Neil J. Mellen Paul S. Knick v. Josiah Bunting, Iii, in His Individual Capacity and in His Official Capacity as Superintendent, Virginia Military Institute, Specialty Research Associates, Inc. First Principles, Inc. Coalition of American Veterans, Inc. Naval Aviation Foundation, Inc. The National Legal Foundation, Amici Supporting Americans United for Separation of Church and State Anti-Defamation League the American Jewish Committee, Amici Supporting Neil J. Mellen Paul S. Knick v. Josiah Bunting, Iii, in His Individual Capacity and in His Official Capacity as Superintendent, Virginia Military Institute, Americans United for Separation of Church and State Anti-Defamation League the American Jewish Committee, Amici Supporting Specialty Research Associates, Inc. First Principles, Inc. Coalition of American Veterans, Inc. Naval Aviation Foundation, Inc. The National Legal Foundation, Amici Supporting
Docket: 02-1215
Court: Court of Appeals for the First Circuit; April 28, 2003; Federal Appellate Court
The court case involves Neil J. Mellen and Paul S. Knick as plaintiffs against General Josiah Bunting, III, in his capacities as Superintendent of the Virginia Military Institute (VMI). The Fourth Circuit Court of Appeals reviewed the district court's decision, which awarded declaratory and injunctive relief against VMI's daily "supper prayer," deemed a violation of the Establishment Clause of the First Amendment. The plaintiffs, having graduated from VMI, rendered their claims for relief moot, leading to the vacation of that part of the district court’s judgment. However, the court upheld the finding that the supper prayer violated constitutional provisions while granting General Bunting qualified immunity. The case reflects VMI's status as a state-operated military college, established in 1839 and funded by the Commonwealth of Virginia, with a mission to prepare cadets for military leadership and service.
VMI employs an adversative training method derived from English educational philosophy, emphasizing physical rigor and mental stress, with minimal privacy and strict regulation of behavior. This approach aims to develop physical and mental discipline, instill a moral code, and prepare cadets for military leadership by teaching self-control and the subordination of personal desires. The indoctrination process includes hazing rituals for new cadets, or "rats," who are collectively rewarded or punished based on individual behavior that aligns or conflicts with VMI's objectives. Throughout their four years, cadets are expected to maintain submission and conformity.
The Supreme Court noted that VMI graduates are equipped to handle duress and stress, achieving a sense of accomplishment from their rigorous education. Cadets live under strict military regulations in barracks with constant surveillance and no privacy, participating in drills and communal dining. They must adhere to a schedule that limits their campus exit times, and room and board fees cover all meals, served in a communal setting. The evening supper routine involves a structured roll call and formation, with first-year cadets required to participate fully, while upperclassmen have more privileges. The formation process culminates in a ceremonial presentation to a faculty member, followed by the reading of a prayer before meals.
The SRC ceremony occurs daily except Saturdays, featuring a unique supper prayer by Post Chaplain Colonel James S. Park, which varies in opening address based on the day. The prayers express gratitude and seek blessings, concluding with an invocation thanking God for the meal. Cadets must remain silent and standing during the prayer but are not required to participate actively. On January 23, 2001, Plaintiffs requested that cadets be allowed to ignore the prayer in the Mess Hall, which was denied. General Bunting responded by affirming the prayer's constitutionality and its cultural significance. On May 9, 2001, the Plaintiffs filed a complaint in the Western District of Virginia, claiming the prayer violated the Establishment Clause, Virginia Constitution, and the Virginia Act for Religious Freedom. After discovery, cross motions for summary judgment were filed, resulting in a January 24, 2002 ruling favoring the Plaintiffs, which enjoined General Bunting from sponsoring the prayer based on the Lemon test. The court found General Bunting entitled to qualified immunity regarding monetary damages. Both parties have appealed aspects of the ruling, and the Plaintiffs graduated from VMI in May 2002. The jurisdictional issue of mootness arises since the Plaintiffs no longer attend VMI, as constitutional jurisdiction is confined to actual cases and controversies.
An actual, ongoing controversy must exist throughout the duration of a legal action; once a case becomes moot after a district court's judgment, appellate courts lose jurisdiction to hear appeals. For students challenging school policies, their claims for declaratory and injunctive relief typically become moot upon graduation, as no case or controversy remains once all named plaintiffs have graduated. This principle is supported by several case law precedents. Although graduates may argue their claims fall under the "capable of repetition, yet evading review" exception to mootness, this is rarely applicable since they will not be subject to the school's policies again after graduation. The exception requires that the challenged action is too short in duration to be fully litigated and that there is a reasonable expectation of being subjected to the same action again, neither of which applies to graduated students. If a case becomes moot after a district court's final judgment but before appellate review is complete, the usual remedy is to vacate the judgment and remand for dismissal. This vacatur is equitable and applies when mootness results from circumstances beyond the losing party's control, but not if it arises from the voluntary actions of that party. As the plaintiffs’ claims have become moot due to their graduation, the district court's judgment awarding declaratory and injunctive relief is vacated.
