Petition for Writ of Certiorari — Tangipahoa Parish Board of Education v. Freiler
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IN THE
Supreme Court of the United States
TANGIPAHOA PARISH BOARD OF EDUCATION; E.F.
BAILEY; ROBERT CAVES; MAXINE DIXON; LEROY HART;
RUTH WATSON; DONNIE WILLIAMS, SR.; ART ZIESKE, in
their capacities as members of the School Board; TED CASON,
in his capacity as Superintendent of Schools,
Petitioners,
v.
HERB FREILER; SAM SMITH, individually and in his Capacity
as administrator of the estate of his minor child, Steven Smith;
JOHN JONES,
Respondents.
On PETITION FoR A Writ OF CERTIORARI TO THE
UniTep STATES Court OF APPEALS FOR THE FirTH CIRCUIT
5 ———$ sec
PETITION FOR A WRIT OF CERTIORARI
——SS===a=a=Ee>Eaoa=—q———>EeE=E=E=Eeee
KENNETH F. Sits Barry W. ASHE
HAMMOND & SILLS Counsel of Record
1111 South Foster Drive WILLIAM D. TrEEBY
Baton Rouge, Louisiana 70806 § STONE, PIGMAN, WALTHER,
(225) 923-3462 WITTMANN & HuTcuinson, L.L.P.
546 Carondelet Street
CHRISTOPHER M. Moony New Orleans, Louisiana 70130
CasHE, Lewis, Moopy & CouprRaIN (504) 581-3200
106 South Magnolia Street
Hammond, Louisiana 70404
(504) 542-6848
Attorneys for Petitioners
——————————————————S>E~7~—=&[_——
158717 @ Counsei Press LLC
(800) 274-3321 + (800) 350-6859
i
QUESTION PRESENTED
Whether a school board policy has the primary effect of
advancing or endorsing religion in violation of the
Establishment Clause, where that policy calls for public
school teachers, before beginning a unit of study presenting
the scientific theory of evolution, to read a disclaimer
statement which: (1) notes that evolution as a theory of life’s
origin should be presented; (2) explains that, in doing so,
the school board does not intend to influence or dissuade
other opinions about life’s origin, including the Biblical
version of creation and other concepts (whether religious or
secular); and (3) encourages students to exercise critical
thinking and to gather all information possible in forming
an opinion or in deciding to maintain currently held beliefs
about life’s origin.
il
TABLE OF CONTENTS
QGuastion PUORGMIRR ....6cccvessvtoncewneaeeee
Tabit OF CamtetD in. cccccccuscbétessseeee
Table of Cited Authorities ...................--
Table OF AGROREIOES 2... esc ccccccccssbecssseen
Oe) Pen
Statement of Jurisdiction ................00058-
Constitutional Provision Involved ..............
Sestamment of Cie COMOR .. . cccccccccivesuenseen
Reasons for Granting the Writ .................
I.
Il.
The Issue Presented In This Case Is Of
Exceptional Importance To Students, Parents,
And Educators, And Provides An Historic
Opportunity For This Court To Quell The
Persistent Controversy That Attends The
Teaching Of Evolution In The Nation’s
a eee
The Court Of Appeals’ Decision That The
Disclaimer Policy Endorses Religion, Or Has
The Impermissible Effect Of Advancing
Religion, Was Wrong. ................+.
Page
12
Conclusion
Contents
A. The disclaimer policy does not have the
principal or primary effect of advancing
ES EE ee
B. The disclaimer resolution does not
endorse religion. ..................
Ill. The Fifth Circuit Panel’s Application Of
Lemon's “Effects” Prong Stands In Conflict
With Prior Decisions Of This Court, Other
Circuits, And The Fifth Circuit Itself.
Page
13
18
iv
TABLE OF CITED AUTHORITIES
Page
Cases:
ACLU v. Schundler, 168 F.3d 92 (3d Cir. 1999) .. 17
Agostini v. Felton, 521 U.S. 203, 117 S. Ct. 1997
SED ve ceskncctcceedesctbedeeueteunhetec 22, 23
Bethel School District No. 403 v. Fraser, 478 U.S.
675, 106 S. Ct. 3159 (1986) ... 6... ee ee eee 16
Bown v. Gwinnett County School Dist., 112 F.3d
BOBS CHORD. THUD wcccccecccccccseccsess 17
Bridenbaugh v. O'Bannon, 185 F.3d 796 (7th Cir.
1999), cert. denied, 120 S. Ct. 1267 (2000) .... 17
Capitol Square Review & Advisory Board v. Pinette,
515 U.S. 753, 115 S. Ct. 2440 (1995) ......... 19
Corporation of the Presiding Bishop of the Church
of Jesus Christ of Latter Day Saints v. Amos,
483 U.S. 327, 107 S. Ct. 2862 (1987) ......... 15, 16
County of Allegheny v. ACLU, 492 U.S. 573,
NOD GB. Ga. SRBB CIGD co cvcccccccccccccvceess 19
Doe v. Beaumont Independent School Dist., 173 F.3d
274, reh'g granted, 173 F.3d 313 (Sth Cir. 1999)
0000p 0006beensecesacseseeeebaseenueeesens 22
Vv
Cited Authorities
Page
Doe v. Duncanville Independent School Dist.,
eT le rrr rere 23
Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806,
reh'g denied, 171 F.3d 1013 (Sth Cir.), cert.
granted, 120 S. Ct. 494(1999) .......... 8, 9,21, 22
Edwards v. Aguillard, 482 U.S. 578, 107 S. Ct. 2573
SSD Sdbudieuvssedé cist baddduseescés 10,11, 12
Engle v. Vitale, 370 U.S. 421, 82 S. Ct. 1261 (1961)
pendhonde descdectdiandedeedecabedaseeenes 16
Epperson v. Arkansas, 393 U.S. 97, 89 S. Ct. 266
SE bak nbd dbs cnbedendaudd<asdeeddscs 11,12
Florey v. Sioux Falls School Dist., 619 F.2d 1311
(8th Cir.), cert. denied, 449 U.S. 987 (1980) ... 19
Ganulin v. United States, 71 F. Supp. 2d 824
Se EE A ihc kdvdnccsddedsuwsdtadsee 17
Granzeier v. Middleton, 173 F.3d 568 (6th Cir. 1999)
FON eC Secneseeseedeecesnéuboneeeueeees seed 17
Hartman v. Stone, 68 F.3d 973 (6th Cir. 1995) ... 15
Helms v. Picard, 151 F.3d 347 (Sth Cir. 1998),
cert. granted sub nom. Mitchell v. Helms,
SP EE cot cicccusssaceesdeas 22, 23
vi
Cited Authorities
, Page
Jones v. Clear Creek Independent School Dist., 977
F.2d 963 (Sth Cir. 1992), cert. denied, 508 U.S.
DT GEE wbdeedaedevdsensacansses 18, 21, 22, 23
Koenick v. Felton, 190 F.3d 259 (4th Cir. 1999),
cert. denied, 120 S. Ct. 938 (2000) ........... 17, 23
Lamb's Chapel v. Center Moriches Union Free
School Dist., 508 U.S. 384, 113 S. Ct. 2141 (1993)
padebadestoccedecdesshvdeccucnedetesseus 14
Lee v. Weisman, 505 U.S. 577, 112 S. Ct. 2649
DUE baecuddbdenceusddessddinedadseussod 21
Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105 :
ED sc. cendteesdens 4, 5, 8, 12, 16, 17, 18, 19, 21, 22
Lynch v. Donnelly, 465 U.S. 668, 104 S. Ct. 1355
PE cuntiscaddudandcdwhtvodasebescbbscee 18, 19
Marsh v. Chambers, 463 U.S. 783, 103 S. Ct. 3330
DEE abecéotecdudveoednceeucesecdtsséscs 18
Rosenberger v. Rector & Visitors of University of
Virginia, 515 U.S. 819, 115 S. Ct. 2510 (1995)
bbececccbesbnsduddndesecededsndedseavede 15
vil
Cited Authorities
Page
Simmons-Harris v. Zelman, 72 F. Supp. 2d 834
(N.D. Ohio 1999), appeal docketed, No. 00-3055
Se SS Ce ED 6 bc ccbcdvcvcccéccones 13
United States v. Salerno, 481 U.S. 739, 107 S. Ct.
a ol 18
West Virginia State Board of Ed. v. Barnette, )
319 U.S. 624, 63 S. Ct. 1178 (1943) ....2..... 11, 16
United States Constitution:
ESI, ee ee nr ee 2
Fourteenth Amendment ....................... 2
Statutes:
Se l
PP EE cneccadédes tueceue seer Dawe l
lo l
Rule:
ERR SE Rarer ie ee Hp ae 9
vill
Cited Authorities
Other Authorities:
Evolution and Kansas, Wash. Post, Aug. 16, 1999
Evolution Falls From Curriculum, N. Orleans
Times-Picayune, Aug. 12, 1999 ..............
Gill, Scientific Truth v. Religious Dogma, N. Orleans
Times-Picayune, Aug. 15, 1999 ..............
God and Man in Kansas, Wall St. J., Aug. 13, 1999
Goodman, The Darwin Dumpers of Kansas,
N. Orleans Times-Picayune, Aug. 19, 1999 ....
Gould, Dorothy, It's Really Oz, Time, Aug. 23, 1999
See eae ese eeese See Cease eee €ee 62 ese eeeer se eee &@ ee SS
Seeeeee eserves eece eee eee eeeeCeceee eee eee ee ee es
O. Hoi_mes, THe COMMON Law (1963) ...........
Johnson, The Church of Darwin, Wall St. J.,
TD, Ti GD. Ce cnvikccevicesbdensede's neds
Kansas Eliminates Evolution From Public School
Curricula, Wash. Post, Aug. 12,1999 ........
Page
18
18
ix
Cited Authorities
E. LARSON, SUMMER FOR THE Gops (1997) ........
Origin Theories Poll Finds Support, Associated
Press, Mar. 11, 2000, 2000 WL 15788586
"eee ec ese ertc se eee seeeeeTVeswseee eee ee eae ee es 8 ee
Poll; Americans Accept Evolution and Creationism,
N. Orleans Times-Picayune, Mar. 11, 2000 ....
K. Popper, THe Loaic or Scientiric Discovery (1959)
Richards, Darwinism and Design, Wash. Post,
CUT. ecénicccedchedeciuetechusenss
Teepen, Maybe Kansas Isn't With Us Anymore,
N. Orleans Times-Picayune, Aug. 18, 1999 ....
Wash. Times, Mar. 11,2000 ..................
10
18
10
x
TABLE OF APPENDICES
Appendix A — Opinion Of The United States Court
Of Appeals For The Fifth Circuit Denying Petition
For Rehearing Dated And Filed January 24, 2000
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Appendix B — Opinion Of The United States Court
Of Appeals For The Fifth Circuit Dated And Filed
RES Fie FOSS cai cc cciecesdedesisncceess
Appendix C — Findings And Conclusions Of The
United States District Court For The Eastern
District Of Louisiana Dated And Filed August 8,
ST eecua dave veddaSunsecesedoudnseae wens
Page
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Petitioners, the Tangipahoa Parish School Board, its
members, and the superintendent of schools, respectfully pray
that a writ of certiorari issue to review a judgment of the United
States Court of Appeals for the Fifth Circuit dated August 13,
1999, holding that a disclaimer resolution enacted by the School
Board violates the Establishment Clause in that the resolution
endorses religion or has the primary effect of advancing religion.
Freiler v. Tangipahoa Parish Board of Education, 185 F.3d 337
(Sth Cir. 1999), Appendix (“App.”) B. The Fifth Circuit itself is
deeply divided over the issue as reflected both by the 8 to 7
vote denying Petitioners’ application for rehearing en banc and
by the strong dissent joined by the seven judges who voted to
have the full court hear the case. Freiler v. Tangipahoa Parish
Board of Education, 201 F.3d 602 (Sth Cir. 2000), App. A.
OPINIONS BELOW
The opinion of the United States Court of Appeals for the
Fifth Circuit holding the disclaimer resolution unconstitutional,
entered August 13, 1999, is reported at 185 F.3d 337 and is reprinted
as Appendix B. The Court of Appeals’ denial of rehearing
and rehearing en banc, entered January 24, 2000, including
the dissenting opinion, is reported at 201 F.3d 602 and is reprinted
as Appendix A. The memorandum opinion of the United
States District Court for the Eastern District of Louisiana
striking down the disclaimer resolution as unconstitutional for
lack of a secular purpose, entered August 8, 1997, is reported at
975 F. Supp. 819 and is reprinted as Appendix C.
STATEMENT OF JURISDICTION
This petition for a writ of certiorari seeks review of the
August 13, 1999 judgment of the United States Court of Appeals
for the Fifth Circuit. The Fifth Circuit’s jurisdiction over the
appeal was founded upon 28 U.S.C. § 1291, because the district
court had entered a final judgment from which Petitioners filed
a timely notice of appeal. The district court’s subject matter
jurisdiction was founded upon 28 U.S.C. § 1331. Jurisdiction
of this Court is invoked under 28 U.S.C. § 1254(1).
2
CONSTITUTIONAL PROVISION INVOLVED
The First Amendment of the Constitution of the United
States of America, as applied to the states by the Fourteenth
Amendment, provides in pertinent part: “Congress shall
make no law respecting an establishment of religion ... .”
U.S. Const. amend. I.
STATEMENT OF THE CASE
On April 19, 1994, the Tangipahoa School Board adopted
the following resolution:
Whenever, in classes of elementary or high school,
the scientific theory of evolution is to be presented,
whether from textbook, workbook, pamphlet, other
written material, or oral presentation the following
statement shall be quoted immediately before the
unit of study begins as a disclaimer from
endorsement of such theory.
It is hereby recognized by the Tangipahoa Parish
Board of Education, that the lesson to be presented,
regarding the origin of life and matter, is known as
the Scientific Theory of Evolution and should be
presented to inform students of the scientific concept
and not intended to influence or dissuade the Biblical
version of Creation or any other concept.
It is further recognized by the Board of Education
that it is the basic right and privilege of each student
- to form his/her own opinion or maintain beliefs
taught by parents on this very important matter of
the origin of life and matter. Students are urged to
exercise critical thinking and gather all information
possible and closely examine each alternative toward
forming an opinion. '
' Although the resolution is sometimes referred to as “the
disclaimer” for ease of reference, only the second and third paragraphs
(Cont'd)
3
The School Board deemed the disclaimer a nonintrusive
means of sating the concerns of a diverse, pluralistic group of
people, without altering the curriculum to teach theories about
life’s origin other than evolution and without in any manner
trammeling the rights of students and their parents to form or
maintain their own beliefs. The Board’s objective in enacting
the resolution was set forth in the text of the resolution itself —
namely, to affirm each student's right to form or maintain his or.
her own opinions or beliefs about life’s origin, notwithstanding
the school system’s intention to teach only the scientific theory
of evolution.’
The plaintiffs sought to have the disclaimer resolution
declared unconstitutional and to enjoin its implementation. On
a stipulated record, the district court held that the disclaimer
constituted an unconstitutional establishment of religion,
reasoning that the resolution failed the first prong of the
(Cont'd)
of the resolution are contemplated to be read in the Tangipahoa Parish
schools. Further, at the outset of this petition, it should be noted that
the disclaimer addresses evolution only as a concept “regarding the
origin of life and matter” (i.e., the evolution of living things from
nonliving matter), not as an explanation of the gradual process for the
development of variations within the biological species of living things.
> In his closing remarks at the Apri! 1994 Board meeting at which
the disclaimer resolution was adopted, its proponent, E.F. Bailey,
suggested that a student confronted with an evolution-only curriculum
may well ask, “What about the other ideas? What about the other
concepts?,” or be compelled to accept as orthodox truth the only theory
presented as part of the school curriculum (“I don’t see how they could
help but do it.”), in the absence of a “mild disclaimer” which could
“once and for all put the thing in perspective for our students.” [Record
at 1492.] The idea Mr. Bailey was attempting to articulate was that
students who adhere to concepts of life’s origin other than evolution
should not be understood to be second-class citizens in the school
community. This objective is secular, not religious, and does not advance
religion, but instead advances the notion of tolerance — even if, in this
instance, it may be tolerance by a minority of a majority. The virtue of”
tolerance should flow in both directions.
4
Lemon test requiring a secular purpose.’ The district court
entered judgment accordingly, enjoining the reading of the
disclaimer in the Tangipahoa Parish public schools.
Petitioners appealed. In view of the district court’s ruling,
the briefing and oral argument before the Fifth Circuit panel
focused upon the issue of whether the resolution had a secular
purpose. On this issue, the Fifth Circuit agreed with the
Petitioners and concluded that the resolution served at least two
permissible secular purposes: (1) to disclaim any orthodoxy of
belief that could be inferred from the exclusive place of evolution
in the school curriculum; and (2) to reduce offense to the
sensibilities and sensitivities of students and parents caused by
the teaching of evolution.* The panel acknowledged “that local
school boards need not turn a blind eye to the concerns of -
students and parents troubled by the teaching of evolution in
public classrooms,” 185 F.3d at 346, App. B at 27a, and that the
secular objectives of the resolution are not rendered any less
permissible because the subject addressed is “religiously
charged” or the sensitivities and sensibilities accommodated
“religious in nature.” /d. at 345, App. B at 26a. Moving to the
_* Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91S. Ct. 2105, 2111
(1971). Under the three-part Lemon test, a state practice is
unconstitutional under the Establishment Clause if (1) it lacks a secular
purpose; (2) its principal or primary effect either advances or inhibits
religion; or (3) it excessively entangles government with religion.
