Mellen v. Bunting, (4th Cir. 2003)

Docket Number:02-1215



Nos. 02-1215(L)

(CA-01-26-6) Neil J. Mellen, et al., Plaintiffs - Appellees, versus

Josiah Bunting, III, etc., Defendant - Appellant. O R D E R The court amends its opinion filed April 28, 2003, as follows:

On page 16, first full paragraph, line 7 -- the word

“Nevada’s” is corrected to read “Nebraska’s.”

On page 17, first full paragraph, line 10 -- the word “Nevada”

is corrected to read “Nebraska.” For the Court - By Direction

/s/ Patricia S. Connor Clerk


FOR THE FOURTH CIRCUIT 4444444444444444444444444444444444444444444444447 NEIL J. MELLEN; PAUL S. KNICK,

Plaintiffs-Appellees, v. JOSIAH BUNTING, III, in his

individual capacity and in his

official capacity as Superintendent,

Virginia Military Institute,







AMERICAN JEWISH COMMITTEE, Amici Supporting Appellees. 4444444444444444444444444444444444444444444444448

4444444444444444444444444444444444444444444447 NEIL J. MELLEN; PAUL S. KNICK,

Plaintiffs-Appellants, v. JOSIAH BUNTING, III, in his

individual capacity and in his

official capacity as Superintendent,

Virginia Military Institute,

Defendant-Appellee. AMERICANS UNITED FOR






FOUNDATION, Amici Supporting Appellee. 4444444444444444444444444444444444444444444444448 Appeals from the United States District Court for the Western District of Virginia, at Lynchburg. Norman K. Moon, District Judge. (CA-01-26-6)

Argued: January 21, 2003

Decided: April 28, 2003 Before KING, Circuit Judge, HAMILTON, Senior Circuit Judge, and Morton I. GREENBERG, Senior Circuit Judge of the United States Court of Appeals for the Third Circuit, sitting by designation. 2

Affirmed in part and vacated in part by published opinion. Judge King

wrote the opinion, in which Senior Judge Hamilton and Senior Judge Greenberg joined.

COUNSEL ARGUED: William Henry Hurd, State Solicitor, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellant. Rebecca Kim Glenberg, AMERICAN CIVIL LIBERTIES UNION

FOUNDATION OF VIRGINIA, Richm ond, Virginia, for Appellees. ON BRIEF: Jerry W. Kilgore, Attorney General of Virginia, William E. Thro, Deputy State Solicitor, Maureen Riley Matsen, Deputy State

Solicitor, Alison Paige Landry, Assi stant Attorney General, OFFICE OF THE ATTORNEY GENERAL, Ri chmond, Virginia, for Appel- lant. Jane S. Glenn, Brian R. Jones, JONES & GLENN, Roanoke, Virginia, for Appellees. Jordan W. Lorence, Benjamin W. Bull, ALLIANCE DEFENSE FUND LAW CENTER, Scottsdale, Arizona,

for Amicus Curiae Specialty Resear ch. Ronald D. Ray, Edna Jenelle Turner, Crestwood, Kentucky, for Amici Curiae First Principles, et al. Steven W. Fitschen, THE NAT IONAL LEGAL FOUNDATION, Vir- ginia Beach, Virginia, for Amic us Curiae Foundation. Ayesha N. Khan, Ilana R. Fisher, AMERICANS UNITED FOR SEPARATION

OF CHURCH AND STATE, Washington, D.C.; Rosina K. Abram-

son, Steven M. Freeman, Erica Br oido, Steven C. Sheinberg, Abbey Gans, ANTI-DEFAMATION LEAGUE, New York, New York; Jef-

frey P. Sinensky, Kara H. Stein, THE AMERICAN JEWISH COM-

MITTEE, New York, New York, for Amici Curiae Americans

United, et al. OPINION KING, Circuit Judge:

General Josiah Bunting, III, the former Superintendent of the Vir-

ginia Military Institute ("VMI"), a ppeals the district court's award of declaratory and injunctive relief, prohibiting VMI from sponsoring a

daily "supper prayer." Former VMI cadets Neil Mellen and Paul 3

Knick (the "Plaintiffs") have cro ss-appealed, challenging the court's award of qualified immunity to Ge neral Bunting. Because the Plain- tiffs have now graduated from VMI, their claims for declaratory and

injunctive relief are moot, and we v acate the district court's judgment insofar as it awarded such relief. In assessing the Plaintiffs' claim for damages, we agree with the district court that the supper prayer vio-

lates the Establishment Clause of the First Amendment, but that Gen- eral Bunting is nevertheless entitled to qualified immunity. Mellen v. Bunting , 181 F. Supp. 2d 619 (W.D. Va. 2002) (the "Opinion"). I. A. VMI is a state-operated milita ry college located in Lexington, Vir- ginia. Since its founding in 1839, VMI has been funded by the Com-

monwealth of Virginia and "subject to the control of the [Virginia]

General Assembly." Va. Code A nn. § 23-92. Although it offers an education in the liberal arts, VMI al so strives to prepare its cadets for military service and leadership, trai ning them to be "ready as citizen- soldiers to defend their country in time of peril. " 1 Appellant's Br. at 6. To accomplish its mission, VMI utilizes an adversative method of

training, modeled on an Englis h educational philosophy and once characteristic of military instructi on. The adversative method features physical rigor, mental stress, equa lity of treatment, little privacy, min- ute regulation of personal behavior, and inculcation of certain values. As the Supreme Court recently obser ved: "VMI constantly endeavors to instill physical and mental discipline in its cadets and impart to

them a strong moral code." United States v. Virginia , 518 U.S. 515, 520 (1996). 2 In preparing its cadets for military leadersh ip, VMI seeks

All VMI cadets are required to participate in one of the school's four

ROTC programs. Approximately 40% of VMI's graduates are commis- sioned as officers in the military.

Historically, a VMI education was available only to men. In United States v. Virginia , 518 U.S. 515 (1996), the Supreme Court declared this male-only admissions policy unconstitutional.

to teach self-control, self-disciplin e, and the subordination of personal desires to the greater good.

The adversative method involves a rigorous and punishing system

of indoctrination. As an able judge in the Western District of Virginia

has described it: "[t]he VMI experi ence is predicated on the impor- tance of creating doubt about previous beliefs and experiences in

order to create a mindset conducive to the values VMI attempts to impart." United States v. Virginia , 766 F. Supp. 1407, 1421 (W.D. Va. 1991). As part of its program of indoctrination, VMI subjects its

entering cadets (known as "rats") to a series of hazing rituals. In their

first year, rats are collectively rewa rded when the behavior of a single rat contributes to VMI's objectives, and they are collectively punished

when the behavior of a rat detracts from those objectives.

