Herdahl v. Pontotoc County School Dist.

• Decision Date: 03 June 1996
• Docket Number: No. 3:94CV188-B-A.,3:94CV188-B-A.
• Citation: 933 F. Supp. 582
• Parties: Lisa HERDAHL, on Behalf of Herself and Her Minor, School-age Children, Plaintiff, v. PONTOTOC COUNTY SCHOOL DISTRICT; Pontotoc County Board of Education; John Allen, John Lauderdale, Johnny Mounce, Ken Roye, and Ricky Spencer, in Their Official Capacities as Members of the Pontotoc County Board of Education; Jerry Horton, in His Official Capacity as Superintendent of the Pontotoc County School District; Steve Carr, in His Official Capacity as Principal of North Pontotoc Attendance Center; and Rodney Flowers, in His Official Capacity as Assistant Principal of North Pontotoc Attendance Center, Defendants.
• Court: U.S. District Court — Northern District of Mississippi

933 F. Supp. 582

Lisa HERDAHL, on Behalf of Herself and Her Minor, School-age Children, Plaintiff, v. PONTOTOC COUNTY SCHOOL DISTRICT; Pontotoc County Board of Education; John Allen, John Lauderdale, Johnny Mounce, Ken Roye, and Ricky Spencer, in Their Official Capacities as Members of the Pontotoc County Board of Education; Jerry Horton, in His Official Capacity as Superintendent of the Pontotoc County School District; Steve Carr, in His Official Capacity as Principal of North Pontotoc Attendance Center; and Rodney Flowers, in His Official Capacity as Assistant Principal of North Pontotoc Attendance Center, Defendants.

No. 3:94CV188-B-A.

United States District Court, N.D. Mississippi, Western Division.

June 3, 1996.

COPYRIGHT MATERIAL OMITTED

Robert B. McDuff, Robert B. McDuff, Attorney, Jackson, MS, Danny R. Lampley, Danny R. Lampley, Attorney, Tupelo, MS, Elliot M. Mincberg, Judith E. Schaeffer, People for the American Way, Washington, DC, for plaintiff Lisa Herdahl.

Scott L. Thomas, Stephen M. Crampton, American Family Association Law Center, Tupelo, MS, Phillip L. Tutor, Phillip L. Tutor, Attorney, Pontotoc, MS, J. Max Edwards, Jr., Tutor, Henry & Edwards, Tupelo, MS, Michael Whitehead, Michael Whitehead, Attorney, Lee's Summit, MO, for defendants Pontotoc County School Dist., Pontotoc County Board of Education, John Allen, John Lauderdale, Johnny Mounce, Ken Roye, Rick Spencer, Jerry Horton, Steve Carr, Rodney Flowers.

MEMORANDUM OPINION

BIGGERS, District Judge.

Plaintiff Lisa Herdahl is a resident taxpayer and mother of five children who are currently attending the North Pontotoc Attendance Center ("Center" or "North Pontotoc"), a public school located in Ecru, Mississippi. The Center provides public education from kindergarten through the twelfth grade. On December 20, 1994, the plaintiff filed this action under 42 U.S.C. § 1983, seeking relief from the school prayer practices, religious Bible instruction, and other practices of the defendants Pontotoc County School District ("District") and its officials that allegedly violate the Establishment Clause¹ of the United States Constitution. A hearing was held on February 2, 1995 on the issues of the school (1) allowing prayers over the school-wide intercom system during classroom hours and (2) allowing individual classroom prayers prior to lunch. On April 18, 1995, this court preliminarily enjoined the defendants' school prayer practices, including the broadcast of morning prayer over the school intercom and organized, vocal prayer in classrooms during instructional time. Herdahl v. Pontotoc County Sch. Dist., 887 F.Supp. 902 (N.D.Miss.1995) (cited with approval in Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274 (5th Cir.1996)). The court incorporates by reference the fact-finding of its previous opinion herein. Additional facts necessary to the court's ruling are set out below.

A bench trial was held on March 4-6, 1996. The claims that remain for review by the court are: 1) the school-wide intercom prayer and devotionals; 2) the new pre-school activities of the Aletheia² Club as to grades K-6; 3) classroom prayer prior to lunch in grades K-6; 4) the current teaching method of the Bible class; and 5) the alleged injection of religious materials in American History class. Upon due consideration of the issues presented, the evidence produced at both hearings, the exhibits and arguments submitted by the parties, the court is prepared to rule.