* The Fifth Circuit panel determined that a third purpose urged
for the disclaimer — namely, to encourage informed freedom of belief
and critical thinking — was a “sham” because the disclaimer, as the
panel read it, actually sought to protect and maintain a particular
religious viewpoint. 185 F.3d at 344, App. B at 25a. The panel fell into
this error, however, because it misquoted and misread the text of the
resolution. This error was compounded when the panel relied upon it
in its analysis of the “effects” prong of the Lemon test, which is the
context in which this petition will address it. Although the panel
acknowledged its error upon denying the Petitioners’ petition for
rehearing en banc, the panel failed to amend its holding concerning
this third secular purpose in light of an accurate reading of the disclaimer.
5
next prong of the Lemon test — the “effects” prong — the panel
concluded “that the primary effect of the disclaimer is to protect
and maintain a particular religious viewpoint, namely belief in
the Biblical version of creation.” /d. at 346, App. B at 28a. The
panel thus affirmed the judgment of the district court, but on a
different theory.
Petitioners sought rehearing en banc. The Fifth Circuit
denied rehearing, but in a per curiam opinion, the panel first
admitted that “the panel opinion misquoted the disclaimer’s
language” and then observed that the error “does not affect the
outcome of this case.” 201 F.3d at 603, App. A at 2a. The opinion
is curious because, on the one hand, it appears to observe that
disclaimers as a general proposition are constitutionally
permissible (“In denying rehearing, we emphasize that we do
not decide that a state-mandated statement violates the
Constitution simply because it disclaims any intent to
communicate to students that the theory of evolution is the only
accepted explanation of the origin of life, informs students of
their right to follow their religious principles, and encourages
students to evaluate all explanations of life’s origins, including
those taught outside the classroom.” Jd.) — that is to say, the
School Board wins! But then on the other hand, the per curiam
opinion goes on to observe that there is something about the
School Board’s disclaimer that “under the facts and
circumstances of this case ... is not sufficiently neutral to
prevent it from violating the Establishment Clause,” id.° — that
is to say, the School Board loses!
The dissenting opinion identified correctly “the facts and
circumstances of this case” — specifically, a feature of the
Board’s disclaimer — that the Fifth Circuit majority deemed a
sufficient breach of Establishment Clause neutrality as to snatch
defeat for the Board from the jaws of victory. What are these
offending “facts and circumstances”? What is that offending
* The dissenting opinion refers to this observation of the panel as
“the disclaimer to the disclaimer.” 201 F.3d at 604, App. A at 4a.
6
feature of the Board’s disclaimer? The dissent observed:
“(I]t mentions the Bible.” Jd. at 604, App. A at Sa.° The dissent
explained that the disclaimer does so only to provide an
illustration of an alternative (“other”) concept of life’s origin,
id. at 607, App. A at 12a, and that the panel’s contrary reading
is “so erroneous and unwarranted it will be understood by some
as being nothing less than hostile toward religion.” /d. at 603,
App. A at 3a. The dissent thus concluded:
Based on my review of the record, the language
of the disclaimer, and the context in which it was
intended to be used, the primary effect of the
disclaimer is not to advance religion; instead, it is
to advance tolerance and respect for diverse
viewpoints. The record reflects that, to the
overwhelming majority of the parish’ students, the
scientific concept of evolution conflicts with their
(or their parents’ ) beliefs about the origin of life and
matter; and its exclusive place in the curriculum had
caused concern among students and parents. The
disclaimer’s message is one of respect for diverse
viewpoints, informing students that teaching
evolution as the sole concept for the origin of life
and matter is not intended to influence or dissuade
them from forming their own opinions about the
subject or from maintaining beliefs taught by their
parents.
In examining the disclaimer’s effect, the panel
erred by not considering the context in which the
disclaimer was intended to be used. In the parish
schools, evolution is taught; the “Biblical version
° See also id. at 606-07, App. A at 11a (the mention of the Bible is
“the hook on which the panel hangs its disclaimer to the disclaimer,
denial of rehearing hat’).
’ In Louisiana, a “parish” is the political subdivision whose
counterpart in the other forty-nine states is the county.
7
of Creation” is not! How can the effect of the
disclaimer be to endorse or advance a concept that
is merely mentioned, using only four words, when
evolution is the only concept for the origin of life
and matter that is included in the curriculum, the
only one that will be explained and discussed in any
lesson following the disclaimer’s being read?
Understood and considered in the context in
which it is intended to be used, the disclaimer
expresses tolerance for the views of all students.
A student who adheres to the concept of evolution
and does not adhere to the Biblical version of
creation is taught evolution; told the curriculum is
not meant to disparage other concepts, including the
Biblical version; and encouraged to think critically.
Likewise, a student who adheres to the Biblical
version and believes it to conflict with the concept
of evolution is taught evolution; told the curriculum
is not meant to disparage other concepts; and
encouraged to think critically.
... [T]he panel has transformed neutrality into
intolerance.
Id. at 607-08, App. A at |2a-14a (footnote added).
8
REASONS FOR GRANTING THE WRIT
I. THE ISSUE PRESENTED IN THIS CASE IS OF
EXCEPTIONAL IMPORTANCE TO STUDENTS,
PARENTS, AND EDUCATORS, AND PROVIDES AN
HISTORIC OPPORTUNITY FOR THIS COURT TO
QUELL THE PERSISTENT CONTROVERSY THAT
ATTENDS THE TEACHING OF EVOLUTION IN
THE NATION’S PUBLIC SCHOOLS.
This case involves a question of exceptional importance
— namely, whether a School Board inay act to reduce the
possibility of offense occasioned by the teaching of evolution
in public schools without running afoul of the Establishment
Clause. The dissent from the Court of Appeals’ denial of
rehearing en banc highlighted the importance of the issue,
observing:
For the second time in less than a year, our court
has refused to grant rehearing en banc to consider
application of the Establishment Clause of the First
Amendment to issues of exceptional importance to
students, parents, and educators. See Doe v. Santa
Fe Indep. Sch. Dist., 168 F.3d 806 (holding
unconstitutional, inter alia, student-led prayers
before football games), reh'g denied, 171 F.3d 1013
(Sth Cir.), cert. granted, __ U.S. __., 120 S. Ct.
494, 145 L. Ed. 2d 381 (1999).
Freiler, 201 F.3d at 603, App. A at 3a (emphasis added). This
Court apparently agreed with the dissent’s assessment of the
importance of the issue in Doe v. Santa Fe (a school district
policy concerning student-led prayers as a violation of the
Establishment Clause under Lemon's “purpose” prong), because
this Court granted review in that case. This Court should accept
the dissent’s assessment of the importance of the issue presented
in this case as well, especially since this case poses the
opportunity to address the “effects” prong of Lemon in the
context of the School Board's disclaimer policy (a different and
9
equally vital Establishment Clause issue from the one presented
in Doe v. Santa Fe). That the Fifth Circuit was so deeply divided
over the disclaimer policy (voting 8 to 7 to deny rehearing)*
also demonstrates the exceptional importance of the issue
presented in this case.
The command of the Establishment Clause is that
government may neither teach religious tenets nor compel
religious beliefs. Government must, in short, remain neutral on
the validity of religious claims about such profound issues as
the origin of life. This does not require the government to move
in the direction that the Kansas Board of Education recently
did, excising evolution from statewide standardized testing —
an action that sparked a national furor.’ Left unaddressed, this
controversy, which has long accompanied the teaching of
* Notably, one of the judges voting in the majority to deny
rehearing was a senior judge who was a member of the panel that
originally decided the case. By Fifth Circuit rule, such a senior judge
is allowed to participate in the vote on an en banc poll. Stu Cir. R.
35.6. Otherwise, the vote would have been evenly divided at 7 to 7.
Thus, if the panel had been composed of three of the judges joining
the dissent rather than three from the majority, the equally divided
en banc vote would have sustained the disclaimer. Resolution of an
issue of this importance should not be left to hinge on the draw of
an appellate panel.
* Kansas Eliminates Evolution From Public School Curricula,
Wash. Post, Aug. 12, 1999, at A13; Evolution Falls From Curriculum,
N. Orleans Times-Picayune, Aug. 12, 1999, at A21; God and Man
in Kansas, Wall St. J., Aug. 13, 1999, at W11; Gill, Scientific Truth
v. Religious Dogma, N. Orleans Times-Picayune, Aug. 15, 1999, at
B7, Evolution and Kansas, Wash. Post, Aug. 16, 1999, at Al4;
Johnson, The Church of Darwin, Wall St. J., Aug. 16, 1999, at Al4;
Teepen, Maybe Kansas Isn't With Us Anymore, N. Orleans Times-
Picayune, Aug. 18, 1999, at B7; Goodman, The Darwin Dumpers of
Kansas, N. Orleans Times-Picayune, Aug. 19, 1999, at B7; Richards,
Darwinism and Design, Wash. Post, Aug. 21, 1999, at A19; Gould,
Dorothy, It's Really Oz, Time, Aug. 23, 1999, at 59.
10
volution in public schools, shows no signs of receding. '° By
re same ams the neutrality required by the Establishment
Clause does not require the invalidation of the policy at issue
here, which simply authorizes a short statement to be read before
the teaching of evolution — a statement which, in part, recites
that evolution should be taught, all in conformity with this
Court's ruling in Edwards v. Aguillard, 482 U.S. 578, 107
S. Ct. 2573 (1987). The intent of this statement was to clarify
that the School Board does not disparage anyone's faith, but
simply encourages critical thinking and reflection about one of
the most profound questions in the interaction of religion and
science.
The Board respectfully submits that this Court's reversal
of the panel opinion, reinstating the disclaimer policy, would
prove an historic step in quelling the controversy. Reinstatement
of this moderate policy will allow evolution to be taught in the
Tangipahoa Parish public schools with minimal offense, simply
by allowing governmental acknowledgment of the people s
inalienable right to form their own opinions concerning the issue
of life’s origin.
This is not a case about the relative merits of creationism
versus evolution. It is not Scopes Revisited'' or even Aguillard
10 Poll: Americans Accept Evolution and Creationism, N. Orleans
Times-Picayune, Mar. 11, 2000, at Al (reviewing results of poll
concerning the teaching of evolution in public schools, quoting several
scientists that public acceptance of both evolution and creation as
theories of life’s origin is “logically inconsistent” because they represent
“incompatible world views”, and noting that the debate over teaching
evolution in public schools “shows no sign of cooling given the action
of the Kansas board of education in 1999); Origin Theories Poll Finds
Support, Associated Press, Mar. 11, 2000, 2000 WL 15788586, Wash.
Times, Mar. 11, 2000, at A2.
" Scopes v. State, 154 Tenn. 105, 289 S.W. 363 (1927). Of course,
notwithstanding the popular misconceptions of the famous “monkey
trial,” at least as portrayed in the legendary version of the play and
(Cont'd)
1]
Redux.’ Instead, it is a case about a School Board’s effort to
create a classroom environment comfortable enough for ail
students to learn what they should learn. To be sure. the
disclaimer does take into account the sensibilities of students
who may be adherents of religious views ostensibly in conflict
with the theory of evolution. But it does so to avoid the
dissonance for these students occasioned by the teaching of
evolution and to disclaim any message of official orthodoxy,'
which could be perceived by evolution’s exclusive place in the
curriculum. Thus, the School Board saw fit to require the reading
of a disclaimer which recognized both that evolution would be
taught in the school system and that, in doing so, the Board did
not mean to dictate to students what they should believe
concerning life’s origin.
This Court has not often been called upon to address issues
concerning the controversy over the teaching of evolution in
(Cont'd)
movie Inherit the Wind, Mr. Scopes was convicted and fined a
nominal amount under the statute at issue. On appeal, the Tennessee
supreme court overturned the fine on a technicality but held that the
Statute, which prohibited the teaching of evolution, was
constitutional. For an engaging and Pulitzer Prize-winning account
of the Scopes trial and its significance, see E. Larson, SUMMER FOR
THE Gops (1997). Forty years elapsed after Scopes before this Court
in Epperson v. Arkansas, 393 U.S. 97, 89 S. Ct. 266 (1968),
invalidated a statute that forbid the teaching of evolution in public
schools.
° Edwards v. Aguillard, 482 U.S. 578, 107 S. Ct. 2573 (1987)
(invalidating Louisiana’s Balanced Treatment Act, which required
that creation science be taught if evolution were taught, or that
evolution not be taught at all).
'’ West Virginia State Board of Ed. v. Barnette, 319 U.S. 624,
641, 63 S. Ct. 1178, 1186 (1943) (“Probably no deeper division of
our people could proceed from any provocation than from finding it
necessary to choose what doctrine and whose program public
educational officials shall compel youth to unite in embracing.”).
12
public schools, but it has not recoiled from doing so to resolve
issues of exceptional importance raised by attempts to deal with
the controversy. Thus, the Court acted to strike down statutes
that criminalized the teaching of evolution and that required
the teaching of creation science to balance the teaching of
evolution in public schools. In a very real sense, Freiler
represents the third and crucial case in the trilogy of cases
— along with Epperson and Aguillard — that will bring a
balanced constitutional order (and perhaps peace) to the
controversy. Epperson and Aguillard required this Court to
strike down statutes attempting to address the controversy
in an unconstitutional manner. In contrast, Freiler presents
this Court with an opportunity to uphold a reasonable,
balanced and constructive means of dealing with the thorny
and persistent issue posed by the teaching of evolution in
public schools, thereby facilitating a truce in this alleged
battle between faith and science. Accordingly, because of
the exceptional importance of the issue posed in this case,
this Court should grant the petition for a writ of certiorari.
Il. THE COURT OF APPEALS’ DECISION THAT THE
DISCLAIMER POLICY ENDORSES RELIGION,
OR HAS THE IMPERMISSIBLE EFFECT OF
ADVANCING RELIGION, WAS WRONG.
Originally, the School Board thought this simple case
would afford federal courts an opportunity to bring a large
dose of moderation and common sense to interpretations of
the purpose prong of the Lemon test. And that it has done,
with the panel’s reversal of the district court’s conclusion
that the disclaimer was without a permissible secular purpose.
But the panel itself fell into error in applying the “effects’
prong of the Lemon test. And the en banc Fifth Circuit has
declined to correct the error. Accordingly, this case now
_ presents this Court with an opportunity to bring clarity and
moderation to interpretations of the “effects” prong — an
13
area of Establishment Clause jurisprudence of increasing
importance. '*
A. The disclaimer policy does not have the principal
or primary effect of advancing religion.
The Fifth Circuit panel misread (and actually misquoted)
the text of the disclaimer resolution. The first sentence of the
third paragraph of the resolution recites the School Board’s
acknowledgment “that it is the basic right and privilege of each
student to form his/her own opinion or [not ‘and’ as the panel
quoted] maintain beliefs taught by parents on [the] . . . matter
of the origin of life and matter.” The distinction between use of
the disjunctive as opposed to the conjunctive was in the first
instance critical for the panel. Thus, in rejecting as a sham the
proffered purpose of encouraging critical thinking, the panel
emphasized the disclaimer’s recognition of the right to “maintain
beliefs” but, by misquoting the disclaimer, the panel negated
the disclaimer’s recitation of the parallel and separate right to
“form opinions.” Critical thinking is essential to the latter but it
was wholly ignored as a legitimate purpose by the panel due to
the panel’s mistakenly selective quotation of the resolution.'®
It is true then, as the panel observed, that from the disclaimer’s
wording, “school children hear that evolution as taught in the
classroom need not affect what they already know,” 185 F.3d at
345, App. B at 25a (emphasis added), but they also hear
(although the panel failed to recognize it) that it can!
The Fifth Circuit panel’s misreading of the text of the
resolution also directly led to its erroneous conclusion that
'* See, e.g., Simmons-Harris v. Zelman, 72 F. Supp. 2d 834
(N.D. Ohio 1999) (invalidating Cleveland's voucher program as having
the effect of advancing religion), appeal docketed, No. 00-3055 (6th
Cir. Jan. 12, 2000). See also cases cited infra at note 19.
'S Regardless, if a belief, even a preexisting one, is to be informed,
then critical thinking is just as essential to its “maintenance” — that is,
to its surviving the scrutiny attending any challenge to it by competing
ideas — as to its formation.
14
“the primary effect of the disclaimer is to protect and ‘maintain a
particular religious viewpoint, namely belief in the Biblical version
of creation.” Jd. at 346, App. B at 28a (emphasis added). Contrary
to the panel’s holding, adoption of the disclaimer resolution
presented “no realistic danger that the community would think
that the [School Board] was endorsing religion or any particular
creed, and any benefit to religion or to the Church would have
been no more than incidental.” Lamb’s Chapel v. Center Moriches
Union Free School Dist., 508 U.S. 384, 395, 113 S. Ct. 2141 ; 2148
(1993). The principal or primary effect of the disclaimer is to
communicate to students that they are free to form their own
opinions or maintain beliefs taught by parents concerning the issue
of life’s origin. Students are encouraged to investigate the issue
and to engage in critical thinking in drawing conclusions.
In other words, the disclaimer resolution does not advance
religion but advances freedom of thought, as well as sensitivity
to and tolerance for diverse beliefs in a pluralistic society.