The adversative method continues throughout a cadet's four-year

career at VMI, with submission and conformity remaining central

tenets of VMI's educational philosophy. As the Supreme Court noted,

"[t]he school's graduates leave VMI with heightened comprehension

of their capacity to deal with dur ess and stress, and a large sense of accomplishment for completi ng the hazardous course." United States v. Virginia , 518 U.S. at 520. Military re gulations, etiquette, and drills pervade the VMI system. As the C ourt observed, "VMI cadets live in spartan barracks where surveillance is constant and privacy nonexis- tent; they wear uniforms, eat toge ther in the mess hall, and regularly participate in drills." Id. at 522. In some respects, VMI is more restrictive than the regular military : its rules and regulations control how cadets spend most hours of the day. For example, cadets are

authorized to leave the Post — VMI's campus in Lexington — only

during specific hours on specific days. B. All members of VMI's Corps of Cadets (the student body) are

required to pay a room and board fee. This fee covers all of a cadet's

meals, which are served in the Post mess hall. 3 Although VMI serves

Cadets (other than rats) do not tec hnically have to eat in the mess hall, but the meals in the mess hall have been pre-paid, and a cadet's only other food options are vending machines, eating with faculty, or ordering

pizza. 5

supper to the Corps twice each even ing in the mess hall, nearly all cadets attend the first seating; only those who participate in athletics

or have other special circumstances can obtain authorization to attend

the second seating.

The first seating begins with the "supper roll call" (the "SRC"), ini-

tiated by a bugle call summoning the Corps into formation in front of

the Barracks. After an accountability re port, the colors are struck, and the Corps marches in review past the TAC Officer (the VMI faculty

member in charge) to the mess hall. First classmen (cadets in their final year) are authorized to fall out of the SRC formation before the

Corps marches to the mess hall. On ce the formation reaches the mess hall, other cadets, except for the rats, may fall out. The rats are required to march into the mess hall and eat supper during the first

seating. 4 After the rats and other remaining cadets have entered the mess

hall, the Corps is called to atten tion, and the Regimental Commander — the senior cadet officer — presen ts the Corps to the TAC Officer. Salutes are then exchanged, and the command "REST" is given.

While standing at rest, a cadet may move to a limited extent, leaving

his or her right foot in place. The daily announcements are made, and

the Cadet Chaplain then reads the s upper prayer to the assembled Corps. 5

Prior to the fall of 2001 (when this lawsuit was filed), all cadets desir-

ing to eat supper at the first seating were required to participate in the

SRC formation, march into the mess ha ll, and listen to the supper prayer. After the suit was filed, this polic y changed somewhat, and members of the Corps (other than th e rats) were permitted to eat supper before the SRC formation, or they could fall out of formation and enter the mess hall after the supper prayer was delivered. For the purposes of the quali-

fied immunity issue, we must take the facts in the light most favorable to the Plaintiffs, assuming that they were required to listen to the prayer in order to eat in the mess hall. Saucier v. Katz , 533 U.S. 194, 201 (2001).

In the past, VMI sponsored a similar meal-time prayer, but the

school's administration discontinued this practice in 1990 as a result of

a decision to replace family-style di ning with cafeteria-style dining. In 1995, General Bunting assumed control of VMI. Seeking to bring a

stronger sense of unity to the Corps, he decided to return the Corps to a traditional SRC formation and family-style dining, including the supper

prayer. Although now retired, General Bunting possessed the authority

during his tenure at VMI over all VMI activities, including the supper prayer. 6

The SRC ceremony is conducted every day except Saturday, and

the Post Chaplain, Colonel James S. Park, has composed a separate supper prayer for each day. Dependi ng on the day, the prayer begins with "Almighty God," "O God," "F ather God," "Heavenly Father," or "Sovereign God." As the district court recognized, "[e]ach day's

prayer is dedicated to giving thanks or asking for God's blessing."

Opinion at 623. The court also observed that "a prayer may thank God

for the Institute, ask for God's ble ssing on the Corps, or give thanks for the love and support of family and friends," and that "each day's prayer ends with the following i nvocation: `Now O God, we receive this food and share this meal toge ther with thanksgiving. Amen.'" Id. The Corps must remain standing and silent while the supper prayer

is read, but cadets are not obliged to recite the prayer, close their eyes, or bow their heads. C. On January 23, 2001, the Pl aintiffs submitted a Permit Form to VMI's administration, requesting that cadets "be allowed to go about

their business in the Mess Hall during the supper prayer (in a sense

of not acknowledging that the prayer is occurring)." After their

request was denied, the Plaintiffs wrote to General Bunting, asserting

that the supper prayer was uncons titutional. The General promptly rejected this contention, advising them that "[t]he Constitution does not prohibit our saying grace before supper. And we shall continue to do so." General Bunting also inform ed the Plaintiffs that the supper prayer "is a precious link to our heritage and an admirable practice for

a school of our provenience and cultu re," and that it would continue. On May 9, 2001, Plaintiffs filed their complaint in the Western

District of Virginia, seeking declaratory and injunctive relief, along

with nominal damages, costs, and attorney's fees. They alleged that the supper prayer violated the Es tablishment Clause of the First Amendment; Article I, § 16 of the Virginia Constitution; and the Vir- ginia Act for Religious Freedom, Va . Code Ann. § 57-1. After con- ducting discovery, the parties filed cross motions for summary


On January 24, 2002, the district court entered summary judgment

in favor of the Plaintiffs, awarding them declaratory relief and enjoin-

ing General Bunting from sponsoring the supper prayer. Opinion at

. In its Opinion, the court ev aluated the constitutionality of the supper prayer under the test enunciated by the Supreme Court in Lemon v. Kurtzman , 403 U.S. 602 (1971), concluding that the prayer violated each of Lemon 's prongs. Opinion at 628-37. In evaluating the Plaintiffs' request for monetary damages, the court concluded that General Bunting was entitle d to qualified immunity. Id. at 637. General Bunting has appealed the court's award of declaratory and

injunctive relief, and the Plaintiffs have cross-appealed on the quali-

fied immunity issue. In May of 2002, several months after the district

court entered its judgment, both of the Plaintiffs graduated from VMI. II. We review de novo a district court's award of summary judgment. See Canal Ins. Co. v. Distribution Servs., Inc. , 320 F.3d 488, 491 (4th Cir. 2003). Summary judgment is appropriate only when, viewing the

facts in the light most favorable to the non-moving party, there is no

genuine issue of material fact. See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (1986). When cross- motions for summary judgment are s ubmitted to a district court, each motion must be considered individua lly, and the facts relevant to each must be viewed in the light most favorable to the non-movant. Ros- signol v. Voorhaar , 316 F.3d 516, 523 (4th Cir. 2003). III. The first issue we must a ddress is whether this case has become moot because the Plaintiffs no longer attend VMI. The Constitution limits this Court's jurisdiction to the adjudication of actual cases and controversies. See U.S. Const. art. III, § 2; DeFunis v. Odegaard , 416 U.S. 312, 316 (1974) (per curiam). "[A] case is moot when the issues

presented are no longer `live' or the parties lack a legally cognizable

interest in the outcome." Powell v. McCormack , 395 U.S. 486, 496 (1969). The requirement that a case have an actual, ongoing contro-

versy extends throughout the pendency of the action. See Preiser v. Newkirk , 422 U.S. 395, 401 (1975). When a case has become moot after the entry of the district court's judgment, an appellate court no 8

longer has jurisdiction to entertain the appeal. See Mills v. Green , 159 U.S. 651, 653 (1895).

