Croft v. Governor of Texas

• Decision Date: 16 March 2009
• Docket Number: No. 08-10092.,08-10092.
• Citation: 562 F.3d 735
• Parties: David Wallace CROFT; Shannon Kristine Croft, as Parents and Next Friend of minor Children, Plaintiffs-Appellants, v. GOVERNOR OF the State of TEXAS, Rick Perry, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

562 F.3d 735

David Wallace CROFT; Shannon Kristine Croft, as Parents and Next Friend of minor Children, Plaintiffs-Appellants, v. GOVERNOR OF the State of TEXAS, Rick Perry, Defendant-Appellee.

No. 08-10092.

United States Court of Appeals, Fifth Circuit.

March 16, 2009.

Woody Dean Cook (argued), Law Office of Dean Cook, Plano, TX, for David Croft and Shannon Croft.

James C. Ho (argued), Susanna Dokupil, Austin, TX, for Perry.

Ayesha Khan, Nancy B. Leong, Washington, DC, Lisa S. Graybill, Fleming Terrell, Austin, TX, for Americans United for Separation of Church and State, American Civil Liberties Union, American Civil Liberties Union Foundation of Tex.

Hiram Stanley Sasser (argued), Kelly J. Shackelford, Plano, TX, for Kevin Shelly, Michael Shelly, Morgan, Michaela Wade, Bailey Wade, Katherine Gualy, Sarah Gualy.

David Andrew Cortman, Lawrenceville, GA, Benjamin W. Bull, Jeremy D. Tedesco, Scottsdale, AZ, for Alliance Defense Fund.

Benjamin David DuPre, Law Offices of Benjamin D. DuPree, Montgomery, AL, for Foundation for Moral Law.

Steven W. Fitschen, Virgina Bewach, VA, for Wallbuilders, Inc.

Appeal from the United States District Court for the Northern District of Texas.

Before KING, BENAVIDES and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

David and Shannon Croft, as parents and next friends of their three minor children (collectively, the "Crofts"), bring suit against the governor of the state of Texas Rick Perry ("Perry"), arguing that Texas Education Code § 25.082(d) is an unconstitutional establishment of religion. The district court granted summary judgment in favor of Perry, holding that § 25.082(d) had a secular legislative purpose and was not an establishment of religion. For the following reasons, we affirm.

FACTS AND PROCEEDINGS

Section 25.082(d) provides for a mandatory moment of silence to be observed in Texas schools in which a student may "as the student chooses, reflect, pray, meditate, or engage in any other silent activity that is not likely to interfere with or distract another student." TEX. EDUC.CODE § 25.082(d). The provision, which became effective September 1, 2003, is a subsection of a broader statute amended at the same time under the heading "School Day; Pledges of Allegiance; Minute of Silence" (the "2003 Amendments"). Texas Education Code § 25.082, in its entirety, provides as follows:¹

(a) A school day shall be at least seven hours each day, including intermissions and recesses.

(b) The board of trustees of each school district shall require students, once during each school day at each school in the district, to recite [pledges of allegiance to the United States and Texas flags]

(c) On written request from a student's parent or guardian, a school district shall excuse the student from reciting a pledge of allegiance under Subsection (b).

(b) (d) A The board of trustees of each school district may shall provide for a period the observance of one minute of silence at the beginning of the first class of each school day at each school in the district following the recitation of the pledges of allegiance to the United States and Texas flags under Subsection (b). during which a During the one-minute period, each student may, as the student chooses, reflect, pray, or meditate., or engage in any other silent activity that is not likely to interfere with or distract another student. Each teacher or other school employee in charge of students during that period shall ensure that each of those students remains silent and does not act in a manner that is likely to interfere with or distract another student.

As the underlined and stricken portions indicate, the amendments changed a 1995 statute that was simply entitled "School Day" and provided as follows:

(a) A school day shall be at least seven hours each day, including intermissions and recesses.

(b) A school district may provide for a period of silence at the beginning of the first class of each school day during which a student may reflect or meditate.

TEX. EDUC.CODE § 25.082 (1995). The 2003 statute left untouched a broader, yet related, 1995 provision entitled "Exercise of Constitutional Right to Pray," which states that:

A public school student has an absolute right to individually, voluntarily, and silently pray or meditate in school in a manner that does not disrupt the instructional or other activities of the school. A person may not require, encourage, or coerce a student to engage in or refrain from such prayer or meditation during any school activity.

TEX. EDUC.CODE § 25.901.