Plaintiffs' claims for declaratory and injunctive relief are rendered moot by the student's graduation, but their damage claim remains active. The district court found a constitutional rights violation related to General Bunting's implementation of a supper prayer, yet ruled that these rights were not clearly established at that time, granting Bunting qualified immunity. Plaintiffs are appealing this decision.
In assessing qualified immunity, the first step is to determine if the plaintiffs’ allegations, if true, constitute a constitutional violation, fostering legal clarity and evolution. If a violation is established, the next step evaluates whether the defendant infringed on clearly established statutory or constitutional rights that a reasonable person would recognize. The analysis emphasizes the importance of addressing the constitutional issue before the qualified immunity question.
The First Amendment’s Religion Clauses, which prohibit the government from establishing or interfering with religion, apply to states through the Fourteenth Amendment. Supreme Court precedents confirm that states cannot sponsor prayer in elementary and secondary schools, though the constitutionality of state-sponsored prayer in public colleges remains unaddressed. Relevant case law, such as Engel v. Vitale, illustrates that state-sponsored prayer is inherently religious and thus impermissible in public education settings.
The Court asserts that the government must not compose official prayers for any group of Americans, as this violates the constitutional prohibition against laws respecting an establishment of religion. It emphasizes that a prayer, regardless of being denominationally neutral or voluntary, still falls under the limitations of the Establishment Clause. This principle was reaffirmed in School Dist. of Abington Tp. v. Schempp, where the Court deemed unconstitutional the practices of public schools beginning the day with Bible readings or the Lord's Prayer, stressing that the state cannot sponsor any prayer, even nondenominational ones, as it would aid or prefer certain religions. Students' ability to leave during these practices does not remedy the violation.
In Wallace v. Jaffree, the Court invalidated an Alabama statute mandating a moment of silence for meditation or voluntary prayer, applying the Lemon test, which requires a statute to have a secular purpose, not advance or inhibit religion, and not create excessive government entanglement with religion. The Court found no secular purpose in the statute's reference to prayer, failing the first prong of the Lemon test. In Lee v. Weisman, the Court struck down a practice of inviting clergy for a nonsectarian prayer at a school commencement, citing the coercive nature of the activity. It highlighted that participation in state-sponsored religious activities is effectively obligatory, thus constituting unconstitutional coercion of religious worship.
The Supreme Court case Santa Fe Independent School District v. Doe (2000) invalidated a policy allowing students to vote on delivering a prayer at football games. The Court determined that the invocation constituted public speech due to the school's active role in facilitating it, including using the public address system and having a representative speaker supervised by school faculty. The Court also found the pregame prayer coercive, as attendance was pressured through social expectations and mandatory attendance for certain students, leading to the conclusion that such practices violate the Establishment Clause, which prohibits public schools from sponsoring official prayers.
The document further explores how other circuits have addressed state-sponsored prayer in higher education. In Anderson v. Laird (1972), the D.C. Circuit ruled that a military academy's requirement for cadets to attend chapel services violated the Establishment Clause, emphasizing that the government cannot compel individuals to participate in religious practices, even when attendance was technically voluntary. Conversely, in Tanford v. Brand (1997), the Seventh Circuit upheld a religious invocation at a university graduation, arguing it was not coercive as attendance was optional and participants felt free to engage or not. Similarly, the Sixth Circuit in Chaudhuri v. Tennessee (1997) upheld prayer at graduation, asserting it served a secular purpose of solemnizing events without undue influence on an educated audience.
The court determined that the inclusion of nonsectarian prayers or moments of silence at school events does not create church-state entanglement. General Bunting argued that the Establishment Clause does not prohibit Virginia Military Institute's (VMI) supper prayer, advocating for the application of the Supreme Court's reasoning in Marsh v. Chambers, which upheld legislative prayer due to its historical context. Bunting contended that prayer is ingrained in military traditions and was not intended to be excluded by the First Amendment. Conversely, the Plaintiffs asserted that the supper prayer is akin to government-sponsored prayers deemed unconstitutional in prior cases, highlighting its composition by a state official and its delivery during an official VMI function, which they argue conveys a strong state endorsement.