When students challenge th e constitutionality of school policies, their claims for declaratory and injunctive relief generally become moot when they graduate. See, e.g. , Bd. of Sch. Comm'rs of Indianap- olis v. Jacobs , 420 U.S. 128, 129 (1975) (per curiam) ("[Once] all of the named plaintiffs in the action had graduated . . . a case or contro-

versy no longer exists."); Cole v. Oroville Union High Sch. Dist. , 228 F.3d 1092, 1098 (9th Cir. 2000), cert. denied , 532 U.S. 905 (2001) ("It is well-settled that once a stude nt graduates, he no longer has a live case or controversy justifying declaratory and injunctive relief

against a school's action or policy."); Stotts v. Cmty. Unit Sch. Dist. No. 1 , 230 F.3d 989, 991 (7th Cir. 2000) (holding that the "case lacks

a live controversy [because the plai ntiff] has graduated"). As the Plaintiffs concede, their claims for declaratory and injunctive relief are moot because they have graduated from VMI. To avoid mootness problems, graduated student s often maintain that their claims fall under an exception to the mootness doctrine

where the harm is "capable of repetition, yet evading review." Mur- phy v. Hunt , 455 U.S. 478, 482 (1982) (per curiam). This exception is only applicable where: (1) the challenged action is too short in

duration to be fully litigated befo re the case will become moot; and (2) there is a reasonable expectati on that the complaining party will be subjected to the same action again. Spencer v. Kemna , 523 U.S. 1, 17 (1998). Graduated students do not ordinarily qualify for this exception to the mootness doctrine because, once they have gradu- ated, they will never again be s ubject to the school's policies. Altman v. Bedford Cent. Sch. Dist. , 245 F.3d 49, 71 (2d Cir.), cert. denied , 534 U.S. 827 (2001) ("[T]he `capab le of repetition, yet evading review' exception is not available when the issue is students' rights

and the complaining students ha ve graduated from the defendant institution."); accord Doe v. Madison Sch. Dist. No. 321 , 177 F.3d 789, 798-99 (9th Cir. 1999) (en banc); Brody v. Spang , 957 F.2d 1108, 1113 (3d Cir. 1992).

If a claim becomes moot after the entry of a district court's final

judgment and prior to the completi on of appellate review, we gener- ally vacate the judgment and remand for dismissal. United States v. 9

Munsingwear, Inc. , 340 U.S. 36, 39 (1950) (observing that, where a case has become moot on appeal, "[t]he established practice . . . is to

reverse or vacate the judgment belo w and remand with directions to dismiss"). The Munsingwear rule is an equitable one, applicable only in limited circumstances, and used to ensure that a losing party's right of appellate review is not frustrated by circumstances out of that

party's control. Accordingly, vacat ur of the lower court's judgment is warranted only where mootness has occurred through happenstance,

rather than through voluntary action of the losing party. See Arizo- nans for Official English v. Arizona , 520 U.S. 43, 71 (1997) ("Vacatur is in order when mootness occurs through happenstance — circum-

stances not attributable to the parties."); U.S. Bancorp Mortgage Co. v. Bonner Mall P'ship , 513 U.S. 18, 29 (1994) ("[M]ootness by rea- son of settlement does not jus tify vacatur of a judgment under review."); Karcher v. May , 484 U.S. 72, 82-83 (1987) (holding that appellate court should not vacate judgment if case has become moot due to voluntary act of the losing party). Because Plaintiffs' claims

for declaratory and injunctive relie f have become moot through hap- penstance, we vacate the district court's judgment insofar as it awarded such relief. 6 Although the Plaintiffs' claims for declaratory and injunctive relief

are moot, their damage claim continues to present a live controversy. See Doe v. Madison Sch. Dist. No. 321 , 177 F.3d at 798 ("A student's graduation moots claims for declaratory and injunctive relief, but it

does not moot claims for monetary damages."); accord Cole , 228 F.3d at 1099. On this issue, the district court determined that Plaintiffs

had alleged a violation of their c onstitutional rights, but that these rights were not clearly establishe d when General Bunting instituted the supper prayer. Accordingly, the court concluded that General

Bunting "is entitled to the defense of qualified, good faith immunity." Opinion at 637. Plaintiffs have appealed this determination.

In a qualified immunity analysis, our first inquiry, as a reviewing

court, is "whether plaintiff's alle gations, if true, establish a constitu-

Although we vacate the award of decl aratory relief, the Plaintiffs' claim for damages requires us to answer, in assessing whether General

Bunting is entitled to qualified immun ity, basically the same question as the district court answered in awarding declaratory relief. 10

tional violation." Hope v. Pelzer , 536 U.S. 730, 736 (2002). This inquiry is made at the outset in order to promote clarity in the law and

to ensure that legal standard s may evolve from case to case. Saucier v. Katz , 533 U.S. 194, 201 (2001) ("The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law [was] clearly established . . . in the circumstances of the case."); Wilson v. Layne , 526 U.S. 603, 609 (1999) ("Deciding the constitutional question before a ddressing the qualified immunity question . . . promotes clarity in the legal standards for official con-

duct, to the benefit of both the officers and the general public.").

