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http://laws.findlaw.com/5th/9830132cv1.html |
HERB FREILER; SAM SMITH, Individually and in
his capacity as Administrator of the Estate
of his minor child Steven Smith; JOHN JONES,
Plaintiffs-Appellees,
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.
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Appeals from the United States District Court for the
Eastern District of Louisiana, New Orleans
______________________________________________
January 24, 2000
(Opinion 8/13/99, 5th Cir., ______, ______ F.3d ______)
Before KING, Chief Judge, and POLITZ and BENAVIDES, Circuit Judges.
PER CURIAM:
The School Board contends that the panel opinion misquoted thedisclaimer's language, substituting and for or in a disclaimerpassage. The School Board is correct. The particular passage asstated in the disclaimer reads as follows:
"It is further recognized by the Board of Education thatit is the basic right and privilege of each student toform his/her own opinion or maintain beliefs taught byparents on this very important matter of the origin oflife and matter."
The improper substitution of "and" for "or" does not affectthe outcome of this case.
In denying rehearing, we emphasize that we do not decide thata state-mandated statement violates the Constitution simply becauseit disclaims any intent to communicate to students that the theoryof evolution is the only accepted explanation of the origin oflife, informs students of their right to follow their religiousprinciples, and encourages students to evaluate all explanations oflife's origins, including those taught outside the classroom. Wedecide only that under the facts and circumstances of this case,the statement of the Tangipahoa Parish School Board is notsufficiently neutral to prevent it from violating the EstablishmentClause.
Treating the Petition for Rehearing En Banc as a Petition forPanel Rehearing, the Petition for Panel Rehearing is DENIED. Thecourt having been polled at the request of one of the members ofthe court and a majority of the judges who are in regular activeservice not having voted in favor (Fed.R.App.P. and 5th Cir. R.35), the Petition for Rehearing En Banc is DENIED.
RHESA HAWKINS BARKSDALE, Circuit Judge, joined by E. GRADY JOLLY,PATRICK E. HIGGINBOTHAM, EDITH H. JONES, JERRY E. SMITH, EMILIO M.GARZA, and HAROLD R. DeMOSS, JR., Circuit Judges, dissenting fromthe denial of rehearing en banc:
For the second time in less than a year, our court has refusedto grant rehearing en banc to consider application of theEstablishment Clause of the First Amendment to issues ofexceptional importance to students, parents, and educators. See Doe v. Santa Fe Indep. Sch. Dist. , 168 F.3d 806 (holdingunconstitutional, inter alia , student-led prayers before footballgames), reh'g denied , 171 F.3d 1013 (5th Cir.), cert. granted , ___U.S. ___, 120 S. Ct. 494 (1999). I joined the dissent from thedenial of rehearing in Santa Fe , and respectfully dissent from thisdenial, because I believe our court's recent Establishment Clausejurisprudence is not only inconsistent with Supreme Courtprecedent, as well as ours, but is also so erroneous andunwarranted it will be understood by some as being nothing lessthan hostile toward religion. See id .; Doe v. Beaumont Indep. Sch.Dist. , 173 F.3d 274, reh'g granted , 173 F.3d 313 (5th Cir. 1999).
The panel strikes down a disclaimer from endorsement of thetheory of evolution (the disclaimer), required to be read inTangipahoa Parish schools at the start of a lesson on evolution. Freiler v. Tangipahoa Parish Bd. of Educ. , 185 F.3d 337 (5th Cir.1999). Among other things, the disclaimer advises students thatthe lesson is "presented to inform [them] of the scientific conceptand not intended to influence or dissuade the Biblical version ofCreation or any other concept". The panel holds the disclaimerunconstitutional for not being neutral. Id . at 345-48.
But, in seeking to enforce constitutionally mandatedneutrality, the panel has strayed, no doubt unintentionally, ontoa path of intolerance. See Lynch v. Donnelly , 465 U.S. 668, 673(1984) ("Nor does the Constitution require complete separation ofchurch and state; it affirmatively mandates accommodation, notmerely tolerance, of all religions, and forbids hostility towardany"). Unfortunately, notwithstanding this case being one of"exceptional importance", as well as there being the necessity "tosecure or maintain uniformity of [our] court's decisions", the veryfodder for granting en banc rehearing pursuant to Fed. R. App. P.35(a), our court does not think it necessary.
