FindLaw | Find a Lawyer. Find Answers.

FERRIN COLE; CHRIS NIEMEYER; and
JASON NIEMEYER through his
Guardian ad Litem Janet
Niemeyer,
Plaintiffs-Appellants,

and

JOHN NIEMEYER through his
Guardian ad Litem Janet
Niemeyer; JANET NIEMEYER,
individually and as a Taxpayer;
No. 99-16550
JUSTIN HAGAN through his
D.C. No.
Guardian ad Litem Connie Hagan;
CV-98-01037-LKK
VANESSA RALSTON through her
Guardian ad Litem Teresa Ralston;
OPINION
DOE I through her Guardian ad
Litem ROE I; DOE II through his
Guardian ad Litem ROE II; DOE III
through his Guardian ad Litem
ROE III; ROE I, individually and as
a Taxpayer; ROE II, individually
and as a Taxpayer; ROE III,
individually and as a Taxpayer,
Appellants,

v.

12561


OROVILLE UNION HIGH SCHOOL
DISTRICT; BARRY KAYRELL,
individually and as Superintendent
of the Oroville Union High School
District; LARRY PAYNE,
individually and as Principal of
Oroville Union High School; JEFF
PLOTNICK, individually and as
Vice-Principal of Oroville Union
High School; DAVID BRUCE; ROY
FISHER; KENNETH HARLAN; SUSAN
NEBEN; LILLAINE SPEESE,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Chief Judge, Presiding

Argued and Submitted
June 12, 2000--Sacramento, California

Filed October 2, 2000

Before: Mary M. Schroeder, Michael Daly Hawkins and
Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fisher

_________________________________________________________________

COUNSEL

Steven T. Burlingham, Gary, Till & Burlingham, Sacramento,
California, for the plaintiffs-appellants.

Christian M. Keiner, Girard & Vinson, Sacramento, Califor-
nia, for the defendants-appellees.

Marc D. Stern, American Jewish Congress, New York, New
York, for the amicus curiae.

David F. McDowell, Michael I. Katz, Morrison & Foerster,
LLP, Los Angeles, California, Sue Stengel, Anti-Defamation
League of B'nai B'rith, Los Angeles, California, David
Rosenberg, Anti-Defamation League of B'nai B'rth, New
York, New York, for the amicus curiae.

John L. Bukey, Richard L. Hamilton, Judith M. Cias, Califor-
nia School Boards Association, West Sacramento, California,
for the amicus curiae.

_________________________________________________________________

OPINION

FISHER, Circuit Judge:

Ferrin Cole and Chris Niemeyer were students at Oroville
High School ("Oroville") who graduated in 1998. They claim
the Oroville Union High School District ("District") violated
their freedom of speech by refusing to allow Niemeyer to give
a sectarian, proselytizing valedictory speech and Cole to give
a sectarian invocation at their graduation. We conclude the
students' equitable claims are moot because Niemeyer and
Cole have graduated, and their damage claims fail because the
District officials' actions were reasonably taken to avoid vio-
lating the Establishment Clause of the First Amendment. As
to the other parties who were added to the students' lawsuit
-- Chris Niemeyer's brother, Jason, and various Oroville stu-
dents, parents and others -- we conclude they lack standing
either because they, too, have graduated or because the likeli-
hood of their being selected to speak at a graduation or their
attending a future graduation where some student speaker will
attempt to offer a sectarian speech or invocation is too specu-
lative to satisfy the injury-in-fact requirement of Article III.
We thus affirm the district court's summary judgment in favor
of all appellees.

FACTUAL and PROCEDURAL BACKGROUND

Every year, Oroville High School conducts a formal gradu-
ation ceremony. The program for the event, as determined by
the District, consists of welcoming remarks and the introduc-
tion of the District board of trustees and superintendent by the
school principal, the singing of the National Anthem and a
flag salute, a spiritual invocation delivered by a student cho-
sen by a vote of his or her classmates, vocal selections, gradu-
ation speeches by the valedictorian and salutatorian,
presentation of the class and diplomas, presentation of the
class advisors, one or two farewell speeches and a recessional.
Under a District policy instituted sometime around 1985, all
student speeches and invocations for graduation are reviewed
by the principal, who has the final say regarding their content.
Due to increasing concern about the content of graduation
speeches, Oroville's principal in recent years has reviewed the
content of speeches and invocations to ensure they were not
offensive or denominational. Until the class of 1998 gradua-
tion, the principal had needed to change the content of
speeches only for grammatical errors. Although Oroville's
policy does not specifically enumerate what types of content
are prohibited, faculty advisors assisting in planning the 1998
graduation repeatedly told Cole and Niemeyer to make their
presentations "nondenominational" and inclusive of all
beliefs.

