Today we consider a challenge to the Beaumont Independent School District's "Clergy in the Schools" program, which enlists various clerical volunteers to counsel groups of students regarding secular topics. We granted en banc review after a panel of this court, reversing the district court, held that the student plaintiffs had standing and that the program violated the Establishment Clause of the First Amendment. We agree that the plaintiffs have demonstrated standing sufficient to withstand summary judgment. However, perhaps because the parties did not squarely engage each other on the merits, they have produced an uncertain record burdened with genuine issues of material fact, including the place of the clergy program in the District's larger overall volunteer program.1 We therefore REVERSE, and REMAND to the district court.

The ultimate question in this Establishment Clause case is equality of treatment: whether the school board preferred religion over non-religion. It follows, at trial, that the district court must not confine its analysis to only "Clergy in the Schools." Rather, the court can and should examine the targeted program in its full context, viewing it as it actually operates in its setting, including other programs similar in purpose and function. If the set of programs together comprise a mosaic that is neutral with regards to religion, then the Establishment Clause is not offended. The program's mission and means pose questions of fact, subsidiary to the ultimate question of whether the school district has impermissibly preferred religion over non-religion, which preclude the grant of summary judgment. Although we reverse the grant of summary judgment and remand for trial, we discuss the record both to locate the genuine issues of material fact and to provide guidance to the district court, reminding that standing must be demonstrated at all stages, including trial.

* The plan presents a novel configuration of Establishment Clause issues. In 1996, the Beaumont Independent School District instituted a volunteer program in its elementary and middle schools called "Clergy in the Schools." The District solicited volunteers from area clergy of all local faiths, the majority of which are Protestant Christian. Participants conducted group counseling on secular issues including race, divorce, peer pressure, discipline, and drugs. The program's stated goals were to provide (1) meaningful dialogue between the clergy and students regarding civic values and morality; (2) a safe school atmosphere; and (3) volunteer opportunities.

Well aware that it was walking a legal high wire, the District took several steps to avoid constitutional concerns regarding the content of the counseling sessions. It schooled the clergy regarding legal strictures, instructing them not to wear clerical garb, identify their religious affiliations, engage in religious discussions, or quote the Bible. Requests for prayer were to be deflected to outside of the school. The District also prohibited discussions regarding sex or abortion. School officials attended the meetings along with the clergy and students.2

Participation by students in the program was voluntary, although no parental consent was required. Students who wished to participate could do so, but participation was also solicited on a random basis. The record is unclear regarding that mix. The record is also unclear as to the numbers of students participating: at the program's inception, it was to involve one or two visits to each school per year with about 35 students per session.

The plaintiffs presented several facts in support of their claim that the program sought to create a stronger school-church bond. Superintendent Carrol Thomas, who initiated the program, at one time advocated a need for prayer in schools. At the first training session for the program, the PTA president distributed a leaflet entitled, "Reasons for a Church-School Alliance." After the filing of the Does' Complaint, the District sent a letter to the volunteers clarifying that the goals expressed in the leaflet were not part of the program. One volunteer quoted the Bible at a counseling session. In response, the District prepared a "Fact Sheet" for the volunteers reciting the secular nature of the program. Outside of the school, the clergy prayed together before the counseling sessions, and Superintendent Thomas asked them to preach about substance abuse in their worship services and to help prepare students for the Texas standardized examinations.

The record reflects a number of volunteer opportunities for adults, which are administered through its "School Volunteer Program." Those programs include a sorority which conducts fairs and a child safety program; several corporate volunteer programs; senior citizen volunteering, some of which includes mentoring; and DARE, an anti-drug program involving police officers. There are also volunteer programs involving mentoring funded by sources outside the Beaumont public schools. From the record it is difficult to decide as a matter of law whether these opportunities provide services to the students that are comparable to the counseling and mentoring featured in the clergy program.

Before the District initiated the program, one of the parent plaintiffs read about the program in the newspaper. She requested that the District integrate professionals from secular counseling professions into the program. After the District refused her request, she and the other Doe plaintiffs brought suit to enjoin the program from going forward. They alleged that it violated the Establishment Clause of the First Amendment as well as the Texas Constitution. The district court denied a temporary restraining order. Later, on cross-motions for summary judgment, the district court granted summary judgment to the District, holding that the plaintiffs lacked standing and, alternatively, that the program did not violate the Establishment Clause. The Doe plaintiffs appealed to a panel of this court, which reversed the district court. The District then sought en banc review, which we granted.

Article III of the U.S. Constitution requires that a litigant have standing to invoke the power of a federal court. The focus of standing is on the parties' right to have the court decide the merits of the dispute.3 To demonstrate standing, the plaintiff must show an "injury in fact," a requirement assuring that the court will not "pass upon . . . abstract, intellectual problems, but will adjudicate concrete, living contest[s] between adversaries."4 The injury alleged must be actual or imminent and not abstract, conjectural, or hypothetical.5

By insisting that a plaintiff have a personal stake - an individuated interest rather than an interest in good government shared by all citizens - Article III avoids enlisting federal courts in policy exercises about how the government operates. This insistence vindicates principles of separation of powers and federalism by closing the doors to those who would only entreat the court to superintend the legal compliance of the other branches and the states. For example, in Valley Forge Christian College, the plaintiffs learned of the federal government's conveyance of property to a religious institution in another state. Those plaintiffs had no relationship to the government action at issue other than an interest in seeing the law enforced.6 They had suffered no injury from any unconstitutional acts not suffered by all citizens.

At the same time, the fact that many persons suffer an injury does not mean that no person has suffered the requisite injury.7 Plaintiffs have standing to assert, for example, that their use or enjoyment of a public facility is impaired by an alleged violation of the Establishment Clause.8

Such a claim of standing is even stronger when the plaintiffs are students and parents of students attending public schools. Students and their parents enjoy a cluster of rights vis-a-vis their schools - a relationship which removes them from the sphere of "concerned bystanders."9 The Supreme Court has recognized that students have a judicially cognizable interest in a right to receive an education in a racially integrated school.10 Similarly, the Court has repeatedly stated the right of children and their parents to receive public education that is compliant with the First Amendment's Establishment Clause.11 This is not to suggest that children and their parents need not have an individuated injury. Rather, the point is that they have often been found to have suffered an injury, albeit along with many other students and parents.