Immediately preceding this dissent is the statement crafted bythe panel to explain why the disclaimer fails. Surely, that is therole of the opinion. In any event, this vague, good news foreveryone statement (the disclaimer to the disclaimer) may providecomfort to those members of our court reluctant to allow en bancrehearing. We are now seemingly assured that, in general,disclaimers somewhat similar to the one at issue areconstitutionally permissible; but informed that, "under the factsand circumstances of this case, the statement of the TangipahoaParish School Board is not sufficiently neutral to prevent it fromviolating the Establishment Clause".
With all due respect to the panel, this disclaimer to thedisclaimer, while possibly being the balm necessary to save thiscase from being reheard en banc, does far more harm than good. Forthis extremely important and sensitive area of the law and of life ,it does nothing but muddy the waters even more. (For starters,what does "not sufficiently neutral" mean?) Someone trying toharmonize the panel's holding about the disclaimer and itsdisclaimer to the disclaimer could conclude, quite justifiably,that the disclaimer does not pass muster because of one simplefact: it mentions the Bible. Whether that be the panel's holding,or that be the reader's conclusion, there is consistency in onesense -- each result should be of great concern to our court. Sadly, it does not appear to be so.
The now-operative disclaimer to the disclaimer was prompted bythe panel holding that the Establishment Clause does not permit ateacher, at the start of a lesson on evolution, to read a statementinforming students that the lessons are not intended to dissuadetheir beliefs in alternative concepts of the origin of life andmatter; urging them to think critically about evolution and suchalternative concepts; and reminding them of their right to formtheir own opinions or to maintain beliefs taught by their parents. (Interestingly, what the disclaimer to the disclaimer suggestswould be permissible tracks the disclaimer quite closely.)
The disclaimer is required by the following resolution adoptedin 1994 by the Tangipahoa Parish School Board:
Whenever, in classes of elementary or highschool, the scientific theory of evolution isto be presented, whether from textbook,workbook, pamphlet, other written material, ororal presentation the following statementshall be quoted immediately before the unit ofstudy begins as a disclaimer from endorsementof such [evolution] theory.
It is hereby recognized by the TangipahoaParish Board of Education, that the lesson tobe presented, regarding the origin of life andmatter, is known as the Scientific Theory ofEvolution and should be presented to informstudents of the scientific concept and notintended to influence or dissuade the Biblicalversion of Creation or any other concept.
It is further recognized by the Board ofEducation that it is the basic right andprivilege of each student to form his/her ownopinion or maintain beliefs taught by parentson this very important matter of the origin oflife and matter. Students are urged toexercise critical thinking and gather allinformation possible and closely examine eachalternative toward forming an opinion.
(Emphasis added.) The panel opinion, in quoting the disclaimer,erroneously uses "and" instead of "or" in the above passage abouta student's right "to form his/her own opinion or ", not and ,"maintain beliefs taught by [his/her] parents". 185 F.3d at 341. The disclaimer to the disclaimer acknowledges this error, butstates that it "does not affect the outcome of this case".
The School Board advanced three purposes for the disclaimer: "(1) to encourage informed freedom of belief, (2) to disclaim anyorthodoxy of belief that could be inferred from the exclusiveplacement of evolution in the curriculum, and (3) to reduce offenseto the sensibilities and sensitivities of any student or parentcaused by the teaching of evolution". Id. at 344. The panelconcluded that the second and third purposes were permissiblesecular objectives. Id . at 345.
But, in a holding that overlaps with its holding that thedisclaimer is not neutral, discussed infra , the panel decided thatthe first purpose was a "sham", concluding that the disclaimerfurthered a contrary purpose: "the protection and maintenance ofa particular religious viewpoint". Id . at 344-45. In so doing,the panel interpreted the message of the disclaimer as tellingstudents that "evolution as taught in the classroom need not affectwhat they already know"; and that this was "contrary to an intentto encourage critical thinking, which requires that studentsapproach new concepts with an open mind and a willingness to alterand shift existing viewpoints". Id . at 345 (emphasis added).
The first-purpose-is-a-sham-conclusion is unwarranted. Asnoted, the panel misquoted the following portion of the disclaimer: "it is the basic right and privilege of each student to formhis/her own opinion or [not " and ", as the panel opinion mistakenlyquoted] maintain beliefs taught by parents on [the] ... matter ofthe origin of life and matter". This mistaken reading of thedisclaimer as conjunctive, rather than disjunctive , perhapsexplains why the panel discounted the disclaimer's clear messagethat, concerning the origin of life and matter, students are freeto either maintain their current beliefs, including those taught by their parents, or to form their own, new, independent opinions.