Thus, one factor cited by the Fifth Circuit panel for its
holding (viz., the reminder that students have the right to
maintain beliefs taught by their parents regarding the origin of
life) springs directly from ihe panel’s misquoting of the
disclaimer, reading “or” as “and.” A second factor cited by the
panel (viz., that the disclaimer “encourages students to read and
meditate upon religion in general and the ‘Biblical version of
Creation’ in particular”) similarly springs from a further
misreading of the resolution. The disclaimer encourages
examination of “each alternative” theory of life's origin
(including evolution itself), not merely alternatives “to
evolution” as the panel suggested. Thus, to arrive at its
conclusion that students are encouraged to read and meditate
upon religion, the panel was forced to rewrite the language of
the resolution, and then to assume that all “alternatives to
evolution” are religious in nature.'®
‘6 Of course, nonreligious theories of life’s origin include the Big
Bang theory and the theory of panspermia, as well as evolution. Freiler,
201 F.3d at 607, App. A at 12a.
15
Finally, in citing use of the phrase, “Biblical version of
creation,” as the third factor underlying its holding that the
disclaimer has the effect of advancing religion, the Fifth Circuit
panel failed to appreciate the phrase as a widely understood
illustration, rather than endorsement of an alternative theory.
For the Board’s Tangipahoa Parish constituency, the illustration
lent meaning to the general phrase “other concepts” that follows
it in the resolution." It is perfectly permissible under the law
for references to the “Bible” to be made for illustrative
purposes in legislation, regulation and other governmental
pronouncements. See, e.g., Hartman v. Stone, 68 F.3d 973, 977
& n.1 (6th Cir. 1995) (denoting regulation’s reference to “Bible”
as illustrative only).'*
Of course, many, but not all, competing notions about life’s
* origin may be deemed religious in nature. But any benefit to
religion conveyed by the resolution is incidental to the
government's policy of teaching evolution and simultaneously
assuring students of their freedom to believe as they see fit as
regards this sensitive issue — a disclaimer of orthodoxy that is
secular, religion-neutral and soundly constitutional.
See Rosenberger v. Rector & Visitors of University of Virginia,
515 U.S. 819, 115 S. Ct. 2510, 2524 (1995) (decrying “specter
of governmental censorship, to ensure that all student writings
and publications meet some baseline standard of secular
orthodoxy”); Corporation of the Presiding Bishop of the Church
" What may be an apt illustrative reference in one area of the
country (e.g., Utah), may not be so in another area (e.g., an Indian
reservation). In other words, the predominant religious or cultural beliefs
of the audience may suggest that a different illustration may more readily
provide content to a general phrase used in legislation, regulation or
other governmental pronouncements. But the illustration itself does not
amount to an “establishment” of the religion whose theory or sacred
text happens to be used in illustration.
'* Another example is President Clinton’s July 1995 speech
regarding “religious expression in public schools,” in which he used
the term “Bible” for illustrative purposes. See Record at 1514.
16
of Jesus Christ of Latter Day Saints v. Amos, 483 USS. 327,
337, 107 S. Ct. 2862, 2869 (1987) (“A law is not unconstitutional
simply because it allows churches to advance religion. . . . For
a law to have forbidden ‘effects’ under Lemon, it must be fair to
say that the government itself has advanced religion through its
own activities or influence.”); West Virginia State Board of Ed.
v. Barnette, 319 U.S. at 642, 63 S. Ct. at 1187 (“If there is any
fixed star in our constitutional constellation, it is that no official,
high or petty, can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion or force citizens
to confess by word or act their faith therein.”). In enacting the
disclaimer resolution, the School Board simply acted to avoid
a specter of a “baseline standard of secular orthodoxy,” and
such action did not have the principal or primary effect of
advancing religion.
The disclaimer resolution at issue here does not discredit
evolution but affirms that evolution should be taught. It does
not encourage belief in religious alternatives, but acknowledges
that students may have such beliefs or adhere to “other concepts
concerning the origin of life and matter. The resolution merely
communicates a message that the authority of the state in
- teaching evolution is not to be construed as disapproval of those
who adhere to concepts different from evolution. In other words,
the resolution was intended to remove indirect coercive pressure
upon nonadherents to the theory of evolution to conform to
what might otherwise be perceived as the prevailing officially
approved theory incorporated into the school curriculum.
Such a design has a sound constitutional foundation.
Cf. Engle v. Vitale, 370 U.S. 421, 82 S. Ct. 1261 (1961)
(indicating government is to avoid requiring conformance to
any such orthodoxy); Bethel School District No. 403 v. Fraser,
478 U.S. 675, 681, 106 S. Ct. 3159, 3163 (1986) (“public
education must prepare pupils for citizenship in the Republic”
by taking “into account consideration of . . . the sensibilities of
fellow students”).
17
Moreover, to run afoul of Lemon's second prong, the
resolution must be construed to have the principal or primary
effect of advancing religion. But the primary effect of the
resolution is to advance the secular purposes upheld by the Fifth
Circuit — namely, to disclaim orthodoxy and to encourage
sensitivity to and tolerance for diverse beliefs in a pluralistic
society. Any benefit to religion conferred by the resolution is
incidental to the advancement of these approved purposes.'”
In this case, the Fifth Circuit recognized a legitimate
purpose for the disclaimer policy, but invalidated the policy
" See also Koenick v. Felton, 190 F.3d 259, 267 (4th Cir. 1999)
(holding that Good Friday as legal holiday did not advance religion;
“A statute whose primary effect is to advance a secular purpose, rather
than a religious one, is still constitutional even if it conveys an incidental
benefit to those of a specific religion.”), cert. denied, 120 S. Ct. 938
(2000); Bridenbaugh v. O'Bannon, 185 F.3d 796, 802 (7th Cir. 1999)
(same holding; observing that “any benefit to religion flowing from the
Good Friday holiday is indirect, remote and incidental to the primary
secular purpose for the holiday”), cert. denied, 120 S. Ct. 1267 (2000):
Granzeier v. Middleton, 173 F.3d 568, 575-76 (6th Cir. 1999) (same
holding, observing that policy of school closings on reiigious holidays
was not “for religious reasons” but rather constituted “a secular
recognition of the practicalities of school or court attendance that might
otherwise be disrupted”); id. at 578 (concurring opinion noting with
respect to the holiday “that particular circumstances of religious
significance are intertwined with secular considerations” so as to avoid
constitutional infirmity); ACLU v. Schundler, 168 F.3d 92 (3d Cir. 1999)
(holding that holiday display communicated “message of pluralism and
freedom to choose one’s own beliefs,” offering no greater aid to religion
than forms of aid to students attending church-related schools and
colleges, tax exemptions for church property, Sunday Closing laws,
“release time” programs, and legislative prayers previously upheld by
Supreme Court); Bown v. Gwinnett County School Dist., 112 F.3d 1464,
1472-73 (11th Cir. 1997) (statute requiring period of quiet reflection in
public schools did not have principal or primary effect of advancing
religion); Ganulin v. United States, 71 F. Supp. 2d 824, 833-35
(S.D. Ohio 1999) (holding that Christmas Day as legal holiday did not
advance religion).
18
because of its perceived “effect.” There is no evidence in the
record for this conclusion because the disclaimer has never been
read. This conclusion, in short, is conclusory, based on a surmise
or a fear or what might happen if the disclaimer were ever read.
Thus, the plaintiffs’ challenge to the disclaimer resolution isa
facial challenge, not an “as applied” challenge. The “effects
prong of the Lemon test is susceptible to misuse by courts,
allowing them to leap from a permissible peapets to on
impermissible effect that has never been observed.*' That courts
are free to do so under the Lemon test marks one of its
weaknesses. In making the leap to strike down the disclaimer
resolution in this case, the Fifth Circuit erred. The disclaimer
resolution does not transgress Lemon's second prong.
B. The disclaimer resolution does not endorse religion.
Government action that is “simply a tolerable
acknowledgment of beliefs widely held among the people of
this country” is not an unconstitutional “establishment” of
religion. Marsh v. Chambers, 463 U.S. 783, 792, 103 S. Ct.
3330, 3336 (1983). In Lynch v. Donnelly, the Supreme Court
20 A facial challenge requires that courts must not condemn the
i i implement it in a
challenged policy unless there is no way to Imp
constitutional manner. See United States v. Salerno, 481 U.S. 739, 745,
107 S. Ct. 2095, 2100 (1987) (“A facial challenge to a legislative Act
is. of course, the most difficult challenge to mount successfully, since
the challenger must establish that no set of circumstances exists unde:
which the Act would be valid.”); Jones v. Clear Creek Ind. Sch. Dist.
(“Clear Creek IT’), 977 F.2d 963, 969 (Sth Cir. 1992), cert. denied, 508
U.S. 967 (1993).
2! If empirical observation is a hallmark of science, see K. Popper,
Tue Loaic oF Scientiric Discovery (1959); C. HEMPEL, Pusosorey OF
NATURAL SCIENCE (1966), then cases like this one, applying the “effects
prong of the Lemon test in the absence of any experience, are no better
support for the aphorism that jurisprudence 1s more art than science.
Justice Holmes would be disappointed. O. HoLMEs, THE Common Law
5 (1963) (“The life of the law has not been logic; it has been
experience.”).
19
instructed that “taking official note of . . . our religious heritage”
is not an unconstitutional endorsement of religion. 465 U.S.
668, 686, 104 S. Ct. 1355, 1366 (1984).” Because the disclaimer
resolution on its face recognizes freedom of belief for adherents
to both secular and religious theories, it is clear that the
resolution neither endorses nor disapproves of religion, but
merely “tak[es] official note of” religious and other theories of
life's origin. At most, this is acknowledgment, not endorsement.
In County of Allegheny v. ACLU, this Court collapsed the
first and second prongs of the Lemon test into the single inquiry
of “whether the challenged governmental practice either has
the purpose or effect of ‘endorsing’ religion.” 492 U.S. 573,
592 , 109.S. Ct. 3086, 3100 (1989).
A government statement “that religion or a particular
religious belief is favored or preferred,” . . . violates
the prohibition against establishment of religion
because such “[e]ndorsement sends a message to
non-adherents that they are outsiders, not full
members of the political community, and an
accompanying message to adherents that they are
insiders, favored members of the community.”
Capitol Square Review & Advisory Board y. Pinette, 515 U.S.
753, 773, 115 S. Ct. 2440, 2452 (1995) (citations omitted).
The key in determining whether a particular government
action has the effect of endorsing religion is an analysis of the
action from the perspective of a “reasonable observer.” Not a
mere casual passerby, this reasonable observer is deemed to be
aware of the history and context of the community and forum
* See also Florey v. Sioux Falls School Dist.,619 F.2d 1311, 1318-
19 (8th Cir.) (upholding school board policy regarding observance of
holidays, religious and secular, observing that schools should use
religious holiday observances to foster among students and parents
mutual respect for and understanding of diverse cultural, ethnic and
religious backgrounds represented in society), cert. denied, 449 US.
987 (1980).
20
in which the action takes place. In this case, the reasonable
observer would be deemed aware of the Bible’s religious
significance and the school system’s-connection with
government, as well as the required place of evolution in the
school system’s curriculum and the history of controversy
sparked by the teaching of evolution in public schools in
America. The reasonable observer would also be deemed aware
of the divergence of beliefs among people in Tangipahoa Parish
concerning life’s origin.
With this knowledge, no reasonable observer could mistake
the wording of the disclaimer resolution as an impermissible
“endorsement” of religion. The disclaimer expressly advises
students of their “right and privilege . . . to form his/her own
opinion or maintain beliefs taught by parents [concerning] the
origin of life and matter,” with the admonition that “[s]}tudents
are urged to exercise critical thinking and gather all information
possible and closely examine each alternative toward forming
an opinion.” The resolution does not prefer or favor a religious
view of life’s origin over secular views of life’s origin. Nor
does it endorse the Biblical version of creation over evolution.
While the resolution does disclaim an official evolution-only
orthodoxy, it does not in any way denigrate or disfavor the
concept of evolution within the sphere of ideas, theories, beliefs
or opinions that students may choose to hold.. Rather, a
reasonable observer would read or hear the disclaimer as
affirming his or her freedom to make that individual choice.
This case is particularly well suited to an application of the
endorsement test, because the Fifth Circuit held that the
disclaimer resolution had at least two permissible secular
purposes but also held that the resolution nevertheless had the
impermissible effect of advancing religion. If the secular
purposes are not rendered any less permissible because the
subject addressed is “religiously charged” or the sensibilities
accommodated “religious in nature,” Freiler, 185 F.3d at 345,
App. B at 26a, how can the resolution be said to have the
impermissible effect of advancing religion? Because the
2)
endorsement test merges the first and second prongs of the
Lemon test into a single inquiry, review of the Fifth Circuit's
disposition of the disclaimer resolution presents this Court with
an opportunity for advancement of the endorsement test. The
School Board is confident that the endorsement test will prove
particularly appropriate in a case such as this one where the
disclaimer resolution’s purposes and its theoretical effects are
not meaningfully distinguishable.
In short, the School Board submits that the central message
of the disclaimer resolution is that there are no outsiders or
insiders, no one who is favored or disfavored, on the issue of
life’s origin, but persons of all viewpoints are full members in
the school community. The resolution forces no student to
adhere to a particular theory concerning the origin of life and
matter, and the mere mention of “the Biblical version of
creation” by way of illustration does not present a significant
risk of perceived “endorsement” of Bible-based religion in light
of the general context in which the “reasonable student” or other
reasonable observer will hear and perceive the disclaimer.
Accordingly, this case presents this Court with the opportunity
of further explaining its “endorsement test” by applying the
test to sustain the constitutionality of the School Board’s
disclaimer policy.”
* This Court's coercion test is not implicated by the disclaimer
resolution because it does not involve “a formal religious exercise.”
See Doe v. Santa Fe, 168 F.3d at 814 (citing Lee v. Weisman, 505 U.S.
577, 112 S. Ct. 2649 (1992); Clear Creek H, 977 F.2d at 970).
22
Ill. THE FIFTH CIRCUIT PANEL’S APPLICATION OF
LEMON’S “EFFECTS” PRONG STANDS IN
CONFLICT WITH PRIOR DECISIONS OF THIS
COURT, OTHER CIRCUITS, AND THE FIFTH
CIRCUIT ITSELF.
In its application of the “effects” prong of the Lemon test
to the School Board’s disclaimer policy, the Fifth Circuit panel's
decision conflicts with Establishment Clause principles set forth
in this Court’s decision in Agostini v. Felton, 521 U.S. 203, | 17
S. Ct. 1997 (1997), and the Fifth Circuit's prior decisions in
Jones v. Clear Creek Independent School Dist., 977 F.2d 963
(Sth Cir. 1992) (“Clear Creek IT’), cert. denied, 508 U.S. 967
(1993), and Helms v. Picard, 151 F.3d 347 (Sth Cir. 1998),
cert. granted sub nom. Mitchell v. Helms, 119 S.Ct. 2336 ( 1999).
The dissent from the denial of rehearing agreed, explaining:
_.. | joined the dissent from the denial of rehearing
in Santa Fe, and respectfully dissent from this denial,
because | believe our court’s recent Establishment
Clause jurisprudence is not only inconsistent with
Supreme Court precedent, as well as ours, but is also
so erroneous and unwarranted it will be understood
by some as being nothing less than hostile toward
religion.
Freiler, 201 F.3d at 603, App. A at 3a (citing Doe v. Santa Fe
Independent School Dist., 168 F.3d 806, reh'g denied, 171 F.3d
1013 (Sth Cir.), cert. granted, 120 S. Ct. 494 (1999);
Doe v. Beaumont Independent School Dist., 173 F.3d 274,
reh'g granted, 173 F.3d 313 (Sth Cir. 1999)).
The Fifth Circuit panel's application of the “effects” prong
to strike down the disclaimer is at odds with the ruling of another
panel of the Fifth Circuit in Clear Creek II that a school policy
“can only advance religion by increasing religious conviction
among [school] attendees, which means attracting new believers
or increasing the faith of the faithful.” 977 F.2d at 967. The
disclaimer at issue here does neither because it does not
23
teach or inculcate anything religious. Like the prayer at issue in
Clear Creek II, “no one would likely expect the advancement
of religion by the initiation or increase of religious faith through”
the reading of the disclaimer. /d. ‘Instead, the disclaimer
communicates a message of acceptance and tolerance to all
members of the school community no matter their view of life’s
onigin. Thus, as in Clear Creek II, the resolution’s primary effect,
like its purpose, is secular.
Further, because the disclaimer affords, on a neutral basis,
tolerance and acceptance to adherents of all views of life’s origin,
and makes such acceptance “available to both religious and
secular beneficiaries on a nondiscriminatory basis,” the
disclaimer is like the nonindoctrinating financial aid for the
programs upheld in Agostini, 117 S. Ct. at 2014-16, and Helms,
151 F.3d at 357-59, 363-66. As a consequence, the disclaimer
does not have the effect of advancing religion, nor of creating
an excessive entanglement. In this sense, the Fifth Circuit panel's
decision in Freiler stands in conflict with Agostini and Helms.*4
Finally, the panel's application of the “effects” prong is
inconsistent with the jurisprudence of other Circuits establishing
that governmental action “whose primary effect is to advance a
secular purpose, rather than a religious one, is still constitutional
even if it conveys an incidental benefit to . . . religion.” Koenick
v. Felton, 190 F.3d at 267. See cases collected supra note 19.
Thus, the Fifth Circuit's reasons for striking down the
disclaimer resolution as an establishment of religion conflict
with prior decisions of both this Court, other Circuits, and the
Fifth Circuit itself holding that an incidental benefit to religion
does not amount to an advancement of religion. The petition
* The panel's decision also runs counter to the Fifth Circuit’s own
admonition in Doe v. Duncanville Independent School Dist.,
70 F.3d 402, 406 n.4 (Sth Cir. 1995), that the Establishment Clause
does not prevent a school system “from treating students’ religious
beliefs and practices with deference and respect; indeed, the constitution
requires this.”
