Opposition Brief — Tangipahoa Parish Board of Education v. Freiler

No. 99-1625

In The

Supreme Court of the United States

e

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 United States Court Of Appeals

For The Fifth Circuit

¢

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

e

Marjorie R. EsMAN WILLIAM QUIGLEY

Counsel of Record Loyola Law School

A Professional Law 7214 St. Charles Ave.,

Corporation Box 902

701 South Peters St., New Orleans, LA 70118

Suite 100 504-861-5590

New Orleans, LA 70130 General Counsel,

504-524-5328 Ss ACLU Foundation

Cooperating Attorney, of Louisiana

ACLU Foundation of

Louisiana

Attorneys for Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

4 '

\

QUESTION PRESENTED

Whether a school board has unlawfully advanced

and endorsed religion by singling out the scientific the-

ory of evolution as the sole topic in the curriculum sub-

ject to a mandatory disclaimer, when that disclaimer

encourages students to adhere to the Biblical version of

creation, was adopted immediately after the defeat of a

proposed “Creation Science” curriculum, and was intro-

duced specifically because its proponent believed that

most students believe in the Biblical version of creation

rather than in the scientific evidence.

TABLE OF CONTENTS

Page

QUESTION PRESENTED... ..cscivecvscsscinssuneeus i

STATEMENT OF THE CASE.....6.0.......0 0c eeeee 1

A. The Disclaimer’s Context: ...........eisce0e- 2

1. “Creation Science”: The Background ..... 2

2. The Adoption of the Disclaimer.......... 3

B. The Disclaimer Was Adopted to Defeat Diver-

sity, Net ta Feemate Boe vcascccardctcenuuses 5

C. There Were No “Hurt Feelings” To Assuage.... 6

REASONS FOR DENYING THE WRIT............. 7

1. This Is Not an Exceptional Case ............. 7

2. The Disclaimer Advances Religion in Violation

of Settled Peecedemt. ...sicsascpntuseacunenen 10

A. Public Schools Must be Neutral on Reli-

BONS DEDUSTB. 2 occ cviccissecedsbenannueel 10

B. There is No Conflict in the Circuits on the

Issues Raised, and the Decision Below is

Fully Consistent with Controlling Law ... 11

COINLATIIOIN 2 os cccsccvcasenvnsesus sheen 13

TABLE OF AUTHORITIES

Page

Cases

Edwards v. Aguillard, 482 U.S. 578, 107 S.Ct. 2573

ILE ESTES PEO LETTE ETE 3, 6, 8, 11

Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261 (1962).... 10

Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266

TCC h obec ebcbcuceecetccccccencecess 8, 11

Helland v. South Bend Community School Corpora-

Er 12

Lee v. Weisman, 505 U.S. 577 (1992)...............4.. 10

Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105

EE ELE AES IESE SESS OP OPOTT TTT TTT TTT 10, 11

Peloza v. Capistrano Unified School District, 37 F.3d

EEE EES 12

Rice v. Sioux City Memorial Park Cemetery, Inc., 349

| | te | Bee 8, 9

Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479 (1985) .... 10

Webster v. New Lenox School District No. 122 et al.,

917 F.2d 1004 (7th Cir. 1990)...............600005. 12

West Virginia State Board of Education v. Barnette,

ic cc chdecescecnccecesccccescece: 10

re)

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STATEMENT OF THE CASE

This case represents the latest in the continuing series

of attempts to impose upon schoolchildren a religiously-

based and doctrinal interpretation of life’s origins and

thereby to undermine both established science curricula

and the benefits of a secular public education. Prohibited

by the Constitution and Louisiana law from banning the

teaching of evolution and from requiring the teaching of

religious “alternatives,” the Tangipahoa Parish Board of

Education (“School Board”) has sought to do through the

back door what it cannot do through the front: instruct

students not to believe their science teachers and the

state-mandated science curriculum, but to adhere to reli-

gious interpretations of life’s origins instead. This case,

plain and simple, is about whether a school board may

use its science classrooms to encourage its students to

believe in religion over science. To pose the question is to

answer it: a long line of decisions, of this Court and of

lower ones, make it clear that a school board may do no

such thing.

