Wagner v. Westphal: motion for preliminary injunction denied

“Congress shall make no law respecting an establishment of religion….”

.....AS ONE of the plaintiffs in Wagner v. Westphal, I heard from the lawyers today. I learned that, unsurprisingly, Judge R. Gary Klausner denied our motion for a preliminary injunction.
.....A preliminary injunction is a temporary decision made while the case is being litigated to its conclusion. We had asked that the district be prevented from having prayers at the May 21 scholarship ceremony and next week’s commencement ceremonies. The judge denied that motion.
.....That occurred yesterday.
.....As I understand it, Klausner did not address any of our arguments but nevertheless seemed to suppose that the prayers are probably permissible. He seemed to acknowledge that some of the district’s past actions (Wagner, Mathur) were likely unconstitutional, but, since the board has declared that it will not repeat those kinds of actions, there is no need for an injunction with regard to them.
.....We can appeal, but we’ve made no decision yet.
.....Here is the relevant portion of Klausner’s judgment:

.....…In a case where the plaintiff seeks prospective injunctive relief based on conduct that occurred in the past, … it is important for the plaintiffs to delineate what specific government conduct they seek to restrict. Otherwise, courts will be forced to either issue highly particularized rulings that can easily be circumvented or announce all encompassing propositions that do not provide meaningful guidance and are so broad that they run afoul of the defendants’ constitutional rights.
.....This case presents one such situation. Plaintiffs seek to enjoin the college from “offering prayer or religiously themed programming.” But an order banning any religiously themed programming would appear to prohibit recitation of the Pledge of Allegiance, playing songs such as God Bless America, or being thankful to God for our blessings. The Court finds that Plaintiffs’ position on this Motion is too broad and unspecific.
.....The Court notes some of the specific conduct by Defendants may have violated the Constitution while some other conduct did not. For example, Trustee Wagner’s comments at the 2009 scholarship ceremony and the slide show at the 2009 Chancellor Opening Session may appear to be in violation of the Establishment Clause. On the other hand, the joke told at the Chancellor Opening Session is simply a joke and unlikely to have violated the Constitution. Yet the Court cannot issue a broad order to enjoin speech in the future simply because certain Defendants made unconstitutional remarks in the past.
.....Moreover, as Defendants have suggested, the slide presentation and the remarks made by Wagner are not likely to happen again. Therefore, the matter is not appropriate for preliminary injunction.
.....The Court does not make any finding with respect to the past conduct at issue at this point. That ruling is reserved for the summary judgment stage.