24
for a writ of certiorari should be granted to correct the Fifth
Circuit's erroneous interpretation and to maintain uniformity
with this Court’s decisions.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
Barry W. ASHE
Counsel of Record
WituiaM D. TrREEeBy
STONE, PIGMAN, WALTHER,
WITTMANN & Hutcuinson, L.L.P.
546 Carondelet Street
New Orleans, Louisiana 70130
(504) 581-3200
KENNETH F. SiLts
HAMMOND & SILLS
1111 South Foster Drive
Baton Rouge, Louisiana 70806
(225) 923-3462
CHRISTOPHER M. Moopy
CasHe, Lewis, Moopy & CoupraIn
106 South Magnolia Street
Hammond, Louisiana 70404
(504) 542-6848
Attorneys for Petitioners
APPENDIX
APPENDIX A — OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
DENYING PETITION FOR REHEARING
DATED AND FILED JANUARY 24, 2000
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Nos. 97-30879, 98-30132
HERB FREILER; SAM SMITH, Individually and in his
capacity as Administrator of the Estate of his minor child
Steven Smith; JOHN JONES,
Plaintiffs-Appellees,
V.
TANGIPAHOA PARISH BOARD OF EDUCATION; E.F.
BAILEY; ROBERT CAVES; MAXINE DIXON; LEROY
HART; RUTH WATSON; DONNIE WILLIAMS, SR.; ART
ZIESKE, Individually and in their Capacities as members of
the School Board; TED CASON, Individually and in his
capacity as Superintendent of Schools,
Defendants- Appellants.
Appeals from the United States District Court for the
Eastern District of Louisiana, New Orleans
ON PETITION FOR REHEARING EN BANC
(Opinion 8/13/99, Sth Cir., 1999, 185 F.3d 337)
2a
Appendix A
Before KING, Chief Judge, and POLITZ and BENAVIDES,
Circuit Judges.
PER CURIAM:
The School Board contends that the panel opinion
misquoted the disclaimer’s language, substituting and for
or in a disclaimer passage. The School Board is correct. The
particular passage as stated in the disclaimer reads as follows:
“It is further recognized by the Board of Education
that it is the basic right and privilege of each
student to form his/her own opinion or inaintain
beliefs taught by parents on this very important
matter of the origin of life and matter.”
The improper substitution of “and” for “or” does not
affect the outcome of this case.
In denying rehearing, we emphasize that we do not
decide that a state-mandated statement violates the
Constitution simply because it disclaims any intent to
communicate to students that the theory of evolution is the
only accepted explanation of the origin of life, informs
students of their right to follow their religious principles,
__ and encourages students to evaluate all explanations of life’s
origins, including those taught outside ‘the classroom. We
decide only that under the facts and circumstances of this
case, the statement of the Tangipahoa Parish School Board
is not sufficiently neutral to prevent it from violating the
Establishment Clause.
3a
Appendix A
Treating the Petition for Rehearing En Banc as a Petition
for Panel Rehearing, the Petition for Panel Rehearing is
DENIED. The court having been polled at the request of
one of the members of the court and a majority of the judges
who are in regular active service not having voted in favor
(Fed.R.App.P. and Sth Cir. R. 35), the Petition for Rehearing
En Banc is DENIED.
RHESA HAWKINS BARKSDALE, Circuit Judge, joined
by E. GRADY JOLLY, PATRICK E. HIGGINBOTHAM,
EDITH H. JONES, JERRY E. SMITH, EMILIO M.
GARZA and HAROLD R. DeMOSS, JR., Circuit Judges,
dissenting from the denial of rehearing en banc:
For the second time in less than a year, our court has
refused to grant rehearing en banc to consider application of
the Establishment Clause of the First Amendment to issues
of exceptional importance to students, parents, and educators.
See Doe v. Santa Fe Indep. Sch. Dist., \68 F.3d 806 ( holding
unconstitutional, inter alia, student-led prayers before
football games), reh 'g denied, 171 F.3d 1013 (Sth Cir.), cert.
granted, _U.S. __, 120 S. Ct. 494 (1999). I joined the
dissent from the denial of rehearing in Santa Fe, and
respectfully dissent from this denial, because | believe our
court’s recent Establishment Clause jurisprudence is not only
inconsistent with Supreme Court precedent, as well as ours,
but is also so erroneous and unwarranted it will be understood
by some as being nothing less than hostile toward religion.
See id.; Doe v. Beaumont Indep. Sch. Dist., 173 F.3d 274,
reh'g granted, 173 F.3d 313 (Sth Cir. 1999).
4a ~
Appendix A
The panel strikes down a disclaimer from endorsement
of the theory of evolution (the disclaimer), required to be
read in Tangipahoa Parish schools at the start of a lesson on
evolution. Freiler v. Tangipahoa Parish Bd. of Educ., \85
F.3d 337 (Sth Cir. 1999). Among other things, the disclaimer
advises students that the lesson is “presented to inform [them]
of the scientific concept and not intended to influence or
dissuade the Biblical version of Creation or any other
concept”. The panel holds the disclaimer unconstitutional
for not being neutral. Id. at 345-48.
But, in seeking to enforce constitutionally mandated
neutrality, the panel has strayed, no doubt unintentionally,
onto a path of intolerance. See Lynch v. Donnelly, 465 U.S.
668, 673 (1984) (“Nor does the Constitution require complete
separation of church and state; it affirmatively mandates
accommodation, not merely tolerance, of all religions, and
forbids hostility toward any”). Unfortunately, notwithstanding
this case being one of “exceptional importance”, as well as
there being the necessity “to secure or maintain uniformity
of [our] court’s decisions”, the very fodder for granting en
banc rehearing pursuant to Fep. R. App. P. 35(a), our court
does not think it necessary.
Immediately preceding this dissent 1s the statement
crafted by the panel to explain why the disclaimer fails.
Surely, that is the role of the opinion. In any event, this vague,
good news for everyone statement (the disclaimer to the
disclaimer) may provide comfort to those members of our
court reluctant to allow en banc rehearing. We are now
seemingly assured that, in general, disclaimers somewhat
similar to the one at issue are constitutionally permissible,
Sa
Appendix A
but informed that, “under the facts and circumstances of this
case, the statement of the Tangipahoa Parish School Board
is not sufficiently neutral to prevent it from violating the
Establishment Clause”.
| With all due respect to the panel, this disclaimer to the
disclaimer, while possibly being the balm necessary to save
this case from being reheard en banc, does far more harm
than good. For this extremely important and sensitive area
of the law and of life, it does nothing but muddy the waters
even more. (For starters, what does “not sufficiently neutral”
mean?) Someone trying to harmonize the panel’s holding
about the disclaimer and its disclaimer to the disclaimer could
conclude, quite justifiably, that the disclaimer does not pass
muster because of one simple fact: it mentions the Bible.
Whether that be the panel’s holding, or that be the reader’s
conclusion, there is consistency in one sense — each result
should be of great concern to our court. Sadly, it does nor
appear to be so.
The now-operative disclaimer to the disclaimer was
prompted by the panel holding that the Establishment Clause
does not permit a teacher, at the start of a lesson on evolution,
to read a statement informing students that the lessons are
not intended to dissuade their beliefs in alternative concepts
of the origin of life and matter; urging them to think critically
about evolution and such alternative concepts; and reminding
them of their right to form their own opinions or to maintain
beliefs taught by their parents. (Interestingly, what the
disclaimer to the disclaimer suggests would be permissible
tracks the disclaimer quite closely.)
6a
Appendix A
The disclaimer is required by the following resolution
adopted in 1994 by the Tangipahoa Parish School Board:
Whenever, in classes of elementary or high
school, the scientific theory of evolution 1s to be
presented, whether from textbook, workbook,
pamphlet, other written material, or oral
presentation the following statement shall be
quoted immediately before the unit of study
begins as a disclaimer from endorsement of such
[evolution] theory.
It is hereby recognized by the Tangipahoa Parish
Board of Education, that the lesson to be
presented, regarding the origin of life and matter,
is known as the Scientific Theory of Evolution
and should be presented to inform students of the
scientific concept and not intended to influence
or dissuade the Biblical version of Creation or
any other concept.
It is further recognized by the Board of Education
- that it is the basic right and privilege of each
student to form his/her own opinion or maintain
beliefs taught by parents on this very important
matter of the origin of life and matter. Students
are urged to exercise critical thinking and gather
all information possible and closely examine each
alternative toward forming an opinion.
(Emphasis added.) The panel opinion, in quoting the
disclaimer, erroneously uses “and” instead of “or” in the
Ta
Aprendix A
above passage about a student's right “to form his/her own
opinion or”, not and, “maintain beliefs taught by [his/her]
parents”. 185 F.3d at 341. The disclaimer to the disclaimer
acknowledges this error, but states that it “does not affect
the outcome of this case”.
The School Board advanced three purposes for the
disclaimer: “(1) to encourage informed freedom of belief.
(2) to disclaim any orthodoxy of belief that could be inferred
from the exclusive placement of evolution in the curriculum,
and (3) to reduce offense to the sensibilities and sensitivities
of any student or parent caused by the teaching of evolution”.
Id. at 344. The panel concluded that the second and third
purposes were permissible secular objectives. Jd. at 345.
But, in a holding that overlaps with its holding that the
disclaimer is not neutral, discussed infra, the panel decided
that the first purpose was a “sham”, concluding that the
disclaimer furthered a contrary purpose: “the protection and
maintenance of a particular religious viewpoint”. Jd. at
344-45. In so doing, the panel interpreted the message of
the disclaimer as telling students that “evolution as taught
in the classroom need not affect what they already know”;
and that this was “contrary to an intent to encourage critical
thinking, which requires that students approach new concepts
with an open mind and a willingness to alter and shift existing
viewpoints”. /d. at 345 (emphasis added).
The first-purpose-is-a-sham-conclusion is unwarranted.
As noted, the panel misquoted the following portion of the
disclaimer: “it is the basic right and privilege of each student
to form his/her own opinion or [not “and”, as the panel
,
8a
Appendix A
opinion mistakenly quoted] maintain beliefs taught by
parents on [the] . . . matter of the origin of life and matter”.
This mistaken reading of the disclaimer as conjunctive,
rather than disjunctive, perhaps explains why the panel
discounted the disclaimer’s clear message that, concerning
the origin of life and matter, students are free to either
maintain their current beliefs, including those taught by their
parents, or to form their own, new, independent opinions.
In any event, the panel held that, on balance, the
disclaimer survives the secular purpose prong of Lemon v.
Kurtzman, 403 U.S. 602 (1971). Freiler, 185 F.3d at 345.
But, it concluded that it was unconstitutional nevertheless,
on the basis that it violates Lemon’s second prong (and the
endorsement test of County of Allegheny v. American Civil
Liberties Union, 492 U.S. 573, 605 (1989)): its principal or
primary effect impermissibly advances religion. Freiler, 185
F.3d at 345-48.
As our court stated in Doe v. Duncanville Indep. Sch.
Dist., 70 F.3d 402, 406 n.4 (Sth Cir. 1995), “the Establishment
Clause [does not] prevent [school district] employees from
treating students’ religious beliefs and practices with
deference and respect; indeed, the constitution requires this”.
(Emphasis added.) Along this line, the Freiler panel
“acknowledge[s] that local school boards need not turn a
blind eye to the concerns of students and parents troubled
by the teaching of evolution in public classrooms”. Freiler,
185 F.3d at 345-46. Obviously, those who might be so
troubled might be those who believe in “the Biblical version
of Creation”.
9a
Appendix A
Sadly, what the panel gives, it takes away.
Notwithstanding the palaver about school boards nor being
required “to turn a blind eye to [such] concerns”, the panel
relied on “the interplay of three factors” in concluding that
“the primary effect of the disclaimer is to protect and
maintain a particular religious viewpoint, namely belief in
the Biblical version of creation”:
(1) the juxtaposition of the disavowal of
endorsement of evolution with an urging that
students contemplate alternative theories of the
origin of life; (2) the reminder that students have
the right to maintain beliefs taught by their parents
regarding the origin of life; and (3) the “Biblical
version of Creation” as the only alternative theory
explicitly referenced in the disclaimer.
Id. at 346.
oe he juxtaposition of the disavowal of endorsement
of evolution with an urging that students contemplate
alternative theories of the origin of life.
Considering the context in which the disclaimer is to be
presented (at the start of a lesson presenting evolution as the
sole explanation for the origin of life and matter), how can
such “juxtaposition” impermissibly advance religion?
The theory of evolution may be viewed by some as
anti-religious. The disclaimer recognizes this historic tension
between evolution (scientific concept) and other theories or
concepts about the origin of life and matter, using the
10a
Appendix A
“Biblical version of Creation” as but an example of such
other concepts. And, it affirmatively notes that evolution is
the only theory taught. In furtherance of the purposes to
disclaim any orthodoxy of belief that could be inferred from
the exclusive placement of evolution in the curriculum, and
to reduce any resulting offense to students who adhere to
concepts other than evolution, the disclaimer points out that
the fact that evolution is the on/y such concept taught —
“presented to inform students of [that] scientific concept”
— is not intended to influence or dissuade any other concept,
including the Biblical version. The disclaimer balances, it
neutralizes; it is consistent with the requisite neutrality.
But, the panel construes the disclaimer’s urging students
to “exercise critical thinking” as being solely with respect
to the Biblical theory, interpreting it as “encourag{ing]
students to read and meditate upon religion in general and
the ‘Biblical version of Creation’ in particular”. Jd. at 346.
in so doing, the panel ignores the disclaimer’s plain language
(urging students to “closely examine each alternative”,
including evolution), as well as the context in which the
disclaimer is presented, i.e., preceding a lesson which
presents evolution as the sole explanation for the origin of
life and matter. Therefore, the panel misunderstands the
message.
The curriculum provides students with information about
only one concept (evolution). The disclaimer’s mere mention
of the existence of other concepts, without presenting any
information about the content of those concepts, neither gives
any preferred status to, nor advances, any other concept,
which students must make an additional effort to consider
or learn, outside the classroom.
lla
Appendix A
7 2. The reminder that students have the right to maintain
beliefs taught by their parents regarding the origin of life.
As discussed, the panel’s reliance on this factor may have
resulted from its misquoting the disclaimer (failing to
recognize the disclaimer’s use of “or” rather than “and”
between the phrases “form his/her own opinion” and
“maintain beliefs taught by parents”). As noted, we are now
told that this error “does not affect the outcome of this case”.
In any event, how does reminding students of their right to
maintain beliefs taught by their parents regarding the origin
of life and matter, or to form their own beliefs about the
subject, advance religion? In that students are taught about
only one such concept — evolution — there is “no realistic
danger that the community would think that the [School
Board] was endorsing religion or any particular creed, and
any benefit to religion or to the Church would have been no
more than incidental”. Lamb’s Chapel v. Center Moriches
Union Free Sch, Dist., 508 U.S. 384, 395 (1993).
3. The “Biblical version of Creation” as the only
alternative theory specifically referenced in the disclaimer.
The panel reasoned that, because the only alternative
theory identified in the disclaimer is a religious one, the
disclaimer “serves only to promote a religious alternative to
evolution”. Freiler, 185 F.3d at 348. (As discussed, this may
be the hook on which the panel hangs its disclaimer to the
disclaimer, denial of rehearing hat.) The reliance on this
factor is misplaced, because the panel fails to take into
account the disclaimer’s audience. Yet, the panel
acknowledges that, “[i]n assessing the primary effect of the
12a
Appendix A
contested disclaimer, we focus on the message conveyed by
the disclaimer to the students who are its intended audience”.
Id. at 346.
The record reflects that an estimated 95% of the parish
students are adherents to the Biblical concept of creation.
Accordingly, use of the “Biblical version of Creation” as an
illustration of an alternative concept to evolution is hardly
surprising. Because the overwhelming majority of the
students expected to hear the disclaimer were familiar with
that alternative concept, the reference serves to give context
to the message, but without promoting that concept or
expressing intolerance for any other. Surely, giving context
to a message is an admirable method of instruction.
Contrary to the panel’s interpretation, the disclaimer
expressly encourages examination of “each alternative”
concept for life’s origin, including evolution, the Biblical
version, and others that are not identified. Moreover, the
panel erroneously assumes that all alternatives to evolution
are religious in nature, ignoring the existence of non-religious
theories, such as the “Big Bang” and panspermia
(reproductive bodies of living organisms exist throughout
the universe and develop wherever the environment is
favorable).
Based on my review of the record, the language of the
disclaimer, and the context in which it was intended to be
used, the primary effect of the disclaimer is not to advance
religion; instead, it is to advance tolerance and respect for
diverse viewpoints. The record reflects that, to the
overwhelming majority of the parish students, the scientific
13a
Appendix A
concept of evolution conflicts with their (or their parents’)
beliefs about the origin of life and matter; and its exclusive
place in the curriculum had caused concern among students
and parents. The disclaimer’s message is one of respect for
diverse viewpoints, informing students that teaching
evolution as the sole concept for the origin of life and matter
is not intended to influence or dissuade them from forming
their own opinions about the subject or from maintaining
beliefs taught by their parents. _
In examining the disclaimer’s effect, the panel erred by
not considering the context in which the disclaimer was
intended to be used. In the parish schools, evolution is taught;
the “Biblical version of Creation” is not! How can the effect
of the disclaimer be to endorse or advance a concept that is
merely mentioned, using only four words, when evolution is
the on/y concept for the origin of life and matter that is included
in the curriculum, the only one that will be explained and
discussed in any lesson following the disclaimer’s being read?