Oroville graduation ceremonies are held at a football field
owned by the District and are paid for in part with District
funds. Oroville plans the graduation program and administers
the ceremony. Significantly, the principal has supervisory
authority over all aspects of the ceremony. The District
requires all students to sign a contract obligating themselves
to act and dress in accordance with school directions at the
graduation ceremony. A student does not have to attend the
ceremony to obtain a diploma.

In the Fall of 1997, Niemeyer was informed that he was co-
valedictorian of his class at Oroville. In April 1998, Cole was
chosen by a vote of his classmates to offer an invocation at
the graduation. Both Cole and Niemeyer were late in submit-
ting early drafts of their graduation presentations for review
by Oroville faculty advisors and the principal. Although the
graduation ceremony was scheduled for June 5, 1998, Nie-
meyer did not share his speech with advisors or the principal
until May 28, 1998, and Cole did not submit his invocation
until June 2. Niemeyer stated he did not submit his speech to
his faculty advisors for review of the speech's content
"[b]ecause I know they don't hold the same convictions that
I do as far as faith."

When Cole and Niemeyer finally submitted their proposed
remarks for review by the principal's office, the principal told
them to tone down the proselytizing and sectarian religious
references. They were each advised to change their presenta-
tions to make them nondenominational. Niemeyer submitted
a second draft of his speech, which included all of the original
proselytizing and religious references to Jesus, and the princi-
pal informed him the speech was still unacceptable. The prin-
cipal notified the District's superintendent and faxed him a
copy of Niemeyer's speech. The superintendent consulted
with the District's legal counsel, and agreed with the princi-
pal's decision to reject Niemeyer's speech because of its reli-
gious content. The superintendent and principal also discussed
Cole's invocation shortly after Cole submitted it. The superin-
tendent again obtained advice of counsel that Cole's invoca-
tion was impermissible sectarian prayer and agreed with the
principal's decision to reject Cole's proposed invocation.

The superintendent met with Cole and Niemeyer to try to
persuade them to delete the sectarian references from their
proposed presentations by making them aware the graduation
was a District-sponsored event for which the District was ulti-
mately responsible. Nonetheless, Cole and Niemeyer refused
to compromise, and on June 4 they filed suit in district court,
under 42 U.S.C. S 1983, to obtain a temporary restraining
order preventing the school from denying them the opportu-
nity to present their unedited remarks at graduation. The dis-
trict court denied their motion for lack of time to consider the
complex issue.

Cole and Niemeyer attended the June 5 graduation and Nie-
meyer attempted to deliver his unedited speech, but the princi-
pal refused to allow him to do so. Niemeyer's final proposed
speech included a statement that he was going to refer to God
and Jesus repeatedly, and if anyone was offended, they could
leave the graduation. Niemeyer's proposed speech was a reli-
gious sermon which advised the audience that "we are all
God's children, through Jesus Christ [sic] death, when we
accept his free love and saving grace in our lives, " and
requested that the audience accept that "God created us" and
that man's plans "will not fully succeed unless we pattern our
lives after Jesus' example." Finally, Niemeyer's speech called
upon the audience to "accept God's love and grace " and
"yield to God our lives." Cole's proposed invocation referred
repeatedly to the heavenly father and Father God, and con-
cluded "We ask all these things in the precious holy name of
Jesus Christ, Amen."

In December 1998, the district court heard the District's
motion to dismiss all of the appellants' claims. The district
court granted the District's motion to dismiss all of the claims
against the District itself and the damage claims against Dis-
trict officials in their official capacities because the District
was immune from suit under the Eleventh Amendment. The
court also dismissed the damage claims against District offi-
cials in their individual capacities because it concluded the
officials' decisions were protected by qualified immunity.
However, it denied the motion to dismiss the injunctive
claims against District officials in their official capacities
under the rule of Ex Parte Young, 209 U.S. 123 (1908).

In early 1999, the appellants filed an amended complaint,
including as parties Chris Niemeyer's brother, Jason -- who
had been chosen as valedictorian of the Oroville class of 1999
and planned to give a sectarian speech -- as well as other stu-
dents to secure standing given that both Cole and Chris Nie-
meyer had already graduated. The district court held that only
Jason Niemeyer had standing to pursue the remaining injunc-
tive claims.1 Shortly thereafter, the appellants amended their
complaint once more, adding a number of other students at
Oroville, parents of students at Oroville and other persons
who would likely attend Oroville graduations in the future. In
June 1999, the district court again concluded only Jason Nie-
meyer had standing to bring a claim for injunctive relief,
denied the plaintiffs' motion for a preliminary injunction and
granted summary judgment in the defendants' favor on all
claims. Jason Niemeyer has since graduated from Oroville
High School, and presumably did not give his proposed sec-
tarian speech.

