Bown v. Gwinnett Cty. School Dist. ( 1997 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 95-9595
D. C. Docket No. 1:94-CV-2224-FMH
BRIAN GILLESPIE BOWN,
Plaintiff-Appellant,
versus
GWINNETT COUNTY SCHOOL DISTRICT,
ZELL MILLER, in his official capacity
as Governor of the State of Georgia,
MICHAEL BOWERS, in his official
capacity as Attorney General of the State
of Georgia, GEORGE G. THOMPSON,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Georgia
(May 6, 1997)
Before ANDERSON and CARNES, Circuit Judges, and CUDAHY*, Senior
Circuit Judge.
ANDERSON, Circuit Judge:
_____________
*Honorable Richard D. Cudahy, Senior U.S. Circuit Judge for the
Seventh Circuit, sitting by designation.
The only issue before us in this appeal involves a challenge to
Georgia's Moment of Quiet Reflection in Schools Act ("the Act"). O.C.G.A. §
20-2-1050 (1996). Appellant Brian Gillespie Bown filed this suit seeking a
declaratory judgment that the Act violates the Establishment Clause of the
First Amendment and requesting that the Act's enforcement be enjoined.
On a stipulated record, the district court made findings of fact and
conclusions of law and entered final judgment for the appellees, holding
that the Act does not violate the Establishment Clause. We affirm.
I. FACTS
A. The Act and its Legislative History
The Moment of Quiet Reflection in Schools Act became effective on
July 1, 1994. The Act amended the former version of § 20-2-1050, which had
allowed teachers to conduct a brief period of "silent prayer or meditation"
at the beginning of each school day. The 1994 Act, as codified, provides as
follows:
20-2-1050. Brief period of quiet reflection authorized;
nature of period.
(a) In each public school classroom, the teacher in charge
shall, at the opening of school upon every school day, conduct a
brief period of quiet reflection for not more than 60 seconds with
the participation of all the pupils therein assembled.
(b) The moment of quiet reflection authorized by
subsection (a) of this Code section is not intended to be
and shall not be conducted as a religious service or
exercise but shall be considered as an opportunity for a moment
2
of silent reflection on the anticipated activities of the day.
(c) The provisions of subsections (a) and (b) of
this Code section shall not prevent student initiated
voluntary school prayers at schools or school related
events which are nonsectarian and nonproselytizing in
nature.
O.C.G.A. § 20-2-1050 (1996). The Act's uncodified preamble states:
The General Assembly finds that in today's hectic
society, all too few of our citizens are able to
experience even a moment of quiet reflection
before plunging headlong into the day's activities.
Our young citizens are particularly affected by
this absence of an opportunity for a moment of
quiet reflection. The General Assembly finds that
our young, and society as a whole, would be well
served if students were afforded a moment of quiet
reflection at the beginning of each day in the public
schools.
Moment of Quiet Reflection in Schools Act, Act No. 770, § 1, 1994 Ga. Laws
256, 256 (1994). The Act also contains an uncodified severability provision
which provides: "If any portion of this bill is found to be unconstitutional, it
shall be stricken and the remaining portions of this bill shall remain in full
force and effect as if the stricken portion had not been enacted." Id., § 4,
1994 Ga. Laws at 257.
Senator David Scott, the primary sponsor of the Act, introduced the
Act as Senate Bill 396 in January 1994. Senator Scott represented an urban
district in Atlanta, Georgia. He was the Chairman of the Senate Education
Committee, Chairman of the Youth, Aging and Human Ecology Committee,
and a member of the State Violence Task Force Committee to prevent
3
violence in schools. Senator Scott introduced Senate Bill 396 as a part of a
package of legislation aimed at reducing violence among Georgia's youths.1
Senator Scott had observed that after several killings on school campuses,
students came together to have a moment of silent reflection. Noting that
this moment of silence seemed to be beneficial and calming, Senator Scott
believed that providing students with an opportunity for silent introspection
at the beginning of each school day would help to combat violence among
Georgia's students. As a result, he introduced Senate Bill 396 as a part of
his overall strategy for curbing juvenile violence.
After Senate Bill 396 passed in the Senate, the Georgia House of
Representatives considered it and approved it with two amendments: the
Johnson amendment and the Davis amendment. The Johnson amendment
extended the period of silence from 60 to 120 seconds. The Davis
amendment contained the present Act's subsection (c) and a subsection (d)
stating that religious clubs shall not be prevented from meeting or
recruiting members on school property as long as other student groups are
given equal access.