In any event, the panel held that, on balance, the disclaimersurvives the secular purpose prong of Lemon v. Kurtzman , 403 U.S.602 (1971). Freiler , 185 F.3d at 345. But, it concluded that itwas unconstitutional nevertheless, on the basis that it violates Lemon 's second prong (and the endorsement test of County ofAllegheny v. American Civil Liberties Union , 492 U.S. 573, 605(1989)): its principal or primary effect impermissibly advancesreligion. Freiler , 185 F.3d at 345-48.
As our court stated in Doe v. Duncanville Indep. Sch. Dist. ,70 F.3d 402, 406 n.4 (5th Cir. 1995), "the Establishment Clause[does not] prevent [school district] employees from treatingstudents' religious beliefs and practices with deference andrespect; indeed, the constitution requires this ". (Emphasisadded.) Along this line, the Freiler panel "acknowledge[s] thatlocal school boards need not turn a blind eye to the concerns ofstudents and parents troubled by the teaching of evolution inpublic classrooms". Freiler , 185 F.3d at 345-46. Obviously, thosewho might be so troubled might be those who believe in "theBiblical version of Creation".
Sadly, what the panel gives, it takes away. Notwithstandingthe palaver about school boards not being required "to turn a blindeye to [such] concerns", the panel relied on "the interplay ofthree factors" in concluding that "the primary effect of thedisclaimer is to protect and maintain a particular religiousviewpoint, namely belief in the Biblical version of creation":
(1) the juxtaposition of the disavowal ofendorsement of evolution with an urging thatstudents contemplate alternative theories ofthe origin of life; (2) the reminder thatstudents have the right to maintain beliefstaught by their parents regarding the originof life; and (3) the "Biblical version ofCreation" as the only alternative theoryexplicitly referenced in the disclaimer.
Id . at 346.
1. The juxtaposition of the disavowal of endorsement ofevolution with an urging that students contemplate alternativetheories of the origin of life.
Considering the context in which the disclaimer is to bepresented (at the start of a lesson presenting evolution as the sole explanation for the origin of life and matter), how can such"juxtaposition" impermissibly advance religion?
The theory of evolution may be viewed by some as anti-religious. The disclaimer recognizes this historic tension betweenevolution (scientific concept) and other theories or concepts aboutthe origin of life and matter, using the "Biblical version ofCreation" as but an example of such other concepts. And, itaffirmatively notes that evolution is the only theory taught. Infurtherance of the purposes to disclaim any orthodoxy of beliefthat could be inferred from the exclusive placement of evolution inthe curriculum, and to reduce any resulting offense to students whoadhere to concepts other than evolution, the disclaimer points outthat the fact that evolution is the only such concept taught --"presented to inform students of [that] scientific concept" -- is not intended to influence or dissuade any other concept, includingthe Biblical version. The disclaimer balances; it neutralizes; itis consistent with the requisite neutrality.
But, the panel construes the disclaimer's urging students to"exercise critical thinking" as being solely with respect to theBiblical theory, interpreting it as "encourag[ing] students to readand meditate upon religion in general and the 'Biblical version ofCreation' in particular". Id . at 346. In so doing, the panelignores the disclaimer's plain language (urging students to"closely examine each alternative", including evolution), as wellas the context in which the disclaimer is presented, i.e. ,preceding a lesson which presents evolution as the sole explanationfor the origin of life and matter. Therefore, the panelmisunderstands the message.
The curriculum provides students with information about only one concept (evolution). The disclaimer's mere mention of theexistence of other concepts, without presenting any informationabout the content of those concepts , neither gives any preferredstatus to, nor advances, any other concept, which students mustmake an additional effort to consider or learn, outside theclassroom .