In this case, the question of standing was initially framed by the District's contention that the option not to participate in the program deprives the Does of a cognizable injury. In response, the panel opinion concluded that the threat of exposure to random summons to the program was a sufficient injury. We need not return to that joust: standing may be supported by more direct reasons. Of course, the parties cannot confine our inquiry into standing to the initial field of engagement. We must satisfy ourselves of our own and the district court's jurisdiction, even if the parties are prepared to concede standing.12

The District's characterization of standing fails to grasp the full harm of which the plaintiffs complain. The Does have asked that this effort to enrich the curriculum be modified so that they may participate. There is little doubt that limiting access to the full curriculum offered by the school would injure these students.13

In sum, there is standing beyond the Does' status as students or parents of students at the school.14 Opportunities for counseling and mentoring services are a needed and valued component of public education. The District supported this mentoring program with its money and resources. At bottom, the claim is that the program unconstitutionally prefers religion over non-religion, that the students cannot participate in the school's offered program without taking part in an unconstitutional practice. If found at trial, this works a deprivation of a student's right not to be excluded from the benefits of a school-financed educational offering - a concrete, judicially cognizable injury.

In evaluating the merits of the Doe plaintiffs' Establishment Clause claim,15 we consider their allegations in light of three lines of analysis developed by the Supreme Court. First, the three-part inquiry of Lemon v. Kurtzman asks (1) whether the purpose of the practice is not secular; (2) whether the program's primary effect advances or inhibits religion; and (3) whether the program fosters an excessive government entanglement with religion.16 The second test, the "coercion" test, measures whether the government has directed a formal religious exercise in such a way as to oblige the participation of objectors.17 The final test, the "endorsement" test, prohibits the government from conveying or attempting to convey a message that religion is preferred over non-religion.18 We will apply the latter two tests to the program's effects, rather than its purpose or structure, thus focusing on the plaintiffs' strongest contention that the program is non-neutral.

* Under Lemon, we first analyze whether the Clergy in the Schools program had a secular purpose.19 Courts normally defer to a government's statement of secular purpose. That purpose, however, must be sincere and not a sham.20

The District's stated purposes of the program - to provide dialogue between the clergy and students regarding civic values and morality, a safe school atmosphere, and volunteer opportunities - are secular goals. It is permissible for a school to promote discussions on morality, safety, and volunteering from the community. That these goals may overlap with some religious views is of no moment.21

The Does suggest that the stated purposes are a sham, pointing to Superintendent Thomas's statement that prayer is needed in schools; the church-school alliance leaflet distributed to the volunteers; the District's encouragement of volunteers to provide counseling and tutoring in their churches; the prayers conducted by the volunteers at their pre-counseling meetings; and the Bible quotation used by one of the volunteers at a student session.

We are not persuaded that these indicia are sufficient to demonstrate as a matter of law that the purpose of the Program was not secular. Superintendent Thomas's requests regarding tutoring and prayer at church, as well as the volunteers' prayers before meetings, were not part of the program and the summary judgment record indicates no hidden purpose in conducting it. The record does demonstrate that following the two violations of the program's stated goal - the PTA president's distribution of the information sheet and the Bible quotation used by one of the volunteers - the District sent out literature to the volunteers clarifying the secular purposes of the program.

In reaching its conclusion that the program exhibited an impermissible purpose, the principal dissent relies on several statements it claims were made in disseminated "pamphlets," "informational materials," and "publicity." Again, the principal dissent's enthusiasm runs ahead of the record. The quoted language regarding "doing the right thing" and the benefits of volunteering for the clergy in their vocations comes from a document entitled "Meeting with Ministers," an agenda sheet for the program's orientation. There is no evidence in the record that this sheet was even distributed. The statements contained in the agenda sheet were listed not under the "Goals" heading of the agenda, but under "Expect[at]ions." More importantly, they were cited not as purposes, but as indications of what the clergy could expect from participation.22 The principal dissent's finding of an impermissible purpose cannot be made as a matter of law, if at all. There is no impermissible purpose in pointing out to potential volunteers the benefits they can expect or in relating how valuable their participation will be. Few would deny the difficulty of recruiting volunteers for schools.

The principal dissent is left with citing the exclusivity of the clergy program as expressing an impermissible purpose. Unsatisfied with testimony that the District's volunteer programs are routinely grouped around a vocational, corporate, or social affiliation, and that the clergy were tapped because of their collective experience with listening to problems and talking to groups, the principal dissent pieces together a quotation from Joy James, the District's volunteer coordinator, and interprets it to mean that the District believes clergy have unique substantive experience in the field of morals. James, however, specifically denied that the purpose of separation was to convey any special message "that only clergy can convey." Moreover, the District's encouragement of people from all walks of life to participate in various other mentoring programs rebuts the dissent's conjecture. We cannot find here as a matter of law that the stated purposes of the program were not permissible or pretextual. Thus, we cannot find as a matter of law that the program ran afoul of the purpose prong of Lemon. We leave this issue for trial. The parties may adduce such evidence as they can bearing on the question of whether the stated purposes were pretext.

The second prong of Lemon examines whether the program at issue has the primary effect of advancing or inhibiting religion.23 The Court has identified several types of impermissible effects. Two are relevant here. First, we ask whether the program will cause state-sponsored inculcation of religious beliefs.24 In the context of this program, this inquiry dovetails with the coercion test of Lee v. Weisman, asking whether the District has directed a religious activity in such a way as to compel participation.25 These impermissible effects turn on whether the Program encourages religious indoctrination or involves religious services.