Understood and considered in the context in which it is
intended to be used, the disclaimer expresses tolerance for
the views of all students. A student who adheres to the
concept of evolution and does nor adhere to the Biblical
version of creation is taught evolution; told the curriculum
is not meant to disparage other concepts, including the
Biblical version; and encouraged to think critically. Likewise,
a student who adheres to the Biblical version and believes it
to conflict with the concept of evolution is taught evolution;
‘old the curriculum is not meant to disparage other concepts;
and encouraged to think critically.
14a
Appendix A
As | noted in Murray v. City of Austin, Tex., 947 F.2d
147, 158 (Sth Cir. 1991) (inclusion of Christian cross in esd
insignia held constitutional), cert. denied, 505 USS. 1219
(1992), Justice Goldberg, in School Dist. of Abington
Township, Pa. v. Schempp, 374 U.S. 203 (1963), stated that
“the measure of constitutional adjudication is the ability and
willingness to distinguish between real threat and mere
shadow”. Id. at 308 (Goldberg, J., concurring). The—
disclaimer, as did the city insignia in Murray, casts a “mere
shadow” near, instead of being a “threat” to, the principles
underlying the Establishment Clause. But, the panel has
transformed neutrality into intolerance. Accordingly, |
respectfully dissent from the denial of rehearing en banc.
15a
APPENDIX B — OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
DATED AND FILED AUGUST 13, 1999
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-30879 & No. 98-30132
HERB FREILER; SAM SMITH, Individually and in his
capacity as Administrator of the Estate of his minor child
Steven Smith; JOHN JONES,
Plaintiffs-Appellees,
V.
TANGIPAHOA PARISH BOARD OF EDUCATION: E.F.
BAILEY; ROBERT CAVES; MAXINE DIXON: LEROY
HART; RUTH WATSON, DONNIE WILLIAMS, SR.: ART
ZIESKE, Individually and in their capacities as members of
the School Board; TED CASON, Individually and in his
capacity as Superintendent of Schools,
Defendants- Appellants.
Appeals from the United States District Court for the
Eastern District of Louisiana
Before KING, Chief Judge, and POLITZ and BENAVIDES,
Circuit Judges.
l6a
Appendix B
BENAVIDES, Circuit Judge:
Parents of children in the Tangipahoa Parish Public
Schools brought this suit to enjoin their school board from
mandating that a disclaimer be read immediately before the
teaching of evolution in all elementary and secondary classes.
The district court held that the disclaimer constituted an
establishment of religion in violation of the First
Amendment. We affirm.
I.
The teaching of evolution has created controversy for
many years in the Tangipahoa Parish Public Schools
(“TPPS”). Following a failed attempt to introduce creation
science into the Tangipahoa curriculum as a legitimate
scientific alternative to evolution, the Tangipahoa Parish
Board of Education (“School Board” or “Board’’) adopted a
resolution disclaiming the endorsement of evolution.' The
resolution, which passed by a 5-4 vote of the School Board
on April 19, 1994, reads:
' The passage of the disclaimer was not the first action by the
School Board concerning the teaching of evolution. In December
1993, a member of the School Board proposed a Policy on the
Inclusion of Religious Material and Discussions on Religion in the
Curriculum and in Student Activities (“Policy”). That same member
later proposed a Revised Draft of Policy (“Revised Policy”). These
policies would have allowed the teaching of alternative theories of
the origin of mankind, including Creation science. Even though it
was defeated in Committee, the Revised Policy was discussed at a
March 1994 School Board meeting. During that meeting, the Board
rejected two items in the Revised Policy concerning the study of
creation science and a graduation ceremony prayer.
(Cont'd)
17a
Appendix B
Whenever, in classes of elementary or high
school, the scientific theory of evolution is to be
presented, whether from textbook, workbook,
pamphlet, other written material, or oral
presentation, the following statement shall be
quoted immediately before the unit of study
begins as a disclaimer from endorsement of such
theory.
It is hereby recognized by the Tangipahoa Board
of Education, that the lesson to be presented,
regarding the origin of life and matter, is known
as the Scientific Theory of Evolution and should
be presented to inform students of the scientific
concept and not intended to influence or dissuade
the Biblical version of Creation or any other
concept.
It is further recognized by the Board of Education
that it is the basic right and privilege of each
student to form his/her own opinion and maintain
beliefs taught by parents on this very important
(Cont'd)
| The Board passed four other items included in the Revised
Policy. Those items provided that (1) no religious belief or non-belief
should be promoted or disparaged by the school system; (2) religious
materials may be included in secular education (e.g., literature, art,
humanities, etc.); (3) artistic expressions (e.g., music, art, etc.) could
have religious themes if they were presented objectively; and
(4) students could distribute religiously oriented materials as long
as students followed the school’s rules pertaining to content-neutral
time, place, and manner restrictions.
18a
Appendix B
matter of the origin of life and matter. Students
are urged to exercise critical thinking and gather
all information possible and closely examine each
alternative toward forming an opinion.
Preceding the adoption of the resolution, School Board
members and parents who were present at the April 19, 1994,
meeting discussed the language of the disclaimer. In
particular, debate centered on the inclusion of the phrase
“Biblical version of Creation.” A School Board member,
Logan Guess, voiced concerns that the reference to the Bible
excluded non-Christian viewpoints from the disclaimer. He
argued that, even though the disclaimer also included the
phrase “or any other concept,” School Board members were
concerned only with declining to endorse evolution because
of its inconsistency with the Biblical version of creation.
Bailey, the board member who proposed the disclaimer, ~
justified including the phrase, arguing that because “there
are two basic concepts out there” (presumably creation
science and evolution), and because he believed that “perhaps
95 percent” of the community “fall into the category of
believing [in] divine creation,” the Board should not “shy
away, or hide away from saying that this is not to dissuade
from the Biblical version.” In his closing remarks
immediately before the Board voted to adopt the disclaimer,
Bailey further suggested that evolution theory as taught in
science class should not be confused with fact and that the
School Board should explicitly decline to endorse evolution
theory because of its inconsistency with the faith of the larger
community.
19a
Appendix B
On November 7, 1994, approximately seven months after
the resolution passed, several parents of children in the TPPS
brought suit in the U.S. District Court for the Eastern District
of Louisiana, challenging the validity of the disclaimer under
provisions in the United States and Louisiana constitutions
barring laws “respecting an establishment of religion.” U.S.
Const. amends., I, XIV; La. Const. art. I, sec. 8. The district
court concluded that the resolution was devoid of secular
purpose and therefore ran afoul of the first prong of the
three-part test of Lemon v. Kurtzman, 403 U.S. 602, 612-13
(1971). In reaching this conclusion, the district court
discredited the School Board’s assertion that its secular
purpose in adopting the disclaimer was to promote critical
thinking and information gathering by students on the subject
of the origin of life. The court noted that School Board
members did not mention this purported purpose during the
adoption debate and that the Tangipahoa Parish Public
Schools already encouraged students to think critically about
all issues before the adoption of the disclaimer. The district
court found that the statements made by School Board
members both during the adoption debate and while testifying
at trial revealed that the disclaimer, in fact, had a religious
purpose — i.e., to satisfy the religious concerns of the
majority that the teaching of evolution in public school
contradicted lessons taught in Sunday school. Accordingly,
* The First Amendment of the United States Constitution in
relevant part provides: “Congress shall make no law respecting an
establishment of religion or prohibiting the free exercise thereof. . . .”
This prohibition is applicable to the states through the Fourteenth
Amendment. See Stone v. Graham, 449 U.S. 39, 41 n. 2, 101 S. Ct.
192, 193 n. 2 (1980); School District of Abington v. Schempp, 374
U.S. 203, 215-16, 83 S. Ct. 1560, 1567-68 (1963).
20a
Appendix B
the court held the resolution invalid under the federal and
state constitutions and enjoined the reading of the disclaimer.
The School Board and the named individual defendants then
brought this appeal.
II
The sole issue for our resolution is whether the specific
disclaimer adopted by the Tangipahoa Parish Board of
Education contravenes the First Amendment. We limit our
analysis to the precise language of the disclaimer and the
context in which it was adopted. We do not confront the
broader issue of whether the reading of any disclaimer before
the teaching of evelution would amount to an
unconstitutional establishment of religion.
States and their duly authorized boards of education have
the right to prescribe the academic curricula of their public
school systems. Courts therefore must exercise great care
and restraint” when called upon to intervene in the operation
of public schools. Epperson v. Arkansas, 393 US..97, 104,
89 S. Ct. 266, 270 (1968). Given, however, that the vigilant
protection of constitutional freedoms” is nowhere more vital
than in American public education, id., 89 S. Ct. at 270, the
right to prescribe public school curriculum must of necessity
be limited in scope. States may not require that teaching and
learning be tailored to the principles or prohibitions of any
religious sect or dogma. See id. at 106, 89 S. Ct. at 271.
In the context of public education, we have evaluated
state action challenged on Establishment Clause grounds
under each of “three complementary (and occasionally
Se POT om
SALI GATE I RE PE gS a mee Blige eS
2la
Appendix B
overlapping) tests” established by the Supreme Court. Doe
v. Santa Fe Independent School District, 168 F.3d 806, 816
(Sth Cir. 1999). The first test, and the one of longest lineage,
is the disjunctive three-part Lemon test, under which a state
practice is unconstitutional if (1) it lacks a secular purpose;
(2) its primary effect either advances or inhibits religion; or
(3) it excessively entangles government with religion. See
Lemon, 403 U.S. at 612-613, 91 S. Ct. at 2111. The second
test, commonly referred to as the endorsement test, seeks to
determine whether the government endorses religion by
means of the challenged action. See, e.g., County of Allegheny
v. ACLU, 492 U.S. 573, 594, 109 S. Ct. 3086, 3101 (1989)
(holding that the display of a creche on the Grand Staircase
of the Allegheny County Courthouse violated the First
Amendment but that the display of a menorah as part of a
secular exhibit was constitutional). The government
unconstitutionally endorses religion when it “conveys a
message that religion is ‘favored,’ ‘preferred,’ or ‘promoted’
over other beliefs.” /d. at 593, 109 S. Ct. 3086. Finally, the
third test, aptly named the coercion test, analyzes
school-sponsored religious activity in terms of the coercive
effect that the activity has on students. See. e.g., Lee v.
Weisman, 505 U.S. 577, 112 S. Ct. 2649 (1992) (holding
unconstitutional] a school district’s policy permitting school
principals to invite clergy to give “nonsectarian” invocations
and benedictions at graduation ceremonies). Under this test,
school-sponsored activity contravenes the First Amendment
when “(1) the government directs (2) a formal religious
exercise (3) in such a way as to oblige the Participation of
objectors.” Jones v. Clear Creek Independent School District,
977 F.2d 963, 970 (Sth Cir. 1992) (“Clear Creek IT’) (citation
omitted).
22a
Appendix B
Our multi-test analysis in past cases has resulted from
an Establishment Clause jurisprudence rife with confusion
and from our own desire to be both complete and judicious
in our decision-making. See, e.g., Doe ex rel. Doe v.
Beaumont Independent School District, 173 F.3d 274, 295
(5th Cir.) (analyzing school district's “Clergy in Schools
volunteer counseling program utilizing Lemon, endorsement,
and coercion tests), reh'g en banc granted, _ F.3d __ (1999),
Ingebretsen v. Jackson Public School District, 88 F.3d 274,
280 (Sth Cir. 1996) (examining state statute permitting public
school students to initiate nonsectarian, nonproselytizing
prayer at compulsery and noncompulsory school events
pursuant to the Lemon, endorsement, and coercion tests),
Clear Creek II, 977 F.2d 963, 966-969, 972 (employing
Lemon, endorsement, and coercion analysis to uphold a
school district resolution permitting public high school
seniors to choose student volunteers to deliver nonsectarian,
nonproselytizing invocations at graduation ceremonies).
Nothing in our Circuit’s case law requires that contested
government action be examined under each Supreme
Court-delineated test. Cf Santa Fe Independent School
District, 168 F.3d at 818 (explaining that, because student-
selected, student-given, sectarian, proselytizing invocations
and benedictions violate the Lemon test and the endorsement
test, analysis under the coercion test was not necessary),
Helms v. Picard, 151 F.3d 347, 362 (Sth Cir. 1998)
(analyzing a school aid program in accordance with only the
Lemon test), cert. granted sub nom., Mitchell v. Helms,
No. 98-1648, 1999 WL 231469 (U.S. Jun. 14, 1999). The
decision to apply a particular Establishment Clause test rests
upon the nature of the Establishment Clause violation
asserted. Where, as in the instant action, the practice at issue
23a
Appendix B
does not direct student participation in a formal religious
exercise, we elect not to apply the coercion test.
Although widely criticized and occasionally ignored, the
Lemon test continues to govern Establishment Clause cases.
In Agostini v. Felton, 521 U.S. 203, 117 S. Ct. 1310 (1997),
the Supreme Court laid to rest rumors of the Lemon test's
demise when it exclusively applied Lemon analysis to a
school aid program. The Court acknowledged the continued
viability of the general Lemon principles used to evaluate
whether government action violates the Establishment Clause
and noted in particular that the nature of the inquiry under
Lemon's purpose prong has “remained largely unchanged.”
Id. at 223, 117 S. Ct. at 2010.
A.
The first prong of the Lemon test requires that challenged
state action have a secular purpose. See Lemon, 403 U.S. at
612, 91 S. Ct. at 2111. Lemon’s first prong does not require
that challenged state action have been enacted in furtherance
of exclusively, or even predominately, secular objectives.
See Wallace v. Jaffree, 472 U.S. 38, 56, 105 S. Ct. 2479,
2489 (1985) (explaining that a statute motivated in part bya
religious purpose may satisfy Lemon’s purpose prong). In
order for state activity to pass muster under Lemon’s first
criterion a sincere secular purpose for the contested state
action must exist; even if that secular purpose is but one in a
sea of religious purposes. See id. at 56, 105 S. Ct. at 2489.
24a
Appendix B
The School Board has articulated three distinct, albeit
intertwined, purposes for the contested disclaimer. According
to the Board, the disclaimer serves (1) to encourage informed
freedom of belief, (2) to disclaim any orthodoxy of belief
that could be inferred from the exclusive placement of
evolution in the curriculum, and (3) to reduce offense to the
sensibilities and sensitivities of any student or parent caused
by the teaching of evolution.
We treat the School Board’s three-fold articulation of
purpose with deference. See Santa Fe Independent School
District, 168 F.3d at 816. Deference, however, ought not be
confused with blind reliance. Accordingly, we examine each
of the disclaimer’s avowed purposes to ensure that the
purpose is sincere and not a sham. See id. (citing Edwards v.
Aguillard, 482 U.S. 578, 586-87, 107 S. Ct. 2573, 2579
(1987)). In undertaking such a “sham” inquiry, we consider
whether the disclaimer furthers the particular purposes
articulated by the School Board or whether the disclaimer
contravenes those avowed purposes. See Aguillard, 482 U.S.
at 589, 107 S. Ct. at 2580 (finding purported purpose of
protecting academic freedom to be insincere in light of the
fact that “the Act does not serve to protect academic freedom,
but has the distinctly different purpose of discrediting
evolution”). If the disclaimer furthers just one of its proffered
purposes and if that same purpose proves to be secular, then
the disclaimer survives scrutiny under Lemon’s first prong.
We find that the contested disclaimer does not further
the first articulated objective of encouraging informed
freedom of belief or critical thinking by students. Even
though the final sentence of the disclaimer urges students
25a
Appendix B
“to exercise critical thinking and gather all information
possible and closely examine each alternative toward forming
an opinion,” we find that the disclaimer as a whole furthers
a contrary purpose, namely the protection and maintenance
of a particular religious viewpoint. In the first paragraph to
be read to school children, the Tangipahoa Board of
Education declares that the “Scientific Theory of Evolution
... Should be presented to inform students of the scientific
concept” but that such teaching is “not intended to influence
or dissuade the Biblical version of Creation or any other
concept.” From this, school children hear that evolution as
taught in the classroom need not affect what they already
know. Such a message is contrary to an intent to encourage
critical thinking, which requires that students approach new
concepts with an open mind and a willingness to alter and
shift existing viewpoints. This conclusion is even more
inescapable when the message of the first paragraph is
coupled with the statement in the last that it is “the basic
right and privilege of each student to ... maintain beliefs
taught by parents on [the] ... matter of the origin of life
.... We, therefore, find that the disclaimer as a whole does
not serve to encourage critical thinking and that the School
Board’s first articulated purpose is a sham.
We find that the disclaimer does further the second and
third purposes articulated by the School Board. The
disclaimer explicitly acknowledges the existence of at least
one alternative theory for the origin of life, i.e., the Biblical
version of creation. Additionally, the disclaimer reminds
school children that they can rightly maintain beliefs taught
by their parents on the subject of the origin of life. We have
no doubt that the disclaimer will further its second and third
26a
Appendix B
avowed objectives of disclaiming any orthodoxy of belief
that could be implied from the exclusive place of evolution
in the public school curriculum and reducing student/parent
offense caused by the teaching of evolution. Accordingly,
we conclude that these two purposes are sincere.
