Smith v. Board of School Com'rs of Mobile County, 87-7216
| Citation | 827 F.2d 684 |
| Decision Date | 26 August 1987 |
| Docket Number | No. 87-7216,87-7216 |
| Parties | , 56 USLW 2143, 41 Ed. Law Rep. 452 Douglas T. SMITH, et al., Plaintiffs-Appellees, v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, et al., Defendants, Alabama State Board of Education, its Members, and Wayne Teague, Alabama State Superintendent of Education, Defendants-Appellants. Douglas T. SMITH, et al., Plaintiffs-Appellees, v. Guy HUNT, Governor of Alabama, et al., Defendants, Malcolm Howell, Corinne Howell, William P. Rodgers, Lemoine V. Brennan, Thomas A. Brennan, Alan V. Galdis, Barbara J. Bassett, Betty Ann Barnett Gartman, William David Gartman, Elizabeth T. Long, Vernon Moore, Brenda C. Moore, Defendants-Intervenors, Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
Jim R. Ippolito, Jr., Office of Gen. Counsel State Dept. of Educ., Montgomery, Ala., for Alabama State Bd. of Educ., et al.
Johnstone, Adams, Bailey, Gordon & Harris, Richard T. Dorman, Mobile, Ala., Hogan & Hartson, William A. Bradford, Jr., Washington, D.C., Deborah A. Ellis, Joan E. Bertin, American Civil Liberties Union, New York City, for defendant-intervenors.
Drinkard, Sherling & York, Bob Sherling, Mobile, Ala., Parker & Kotouc, P.C., Thomas O. Kotouc, Thomas F. Parker, IV, Montgomery, Ala., Robert K. Skolrood, National Legal Foundation, Virginia Beach, Va., for Smith, et al.
Jay Worona, New York State School Boards Ass'n. Inc., Norman H. Gross, Albany, N.Y., for amicus New York State School Boards Ass'n.
Bredhoff & Kaiser, Robert H. Chanin, Jeremiah A. Collins, L. Hope O'Keeffe, Washington, D.C., for amici National Educ. Ass'n and Alabama Educ. Ass'n.
Gordon J. Gamm, Kansas City, Mo., for amicus American Humanist Ass'n.
Seyfarth, Shaw, Fairweather & Geraldson, Ronald A. Lindsay, Washington, D.C., for amicus Council for Democratic and Secular Humanism.
Sidley & Austin, Newton N. Minow, Mary Hutchings Reed, Chicago, Ill., for amicus American Library Ass'n.
Ennis, Friedman & Bersoff, Mark D. Schneider, Washington, D.C., Weil, Gotshal & Manges, R. Bruce Rich, New York City, Evan M. Tager, Washington, D.C., for amici Ass'n of American Publishers and The Freedom to Read Foundation.
Miller, Cohen, Martens & Ice, P.C., Bruce A. Miller, Stuart M. Israel, Maria M. Fernandez, Southfield, Mich., for amicus American Federation of Teachers, AFL-CIO.
Gwendolyn H. Gregory, Alexandria, Va., Balch & Bingham, David R. Boyd, Montgomery, Ala., for amici Nat'l School Boards Ass'n and Alabama Ass'n of School Boards.
Covington & Burling, David H. Remes, Washington, D.C., for amicus The Ad Hoc Coalition for Public Educ.
Kramer, Levin, Nessen, Kamin & Frankel, Harold P. Weinberger, New York City, for amici The American Jewish Committee, et al.
Boothby, Ziprick & Yingst, Lee Boothby, Berren Springs, Mich., for amicus Council on Religious Freedom.
Stephen A. West, Raleigh, N.C., for amicus The Ass'n for Public Justice.
Michael J. Woodruff, Center for Law & Religious Freedom, Samuel Ericsson, Michael A. Paulsen, Heidi Hagerman, Walter M. Weber, Merrifield, Va., for amici The Catholic League for Religious and Civil Rights and The Christian Legal Soc.
Kerry L. Morgan, Chesapeake, Va., for amicus The Committee on The American Founding.
John Eidsmoe, Tulsa, Okl., for amicus The Ad Hoc Comm. to Oppose the Establishment of Humanism.
Wendell R. Bird, Atlanta, Ga., for amicus Rabbinical Alliance of America.
Appeal from the United States District Court for the Southern District of Alabama.
Before JOHNSON and CLARK, Circuit Judges, and EATON *, Senior District Judge.
Appellants, Alabama State Board of Education and Wayne Teague ("Board") and Malcolm Howell, et al. ("Defendant-Intervenors") appeal the district court's order enjoining the use in Alabama public schools of forty-four textbooks approved by the Board for inclusion on the State-Adopted Textbook List, the use of which the district court found to be a violation of the establishment clause of the first amendment. We reverse.
