* Judge Jolly’s opinion dissenting from the court’s

refusal to grant rehearing en banc is filed herewith.

Revised April 9, 1999

 IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-40150

_____________________

JANE DOE, Individually and as next of

friend for her minor children,

Jane and John Doe, Minor Children;

JANE DOE #2, Individually and as next

of friend for her minor child,

John Doe, Minor Child, and John Doe,

Individually,

Plaintiffs-Appellees-Cross Appellants,

versus

SANTA FE INDEPENDENT SCHOOL DISTRICT, ET AL.,

Defendants,

SANTA FE INDEPENDENT SCHOOL DISTRICT,

Defendant-Appellant-Cross Appellee.

_________________________________________________________________

Appeals from the United States District Court for the

Southern District of Texas

_________________________________________________________________

April 7, 1999

Before JOLLY*, WIENER, and STEWART, Circuit Judges.

PER CURIAM:

The Petition for Rehearing is denied, and the court having

been polled at the request of one of the members of the court and

a majority of the judges who are in regular active service not
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having voted in favor, (FED. R. APP. P. and 5TH CIR. R. 35) the

Suggestion for Rehearing En Banc is also DENIED.
E. GRADY JOLLY, Circuit Judge, with whom HIGGINBOTHAM, JONES,

SMITH, BARKSDALE, EMILIO M. GARZA, and DeMOSS, Circuit Judges,

join, dissenting:

I respectfully dissent from the court’s denial of the petition

for en banc hearing.

Every judge on this court must surely know that the policy

announced by the majority of the panel--permitting students’

ecumenical religious prayers or speech, but excluding all other

religious prayers or speech by students--is unconstitutional. Yet

a majority of this court has voted against an en banc proceeding to

correct constitutional error. Although I have great respect for

each of these judges who is unwilling to step up to bat, I must say

to them that we fail our constitutional and professional duty when

we shy away from attempting to straighten out our muddled

jurisprudence. The judges who voted against en banc are certainly

not to be faulted for disagreeing with the viewpoint expressed in

the dissent to the panel opinion--it may be a correct view of the

case or it may not. But for the reasons that are pointed out in

the panel dissent, the majority is surely, surely wrong in

fundamental ways, and yet the majority of the judges on our court

wish to remain silent on an issue of great importance--and great

confusion--in the circuit. With due respect, I regret their

choice.
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The majority opinion in Santa Fe appears to be a conscious

decision, not merely to refuse to follow Supreme Court precedent,

but to abdicate its duty to provide reasons for not following that

precedent. The majority finds that the First Amendment allows

ecumenical religious speech, but then somehow concludes--under the

very same conditions--that the First Amendment prohibits religious

speech expressing any other viewpoint. See Santa Fe, 1999 WL

104884, at *19 (“the words ‘nonsectarian, nonproselytizing’ are

constitutionally necessary components”). The majority acknowledges

that this ruling endorses viewpoint discrimination.

Yet the fact that the Supreme Court has repeatedly stated that

the government cannot engage in viewpoint discrimination when it

creates any kind of a forum--even a nonpublic forum--does not give

the majority pause. See, e.g., Cornelius v. NAACP Legal Defense

and Educ. Fund, Inc., 473 U.S. 788, 806 (1985) (“Control over

access to a nonpublic forum can be based on subject matter and

speaker identity so long as the distinctions drawn . . . are

viewpoint neutral.”); Perry Education Ass’n v. Perry Local

Educators’ Ass’n, 460 U.S. 37, 46 (1983). The Supreme Court has

specifically recognized--after our opinion in Clear Creek II--that

this Free Speech Clause prohibition operates in the realm of

religious speech. Lamb’s Chapel v. Center Moriches Union Free Sch.

Dist., 508 U.S. 384, 394 (1993). The panel majority’s response to

these admonitions? Silence. Now, because we decline to take this

case en banc, our full court responds in silence as well. This
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silence is inexplicable in the light of the Supreme Court’s recent

statement that “[t]he first danger to liberty lies in granting the

State the power to examine publications to determine whether or not

they are based on some ultimate idea and, if so, for the State to

classify them.” Rosenberger v. Rector and Visitors of the Univ. of

Virginia, 515 U.S. 819, 835 (1995) (concluding that the state

unconstitutionally excluded a religious viewpoint from general

funding of student publications). The danger lurks just as

ominously when the State exercises this power over students’

speech, and this court greatly enhances the danger when it--an

institution insulated from democratic restraints--refuses to

explain why it allocates this power to the State in the face of

contrary Supreme Court precedent.