DISCUSSION

We review for abuse of discretion a district court's decision
to deny a preliminary injunction. See Bay Area Addiction
Research and Treatment, Inc. v. City of Antioch, 179 F.3d
725, 732 (9th Cir. 1999). We review de novo a district court's
grant of summary judgment. See Balint v. Carson City, 180
F.3d 1047, 1050 (9th Cir. 1999) (en banc). Viewing the evi-
dence in the light most favorable to the nonmoving party, and
drawing all reasonable inferences in its favor, we must deter-
mine "whether the district court correctly applied the relevant
substantive law and whether there are any genuine issues of
material fact." Id.; accord Berry v. Valence Technology, Inc.,
175 F.3d 699, 703 (9th Cir.), cert. denied, 120 S. Ct. 528
(1999). Mootness and standing are questions of law we
review de novo. See Wade v. Kirkland, 118 F.3d 667, 669 (9th
Cir. 1997) (mootness); Sahni v. American Diversified Part-
ners, 83 F.3d 1054, 1057 (9th Cir. 1996) (standing).

I. Mootness and Standing

The appellants argue that Cole and Chris and Jason Nie-
meyer each has a live case or controversy for injunctive relief
and damages related to the District's policy of refusing to per-
mit sectarian, proselytizing speeches as part of the Oroville
graduation. They rely on the "capable of repetition, yet evad-
ing review" exception to mootness and the third-party stand-
ing doctrines of First Amendment overbreadth and jus tertii.
They argue further that the additional Oroville students have
standing to bring suit because they may present valedictory
speeches or invocations in the future and thus the District's
policy will infringe upon their freedom of speech. Finally,
they argue that the parents and additional students have stand-
ing to bring First Amendment free speech and establishment
clause claims as prospective participants or attendees at future
graduations. With the exception of Cole's and Niemeyer's
damage claims, which we discuss below in the context of
qualified immunity, we disagree with all of appellants' argu-
ments.

A. Whether the Claims Brought by Cole and Chris and
       Jason Niemeyer are Moot

[1] As the Supreme Court has recently noted, both standing
and mootness are jurisdictional issues deriving from the
requirement of a case or controversy under Article III. See
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., _______ U.S. _______, _______, 120 S. Ct. 693, 703-04 (2000); see
also Blair v. Shanahan, 38 F.3d 1514, 1518 (9th Cir. 1994)
(" `Article III of the Constitution requires that there be a live
case or controversy at the time that a federal court decides the
case . . . .' " (quoting Burke v. Barnes , 479 U.S. 361, 363
(1987))). It is well-settled that once a student graduates, he no
longer has a live case or controversy justifying declaratory
and injunctive relief against a school's action or policy. See
Doe v. Madison Sch. Dist. No. 321, 177 F.3d 789, 798 (9th
Cir. 1999) (en banc). Thus, this court has no jurisdiction to
entertain the claims for injunctive relief brought by Cole and
Chris and Jason Niemeyer unless an exception to mootness
applies.

[2] The "capable of repetition, yet evading review" excep-
tion to mootness applies only when (1) the challenged action
is too short in duration to be fully litigated before cessation
or expiration, and (2) there is a reasonable expectation that the
same complaining party will be subjected to the same action
again. See Spencer v. Kemna, 523 U.S. 1, 17  (1998); Madison
Sch. Dist., 177 F.3d at 798. In Madison School District, we
held that this exception did not apply to a student's Establish-
ment Clause challenge to a school district's graduation prayer
policy because the student had graduated, and thus would
"never again be compelled to participate in a prayer at his or
her high school graduation ceremony." 177 F.3d at 799. Simi-
larly, as graduates of Oroville, Cole and Chris and Jason Nie-
meyer will never again be required to omit sectarian
references from their Oroville graduation presentations. This
case is therefore different from Lee v. Weisman , 505 U.S. 577
(1992), in which the Supreme Court concluded that, although
the student who objected to the graduation prayer at her mid-
dle school had herself graduated, the Court had "a live and
justiciable controversy" before it because she was enrolled as
a high school student in the same district and it appeared
"likely, if not certain, that an invocation and benediction
[would] be conducted at her high school graduation." Id. at
584. Thus, Cole's and the Niemeyers' injunctive claims are
moot.2

The appellants try to avoid the jurisdictional defect in the
injunctive claims of Cole and Chris and Jason Niemeyer by
asserting that they present a live controversy under the third-
party standing doctrines of First Amendment overbreadth and
jus tertii. Appellants' claim is more properly characterized as
an overbreadth claim than as jus tertii because the appellants
base their third-party claim on a theory that the District might
in the future apply its policy to infringe the rights of students
at Oroville, not that a single application of the District's pol-
icy threatens their rights as well as those of a third-party.3
Nevertheless, whichever theory of third-party standing
applies, Cole and Chris and Jason Niemeyer can no longer
sustain such a claim.

