Tuesday, April 19, 2011

The district issues a statement re "Westphal v. Wagner" (FACT CHECK)


     At about noon today, the South Orange County Community College District sent district denizens a statement regarding the “Westphal v. Wagner” settlement. I provide the statement in its entirety below.

     BUT FIRST, some facts:
Scholarship remarks: unconstitutional 
• As per the settlement, the district agrees to pay plaintiff’s attorneys (Americans United for Separation of Church and State) $250,000.

• Plaintiffs comprise not only professors but former students.*

• The “summary judgment” to which the district’s statement refers included the determination that Trustee Don Wagner’s Scholarship “prayer” was unconstitutional and that Chancellor Raghu Mathur’s showing of a patriotic slide-show including a message about Jesus was also unconstitutional. (See OC Register: Saddleback, Irvine Valley to discontinue some prayers)

• The district agrees to leave deciding whether an invocation (or moment of silence) shall be included in Commencement to college planning groups, which may decide to forego either invocation or MOS.

• If the planning group chooses to include an invited speaker to give an invocation, the speaker will be informed that the prayer must be non-sectarian and that he/she must refrain from proselytizing.

Slide show: unconstitutional
• The relevant language in the settlement (and its “exhibit A”) is the following:



     Beginning on the effective date of this Agreement [March 31, 2011], neither the SOCCCD nor its colleges…shall include an invocation on the program at any future Scholarship Ceremony or Chancellor’s Opening Session.
. . .
     Within 30 days of the effective date of this Agreement, the SOCCCD shall cause to be made a one-time payment in the amount of $250,000 to Americans United for Separation of Church and State.
. . .
     At any future District of College event at which an invocation is included on the program, neither students nor faculty shall be required to attend such event, and no student or faculty member shall lose any privilege, benefit or employment status by failing to attend such event.
. . .
     Within 30 days of the effective dates of this Agreement, the Board shall adopt the Resolution attached as Exhibit A to this Agreement….

The Resolution:

     The district desires to ... provide guidelines to the planners of important District and college events.… 

. . .
     The decision on whether to select a speaker to deliver personal remarks in the form of an invocation, moment of silence, of opening and/or closing message, not to exceed two minutes, at important District and college events shall rest within the sole discretion of the event planners….
. . .
     The content of the invocation or message, or in the case of a moment of silence, any introductory remarks by the selected speaker leading up to it, shall be prepared by the selected speaker, as his or her personal remarks, and shall not be monitored or otherwise reviewed by the Board of Trustees of the SOCCCD, its officials, or employees….
     …the person selected…shall be provided with a copy of this resolution…shall be informed of the District’s request that any personal remarks be non-sectarian; shall be informed that the opportunity to speak at a District or college event must not be exploited to proselytize or advance any one, or to disparage any other, faith or belief….
You can read the SETTLEMENT in its entirety here.

The District’s announcement (today):

Invocation Lawsuit Settled, Constitutionality Upheld

Loves prayer and cookies
and junkets and money
     Mission Viejo, CA – April 19, 2011 – South Orange County Community College District wishes to apprise the college community of recent developments in the Westphal v. Wagner lawsuit as communicated by the District’s counsel, John A. Vogt, from the firm Jones Day in the following summary:
     Westphal v. Wagner is a federal lawsuit that was filed in United States District Court for the Central District of California in November 2009. The plaintiffs in the case are professors from Saddleback and Irvine Valley College. In the lawsuit, the plaintiffs contended that the Trustees, Chancellor, and President of Saddleback College violated the Establishment Clause of the United States Constitution by including a non-sectarian invocation at significant District and College events. On that issue, the District prevailed in a summary judgment ruling by the Court that the past practice of the District (and its Colleges) of including invocations at significant District and College events are constitutional, and do not violate the Establishment Clause.
     After the District won summary judgment, and before the plaintiffs filed an appeal to the Ninth Circuit, the parties engaged in settlement discussions, which lasted several months. The District participated in that process in the hope of achieving its litigation objectives, while at the same time, minimizing future litigation costs. On March 31, 2011, the parties reached a settlement in this case, which will allow the Colleges to continue with their historical practice of including invocations at their annual commencement ceremonies. The District and Colleges also may continue to include invocations at virtually all other significant campus events.
     As a compromise, the District agreed that: (i) invocations would cease at Chancellor’s Opening Sessions; and (ii) to the extent the District or Colleges planned the event, invocations at Scholarship Ceremonies would be discontinued as well. In exchange for these concessions, the plaintiffs dismissed their litigation with prejudice—which means that the case is over, and cannot be brought again. The District viewed both of these compromises as reasonable.
     The Trustees, Chancellor, and President are pleased with the outcome of this litigation. They consistently have maintained that the practice of including a brief, non-sectarian ceremonial invocation at significant District and College events—a tradition that traces its roots to the first graduation ceremony at Saddleback College over 40 years ago—is well-grounded in Establishment Clause jurisprudence, as well as our nation’s rich history and culture. That position was vindicated by the District Court’s grant of summary judgment in the District’s favor. Under the settlement just entered, the District and its Colleges may continue with this practice. [END]

—Spin. DtB has made the actual settlement available. DtB's announcement of the settlement two weeks ago, which presented the actual settlement documents, is here.

*At the beginning of litigation, some non-faculty plaintiffs (viz., students) were advised to be anonymous, but the district successfully pressed to remove anonymity. Despite losing that protection, two non-faculty remained as plaintiffs and are parties to this agreement.

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