Webster's New
World Dictionary of the American Language 1474 (2d College ed.
1972). By choosing a particular song, the group expresses a shared
emotion, experience or outlook. The theme song is played at each
of the group's meetings or performances and has special
significance for the group and for others who identify the group by
its song.
DISD intended its choirs' religious theme songs to play this
role. Though the theme songs were singled out from the overall
music program by their continual singing throughout the year,
thereby achieving a prominence not enjoyed by other songs, this was
not the sole effect of their designation. More importantly, the
theme songs were given special emphasis by their placement at the
close of performances and, in the case of the high school choirs'
24

song, its use to and class on Fridays, treatment that served to
highlight the songs' sacred character.4 Choir members were
informed that the song was their theme song and a tradition at the
school, thereby being directed, in effect, to at least
superficially identify themselves with it. Indeed, the choir
teacher testified that the theme song was supposed to give the
students a sense of unity, comraderie, belonging, and something to
identify with. Since any student, upon learning that a particular
song is his or her group's theme song, would look to the words of
the song as an important part of its special meaning, the school's
designation of a theme song that consists entirely of calls for
God's blessing could not help but reinforce existing religious
belief and convey the impression to believers and nonbelievers
alike that the school favored religion. In fact, Jane Doe
indicated she felt the choirs' theme songs reflected and embodied
DISD's favor for Christian beliefs. The district court did not err
in determining that DISD's choice of religious theme songs had the
primary effect of advancing and endorsing religion. See Jones II,
977 F.2d at 967 (practice advances religion if it increases
religious conviction); County of Allegheny v. American Civil
Liberties Union, 492 U.S. 573, 593-94, 109 S.Ct. 3086, 3101, 106
L.Ed.2d 472 (1989) (endorsement occurs where government gives
4The evidence suggests that DISD choir performances were
carefully arranged to give religious songs, including the theme
songs, the role that prayers played in other DISD events. For
example, during the time that Jane Doe was in the intermediate
school choir, one performance began with the song Before Our Lord
and King and ended with the theme song. The rest of the songs in
the performance were secular in nature.
25

message that religion or a particular religious belief is favored
or preferred).
Adopting DISD's reasoning, the majority attempts to minimize
the significance of the choice of a religious theme song by
pointing to the choir teacher's estimate that 60-75 percent of
serious choral music is based on sacred themes or text.
Considering these figures, it suggests, statistical probability
would predict that a religious song would be best suited to serve
as the theme song. This apparent logic obscures the real questions
at issue--the purpose and effects of DISD choosing religious theme
songs. This is not a case where the students, or even the
teachers, have picked a theme song each year and statistics would
predict the choice of a religious song some percentage of the time.
Nor has DISD directly claimed that it chose its particular theme
songs because they were better suited to that purpose than any
secular songs.5 Thus, there is no basis to conclude that the
relative percentages of religious and secular music have had any
bearing on DISD's purpose in choosing a religious theme song.
Similarly, that religious songs may constitute the majority of
serious choral music does not minimize the religious effects,
5Of course, to the extent DISD has argued that the purpose
of its religious theme songs is to promote solemnity and unity,
it implies that the religious nature of the songs is the very
quality that makes them best suited to the purpose. Presumably,
however, when the majority speaks of a song being best suited to
be a theme song, it refers to secular qualities it imagines might
be important in a theme song.
26

discussed above, of DISD designating a religious theme song.6
Not only does the majority stretch to circumvent the district
court's reasonable conclusions, but it grants greater relief than
DISD has argued for in its appellate briefs. The district court's
injunction enjoins DISD from "initiating, leading, authorizing,
encouraging or condoning" the recitation or singing of religious
songs as theme songs. DISD does not argue that this entire part of
the injunction should be overturned, as the majority has done, but
only that, under Jones II, if students choose a religious theme
song, the school should be able to lead, authorize and condone its
singing. In other words, DISD essentially concedes that the school
district itself may not properly initiate or encourage the choice
of a religious song as a theme song. Therefore, at a minimum, we
should affirm the injunction to the extent it prohibits the school
6The majority also adopts DISD's argument that because
religious songs constitute a majority of choral music, preventing
DISD from choosing a religious theme song actually amounts to
hostility against religion. However, neither DISD nor the
majority have shown that DISD's use of only secular songs as
theme songs would have the effect of inhibiting religion or
denying the importance of religious choral music. The district
court's injunction does not limit in any way the number or
percentage of religious songs the choir may include in its music
program, or the number of times any religious song may be sung;
based on the conclusion that DISD's religious theme song had an
impermissible purpose and effect, it simply prevents a religious
song from being given the special treatment associated with a
theme song. Though the effect may be to limit religious
exercises in some circumstances, requiring the government to
refrain from practices that advance or endorse religion does not
constitute hostility against religion. See Lee, 505 U.S. at 586-
87, 112 S.Ct. at 2655; School Dist. of Abington Township v.
Schempp, 374 U.S. 203, 225-26, 83 S.Ct. 1560, 1573, 10 L.Ed.2d
844 (1963); Karen B. v. Treen, 653 F.2d 897, 902-03 (5th
Cir.1981), aff'd, 455 U.S. 913, 102 S.Ct. 1267, 71 L.Ed.2d 455
(1982).
27

from initiating or encouraging the choice of religious theme
songs.7
In addition, however, we should also affirm as to the
prohibition on DISD authorizing, leading or condoning a
student-chosen religious theme song. First, the evidence shows
that a large number of DISD students are well aware, through the
chain of siblings and teachers, that the district schools have a
tradition of prayer and using specific religious theme songs. Most
DISD students have supported these traditions. As a result, any
choice of a theme song by students from a pool of songs that
includes DISD's "traditional" theme songs is unlikely to be truly
free.
Moreover, even if made without pressure of any sort, a
majority student vote would not validate the choice of a religious
theme song. Since DISD has not indicated otherwise, we can assume
that if students chose a religious theme song, DISD would treat it
in the same fashion as in the past. In other words, the sacred
qualities of the song would be emphasized such that its singing
would be a form of religious exercise. This would be true in any
event because, as discussed earlier, designation of a theme song,
whether by faculty or students, is certain to endow the words of
the song with special meaning and demand facial allegiance from the
group. School supervision, leadership and control of the choir,
7Since the evidence shows that DISD's affirmative
involvement in the choice of a religious theme song had no
secular purpose and had the primary effect of advancing and
endorsing religion, even if DISD did not concede this point the
injunction should be upheld in this respect.
28

including the teaching, practicing and performance of the theme
song, would place pressure on all choir members to participate in
and identify with that song. Thus, the school district's
authorizing, leading and condoning of a student-chosen religious
theme song would still have the effect of advancing and endorsing
religion and would act as a coercive force on dissenters. See Lee,
505 U.S. at 592-93, 112 S.Ct. at 2658 (school district's
supervision and control of graduation ceremony pressures attending
students, at a minimum, to show respect for invocation and
benediction). As the majority notes with respect to
student-initiated prayer, neither Jones nor Board of Education of
Westside Community Schools v. Mergens8 permit this kind of school
involvement in student-initiated religious activities during the
regular curriculum-related program.
Because the record supports the injunction against any school
involvement in the choice or use of a religious theme song, I would
affirm the district court on this issue.

8496 U.S. 226, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990).
29