[3] Under the doctrine of jus tertii, a plaintiff can invoke
the rights of third parties who are not before the court only if
that plaintiff has "a sufficiently concrete interest in the out-
come of the[ ] suit to make it a case or controversy subject to
a federal court's Art. III jurisdiction . . . ." Singleton v. Wulff,
428 U.S. 106, 112  (1976); accord Powers v. Ohio , 499 U.S.
400, 411 (1991); see also Note, Standing to Assert Constitu-
tional Jus Tertii, 88 Harv. L. Rev. 423, 429 (1974) ("Because
the judiciary's primary role in judicial review is to adjudicate
the rights of the private parties before it, the mere fact that the
constitutional rights of third parties may be in jeopardy pro-
vides no justification for judicial intervention. " (footnote
omitted)). Similarly, only if he presents a "case or contro-
versy, [may] a litigant . . . challenge a statute by showing that
it substantially abridges the First Amendment rights of other
parties not before the court." Village of Schaumburg v. Citi-
zens for a Better Env't, 444 U.S. 620, 634  (1980) (emphasis
added); accord Bigelow v. Virginia, 421 U.S. 809, 816-17
(1975) (explaining that, in order to have overbreadth standing,
a person must have "a `claim of specific present objective
harm or a threat of specific future harm,' " and concluding
that this requirement is met "where there can be no doubt con-
cerning the appellant's personal stake in the outcome of the
controversy" (quoting Laird v. Tatum, 408 U.S. 1, 13-14
(1972))). In short, a litigant cannot sustain an overbreadth or
jus tertii claim if he no longer has a personal interest in the
outcome which itself satisfies the case or controversy require-
ment. See Howard v. City of Burlingame, 937 F.2d 1376,
1381 n.7 (9th Cir. 1991) (noting that litigant's facial over-
breadth challenge to city zoning ordinance requiring special
permits for radio antennas over 25 feet became moot when the
city granted his permit to erect such an antenna).

Although a student's graduation moots his claims for
declaratory and injunctive relief against school officials, it
does not moot his damage claims. See Madison Sch. Dist.,
177 F.3d at 798. Thus, we must address the damage claims
brought by Cole and Chris Niemeyer and determine whether
the District officials are entitled to qualified immunity for
their decisions to refuse to allow these students to give a sec-
tarian speech or prayer as part of the Oroville graduation cere-
mony.4 Before we reach that question, we turn to the issue of
whether the other appellants have standing to sustain the
claims for injunctive relief.
B. Whether Other Students, Parents and Others Likely to
Attend Future Graduations Have Standing

[4] Appellants argue that the other students, parents of
Oroville students and others likely to attend future gradua-
tions joined in the third amended complaint have standing to
bring a claim to enjoin the school from prohibiting sectarian
speeches and prayers as part of the graduation ceremony. This
argument fails because any injury to these parties is too spec-
ulative to satisfy the injury-in-fact requirement of Article III.

[5] Article III standing requires an injury that is "actual or
imminent, not `conjectural' or `hypothetical.' " Whitmore v.
Arkansas, 495 U.S. 149, 155  (1990) (quoting City of Los
Angeles v. Lyons, 461 U.S. 95, 101 -02 (1983)). In the context
of injunctive relief, the plaintiff must demonstrate a real or
immediate threat of an irreparable injury. See Lyons, 461 U.S.
at 110-11. In Preferred Communications, Inc. v. City of Los
Angeles, 13 F.3d 1327 (9th Cir. 1994) (per curiam), we held
that a company unlawfully denied the opportunity to compete
for a cable franchise lacked standing to bring damage claims
against the city for profits the company would have received
had it been awarded a franchise. Id. at 1333-34. We con-
cluded the alleged injury was too uncertain because it
depended on the "very speculative assumption" that the com-
pany would have received the franchise as the most qualified
competitor and "would have built and operated a profitable
cable franchise . . . if it had only been given the chance." Id.
at 1334. Similarly, the other students, parents and others
likely to attend future Oroville graduations lack standing
because the likelihood that they will suffer a future injury
depends upon the highly speculative assumption that a student
seeking to give a sectarian speech or prayer will be chosen as
valedictorian or salutatorian, or will be elected by classmates
to deliver an invocation.5 This threat of injury is neither real
nor immediate. Cf. Eggar v. Livingston, 40 F.3d 312, 316-17
(9th Cir. 1994) (holding that plaintiffs alleging city had policy
of imprisoning indigent defendants without appointing coun-
sel did not have standing to bring declaratory or injunctive
claims because the likelihood that they would suffer future
injury relied on a " `chain of speculative contingencies' "
(quoting Nelson v. King County, 895 F.2d 1248, 1252 (9th
Cir. 1990)).