We next consider whether disclaiming orthodoxy of
belief and reducing student/parent offense are permissible
secular objectives. In conducting this inquiry, we are mindful
that a purpose is no less secular simply because it is infused
with a religious element. Cf, Corporation of the Presiding
Bishop of the Church of Jesus Christ of Latter-day Saints v.
Amos, 483 U.S. 327, 335, 107 S. Ct. 2862, 2868 (1987)
(explaining that the Lemon test, requiring that the law at issue
serve some secular legislative purpose, does not require that
the contested law’s purpose be unrelated to religion); Lynch
v. Donnelly, 465 U.S. 668, 673, 1048. Ct. 1355, 1359 (1984)
(noting that the Constitution “affirmatively mandates
accommodation, mot merely tolerance, of all religions... .
Anything less would require the ‘callous indifference’ we
have said was never intended”’). For this reason, the fact that
evolution, the subject about which the School Board sought
to disclaim any orthodoxy of belief, is religiously charged,
see Aguillard, 482 U.S. at 593, 107 S. Ct. at 2582 (noting
that evolution is the one scientific theory that historically
has been opposed by certain religious sects), and the fact
that the sensitivities and sensibilities to which the School
Board sought to reduce offense are religious in nature, does
not per se establish that those avowed purposes are religious
purposes.
27a
Appendix B
In order to avoid the “callous indifference” first
cautioned against by the Supreme Court in Zorach y.
Clauson, 343 U.S. 306, 314, 702 S. Ct. 679, 684 (1952), we
conclude that, under the instant facts, the dual objectives of
disclaiming orthodoxy of belief and reducing student/parent
offense are permissible secular objectives that the School
Board could rightly address. Cf. Bethel School District No.
403 v. Fraser, 478 U.S. 675, 681, 106 S. Ct. 3159, 3163
(1986) (noting that, in the context of a civil rights action,
fundamental values essential to a democratic society include
“tolerance of divergent political and religious views” and
“consideration of the sensibilities of others, and, in the case
of a school, the sensibilities of fellow students”). In so doing,
we acknowledge that local school boards need not turn a
blind eye to the concerns of students and parents troubled
by the teaching of evolution in public classrooms.
B.
Lemon’s second prong asks whether, irrespective of the
School Board’s actual purpose, “the practice under review
in fact conveys a message of endorsement or disapproval.”
Doe v. Santa Fe Independent School District, 168 F.3d 806,
817 (Sth Cir. 1999). This is similar to analysis pursuant to
the endorsement test. Under either the second Lemon prong
or the endorsement test, the Supreme Court has cautioned
that a government practice may not aid one religion, aid all
religions, or favor one religion over another. See, e.g., County
of Allegheny v. ACLU, 492 US. 573, 605, 109 S. Ct. 3086,
3107 (1989) (“Whatever else the Establishment Clause may
mean (and we have held it to mean no official preference
even for religion over nonreligion), it certainly means at the
28a
Appendix B
very least that government may not demonstrate a preference
for one particular sect or creed (including a preference for
Christianity over other religions).” (citation omitted)).
Nonetheless, where the benefit to religion or to a church is
no more than indirect, remote, or incidental, the Supreme
Court has advised that “no realistic danger [exists] that the
community would think that the [contested government
practice] was endorsing religion or any particular creed.”
Lamb's Chapel v. Center Moriches Union Free School
District, 508 U.S. 384, 395, 113 S. Ct. 2141, 2148 (1993).
Against this jurisprudential backdrop, the School Board
argues that the contested disclaimer’s primary effect is “to
communicate to students that they are free to form their own
opinions or maintain beliefs taught by parents concerning
the origin of life and matter.” According to the School Board,
the disclaimer advances freedom of thought, as well as
sensitivity to, and tolerance for, diverse beliefs in a pluralistic
society. We disagree.
In assessing the primary effect of the contested
disclaimer, we focus on the message conveyed by the
disclaimer to the students who are its intended audience. See
County of Allegheny, 492 U.S. at 620, 109 S. Ct. at 3115.
After careful consideration of the oral arguments, the br. -is,
the record on appeal, and the language of the disclaimer, we
conclude that the primary effect of the disclaimer is to protect
and maintain a particular religious viewpoint, namely belief
in the Biblical version of creation. In reaching this
conclusion, we rely on the interplay of three factors. (1) the
juxtaposition of the disavowal of endorsement of evolution
with an urging that students contemplate alternative theories
29a
Appendix B
of the origin of life; (2) the reminder that students have the
right to maintain beliefs taught by their parents regarding
the origin of life; and (3) the “Biblical version of Creation”
as the only alternative theory explicitly referenced in the
disclaimer.
We note that the term “disclaimer,” as used by the School
Board to describe the passage to be read to students before
lessons on evolution, is not wholly accurate. Beyond merely
“disclaiming” endorsement of evolution, the two paragraph
passage urges students to take action — to “exercise critical
thinking and gather all information possible and closely
examine each alternative” to evolution.’ The disclaimer,
taken as a whole, encourages students to read and meditate
upon religion in general and the “Biblical version of
Creation” in particular.‘
* In passing on the constitutionality of the contested disclaimer,
we consider the disclaimer as a whole. Accordingly, we do not
express an oprnion as to whether the first paragraph standing alone
impermissibly advances religion.
. The School Board asserts that the reference to the “Biblical
version of Creation” is merely illustrative, affording meaning to the
phrase “other concepts.” The School Board’s use of a religious
concept as the only illustration of an “other concept{ },” however,
supports our conclusion that the disclaimer impermissibly advances
religion. Cf. Ingebretsen v. Jackson Public School District, 88 F.3d
274, 279 (Sth Cir. 1996) (explaining that a government measure
advances rehigron when it “gives a preferential, exceptional benefit
to religion [or a particular iorm of religion] that it does not extend
to amythivig else”). We also note that the record does not comport
with the School Board’s characterization of its reason for including
(Cont'd)
30a
Appendix B
Although it is not per se unconstitutional to introduce
religion or religious concepts during school hours, there isa
fundamental difference between introducing religion and
religious concepts in “an appropriate study of history,
civilization, ethics, comparative religion, or the like” and
the reading of the School Board-mandated disclaimer now
before us. Stone v. Graham, 449 U.S. 39, 42, 101 S. Ct. 192,
194 (1980). The TPPS disclaimer’ does not encourage
students to think about religion in order to provide context
for a political controversy studied in a history class, see,
e.g., Aguillard, 482 U.S. at 607 n.8, 107 S. Ct. at 2590 n.8
(Powell, J., concurring) (“For example, the political
controversies in Northern Ireland, the Middle East, and India
cannot be understood properly without reference to the
underlying religious beliefs and the conflicts they tend to
generate.”), or to promote understanding of different
religions, see, e.g., School District of Abington v. Schempp,
374 U.S. 203, 225, 83 S. Ct. 1560, 1573 (1963) (“[I]t might
well be said that one’s education is not complete without a
study of comparative religion or the history of religion and
(Cont'd)
“Biblical version of Creation” in the disclaimer. When the School
Board debated the propriety of the proposed disclaimer, a member
suggested deleting the reference to the Biblical version of creation.
The Board ultimately rejected that suggestion, apparently not
because doing so might confuse students who needed an illustrative
reference, but because doing so would, in the words of the
disclaimer’s sponsor, “gut . . . the basic message of the [disclaimer].
* Despite our conclusion that the statement to be read student
does more than “disclaim” evolution, we will continue to refer to
the entire statement as a disclaimer for purposes of convenience.
3la
Appendix B
its relationship to the advancement of civilization.”). Instead,
the disclaimer — including the directive to “exercise critical
thinking” in the second paragraph, together with the explicit
reference to the “Biblical version of Creation” in the first
paragraph — urges students to think about religious theories
of “the origin of life and matter” as an alternative to
evolution, the State-mandated curriculum.
The Schooi Board cites two cases, Lamb's Chapel v.
Center Moriches Union Free School District, 508 U.S. 384,
113 S. Ct. 2141 (1993), and Widmar v. Vincent, 454 U.S.
263, 102 S. Ct. 269 (1981), in defense of its position that
any benefit to religion conferred by the disclaimer is merely
incidental and that, as such, the disclaimer does not
impermissibly advance religion. These cases, in which the
Supreme Court found that government action did not violate
the Establishment Clause, are distinguishable.
In Widmar, members of a registered religious group at a
State university brought an action challenging a university
policy which excluded religious groups from being able to
utilize university facilities that were generally available for
activities of registered student groups. See Widmar, 454 U.S.
at 266, 102 S. Ct. at 273. The Court found that the challenged
policy violated the First Amendment. See id. at 277, 102
S. Ct. at 278. In reaching this conclusion, the Widmar Court
explained that a “religious organization’s enjoyment of
merely ‘incidental’ benefits does not violate the prohibition
against the ‘primary advancement’ of religion.” See id. at
273, 102 S. Ct. at 276. The Court relied on two factors. See
id. at 274, 102 S. Ct. at 276. First, the Court found that, in
allowing a registered student religious organization to use
32a
Appendix B
an otherwise open forum, a public university “does not confer
any imprimatur of state approval on religious sects or
practices.” /d., 102 S. Ct. at 276. Second, the court found
that use of the university facilities is available to a broad
class of speakers, including nonreligious speakers. See id.,
102 S. Ct. at 277.
Unlike in Widmar, the particular benefit to religion at
issue here is not merely incidental. A teacher’s reading ofa
disclaimer that not only disavows endorsement of educational
materials but also juxtaposes that disavowal with an urging
to contemplate alternative religious concepts implies School
Board approval of religious principles. Moreover, unlike the
public forum at issue in Widmar, the disclaimer crafted by
the School Board serves only to promote a religious
alternative to evolution. We know this because the only
alternative theory explicitly referenced in the text of the ©
disclaimer is a religious one. Therefore, Widmar does not
support the Board’s argument.
The School Board’s reliance on Lamb's Chapel is
misplaced as well. In that case, the Court held that using a
public school after school hours for the showing of
religiously oriented films did not violate the Establishment
Clause. See Lamb’s Chapel, 508 U.S. at 395, 113 S. Ct. at
2148. The Court found that “this film series would not heve
been during schooi hours, would not have been sponsored
by the school, and would have been open to the public, not
just to church members.” Jd., 113 S. Ct. at 2148. The Court
concluded that, under these circumstances, there was no
realistic danger that the community would think that the
school district was endorsing religion.
33a
Appendix B
There are few, if any, parallels between the instant case
and Lamb's Chapel. Here, the disclaimer approved by the
School Board is to be read during school hours by school
teachers and explicitly encourages students to consider
religious alternatives to evolution, a part of the
state-mandated curriculum. Unlike in Lamb's C hapel, there
is a much greater danger of students and parents perceiving
that the School Board endorses religion, specifically those
creeds that teach the Biblical version of creation.
The benefit to religion conferred by the reading of the
Tangipahoa disclaimer is more than indirect, remote, or
incidental. As such, we conclude that the disclaimer
impermissibly advances religion, thereby violating the
second prong of the Lemon test as well as the endorsement
test.
IV
The School Board additionally disputes the district
court’s award of attorneys’ fees to Appellee Freiler. We
review a district court’s award of attorneys’ fees for abuse
of discretion, and its factual findings relating to the award
of attorneys’ fees for clear error. See Watkins v. Fordice,
7 F.3d 453, 457 (Sth Cir. 1993). Where a decision awarding
attorneys’ fees is adequately supported by the record and
the district court has explained its reasons for the award,
there is no abuse of discretion. See Strong v. Bellsouth
Telecommunications, Inc., 137 F.3d 844, 851 (Sth Cir. 1998).
The district court found that Freiler was a prevailing
party and awarded Freiler attorneys’ fees pursuant to
34a
Appendix B
42 U.S.C. § 1988. The court used the lodestar method of
determining the appropriate award, first multiplying an
hourly rate by hours expended, and then adjusting the award
according to the factors outlined in Johnson v. Georgia
Highway Express, 488 F.2d 714 (1974).
The district court found that Freiler’s counsel kept
contemporaneous time records, and that they were therefore
not reconstructed. The court found that the records contained
sufficient detail to determine the time expended in pursuing
Freiler’s claim. The district court also reduced the number
of hours that Freiler’s counsel billed by ten percent to reflect
‘possible redundancy and work which in hindsight may have
been unnecessary.” Lastly, the district court applied an hourly
rate of $150,° based explicitly on application of the Johnson
factors. The court multiplied the $150 rate by the adjusted
billable hours, and awarded $49,444.50 to Freiler’s counsel.
We affirm the district court’s award of attorneys’ fees.
First, the billing records are sufficiently detailed under our
analysis in League of United Latin American Citizens #4554
v. Roscoe Independent School District, 119 F.3d 1228, 1233
(Sth Cir. 1997). In that case, we found that billing records
were adequate where the records showed the date, the number
of hours spent, and a “short but thorough description of the
services rendered.” Jd. Second, even if Freiler’s counsel
failed to contemporaneously produce billing records, as the
School Board argued, such a failure “does not preclude an
° Freiler’s counsel had petitioned the court to award fees based
on an hourly rate of $175 an hour. The court agreed that the $175
rate was “arguably” reasonable, but decided that a $150 rate was
more appropriate based on Johnson.
35a
Appendix B
award of fees per se, as long’as the evidence produced is
adequate to determine reasonable hours.” Louisiana Power
& Light Co. v. Kellstrom, 50 F.3d 319, 325 (Sth Cir. 1995)
Third, the district court did not commit clear error in finding
the $150 rate to be reasonable, given the declarations that it
reviewed from three New Orleans attorneys regarding
prevailing rates. Fourth, the district court did not commit
clear error when, instead of addressing the necessity and
potential redundancy of each billed hour, it reduced the
overall number of hours by ten percent. Indeed, Louisiana
Power & Light Co. v. Kellstrom, 50 F.3d 319, 325 (Sth Cir
! 995), the only case cited by the School Board in support of
Its argument that a district court must analyze each billing
item, is distinguishable. In Kellstrom, the issue was whether
the billing records were sufficiently detailed, not whether
the district court judge had discretion to reduce the amount
of hours billed by a percentage. See id. at 325.
VI.
For the foregoing reasons, we affirm the district court’s
ruling that the disclaimer violates the First Amendment and
the district court’s award of attorneys’ fees to Appellee
Freiler.
AFFIRMED.
36a
APPENDIX C — FINDINGS AND CONCLUSIONS OF
THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF LOUISIANA DATED AND
FILED AUGUST 8, 1997
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CIVIL ACTION
NO. 94-3577
SECTION: E/5
HERB FREILER, SAM SMITH, and JOHN JONES,
versus
TANGIPAHOA PARISH BOARD OF EDUCATION, E.F.
BAILEY, ROBERT CAVES, MAXINE DIXON, LEROY
HART, RUTH WATSON, DONNIE WILLIAMS, SR..
ART ZIESKE, and TED CASON
FINDINGS AND CONCLUSIONS
This is an action challenging the constitutionality of a
resolution mandating that a disclaimer of endorsement of
the scientific theory of evolution be read by all teachers in
Tangipahoa Parish public schools to their students prior to
presenting the subject matter of this material in class. This
Court has subject matter jurisdiction over this action pursuant
to 28 U.S.C. § 1331, as it arises under the Constitution of
the United States. The following findings of fact and
conclusions of law are rendered on the basis of the record,
the evidence presented by the parties in their stipulation of
37a
Appendix C
facts and submission of exhibits, their memoranda of law,
Proposed findings and conclusions and reply briefs, and the
law.
I.
Plaintiff Herb Freiler is the father of the minor child
Sydney Michelle Freiler, who attends a Tangipahoa Parish
public school. Both Herb and Sydney Freiler reside in
Tangipahoa Parish within the jurisdiction of the Tangipahoa
Parish School Board (“the School Board’’)
Plaintiff Sam Smith (pseudonym) is the father of two
children, who attend Tangipahoa Parish public schools. Al]
three reside within the jurisdiction of the Tangipahoa Parish
School Board.
Plaintiff John Jones (pseudonym) is the father of a child
who attends a Tangipahoa Parish public school. They reside
in the jurisdiction of the Tangipahoa Parish School Board.
Defendant Tangipahoa Parish Board of Education is a
political subdivision of the State of Louisiana, organized
pursuant to LSA-R.S. 17:51 et seg, for the purpose of
providing public education to the schoolchildren residing
within Tangipahoa Parish.
Defendants E. F. Bailey, Robert Caves, Maxine Dixon,
Leroy Hart, Ruth Watson, Donniie Williams, Sr., and Art
Zieske, at all pertinent times elected members of the School
Board and residents of Tangipahoa, were sued exiclusively
im their official capacities as members of the Schoo! Board.
38a
Appendix C
Defendant Ted Cason was the Superintendent of Tangipahoa
Parish Schools and was employed by the School Board. He
was responsible for implementing the School Board's
policies until his retirement in 1995 and is sued exclusively
in his official capacity as former Superintendent of Schools.
On April 19, 1994, the School Board adopted the
following resolution, which shall be referred to as “the
disclaimer”:
Whenever, in classes of elementary or high
school, the scientific theory of evolution is to be
presented, whether from textbook, workbook,
pamphlet, other written material, or oral
presentation, the following statement shall be
quoted immediately before the unit of study
begins as a disclaimer from endorsement of such
theory.
It is hereby recognized by the Tangipahoa Board
of Education, that the lesson to be presented,
regarding the origin of life and matter, is known
as the Scientific Theory of Evolution and should
be presented to inform students of the scientific
concept and not intended to influence or dissuade
the Biblical version of Creation or any other
concept.
