                   United States Court of Appeals,

                           Fifth Circuit.

                            No. 94-60631.

 David INGEBRETSEN, on Behalf of himself and his daughter, Anna
INGEBRETSEN,  et   al.,  Plaintiffs-Appellees,   Appellants-Cross
Appellants,

                                    v.

 JACKSON PUBLIC SCHOOL DISTRICT and The Board of Trustees Of The
Jackson Municipal Separate School District, Defendants-Appellees,

                                    and

 Mike Moore, In his official capacity as the Attorney General of
the State of Mississippi, Defendant-Appellant, Cross Appellee,

     Amelia Freeman, Jessica Massey and Stacy Smith, Movants-
Appellants.

                           Jan. 10, 1996.

Appeals from the United States District Court for the Southern
District of Mississippi.

Before DAVIS and PARKER, Circuit Judges and BUNTON,1 District
Judge.

     W. EUGENE DAVIS, Circuit Judge:

     The State of Mississippi appeals the district court's decision

to enjoin enforcement of a Mississippi statute allowing prayer at

compulsory   and    noncompulsory        school   events.   Ingebretsen

cross-appeals to protest the exemption of graduation prayers from

the injunction and the American Family Association Law Center

("AFALC") appeals the district court's denial of its motion to

intervene.   We affirm.

                                    I.

     1
      District Judge of the Western District of Texas, sitting by
designation.

                                     1
     On    a   wave   of   public     sentiment      and   indignation       over   the

treatment of a Principal, Dr. Bishop Knox, who allowed students to

begin   each    school     day   with   a       prayer   over   the   intercom,     the

Mississippi legislature passed the School Prayer Statute at issue

here.     1994 Miss.Laws ch. 609 (Appendix A).                  The language at the

center of this controversy is § 1(2) of the statute which reads:

     [o]n public school property, other public property or other
     property,   invocations,   benedictions   or   nonsectarian,
     nonproselytizing student-initiated voluntary prayer shall be
     permitted during compulsory or noncompulsory school-related
     student assemblies, student sporting events, graduation or
     commencement ceremonies and other school-related student
     events.

1994 Miss.Laws ch. 609, § 1(2).

     The statute includes a lengthy preamble stating that it shall

not be construed to violate the constitution and that its purpose

is to accommodate religion and the right to free speech.                            The

School Prayer Statute also contains a severability clause which

permits any provision of the statute found to be invalid or

unconstitutional to be severed without affecting the remainder of

the statute.     See Id. § 1(4), (5).

     A group of parents, students, and taxpayers in the Jackson

Public School District, including Ingebretsen, filed suit along

with the American Civil Liberties Union of Mississippi in July of

1994 to enjoin enforcement of the School Prayer Statute on the

ground that it violates the establishment clause.                     A motion for a

preliminary     injunction       to   preserve      the    status     quo   was   filed

simultaneously with the complaint.

     On August 4, 1994, the district court held a hearing on


                                            2
Ingebretsen's motion to enjoin the defendants from implementing in

any manner the School Prayer Statute.   At that time, the district

court also heard the motion of AFALC to intervene on behalf of

certain students enrolled in Mississippi public schools.       The

district court decided to hold the motion for intervention in

abeyance, but permitted AFALC to present argument at the hearing as

amicus curiae.   AFALC was instructed to re-urge its motion after

the court ruled on the motion for preliminary injunction.

     On August 11, 1994, one day before the start of the 1994-1995

academic year for the Mississippi public schools, the district

court issued a preliminary injunction prohibiting enforcement of

the School Prayer Statute. The injunction was designed to maintain

the status quo until the court had full opportunity to assess each

portion of the statute separately.   On August 16, 1994, the court

held a supplemental hearing to determine what portion of the

statute, if any, could escape the injunction by its severability

clause.   The court heard the testimony of Dr. Dan Merritt, Interim

Superintendent of the District, and Dr. Emanuel Reeves, principal

of Provine High School in Jackson, Mississippi and concluded that

the provision for prayers at high school commencement exercises was

the only constitutionally acceptable portion of the statute.