II. Whether District Officials are Entitled
       to Qualified Immunity

We now turn to the merits of the damage claims brought by
Cole and Chris Niemeyer. Cole and Niemeyer argue the Dis-
trict officials violated their clearly established right to speak
at the Oroville graduation without content- or viewpoint-
based restrictions on their speech. They contend the District's
graduation ceremony is a public or limited public forum, and
thus the District infringed their freedom of speech by discrim-
inating against their presentations on the basis of their sectar-
ian viewpoints. We disagree.

[6] When government officials assert the defense of quali-
fied immunity to an action under 42 U.S.C. S 1983, a court
evaluating the defense must first determine whether the plain-
tiff has alleged the deprivation of a constitutional right and,
if so, then determine " `whether the right was clearly estab-
lished at the time of the alleged violation.'  " Wilson v. Lane,
526 U.S. 603, 609  (1999) (quoting Conn v. Gabbert, 526 U.S.
286, 290 (1999)); County of Sacramento v. Lewis , 523 U.S.
833, 841 n.5 (1998); B.C. v. Plumas Unified Sch. Dist., 192
F.3d 1260, 1265 (9th Cir. 1999).6 Thus, we must decide
whether the District officials infringed the students' freedom
of speech by refusing to allow them to give a sectarian speech
or prayer as part of the Oroville graduation ceremony.

[7] We conclude the District officials did not violate the
students' freedom of speech. Even assuming the Oroville
graduation ceremony was a public or limited public forum,
the District's refusal to allow the students to deliver a sectar-
ian speech or prayer as part of the graduation was necessary
to avoid violating the Establishment Clause under the princi-
ples applied in Santa Fe Independent School District v. Doe,
_______ U.S. _______, 120 S. Ct. 2266 (2000), and Lee v. Weisman,
505 U.S. 577 (1992). See Rosenberger v. Rector and Visitors
of the Univ. of Va., 515 U.S. 819, 837  (1995) (analyzing
whether a university's viewpoint discrimination was excused
by the necessity of complying with the Establishment Clause);
Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S.
753, 761-62 (1995) ("There is no doubt that compliance with
the Establishment Clause is a state interest sufficiently com-
pelling to justify content-based restrictions on speech."); see
also Arkansas Educ. Television Comm'n v. Forbes, 523 U.S.
666, 677 (1998) (noting that strict scrutiny of exclusion of
speech in a government forum requires that the exclusion be
" `necessary to serve a compelling state interest and the exclu-
sion [be] narrowly drawn to achieve that interest.' " (quoting
Cornelius v. NAACP Legal Defense & Educ. Fund, Inc. , 473
U.S. 788, 800 (1985))).
In Santa Fe, the Supreme Court held that a school district
policy authorizing a student selected by a vote of fellow stu-
dents to deliver a nonsectarian and nonproselytizing "state-
ment or invocation" to solemnize varsity football games
violated the Establishment Clause. 120 S. Ct. at 2273 n.6,
2283. The Court rejected the argument that the student's
prayer was private speech, because not only did the school
district authorize the invocation through its policy and allow
the invocation to be held on government property at a
government-sponsored school-related event, it also exercised
control over the invocation by placing restrictions on its con-
tent, allowing only selected students to give the invocation
and broadcasting the invocation over the school's public
address system. See id. at 2275-78. The Court reasoned that
the district's control over and entanglement with the invoca-
tion not only would cause an objective observer to perceive
the district endorsed the religious message of the invocation,
but also constituted an actual endorsement of religion in pub-
lic schools. See id. at 2278-79. Thus, the Court concluded,
under the principles articulated in Lee, the delivery of the
invocation before school football games impermissibly
applied social and peer pressure to coerce dissenters to forfeit
their right to attend the games " `as the price of resisting con-
formance to state-sponsored religious practice.' "7 Id. at 2280
(quoting Lee, 505 U.S. at 596). The Court further concluded
that the pregame delivery of the invocation had the improper
effect of coercing those present to participate in an act of reli-
gious worship. See id.; see also Lee, 505 U.S. at 594 ("[T]he
government may no more use social pressure to enforce
orthodoxy than it may use more direct means.").