The Supreme Court has assumed that a religious organization may be unable to follow the secular guidelines of a program only if the organization is "pervasively sectarian."26 An interfaith group of clergy in the program's setting is not "pervasively sectarian." The volunteers are working in a secular setting with other volunteers who subscribe to different faiths. Thus, we presume that the volunteers will comply with the program's secular guidelines. The plaintiffs' only evidence to the contrary, the Bible quotation by one volunteer, is not sufficient to demonstrate state-sponsored inculcation.

Similarly, because the counseling does not constitute a religious exercise, the Program does not violate the coercion test. We cannot imply from the presence of a minister that the message cannot be secular - a commonsense observation that is also the law. If no religious activity is at issue, any speculation as to whether students might feel pressured to participate is irrelevant. We conclude that the summary judgment record does not support a conclusion that the program violates the coercion test.

We turn to the second group of impermissible effects: the core question of non-neutrality. The Court has required that a government allocate benefits among secular and religious organizations in a neutral manner.27 A non-neutral program is impermissible because it could convey the message that the religion-oriented recipients are uniquely qualified to carry out those services.28 Put another way, it is impermissible for the government to "endorse" religion by conveying a message that religion is preferred over non-religion.29

Apart from the principal dissent's disagreement with the majority's reading of the record,30 the central disagreement among the three opinions today is how we should measure the constitutional significance of a program whose potential non-neutrality or endorsement stems only from its symbolic affiliation. This is not a case involving devotional activities, proselytization, or benefits to religion. We are presented with a symbolism case, but a unique version of one: one whose symbolism draws not from a visual symbol, as in Allegheny v. ACLU, but from a government-sponsored activity.

This difference presents some analytical difficulty, which both dissents - while reaching opposed results - summarily dismiss. Judge Jones would exclude the symbolic import of a group of clergy from the Establishment Clause analysis altogether.31 The principal dissent seizes upon the notion that "each decisional element" must be scrutinized for constitutional failing but never bothers to analyze what constitutes such a decisional element.

A government-sponsored activity such as a volunteer program may indicate non-neutrality or endorsement. The key question is in what context we assess that activity - by a narrow examination of each individual extracurricular program, or from the perspective of the District's entire menu of volunteer mentoring and counseling programs. The Supreme Court has allowed clerical figures to perform secular duties as long as the government neutrally allowed those duties to be performed by secular or religious figures.32 The District argues that it allows and sponsors mentoring opportunities for both religious and secular figures.

The principal dissent would have us look only at the clergy program in answering the question of neutrality. We are assessing a school's volunteer program, however, not analyzing a statutory scheme. While a statute addressing a particular matter is presumably the legislature's comprehensive treatment of that topic, the District's volunteer programs seem to be more piecemeal and organized around groups of volunteers. For example, the DARE program is organized around the participation of local police officers, not as the District's last word on the prevention of substance abuse. Thus, the District's grouping of clergy does not appear to be a limit upon mentoring or counseling volunteer opportunities of other groups. Looking at the District's policies in light of its entire volunteer program, we cannot say as a matter of law that the program is not neutral with respect to religion.

This record, developed as it was on limited summary proceedings, lacks sufficient detail regarding the overall set of volunteer programs operated by the District to sustain a summary judgment in either direction. We therefore leave this issue for trial and instruct the district court to consider the entire set of volunteer programs operated by the District - including, but not limited to the "Clergy in the Schools" program - in answering the question of whether the District preferred religion over nonreligion.

The endorsement analysis under Allegheny, which begins with the element that carries religious symbolism, also requires us to examine the volunteer program as a whole. In a visual display, every element carries with it complete symbolic content. The elements are prototypical symbols, conveying a whole message within a single visual marker. In our case, an individual clergy member, wearing no vestments and untitled, is not a symbol. Instead, the most basic symbolic element in our case is the clergy's presence as a counseling group. We agree with the Does that the presence of a group of clergy participating in a program called "Clergy in the Schools" carries some symbolic weight. Even if the clergy do not wear their clerical vestments, the program suggests that they have been chosen as a group because of a perceived expertise in the fields of civic values and morals.

Again, we look at that symbol not in a vacuum, however, but within its relevant context. In Allegheny, the Court did not focus on a government's decision to display a Chanukah menorah in isolation, but considered it within the context of the government's inclusion of other elements including a Christmas tree and a sign saluting liberty.33 The Court determined that the particular setting "negated" any message of endorsement of religion.34

The Lemon test's third prong bars excessive entanglement.35 Administrative cooperation alone does not constitute such a violation. Only programs that require "pervasive monitoring" run afoul of the Establishment Clause.36 The Court has held that to require from religious officials the performance of administrative duties consistent with and not more onerous than those required from non-religious officials in analogous programs does not constitute excessive entanglement.37

In Agostini v. Felton, the Court found no excessive entanglement where a school district sending public school teachers to parochial schools under Title I provided training regarding the secular nature of the program, required the removal of religious symbols from private school classrooms, and made unannounced visits to classrooms about once a month.38 The program here is very similar to the controls in Agostini in terms of training and visual symbols. The monitoring requirement could be characterized as "pervasive" because an administrator attends every session, rather than attending sporadically. Because the District monitors all of its volunteer programs, however, that supervision imposes no unique administrative burdens. That the District sent a mailing soliciting the clergy volunteers appears to have been a function of having no existing umbrella organization rather than an administrative need occasioned by the volunteers' religious professions. In the absence of a need for the District to undertake measures it does not follow with respect to other programs, we find no excessive entanglement.

