653 F.2d 897 (5th Cir. 1981), 80-4003, Karen B. v. Treen

Docket Nº:80-4003.
Citation:653 F.2d 897
Party Name:KAREN B., et al., Plaintiffs-Appellants, v. David TREEN, et al., Defendants-Appellees.
Case Date:August 05, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 897

653 F.2d 897 (5th Cir. 1981)

KAREN B., et al., Plaintiffs-Appellants,

v.

David TREEN, et al., Defendants-Appellees.

No. 80-4003.

Unit A

United States Court of Appeals, Fifth Circuit

August 5, 1981

Page 898

Carole B. Shauffer, New Orleans, La., Mark Franklin Terry, Sacramento, Cal., for plaintiffs-appellants.

Helen S. Kohlman, Jonathan M. Lake, New Orleans, La., for Jewish Federation of Greater New Orleans.

Donald R. Mintz, Leopold Z. Sher, New Orleans, La., for Anti-Defamation League of B'Nai B'Rith.

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Nathan Z. Dershowitz, New York City, William B. Duffy, Jr., Boston, Mass., for American Jewish Congress & the Unitarian Universalist Assn.

William J. Guste, Jr. Atty. Gen., Kendall L. Vick, Patricia Nalley Bowers, Asst. Attys. Gen. New Orleans, La., for Treen.

Jack A. Grant, Gretna, La., for Jefferson Parish School Bd., and Larry T. Sisung.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before CHARLES CLARK and RANDALL, Circuit Judges, and SHARP [*], District Judge.

CHARLES CLARK, Circuit Judge:

Parents of students were denied declaratory and injunctive relief from the Louisiana statute and derivative Jefferson Parish School Board regulations which establish guidelines for student participation in prayer at school. They contend that the statute and regulations offend the First Amendment proscription against enactment of laws respecting the establishment of religion. We agree and reverse the district court.

I.

Louisiana Revised Statutes § 17:2115 (1981) has two components. Subsection A provides that each parish and city school board shall permit the appropriate local school authorities to allow those students and teachers who so desire to observe a brief period of silent meditation at the beginning of each school day. The statute expressly declares that this observance can neither be intended nor identified as a religious exercise. The plaintiffs have no quarrel with the silent meditation provision of the statute, and it is not involved in this litigation.

The challenged provision, subsection B, is essentially enabling legislation. It provides that a school board may authorize the appropriate school officials to allow each classroom teacher to ask whether any student wishes to offer a prayer and, if no student volunteers, to permit the teacher to pray. The statute limits any prayer offered to no longer than five minutes and provides that no student or teacher may be compelled to pray. In the event a student in the classroom objects or the student's parent or legal guardian objects in writing to the proper school authority, subsection B provides that the student may not be required to participate or to be present during the time prayer is being offered. See La.Rev.Stat. § 17:2115(B) (1981).

The Jefferson Parish School Board has adopted a resolution establishing guidelines to implement section 17:2115(B) in parish schools. These guidelines provide that each school day will begin at the regular time with a minute of prayer followed by a minute of silent meditation. Under the school board guidelines, each teacher must ask if any student wishes to volunteer a prayer, and, if no student wishes to do so, the teacher may offer a prayer of his own. If the teacher elects not to pray, then the period of silent meditation would be observed immediately. The school board guidelines provide that no prayer may be longer than one minute in duration.

Jefferson Parish has also made elaborate provisions for excusing students who do not want to participate in the prayer portion of the morning exercises. According to a school board letter explaining the program to parents, any student who desires to participate in the minute of prayer must submit the express written permission of his parents and make a verbal request to join in the exercise. Students without this permission may either report to class, where they must remain seated and quiet throughout the morning exercises, or remain outside the classroom under other supervision. The school board guidelines also establish two alternative methods for dealing with the supervision of non-participating students. After the minute of prayer has been completed, all students must report to the classroom for a minute of silent meditation.

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After hearing testimony and argument, the district court held that section 17:2115(B) and the parish implementing regulations do not offend the Constitution but issued an injunction pending appeal in order to maintain the status quo.

II.

The Establishment Clause of the First Amendment prohibits Congress and the states from enacting any law "respecting an establishment of religion." U.S.Const. Amendment I. See Everson v. Board of Education, 330 U.S. 1, 15-16, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947). In Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962), the Supreme Court held that daily classroom recitation of a denominationally neutral, state-composed prayer violates the Establishment Clause even though students could be excused from participation. The following year, the Court held that daily Bible reading and class recitation of the Lord's Prayer also offends the Constitution, even though individual students were free not to attend the morning exercises. School District of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963). Since that time, the Supreme Court has examined three principal criteria to determine whether a state legislative enactment comports with the Establishment Clause: (1) whether the statute has a secular legislative purpose, (2) whether the principal or primary effect of the statute is neither to advance nor to inhibit religion, and (3) whether the statute fosters "an excessive government entanglement with religion." Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745, 755 (1971). See Stone v. Graham, 449 U.S. 39, 40, 101 S.Ct. 192, 193, 66 L.Ed.2d 199, 201 (1980); Committee for Public Education and Religious Liberty v. Regan, 444 U.S. 646, 652, 100 S.Ct. 840, 846, 63 L.Ed.2d 94, 101 (1980); Roemer v. Maryland Public Works Board, 426 U.S. 736, 748, 96 S.Ct. 2337, 2348, 49 L.Ed.2d 179, 188 (1976). If a statute fails to satisfy any one of these three tests, it will not survive a constitutional attack brought under the Establishment Clause. Stone v. Graham, 449 U.S. at 40, 101 S.Ct. 192, at 193, 66 L.Ed.2d at 201. Applying these settled principles of constitutional jurisprudence, we hold that the Louisiana statute and Jefferson Parish regulations permitting student and teacher prayers in the public schools violate the First Amendment.

First, the district court found that section 17:2115(B) and the implementing regulations had a secular legislative purpose. It reached this conclusion relying upon the testimony of two state legislators who were primarily responsible for enactment of the statute and the school board member who sponsored the implementing resolution in Jefferson Parish. These witnesses stated that the purpose of the school prayer program was to increase religious tolerance by exposing school children to beliefs different from their own and to develop in students a greater esteem for themselves and others by enhancing their awareness of the spiritual dimensions of human nature.

Under the decisions of the Supreme Court, however, this testimonial avowal of secular legislative purpose is not sufficient to avoid conflict with the Establishment Clause. In Stone v. Graham, supra, the Court struck down a Kentucky statute requiring a copy of the Ten Commandments, purchased with private contributions, to be displayed on the wall of each public classroom. The Kentucky legislature had expressly required that each posted copy bear the following legend: "The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States." 449 U.S. at 41, 101 S.Ct. at 193, 66 L.Ed.2d at 201 (citations omitted). Nevertheless, the Court held the statute unconstitutional.

The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments is undeniably a religious text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact.

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