It is further recognized by the Board of Education
that it is the basic right and privilege of each
student to form his/her own opinion or maintain
beliefs taught by parents on this very important
39a
Appendix C
matter of the origin of life and matter. Students
are urged to exercise critical thinking and gather
all information possible and closely examine each
alternative toward forming an opinion.
The resolution was proposed by School Board member
E. F. Bailey. School Board members E. F. Bailey, Robert
Caves, Leroy Hart, Ruth Watson and Art Zieske voted in
favor of the resolution and School Board members Logan
Guess, C. Howard Nichols, Maxine Dixon and Donnie
Williams voted against the resolution. Thus, the resolution
was passed by a vote of 5 to 4.
Prior to the time this resolution was introduced, the
Education/Curriculum Committee of the School Board
considered adopting an official written document entitled
Policy on the Inclusion of Religious Materials and
Discussions on Religion in the Curriculum and in Student
Activities and a Revised Draft of Policy. These documents
were presented by Art Zieske, School Board member, for
consideration by the Committee. These documents do not
mandate the teaching of alternative theories to the ori gin of
mankind, but do allow the teaching of Creation Science.
Creation Science, as the term shall be used herein, is the
theory that the universe, including all forms of life, was
created literally in the manner described in the Bible by a
higher Being, or, as alternately described, the theory of
intelligent design or creation by a Divine Creator.
During the initial introduction of the proposed policy at
a Committee meeting held on December 15, 1993, several
members of the public expressed opinions concerning the
40a
Appendix C
proposed policy. The minutes of the meeting reflect that
most, if not all, of the persons speaking at the meeting
understood that the policy would allow the teaching of
Creation Science, and most, if not all, of the opinions related
at the meeting were either in support of or against the
teaching of Creation Science. No other portion of the
proposed policy, such as the Graduation ceremony prayer
policy or the distribution of religiously oriented materials in
the public schools, was discussed in any detail. The topic of
Creation Science dominated the discussion.
The Revised Draft of Policy (Joint Exhibit 6) was on the
School Board’s March 1, 1994 agenda. After discussion,
items 3 and 6 in the Revised Draft of Policy, which concerned
the study of Creation Science and the Graduation C eremony
Prayer Policy, were not approved. Items 1, 2, 4, and 5, which
provided that no religious belief or non-belief be promoted
or disparaged by the School System, that religious materials
may be included in the secular programs teaching literature,
art, humanities, ethics and history, and that artistic
expressions, such as music, drama, and art, may have
religious themes if they are presented objectively as a
traditional part of the cultural and religious heritage of the
particular holiday” were approved. The adopted policy also
preserved the right of students to distribute “religiously
oriented materials such as holiday greeting cards and
newspapers so long as the school’s rules pertaining to
content-neutral time, place and manner restrictions to prevent
disruption of the educational process [ were} followed.’
Board member E. F. Bailey introduced the endorsement
disclaimer at issue herein at the April 19, 1994 School Board
4la
Appendix C
meeting. Instead of initially attempting to obtain the approval
of the policy committee, Bailey introduced the matter to the
entire School Board. An extended discussion took place
between several of the Board members, Chris Moody, who
is legal counsel for the Board, and Freiler, a plaintiff,
concerning the disclaimer proposal.
Logan Guess, one of the School Board members who
voted against the disclaimer, raised concerns about the
inclusion of the phrase “Biblical version of creation”, stating:
The second paragraph, the way it states ‘not
intended to influence or dissuade the Biblical
version of creation or any other concept,’ the
question I have is, if — if you want to endorse or
suggest that students form their own opinions, my
question about the Biblical version of creation,
what about maybe non-Christian students,
students who don’t necessarily conform or believe
in the Biblical version? My only question is, what
about people of other faiths, other than the
Christian faith, who believe in other versions of
the origin of man, whether it be creation,
evolution, whatever they may believe in. . . .
Let me go on to — to conclude that. My
concern is if we include the statement about the
Biblical version of creation, it seems to me that
that will open us up to — to questions from people
of other beliefs who would criticize and take issue
with the fact that we’re singling out the Biblical
version of creation. Even though there are many,
42a 43a
Appendix C Appendix C
many other versions of creation besides the one Why — why would we — | — I — I couldn't
that maybe the people in this room adhere to, accept that and I think you deserve to hear why. |
being the Holy Bible, which I individually and think by that, you've gutted the basic message of
personally believe, but there are many other this document. And I appreciate where you're
people that may not believe in that particular | coming from. I don’t apologize for that position.
version of creation.
Transcript of School Board meeting, April 19, 1994, p. 13
Transcript of Tangipahoa Parish Board of Education meeting, (Joint Exhibit 2).
April 19, 1994, pp. 5-6 (Joint Exhibit 2).
‘ 3 In further answering Guess’ questions about the
Board member Guess later explained his objection to disclaimer, Bailey responded:
the inclusion of the phrase “Biblical version of creation,” in
this manner:
Can I give you an example of the problem that |
have? Is everybody says [sic] ‘the Biblical version
of creation or any other concept.’ Well, we
mentioned ‘any other concept,’ but we mentioned
specifically the Biblical version of creation. What
if we substituted the Biblical version for the Hindu
version of creation or any other concept, or the |
American Indian version of creation or any other =
concept? Would anybody in this room vote to do ;
that? I don’t think so. That’s my point.
Transcript of School Board meeting, April 19, 1994,
pp. 23-24 (Joint Exhibit 2).
In explaining why he rejected the suggestion that the
phrase “the Biblical version of creation” be deleted, Board
member Bailey, who introduced the proposal, explained:
Mr. Chairman, let me answer this. Mr. Guess
is speaking as an individual on that. Let’s just
face facts. We can talk about Hindu, we can talk
about Mohammed, we can talk about ali this other
stuff, but there are two basic concepts out there
and usually you call them — in fact, you would
be hard pressed probably to find many that you
would call on one or the others. Now, I happen to
feel that a large, large percentage, perhaps
95 percent, fall into the category of believing in
divine creation. But the whole point is that those
are the two main concepts and I don’t think we
need shy away, or hide away from saying that this
is not to dissuade from the Biblical version. .. .
You know, I want to preempt my closing remarks,
Mr. Chairman, but I’m just telling you that that
needs to be put in that particular part of this
document and clearly stated so that it will be
clearly understood by any and all as to exactly
what we mean to say. And that — that’s all we’re
44a
Appendix C
trying to do there. And — And to be out front,
the Board way what we're trying to say; we're
criticized so often with being abstract and these
sorts of things. You know, say what you want to
say. And that’s what his document does.
Appendix C
their first science class, and here comes this same
thing of the analogy of government; somebody
comes and tells them that they are a mere accident,
that —- that they’re a product . . . of the Big Bang
theory and that that’s why they are here, and the
kid is thinking and saying, “Wait a minute. This
doesn’t coincide with what my parents taught me.
ting, April 19, 1994, “Sear
Transcript of School Board meeting, Ap This is not what I learned in Sunday school.” . . .
pp. 25-26 (Joint Exhibit 2).
In his closing remarks, immediately prior to the vote on
the : é réasons he
- offered the proposal:
~ being any — any part of that and — I’m going to
give it my best effort and now you have your
Folks, I’m just telling you that I can’t goon
- Let me — Let me say this. Hopefully this can
maybe put this thing in perspective. But if it were
a government class, a history class at school, and
the teacher got up and was going to talk about
various forms of government ... and he or she
talked about the dictatorial form of government
and didn’t mention democracy, and then went on
to another subject, wouldn’t people stop and say
“Hey, wait, didn’t you forget democracy? Don’t
we live in a democracy? You forgot about that.
Hey, wait, don’t go any further.” And — And isn’t
that — Is that what we’re doing now? Isn’t it so
that a large percentage, something in the
90 percent of our youngsters, are taught, from .
infancy on up, that — that God created all life
and matter? And we -— And those kids were sent
to school, they get in that classroom at that young
age of, what, third, fourth grade or whatever, here
comes their first science textbook, here comes
opportunity to change things. We’re not here
tonight to ask you to adopt creationism. We were
here a month ago or two months ago asking that,
and — and we understand that and — but we are
simply asking this as a very reasonable
compromise, for this disclaimer, to put this thing
in perspective.
We — We — We would like that it not be
taught as fact. That youngster, when that material
is presented to him, and he reads it out of a
textbook, it is — it is thought to be fact when
there is nothing disclaiming it, or there is not
another lesson given to explain other concepts. ©
What else can he do except take it for fact? I
Gib sis
I feel this is very reasonable and it — it’s
terribly important. It’s — It’s important because
there is so much riding on a youngster’s concept
46a
Appendix C
of the origin . . . of life and matter. If it was an
accident, life is not important, because, you see,
it’s just an accident. Human lives are not
important, that means that this thing of abortion
is — gives more validity to that, because life is
not important, and — and the fact that the crime
record — crime rate is sweeping our nation,
sweeping our state, you see, it gives credibility
there because life is not important because we are
just here by accident... . I just want to tell you
how important, how eternally important this vote
is. So when this roll call vote is made, I just urge
you to support what I feel is a very reasonable
compromise.
Transcript of School Board meeting, April 19, 1994,
pp. 29-33 (Joint Exhibit 2).
At the April 19, 1994 meeting, no member of the School
Board listed any non-religious theory for the origin of life
and matter, except for a casual mention of the “Big Bang
theory. All of the “other concepts” which the School Board
members intended “not to influence or dissuade” were
religious, including the Biblical version of Creation, which
was listed in the disclaimer, as well as others which were
not specifically listed, such as the Hindu version, Islamic
version, or the American Indian version.
In the trial testimony, Board member Bailey stated that
the reason he proposed the disclaimer was due to the
discontent of his constituents with the teaching of evolution
as fact. Bailey testified that his constituents do not share the
47a
Appendix C
belief in evolution, that they believe the Biblical version of
creation, and that they “resent their children being confused
with the presentation of the theory of evolution.”
During the discussion of the proposed resolution, no
Board member stated that the reason the disclaimer was being
introduced was to urge students to exercise their critical
thinking skills or to examine all alternatives when forming
opinions, purposes later embraced by Board members in
depositions or in trial testimony. The discussions at the—
proposed meeting centered on the strong belief by certain
Board members that schoolchildren should not be taught
evolution as fact, that they would be confused by the teaching
of evolution in public school because most of the children
are taught the Biblical theory of creation or creation by a
Higher Being in Sunday School.
The students in Tangipahoa Parish Public Schools are
encouraged to exercise critical thinking skills in all classes,
including science classes. Even before the adoption of the
disclaimer resolution, students being taught evolution in
science classes had the right to discuss any alternative
theories other than evolution in class, and teachers were free
to mention concepts concerning the origin of life and matter
other than evolution and encourage students to consider them.
Despite this, the teaching of evolution has created
controversy for many years in Tangipahoa Parish Public
Schools, as well as in other schools and communities.
The School Board mandates no disclaimer prior to the
teaching of any other subjects or theories in Tangipahoa
Parish Public Schools. It does require that parents sign
48a
Appendix C
consent forms prior to the teaching of sex education and
before their child viewed an edited version of the movie
Schindler's List.
To date of trial, implementation of the disclaimer has
not been enforced by the School Board.
Il.
The challenge to the disclaimer mounted by the plaintiffs
arises out of the First Amendment to the United States
Constitution, which proclaims simply that “Congress shall .
make no law respecting an establishment of religion, or
prohibiting the free exercise thereof” and out of Article 1,
§ 8 of the Louisiana Constitution, which states that “No law
shall be enacted respecting an establishment of religion or
prohibiting the free exercise thereof.”' The issue presented
is whether this disclaimer violates the Establishment Clause.’
There is a plethora of jurisprudence interpreting this
clause. While there have been decisions which have not
named it specifically, the decision in Lemon v. Kurtzman,
403 U.S. 602, 91 S.Ct. 2105 (1971) enunciated the seminal
method of analysis (dubbed the Lemon test) to be employed
' The prohibitions contained in the First Amendment to the
United States Constitution were rendered applicable to the states in
the Fourteenth Amendment.
2? Since the language in both the federal and state constitution
are identical in this respect, the clauses at issue shall be referred to
in the singular as “the Establishment Clause.”
49a
Appendix C
when determining whether governmental action runs afoul
of the Establishment Clause, as follows:
Every analysis in this area must begin with
consideration of the cumulative criteria developed
by the Court over many years. Three such tests
may be gleaned from our cases. First, the statute
must have a secular legislative purpose; second,
its principal or primary effect must be one that
neither advances nor inhibits religion [citation
omitted]; finally, the statute must not foster ‘an
excessive government entanglement with
religion’ [citation omitted].
403 U.S. at 612-613, 91 S.Ct. at 2111. If the proposed
legislation does not satisfy each of these prongs, it violates
the Establishment Clause. Edwards vy. Aguillard, 482 U.S.
578, 583, 107 S.Ct. 2573, 2577 (1987).
There has been much criticism of the Lemon test by
members of the Court, but nevertheless, as recently as June
23, 1997, the Supreme Court in Agostini v. Felton, U.S.
__, 117S.Ct. __, 1997 WL 338538 (1997), applied the Lemon
test in analyzing whether the Title | program administered
by the Board of Education of the City of New York violated
the Establishment Clause. It concluded that “New York
City’s Title I program does not run afoul of any of the three
primary criteria we currently use to evaluate whether
government aid has the effect of advancing religion: it does
not result in governmental indoctrination; define its
recipients by reference to religion; or create an excessive
entanglemext.” This decision was delivered by Justice
50a
Appendix C
O’Connor and joined by Chief Justice Rehnquist and Justices
Scalia, Kennedy and Thomas.’
While several Justices have sought to abandon the Lemon
test, even one of its most vehement detractors, Justice Scalia,‘
’ Justice Scalia has frequently been critical of the Lemon test,
as this excerpt from his dissent in Lee v. Weisman, Lee v. Weisman,
505 U.S. 577, 644, 112 S.Ct. 2649, 2685 (1992) demonstrates:
Our Religion Clause jurisprudence has become
bedeviled (so to speak) by reliance on formulaic
abstractions that are not derived from, but positively
conflict with, our long-accepted constitutional
traditions. Foremost among these has been the so-called
Lemon test [citation omitted], which has received
well-earned criticism from many Members of this
Court. . . . The Court today demonstrates the irrelevance
of Lemon by essentially ignoring it, ... and the
internment of that case may be the one happy byproduct
of the Court’s otherwise lamentable decision.
- Unfortunately, however, the Court has replaced Lemon
with its psycho-coercion test, which suffers the double
disability of having no roots whatever in our people's
historic practice, and being as infinitely expandable as
the reasons for psychotherapy itself.
‘ In his concurrence in Lamb's Chapel v. Center Moriches
Union Free School District, 508 U.S. 384, 113 S.Ct. 2141 (1993),
Justice Scalia attacks the majority's application of the Lemon test,
as follows:
As to the Court’s invocation of the Lemon test: Like
some ghoul in a late-night horror movie that repeatedly
(Cont'd)
Sla
Appendix C
(Cont'd)
sits up in its grave and shuffles abroad, after being
repeatedly killed and buried, Lemon stalks our
Establishment Clause jurisprudence once again
frightening the little children and school attorneys of
Center Moriches Union Free School District. Its most
recent burial, only last Term, was, to be sure, not fully
six-feet under: our decision in Lee v. Weisman, 505 U.S
$77 [585], 112 S.Ct. 2649, 2654 (1992), conspicuously
avoided using the supposed ‘test’ but also declined the
invitation to repudiate it. Over the years, however, no fewer
than five of the currently sitting Justices have, in their own
opinions, personally driven pencils through the creature’s
heart (the author of today’s opinion repeatedly), and a sixth
has joined an opinion doing so. [Citations omitted].
The secret of the Lemon test's survival, | think. is
that it IS SO easy to kill. It is there to scare us (and our
audience) when we wish it to do so, but we can
command it to return to the tomb at will. See, e.g., Lynch
v. Donnelly, 465 U.S. 668, 679, 104 S.Ct. 1355, 1362
(1984) (noting instances in which Court has not applied
Lemon test). When we wish to strike down a practice it
forbids, we invoke it, see, e.g., Aguilar v. Felton, 473
U.S. 402, 105 S.Ct. 3232 (1985) (striking down state
remedial education program administered in part in
parochial schools); when we wish to uphold a practice
it forbids, we ignore it entirely, see March v. Chambers
463 U.S. 783, 103 S.Ct. 3330 (1983) (upholding state
legislative chaplains). Sometimes, we take a middle
course, calling its three prongs ‘no more than helpful
signposts,’ Hunt v. McNair, 413 U.S. 734, 741 (1973).
Such a docile and usefui monster is worth keeping
around, at least in a somnolent state; one never knows
when one might need him.
(Cont'd)
S2a
Appendix C
has joined in the majority opinion in Agostini, which invokes
the test in reversing its prior decisions in Aguilar v. Felton,
473 U.S. 402, 105 S.Ct. 3232 (1985) and School Dist. of
Grand Rapids v. Ball, 473 U.S. 373, 105 S.Ct. 3216 (1985)
Thus, the Lemon analysis remains the method by which
Establishment Clause challenges must be judged.
