|
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
Nos. 97-30879,98-30132
__________________
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.
______________________________________________
Appeals from the United States District Court for the
Eastern District of Louisiana, New Orleans
______________________________________________
January 24, 2000
ON PETITION FOR REHEARING EN BANC
(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 the
disclaimer's language, substituting and for or in a disclaimer
passage. The School Board is correct. The particular passage
as stated in the disclaimer reads as follows:
"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 or maintain beliefs taught by parents on this very
important matter of the origin of life and matter."
The improper substitution of "and" for "or" does not affect
the outcome of this case.
In denying rehearing, we emphasize that we do not decide that
a state-mandated statement violates the Constitution simply
because it disclaims any intent to communicate to students
that the theory of evolution is the only accepted explanation
of the origin of life, informs students of their right to
follow their religious principles, and encourages students to
evaluate all explanations of life's origins, including those
taught outside the classroom. We decide only that under the
facts and circumstances of this case, the statement of the
Tangipahoa Parish School Board is not sufficiently neutral to
prevent it from violating the Establishment Clause.
Treating the Petition for Rehearing En Banc as a Petition for
Panel Rehearing, the Petition for Panel Rehearing is DENIED.
The court having been polled at the request of one of the
members of the court and a majority of the judges who are in
regular active service 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 from the denial of rehearing en banc:
For the second time in less than a year, our court has refused
to grant rehearing en banc to consider application of the
Establishment Clause of the First Amendment to issues of
exceptional importance to students, parents, and educators.
See Doe v. Santa Fe Indep. Sch. Dist. , 168 F.3d 806 (holding
unconstitutional, inter alia , student-led prayers before
football games), reh'g denied , 171 F.3d 1013 (5th Cir.),
cert. granted , ___ U.S. ___, 120 S. Ct. 494 (1999). I joined
the dissent from the denial of rehearing in Santa Fe , and
respectfully dissent from this denial, because I believe our
court's recent Establishment Clause jurisprudence is not only
inconsistent with Supreme Court precedent, as well as ours,
but is also so erroneous and unwarranted it will be understood
by some as being nothing less than 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 the
theory of evolution (the disclaimer), required to be read in
Tangipahoa 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 that the lesson is "presented to inform
[them] of the scientific concept and not intended to influence
or dissuade the Biblical version of Creation or any other
concept". The panel holds the disclaimer unconstitutional for
not being neutral. Id . at 345-48.
But, in seeking to enforce constitutionally mandated
neutrality, the panel has strayed, no doubt unintentionally,
onto a path of intolerance. See Lynch v. Donnelly , 465 U.S.
668, 673 (1984) ("Nor does the Constitution require complete
separation of church and state; it affirmatively mandates
accommodation, not merely tolerance, of all religions, and
forbids hostility toward any"). Unfortunately, notwithstanding
this case being one of "exceptional importance", as well as
there being the necessity "to secure or maintain uniformity of
[our] court's decisions", the very fodder 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 by
the panel to explain why the disclaimer fails. Surely, that is
the role of the opinion. In any event, this vague, good news
for everyone statement (the disclaimer to the disclaimer) may
provide comfort to those members of our court reluctant to
allow en banc rehearing. We are now seemingly assured that, in
general, disclaimers somewhat similar to the one at issue are
constitutionally permissible; but informed that, "under the
facts and circumstances of this case, the statement of the
Tangipahoa Parish School Board is not sufficiently neutral to
prevent it from violating the Establishment Clause".
With all due respect to the panel, this disclaimer to the
disclaimer, while possibly being the balm necessary to save
this case from being reheard en banc, does far more harm than
good. For this 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 to harmonize the panel's holding about
the disclaimer and its disclaimer to the disclaimer could
conclude, quite justifiably, that the disclaimer does not pass
muster because of one simple fact: it mentions the Bible.
Whether that be the panel's holding, or that be the reader's
conclusion, there is consistency in one sense -- 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 by
the panel holding that the Establishment Clause does not
permit a teacher, at the start of a lesson on evolution, to
read a statement informing students that the lessons are not
intended to dissuade their beliefs in alternative concepts of
the origin of life and matter; urging them to think critically
about evolution and such alternative concepts; and reminding
them of their right to form their own opinions or to maintain
beliefs taught by their parents. (Interestingly, what the
disclaimer to the disclaimer suggests would be permissible
tracks the disclaimer quite closely.)