If a constitutional violation ha s been alleged, our second inquiry is whether the defendant violated "clearly established statutory or con-

stitutional rights of which a reas onable person would have known." Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982); see also Figg v. Schroeder , 312 F.3d 625, 635-36 (4th Cir. 2002) (discussing two-step process). Given this two-step inqui ry, we must decide "the constitu- tional question before addressing the qualified immunity question," Wilson , 526 U.S. at 609, and it is to that inquiry that we now turn. IV. The Religion Clauses of the First Amendment — the Establishment Clause and the Free Exercise Clause — provide that "Congress shall

make no law respecting an establis hment of religion, or prohibiting the free exercise thereof." U.S. Const. amend. I. The Fourteenth Amendment incorporates the First Amendment against the states and their political subdivisions. See Everson v. Bd. of Educ. , 330 U.S. 1, 8 (1947) (applying Establishment Clause to states); Cantwell v. Con- necticut , 310 U.S. 296, 303 (1940) (applying Free Exercise Clause to states). In the words of the Suprem e Court, "[t]he First Amendment's Religion Clauses mean that religious beliefs and religious expression are too precious to be either proscr ibed or prescribed by the State." Lee v. Weisman , 505 U.S. 577, 589 (1992). In construing the Establishment Clause, the Court has made clear

that a state is prohibited from sponsoring prayer in its elementary and

secondary schools. That said, the C ourt has never directly addressed whether the Establishment Clause fo rbids state-sponsored prayer at a public college or university. In or der to provide some background for

our evaluation of the constitutiona lity of VMI's supper prayer, we briefly review the relevant school prayer jurisprudence. A. In Engel v. Vitale , 370 U.S. 421 (1962), the Court addressed a school board policy in New York that required daily recitation, in the

state's elementary and secondary schools, of a prayer selected by the

State Board of Regents. The prayer read: "Almighty God, we

acknowledge our dependence upon Th ee, and we beg Thy blessings upon us, our parents, our t eachers and our Country." Id. at 422. The Court struck down the state-sponsored prayer, emphasizing the inher-

ently religious nature of prayer. Id. at 424-25. According to the Court: the constitutional prohibition against laws respecting an

establishment of religion must at least mean that in this country it is no part of the business of government to com-

pose official prayers for any group of the American people

to recite as a part of a religious program carried on by gov-

ernment. Id. at 425. Further, "[n]either the fact that the prayer may be

denominationally neutral nor the fact that its observance on the part

of the students is voluntary can serve to free it from the limitations

of the Establishment Clause." Id. at 430. The Court reaffirmed these principles the very next year in Abing- ton School District v. Schempp , 374 U.S. 203 (1963). There, the Court struck down the practices of various elementary and secondary

schools of beginning each school day with readings from the Bible or recitation of the Lord's Prayer. In holding such practices unconstitu- tional, the Court emphasized that the Establishment Clause prohibits a school from sponsoring any type of prayer, even a nondenomina-

tional one, since a state may not "pass laws which aid one religion,

aid all religions, or prefer one religion over another." Id. at 216 (inter- nal quotation marks omitted). Si gnificantly, the schools could not cure the Establishment Clause defect by simply allowing students to

leave the room while the Bible ve rses or the Prayer were read. Id. at 224-25. The Court also rejected th e idea that enforcement of Estab-

lishment Clause principles infringed on the free exercise rights of

those students who wished to pray. Id. at 225-26. Twenty-two years later, in Wallace v. Jaffree , 472 U.S. 38 (1985), the Court invalidated an Alabama statute mandating a moment of

silence in the state's public schools "for meditation or voluntary

prayer." Id. at 40, 61. The statute altered an earlier version of a similar law, which had established a moment of silence for the purpose of

"meditation." In deciding Wallace , the Court applied the test first enunciated in Lemon v. Kurtzman , 403 U.S. 602 (1971). 7 Wallace , 472 U.S. at 55-56. In order to pass muster under the Lemon test, a statute must satisfy three criteria: (1) it must have a secular purpose; (2) its principal or primary effect must be one that neither advances

nor inhibits religion; and (3) it must not foster an excessive govern-

ment entanglement with religion. Lemon , 403 U.S. at 612-13. Because the Court in Wallace could discern no secular purpose for adding the word "prayer" to the challenged statute, it concluded that the statute

failed Lemon 's first prong. Wallace , 472 U.S. at 56-61. More recently, in Lee v. Weisman , 505 U.S. 577 (1992), the Court invalidated a school's practice of inviting a member of the clergy to deliver a nonsectarian prayer at a commencement ceremony. Id. at 599. The dominant factor guiding the Court's decision in Lee was the coercive nature of the religious activity. In particular, the Court emphasized that, "at a minimum, the Constitution guarantees that

government may not coerce anyone to support or participate in reli-

gion or its exercise." Id. at 587. In discussing whether the students had a choice to attend the commen cement, the Court observed that, "attendance and participation in a 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 586. In those circumstances, the Court found that the commence-

ment prayer improperly coerced religious worship.

In Lemon , the Supreme Court held that the practices of certain states in providing funding to religious schools violated the Establishment

Clause. 403 U.S. at 606. In holding these practices unconstitutional, the Court developed an ofte n-criticized, tripartite fra mework for evaluating Establishment Clause challenges. Id. at 612-13.

In its most recent school-prayer decision, Santa Fe Independent School District v. Doe , 530 U.S. 290 (2000), the Court struck down a policy that authorized a school's student body to vote on whether

an invocation would be delivered at its football games. In Santa Fe , the Court considered two primary i ssues. First, it assessed whether the invocation should be considered pub lic, rather than private, speech. Id. at 302-03, 305-10. On this issue, the Court concluded that, even

though the students made the decision about whether to pray, the

school had created the mechanism by which the decision was made,

and the prayer was to be delivered "over the school's public address

system, by a speaker representing the student body, under the supervi-

sion of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer." Id. at 310. For these rea- sons, the Court decided that the school effectively sponsored the

student-led prayer. Id. The second issue considered in Santa Fe , and an issue of substan- tial significance here, involved whether the pregame prayer was

unduly coercive. On this point, the Court noted that certain students,

including cheerleaders and football players, were required to attend

the football games. Id. at 311. For other students, the "immense social pressure" created by surrounding circumstances compelled their atten-

dance. Id. at 311-12. The Court concluded that, "[e]ven if we regard every high school student's decision to attend a home football game

as purely voluntary, we are nevert heless persuaded that the delivery of a pregame prayer has the imprope r effect of coercing those present in an act of religious worship." Id. at 312. On this basis, the Court determined that the pregame pray er had an unduly coercive effect, and that the school had accordingly violated the Establishment

Clause. Id. at 313, 317.

As these decisions reflect, the Court has been unwavering in its position that the Establishment Clause prohibits public schools from

sponsoring an official prayer. The Court has not, however, directly

addressed whether, or to what extent, a state may sponsor prayer at

an institution of higher education. Because VMI is such an institution, we briefly consider how our sister circuits have dealt with the issue

of state-sponsored prayer in public colleges and universities.