The court noted that to assess the supper prayer's constitutionality, it must establish the relevant legal standard. Bunting suggested that the prayer should be viewed through a historical lens similar to Marsh, which was influenced by the concurrent establishment of legislative prayer and the First Amendment. However, the court clarified that Marsh's applicability is limited to specific historical circumstances, as recognized in subsequent rulings, and that the unique historical context of Marsh does not extend to contemporary practices at public universities or military colleges like VMI, which did not exist at the time the Bill of Rights was adopted. Thus, the rationale in Marsh is not suitable for evaluating the constitutionality of VMI's supper prayer.
The Marsh analysis is rejected, leading to the application of three traditional tests for Establishment Clause challenges. The most commonly used is the Lemon test, which evaluates the constitutionality of government actions concerning religion. The endorsement test, articulated by Justice O'Connor, prohibits government actions that would lead a reasonable observer to believe religion is being endorsed. The coercion test, established in Lee, prohibits the government from coercing individuals to support or participate in religious activities. While the Lemon test is the dominant framework for Establishment Clause cases, coercion has become particularly significant in school prayer contexts. Federal appellate courts have inconsistently applied these tests in such cases.
The court emphasizes reliance on the Lemon test until it is overruled by the Supreme Court, while also taking into account coercion principles from Lee and Santa Fe. Assessment of the supper prayer will follow these principles and apply the Lemon criteria, viewing the endorsement test as an aspect of Lemon's second prong. According to Lee and Santa Fe, school officials cannot compel student participation in religious activities or aid in composing prayers for formal exercises, as this may appear coercive to students.
General Bunting defends the supper prayer's constitutionality by arguing that VMI's cadets, as mature adults, would not feel coerced to participate. He suggests that other Corps members can avoid the prayer by leaving the formation before entering the mess hall. However, it is recognized that even adult students can be susceptible to coercion, particularly in VMI's strict educational environment, which emphasizes regulation of conduct and moral indoctrination. Comparisons are made to decisions in other circuits where invocations at university graduations were deemed non-coercive, but VMI's unique context raises concerns about the potential for coercion among cadets.
Upperclassmen at Virginia Military Institute (VMI) engage in a culture of hazing that bonds new cadets through shared suffering, leading to a complex relationship with their tormentors. VMI's educational philosophy emphasizes obedience and conformity, evidenced by the reintroduction of a supper prayer in 1995 by General Bunting aimed at fostering solidarity among cadets. However, this creates a coercive environment where participation in the prayer is effectively mandatory, raising concerns under the Establishment Clause. Despite claims of voluntary participation, the communal dining setting and the pressure from upperclassmen make attendance feel obligatory. The Supreme Court has established that social pressure cannot be used to enforce religious practices, leading to the conclusion that VMI's supper prayer imposes an unconstitutional burden on those who object on religious grounds.
While VMI cadets are free to pray individually, the establishment of a formal prayer is prohibited. An evaluation against the Lemon test reveals that, although the prayer may superficially satisfy the secular purpose requirement, it fails on the second and third prongs, which address the prayer's effect on religion and government entanglement. The first prong examines the government's intent, indicating that a genuine secular purpose must be distinguished from a sham. The state’s professed secular intent, while deserving some deference, must be critically assessed to prevent the endorsement of religious practices under the guise of secularism.
General Bunting has proposed several secular justifications for the supper prayer at VMI, asserting it aids in developing cadets into leaders by promoting religious tolerance, educating them about religion, and encouraging personal spiritual reflection. He argues that the prayer fulfills an expressive function by allowing for thanksgiving and seeking divine guidance, while also accommodating cadets' spiritual needs and their rights to free exercise, which he claims are limited by the structured nature of their environment.
However, there is concern that Bunting conflates education about religion with the imposition of religious practice. Courts have historically rejected claims of secular purpose for activities with overtly religious characteristics, noting that prayer is inherently religious and fulfills both a religious purpose and effect. This aligns with previous cases, such as one where the D.C. Circuit dismissed the government's argument that mandatory chapel attendance had a secular purpose. The court found that the regulation did not meet the secular purpose requirement of the Lemon test, referencing similar rulings in other cases, including the prohibition of teaching evolution without creation science and the mandate to display the Ten Commandments in public schools, both of which were deemed lacking in secular justification.