Establishment Clause analysis requires that we be sensitive to the context and circumstances attending each case.39 If the clergy program is fairly viewed, on a fully developed record, as part of a larger framework of secular mentoring and counseling programs, it has not run afoul of the Establishment Clause. Here, the very simplicity of mixing the clergy with others occasions the need for a fact finder's settlement of the reasons for the District's rejection of that solution. The record evidence leaves us with a blurred picture of the District's volunteer program as a whole. It is unclear whether the mentoring in other programs is narrow in scope, or whether it reaches to a meaningful degree the broader counseling emphasized in the clergy program. This question is not properly answered by merely considering the names of other programs or the groups invited to participate. When an athlete comes, for example, to speak to students about athletic achievement, that discussion can be thin or thick. It can be a simple discussion of winning techniques for a specific sport, or it can emphasize larger themes of teamwork, self-discipline, goal setting, truth telling, giving, relationships, and hard work; values the "clergy" must also teach. Their very kindred nature would belie a preference for religion over nonreligion - unless the district effectively took the tack that only preachers can teach this subject.

We cannot conclude as a matter of law that there is an absence of genuine issues of material fact so as to sustain a grant of summary judgment for either party on the question of whether the District is preferring religion over non-religion. The district court may find that only the clergy are invited to imbue these values, that other programs differ in both mission and means, or it may find that other professions similarly engage the students, through the unique lens of their respective professions by active mentoring through the powerful presence of lives well lived. That the perspectives of the different programs differ is not a touchstone of invalidity. To the contrary, the District urges that it seeks the differing perspectives upon common values and civic virtues - a quest that will produce different looks for the components of a larger program. A trial must sort out these assertions of fact.

Facts decide cases at every level and of all types. That a case or controversy has no disputed questions of fact does not undercut this statement. Nor is there some exception for cases of public interest or for cases perceived by some measure to be more important than others. No member of this Court would openly decide questions of law that were not before the Court as part of a case or controversy. This does not mean that it does not happen; without a sound resolution of fact, this "case or controversy" remains undefined, leaving its opinions to read like essays or editorials about schools and religion. The dry legal observation that an opinion fails to accept genuine issues of material fact conceals its profound consequences. Facts and their resolution lie too close to the heart of the judicial function to treat them as little more than pieces of an erector set - available for use in a writer's envisioned design.

This leaves bench and bar to puzzle over what we have held today. It is difficult because the opinions either soar past the record or delve into its meager content for any inference, not unlike an advocate preparing a closing argument. Nonetheless, the principal dissent and this opinion share important common ground. We agree that the summary judgment must be reversed and the case remanded for trial, although the principal dissent would go further, reversing and rendering judgment.

We agree that the ultimate question is whether the school district impermissibly preferred religion over non-religion. This agreement reflects our overarching agreement that the school district owes a duty to be evenhanded in its policies toward religion and non-religion, a duty of equality. Relatedly, we agree that context is critical in assessing neutrality. We agree with the principal dissent's observation that, "had the school district offered and factually supported a legitimate alternative explanation for its clergy only recruitment policy, it would have created a genuine issue of material fact, making a remand necessary." At the same time, this statement frames the difference between our view and that of the dissenting opinion. We say the record does provide that context, and the principal dissent says it does not.

The principal dissent makes our point that this case must be tried. Each of its arguments rest on a starting premise of the facts. For example, in assessing whether the program has a secular purpose, the principal dissent determines the question of fact on appeal finding that there is no such fit. It then lays its accent upon the failure of the district to include other professionals in the single program it would examine. In short, virtually all of the flaws with the program found by the principal dissent flow from its willingness to accept as fact with no trial that this was a single stand-alone program with no relevant kinship to the other programs. With respect, asserting that the other programs are not relevant begs the basic fact question of the fit of the clergy program into the larger scheme of providing outside mentoring opportunities.

We reverse the grant of summary judgment and remand to the Chief Judge of the Eastern District of Texas for further proceedings, including trial if necessary.

REVERSED AND REMANDED.

E. GRADY JOLLY, Circuit Judge, joined by JONES, SMITH, BARKSDALE, EMILIO M. GARZA,1 and DeMOSS, Circuit Judges, dissenting on the question of standing:

Article III of the Constitution requires a plaintiff to have standing to litigate; absent standing, we have no constitutional authority to consider the controversy. Here, the sole component of standing at issue is that of "injury in fact." The record demonstrates the following indisputable facts: (1) the complaint contains no allegation of an injury; (2) the plaintiffs' response to BISD's motion to dismiss for lack of standing contains no allegation of an injury; (3) the summary judgment record contains no evidence of an injury; and (4) the plaintiffs failed to articulate any argument to the district court that they have suffered an injury. Yet, mindful of these facts, a majority of the members of this court are willing to confer standing on the Does despite the Supreme Court's clear command in Lujan:

The party invoking federal jurisdiction bears the burden of establishing [the elements of standing]. Since they are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. . . . In response to a summary judgment motion, however, the plaintiff can no longer rest on such 'mere allegations,' but must 'set forth' by affidavit or other evidence 'specific facts,' which for purposes of the summary judgment motion will be taken to be true.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (citations omitted). Further, the Supreme Court has emphasized that there is no "sliding scale of standing" that would apply a different standard to an Establishment Clause case. Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 484 (1982). Instead, the same stringent requirements of standing apply regardless of the origin or nature of the right sought to be vindicated. Id. Consequently, because the plaintiffs have clearly, unequivocally, and indisputably failed to carry their burden of demonstrating that this case presents a "case" or "controversy" under Article III of the Constitution, I respectfully dissent.