B. In a situation closely analogous to that presented here, the Court of

Appeals for the District of Columbia, in Anderson v. Laird , 466 F.2d 283 (D.C. Cir. 1972), addressed a federal regulation that required all

cadets and midshipmen at the m ilitary academies to attend "Protes- tant, Catholic or Jewish chapel services on Sundays." Id. at 284. In Anderson , the court ruled that this chapel attendance requirement vio- lated the Establishment Clause. Id. at 283-84. In its lead opinion, the court concluded that the "governme nt may not require an individual to engage in religious practices or be present at religious exercises." Id. at 291. Significantly, the court held that the regulation violated the

Constitution even though: (1) atte ndance at the military academies was voluntary; and (2) cadets and mi dshipmen could be excused from the chapel attendance requirement. Id. at 293. More recently, in Tanford v. Brand , 104 F.3d 982 (7th Cir. 1997), the Seventh Circuit considered whether a state university could

include a religious invocation as part of its graduation ceremony. In

upholding the practice, the court suggested that the invocation was

not coercive, in that students were not required to attend and attendees

did not feel compelled to participate in the invocation — in fact, stu-

dents and their guests frequently came in and out (or remained seated)

while the invocation was delivered. Id. at 985-86. The court charac- terized the invocation as "simply a tolerable acknowledgment of

beliefs widely held among the people of this country." Id. at 986 (internal quotation marks omitted).

In Chaudhuri v. Tennessee , 130 F.3d 232 (6th Cir. 1997), the Sixth Circuit also declined to enjoin a state university's practice of includ- ing prayer in its graduation ceremony. Evaluating the practice under

the Lemon test, the court first held that such prayers had a secular pur- pose in that they "solemniz[ed] public occasions, express[ed] confi- dence in the future, and encourag[ed] the recognition of what is

worthy of appreciation in society." Id. at 236 (internal quotation marks omitted and alterations in original). Moving to Lemon 's second prong, the court decided that "an audience of college-educated adults

could [not] be influenced unduly by prayers of the sort in question

here." Id. at 237. On Lemon 's final criterion, the court concluded: "[i]t does not seem to us that the practice of including nonsectarian prayers 15

or moments of silence at [school] events creates any church-state

entanglement at all." Id. at 238.

V. General Bunting contends th at we need not reach the "clearly established" prong of the qualified immunity analysis because the Establishment Clause does not prohibit VMI's supper prayer. In par-

ticular, he suggests that we shoul d apply the standard employed by the Supreme Court in Marsh v. Chambers , 463 U.S. 783 (1983), where the Court — based on the unique history of the practice —

upheld Nebraska's practice of openi ng its legislative sessions with a prayer. In support of his position, th e General insists that prayer dur- ing military ceremonies and before m eals is part of the fabric of our society, and that the drafters of the First Amendment did not intend

to prohibit prayer before meals at a military school. 8 Independently, General Bunting maintains that, even if the traditional Establishment Clause analysis applies, the s upper prayer should be upheld because the prohibition on state-sponsored pr ayer does not apply to a military college.

The Plaintiffs, by contrast, contend that the supper prayer is no dif-

ferent than the government-sponsored prayers struck down by the

Supreme Court in Engel , Schempp , Lee , and Santa Fe . They empha- size that the supper prayer is com posed by a state official (the VMI Post Chaplain) and that it is deliv ered on a daily basis at mealtime, when the Corps is assembled as a "family." Furthermore, the prayer is delivered as part of an official VMI function, entirely controlled by

the school. The supper prayer, accordi ng to the Plaintiffs, bears the strong imprimatur of the state: VMI's cadets are marched in uniform

and in formation to the mess hall be fore the state-composed prayer is delivered.

General Bunting also suggests that VMI has a First Amendment inter-

est that must be weighed in the Es tablishment Clause analysis. Contrary to this contention, VMI has no Fi rst Amendment interests that it can wield against the constitutional rights of its cadets. See Hopwood v. Texas , 78 F.3d 932, 943, n.25 (5th Cir. 1996) ("Saying that a [state] uni- versity has a First Amendment interest in this context is somewhat trou- bling. . . . The First Amendment generally protects citizens from the

actions of government, not gove rnment from its citizens.").

A. We must begin our resolution of these competing positions by

identifying the standard that should guide our analysis of the constitu- tionality of VMI's supper prayer. Ge neral Bunting first suggests that we should view the prayer as a uniquely historical practice, in an

approach similar to that employed by the Supreme Court in Marsh . In Marsh , though, the Court was specifically influenced by the fact that, in September of 1789, members of the first Congress voted to

submit the First Amendment to the st ates in the same week that they voted "to appoint and to pay a Chap lain for each House" of Congress. 463 U.S. at 790. In upholding the Nebraska practice, Chief Justice Bur-

ger reasoned: "[t]his unique history leads us to accept the interpreta- tion of the First Amendment draftsmen who saw no real threat to the

Establishment Clause arising from a practice of prayer similar to that now challenged." Id. at 791. The Supreme Court has since emphasized that Marsh is applicable only in narrow circumstances. In County of Allegheny v. ACLU Greater Pittsburgh Chapter , 492 U.S. 573 (1989), the Court recog- nized that the Marsh decision "relied specifically on the fact that Con- gress authorized legislative prayer at the same time that it produced the Bill of Rights." Id. at 602. The Court expressly declined to inter- pret Marsh to mean that "all accepted practices 200 years old and their equivalents are constitutional today." Id. at 603. Likewise, in North Carolina Civil Liberties Un ion Legal Foundation v. Constangy , 947 F.2d 1145 (4th Cir. 1991), we emphasized, in invalidating a

judge's practice of opening court with a prayer, that Marsh was "predicated on the particular histori cal circumstances presented in that case." 947 F.2d at 1148.

Put simply, the supper prayer does not share Marsh 's "unique his- tory." In fact, public universities a nd military colleges, such as VMI, did not exist when the Bill of Rights was adopted. Opinion at 625. We

are therefore unable to apply Marsh 's reasoning to the evaluation of the constitutionality of the supper prayer. See Edwards v. Aguillard , 482 U.S. 578, 583 n.4 (1987) (emphasizing that the Marsh analysis "is not useful in determining the proper roles of church and state in

public schools, since free public e ducation was virtually nonexistent at the time the Constitution was adopted"); see also Coles v. Cleve- 17

land Bd. of Educ. , 171 F.3d 369, 381 (6th Cir. 1999) (noting that " Marsh is one-of-a-kind" and declining to apply Marsh 's reasoning in assessing constitutionality of pray er at school board meetings).

B. In rejecting the Marsh analysis, we are left to choose among the three traditional tests that the S upreme Court has used to evaluate Establishment Clause challenges. Th e test most often employed is that enunciated by the Court in Lemon . 403 U.S. at 612-13. A second test, known as the "endorsement test," was first articulated by Justice

O'Connor in her concurrence in Lynch v. Donnelly , 465 U.S. 668 (1984), and later adopted by a majority of the Court in County of Alle- gheny , 492 U.S. at 592-94. Under the endorsement test, the govern- ment may not engage in a practice that suggests to the reasonable,

informed observer that it is endorsing religion. Lynch , 465 U.S. at 690 (O'Connor, J., concurring). Finally, in Lee , the Court formulated its "coercion test," under which "gove rnment may not coerce anyone to support or participate in religion or its exercise." 505 U.S. at 587.

