Appeal from the United States District Court for the District of Idaho. D.C. No. CV-91-00166-HLR. Harold L. Ryan, District Judge, Presiding.
Before: Eugene A. Wright, Charles Wiggins and David R. Thompson, Circuit Judges. Opinion by Judge Wiggins; Partial Concurrence and Partial Dissent by Judge Wright.
In this case, students and a parent of students challenge the constitutionality of the inclusion of prayer in the Grangeville High School graduation ceremony held yearly in Grangeville, Idaho. The plaintiffs claim that the prayers violate Article IX, sections 5 and 6,*fn1 and Article I, section 4,*fn2 of the Idaho Constitution (the "Idaho Religion Clauses"), and the Establishment Clause of the United States Constitution. Plaintiffs originally sued in state court. Defendants removed the case to federal district court. The district court allowed several students and parents to intervene on the side of the school district. The intervenors claim that they have a right under the Free Speech and Free Exercise Clauses of the United States Constitution to have a prayer at the graduation ceremony. Both the plaintiffs and intervenors moved for summary judgment. The district court declined to rule on the state law issues, held that the prayers did not violate the Establishment Clause, and entered judgment for the defendants. Harris v. Joint Sch. Dist. No. 241, 821 F. Supp. 638, 639 n.2, 639-44 (D. Idaho 1993). Plaintiffs appeal.
I. Idaho Constitutional Law Claims
Plaintiffs first contend that the district court erred by declining to decide whether the prayers violated the Idaho Constitution. The district court ruled as follows regarding these state law claims:
Given the fact that important state constitutional issues have been raised, this court finds that it is appropriate for those issues to be resolved by the courts of the State of Idaho. In light of the present posture of this case, rather than certifying questions to the Idaho Supreme Court, this court will rule on the federal constitutional issues and close the case. Thereafter, should they choose to do so, the parties may pursue the state constitutional issues in a state forum.
Though the district court's explanation is somewhat ambiguous, we conclude that the district court exercised its discretion to dismiss the state constitutional issues, over which it had pendant or supplemental jurisdiction.*fn3 "We review the district court's decision whether to exercise pendent jurisdiction for an abuse of discretion." O'Connor v. Nevada, 27 F.3d 357, 362 (9th Cir. 1994); Imagineering, Inc. v. Kiewit Pacific Co., 976 F.2d 1303, 1309 (9th Cir. 1992) ("clear error of judgment"), cert. denied, 123 L. Ed. 2d 266, 113 S. Ct. 1644 (1993).
Section 1367(c) of 28 U.S.C. provides that a district court "'may decline to exercise supplemental jurisdiction over a claim' if any one of the four circumstances listed in the statute exist." O'Connor, 27 F.3d at 362-63 (quoting the statute). As did the court in O'Connor, we find that "two of those circumstances . . . exist in the present case," id. at 363: "the [state] claims raised . . . novel or complex issues of State law . . . [and] the district court had dismissed all claims over which it had original jurisdiction . . . ." 28 U.S.C. § 1367(c)(1), (3); see O'Connor, 27 F.3d at 363.
First, whether the graduation prayers violate the Idaho Constitution is a novel and complex issue of first impression. The Idaho Supreme Court has not addressed prayer in the public schools in any context. Moreover, the state constitutional provisions bear no resemblance to those found in the First Amendment and appear to be the product of Idaho's unique religious history. Cf. Medrano v. City of Los Angeles, 973 F.2d 1499, 1506 (9th Cir. 1992) (affirming dismissal of pendant claims in part because otherwise the district court would have to "resolve difficult questions of California law" (internal quotations omitted)), cert. denied, 124 L. Ed. 2d 638, 113 S. Ct. 2415 (1993).
Second, after the district court decided that no Establishment Clause violation had occurred, it dismissed all claims over which it had original jurisdiction. "In the usual case in which federal-law claims are eliminated before trial, the balance of the factors of economy, convenience, fairness, and comity will point toward declining to exercise jurisdiction over the remaining state-law claims." O'Connor, 27 F.3d at 363 (internal quotations and brackets omitted). For these reasons, "we conclude that the district court did not abuse its discretion in declining to consider the state constitutional law claims." Id.