By disclaiming only evolution — the one element of

the school curriculum that generates religious contro-

versy — the School Board has violated both the constitu-

tional mandate of neutrality toward religion and its

obligation to provide its students with secular educations

free from religious indoctrination or partisanship. The

Fifth Circuit twice correctly recognized the impropriety

of the School Board’s thinly disguised efforts to impose a

religious view on its students, and twice declared the

disclaimer statement unconstitutional. Freiler, et al. v. Tan-

gipahoa Parish Board of Education, et al., 185 F.3d 337 (Sth

Cir. 1999) (“Freiler I”); Freiler, et al. v. Tangipahoa Parish

Board of Education, et al., 201 F.3d 602 (Sth Cir. 2000)

(“Freiler II”). Because those rulings were correct, this

Court should deny the request for certiorari.

The Opinion on which the Petition is based is

expressly limited to the factual context of this Disclaimer

(Appendix A to Petition, p. 2a). The Petition misstates

those facts in several material respects, notably by mis-

characterizing the Disclaimer’s stated purpose and its

pertinent history. The District Court issued extensive

findings of fact, all based on a stipulated record. Those

facts were repeated by the Fifth Circuit in Freiler I and

have not been challenged. (Appendix B to Petition, pp.

18a-20a and fn. 4 at 30a). Because the Opinion subject to

review is explicitly fact-based, a correct accounting of the

facts is critical.

A. The Disclaimer’s Context:

1. “Creation Science”: The Background

The Disclaimer did not arise in a vacuum. Over a

period of weeks shortly before the Disclaimer was intro-

duced, members of the School Board (including the Dis-

claimer’s proponent) engaged in an unsuccessful attempt

to have “religious materials” — including a full-blown

“Creation Science” curriculum - introduced into the >

schools. The matter of “religious materials” was initially

taken up by the curriculum committee where it was de-

teated. (Appendix C to Petition, pp. 39a-40a.) Despite its

defeat in committee the proposal, including the “Creation

Science” curriculum, was brought before the full School

Board for consideration. By a 5-4 vote, the School Board

voted not to adopt the “religious materials” policy.

(Appendix C to Petition, p. 40a). It was a few weeks after

this defeat that the Disclaimer was proposed and

adopted. (/d.)

2. The Adoption of the Disclaimer

The Disclaimer was introduced to the entire School

Board rather than to the curriculum committee, where it

belonged, because the committee had failed to approve

the “Creation Science” curriculum. (Appendix C to Peti-

tion, p. 4la).' At the meeting at which the Disclaimer was

proposed and adopted, Bailey (its proponent) made it

clear that he wanted the Disclaimer precisely because he

believed his constituents “do not share the belief in evo-

lution, that they believe the Biblical version of creation,

and that they ‘resent their children being confused with

the presentation of the theory of evolution.’ ” (Appendix

C to Petition, pp. 46a-47a).

In debating the Disclaimer, the School Board rejected

a motion to delete the reference to the “Biblical version of

creation.” The motion failed because, in Bailey’s words, “I

couldn’t accept that and I think you deserve to hear why.

' The School Board seeks praise for the fact that it never

sought to eliminate evolution from the curriculum. Because this

Court has ruled that school boards may not alter their curricula

to eliminate evolution, Edwards v. Aguillard, 482 U.S. 578, 107

S.Ct. 2573 (1987), and because Louisiana public schools are

required to teach evolution (Appendix C to Petition, p. 58a), the

School Board has no choice in this matter. It was trying to

tamper with the curriculum in the only way it could: to add a

religious “alternative” to evolution and to discourage students

from believing in the required science curriculum. The School

Board is not entitled to kudos for following the law.

I think that by that, you've gutted the basic message of

this document.” (Appendix C to Petition, p. 43a). In other

words, the “basic message” of the Disclaimer — as stated

by Bailey and endorsed by the School Board — was the

reference to the Bible. Bailey emphasized (without empir-

ical support) that he believes that “perhaps 95 percent” of

the students believe in divine creation, and that he

wanted the Disclaimer to ensure that students wouldn't

be confused by perceived discrepancies between what

they learn in school and what they learn. in Sunday

School. (Appendix C to Petition, pp. 43a-45a).