While the Lemon test dominates Establis hment Clause jurispru- dence, coercion has emerged as a prevailing consideration in the school prayer context. Because the C ourt has applied a variety of tests (in various combinations) in school prayer cases, federal appellate

courts have also followed an inconsistent approach. See, e.g. , Adler v. Duval County Sch. Bd. , 206 F.3d 1070, 1075 (11th Cir.) (en banc), vacated by 531 U.S. 801 (2000), opinion reinstated on remand by 250 F.3d 1330 (11th Cir.) (en banc), cert. denied , 534 U.S. 1065 (2001) (separating coercion test from Lemon test and applying both); Coles , 171 F.3d at 383 (same); Chaudhuri , 130 F.3d at 236-38 (same); Tan- ford , 104 F.3d at 985-86 (same); ACLU of N.J. v. Black Horse Pike Reg'l Bd. of Educ. , 84 F.3d 1471, 1478-83 (3d Cir. 1996) (en banc) (same); Ingebretsen v. Jackson Pub. Sch. Dist. , 88 F.3d 274, 279-80 (5th Cir. 1996) (applying all three tests).

During the past decade, we have emphasized that the Lemon test guides our analysis of Establishment Clause challenges. See Koenick v. Felton , 190 F.3d 259, 264 (4th Cir. 1999) ("`[U]ntil the Supreme Court overrules Lemon and provides an alternative analytical frame- work, this Court must rely on Lemon in evaluating the constitutional-

ity of legislation under the Establishment Clause.'" (quoting Barghout v. Bureau of Kosher Meat & Food Control , 66 F.3d 1337, 1343 n.11 (4th Cir. 1995))); accord Brown v. Gilmore , 258 F.3d 265, 275 (4th Cir.), cert. denied , 534 U.S. 996 (2001). In the context of school prayer, though, we must give special consideration, under the princi-

ples discussed in Lee and Santa Fe , to whether a state has coerced religious worship. In the analysis that follows, we therefore assess the supper prayer against the principles announced in Lee and Santa Fe , and we then apply the Lemon criteria, treating the endorsement test as a refinement of Lemon 's second prong. See Adland v. Russ , 307 F.3d 471, 479 (6th Cir. 2002), petition for cert. filed , 71 U.S.L.W. 3568 (U.S. Feb. 20, 2003) (No. 02- 1241) (treating "the endorsement test as a refinement of the second Lemon prong").

VI. A. Under the Supreme Court's decisions in Lee and Santa Fe , school officials may not, consistent with the Establishment Clause, compel students to participate in a religi ous activity. As the Court emphasized in Lee , "our precedents do not permit school officials to assist in com- posing prayers as an incident to a formal exercise for their students." 505 U.S. at 590. The efforts of school officials "to monitor prayer will

be perceived by the students as i nducing a participation they might otherwise reject." Id. In defending the constitutionality of the supper prayer, General Bunting gives two reasons why the prayer should be

upheld. First, he insists that VMI's cadets are mature adults, who will

not feel coerced to participate in the supper prayer. Alternatively, he suggests that the members of the Corps (other than the rats) may avoid the prayer by falling out of the SRC formation before the Corps

enters the mess hall.

It is undoubtedly true that grade school children are particularly

"susceptible to pressure from th eir peers towards conformity." Id. at 593. Recognizing a difference between such children and college stu-

dents, certain of our sister circuits have approved the decisions of

public universities to offer an i nvocation at graduation ceremonies. For example, in Tanford , the Seventh Circuit found that an invocation at a university commencement was not coercive. 104 F.3d at 985-86. 19

Similarly, in Chaudhuri , the Sixth Circuit allowed a state university to include a prayer at its graduation ceremonies, concluding that "here

there was no coercion — real or ot herwise — to participate in the nonsectarian prayers," 130 F.3d at 239 (internal quotation marks

omitted), because "an audience of co llege-educated adults could [not] be influenced unduly by prayers of the sort in question here." Id. at 237.

Although VMI's cadets are not children, in VMI's educational sys-

tem they are uniquely susceptible to coercion. VMI's adversative method of education emphasizes th e detailed regulation of conduct and the indoctrination of a strict moral code. Entering students are

exposed to the "rat line," in wh ich upperclassmen torment and berate new students, bonding "new cadets to their fellow sufferers and, when

they have completed the 7-month e xperience, to thei r former tormen- tors." United States v. Virginia , 518 U.S. at 522. At VMI, even upper- classmen must submit to mandato ry and ritualized activities, as obedience and conformity remain central tenets of the school's educa-

tional philosophy. In this atmosphe re, General Bunting reinstituted the supper prayer in 1995 to build solidarity and bring the Corps

together as a family. In this cont ext, VMI's cadets are plainly coerced into participating in a religious exercise. Because of VMI's coercive atmosphere, the Establishment Clause precludes school officials from

sponsoring an official prayer, even for mature adults.

The technical "voluntariness" of the supper prayer does not save it

from its constitutional infirmities. At all relevant times, VMI's upper-

class cadets could avoid the mess ha ll in order to shield themselves from the prayer. Nevertheless, the communal dining experience, like

other official activities, is undoubt edly experienced as obligatory. 9 Through the hazing rituals that domin ate a cadet's first year, members of the Corps are trained to partic ipate in VMI's official activities. With this atmosphere as a bac kground, VMI cannot avoid Establish- ment Clause problems by simply a sserting that a cadet's attendance at supper and his or her participation in the supper prayer are "volun-

Even if dining in the mess hall was truly voluntary, the First Amend-

ment prohibits General Bunting from requiring religious objectors to

alienate themselves from the VMI co mmunity in order to avoid a reli- gious practice. Lee , 505 U.S. at 596. 20

tary." In the words of the Supreme Court, "`the government may no

more use social pressure to enforce orthodoxy than it may use more

direct means.'" Santa Fe , 530 U.S. at 312 (quoting Lee , 505 U.S. at 594). Put simply, VMI's supper pray er exacts an unconstitutional toll on the consciences of religious objectors. While the First Amendment

does not in any way prohibit VMI's cadets from praying before, dur-

ing, or after supper, the Establishment Clause prohibits VMI from

sponsoring such a religious activity. 10 B. We are compelled to reach the same conclusion when the supper prayer is measured ag ainst the three-part Lemon test. Under Lemon , a prayer must have a secular purpose; the primary effect of the prayer must be one that neither advances nor inhibits religion; and finally,

the prayer must not foster an excessive government entanglement

with religion. 403 U.S. at 612-13. If we accept General Bunting's asserted purposes, the supper prayer may satisfy Lemon 's "secular purpose" prong. Nevertheless, in sponsoring an official prayer, VMI

has plainly violated Lemon 's second and third prongs.