The Supreme Court determined that the primary purpose of displaying the Ten Commandments in classrooms is religious, as they are sacred texts in Judaism and Christianity. The Court emphasized that no legislative claim of a secular purpose could obscure this religious intent. Furthermore, the Court found that the official school prayer, despite any secular motivations attributed to it, also failed the "primary effect" prong of the Lemon test. This prong assesses whether government actions suggest a preference for a particular religion or religion in general, and it was concluded that the supper prayer effectively promotes religion, signaling that the Virginia Military Institute (VMI) endorses the religious messages it contains. The prayer is delivered at a school-sponsored event, leading an objective observer to perceive it as state endorsement of prayer in public schools, which contradicts the principle of government neutrality towards religion. Despite VMI's intentions for the prayer to be inclusive and non-denominational, the Establishment Clause prohibits the state from promoting religious practices. The First Amendment ensures that the government cannot control or influence the types of prayer that citizens can express. The establishment of the supper prayer by VMI directly contravenes this constitutional mandate. The document also references previous cases where courts invalidated similar practices under the Lemon test's "primary effect" standard.
The court concludes that the Virginia Military Institute's (VMI) practice of sponsoring a supper prayer violates the Establishment Clause of the First Amendment, primarily failing the second prong of the Lemon test, which assesses government endorsement of religion. Despite acknowledging individual cadets' rights to express their religious beliefs, the court emphasizes that VMI's mandatory prayer constitutes state sponsorship of religion. Furthermore, the practice implicates the third prong of the Lemon test by excessively entangling the institution with religious activities, as VMI has actively created, mandated, and monitored the prayer, indicating a governmental stance on acceptable religious practices.
The ruling clarifies that the decision is not an expression of hostility towards religion but is rooted in the Founding Fathers' intent to safeguard religious freedom from government encroachment. The court references historical context, noting that while the separation of church and state should not be absolute, the Establishment Clause must prevent government endorsement of specific religious practices. General Bunting's intentions in instituting the supper prayer do not exempt VMI from the constitutional conflict, leading to a consideration of whether he is entitled to qualified immunity.
General Bunting, as a state official, is protected by qualified immunity unless he breached "clearly established statutory or constitutional rights" that a reasonable person would recognize. This standard allows for the possibility that constitutional principles can be considered "clearly established" even in unique factual situations that have not been previously adjudicated. Although the Establishment Clause prohibits public schools from endorsing official prayers for young children, the Supreme Court has not ruled on the constitutionality of state-sponsored prayer in university contexts or military colleges. Some circuit courts have permitted prayer at university events, and there is no precedent regarding the military's incorporation of religious practices in its ceremonies. Given this lack of clarity, General Bunting could have reasonably believed that the supper prayer was constitutional, leading to the affirmation of his qualified immunity by the district court. Consequently, the district court's judgment granting the Plaintiffs declaratory and injunctive relief is vacated, while the finding of a violation of the Establishment Clause is affirmed, resulting in a decision that is affirmed in part and vacated in part.
Additional context notes that all cadets at VMI must participate in ROTC programs, and historically, VMI admitted only male students until a Supreme Court ruling in 1996 declared this policy unconstitutional. Although cadets are not technically required to eat in the mess hall, the pre-paid meals limit their dining options. Prior to the lawsuit in 2001, cadets were required to participate in a formation and listen to a supper prayer to eat at the first seating. Following the lawsuit, the policy was adjusted to allow cadets to enter after the prayer. In the past, VMI had a similar prayer practice which was discontinued in 1990 but was reinstated by General Bunting to foster unity among cadets.
General Bunting, while retired, previously held authority over all activities at VMI, including the supper prayer. The court vacated the award of declaratory relief but noted that the plaintiffs' claim for damages involves determining General Bunting's eligibility for qualified immunity, similar to the district court's earlier analysis. Referencing *Lemon v. Kurtzman*, the Supreme Court found that certain state practices funding religious schools violated the Establishment Clause, establishing a tripartite framework for evaluation. General Bunting argued that VMI has a First Amendment interest in this context; however, the court clarified that VMI cannot assert such an interest against the constitutional rights of its cadets. It emphasized that the First Amendment protects citizens from government actions rather than the reverse.
Even if participation in dining was voluntary, the First Amendment prohibits General Bunting from forcing religious objectors to distance themselves from the VMI community to avoid religious practices. VMI may teach about religion within its curriculum in a secular manner, without conflicting with the First Amendment. The district court determined that the supper prayer lacked a secular purpose and suggested it served as religious indoctrination. Despite General Bunting's claim that the prayer was inclusive and nondenominational, the court pointed out that it reflected a specific monotheistic and Judeo-Christian perspective. The Establishment Clause prohibits state-sponsored prayer in public schools, regardless of how nondenominational it may seem. The court did not address the extent to which the military might include religious practices in its ceremonies, indicating that VMI is governed by the Virginia General Assembly, not the Department of Defense.