Although the text of the Disclaimer purports to

encourage students to explore “alternatives” to evolution,

the District Court correctly observed that in the debate

leading up to its adoption no School Board member listed

any non-religious theory as “alternatives.”(Appendix C

to Petition, p. 46a).2 All of the “other concepts” which

School Board members discussed were religious, includ-

ing the Biblical, as well as Hindu, Islamic, or American

Indian versions (Id.). Discussions centered on the premise

that children should not be taught evolution as “fact”

because it conflicts with what they learn in Sunday

School. (Appendix C to Petition, p. 47a). There were no

expressed concerns about perceived conflicting secular

explanations for the origins of life.

? Both the record and common sense indicate that there are

no such non-religious “alternatives.” Respondents offered a

report of an expert witness precisely to that effect. That report

was unrefuted by the School Board.

B. The Disclaimer Was Adopted to Defeat Diver-

sity, Not to Promote It

The School Board posits that the Disclaimer was

intended to address a diversity of beliefs in the school

system, yet the facts show just the opposite. As the Dis-

trict Court recognized, “during the discussion of the pro-

posed 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.” (Appendix C to Petition, ps 47a). In fact, the

Disclaimer was adopted to bring the curriculum in line

with the religious beliefs of what Bailey stated to be 95%

of the students. The discussion focused on concerns for

Christian students who, for religious reasons, may not

want to learn the theory of evolution. /d.

Nor was the reference to the Bible intended as “illus-

trative,” as the School Board now would have it. (Peti-

tion, p. 8). As the Freiler I decision explains, the reference

to the Bible was not illustration but the basic message.

(Appendix B to Petition, fn. 4, p. 30a). This is not, as the

School Board now contends, an attempt to promote diver-

sity or pluralism in the schools.* It is an attempt by

3 The dissent in Freiler 1] misinterpreted the facts in stating

that the purpose of the Disclaimer was to “advance tolerance

and respect for diverse viewpoints.” (Appendix A to Petition,

pp. 12a-13a). As the District Court found and Freiler | affirmed,

the record contains no evidence that tolerance and respect for

diversity were part of the discussions. The evidence is to the

contrary: The Disclaimer was proposed precisely to advance

adherents to a particular religious doctrine to impose that

doctrine on the teaching of science.

Moreover, evolution is the only topic in the curricu-

lum that the School Board disclaims. (Appendix C to

Petition, pp. 41a-48a). As this Court has found, objections

to evolution are religiously based, and evolution is the

one topic in a school curriculum that is religiously contro-

versial. Edwards v. Aguillard, 482 U.S. 578, 593, 107 S.Ct.

2573, 2582 (1987). If the School Board really wants to

encourage diversity of beliefs among its students, it

would disclaim all manner of information, and would

encourage students at all times and in all contexts to

“exercise critical thinking and gather all information pos-

sible and closely examine each alternative toward form-

ing an opinion.” Singling out the religiously charged

topic of evolution for such treatment shows that the

School Board intends critical thinking to apply only to

that subject. Under these facts, the Disclaimer clearly

advances and endorses religion.

C. There Were No “Hurt Feelings” To Assuage

The School Board’s post-hoc rationalization of the

Disclaimer portrays it as an attempt to assure students

that they may maintain their own opinions. However, the |

facts show that the Disclaimer was proposed not because

of any expressed concern by students, but to impose the

what its proponent insisted was the religious view of 90% or

95% of the students. Attempts to incorporate references to

minority religious beliefs, such as Hindu, Muslim, American

Indian, or others were explicitly rebuffed. (Appendix C to

Petition, pp. 42a-43a).

“-—

<<

religious beliefs of School Board members. The Dis-

claimer did not arise out of a student complaint, and

there is no evidence that “hurt feelings” ever existed

among students on this issue. In fact the reverse is true.