     The district court enjoined enforcement of the statute in its

entirety with the exception of the portion which permits prayers to

take place at graduation ceremonies in accordance with Jones v.

Clear Creek Indep. School Dist., 977 F.2d 963, 972 (5th Cir.1992)

(Jones II ).


                                 3
                                   II.

       Mississippi argues first that Ingebretsen does not have

standing to challenge the School Prayer Statute because the statute

has not yet been implemented.      However, the district court found

that Ingebretsen had alleged real and substantial injury which

would result from the implementation of the School Prayer Statute.

We agree.    There is no need for Ingebretsen to wait for actual

implementation of the statute and actual violations of his rights

under the First Amendment where the statute "makes inappropriate

government involvement in religious affairs inevitable."        Karen B.

v. Treen, 653 F.2d 897, 902 (5th Cir.1981).         The district court

relied on the testimony of Dr. Merritt and Dr. Reeves and the

enormous interest in school prayer following the suspension of Dr.

Knox   to   conclude   that   implementation   of   the   statute   would

inevitably lead to improper state involvement in school prayer.

Under the terms of the statute, the state or its representatives

will inevitably be forced to decide who prays and which prayers

qualify as nonsectarian and nonproselytizing.       The state will also

be in the position of punishing students who attempt to leave so as

to avoid hearing the prayers.      This is clearly the sort of state

involvement contemplated by Karen B.

                                  III.

       Mississippi argues next that the district court erred in

issuing the preliminary injunction.        To obtain a preliminary

injunction, Ingebretsen was required to show:         1) a substantial

likelihood of success on the merits;     2) a substantial threat that


                                    4
he will suffer irreparable injury if the injunction is not issued;

3) that the threatened injury to him outweighs any damage the

injunction might cause to the state and its citizens;             and 4) that

the injunction will not disserve the public interest.                 Doe v.

Duncanville Independent School Dist. (Doe I ), 994 F.2d 160, 163

(5th Cir.1993) (citations omitted).             The district court made

findings   under   all   of   these   factors    and   concluded    that   the

injunction was appropriate.      This court will reverse the district

court only upon a showing of abuse of discretion.           Id.

A. Substantial likelihood of success

     The Fifth Circuit has identified three tests that the Supreme

Court has used to determine whether a government action or policy

constitutes an establishment of religion.          See Jones II, 977 F.2d

963. First, the Establishment Clause test of longest lineage: the

Lemon test.   Lemon v. Kurtzmann, 403 U.S. 602, 612-613, 91 S.Ct.

2105, 2111, 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.

Second, the Court has 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). Third, the Court has disapproved of governmental practices

that appear to endorse religion.          County of Allegheny v. ACLU, 492

U.S. 573, 594, 109 S.Ct. 3086, 3101, 106 L.Ed.2d 472 (1989).               See

also Capitol Square Review Board v. Pinette, --- U.S. ----, ---- -


                                      5
----, 115 S.Ct. 2440, 2452-2456, 132 L.Ed.2d 650 (1995) (O'Connor,

J., concurring).    The district court did not make an exhaustive

analysis under each of the tests because it found that the statute

was defective under any of the tests.   We agree.

     The School Prayer Statute fails all three prongs of the Lemon

test because its purpose is to advance prayer in public schools,

its effect is to advance religion in the schools and it excessively

entangles the government with religion.     The legislature declared

that its purpose in enacting the School Prayer Statute was "to

accommodate the free exercise of religious rights of its student

citizens in the public schools."    1994 Miss.Laws ch. 609 § 1(1).

This statement of purpose cannot be characterized as "secular"

because its clear intent is to inform students, teachers and school

administrators that they can pray at any school event so long as a

student "initiates" the prayer (ostensibly by suggesting that a

prayer be given).   Further, when we view this statute along with

this same legislature's resolution commending Dr. Knox for his

"unswerving dedication to prayer in public schools," and in the

context of the uproar over Dr. Knox's treatment after allowing

prayer in his school, the conclusion that the School Prayer Statute

was intended to advance religion becomes unavoidable.     Returning

prayer to public schools is not a secular purpose.