The Santa Fe majority also casts our Circuit’s Establishment

Clause jurisprudence into throes of uncertainty. The majority

opinions in Santa Fe and Jones v. Clear Creek Independent Sch.

Dist., 977 F.2d 963 (5th Cir. 1992), are so clearly in conflict

with each other that school districts within our jurisdiction will

have no guidance on how to interpret our confused precedent.

The Santa Fe opinion conflicts with Clear Creek II in multiple

ways--each important, and each without any explanation by the Santa

Fe majority. First, and perhaps most puzzling, is the Santa Fe

majority’s holding that the Establishment Clause will not allow

students to mention specific deities in their graduation messages,

Santa Fe, 1999 WL 104884, at *16, when in Clear Creek II, our court
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upheld a policy that allowed students to “employ the name of any

deity.” Clear Creek II, 977 F.2d at 967; see also id. at 969

(“invocations permitted by the Resolution ‘may’ include

supplication to a deity”). The Santa Fe majority makes no effort

to explain away its stark departure from our precedent. School

districts are left to wonder whether they may allow students to

state the name of Buddha, Jesus, Jehovah, or Mohammed in their

graduation messages. Because Clear Creek II stands as prior

precedent, school districts will be free to follow it, instead of

the upstart rule announced in Santa Fe.

In yet another unexplained departure from Clear Creek II, the

Santa Fe majority interpreted a policy allowing “invocations and/or

benedictions” so as to allow only religious prayers. Santa Fe,

1999 WL 104884, at *14 (students “will be chosen to deliver very

circumscribed statements that under any definition are prayers”).

The Clear Creek II panel also interpreted a policy allowing for

“invocations and/or benedictions.” That panel, however, held that

the policy “permits invocations free of all religious content.”

Clear Creek II, 977 F.2d at 969. Yet again, there is no

articulated authority to legitimize a holding that contradicts

precedent.

Still another element of the jurisprudential quagmire

following Santa Fe is the majority’s decision to ignore the

analytical approach that our precedent dictates when addressing a

facial challenge to a school policy. In Clear Creek II, the panel
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recognized that because it was faced with a suit challenging the

facial constitutionality of a school policy, the court must find

that the policy “is constitutional unless there is no way to

implement it on a nondiscriminatory basis.” Clear Creek II, 977

F.2d at 969. Without even so much as discussing the fact that the

case presented a facial challenge to Santa Fe’s policy, the Santa

Fe majority assumed, for example, that the policy would restrict

the number of student speakers to either one or two, and also

assumed that the school would strictly limit the topics that the

elected students could address. Santa Fe, 1999 WL 104884, at *14.

The majority assumed these “facts” even though the policy--and the

record--is silent as to these hypothetical restrictions.

Santa Fe is not our Circuit’s only case to hide from the

analytical rule required by Clear Creek II. The panel in

Ingebretsen v. Jackson Public School Dist., 88 F.3d 274, 279 n.2

(5th Cir. 1996), also ignored the rule without mentioning Clear

Creek II. In its refusal to differentiate between a facial and an

“as-applied” Establishment Clause challenge, the Ingebretsen panel

cited two Supreme Court decisions, handed down in the late

Eighties, in a footnote. Id., 88 F.3d at 279 n.2. Given our

decision in Clear Creek II, however, the Ingebretsen panel’s

opinion on this issue was a day late and a Supreme Court citation

short of relying on legitimate authority. See Barber v. Johnson,

145 F.3d 234, 237 (5th Cir. 1997) (stating the rule that in this

circuit one panel may not overrule another prior panel absent
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intervening legislation, a decision by our en banc court, or a

decision of the Supreme Court).

Upon reading Santa Fe, Ingebretsen, and Clear Creek II, it

seems, with regard to the Establishment Clause, that panels of our

court pay little regard to previous jurisprudence. One might think

that a specific holding of a prior opinion is no more than a puff

of wind. Santa Fe disregards Clear Creek II today. The next panel

can disregard Santa Fe tomorrow. When judges can pick and choose

without the constraints imposed by precedent, the public is left

stranded, vulnerable to liability, helplessly dependent on the

panel it draws. We could fulfill our constitutional and

professional duty to the public, vote this case en banc, and be of

a single voice. But when our court refuses to rehear en banc cases

such as Santa Fe, this unrestrained decision-making goes

uncorrected. This failure to act, in turn, allows individual

members of our court to continue to engage in an activity that has

all the appearance of simply advancing personal philosophy. 

For these reasons, I respectfully DISSENT from the denial of

rehearing en banc.