Freiler v. Tangipahoa Parish Bd. of Ed.

• Decision Date: 13 August 1999
• Docket Number: No. 98-30132,DEFENDANTS-APPELLANTS,No. 97-30879,PLAINTIFFS-APPELLEES,97-30879,98-30132
• Citation: 185 F.3d 337
• Parties: (5th Cir. 1999) HERB FREILER; SAM SMITH, INDIVIDUALLY AND IN HIS CAPACITY AS ADMINISTRATOR OF THE ESTATE OF HIS MINOR CHILD STEVEN SMITH; JOHN JONES,, v. TANGIPAHOA PARISH BOARD OF EDUCATION; E.F. BAILEY; ROBERT CAVES; MAXINE DIXON; LEROY HART; RUTH WATSON, DONNIE WILLIAMS, SR.; ART ZIESKE, INDIVIDUALLY AND IN THEIR CAPACITIES AS MEMBERS OF THE SCHOOL BOARD; TED CASON, INDIVIDUALLY AND IN HIS CAPACITY AS SUPERINTENDENT OF SCHOOLS,&
• Court: U.S. Court of Appeals — Fifth Circuit

Page 337

185 F.3d 337 (5th Cir. 1999)

HERB FREILER; SAM SMITH, INDIVIDUALLY AND IN HIS CAPACITY AS ADMINISTRATOR OF THE ESTATE OF HIS MINOR CHILD STEVEN SMITH; JOHN JONES, PLAINTIFFS-APPELLEES, v. TANGIPAHOA PARISH BOARD OF EDUCATION; E.F. BAILEY; ROBERT CAVES; MAXINE DIXON; LEROY HART; RUTH WATSON, DONNIE WILLIAMS, SR.; ART ZIESKE, INDIVIDUALLY AND IN THEIR CAPACITIES AS MEMBERS OF THE SCHOOL BOARD; TED CASON, INDIVIDUALLY AND IN HIS CAPACITY AS SUPERINTENDENT OF SCHOOLS, DEFENDANTS-APPELLANTS.

No. 97-30879 & No. 98-30132

U.S. Court of Appeals, Fifth Circuit

August 13, 1999

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

Before King, Chief Judge, and Politz and Benavides, Circuit Judges.

The opinion of the court was delivered by: Benavides, Circuit Judge

Parents of children in the Tangipahoa Parish Public Schools brought this suit to enjoin their school board from mandating that a disclaimer be read immediately before the teaching of evolution in all elementary and secondary classes. The district court held that the disclaimer constituted an establishment of religion in violation of the First Amendment. We affirm.

I.

The teaching of evolution has created controversy for many years in the Tangipahoa Parish Public Schools ("TPPS"). Following a failed attempt to introduce creation science into the Tangipahoa curriculum as a legitimate scientific alternative to evolution, the Tangipahoa Parish Board of Education ("School Board" or "Board") adopted a resolution disclaiming the endorsement of evolution.¹ The resolution, which passed by a 5-4 vote of the School Board on April 19, 1994, reads:

"Whenever, in classes of elementary or high school, the scientific theory of evolution is to be presented, whether from textbook, workbook, pamphlet, other written material, or oral presentation, the following statement shall be quoted immediately before the unit of study begins as a disclaimer from endorsement of such theory."

It is hereby recognized by the Tangipahoa Board of Education, that the lesson to be presented, regarding the origin of life and matter, is known as the Scientific Theory of Evolution and should be presented to inform students of the scientific concept and not intended to influence or dissuade the Biblical version of Creation or any other concept.

It is further recognized by the Board of Education that it is the basic right and privilege of each student to form his/her own opinion and maintain beliefs taught by parents on this very important matter of the origin of life and matter. Students are urged to exercise critical thinking and gather all information possible and closely examine each alternative toward forming an opinion.

Preceding the adoption of the resolution, School Board members and parents who were present at the April 19, 1994, meeting discussed the language of the disclaimer. In particular, debate centered on the inclusion of the phrase "Biblical version of Creation." A School Board member, Logan Guess, voiced concerns that the reference to the Bible excluded non-Christian viewpoints from the disclaimer. He argued that, even though the disclaimer also included the phrase "or any other concept," School Board members were concerned only with declining to endorse evolution because of its inconsistency with the Biblical version of creation. Bailey, the board member who proposed the disclaimer, justified including the phrase, arguing that because "there are two basic concepts out there" (presumably creation science and evolution), and because he believed that "perhaps 95 percent" of the community "fall into the category of believing [in] divine creation," the Board should not "shy away, or hide away from saying that this is not to dissuade from the Biblical version." In his closing remarks immediately before the Board voted to adopt the disclaimer, Bailey further suggested that evolution theory as taught in science class should not be confused with fact and that the School Board should explicitly decline to endorse evolution theory because of its inconsistency with the faith of the larger community.