Valley Forge is the only Supreme Court opinion fully to address standing in the context of a challenge to a state action under the Establishment Clause. 454 U.S. at 464.2 Valley Forge makes the following salient points: (1) "Article III of the Constitution limits the 'judicial power' of the United States to the resolution of 'cases' and 'controversies.'" Id. at 471. (2) In the light of this "bedrock requirement, this Court has always required that a litigant have 'standing' to challenge the action sought to be adjudicated in the lawsuit." Id. (3) "The exercise of judicial power, which can so profoundly affect the lives, liberty, and property of those to whom it extends, is therefore restricted to litigants who can show 'injury in fact' resulting from the action which they seek to have the court adjudicate." Id. at 473 (emphasis added). (4) "The party who invokes the power [of judicial review] must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally." Id. at 477 (citations omitted). (5) Focusing on the requirement of "injury in fact, . . . citizens generally [can] not establish standing simply by claiming an interest in governmental observance of the Constitution, [they must] set forth instead a particular and concrete injury to a personal constitutional right." Id. at 482. Drawing on these principles, the Valley Forge Court stated:

Although respondents claim that the Constitution has been violated, they claim nothing else. They fail to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequences presumably produced by observation of conduct with which one disagrees. That is not an injury sufficient to confer standing under Art. III, even though the disagreement is phrased in constitutional terms. It is evident that respondents are firmly committed to the constitutional principle of separation of church and state, but standing is not measured by the intensity of the litigant's interest or the fervor of his advocacy. That concrete adverseness, which sharpens the presentation of issues, is the anticipated consequence of proceedings commenced by one who has been injured in fact; it is not a permissible substitute for the showing of injury itself.

Id. at 485-86. Thus, the Court held, because "we simply cannot see that respondents have alleged an injury of any kind," they lack standing to bring the current litigation. Id. at 487.

Focusing on the record in this case--and mindful of where the burden of proof lies--the plaintiffs have failed utterly to identify and prove a "particular" and "concrete" injury resulting from the implementation of the Clergy in Schools Program. The reason--indeed the wisdom--for the Supreme Court's insistence that the plaintiffs prove a concrete, palpable injury is best illustrated by the confusion among the members of the court in actually determining the injury sustained by the Does. Throughout the briefing, opinions, and discussions in this case, injury has been an exceedingly elusive target.3 The panel initially identified the injury suffered by the Does' in these words:

[T]he Doe children attend schools in which the program operates, and they are continually at risk of being selected by BISD administrators, without advance notice and without parental consent. . . . The Does are not simply claiming that the Constitution has been violated in some distant place, with personal injury predicated on having been aware of or having observed conduct with which they disagree. Quite to the contrary, the Does leave home every morning of the school year to attend schools in which the program is ongoing. This Damoclean threat removes the Does' claim from the realm of generalized grievances and provides the degree of 'concrete adverseness' necessary for the adjudication of constitutional issues.

Doe v. BISD, 173 F.3d 274, 283-84 (5th Cir. 1999).

This judge-created injury, however, proved to be less than persuasive to a majority of the members of this court--although it now appears that Judge Wiener has returned to it in his dissenting opinion.4 During the course of the further briefing, arguing, and consideration of this appeal, the injury has been re-characterized several times. For example, one attempt to describe the injury was articulated as "a Catch-22 avoid-avoid dilemma of having to choose, instanter and without parental consultation, between participating in the unconstitutional Program or declining to do so and thereby subjecting himself to the potential opprobrium of his teachers and peers." I make this reference simply to illustrate the imprecision of actual injury that results when the plaintiffs themselves fail to identify and prove what particular injury (or threat of injury) they have suffered.

Now, undaunted by past failures, Judge Higginbotham has recast the Does' injury once again--again without record evidence to support it.5 According to Judge Higginbotham, the Does' injury is the denial of access to the "full curriculum offered by the school":

There is little doubt that limiting access to the full curriculum offered by the school would injure these students. . . . Opportunities for counseling and mentoring services are a needed and valued component of public education. The District supported this mentoring program with its money and resources. At bottom, the claim is that the program unconstitutionally prefers religion over non-religion, that the students cannot participate in the school's offered program without taking part in an unconstitutional practice. If found at trial, this works a deprivation of a student's right not to be excluded from the benefits of a school-financed educational offering--a concrete, judicially cognizable injury.6

This newly minted injury, however, fares little better than its predecessors when analyzed in the light of Valley Forge and Lujan. The supposed individualized injury of denial of full participation in the school's curriculum, is, if it exists at all, remote, abstract, and nonconcrete. No Doe has ever indicated that he or she wants counseling services. The record is clear that none of the Does has ever been asked to participate in the program. No evidence exists that the Doe children will ever be selected for the program. Thus, the injury suffered by the Does cannot be the deprivation of the actual opportunity to participate in the full curriculum of the school, because none of the Does either have been selected for the program or have shown that they are potential candidates for selection.

Consequently, the injury (or threat of injury) created by Judge Higginbotham from a wanting record can be reduced to one arising from the unalleged, unproved possibility that if one of the Doe children were to be asked to participate in the Program, he or she might be compelled to refuse because of religion-based objections, and thus be denied the benefit of counseling that the particular program (Clergy in Schools) offers--a program in which he or she may not wish to participate in any event. As we have noted, because the record was not developed with this injury in mind--or for that matter with any injury in mind--the plaintiffs have failed to carry their burden of establishing that such an injury is concrete as opposed to merely hypothetical or speculative.7

I stress what I have previously stated: The Supreme Court has stated on numerous occasions that the injury suffered by the plaintiff must be "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Abstract injury is not enough." City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983). Remote threat of injury is not enough. Id. "The plaintiff must show that he has sustained or is immediately in danger of sustaining some direct injury as a result of the challenged official conduct. . . ." Id. Stated differently, the Supreme Court has "emphasized repeatedly, [the injury] must be concrete in both a qualitative and temporal sense. The complainant must allege an injury to himself that is distinct and palpable, as opposed to merely abstract, and the alleged harm must be actual or imminent, not conjectural or hypothetical." Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)(citations omitted).8 Further, the Supreme Court has made clear that the burden of establishing the presence of such a concrete and palpable injury falls squarely on the shoulders of the plaintiff. See Lujan, 504 U.S. at 561. It is incontrovertible on the record in this case--and neither Judge Higginbotham nor Judge Wiener denies this fact--that the plaintiffs have failed, completely and totally, to offer allegations or proof of an injury.

Finally, it is important to note that my disagreement with the majority of the members of this court is not that the plaintiffs could have under no set of circumstances alleged and offered sufficient evidence of "injury in fact." Instead, my disagreement is solely that the plaintiffs in this case have failed even to allege--much less offer any proof of--any injury suffered as a result of attending schools that participate in the Clergy in Schools Program. Consequently, because a majority of the members of this court, without citing any authority that would permit them to do so, are willing to create an injury when none has been alleged and proved, I must respectfully dissent.