Senate Bill 396 then went to a conference committee with House and
Senate members. The Conference Committee deleted the Johnson and
Davis amendments and reported out the version of Senate Bill 396
1
Senator Scott's legislative package included two other bills. One bill required
parents of students with chronic disciplinary problems to participate in school
disciplinary programs. The other bill made the sale or transfer of firearms to juveniles a
felony. Neither of these two bills became law.
4
originally approved by the Senate. The Senate adopted the Conference
Committee report, but the House rejected it.
A second conference committee was appointed. This conference
committee proposed the version of the bill originally approved by the
Senate, together with subsection (c) of the Davis amendment and a
severability provision. Both the Senate and the House passed this version
of the bill, and it became law.
The Georgia General Assembly does not officially record or transcribe
its proceedings, and it does not issue official committee reports. However,
Bown submitted to the district court a certified transcript of the House
proceedings during which the House debated and approved the Johnson
and Davis amendments. This transcript reveals that some House members
wanted to institute school prayer and apparently believed that Senate Bill
396 would accomplish this goal. A couple of House members opposed
Senate Bill 396 because they believed it instituted school prayer. Several
House members spoke in favor of Senate Bill 396 and stated that they did
not believe the bill authorized school prayer or had a religious purpose.
B. The Act's Implementation by the Gwinnett County School
District
Prior to the beginning of the 1994-95 school year, Bown, who was a
South Gwinnett High School teacher, expressed reservations regarding the
implementation of the Act. In a letter dated July 25, 1994, to Gwinnett
5
County School Superintendent George Thompson, Bown stated that he
"resent[ed] the General Assembly's intrusion on the operation of [his]
classroom" and requested guidance regarding the implementation of the
Act in his classroom. Specifically, Bown was concerned about the
interpretation and enforcement of subsection (c) and its interaction with
subsections (a) and (b). Bown also stated that he was uncertain what his
responsibilities would be if students engaged in audible prayer during the
moment of quiet reflection. Bown concluded the letter by stating that he
was concerned that he might face legal liability for enforcing the Act or for
attempting to determine what is and is not appropriate prayer during the
moment of quiet reflection.
In a letter dated August 12, 1994, Mr. Steve Spellman, Administrative
Assistant to the Gwinnett County School Board and Superintendent,
responded to Bown's letter by mailing Bown a copy of an Administrative
Bulletin that Spellman had sent to all school principals in July 1994. The
Administrative Bulletin instructed that:
It is important that we recommend that teachers and
administrators do not suggest or imply that students should or
should not use [the moment of quiet reflection] for prayer. If a
student asks, a teacher should advise a student that if the
student desires to have a quiet prayer, he or she may do so.
The statute specifically says "moment of quiet reflection." This
clearly precludes students using the moment of quiet reflection
to pray audibly, singly or in unison. We should not allow or
tolerate any coercion or overbearing by some students to force
others to pray. Nevertheless, we should be tolerant of non-
disruptive, non-sectarian, non-proselytizing, student initiated
prayer so long as it does not occur during the moment of quiet
6
reflection; otherwise, it will not be a moment of quiet reflection.
This time is not intended to be and shall not be conducted as a
religious service or exercise, but considered as an opportunity
for a moment of silent reflection on the anticipated activities of
the day.
Following his receipt of Spellman's letter, Bown again attempted to
raise his concerns regarding the Act in an August 16, 1994, faculty meeting
and in a subsequent meeting with Principal Delores Hendrix. Partially in
response to Bown's concerns, Superintendent Thompson and Principal
Hendrix decided that Hendrix should announce the moment of quiet
reflection at the beginning of each school day over the school intercom
system in order to ensure that the announcement was handled in a uniform
way every day.
At the beginning of the school day on August 22, 1994, the first day of
the 1994-95 school year, Principal Hendrix made the following
announcement over South Gwinnett High School's intercom system: "As
we begin another day, let us take a few moments to reflect quietly on our
day, our activities, and what we hope to accomplish." After Hendrix
finished making this announcement, Bown told his high school class, "You
may do as you wish. That's your option. But I'm going to continue with my
lesson." Bown continued teaching his lesson during the moment of quiet
reflection. Two students placed Bibles on their desks, and one of these
students bowed her head. No students attempted to pray audibly or to lead
others in prayer during the moment of quiet reflection or at any other time
7
during the school day.