In Lee, the Court held that a school district violated the
Establishment Clause when it invited a rabbi to deliver a non-
sectarian, nonproselytizing prayer at its graduation ceremony.
505 U.S. at 581, 599. The Court reasoned that, because the
principal decided that an invocation should be given, chose
the rabbi and gave her guidelines for the prayer and the school
had extensive control over the graduation ceremony--
including control over the contents and timing of the program,
the speeches, the dress code and the decorum of the students
-- the prayer bore the imprint of the state. Id. at 587-90, 597.
The Court noted that the singular importance of a high school
graduation as a once-in-a-lifetime event and the susceptibility
of adolescents to peer and social pressure left a dissenting stu-
dent with the unduly coercive dilemma of participating in the
prayer against her conscience or missing her own high school
graduation. See id. at 592-96. Because this dilemma gave dis-
senting students no legitimate alternative to attending their
graduation, the Court concluded the school district had in
effect "compelled . . . participation in an explicit religious
exercise." Id. at 598.

A. Cole's Invocation

[8] Applying these principles to the present case, it is clear
the District's refusal to allow Cole to deliver a sectarian invo-
cation as part of the graduation ceremony was necessary to
avoid an Establishment Clause violation. The invocation
would not have been private speech, because the District
authorized an invocation as part of the graduation ceremony
held on District property, allowed only a student selected by
a vote of his classmates to give an invocation and no doubt
would have used a microphone or public address system to
amplify the invocation to the audience at the graduation cere-
mony. See Santa Fe, 120 S. Ct. at 2275-78; see also Collins
v. Chandler Unified Sch. Dist., 644 F.2d 759, 760-62 (9th Cir.
1981) (holding that district policy under which principal and
district superintendent gave student council permission to
select a student to open school assemblies with prayer consti-
tuted impermissible government sponsorship of religious
activity under the Establishment Clause). In addition, as the
Court noted in Santa Fe, an invocation policy by its very
terms appears to reflect an impermissible state purpose to
encourage a religious message.8 120 S. Ct. at 2277 (conclud-
ing that term "invocation" is "a term that primarily describes
an appeal for divine assistance"). Furthermore, Cole's sectar-
ian invocation would have caused a more serious Establish-
ment Clause violation than in Santa Fe because there the
invocation was required to be "nonsectarian and nonprosely-
tizing." Id. at 2273 n.6; Lee, 505 U.S. at 589 (noting that a
nonsectarian prayer "is more acceptable than one which, for
example, makes explicit reference to the God of Israel, or to
Jesus Christ"); County of Allegheny v. ACLU, Greater Pitts-
burgh Chapter, 492 U.S. 573, 603 ("The legislative prayers
involved in Marsh did not violate this principle [against gov-
ernment affiliation with a particular religious sect ] because
the particular chaplain had `removed all references to
Christ.' " (quoting Marsh v. Chambers, 463 U.S. 783, 793
n.14 (1985))); Doe v. Santa Fe Indep. Sch. Dist. , 168 F.3d
806, 809, 815 (5th Cir. 1999) (holding that a graduation pol-
icy that does not limit speakers to "nonsectarian, nonprosely-
tizing speech" violates the Establishment Clause), aff'd on
other grounds, 120 S. Ct. 2266 (2000).

B. Chris Niemeyer's Proposed Valedictory Speech

[9] Chris Niemeyer's valedictory speech presents a more
difficult issue as to whether the speech was private or attribut-
able to the District. As the appellants argue, the valedictorian
speech policy neither encourages a religious message nor sub-
jects the speaker to a majority vote that operates to ensure
only a popular message is expressed at the graduation. See
Santa Fe, 120 S. Ct. at 2276-77. Nonetheless, we conclude
the District's plenary control over the graduation ceremony,
especially student speech, makes it apparent Niemeyer's
speech would have borne the imprint of the District. See Lee,
505 U.S. at 590. First, the District authorizes the valedictory
speech as part of the District-administered graduation cere-
mony, which is held on District property and financed in part
by District funds and in which only selected students are
allowed to speak. See Santa Fe, 120 S. Ct. at 2275-76. Sec-
ond, the principal retains supervisory control over all aspects
of the graduation, and has final authority to approve the con-
tent of student speeches. See id. Third, the District requires
the students to sign a special contract obligating them to act
and dress in a manner prescribed by the District. See Lee, 505
U.S. at 597. Finally, the speech presumably is broadcast to the
audience over a school microphone or public address system.
See Santa Fe, 120 S. Ct. at 2279.