The disclaimer is required by the following resolution adopted
in 1994 by the Tangipahoa Parish School Board:
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 [evolution] theory.
It is hereby recognized by the Tangipahoa Parish 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 or 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.
(Emphasis added.) The panel opinion, in quoting the
disclaimer, erroneously uses "and" instead of "or" in the
above passage about a 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, but states 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
any orthodoxy of belief that could be inferred from the
exclusive placement of evolution in the curriculum, and (3) to
reduce offense to the sensibilities and sensitivities of any
student or parent caused by the teaching of evolution". Id. at
344. The panel concluded that the second and third purposes
were permissible secular objectives. Id . at 345.
But, in a holding that overlaps with its holding that the
disclaimer is not neutral, discussed infra , the panel decided
that the first purpose was a "sham", concluding that the
disclaimer furthered a contrary purpose: "the protection and
maintenance of a particular religious viewpoint". Id . at
344-45. In so doing, the panel interpreted the message of the
disclaimer as telling students that "evolution as taught in
the classroom need not affect what they already know"; and
that this was "contrary to an intent to encourage critical
thinking, which requires that students approach new concepts
with an open mind and a willingness to alter and shift
existing viewpoints". Id . at 345 (emphasis added).
The first-purpose-is-a-sham-conclusion is unwarranted. As
noted, the panel misquoted the following portion of the
disclaimer: "it is the basic right and privilege of each
student to form his/her own opinion or [not " and ", as the
panel opinion mistakenly quoted] maintain beliefs taught by
parents on [the] ... matter of the origin of life and matter".
This mistaken reading of the disclaimer as conjunctive, rather
than disjunctive , perhaps explains why the panel discounted
the disclaimer's clear message that, concerning the origin of
life and matter, students are free to 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 disclaimer
survives the secular purpose prong of Lemon v. Kurtzman , 403
U.S. 602 (1971). Freiler , 185 F.3d at 345. But, it concluded
that it was unconstitutional nevertheless, on the basis that
it violates Lemon 's second prong (and the endorsement test of
County of Allegheny v. American Civil Liberties Union , 492
U.S. 573, 605 (1989)): its principal or primary effect
impermissibly advances religion. 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
treating students' religious beliefs and practices with
deference and respect; indeed, the constitution requires this
". (Emphasis added.) Along this line, the Freiler panel
"acknowledge[s] that local school boards need not turn a blind
eye to the concerns of students and parents troubled by the
teaching of evolution in public classrooms". Freiler , 185
F.3d at 345-46. Obviously, those who might be so troubled
might be those who believe in "the Biblical version of
Creation".
Sadly, what the panel gives, it takes away. Notwithstanding
the palaver about school boards not being required "to turn a
blind eye to [such] concerns", the panel relied on "the
interplay of three factors" in concluding that "the primary
effect of the disclaimer is to protect and maintain a
particular religious viewpoint, namely belief in the Biblical
version of creation":
(1) the juxtaposition of the disavowal of endorsement of
evolution with an urging that students contemplate alternative
theories of the origin of life; (2) the reminder that students
have the right to maintain beliefs taught by their parents
regarding the origin of life; and (3) the "Biblical version of
Creation" as the only alternative theory explicitly referenced
in the disclaimer.
Id . at 346.
1. The juxtaposition of the disavowal of endorsement of
evolution with an urging that students contemplate alternative
theories of the origin of life.
Considering the context in which the disclaimer is to be
presented (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 between evolution (scientific concept) and other
theories or concepts about the origin of life and matter,
using the "Biblical version of Creation" as but an example of
such other concepts. And, it affirmatively notes that
evolution is the only theory taught. In furtherance of the
purposes to disclaim any orthodoxy of belief that could be
inferred from the exclusive placement of evolution in the
curriculum, and to reduce any resulting offense to students
who adhere to concepts other than evolution, the disclaimer
points out that 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, including the Biblical version.
The disclaimer balances; it neutralizes; it is consistent with
the requisite neutrality.
But, the panel construes the disclaimer's urging students to
"exercise critical thinking" as being solely with respect to
the Biblical theory, interpreting it as "encourag[ing]
students to read and meditate upon religion in general and the
'Biblical version of Creation' in particular". Id . at 346. In
so doing, the panel ignores the disclaimer's plain language
(urging students to "closely examine each alternative",
including evolution), as well as the context in which the
disclaimer is presented, i.e. , preceding a lesson which
presents evolution as the sole explanation for the origin of
life and matter. Therefore, the panel misunderstands the
message.