DISCUSSION

The court is once again confronted with a conflict between the goals of two divergent but well-meaning groups. At issue is the meaning each wants to ascribe to the Establishment Clause. "Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect `a wall of separation between Church and State.'" Everson v. Board of Educ., 330 U.S. 1, 16, 67 S.Ct. 504, 512, 91 L.Ed. 711 (1947) (emphasis in original) (citing Reynolds v. United States, 98 U.S. 145, 162, 25 L.Ed. 244, 249 (1874) (quoting a letter from Thomas Jefferson to a Danbury Baptist Association committee)). The founding fathers believed that this clause would guard against the abuses of government and the abuses that might be committed by the community itself.

The District's witnesses testified that the school prayers should continue because a majority of the students and parents are in favor of the practice and Mrs. Herdahl is the only person who opposes the practice; however, the Bill of Rights was created to protect the minority from tyranny by the majority. Indeed, without the benefit of such a document, women in this country have been burned because the majority of their townspeople believed their religious practices were contrary to the tenets of fundamentalist Christianity.³ To say that the majority should prevail simply because of its numbers is to forget the purpose of the Bill of Rights. It is not insignificant that the opening line of our enumeration of individual rights reads "Congress shall make no law respecting an establishment of religion...." U.S. Const. Amend. I. Of course, that amendment has been interpreted by the Supreme Court to prohibit not only Congress but also the states and their subdivisions, such as counties and school districts, from inserting themselves into religious practices. Everson, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947). The court is now called upon to give effect to the words of the Constitution as they relate to the practices of a public school in Pontotoc County, Mississippi, in accordance with the opinions previously issued by the United States Court of Appeals for the Fifth Circuit and the Supreme Court of this land.

I. INTERCOM PRAYER

Prior to this court's preliminary injunction, the District contended that its stated policy and practice on the issue of school-wide prayer over the intercom was that the Center would permit student clubs or organizations brief access to the public address system, following the morning announcements by the administration, for the purpose of making any student announcement or any other free speech comments the students desire. The Aletheia Club, formerly the Christ In Us Club, one of the recognized student clubs at the school, had frequently utilized this period of time to present a short devotional, or inspirational message, which often included a short Bible reading, frequently followed by a short prayer. The entire devotional and prayer generally lasted no longer than a minute or two. During this period, teachers directed students who were standing to be seated and directed students who were talking to be quiet, if necessary, and at least some teachers in their classrooms bowed their heads for the prayers and devotionals.⁴

At the preliminary injunction hearing, this court held that the plaintiff established that there was a substantial likelihood of prevailing on the merits of this issue, and a violation of the Establishment Clause was clearly evident. The District did not appeal the ruling at the preliminary injunction stage; however, it is still the District's position that it has created a "limited open forum" as described in the Equal Access Act ("Act"). 20 U.S.C. § 4071 et seq. The Act prohibits public secondary schools that receive federal financial assistance and that maintain a "limited open forum" from denying equal access to "students who wish to conduct a meeting within that limited open forum...." 20 U.S.C. § 4071(a). By permitting student clubs or organizations the right to request and use the public address system for a brief moment for announcements or such other appropriate use following the official morning announcements, the District contends that it cannot now discriminate against the Aletheia Club on the religious content of the club's message. This argument was analyzed by this court in its April 18, 1995 opinion and found to be unpersuasive.⁵ At trial, the court permitted the defendants to present evidence of their forum theory. Accordingly, the defendants have introduced evidence that other student clubs and organizations frequently utilize the intercom system for making announcements, such as fund raisers, pep rallies, yearbook sales, and election results. Furthermore, they have attempted to introduce evidence of student use of the intercom as a vehicle for their free expressions beyond mere announcements; however, the evidence nevertheless shows that, excluding the Aletheia Club, the intercom was used only for announcements of club activities, including announcements to encourage students to participate in activities, and not for the actual conduct of substantive club activities themselves. For example, the yearbook staff has made announcements over the intercom that it will meet at designated times and places, but it has not conducted the substance of its meeting over the intercom. The Aletheia Club, however, has not only announced the times and places of its meetings over the intercom, it also has said the prayers and read the devotionals that it gives in its meetings. That is a significant distinction that the defendants have refused to recognize, or at least admit.

The defendants' arguments notwithstanding, it is evident to the court that the Equal Access Act is not applicable to the practices of the District and the Aletheia Club. First, the Act applies only to secondary schools, 20 U.S.C. § 4071(a), while it is undisputed that the intercom prayers were broadcast into all the classrooms at the Center, a K-12 school. Moreover, the Act applies by its terms only to voluntary meetings of secondary school clubs. Id. at § 4071(c)(1). A "meeting" is defined, rather circularly, by the Act as "those activities of student groups which are permitted under a school's limited open forum and are not directly related to the school curriculum." Id...