. The first prong of Lemon contemplates an inquiry into the subjec- tive intentions of the government. "In applying the purpose test, it is

appropriate to ask `whether govern ment's actual purpose is to endorse or disapprove of religion.'" Wallace , 472 U.S. at 56 (quoting Lynch , 465 U.S. at 690 (O'Connor, J., concurring)). The secular purpose

requirement presents "a fairly low hurdle" for the state, Brown , 258 F.3d at 276 (internal quotation mark s omitted), and a state-sponsored practice violates this prong of Lemon only "if it is entirely motivated by a purpose to advance religion." Wallace , 472 U.S. at 56 (emphasis

If VMI's administration desires to teach cadets about religion, it is

entitled to offer such cla sses in its curriculum. See, e.g. , Epperson v. Arkansas , 393 U.S. 97, 106 (1968) ("[S]tudy of religions and of the Bible from a literary and historic viewpoint, presented objectively as part of a secular program of education, need not collide with the First Amend- ment's prohibition."); Altman , 245 F.3d at 76 ("[T]he Establishment Clause does not prohibit schools from teaching about religion.").

added). Nevertheless, a state ma y disingenuously profess a secular purpose for what is, in fact, a relig ious practice. While the state's characterization of its purpose is en titled to deference, it is our obliga- tion to distinguish "a sham secular purpose from a sincere one." Santa Fe , 530 U.S. at 308 (interna l quotation marks omitted). General Bunting has proffered several purposes (purportedly secu-

lar) for the supper prayer. First, he maintains that the prayer serves

"an academic function by aiding VM I's mission of developing cadets into military and civilian leaders." Appellant's Br. at 47. Toward this end, the supper prayer supposedly promotes religious tolerance, edu-

cates cadets about religion, and gets "students to engage with their own beliefs." Id. at 12. According to General Bunting, the supper prayer encourages "cadets to refl ect on and develop their own spiri- tual dimension." Id. (internal quotation mark s omitted). The prayer, in the General's words, also serv es an expressive and institutional function by "providing an occasion for American's tradition of

expressing thanksgiving and re questing divine guidance." Id. at 48. Finally, General Bunting contends that the prayer "accommodate[s] the spiritual needs and free exercise rights of cadets, whose opportu-

nities to meet those needs and exercise those rights are limited by the

demands of barracks life and the highly structured nature of the VMI

program." Id. at 50. In assessing General Bunting's asserted purposes for the supper

prayer, we are concerned that he seeks to obscure the difference between educating VMI's cadets about religion, on the one hand, and forcing them to practice it, on the other. When a state-sponsored

activity has an overtly religious ch aracter, courts have consistently rejected efforts to assert a secula r purpose for that activity. Indeed, we have emphasized that "an act so intr insically religious as prayer can- not meet, or at least would have difficulty meeting, the secular pur-

pose prong of the Lemon test." Constangy , 947 F.2d at 1150. And we have also recognized the obvious, that recitation of a prayer "is unde-

niably religious and has, by its nature, both a religious purpose and

effect." Hall v. Bradshaw , 630 F.2d 1018, 1020 (4th Cir. 1980). In an analogous situation, the Court of Appeals for the District of

Columbia rejected the government's contention that a federal regula-

tion requiring chapel attendance had a secular purpose. See Anderson , 22

F.2d at 285, 290. The federal government maintained (as VMI does here) that chapel services accommodated the free exercise rights of cadets and midshipmen, as well as sensitizing them to the religious beliefs of the soldiers and sailors they would someday lead. Rejecting the contention that these purposes justified the chapel attendance requirement, the court found that the regulation lacked a secular pur-

pose. Id. ; see also Edwards , 482 U.S. at 581, 586 (concluding that statute violated Lemon 's secular purpose prong by prohibiting "the teaching of the theory of evolution in public schools unless accompa-

nied by instruction in `creation science'"); Hall , 630 F.3d at 1020-21 (rejecting government's contention that motorist's prayer printed on

state map had a secular purpose).

Similarly, in Stone v. Graham , 449 U.S. 39 (1980) (per curiam), the Supreme Court found no secular purpose for a statute that

required the Ten Commandments be posted on the walls of all of a

state's public schools. In that situation, the legislature of Kentucky

had required that each copy of th e Ten Commandments be printed with the words: "[t]he secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of West-

ern Civilization and the Common Law of the United States." Id. at 41 (citation omitted). The Supreme Court rejected this characterization, concluding that:

[t]he pre-eminent purpose for posting the Ten Command-

ments on schoolroom walls is plainly religious in nature.

The Ten Commandments are undeniab ly a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact. Id. (footnote omitted). In invalidating the statute, the Court refused to ignore the religious purpose of this overtly religious text.

We are inclined to agree that the purpose of an official school prayer "is plainly religious in nature." 11 Id. In evaluating the constitu-

Indeed, the district court found that the supper prayer lacked a secu- lar purpose, stating that "[t]he only logical conclusion that can be drawn from [the asserted purposes] is that part of the Institute's educational mission, in the eyes of General Bunting, is religious indoctrination."

Opinion at 629. 23

tionality of the supper prayer, how ever, we will accord General Bun- ting the benefit of all doubt and credit his explanation of the prayer's

purposes. Assuming the supper prayer to be motivated by secular

goals, we turn to the second and third prongs of Lemon . 2. Regardless of the purposes motivating it, the supper prayer fails Lemon 's second prong. This "primary effect" prong must be assessed objectively, in order to measure whether the principal effect of gov-

ernment action "is to suggest government preference for a particular

religious view or for religion in general." Barghout , 66 F.3d at 1345. Put differently, "[t]he effect prong asks whether, irrespective of gov-

ernment's actual purpose, the practice under review in fact conveys

a message of endorsement or disapproval [of religion]." Wallace , 472 U.S. at 56 n.42 (interna l quotation marks omitted). The supper prayer has the primary effect of promoting religion, in

that it sends the unequivocal message that VMI, as an institution, endorses the religious expressions embodied in the prayer. 12 See Engel , 370 U.S. at 430 ("There can be no doubt that New York's state

prayer program officially establis hes the religious beliefs embodied in the . . . prayer."). The supper prayer is "delivered to a large audience assembled as part of a regularly scheduled, school-sponsored function conducted on school property." Santa Fe , 530 U.S. at 307. In this con- text, "an objective observer, acquainted with the [supper prayer]

would perceive it as a state endorsement of prayer in public schools." Id. at 308 (internal quotation marks omitted).