Later that day, Bown met with Superintendent Thompson and
Principal Hendrix. Superintendent Thompson instructed Bown to comply
with the moment of quiet reflection by remaining silent for the specified
sixty seconds and gave Bown overnight to reconsider his actions. The next
day, Bown informed Hendrix that he did not feel he could obey the Act and
he left the school's campus. Bown was suspended from his job. The Board
of Education subsequently terminated his employment with the Gwinnett
County School District.
II. ANALYSIS
Bown argues that the Act violates the Establishment Clause of the
First Amendment.2 In analyzing this Establishment Clause challenge, we
use the three part test articulated in Lemon v. Kurtzman, 403 U.S. 602, 91
S.Ct. 2105 (1971). See Lamb's Chapel v. Center Moriches Sch. Dist., 505
U.S. 384, ___, 113 S.Ct. 2141, 2148 n.7 (1993) (noting that despite heavy
criticism of the Lemon test, Lemon has not been overruled). See also Jager
v. Douglas County Sch. Dist., 862 F.2d 824, 828-29 (11th Cir.), cert. denied,
490 U.S. 1090, 109 S.Ct. 2431 (1989) (discussing appropriateness of using
Lemon test). Under the Lemon test, "[f]irst, the statute must have a secular
2
The Establishment Clause of the First Amendment provides that "Congress shall
make no law respecting an establishment of religion . . . . " U.S. Const. amend. I. The
Establishment Clause, as incorporated by the Fourteenth Amendment, applies to the
states. Everson v. Bd. of Educ. of Ewing, 330 U.S. 1, 8, 67 S.Ct. 504, 508 (1947).
8
legislative purpose; second, its principal or primary effect must be one that
neither advances nor inhibits religion . . . ; finally, the statute must not
foster ``an excessive government entanglement with religion.'" Lemon, 403
U.S. at 612-13, 91 S.Ct. at 2111 (citations omitted). In order to withstand an
Establishment Clause challenge, a statute must satisfy all three prongs of
the Lemon test. Stone v. Graham, 449 U.S. 39, 40-41, 101 S.Ct. 192, 193
(1980) (per curiam).
A. Secular Purpose
1. Determination of Purpose
The first prong of the Lemon test requires that the challenged statute
have a "clearly secular purpose." Wallace v. Jaffree, 472 U.S. 38, 56, 105
S.Ct. 2479, 2489 (1985). However, the statute's purpose need not be
exclusively secular. Lynch v. Donnelly, 465 U.S. 668, 681 n.6, 104 S.Ct.
1355, 1363 n.6 (1984). A statute violates the Establishment Clause if it is
"entirely motivated by a purpose to advance religion." Jaffree, 472 U.S. at
56, 105 S.Ct. at 2489. See also Church of Scientology v. City of Clearwater,
2 F.3d 1514, 1527 (11th Cir. 1993), cert. denied, 115 S.Ct. 54 (1994) ("'[N]o
legislative recitation of a supposed secular purpose can blind us' to an
enactment's 'pre-eminent purpose.'" (quoting Stone v. Graham, 449 U.S. 39,
41, 101 S. Ct. 192, 194 (1980) (per curiam)). In determining a statute's
9
purpose, the court should inquire into "'whether [the] government's actual
purpose is to endorse or disapprove of religion.'" Jaffree, 472 U.S. at 56,
105 S.Ct. at 2489 (quoting Lynch, 465 U.S. at 690, 104 S.Ct. at 1368(O'Connor, J., concurring)). See also County of Allegheny v. ACLU, 492
U.S. 573, 592, 109 S.Ct. 3086, 3100 (1989); Edwards v. Aguillard, 482 U.S.
578, 585, 107 S.Ct. 2573, 2578 (1987); Jager, 862 F.2d at 829. A court usually
should be deferential to the state's articulation of a secular purpose, but the
secular purpose must be sincere and not a sham. Edwards, 482 U.S. at 586-
87, 107 S.Ct. at 2579.
To ascertain a statute's purpose, it is, of course, necessary to
examine the language of the statute on its face. Edwards, 482 U.S. at 594,
107 S.Ct. at 2583; Church of Scientology, 2 F.3d at 1527. It is also
appropriate to consider the legislative history of the statute and the specific
sequence of events leading up to the adoption of the statute. Edwards, 482
U.S. at 594-95, 107 S.Ct. at 2583; Church of Scientology, 2 F.3d at 1527.