[10] Allowing Niemeyer to give his proposed valedictory
speech at the Oroville graduation would have constituted gov-
ernment endorsement of religious speech similar to the prayer
policies found unconstitutional in Santa Fe and Lee. Because
District approval of the content of student speech was
required, allowing Niemeyer to make a sectarian, proselytiz-
ing speech as part of the graduation ceremony would have
lent District approval to the religious message of the speech.
Equally important, an objective observer familiar with the
District's policy and its implementation would have likely
perceived that the speech carried the District's seal of
approval. See id. at 2278; Santa Fe, 168 F.3d at 817-18
("[W]hen the school `permits' sectarian and proselytizing
prayers -- which, by definition, are designed to reflect, and
even convert others to, a particular religious viewpoint . . . --
such `permission' undoubtedly conveys a message not only
that the government endorses religion, but that it endorses a
particular form of religion."). The District's actual and per-
ceived endorsement of Niemeyer's proselytizing would have
sent a message to dissenting members of the audience that
" `they are outsiders, not full members of the political com-
munity,' " Santa Fe, 120 S. Ct. at 2279 (quoting Lynch v.

Donnelly, 465 U.S. 667, 688  (1984)), thereby pressuring the
dissenters to change their religious views to gain acceptance.

[11] Including Niemeyer's sectarian, proselytizing speech
as part of the graduation ceremony also would have consti-
tuted District coercion of attendance and participation in a
religious practice because proselytizing, no less than prayer,
is a religious practice. See Texas Monthly v. Bullock, 489 U.S.
1, 23 (1989) (noting that proselytizing is religious activity
protected under the Free Exercise Clause); Follett v. McCor-
mick, 321 U.S. 573, 576 -77 (1944) (noting that proselytizing,
including preaching and distribution of religious literature, is
religious activity protected under the Free Exercise Clause);
Murdock v. Pennsylvania, 319 U.S. 105, 108 -10 (1943)
(same). As the Court acknowledged in Lee, our society recog-
nizes that even simply standing or remaining silent can sig-
nify adherence to the views of others. Thus, allowing
Niemeyer's speech at graduation would have compelled a dis-
senter's implicit participation in the proselytizing. It is no
answer that some, or even most, dissenters might have
believed their silence signified respectful disagreement. The
critical inquiry under Santa Fe and Lee  to determine if reli-
gious activity at a major public school event constitutes
impermissible coercion to participate is whether "a reasonable
dissenter . . . could believe that the group exercise signified
her own participation or approval of it." Lee , 505 U.S. at 593
(emphasis added). "[T]he choice between whether to attend [a
school event] or to risk facing a personally offensive religious
ritual is in no practical sense an easy one. The Constitution
. . . demands that [a] school many not force this difficult
choice upon [its] students for `[i]t is a tenet of the First
Amendment that the State cannot require one of its citizens to
forfeit his or her rights and benefits as the price of resisting
conformance to state-sponsored religious practice.' " Santa
Fe, 120 S. Ct. at 2280 (quoting Lee, 505 U.S. at 596) (final
alteration in original).

We, like the Supreme Court, "recognize the important role
that public worship plays in many communities, as well as the
sincere desire to include public prayer as a part of various
occasions so as to mark those occasions' significance. But
such religious activity in public schools, as elsewhere, must
comport with the First Amendment." Id. at 2278. Cole and
Niemeyer remained free to pray and to proselytize outside of
school or in contexts where the District would not have been
an actual or perceived party to their religious activities.
Indeed, the Religion Clauses promote robust private religious
debate, allowing each religion to "flourish according to the
zeal of its adherents and the appeal of its dogma. " Zorach v.
Clauson, 343 U.S. 306, 313  (1952). However,"[t]he Constitu-
tion decrees that religion must be a private matter for the indi-
vidual, the family, and the institutions of private choice, and
that while some [government] involvement and entanglement
are inevitable, lines must be drawn." Lemon v. Kurtzman, 403
U.S. 602, 625 (1971); see also Lee, 505 U.S. at 589
("[P]reservation and transmission of religious beliefs and
worship is a responsibility and a choice committed to the pri-
vate sphere . . . ."). The requirement that religion be left to the
private sphere is the product of a well-documented and turbu-
lent history, demonstrating that "in the hands of government
what might begin as a tolerant expression of religious views
may end in a policy to indoctrinate and coerce." Lee, 505 U.S.
at 591-92. This danger is most apparent here, where allowing
the students to engage in sectarian prayer and proselytizing as
part of the graduation ceremony would amount to government
sponsorship of, and coercion to participate in, particular reli-
gious practices.9
CONCLUSION

We hold that Cole and Chris and Jason Niemeyer can no
longer sustain their equitable claims now that they have all
graduated from Oroville High School. We further hold that
the other Oroville students, parents of Oroville students and
other persons likely to attend future graduations lack standing
because the likelihood that they will in fact suffer an injury
is too speculative. Finally, we hold that, although Cole and
Chris Niemeyer have standing to bring damage claims against
District officials, the officials did not violate the students'
right to freedom of speech. Rather, District officials acted rea-
sonably to avoid violating the Establishment Clause.