EDITH H. JONES, Circuit Judge, join by SMITH, BARKSDALE, EMILIO M. GARZA and DeMOSS, Circuit Judges, dissenting.

EDITH H. JONES, Circuit Judge, join by SMITH, BARKSDALE, EMILIO M. GARZA and DeMOSS, Circuit Judges, dissenting:

We respectfully dissent from the decision to remand this case for further proceedings in the district court.

One must pity the parties and the district court when, or if, they grapple with remand. Since there is no majority legal rationale to follow, they need a hint: count heads. Eight of us say that the clergy in schools (CIS) program is or may be constitutional, six say it can never be so, and one abstains on the merits for jurisprudential reasons. To read the three "remanders," who quote often and approvingly from the "principal dissent," the reader might not remember where they came out. But they appear to conclude that CIS can play a constitutionally approved role in the Beaumont Independent School District if it has a secular purpose and if it is arrayed among other voluntary programs that teach similar shared civic values. While posing as the sensible middle between contentious factions, the remanders' position nevertheless inflicts damage -- on a sense of legal proportion and on the already-turbid law of the Establishment Clause.

What is the value of remand here? The remanders never clearly state what additional facts may be proved in order to establish the heretofore uncontested proposition that BISD had a legitimate secular purpose for creating the CIS program.1 It is both legitimate and secular to invite semi-official visitors to campus to reinforce in public school students the existence and the desirability of conforming to shared standards of community morality. Placing emphasis on the substance of the program, rather than on the irrelevant and wholly personal, unofficial motives of a few of the program's supporters, there is no genuine issue of material fact that needs further development.

Similarly opaque is the remanders' discussion about what further information the district needs to elicit concerning other volunteer programs in order to prove its religious "neutrality." Our legal objections to this holding will be discussed shortly. What is troubling at this point is the idea that the school district must spend additional tens of thousands of dollars in attorneys' fees to defend a program that may reach 60-70 students in the high school twice a year for a total of four hours.2 CIS is a program of exceedingly modest scope and exceedingly stringent limitations on its clergy participants. If this tiny innovation in community values-based education must run a prohibitively expensive legal gauntlet, then the remanders' position can hardly be differentiated in practical terms from Judge Wiener's dissent. Rational school districts cannot afford to litigate over similar innovations and will be discouraged from pursuing any initiatives that call into question their appearance of neutrality between religion and non-religion. The remanders' position may ultimately vindicate BISD, but at great cost to schools' autonomy and creativity in addressing the pressing subject of values-based education.

Unlike the remanders and Judge Wiener's dissent, we are not constitutionally concerned about the alleged pro-religious symbolism connoted by the Clergy in Schools program, nor would we chide the Beaumont school board for making "a difficult case out of an easy one" by excluding lay counselors from this volunteer program.3 The other opinions are unnecessarily overwrought by the Allegheny endorsement test, which has been applied only to prohibit government-sponsored religious speech. The more clearly analogous cases4 are those that "endorse" government's sending "even a cleric" to perform wholly secular tasks.

The endorsement test "preclude[s] government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred." County of Allegheny v. ACLU, 492 U.S. 573, 593, 109 S.Ct. 3086, 3101 (1989) (quoting Wallace v. Jaffree, 472 U.S. 38, 70, 105 S.Ct. 2479, 2497 (1985)). The content of the CIS program does not do so. By its very nature and proven operation, the CIS program does not inculcate religious beliefs or practices. Quite the contrary, the record refutes any suggestion of improper proselytizing by the clergy volunteers.5 The volunteers are required to shed all evidence of their profession -- from clerical collars to scriptural quotations -- in order to participate. The facts that the purpose and operation of the program are wholly secular, and that the Does find no constitutional fault in the content of the program, reinforce that there is no government-sponsored religious speech and no inculcation or endorsement of religious beliefs.

The Does contend instead that because clergy are exclusively involved in the program, the District has singled them out for special status and has effected "a symbolic union" with organized religion. This argument fails for at least three reasons. First, Supreme Court caselaw does not support this contention. Agostini expressly disavowed the presumption applied in earlier Court cases that the presence of government-subsidized teachers or assistants on parochial school premises inherently involves unconstitutional indoctrination or symbolic union. Agostini v. Felton, 521 U.S. 203, 222, 117 S.Ct. 1997, 2010, 138 L.Ed.2d 391 (1997); see also Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 12-13, 113 S.Ct. 2462, 2468-69 (1993). In the same way, it should not be presumed that the presence of clergy on a public school campus automatically raises constitutional questions.6 If anything, given the fact that in some religious denominations, non-ordained pastors and religious workers support themselves by holding teaching positions, no such assumption is warranted.

Further support for this conclusion is found in a series of cases in which the Court emphasizes that the government may send "even a cleric" to perform a secular task. Bradfield v. Roberts, 175 U.S. 291, 298, 20 S.Ct. 121, 123 (1899) (holding that the religious affiliation of a hospital was "wholly immaterial" to the Establishment Clause analysis); Roemer v. Bd. of Pub. Works of Maryland, 426 U.S. 736, 746, 96 S.Ct. 2337, 2344 (1976). In Bowen v. Kendrick, the Court approved the facial constitutionality of a federal statute that subsidized both religious and nonreligious organizations to counsel pregnant, unwed teenagers in nonsectarian matters. Bowen, like Agostini, distinguished between aid that serves religious and that which serves nonsectarian functions.7 And in Bowen, the Court rejected the "symbolic union" argument in a more complex situation than is presented here. The counseling programs authorized by Congress could occur off-campus, in and around religious facilities, and there was no prohibition, as there is in the CIS program, of one-on-one counseling. Continuous monitoring of the counseling was not required, and the program contemplated that individual unwed mothers could be counseled by members of one religious organization. Bowen refused to presume that the statute would be implemented in an unconstitutional manner. 487 U.S. at 611-12, 108 S.Ct. at 2575-76. The decision holds that religious agencies may be assigned and even subsidized by government to perform secular tasks under appropriate guidelines. Bowen would seem to ordain the approval of a program like CIS, which enforces even more rigorous guidelines for secular counseling and uses clergy as sporadic, unpaid volunteers.