2. The Act's Purpose
The Act's preamble sets forth a clearly secular purpose for the Act.
The preamble indicates that the Georgia General Assembly felt that in
"today's hectic society" there are few opportunities to engage in what the
General Assembly felt would be beneficial quiet reflection. The preamble
explains that the purpose of the Act is to provide students with an
10
opportunity for a brief period of quiet reflection before beginning the day's
activities.
The secular purpose explained in the preamble is repeated expressly
in the language of the statute itself. Subsection (a) provides for a "brief
period of quiet reflection."3 O.C.G.A. § 20-2-1050(a) (1996). Subsection (b)
further reveals that the Act's purpose is secular by explaining that the
"moment of quiet reflection . . . is not intended to be and shall not be
conducted as a religious service or exercise but shall be considered as an
opportunity for a moment of silent reflection on the anticipated activities of
the day." O.C.G.A. § 20-2-1050(b) (1996). Thus, subsection (b) expressly
articulates a clear secular purpose and also expressly disclaims a religious
purpose. By stating that the moment of quiet reflection shall not be
conducted as a religious service or exercise, the statute indicates that
Georgia is not advocating the moment of quiet reflection as a time for
religious activity.4 Subsection (b) even provides a secular topic on which
students may reflect: "the anticipated activities of the day." Id.
3
This Act amended the former version of § 20-2-1050, which provided for a
moment of "silent prayer or meditation." The deletion of the words "prayer or
meditation" and the substitution of the words "period of quiet reflection" provides some
support for the idea that the Act's purpose is secular and is not to establish a moment of
prayer. Cf. Jaffree, 472 U.S. at 58-60, 105 S. Ct. at 2490-91 (where Alabama already had a
moment of silence statute, the fact that the new statute established a period of silence
"for meditation or voluntary prayer" conveyed a message of endorsement and promotion
of prayer).
4
On the other hand, nothing in the statute prevents individual prayer or
religious meditation during the moment of quiet reflection so long as such activity is
silent.
11
Bown contends, however, that subsection (c) impermissibly infuses
the Act with an improper religious purpose. Bown argues that subsection
(c) authorizes voluntary, nonsectarian, nonproselytizing, student initiated
prayer and thus shows that the Act has a religious purpose. However, an
examination of the language of subsection (c) and its legislative history
reveals that the most reasonable interpretation of subsection (c) is that it
does not affirmatively authorize any activity at all, but rather merely rebuts
any possible negative pregnant implied from the prohibition of religious
activity in subsection (b). The explicit language of subsection (c) merely
states that subsections (a) and (b) do not prevent certain activity which the
legislature apparently believed was constitutional.5 This interpretation is
clear from the plain language of subsection (c):
The provisions of subsections (a) and (b) of this Code section
shall not prevent student initiated voluntary school prayers at
schools or school related events which are nonsectarian and
nonproselytizing in nature.
O.C.G.A. § 20-2-1050(c) (1996) (emphasis added). No affirmative activity is
authorized. Thus, subsection (c) merely clarifies that subsections (a) and
(b) shall not prevent other activity that is constitutionally permissible under
5
As discussed in the text below, the lawmakers apparently feared that the
express prohibition in (b) -- i.e., that the moment of quiet reflection not be conducted in a
religious manner -- might be misconstrued by some school officials as also preventing
constitutionally permissible religious activities at other school events. The apparent
intent of subsection (c) is to prevent any such unintended reading of subsection (b).
12
the First Amendment.6
Several considerations lead us to reject Bown's argument that
subsection (c) affirmatively authorizes religious activity at schools and
school-related events. As noted above, the plain language of (c) indicates
that it affirmatively authorizes nothing and is merely intended to guard
against unintended interpretations of subsections (a) and (b). The overall
structure of the Act further supports this view. The preamble clearly
explains that the Act is focused on "a moment of quiet reflection" for
secular purposes, not on the religious purpose suggested by Bown's
interpretation. The secular moment of silence focus is also borne out by
the title of the Act ("Moment of Quiet Reflection in Schools") and the
caption for the Act as codified ("Brief period of quiet reflection authorized;
6
Subsection (c)'s language is distinguishable from that of the
Mississippi statute at issue in Ingebretsen v. Jackson Pub. Sch. Dist., 88
F.3d 274 (5th Cir.), cert. denied sub nom. Moore v. Ingebretsen, 117 S. Ct.