     The statute's effect is to advance religion over irreligion

because it gives a preferential, exceptional benefit to religion

that it does not extend to anything else.    See Herdahl v. Pontotoc

County School District, 887 F.Supp. 902, 908-09 (N.D.Miss.1995)


                                6
(school policy of turning public address system over to religious

club for morning invocation and scripture reading has primary

effect of advancing religion).        Students are required by law to

attend school and a state policy of prayer at school tells students

that the state wants them to pray.

         The final prong of Lemon is also violated by the School

Prayer    Statute   because   representatives     of   the   government   are

allowed to lead students in prayer and punish students who leave

class or assemblies in order to avoid listening to a prayer.              The

statute will inevitably involve school officials in determining

which    prayers    are   "nonsectarian   and   nonproselytizing"   and   in

determining who gets to say the prayer at each event.                To the

extent that school administrators participate in prayers in their

official capacity or review the content of prayers to ensure that

they meet these requirements, the School Prayer Statute excessively

entangles government with religion.2

        The School Prayer Statute is also unconstitutional under the

"coercion test" of Lee, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d

467 (1992).    The statute would allow prayers to be given by any

person, including teachers, school administrators and clergy at


    2
     The Attorney General also argues that Ingebretsen has not met
his burden of showing that the statute is facially invalid.
However, in establishment clause cases facial attacks are
considered under the Lemon test and the Supreme Court has refused
to draw distinctions between facial and "as applied" attacks. See
Bowen v. Kendrick, 487 U.S. 589, 601-02, 108 S.Ct. 2562, 2569-70,
101 L.Ed.2d 520 (1988); Edwards v. Aguillard, 482 U.S. 578, 581,
583, 107 S.Ct. 2573, 2576-77, 96 L.Ed.2d 510 (1987). The above
discussion demonstrates the invalidity of this statute under Lemon.


                                     7
school functions where attendance is compulsory.                1994 Miss.Laws

ch. 609 § 1(2).   The coercion here is even greater than that in Lee

where students had the option of not attending the graduation

ceremony where the challenged prayer was offered.               Here, students

will be a captive audience that cannot leave without being punished

by the state or School Board for truancy or excessive absences.

      This brings us to the final test:               the endorsement test.

Government unconstitutionally endorses religion whenever it appears

to " "take a position on questions of religious belief,' " or makes

" "adherence to a religion relevant in any way to a person's

standing in the political community,' " Allegheny, 492 U.S. at 594,

109 S.Ct. at 3101 (quoting Lynch v. Donnelly, 465 U.S. 668, 687,

104 S.Ct. 1355, 1366, 79 L.Ed.2d 604 (1984)).                   The government

creates this appearance when it conveys a message that religion is

"favored,"     "preferred,"   or    "promoted"        over   other    beliefs.

Allegheny, 492 U.S. at 593, 109 S.Ct. at 3100-01.                  The School

Prayer Statute is an unconstitutional endorsement of religion

because   it    allows   school    officials     in     their     capacity   as

representatives of the state to lead students in prayer and sets

aside special time for prayer that it does not set aside for

anything else.    It also places the coercive power of the state in

the position of forcing students to attend school and then forcing

them to listen to prayers offered there.

     Under any of these tests, the District Court's determination

that Ingebretsen had shown a substantial likelihood of prevailing

on the merits was not an abuse of discretion.


                                     8
B. A substantial threat of irreparable injury

       Ingebretsen      has   shown   that      the   School   Prayer   Statute

represents a substantial threat to his First Amendment rights. Doe

I, 994 F.2d at 166.         Loss of First Amendment freedoms, even for

minimal periods of time, constitute irreparable injury.                 Elrod v.

Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547

(1976).