As the district court noted, the 2003 moment of silence provision of § 25.082 differs from the 1995 version as follows:

(1) it made the provision of a moment of silence mandatory rather than discretionary; (2) it changed "period of silence" to "one minute of silence"; (3) it added the word "pray" to the list of designated options; (4) it added the catch-all "or engage in any other silent activity that is not likely to interfere with or distract another student"; and (5) it added a provision for teachers or other school employees to maintain discipline during the one-minute period.

Croft v. Governor of Tex., 530 F.Supp.2d 825, 829 (N.D.Tex.2008). The 2003 statutory section, on the whole, also made the following changes: (1) it added the pledge of allegiance to the United States flag; (2) it added the pledge of allegiance to the Texas state flag; and (3) it provided a procedure for exemption from reciting either pledge.

Beyond the relative changes and additions represented by the provision itself, the 2003 statute does not include a signing statement or preamble by which legislative intent can be inferred. Nevertheless, transcripts from committee hearings and floor debates, which were summarized at length by the district court, id. at 837-45, provide significant insight into the purpose of the legislation.² Pertinent details are as follows:

• On February 11, 2003, in introducing in committee the first draft of Senate Bill 83—which did not include a pledge and was designed to amend § 25.901 (the "right to pray" section), not § 25.082 (the "school day" section)—its sponsor, Senator Wentworth, repeatedly stated, "since the U.S. Supreme Court has [just] upheld [a similar mandatory statute] in Virginia we ought at least to give Texas students the opportunity to reflect, meditate or pray."³ The senator acknowledged that a period of silence already existed in Texas law (under § 25.082), but expressed a desire to add "prayer" to "bring to the State of Texas ... the advantage and opportunity [that Virginia students have] already." Senator Wentworth also stated that the bill was prompted by the Supreme Court "ruling upholding a Virginia state statute," and that although it may not restore the audible prayer that "[m]ost Texans" prefer, it is what the Supreme Court now allows, and all that it allows. As to the minute of silence being required, he thought this would help relieve controversy at the local level.

• Discussing the original bill, Senator Wentworth lamented the "coarsening of society" and "the lack of prayer in schools." Yet, he repeatedly asserted that, "for purposes of legislative intent, this is not a prayer bill.... It's an opportunity to give people a chance to spend 60 seconds on a daily basis to reflect or meditate or pray." He observed, "we won't know whether they're doing any of those three things ... [t]hey may be doing something else, because it is actually 60 seconds of silence." Senator Janek added that the approach is "a more civilized moment [for voluntary prayer or meditation] ... rather than [ ] the cacophony of the school noises and lockers slamming."

• Senator Wentworth dismissed a challenge to the silent, rather than verbal or physical, nature of voluntary prayer activity in the bill as arguably unconstitutional, and repeatedly stressed his desire to conform to Supreme Court precedent—e.g., "I'm not trying to pass a bill that's going to be struck down by the U.S. Supreme Court, and that's why I've tailored the language to follow another state statute that's already been upheld by the U.S. Supreme Court."

• In the February 2003 committee meeting, concern was raised by legislators about the nature of the bill as an exception to the non-coercion rights in § 25.901, and, as the district court recounted, witnesses testified on both sides of this issue and the bill generally. Pertinently, Kathy Douglas of the Texas Association of School Boards suggested that to "show ... the legislative intent to separate this issue from the issue of prayer," the bill might be better suited in amending § 25.082 (the "school day"), not § 25.901 (the "right to pray").

• At a March 25, 2003 committee meeting, Senator Wentworth announced that the bill had been altered to amend § 25.082, not § 25.091 (as urged by Ms. Douglas), include pledges to the United States and Texas flags (with an opt-out), and require students to stand. Witnesses testified for and against the bill. An amendment was made to delete the rule that students stand, and the bill unanimously passed (7 to 0) in committee.

• On April 1, 2003, the related House Bill 793 was introduced to the House Public Education Committee by Representative Branch. According to the Governor's representations to the district court,⁴ Representative Branch stated to the committee—in response to challenges from colleagues that the bill was "bathed in religio[n]"—that "silence at the beginning of the day is a good thing for students, ... [and] not only to focus on the patriotism of the country, the love of state, but also a common moment of preparation, deliberation, and meditation to focus on the serious business of educating our students that day." Co-author Representative Bonnen added, "I can tell you the authors' intent ... [i]t's to give [students] a time to really thing [sic] about the seriousness of the day."

• On April 4, 2003, the senate bill was...