Second, as Rosenberger makes clear, courts must focus "on the nature of the benefit received by the recipient." Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 843, 115 S.Ct. 2510, 2523 (1995). In funding cases, the benefit is apparent -- financial assistance. In order for a funding program to pass the endorsement test, the government cannot define the recipients of aid by reference to religion or otherwise encourage religious activity as a condition of receipt of aid. Agostini, 521 U.S. at 230-31, 117 S.Ct. at 2014. But this criterion does not apply in the present case because neither subsidies nor religious activities are involved. Moreover, there is no evidence that students were invited to participate in CIS because of any religious test or affiliation. Thus, any benefit to religion is too attenuated to violate the Establishment Clause. As the Court noted in Bowen, "religious organizations can help solve the problems to which the [program] is addressed. Nothing in our previous cases prevents [BISD] from making such a judgment or from recognizing the important part that religion or religious organizations may play in resolving certain secular problems... To the extent that this ... recognition has any effect of advancing religion, the effect is at most 'incidental and remote.'" Bowen, 478 U.S. at 607, 108 S.Ct. at 2573.8

Finally, the Does' argument that the flaw in the program is its exclusive reliance on clergy proves too much. Clergy members are not inanimate religious symbols whose mere presence in a school generates constitutional suspicion. Compare Allegheny, supra. Indeed, in Roemer, the Court upheld a government subsidy to Maryland's schools of higher education though well aware that in most of the recipient schools, priests wearing clerical garb would teach the subsidized classes. Roemer, 426 U.S. at 756, 96 S.Ct. at 2350; see also Bradfield, supra. Critically, however, those classes were secular. Likewise, the presence of clergy volunteers should not alone imply endorsement.9 Their prescribed message is secular. The clergy members were avowedly recruited because of their expertise in counseling, communication, and understanding of the community -- in other words, for their secular, not their religious skills.10 The District no more endorsed religion by sponsoring CIS than it would by inviting a speaker like Archbishop Desmond Tutu or Rabbi Hyman to deliver a non-proselytizing address to the students.

Because we believe that the relevant cases here are Agostini, Bowen, Roemer, and Bradfield, and that Allegheny's test offers more chance for mischief than clarification in the school context, we dissent from remanding this case and would affirm the district court's judgment that it is constitutional as a matter of law.

WIENER, Circuit Judge, joined by POLITZ, BENAVIDES, STEWART, PARKER, and DENNIS, Circuit Judges, concurring in part and dissenting in part.

WIENER, Circuit Judge, joined by POLITZ, BENAVIDES, STEWART, PARKER, and DENNIS, Circuit Judges, concurring in part and dissenting in part:

Even though I agree with a majority of the fifteen judges comprising this en banc court1 that (1) the Does have standing to bring their claims, (2) the district court improvidently granted summary judgment to the Beaumont Independent School District (sometimes "BISD" or "the School District"), and (3) the ultimate question in this appeal is whether Clergy in Schools (sometimes "the Program") is neutral toward religion, I am constrained to write separately for two principal reasons: First, because, like the five other judges who join me to form today's six-judge plurality,2 I am convinced that the record in this appeal is more than sufficient to support a summary judgment that the Program is unconstitutional; and second, because a tiny minority of three out of fifteen judges ("the Controlling Minority"3) has managed to consign this three-year-old appeal to jurisprudential limbo (if not purgatory) by remanding it to the district court, even though the remaining twelve judges stand ready to dispose of the case, one way or the other, on the existing record.

The "silver lining" of this otherwise clouded result is that nine of fifteen judges now agree that, when reduced to its essentials, this case turns on a single substantive issue: Does a government decision-maker violate the Establishment Clause by using status as a clergyman as the sole criterion for recruiting participants to staff and run a government-created public school program, i.e., when the one and only selection criterion is patently not neutral toward religion? Both now and on remand, when applied to the challenged Program, this one question encapsulates the entire Establishment Clause analysis in this case, primarily the assessment of the Program's neutrality toward religion, but also its endorsement effect and its compliance with each of the three disjunctive prongs of Lemon.4 So, even though nine of the fifteen judges who considered the en banc rehearing are in full agreement that the case turns on that question, and twelve of the fifteen judges are ready to answer it, one way or the other, based on the summary judgment evidence before us today, this case is being remanded ---- a quintessential example of the tail wagging the dog.

As for the nine of us who agree that this case turns on whether Clergy in Schools is neutral toward religion, the three judges comprising the Controlling Minority part company with the remaining six of us when it comes to the frame of reference within which to test the constitutionality of the Program. The Controlling Minority constructs a huge ---- and, in my view, vastly overbroad ---- framework: the School District's entire School Volunteer Program, which the record amply shows to be no more than a hodgepodge of disparate activities furnished to BISD by pre-existing, external organizations ---- not a cohesive, coordinated group of programs created or assembled by BISD ---- with one exception: Clergy in Schools, the only volunteer program created "from scratch" by BISD. More importantly, it is the only volunteer program that, from the very beginning, has been staffed by "volunteers" actively recruited by BISD; and, most importantly, BISD has used religious ordination as the sole litmus test for recruiting these volunteers. In addition, the Controlling Minority has subtly substituted the Equal Protection Clause for the Establishment Clause, impermissibly framing the ultimate issue in terms of "equality of treatment" rather than the neutrality that the Constitution demands.5 This simply cannot be squared with the position taken in June 2000 by five Justices of the Supreme Court who agreed in Mitchell v. Helms that "our most recent use of 'neutrality' to refer to generality or evenhandedness of distribution . . . is not alone sufficient to qualify [government] aid as constitutional."6

The Program's exclusionary recruitment criterion and its facial lack of neutrality have convinced the six-judge plurality for whom I write today to choose a much narrower framework than that confected and applied by the Controlling Minority. For the six of us, I shall proceed to test the Program's neutrality on its own elements ---- as we must ---- even though, for context and contrast, I shall also consider and compare features of other volunteer programs to confirm the uniqueness of Clergy in Schools.

