John Doe, Individually and as Next Friend of Jane Doe, a Minor v. Duncanville Independent School District

EDITH H. JONES, Circuit Judge,

concurring and dissenting:

I concur in Judge Davis’s opinion insofar as it rejects an Establishment Clause challenge to the DISD choir’s choice of songs or “theme song” and holds the Gideon Bible controversy moot. I dissent with qualifications in the majority’s upholding an injunction against active teacher “participation” and “supervision” of the voluntary student-initiated prayers. “Participation,” in one sense, cannot constitutionally be prevented by this court, while “supervision,” rightly understood, cannot be broader than the concept of the school’s encouraging, promoting or leading the prayers. 1

This decision, like that in Doe I, does not prevent students from exercising their constitutional rights of free speech, association and free exercise by praying at appropriate times and in an appropriate manner during athletic practices or games. Further, we must abide by the Supreme Court’s decisions, reflected in the injunction, that prevent active school leadership, encouragement or promotion of the prayers. The only questions here are how teachers may respond to student-initiated prayers and to what extent the school may “supervise” the prayers. My differences with the majority are those of emphasis.

There is practically no doubt that the trend in Supreme Court establishment clause cases supports the majority’s decision insofar as it prevents teachers from actively joining in the student-led prayers, e.g., by joining hands in the prayer circle. Such actions would, according to at least five members of the Supreme Court, too easily connote official endorsement and would imply coercion of non-participants. As the majority properly observed, however, teachers are not prohibited from exercising deference and respect toward student-initiated prayers. I would *410 add to this that the line between deference and sympathetic reverence is a fine one that cannot and should not be policed, if teachers’ individual freedom of conscience is to retain any meaning in this context. The federal courts may currently prevent school-sponsored or -promoted religious devotional exercises, but surely they may not reach into the minds of individual teachers to prescribe their responses to student-initiated prayers. Neither Jane Doe nor any federal court in the United States of America may insist upon a purge of the teachers’ spiritual response to student prayers.

As for the term “supervision,” I agree that this is not technically a Mergens case involving the Equal Access Act. What “supervision” means in the context of basketball practices and games is, however, ambiguous. At a broad level, everything that goes on during practice or competition, including student-initiated locker-room or basketball court prayer, is subject to the coaches’ “supervision.” To outlaw supervision on this level would be to outlaw the otherwise constitutional student-led prayers. Neither the majority nor the district court intends this untenable result. It must be, then, that the injunction pertains only to active supervision and is thus redundant of the cautions that the school may not promote, encourage or lead prayers.

Finally, the majority’s citation of Bishop v. Aronov, 926 F.2d 1066, 1073 (11th Cir.1991) should not be taken as endorsing the entire holding and discussion of that case. Bishop involved the very different and troubling question whether a teacher has the right to express his personal religious convictions during the teaching of college classes. The Supreme Court has repeatedly held that teaching about religion is a significant part of students’ educational experience. See Edwards v. Aguillard, 482 U.S. 578, 605 , 107 S.Ct. 2573, 2589-90 , 96 L.Ed.2d 510 (1987) (Powell, J., concurring) (familiarity with the nature of religious beliefs is necessary to understand historical and contemporary events); School District of Abington Township v. Schempp, 374 U.S. 203, 225 , 83 S.Ct. 1560, 1573 , 10 L.Ed.2d 844 (1963) (one’s education is not complete without the study of religion and its relationship to civilization). Integrating religion into the curriculum in subjects where it is clearly appropriate for discussion raises a host of issues beyond the scope of this opinion. Because I do not doubt that the Supreme Court would hold that DISD coaches and other school employees may be taken to represent the school if they actively join in the student-initiated prayers, Bishop is relevant only on this narrow point.

. Surely this panel's holding does not contravene the statement of principles prepared by the Departments of Justice and Education in summer, 1995, at President Clinton's urging, “to provide school officials with guidance [concerning] the extent to which religious expression and activities are permitted in public schools.” The first paragraph of the statement of principles admonishes:

Student prayer and religious discussion: The Establishment Clause of the First Amendment does not prohibit purely private religious speech by students. Students therefore have the same right to engage in individual or group prayer and religious discussion during the school day as they do to engage in other comparable activity. For example, students may read their Bibles or other scriptures, say grace before meals, and pray before tests to the same extent they may engage in comparable non-disruptive activities. Local school authorities possess substantial discretion to impose rules of order and other pedagogical restrictions on student activities, but they may not structure or administer such rules to discriminate against religious activity or speech.

See News Release of U.S. Department of Education, Aug. 17, 1995, at 3. Implicit in this protection of student rights is the concept that teachers will be “supervising” the students, however loosely, as they pray. In my reading of it, the court's injunction does not say otherwise.