On November 7, 1994, approximately seven months after the resolution passed, several parents of children in the TPPS brought suit in the U.S. District Court for the Eastern District of Louisiana, challenging the validity of the disclaimer under provisions in the United States and Louisiana constitutions barring laws "respecting an establishment of religion."² U.S. Const. amends., I, XIV; La. Const. art. I, sec. 8. The district court concluded that the resolution was devoid of secular purpose and therefore ran afoul of the first prong of the three-part test of Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). In reaching this Conclusion, the district court discredited the School Board's assertion that its secular purpose in adopting the disclaimer was to promote critical thinking and information gathering by students on the subject of the origin of life. The court noted that School Board members did not mention this purported purpose during the adoption debate and that the Tangipahoa Parish Public Schools already encouraged students to think critically about all issues before the adoption of the disclaimer. The district court found that the statements made by School Board members both during the adoption debate and while testifying at trial revealed that the disclaimer, in fact, had a religious purpose--i.e., to satisfy the religious concerns of the majority that the teaching of evolution in public school contradicted lessons taught in Sunday school. Accordingly, the court held the resolution invalid under the federal and state constitutions and enjoined the reading of the disclaimer. The School Board and the named individual defendants then brought this appeal.

II.

The sole issue for our resolution is whether the specific disclaimer adopted by the Tangipahoa Parish Board of Education contravenes the First Amendment. We limit our analysis to the precise language of the 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.

States and their duly authorized boards of education have the right to prescribe the academic curricula of their public school systems. Courts therefore must exercise great "care and restraint" when called upon to intervene in the operation of public schools. Epperson v. Arkansas, 393 U.S. 97, 104, 89 S. Ct. 266, 270 (1968). Given, however, that the "vigilant protection of constitutional freedoms" is nowhere more vital than in American public education, id., 89 S. Ct. at 270, the right to prescribe public school curriculum must of necessity be limited in scope. States may not require that teaching and learning be tailored to the principles or prohibitions of any religious sect or dogma. See id. at 106, 89 S. Ct. at 271.

In the context of public education, we have evaluated state action challenged on Establishment Clause grounds under each of "three complementary (and occassionally overlapping) tests" established by the Supreme Court. Doe v. Santa Fe Independent School District, 168 F.3d 806, 816 (5th Cir. 1999). The first test, and the one of longest lineage, is the disjunctive three-part Lemon test, under which a state practice is unconstitutional if (1) it lacks a secular purpose; (2) its primary effect either advances or inhibits religion; or (3) it excessively entangles government with religion. See Lemon, 403 U.S. at 612-613, 91 S. Ct. at 2111. The second test, commonly referred to as the endorsement test, seeks to determine whether the government endorses religion by means of the challenged action. See, e.g., County of Allegheny v. ACLU, 492 U.S. 573, 594, 109 S. Ct. 3086, 3101 (1989) (holding that the display of a creche on the Grand Staircase of the Allegheny County Courthouse violated the First Amendment but that the display of a menorah as part of a secular exhibit was constitutional). The government unconstitutionally endorses religion when it "conveys a message that religion is 'favored,' 'preferred,' or 'promoted' over other beliefs." Id. at 593, 109 S. Ct. 3086. Finally, the third test, aptly named the coercion test, analyzes school-sponsored religious activity in terms of the coercive effect that the activity has on students. See, e.g., Lee v. Weisman, 505 U.S. 577, 112 S. Ct. 2649 (1992) (holding unconstitutional a school district's policy permitting school principals to invite clergy to give "nonsectarian" invocations and benedictions at graduation ceremonies). Under this test, school-sponsored activity contravenes the First Amendment when "(1) the government directs (2) a formal religious exercise (3) in such a way as to oblige the participation of objectors." Jones v. Clear Creek Independent School District, 977 F.2d 963, 970 (5th Cir. 1992) ("Clear Creek II") (citation omitted).

Our multi-test analysis in past cases has resulted from an Establishment Clause jurisprudence rife with confusion and from our own desire to be both complete and judicious in our decision-making. See, e.g., Doe ex rel. Doe v. Beaumont Independent School District, 173 F.3d 274, 295 (5th Cir.) (analyzing school district's "Clergy in Schools" volunteer counseling program utilizing Lemon, endorsement, and coercion tests), reh'g en banc (1999); Ingebretsen v. Jackson Public School District, 88 F.3d 274, 280 (5th Cir. 1996) (examining state statute permitting public school students to initiate nonsectarian, nonproselytizing prayer at compulsory and noncompulsory school events pursuant to the Lemon, endorsement, and coercion tests); Clear Creek II, 977 F.2d 963, 966-969, 972 (employing Lemon, endorsement, and coercion analysis to uphold a school district resolution permitting...