# Opposition Brief — Tangipahoa Parish Board of Education v. Freiler

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2000
- **Citation:** 530 U.S. 1251

## Text

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)
ce

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.

e

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.

10

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.

e

—————

13

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0363%3A3. Public record. Not legal advice.