Before the Disclaimer was adopted, students had the

right to — and did — discuss “alternative” concepts with

their teachers on an individual basis. (Appendix C to

Petition, p. 47a). There were no student “outsiders”

before the Disclaimer, as the School Board now. claims

(Petition, p. 21). To the contrary, everyone was included:

teachers responded to student concerns individually as

they arose, and all had the opportunity to discuss what-

ever concepts they wanted with their teachers. Only with

the passage of the Disclaimer was there the chance of

students becoming outsiders, because the Disclaimer

mandates a specific reference to the “Biblical version of

Creation,” consistent with the religion of School Board

members but not with that of all of the students.

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REASONS FOR DENYING THE WRIT

This case does not meet any of the criteria of this

Court for granting certiorari. It is not an exceptional case;

the decision is in accord with established law; and there

is no conflict among the circuits.

1. This Is Not an Exceptional Case

The Fifth Circuit, in both its panel decision and in

denying rehearing en banc, limited its opinion to the

specific facts of this case. In Freiler I the court stated

“[wle limit our analysis to the precise language of the

8

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 evolution would

amount to an unconstitutional establishment of religion.”

Freiler I, (Appendix B to Petition, p. 20a). Affirming, the

court in Freiler Il said “[WJe 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.”

Freiler Il, (Appendix A to Petition, p.2a, emphasis sup-

plied).* Confined as it is to its specific facts, this is a

narrow ruling that does not warrant review.>

Certiorari is not appropriate in cases of isolated vio-

lations not likely to recur. Rice v. Sioux City Memorial Park

Cemetery, Inc., 349 U.S. 70, 75 S.Ct. 614 (1955). “Special

* It is obvious from Freiler | that the ruling in Freiler I] was

not intended to affirm the constitutionality of evolution

disclaimers generally. Freiler | specified the pertinent facts,

including the history of the failed “Creation Science”

curriculum and the discussions at the meeting when the

Disclaimer was adopted. (Appendix B to Petition, fn. 1 and pp.

16a-18a). The court in Freiler 11 was obviously referring to the

facts it had already found in saying that this disclaimer, under

these facts, fails constitutional muster.

> That teaching evolution may be of emotional import to

people in Tangipahoa Parish — or, more accurately, to members

of the School Board — does not justify intervention by this Court.

This Court long ago made it clear that school systems may not

tamper with the state-mandated teaching of evolution, e.g.

Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266 (1968); Edwards v.

_ Aguillard, 482 U.S. 578, 107 S.Ct. 2573 (1987). The School Board’s

dissatisfaction with this Court’s clear rulings is not sufficient

justification for certiorari.

and important reasons” warranting the grant of certiorari

“imply a reach to a problem beyond the academic or the

episodic. This is especially true where the issues involved

reach constitutional dimensions, for then there comes into

play regard for the Court’s duty to avoid decision of

constitutional issues unless avoidance becomes evasion.”

Id., 349 U.S. 70, 74. Following Rice, and in accordance

with this Court's duty to refrain from needlessly deciding

constitutional issues, certiorari should be denied in this

case, which is confined to a narrow set of facts unlikely to

recur.

Under the Opinion subject to review, any future dis-

claimer statements will have to be examined individually,

for their histories, contexts, and specific contents. It is a

virtual certainty that the precise facts of this Disclaimer -

arising just after the defeat of a “Creation Science” curric-

ulum, adopted specifically because it includes a reference

to the Bible and out of an expressed concern for the

90-95% of Christian students who adhere to Biblical pre-

cepts — will not recur elsewhere. This is as isolated a

violation as any can be, and for that reason it is not

appropriate for this Court's review.®

© The School Board would like this to be an “exceptional

case” simply because it claims to have been acting to reduce the

possibility of offense occasioned by the teaching of evolution.

(Petition, p. 8). However, a public school system is under no

obligation to avoid offending its students or their parents in

matters of curriculum. In fact the reverse may be true: it is the

duty of a school to challenge its students and to broaden their

minds and their horizons, not to spoon-feed only what they

already know.