2. The reminder that students have the right to maintainbeliefs taught by their parents regarding the origin of life .
As discussed, the panel's reliance on this factor may haveresulted from its misquoting the disclaimer (failing to recognizethe disclaimer's use of "or" rather than "and" between the phrases"form his/her own opinion" and "maintain beliefs taught byparents"). As noted, we are now told that this error "does notaffect the outcome of this case". In any event, how does remindingstudents of their right to maintain beliefs taught by their parentsregarding the origin of life and matter, or to form their ownbeliefs about the subject, advance religion? In that students aretaught about only one such concept -- evolution -- there is "norealistic danger that the community would think that the [SchoolBoard] was endorsing religion or any particular creed, and anybenefit to religion or to the Church would have been no more thanincidental". Lamb's Chapel v. Center Moriches Union Free Sch.Dist. , 508 U.S. 384, 395 (1993).
3. The "Biblical version of Creation" as the only alternativetheory specifically referenced in the disclaimer.
The panel reasoned that, because the only alternative theoryidentified in the disclaimer is a religious one, the disclaimer"serves only to promote a religious alternative to evolution". Freiler , 185 F.3d at 348. (As discussed, this may be the hook onwhich the panel hangs its disclaimer to the disclaimer, denial ofrehearing hat.) The reliance on this factor is misplaced, becausethe panel fails to take into account the disclaimer's audience. Yet, the panel acknowledges that, "[i]n assessing the primaryeffect of the contested disclaimer, we focus on the messageconveyed by the disclaimer to the students who are its intendedaudience". Id . at 346.
The record reflects that an estimated 95% of the parishstudents are adherents to the Biblical concept of creation. Accordingly, use of the "Biblical version of Creation" as anillustration of an alternative concept to evolution is hardlysurprising. Because the overwhelming majority of the studentsexpected to hear the disclaimer were familiar with that alternativeconcept, the reference serves to give context to the message, butwithout promoting that concept or expressing intolerance for anyother. Surely, giving context to a message is an admirable methodof instruction.
Contrary to the panel's interpretation, the disclaimerexpressly encourages examination of "each alternative" concept forlife's origin, including evolution, the Biblical version, andothers that are not identified. Moreover, the panel erroneouslyassumes that all alternatives to evolution are religious in nature,ignoring the existence of non-religious theories, such as the "BigBang" and panspermia (reproductive bodies of living organisms existthroughout the universe and develop wherever the environment isfavorable).
Based on my review of the record, the language of thedisclaimer, and the context in which it was intended to be used,the primary effect of the disclaimer is not to advance religion;instead, it is to advance tolerance and respect for diverseviewpoints. The record reflects that, to the overwhelming majorityof the parish students, the scientific concept of evolutionconflicts with their (or their parents') beliefs about the originof life and matter; and its exclusive place in the curriculum hadcaused concern among students and parents. The disclaimer'smessage is one of respect for diverse viewpoints, informingstudents that teaching evolution as the sole concept for the originof life and matter is not intended to influence or dissuade themfrom forming their own opinions about the subject or frommaintaining beliefs taught by their parents.
In examining the disclaimer's effect, the panel erred by not considering the context in which the disclaimer was intended to beused. In the parish schools, evolution is taught ; the "Biblicalversion of Creation" is not ! How can the effect of the disclaimerbe to endorse or advance a concept that is merely mentioned , usingonly four words, when evolution is the only concept for the originof life and matter that is included in the curriculum, the only onethat will be explained and discussed in any lesson following thedisclaimer's being read?
Understood and considered in the context in which it isintended to be used, the disclaimer expresses tolerance for theviews of all students. A student who adheres to the concept ofevolution and does not adhere to the Biblical version of creationis taught evolution; told the curriculum is not meant to disparageother concepts, including the Biblical version; and encouraged tothink critically. Likewise, a student who adheres to the Biblicalversion and believes it to conflict with the concept of evolutionis taught evolution; told the curriculum is not meant to disparageother concepts; and encouraged to think critically.
As I noted in Murray v. City of Austin, Tex. , 947 F.2d 147,158 (5th Cir. 1991) (inclusion of Christian cross in city insigniaheld constitutional), cert. denied , 505 U.S. 1219 (1992), JusticeGoldberg, in School Dist. of Abington Township, Pa. v. Schempp , 374U.S. 203 (1963), stated that "the measure of constitutionaladjudication is the ability and willingness to distinguish betweenreal threat and mere shadow". Id . at 308 (Goldberg, J.,concurring). The disclaimer, as did the city insignia in Murray ,casts a "mere shadow" near, instead of being a "threat" to , theprinciples underlying the Establishment Clause. But, the panel hastransformed neutrality into intolerance. Accordingly, Irespectfully dissent from the denial of rehearing en banc.