The curriculum provides students with information about only
one concept (evolution). The disclaimer's mere mention of the
existence of other concepts, without presenting any
information about the content of those concepts , neither
gives any preferred status to, nor advances, any other
concept, which students must make an additional effort to
consider or learn, outside the classroom .
2. The reminder that students have the right to maintain
beliefs taught by their parents regarding the origin of life .
As discussed, the panel's reliance on this factor may have
resulted from its misquoting the disclaimer (failing to
recognize the disclaimer's use of "or" rather than "and"
between the phrases "form his/her own opinion" and "maintain
beliefs taught by parents"). As noted, we are now told that
this error "does not affect the outcome of this case". In any
event, how does reminding students of their right to maintain
beliefs taught by their parents regarding the origin of life
and matter, or to form their own beliefs about the subject,
advance religion? In that students are taught about only one
such concept -- evolution -- there is "no realistic danger
that the community would think that the [School Board] was
endorsing religion or any particular creed, and any benefit to
religion or to the Church would have been no more than
incidental". 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 alternative
theory specifically referenced in the disclaimer.
The panel reasoned that, because the only alternative theory
identified 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 on which the panel hangs its disclaimer to the
disclaimer, denial of rehearing hat.) The reliance on this
factor is misplaced, because the panel fails to take into
account the disclaimer's audience. Yet, the panel acknowledges
that, "[i]n assessing the primary effect of the contested
disclaimer, we focus on the message conveyed by the disclaimer
to the students who are its intended audience". Id . at 346.
The record reflects that an estimated 95% of the parish
students are adherents to the Biblical concept of creation.
Accordingly, use of the "Biblical version of Creation" as an
illustration of an alternative concept to evolution is hardly
surprising. Because the overwhelming majority of the students
expected to hear the disclaimer were familiar with that
alternative concept, the reference serves to give context to
the message, but without promoting that concept or expressing
intolerance for any other. Surely, giving context to a message
is an admirable method of instruction.
Contrary to the panel's interpretation, the disclaimer
expressly encourages examination of "each alternative" concept
for life's origin, including evolution, the Biblical version,
and others that are not identified. Moreover, the panel
erroneously assumes that all alternatives to evolution are
religious in nature, ignoring the existence of non-religious
theories, such as the "Big Bang" and panspermia (reproductive
bodies of living organisms exist throughout the universe and
develop wherever the environment is favorable).
Based on my review of the record, the language of the
disclaimer, 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
diverse viewpoints. The record reflects that, to the
overwhelming majority of the parish students, the scientific
concept of evolution conflicts with their (or their parents')
beliefs about the origin of life and matter; and its exclusive
place in the curriculum had caused concern among students and
parents. The disclaimer's message is one of respect for
diverse viewpoints, informing students that teaching evolution
as the sole concept for the origin of life and matter is not
intended to influence or dissuade them from forming their own
opinions about the subject or from maintaining 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 be used. In the parish schools, evolution is taught ; the
"Biblical version of Creation" is not ! How can the effect of
the disclaimer be to endorse or advance a concept that is
merely mentioned , using only four words, when evolution is
the only concept for the origin of life and matter that is
included in the curriculum, the only one that will be
explained and discussed in any lesson following the
disclaimer's being read?
Understood and considered in the context in which it is
intended to be used, the disclaimer expresses tolerance for
the views of all students. A student who adheres to the
concept of evolution and does not adhere to the Biblical
version of creation is taught evolution; told the curriculum
is not meant to disparage other concepts, including the
Biblical version; and encouraged to think critically.
Likewise, a student who adheres to the Biblical version and
believes it to conflict with the concept of evolution is
taught evolution; told the curriculum is not meant to
disparage other 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
insignia held constitutional), cert. denied , 505 U.S. 1219
(1992), Justice Goldberg, in School Dist. of Abington
Township, Pa. v. Schempp , 374 U.S. 203 (1963), stated that
"the measure of constitutional adjudication is the ability and
willingness to distinguish between real 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 , the principles
underlying the Establishment Clause. But, the panel has
transformed neutrality into intolerance. Accordingly, I
respectfully dissent from the denial of rehearing en banc.
|