C. The threatened injury outweighs any damage the injunction might
     cause to Mississippi and its citizens

       The only harm asserted by the Attorney General is that the

injunction would have a chilling effect on students who would like

to pray at school.       However, the court correctly held that the

injunction affected only the School Prayer Statute and would not

affect students' existing rights to the free exercise of religion

and free speech.    Therefore, students continue to have exactly the

same constitutional right to pray as they had before the statute

was enjoined. They can pray silently or in a non-disruptive manner

whenever and wherever they want, Wallace v. Jaffree, 472 U.S. 38,

67,   105   S.Ct.   2479,     2495,   86   L.Ed.2d     29   (1985)   (O'Connor

concurring), in groups before or after school or in any limited

open forum created by the school.            See Bd. of Educ. of Westside

Community Schools v. Mergens, 496 U.S. 226, 240, 110 S.Ct. 2356,

2366, 110 L.Ed.2d 191 (1990).

D. The injunction will not disserve the public interest.

       The School Prayer Statute is unconstitutional so the public

interest    was   not   disserved     by   an   injunction     preventing   its

implementation.

                                       9
     All    four    requirements     of    a   preliminary     injunction   were

properly met.      The district court did not abuse its discretion in

determining that a preliminary injunction was warranted.

                                      IV.

      We decline Ingebretsen's invitation to reconsider our holding

in Jones II which allows students to choose to solemnize their

graduation ceremonies with a student-initiated, non-proselytizing

and nonsectarian prayer given by a student.            977 F.2d at 965 n. 1.

To the extent the School Prayer Statute allows students to choose

to   pray     at    high    school        graduation   to      solemnize     that

once-in-a-lifetime event, we find it constitutionally sound under

Jones II.

                                          V.

         Finally, the Proposed Intervenors and the Attorney General

assert that the Proposed Intervenors should have been allowed to

intervene as of right under Rule 24(a)(2) or permissively under

Rule 24(b).       Fed.R.Civ.Proc. 24 (West 1995).            The district court

denied the application to intervene as of right solely on the

ground    that    the   Proposed   Intervenors'     interests      were   already

adequately represented by the Attorney General and we review that

determination de novo.       The Proposed Intervenors and the Attorney

General claim that the denial was error and that intervention was

necessary    to    allow   the   Proposed      Intervenors    to   assert   their

constitutionally protected rights of free exercise of religion and

free speech.       However, the only issue before the court is the

validity of the School Prayer Statute and the Attorney General, in


                                          10
defending that statute, can assert the rights of all Mississippians

affected by the law, including the Free Exercise rights of the

Proposed Intervenors. The Attorney General undoubtedly affords the

Proposed Intervenors' interests adequate representation.

        The denial of permissive intervention was also appropriate

because the Proposed Intervenors bring no new issues to this

action.     The abuse of discretion standard of review for such a

denial is "exceedingly deferential" to the district court, and

"this     circuit    has    never     reversed    a   denial      of    permissive

intervention."       Doe I, 994 F.2d at 168 n. 10 (citation omitted).

The district court's conclusion that the Proposed Intervenors would

bring only delay to this action was not plain error.

                                    Conclusion

     The    district       court    did    not   abuse     its    discretion     in

preliminarily       enjoining   the    enforcement    of    the   School    Prayer

Statute.    Ingebretsen's claim showed a substantial likelihood of

success on the merits, irreparable harm, more harm from the new law

than from the injunction and that the injunction served the public

interest.     The district court also decided correctly to deny

intervention on the ground that the Proposed Intervenors are

adequately represented by the Attorney General.                    The Attorney

General's argument for the statute on appeal is grounded almost

entirely on the First Amendment rights of students.                    The Proposed

Intervenors do not assert that students have any rights that the

Attorney General has not also asserted in support of the statute.

The district court's denial of permissive intervention was proper


                                          11
for the same reasons:   Proposed Intervenors would add nothing to

this action except additional parties.

     For these reasons, the district court's orders enjoining the

enforcement of the School Prayer Statute except as to nonsectarian,

nonproselytizing student initiated voluntary prayer at high school

commencement as condoned by Jones II and denying AFALC's motion for

intervention are AFFIRMED.

     AFFIRMED.




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