AFFIRMED./dcs/programs/www/cgi-prod/getfile.sh[51]: rmove:  not found
/dcs/programs/www/cgi-prod/getfile.sh[52]: rmove:  not found
/dcs/programs/www/cgi-prod/getfile.sh[53]: rmove:  not found

_______________________________________________________________

FOOTNOTES

1 Because the district court did not reject Cole's and Chris Niemeyer's
standing to bring the damage claims, Jason Niemeyer was added as a party
only to the injunctive claim.
2 There is no allegation that either the voluntary cessation of harmful
conduct or collateral legal consequences exceptions to mootness applies.
Cf. Madison Sch. Dist., 177 F.3d at 799 (discussing those exceptions in the
graduation prayer context).
3 Compare United States Dep't of Labor v. Triplett, 494 U.S. 715, 720
(1990) (concluding jus tertii standing is present where "enforcement of a
restriction against the litigant prevents a third party from entering into a
relationship with the litigant (typically a contractual relationship), to
which relationship the third party has a legal entitlement (typically a con-
stitutional entitlement)"), with Broadrick v. Oklahoma, 413 U.S. 601, 612
(1973) (holding that, under the overbreadth doctrine, "[l]itigants, . . . are
permitted to challenge a statute not because their own rights of free
expression are violated, but because of a judicial prediction or assumption
that the statute's very existence may cause others not before the court to
refrain from constitutionally protected speech or expression"); see gener-
ally Richard H. Fallon, Daniel J. Meltzer & David L. Shapiro, Hart &
Wechsler's The Federal Court and The Federal System  188 (4th ed. 1996)
(distinguishing jus tertii standing from overbreadth challenges); Note,
Standing to Assert Constitutional Jus Tertii, 88 Harv. L. Rev. 423, 423-24
(1974) (same).
4 The district court correctly concluded it did not have jurisdiction over
the appellants' damage claims against the District and District officials in
their official capacities, because California school districts are state agen-
cies and thus immune from damage suits under the Eleventh Amendment.
See Berlanger v. Madera Unified Sch. Dist., 963 F.2d 248, 251-54 (9th
Cir. 1992); see also Will v. Michigan Dep't of State Police, 491 U.S. 58,
71 (1989) ("[A] suit against a state official in his or her official capacity
is not a suit against the official but rather is a suit against the official's
office.").
5 The appellants did not pursue their claim of taxpayer standing before
this court and have thus waived the issue. See Ceja v. Stewart, 97 F.3d1246, 1252 (9th Cir. 1996). Nevertheless, their claims of taxpayer standing
would fail because the appellants have not identified tax dollars spent
solely on the valedictory speech or the invocation or on the District's deci-
sion to refuse to allow sectarian speech at its graduation ceremonies. See
Madison Sch. Dist., 177 F.3d at 794; see also id. (concluding that taxpayer
standing to challenge a particular graduation activity cannot be sustained
by tax dollars spent on "ordinary costs of graduation that the school would
pay whether or not the ceremony included [the challenged event]").
6 Cole and Chris Niemeyer also alleged they were denied due process
when the District refused to allow them to give a sectarian speech or
prayer at the graduation ceremony without a hearing as required by the
District's policy on student freedom of speech. Even if the District's pol-
icy creates an entitlement cognizable under the Due Process Clause, this
claim fails because the policy only requires a hearing upon request of the
student, and neither student requested such a hearing.
7 In both Santa Fe andLee, the Court emphasized that the threat ofcoer-
cion caused by public and peer pressure to attend important school events
is heightened in the public high school context because adolescents are
more susceptible to such pressure, especially as to issues of social conven-
tion. See Santa Fe, 120 S. Ct. at 2280; Lee, 505 U.S. at 592-93.
8 In the wake of Santa Fe, it may be that the District's invocation policy
itself violates the Establishment Clause. See 120 S. Ct. at 2278-79, 2282.
We do not reach this issue, however, because it was not raised.
9 Avoiding an Establishment Clause violation is also a sufficiently com-
pelling interest to justify any burden the District officials' decisions had
upon Cole's and Chris Niemeyer's right to the free exercise of religion.
See, e.g., Lee, 505 U.S. at 587 ("The principle that government may
accommodate the free exercise of religion does not supersede the funda-
mental limitations imposed by the Establishment Clause."); Wisconsin v.
Yoder, 406 U.S. 205, 220 -221 (1972) ("The Court must not ignore the
danger that an exception from a general obligation of citizenship on reli-
gious grounds may run afoul of the Establishment Clause . . . .").