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2. The Disclaimer Advances Religion in Viola-

tion of Settled Precedent

A. Public Schools Must be Neutral on

Religious Matters

This Court noted a long time ago that “[t]he very

purpose of a Bill of Rights was to withdraw certain

subjects from the vicissitudes of political controversy, to

place them beyond the reach of majorities and officials.”

West Virginia State Board of Education v. Barnette, 319 US.

624, 638 (1943). Consistent with that ruling, this Court has

long held that public schools may not choose sides in

religious controversies. Respect for the religious views of

all Americans, particularly schoolchildren, requires that

public schools remain neutral on religious matters. Wal-

lace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 2486 (1985), Engel

v. Vitale, 370 U.S. 421, 82 S.Ct. 1261 (1962). “It is a cor-

nerstone principle of our Establishment Clause jurispru-

dence that public schools not seek to influence religious

choices of students.” Lee v. Weisman, 505 U.S. 577, 588

(1992). As a matter of settled law, the religious views of

the majority in Tangipahoa Parish may not determine the

nature of the school curriculum.

Critical to the application of the Lemon endorsement

test, Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105 (1971),

is an understanding of the facts and context of the Dis-

claimer.? Evolution is the only topic in the Tangipahoa

Parish schools subject to such a disclaimer. It is singled

7 Respondents believe that the Disclaimer violates the

“purpose” prong of the Lemon test as well as the endorsement

prong, and to that extent they believe that the Fifth Circuit erred

in Freiler I.

11

out because School Board members have a religious

objection to it. This is per se endorsement of religion

under any possible analysis of Lemon or any other deci-

sion of this Court.* The Fifth Circuit, in both its panel and

en banc opinions, correctly applied the law on endorse-

ment. This matter therefore does not warrant review.

B. There is No Conflict in the Circuits on

the Issues Raised, and the Decision

Below is Fully Consistent with Control-

ling Law

The law is well settled that schools may not seek to

advance a religious alternative to evolution. Epperson v.

Arkansas, 393 U.S. 97, 89 S.Ct. 266 (1968) (striking down a

ban on teaching evolution); Edwards v. Aguillard, 482 U.S.

587, 107 S.Ct. 2573 (1987) (invalidating mandatory teach-

ing of “Creation Science”). Over the years there have

been many unsuccessful attempts to introduce “Creation

Science” into public school curricula, or otherwise to

undermine the teaching of science by introducing reli-

gious beliefs. Based on long-established precedent of this

Court, to date no lower court has permitted such an

8 The School Board makes much of the panel’s initial

substitution of the word “and” for “or” in one sentence of the

Disclaimer, positing that the Disclaimer does not endorse

religion because it encourages students to form their own

opinions rather than to adhere to those of their parents.

However, because any non-scientific “opinion” about life’s

origins is by definition religious, the court in Freiler I] properly

acknowledged that this error was a distinction without a

difference.

12

iv"

intrusion of religion into the science classroom. E.g. Pel-

oza v. Capistrano Unified School District, 37 F.3d 517 (9th

Cir. 1994) (upholding a teacher’s obligation to teach evo-

lution despite a religious objection); Helland v. South Bend

Community School Corporation, 93 F.3d 327 (7th Cir. 1996)

(upholding termination of substitute teacher who, among

other things, taught creationism in a fifth-grade science

class); Webster v. New Lenox School District No. 122, et al.,

917 F.2d 1004 (7th Cir. 1990) (upholding prohibition

against teaching “nonevolutionary theories of creation”).

The unanimity with which appellate circuits have struck

down all attempts to introduce religious “alternatives” to

evolution is further indication that the law in this area is

settled, that there is no conflict among the circuits, and

that this case does not warrant certiorari.

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CONCLUSION

For all of the above reasons, Respondents submit that

the Petition for Certiorari should be denied.

Respectfully submitted,

Magiorie R. Esman

Counsel of Record

701 South Peters St., Suite 100

New Orleans, LA 70130

504-524-5328

Cooperating Attorney, American

Civil Liberties Union of Louisiana

Wittiam Quiciey

General Counsel, American

Civil Liberties Union of Louisiana

7214 St. Charles Ave.

New Orleans, LA 70118

504-861-5590

Attorneys for Respondents