A. Procedural History
This case is a continuation of the Alabama school prayer cases, Jaffree v. Board of School Comm'rs, 554 F.Supp. 1104 (S.D.Ala.1983), aff'd in part, rev'd in part sub nom. Jaffree v. Wallace, 705 F.2d 1526 (11th Cir.1983), cert. denied sub nom. Board of School Comm'rs v. Jaffree, 466 U.S. 926, 104 S.Ct. 1707, 80 L.Ed.2d 181 (1984); Jaffree v. James, 554 F.Supp. 1130 (S.D.Ala.1983), aff'd in part, rev'd in part sub nom. Jaffree v. Wallace, 705 F.2d 1526 (11th Cir.1983), aff'd, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985), 466 U.S. 924, 104 S.Ct. 1704, 80 L.Ed.2d 178 (1984). In May 1982, Ishmael Jaffree brought an action on behalf of three of his minor children pursuant to 42 U.S.C.A. Sec. 1983 against the Mobile County School Board, various school officials, and three teachers seeking, inter alia, a declaratory judgment that certain classroom prayer activities conducted in the Mobile public school system violated the establishment clause of the first amendment and an injunction against classroom prayer. By his second amended complaint, Jaffree added as defendants the Governor of Alabama and other state officials, including Appellant Board, and challenged three Alabama statutes relevant to the school prayer issue as violative of the establishment clause. Douglas T. Smith and others ("Appellees") filed a motion to intervene in the Jaffree action alleging that an injunction against religious activity in the public schools would violate their right to free exercise of religion, and the district court allowed them to intervene as defendants. Subsequently, Appellees filed a motion entitled "Request for Alternate Relief" in which Appellees requested that, if an injunction were granted in favor of Jaffree, that injunction be enforced "against the religions of secularism, humanism, evolution, materialism, agnosticism, atheism and others" or, alternatively, that Appellees be allowed to produce additional evidence showing that these religions had been established in the Alabama public schools.
The district court bifurcated the claims against the Mobile County and local defendants and the claims against state officials. The district court granted Jaffree's motion for a preliminary injunction against enforcement of two of the challenged statutes, Ala.Code Ann. Secs. 16-1-20.1 and 16-1-20.2, Jaffree v. James, 544 F.Supp. 727, 732 (S.D.Ala.1982), but determined after trial on the merits that Jaffree was not entitled to relief in either action because the Supreme Court of the United States had erred in holding that the establishment clause of the first amendment prohibits the states from establishing a religion. Jaffree v. Board of School Comm'rs, 554 F.Supp. 1104, 1128 (S.D.Ala.1983), aff'd in part, rev'd in part sub nom. Jaffree v. Wallace, 705 F.2d 1526 (11th Cir.1983), cert. denied sub nom. Board of School Comm'rs v. Jaffree, 466 U.S. 926, 104 S.Ct. 1707, 80 L.Ed.2d 181 (1984); Jaffree v. James, 554 F.Supp. 1130, 1132 (S.D.Ala.1983), aff'd in part, rev'd in part sub nom. Jaffree v. Wallace, 705 F.2d 1526 (11th Cir.1983), aff'd, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985), 466 U.S. 924, 104 S.Ct. 1704, 80 L.Ed.2d 178 (1984). The district court therefore dismissed Jaffree's complaint for failure to state a claim upon which relief could be granted. Id.; 554 F.Supp. at 1132.
This Court reversed, finding that both the school room prayer activities and sections 16-1-20.1 and 16-1-20.2 violated the establishment clause, and remanded the action to the district court with directions that the district court "award costs to appellant and forthwith issue and enforce an order enjoining the statutes and activities held in this opinion to be unconstitutional." Jaffree v. Wallace, 705 F.2d 1526, 1536-37 (11th Cir.1983), cert. denied in part sub nom. Board of School Comm'rs v. Jaffree, 466 U.S. 926, 104 S.Ct. 1707, 80 L.Ed.2d 181 (1984), aff'd in part, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985); 466 U.S. 924, 104 S.Ct. 1704, 80 L.Ed.2d 178 (1984). The Supreme Court denied certiorari with regard to the nonstatutory school prayer practices, Board of School Comm'rs v. Jaffree, 466 U.S. 926, 104 S.Ct. 1707, 80 L.Ed.2d 181 (1984), and affirmed this Court's decision with regard to the statutory provisions. Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985); Wallace v. Jaffree, 466 U.S. 924, 104 S.Ct. 1704, 80 L.Ed.2d 178 (1984).
In its opinion denying relief in Jaffree, the district court had stated that "[i]f the appellate courts disagree with this Court in its examination of history and conclusion of constitutional interpretation thereof, then this Court will look again at the record in this case and reach conclusions which it is not now forced to reach." Jaffree, 554 F.Supp. at 1129. In a footnote, the district court indicated that the issues not reached dealt with (1) the free speech rights of teachers and students who wished to pray in school and (2) the teaching of the religion of secular humanism in the schools. Id. at n. 41. 1 On remand, the district court issued an order in response to Jaffree's request for attorney's fees, finding that the relief requested by Appellees had not been fully addressed in the prior decisions in the case and, therefore, remained for consideration by the district court on remand. The district court interpreted the position of the Appellees as that "if Christianity is not a permissible subject of the curriculum of the public schools, then neither is any other religion, and under the evidence introduced it is incumbent upon this Court to strike down those portions of the curriculum demonstrated to contain other religious teachings." For the purpose of considering this issue, the district court sua sponte realigned the parties by making Appellees parties plaintiff, consolidated the cases, and invited the parties to submit briefs in support of their positions and to petition the...
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