We recognize that generally a federal court "should avoid the adjudication of federal constitutional issues when alternative grounds are available, . . . even when the alternative ground is one of state constitutional law." Carreras v. City of Anaheim, 768 F.2d 1039, 1042 (9th Cir. 1985) (citation omitted). In this case, however, federal constitutional adjudication was necessary whether or not the state constitutional claim was present. If the district court had retained the Idaho constitutional claims and decided that the Idaho constitution was not violated, it would have had to resolve the plaintiffs' Establishment Clause claim. If the district court had decided that the prayers violated the Idaho Constitution, it would have had to decide the intervenors' Free Exercise claim. See Collins v. Chandler Unified Sch. Dist., 644 F.2d 759, 762-63 (9th Cir.)(resolving free exercise and free speech arguments raised by a school district, after holding that the district had violated the Establishment Clause), cert. denied, 454 U.S. 863, 70 L. Ed. 2d 163, 102 S. Ct. 322 (1981). As it was, the district court dismissed the state law claim and was left with only the federal claims. The district court was faced with federal constitutional adjudication no matter how it resolved the state law issues. Therefore, the doctrine recognized in Carreras does not require that the district court (or this court) consider the pendant state law claim. The Establishment Clause cases relied on by the plaintiffs, Ellis v. City of La Mesa, 990 F.2d 1518 (9th Cir. 1993), cert. denied, 114 S. Ct. 2707 (1994), and Hewitt v. Joyner, 940 F.2d 1561 (9th Cir. 1991), cert. denied, 117 L. Ed. 2d 134, 112 S. Ct. 969 (1992), are inapposite. In neither case was a federal free exercise or free speech right asserted.
II. The Establishment Clause
The plaintiffs contend that the district court erred in holding that the prayers did not violate the Establishment Clause. The Supreme Court recently addressed, in Lee v. Weisman, 120 L. Ed. 2d 467, 112 S. Ct. 2649 (1992), whether a prayer said at a high school graduation ceremony violated the Establishment Clause.
In Lee, the principal of the high school invited Rabbi Leslie Gutterman to deliver prayers at the Nathan Bishop Middle School graduation. The principal gave the Rabbi a pamphlet, prepared by an organization of Christians and Jews, recommending what kinds of prayers should be given at civic ceremonies. The principal also advised the Rabbi that the prayers should be nonsectarian. The Rabbi's prayers were nonsectarian yet squarely in line with Judeo-Christian tradition. The graduation ceremony took place on school property. Attendance was stipulated by the parties to be voluntary. Students stood while the pledge of allegiance was said and remained standing during the prayers. The Court could not determine whether the Rabbi remained on the stage or participated in any other aspect of the graduation. Though the facts recited in the case describe only the Rabbi's prayer at the middle school, the school district's practice at the high school graduation, substantially the same as that at the middle school, was also at issue. Id. at 2652-54.
The Court held that the prayers violated the Establishment Clause. Id. at 2661. The Court reasoned,
These dominant facts mark and control the confines of our decision:  State officials direct the performance of a formal religious exercise at . . . graduation ceremonies for secondary schools.  Even for those students who object to the religious exercise, their attendance and participation in the state-sponsored religious activity are in a fair and real sense obligatory, though the school district does not require attendance as a condition for receipt of the diploma.
Id. at 2655. As to the first dominant fact, the Court reasoned that direction by state officials created a "potential for divisiveness" over religion. Id. at 2656.
As to the second dominant fact, the position of the students, the Court reasoned that "there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools." Id. at 2658. In this environment,
what to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices . . . may appear to the nonbeliever or Dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.
Id. at 2658. The Court also noted that whether attendance at high school graduation could be called "voluntary" or not was irrelevant. High school graduation is an extremely important event, important enough that "to say a teenage student has a real choice not to attend her high school graduation is formalistic in the extreme." Id. at 2659. "It 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." Id. at 2660.
This court has also addressed the practice of praying at high school assemblies. Collins v. Chandler Unified Sch. Dist., 644 F.2d at 759. In Collins, the Student Council requested and was granted permission by the principal to open with prayer student assemblies held on school property during school hours. The Student Council "allotted a certain amount of time on the [assembly] agenda and selected one member of the student body to say the prayer. The selected student was free to choose the manner and words in which the prayer was delivered." Id. at 760. Students not wishing to attend the assembly could "report to a supervised study hall." Id.
We held that these prayers violated the Establishment Clause, citing the "three part test enunciated in Lemon v. Kurtzman," 403 U.S. 602 (1971). "That test establishes that a state regulation does not violate the Establishment Clause if (1) the enactment has a secular purpose; (2) its principal or primary effect neither advances nor inhibits religion; and (3) it does not foster an excessive entanglement with religion." 644 F.2d at 762. Applying the Lemon test, we found that, first, "the invocation of assemblies with prayer has no apparent secular purpose . . . . Second, the primary effect of such prayer appears to advance religion . . . ." Id. (citations omitted). Third, the prayers involved excessive entanglement because "the school ...