The wide-angle lens fabricated by the Controlling Minority works to obscure the core issue of this appeal, the Program's neutrality toward religion, by laying a smokescreen of wholly unrelated, truly voluntary programs that are (1) furnished to BISD (not created by it) by pre-existing, external, wholly secular organizations and (2) conducted by their own members (who are not selected by BISD). Only by thus unduly broadening the framework for its analysis, from the specific program under challenge, i.e., Clergy in Schools, to the entire School Volunteer Program, can the Controlling Minority craft a rationale to support a remand. In fact, quite recently, our colleagues of the Sixth Circuit repudiated the Controlling Minority's notion that if a "set of [government] programs together comprise a mosaic that is neutral with regard to religion, then the Establishment Clause is not violated."7 In Simmons-Harris v. Zelman, that court was unpersuaded by the government's argument that other, secular educational options available to parents were in any way even relevant to the Establishment Clause analysis of the challenged school voucher program.8 The court thus flatly rejected the government's effort to expand the frame of reference for its Establishment Clause analysis beyond the one school program that had been challenged.9 Like the voucher program, Clergy in Schools is a free-standing government program, which must therefore be tested independently.

Moreover, the Controlling Minority's avowed purpose of remand is to adduce evidence that I see as not only irrelevant and immaterial but also nonexistent. Indeed, were there evidence of multiple volunteer groups being coordinated by the School District to indoctrinate comprehensively the students of Beaumont public schools in morals and civic virtues, BISD's able counsel would surely have gotten it into the record.

More astonishing is the fact that BISD has never advanced that it solicits or accepts any other volunteer efforts, much less secular ones, for the purpose of inculcating morality and civic virtues in the students. To the contrary, counsel for the School District candidly admitted at oral argument that Clergy in Schools is the only program designed by BISD to address morality and civic virtues. Yet the Controlling Minority has now "lawyered" this fiction of "programs similar in purpose and function" for the first time on appeal ---- a ploy that would be summarily dismissed on grounds of waiver if BISD's lawyers had tried it. The most regrettable side effect of this judicial overreaching is the sweeping of this 3-year-old appeal back under the carpet for the untold additional years it will take for the district court to conduct a futile evidentiary exercise to adduce facts that, even if they existed, would be irrelevant and immaterial, and for us to hear another appeal and, quite likely, another rehearing en banc.

When Clergy in Schools is tested, as it should be, in the proper frame of reference, remand is seen to be entirely futile and unnecessary. As I shall demonstrate, the record is more than sufficient to test the Program for neutrality toward religion ---- and thus for this court to vote it up or down on summary judgment ---- without causing the hollow act of a regrettably lengthy, costly, wasteful, and (it seems to me) improvident remand.10

The Neutrality Principle: County of Allegheny v. ACLU11

The Supreme Court has repeatedly held that the Establishment Clause requires the government to maintain "a course of neutrality among religions, and between religion and nonreligion."12 The granting of preferential treatment according to a purely religious criterion indisputably creates a strong perception of government endorsement of religion,13 and at times may even directly aid the religiously affiliated in the pursuit of their sectarian endeavors.14 Endorsement of and direct aid to religion are equally proscribed by the Establishment Clause, and both have consistently been held by the Supreme Court to have the impermissible primary effect of advancing religion.15 This is why those of my learned colleagues who today would refuse to hold Clergy in Schools unconstitutional have not been able to cite a single case in which the Supreme Court has upheld the government's use of a religion-preferring selection criterion.

The non-neutrality of the Program's recruitment criterion endorses religion symbolically. By exclusively recruiting members of the clergy to instruct students in civic virtues and morality, the School District holds the clergy up to its students as those members of the community who are uniquely best-qualified to perform that task.16 This unmistakable symbolic endorsement of religion strikes at the core concern of the Establishment Clause: The protection of citizens from the specter of government interference and favoritism in the inextricably intertwined domains of conscience, religion, and morality. Furthermore, the Supreme Court has consistently applied a heightened level of scrutiny in the hyper-sensitive venue of public education.17 In our public schools, more than anywhere else, assiduous attention to neutrality is mandated by the Establishment Clause.

Only by misreading and misapplying the Supreme Court's plurality opinion in County of Allegheny v. ACLU,18 I submit, can the Controlling Minority conclude that the symbolic endorsement effect of BISD's exclusive recruitment policy may somehow be neutralized or diluted merely by swallowing the nostrum of "other programs similar in purpose and function"19 operating within the School District's eclectic volunteer groups. The fundamental difference between the Controlling Minority's manufactured framework, in which the constitutionality of the School Volunteer Program as a whole ---- which has never been challenged ---- must be tested, and my framework, in which the constitutionality of Clergy in Schools' recruiting and staffing criterion is tested independently, becomes crystal clear in the context of a proper reading of Allegheny.

In Allegheny, the Supreme Court separately tested the endorsement effects of two separately displayed religious symbols, a creche20 (the sole symbol in a seasonal display inside the County Courthouse), and a menorah21 (one of several symbols comprising an outdoor seasonal display on public property one block from the County Courthouse). The scenes that the Court separately examined were but two among the Pittsburgh community's numerous seasonal holiday displays. Importantly, the Court did not examine either religious symbol (the menorah and the creche) or either government display ("Salute to Liberty" and the manger scene) as components of the community's overall Christmas/Hanukkah/New Year's seasonal display program ---- like BISD's School Volunteer Program, a loos