In order to satisfy the first prong of the Lemon test, the
resolution must have a secular legislative purpose. The
Supreme Court in Edwards v. Aguillard, 482 U.S. at 585,
107 S.Ct. at 2578, studied the legislative purpose underlying
the passage by the Louisiana Legislature of the “Balanced
Treatment for Creation-Science and Evolution-Science in
Public School Instruction” Act (Creationism Act). The
Edwards Court analyzed both the official stated purpose and
the motivations behind the promulgation of the statute, as
(Cont'd) | |
For my part, I agree with the long list of
constitutional scholars who have criticized Lemon and
bemoaned the strange Establishment Clause geometry
of crooked lines and wavering shapes its intermittent
use has produced. . .. | will decline to apply Lemon —
whether it validates or invalidates the government action
in question — and therefore cannot join the opinion of
the Court today.
113 S.Ct. at 2150. Nevertheless, Justice Scalia joined the majority
opinion in Agostini, as did four other justices, with no mention of
of Lemon have been greatly exaggerated. As made evident in
Agostini, Lemon lives.
S3a
Appendix C
evidenced by the discussion of the legislative sponsor and
other legislators, to determine the true purpose. The Court
explained:
A governmental intention to promote religion is
clear when the State enacts a law to serve a
religious purpose. This intention may be
evidenced by promotion of religion in general
[citation omitted], or by advancement of a
particular religious belief [citation omitted]. If the
law was enacted for the purpose of endorsing
religion, ‘no consideration of the second or third
criteria [of Lemon] is necessary. Wallace v.
Jaffree, 472 U.S. 38, 56, 105 S.Ct. 2479, 2489
(1985).
Edwards, 482 U.S. at 585, 107 S.Ct. at 2578. The Court
remarked that:
[The Supreme Court] has been particularly
vigilant in monitoring compliance with the
Establishment Clause in elementary and
secondary schools. Families entrust public
schools with the education of their children, but
condition their trust on the understanding that the
classroom will not purposely be used to advance
religious views that may conflict with the private
beliefs of the student and his or her family.
Students in such institutions are impressionable
and their attendance is involuntary.
Edwards, 482 U.S. at 584, 107 S.Ct. at 2577.
S4a
Appendix C
The Edwards Court noted that while the Creationism
Act’s stated purpose was to protect academic freedom, such
a goal was not furthered by either the outlawing of the
teaching of evolution or the mandating of the teaching of
creation science. “While the Court is normally deferential
to a State’s articulation of a secular purpose, It Is required
that the statement of such purpose be sincere and not a sham.
Edwards, 482 U.S. at 586-587, 107 S.Ct. at 2579. In finding
that the stated purpose was not the true reason that the Act
was passed, the Court recognized that Louisiana public
school teachers already possessed the flexibility “to supplant
the presentation of theories, besides evolution, about the
origin of life. [Teachers in Louisiana could teach any
‘scientific concept that’s based on established fact prior to
the passage of the legislation]. The Act provides Louisiana
school teachers with no new authority.” /d. The Court found
that therefore the stated purpose is not furthered by the Act.
Instead, the Edwards Court found that Pog 0
urpose of the Creationism Act is to endorse
mcarve licens doctrine, the Act furthers religion in
violation of the Establishment Clause.” 482 U.S. at 595, 107
S.Ct. at 2583. The Act required that whenever evolution was
taught in public schools, creationism, the religious viewpoint
that a supernatural being created humankind, also be taught.
In concluding that the Act had a religious purpose, the Court
recognized that the true purpose fostered the Act was to
restructure the science curriculum to conform with the
doctrine of religious groups espousing as one of its primary
tenets the belief that humans were created by a Divine
Creator. No other science subject was burdened with the
mandate that alternative theories be taught, although the
SSa
Appendix C
teachers had the flexibility prior to the Act to discuss a variety
of theories about the origin of life.
In another decision touching upon the Establishment
Clause’s application in an elementary public school setting,
the Supreme Court in Wallace y. Jaffree, 472 U.S. 38, 105
S.Ct. 2479 (1985), found that an Alabama statute authorizing
a period of silence for “meditation or voluntary prayer” was
a law respecting the establishment of religion within the
meaning of the First Amendment and thus was in violation
of it. 472 U.S. at 41-42, 60, 105 S.Ct. at 2482, 2492. In
reaching this conclusion, the Court explained the important
policy reasons supporting the First Amendment’s
Establishment Clause, as follows:
Just as the right to speak and the right to refrain
from speaking are complementary components of
a broader concept of individual freedom of mind,
so also the individual’s freedom to choose his own
creed is the counterpart of his right to refrain from
accepting the creed established by the majority.
At one time it was thought that this right merely
proscribed the preference of one Christian sect
over another, but would not require equal respect
for the conscience of the infidel, the atheist, or
the adherent of a non-Christian faith such as Islam
or Judaism. But when the underlying principle has
been examined in the crucible of litigation, the
Court has unambiguously concluded that the
individual freedom of conscience protected by the
First Amendment embraces the right to select any
religious faith or none at all. This conclusion
56a
Appendix C
derives support not only from the interest in
respecting the individual’s freedom of conscience,
but also from the conviction that religious beliefs
worthy of respect are the product of free and
voluntary choice by the faithful, and from
recognition of the fact that the political interest
in forestalling intolerance extends beyond
intolerance among Christian sects — or even
intolerance among ‘religions’ — to encompass
intolerance of the disbeliever and the uncertain.
As Justice Jackson eloquently stated in West
Virginia Board of Education v. Barnette, 319 U.S.
624, 642, 63 S.Ct. 1178, 1187 (1943):
‘If there is any fixed star in our
constitutional constellation, it is that no
official, high or petty, can prescribe
what shall be orthodox in politics,
nationalism, religion, or other matters
of opinion or force citizens to confess
by word or act their faith therein.
The State of Alabama, not less than the Congress
of the United States, must respect that basic truth.
Wallace, 472 U.S. at 52-55, 105 S.Ct. at 2487-2489.
The Wallace Court recognized that it was the first Lemon
criterion, that of the secular or religious purpose of the
resolution, which was most obviously at issue there, as in
the present case. If the resolution does not have a clearly
secular purpose, then consideration of the others is
57a
Appendix C
unnecessary. While a proposed state act may be motivated
in part by religion, it is unconstitutional “if it is entirely
motivated by a purpose to advance religion.” Wallace, 472
U.S. at 57, 105 S.Ct. at 2489.
In attempting to discern whether the government’s
purpose was to endorse or disapprove of religion in enacting
the statute, the Wallace Court studied the legislative record
and whether in fact, if the statute had not been passed, the
Alabama students in the Wallace case would have had the
right to pray during a moment of silence. The Supreme Court
found that the purpose of the legislature in enacting a law
authorizing a moment of silence for “meditation or silent
prayer” was to “convey a message of state endorsement and
promotion of prayer”, not merely to protect every student’s
right to engage in voluntary prayer, since every student
already had that right. Inasmuch as no law was required to
protect a student’s right to pray, the Court found that, in the
absence of a finding that the statute had no meaning, it had
no secular purpose. The Wallace Court concluded:
Such an endorsement is not consistent with the
established principle that the government must
pursue a course of complete neutrality toward
religion. The importance of that principle does
not permit us to treat this as an inconsequential
case involving nothing more than a few words of
symbolic speech on behalf of the political
majority.
472 U.S. at 56, 60, 105 S.Ct. at 2489-90, 2491-92.
58a
Appendix C
With this rich tapestry of jurisprudential guidance from
the Supreme Court, this Court must determine whether the
disclaimer resolution mandated by the School Board passes
the constitutional test.
IV.
The School Board mandated that school teachers
teaching the science lesson of evolution state that the School
Board itself recognizes that this lesson is presented “to inform
students of the scientific concept and not intended to
influence or dissuade the Biblical version of Creation or any
other concept.” The School Board also required that school
teachers advise students that they have the right to form their
own opinions on the theory of evolution, that they may
“maintain beliefs taught by parents on this very important
matter of the origin of life and matter” and that they “are
urged to exercise critical thinking,” “gather all information
possible” and “closely examine each alternative toward
forming an opinion.” In the preamble to the disclaimer, the
School Board states that it is intended as a “disclaimer from
endorsement” of the theory of evolution.
A “disclaimer” is defined as “[a] repudiation or denial
of a claim”. Endorsement is “an act of endorsing,” 1.e., an
act giving approval or sanction. The American Heritage
Dictionary of the English Language (Houghton Mifflin Co.
1976). Thus, the School Board members intended to deny
that it was approving the theory of evolution, yet the teaching
of the theory of evolution is a required component of the
curriculum of Louisiana Public Schools, including those in
Tangipahoa Parish.
59a
Appendix C
Both parties stipulated that critical thinking and
gathering of information are encouraged in all classes, and
specifically in science classes. It was also stipulated that
“[e]ven before the Disclaimer resolution was adopted,
teachers in Tangipahoa Parish had the right to mention
viewpoints other than evolution to their students, and often
discussed those viewpoints and encouraged students to
explore them.” Stipulations of Fact 9 and 10.
Therefore, it is undisputed that the teachers of
Tangipahoa Parish public schools had the right to discuss
alternate theories of the creation of life and could
independently research such topics. It is also undisputed that
there is no other scientific theory in the science curriculum
of which the School Board disclaims endorsement. On no
other topic in the science curriculum, or indeed in any other
subject, does the School Board announce its intention not to
influence or dissuade whatever opinion the student may
already hold. Parents may deny consent to their children
attending sex education or viewing the movie Schindler's
List, but parental consent is not required prior to the teaching
of any topic in the science curriculum, including evolution.
The discussion at the School Board meeting by the Board
members, the public, and the sponsor of the resolution, E.F.
Bailey, does not reveal a clearly secular purpose. Mr. Bailey
candidly stated that he did not want evoiution taught as fact
because, in his opinion, it was terribly important that
youngsters not believe that human lives were the result of
“an accident”, that students would be confused by the
teaching of evolution because it did not coincide with what
they learned in Sunday School, and that this is a “very
60a
Appendix C
reasonable compromise” between the adoption of a policy
allowing creationism to be taught, which was proposed and
defeated a few months prior to the adoption of the disclaimer,
and the teaching of evolution only in the science classes of
the public schools of Tangipahoa Parish. Joint Exhibit 1,
pp. 29-33.
In fact, it is patent that Bailey, and other School Board
membets, believed that teaching the theory of evolution is
antithetical to the religious belief in the creation of life by a
Divine Creator, that the proposal was introduced to satisfy
similar religious concerns of majority of the constituency,
and that if the proponents of Creation Science must accept
the fact that it cannot be taught in the public schools, as it is
taught in Sunday School, then the disclaimer is a “very
reasonable compromise.” Bailey also clearly underscored his
fervent wish that the disclaimer be adopted so that the
religious beliefs of students in Divine Creation not be
undermined by the teaching of creation as an “accident” or
by the “Big Bang theory”, because other vital moral issues
surround the importance of life, such as abortion and the
crime rate. In fact, Bailey would not accept a proposal to
delete the reference to “the Biblical version of Creation,”
because he believed it would “gut the basic message” of the
disclaimer.
As hard as it tries to, this Court cannot glean any secular
purpose to this disclaimer. While the School Board
intelligently suggests that the purpose of the disclaimer is to
urge students to exercise their critical thinking skills, there
can be little doubt that students already had that right and
are so urged in every class. The School Board also stresses
ola
Appendix C
that the point is that the teachers advise the students that
they have the right to form their own opinions or maintain
the beliefs taught to them by parents or in Sunday School on
the origin of life. This Court can hardly conceive that students
do not already have that right, or are unaware that they have
it, or conversely, in its absence, that teachers in Tangipalioa
Parish public schools teach students that they do not have
the right to believe in Divine Creation, if they so choose. As
the Wallace Court recognized, if there is no clearly secular
purpose to the act, the Court is left with but two conclusions:
(1) the act was enacted for religious purposes, or to convey
a message of endorsement of religion; or (2) the act had no
purpose. In the absence of a finding that the School Board
passed a meaningless or irrational resolution, the Court must
find that the disclaimer was passed for religious reasons.
A review of the all of the evidence presented leaves little
doubt that the reasons for the adoption of the resolution were
religious.
Even the School Board acknowledges the religious
underpinnings of the disclaimer, if somewhat indirectly. It
states in its Trial Brief that the “School Board approved the
resolution as a means of responding to the sensibilities and
sensitivities of a diverse, pluralistic student population and
their parents” and as “a disclaimer from an official orthodoxy
concerning a controversial topic upon which many hold.
strong but differing opinions.” School Board Trial Brief,
p. 2 and 3. These “sensibilities and sensitivities” are religious
ones, however, because they relate to the espousal of parents
and students of religion, “the expression of man’s belief in
and reverence for a superhuman power recognized as the
creator and governor of the universe.” The American
62a
Appendix C
Heritage Dictionary of the English Language (Houghton
Mifflin Co. 1976). What offends parents, students, and
School Board members about the teaching of evolution, and
the reasons which underlay the Creation Science proponents,
is that the teaching of the scientific theory of evolution in
public schools is not accompanied by the theory, indeed the
belief, that a Supreme Being was the designer and creator of
humankind.
The School Board, in disclaiming evolution as an official
orthodoxy, is expressing its view that, if the students believe
or have been taught that the theory of evolution is essentially
a religious teaching, the School Board officially denies
approving of such spiritual doctrine. There is no secular
purpose to this official denial. While many of diverse
religious beliefs may disagree with such a characterization
of evolution, the manner and the contemporaneous proposal
and adoption of the disclaimer, the discussions and comments
at the School Board meeting during which it was passed, the
testimony submitted at trial, and the historical context in
which the subject arises, demonstrate by a preponderance of
the evidence that religious concerns motivated the
disclaimer.’ In mandating this disclaimer, the Schoo! Board
* The Supreme Court in Edwards recognized this
characterization of the theory of evolution, noting that the passage
of the Creationism Act by the Louisiana state legislature was, by
admission of a state senator:
[T]o redress the fact that theory of evolution incidentally
coincided with what he characterized as religious beliefs
antithetical to his own. The legislation therefore sought
to alter the science curriculum to reflect endorsement
(Cont'd)
63a
Appendix C
(Cont'd)
of a religious view that 1s antagonistic to the theory of
evolution. In this case, the purpose of the Creationism
Act was to restructure the science curriculum to conform
with a particular religious viewpoint. Out of many
possible science subjects taught in the public schools,
the legislature chose to affect the teaching of the one
scientific theory that historically has been opposed by
certain religious sects... . [T}he legislature passed the
Act to give preference to those religious groups which
have as one of their tenets the creation of humankind
by a divine creator. .. . Similarly, the Creationism Act
is designed either to promote the theory of creation
science which embodies a particular religious tenet by
requiring that creation science be taught whenever
evolution is taught or to prohibit the teaching of a
scientific theory disfavored by certair. religious sects
by forbidding the teaching of evolution when creation
science is not also taught. The Establishment Clause,
however, “forbids alike the preference of a religious
doctrine or the prohibition of theory which 1s deemed
antagonistic to a particular dogma.” [Epperson v. Arkansas,
393 U.S. 97, 106-107, 89 S.Ct. 266, 271 (1968) (statute
forbidding the teaching of evolution invalidated). Because
the primary purpose of the Creationism Act is to advance
a particular religious belief, the Act endorses religion in
violation of the First Amendment.
Edwards, 482 U.S. at 593-594, 107 S.Ct. at 2582-2583. While many
individuals who embrace Christianity or Judaism, and other
religions, as their faiths believe both in the theory of evolution as a
scientific explanation for the origin of life and in creation by a Divine
Creator, it is evident that Bailey, who introduced the disclaimer,
and the constituents on whose behalf he was acting, consider a belief
in the theory of evolution and a belief in Divine Creation to be
mutually exclusive.
64a
Appendix C
is endorsing religion by disclaiming the teaching of evolution
in such a manner as to convey the message that evolution is
a religious viewpoint that runs counter to the religious belief
of the Biblical theory of Creation, or other religious views.
An endorsement of religion is a violation of the
Establishment Clause and thus must be invalidated.
The Court understands the well-intentioned motivations
of the sponsors of the resolution, the Board Members who
voted for it, and the constituency who urged passage of it,
and in no way intends to disparage those deeply held
convictions which support the desire to encourage
schoolchildren to maintain the religious or spiritual beliefs
they are taught at home or in church. While encouraging
students to maintain their belief in the Bible, or in God, may
be a noble aim, it cannot be one in which the public schools
participate, no matter how important this goal may be to its
supporters. The reasons for the Establishment Clause to the
Constitution of the United States have been recognized and
reiterated by the Supreme Court in its many difficult
confrontations with these issues, but it bears repeating that
“[t}he place of religion in our society is an exalted one,
achieved through a long tradition of reliance on the home,
the church and the inviolable citadel of the individual heart
and mind. We have come to recognize through bitter
experience that it is not within the power of the government
to invade that citadel, whether its purpose or effect be to aid
or oppose, to advance or retard. In the relationship between
man and religion, the State is firmly committed to a position
of neutrality.” School District of Abington Township, Pa. v.
Schempp, 374 U.S. 203, 226, 83 S.Ct. at 1574 (1963).
65a
Appendix C
Accordingly, for the above and foregoing reasons, the
Court finds that the disclaimer is unconstitutional as it
contravenes the Establishment Clause of the First
Amendment, as made applicable to the states in the
Fourteenth Amendment, of the United States Constitution,
and Article |, § 8 of the Louisiana Constitution. The Court
shall enter judgment enjoining the reading of the disclaimer
in the Tangipahoa Parish public schools and shall enter a
declaratory judgment finding that the disclaimer violates the
Establishment Clause of the United States Constitution, as
contained in the First and Fourteenth Amendment, and
Article |, § 8 of the Louisiana Constitution.
Plaintiff is hereby directed to file any motion directed
to the recovery of attorneys’ f
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