General Bunting asserts that the s upper prayer is designed to be both inclusive and nondenominational. Nevert heless, the prayer takes a partic- ular view of religion, one that is monotheistic, patriarchal, and indebted to Judeo-Christian values and conventi ons of worship. In any event, the Establishment Clause prohibits a state from sponsoring any type of

prayer, even a nondenominational one. Lee , 505 U.S. at 610 (Souter, J., concurring) ("[T]he Establishment Clause forbids state-sponsored

prayers in public school settings no matter how nondenominational the prayers may be."). A state may no more establish a civic religion than an

overtly parochial one. Id. at 590; see also Engel , 370 U.S. at 430 (hold- ing that prayer violated Establis hment Clause even though it was "de- nominationally neutral"). 24

As the Court has observed, "[s]uch an endorsement is not consis-

tent with the established principle that the government must pursue a

course of complete neut rality toward religion." Wallace , 472 U.S. at 60. Even though VMI intended the supper prayer to be both inclusive

and nondenominational, the Establis hment Clause prohibits a state from promoting religion by authoring and promoting prayer for its cit-

izens. In the words of the Court, "[t]he First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, sup- port or influence the kinds of prayer the American people can say." Engel , 370 U.S. at 429. In establishing its supper prayer, VMI has

done precisely what the First Amendment forbids.

In numerous other cases, courts have struck down similar practices

under Lemon 's "primary effect" prong. See, e.g. , Freiler v. Tangi- pahoa Parish Bd. of Educ. , 185 F.3d 337, 346-47 (5th Cir. 1999) (striking down policy requiring teach ers to read disclaimer before teaching theory of evolution); Coles , 171 F.3d at 384-85 (same for practice of school board to open meetings with prayer); Ingebretsen , 88 F.3d at 279 (same for statute authorizing students to initiate prayer

at school functions); Black Horse Pike Reg'l Bd. of Educ. , 84 F.3d at 1487 (same for policy authorizing student vote on whether to incorpo-

rate prayer in graduation ceremony); Doe v. Duncanville Indep. Sch. Dist. , 70 F.3d 402, 406 (5th Cir. 1995) (same for participation of bas-

ketball coach in prayer after games).

With these decisions as a ju risprudential bac kground, we are con- strained to conclude that the supper prayer conflicts with Lemon 's second prong. Although we recognize and respect a cadet's individual

desire to say grace before supper, the Establishment Clause prohibits VMI from sponsoring this religious practice. See ACLU, Greater Pittsburgh Chapter v. County of Allegheny , 842 F.2d 655, 662 (3d Cir. 1988), aff'd in part and rev'd in part by 492 U.S. 573 (1989) ("While we do not doubt that some persons find [the government's

support of religion] laudable, it . . . violates the Establishment Clause

of the First Amendment."). 3. While Lemon 's second prong could dispose of the constitutional issue, VMI's sponsorship of the supper prayer also brings the school 25

into conflict with Lemon 's third prong, excessively entangling it with religious activity. Lemon , 403 U.S. at 615. As the Eleventh Circuit recently stated, "[t]he ability to re gulate the content of speech is a hallmark of state involvement." Adler , 250 F.3d at 1337; see also Coles , 171 F.3d at 385 (finding excessive entanglement where "[t]he

school board decided to include prayer in its public meetings, chose

which member from the local religious community would give those

prayers, and . . . had the school board president himself compose and

deliver prayers to those in the a udience"). Here, VMI has composed, mandated, and monitored a daily prayer for its cadets. In this way,

VMI has taken a position on what constitutes appropr iate religious worship — an entanglement with relig ious activity that is forbidden by the Establishment Clause. C. Our decision today does not reflect any "hostility toward religion

or toward prayer." 13 Engel , 370 U.S. at 434. As we have recognized, our "`Nation's history has not been one of entirely sanitized separa-

tion between Church and State,' and it `has never been thought either

possible or desirable to enforce a regime of total separation.'" Brown , 258 F.3d at 274 (quoting Comm. for Pub. Educ. & Religious Liberty v. Nyquist , 413 U.S. 756, 760 (1973)); accord Lynch , 465 U.S. at 673. Indeed, the Establishment Clause protects religious expression from

governmental interference. Brown , 258 F.3d at 273-74. "The Estab- lishment Clause thus stands as an expression of principle on the part

of the Founders of our Constitution th at religion is too personal, too sacred, too holy, to permit its `unhallowed perversion'" by govern-

ment. Engel , 370 U.S. at 431-32 (quoting Memorial and Remon- strance against Religious Assessmen ts, II Writings of James Madison 183, 187).

While General Bunting may ha ve instituted the supper prayer with the best of intentions, in so doing he has placed VMI at odds with the Establishment Clause. The Founding Fathers "led the fight for adop-

We also note that we are not called upon to address whether, or to

what extent, the military may incorpor ate religious practices into its cere- monies. The Virginia General Assembly, not the Department of Defense,

controls VMI. 26

tion of our Constitution and also fo r our Bill of Rights with the very guarantees of religious freedom that forbid [this] sort of governmental

activity." Engel , 370 U.S. at 435. Indeed, "one of the greatest dangers to the freedom of the individual to worship in his own way [lies] in

the Government's placing its offici al stamp of approval upon one par- ticular kind of prayer." Id. at 429.

VII. Having decided that VMI's supper prayer conflicts with First

Amendment principles, we turn to whether General Bunting is never-

theless entitled to qualified immunity . As a state official, General Bunting is immune from damages unl ess he violated "clearly estab- lished statutory or constitutional ri ghts of which a reasonable person would have known." Harlow , 457 U.S. at 818. In this regard, a princi- ple of constitutional law may be "cl early established" even though the precise factual situation has never b een presented to a court. Accord- ingly, "officials can still be on notice that their conduct violates estab-

lished law even in novel factual circumstances." Hope , 536 U.S. at 741.

Although the Establishment Clause plainly forbids public schools

from sponsoring an official prayer for young children, the Supreme

Court has never addressed the c onstitutionality of state-sponsored prayer in any university setting, much less in a military college. Indeed, some of our sister circuits have approved prayer at certain

university functions. See supra Part IV.B. In addition, the Court has not had the occasion to consider whet her, or to what extent, the mili- tary may incorporate religious practices in its ceremonies. See Batten v. Gomez , F.3d, 2003 WL 403336, at *6 (4th Cir. Feb. 24, 2003) ("[W]e have been unable to find any authoritative cases consid-

ering analogous circumstances."). In these circumstances, General Bunting could reasonably have belie ved that the supper prayer was constitutional, and we must affirm the district court's decision to

award him qualified immunity. VIII. For the foregoing reasons, we vacate the district court's judgment awarding Plaintiffs declaratory and injunctive relief. We affirm the 27

court's decision that the Plaintiffs have alleged a violation of their

rights under the Establishment Clause, but that General Bunting is

nevertheless entitled to qualified immunity. AFFIRMED IN PART AND VACATED IN PART 28