388 (1996). The Mississippi statute provided that voluntary, student
initiated prayers that are nonsectarian and nonproselytizing "shall be
permitted" at school events. Id. at 277. The Mississippi statute thus
affirmatively authorized this type of student prayer. In contrast,
subsection (c) of the Act states that nothing in subsections (a) and (b)
"shall prevent" activity the legislators believed to be constitutional.
Subsection (c) thus merely makes it clear that subsections (a) and (b) do
not prevent any activity that is protected by the First Amendment.
We express no opinion in this case regarding whether a statute
which provides that voluntary, student initiated prayers that are
nonsectarian and nonproselytizing "shall be permitted" at school events
would violate the Establishment Clause. See Chandler v. James, No. 96-
D-169-N (M.D. Ala. Mar. 12, 1997) (finding that Alabama statute which
provides that voluntary, student initiated, nonsectarian, nonproselytizing
prayers "shall be permitted" at school is unconstitutional).
13
nature of period."). Finally, the severability clause further supports our
interpretation that subsection (c) merely is intended to clarify subsections
(a) and (b) and does not infuse the Act with a religious purpose. The
severability clause provides that if any section of the Act is found to be
unconstitutional, the other sections of the Act will remain in effect.
Because of this severability clause, if subsection (c) were struck down,
subsections (a) and (b) would remain and the moment of quiet reflection
would continue. The severability clause thus indicates that the Georgia
legislators, regardless of the validity of subsection (c), wanted to provide
for a moment of quiet reflection for Georgia's students and would be
satisfied to have subsections (a) and (b) enforced even in the absence of
subsection (c).
The Act's legislative history, although somewhat conflicting, is not
inconsistent with the express statutory language articulating a clear secular
purpose and disclaiming a religious purpose. The Act's primary sponsor,
Senator Scott, stated that he introduced Senate Bill 396 as one way of
addressing the problems of violence which Georgia's children face. He
viewed the Act not as providing for school prayer, but rather as providing
for a moment for students to collect their thoughts, focus on the upcoming
day, and begin to develop self-respect and discipline. In the House debate,
it is true that several representatives indicated a desire to reinstitute school
prayer, and at least some apparently believed that the bill as amended in
14
the House would do so. However, several legislators who supported the bill
in the House indicated that they did not believe that the bill had anything to
do with prayer.
Bown argues that the House debate with respect to subsection (c)7
indicates a legislative purpose to restore prayer to the schools. As noted
above, several representatives apparently believed that the amendment
which ultimately survived as subsection (c) was a step toward returning
prayer to schools. However, as also noted above, other legislators thought
otherwise. There is also strong evidence indicating that subsection (c) was
motivated by a Fifth Circuit decision which allowed voluntary, student-
initiated prayers at high school graduations if the prayers were
nonsectarian and nonproselytizing. See Jones v. Clear Creek Indep. School
Dist., 977 F.2d 963 (5th Cir. 1992), cert. denied, 508 U.S. 967, 113 S.Ct. 2950(1993). It is apparent that the legislators supporting the addition of
subsection (c) were concerned that subsections (a) and (b) might be
construed to prohibit activities (like those in Jones) that the legislators
believed to be constitutionally permissible. In other words, these
legislators viewed subsection (c) merely as making it clear that subsections
7
Subsection (c) was the only portion of the Davis Amendment which
survived the Conference Committee and subsequent legislative proceedings to become
part of the final version of the statute.
15
(a) and (b) do not prevent constitutionally permissible activity.8
We are thus faced with legislative history that is much different from
that in Jaffree. In Jaffree, the primary sponsor of the Alabama statute and
the Governor of Alabama both explicitly conceded that the purpose of the
Alabama statute was to return prayer to the Alabama schools, and Alabama
failed to present any evidence of a secular purpose. Jaffree, 472 U.S. at 57
& n.44, 105 S.Ct. at 2490 & n.44. In contrast, in this case, the primary
sponsor of the Act indicated that the Act had a secular purpose. It is true,
as Bown argues, that some legislators expressed the desire to return prayer
to Georgia's schools and supported the Act for this reason. However, it is
also true that other legislators felt that the Act did not involve school
prayer. Furthermore, there is no evidence as to what the many other
legislators who voted in favor of the Act believed the purpose of the Act
was or why they voted for the Act. The plurality in Board of Education of
Westside Community Schools v. Mergens, 496 U.S. 226, 110 S.Ct. 2356(1990), provides helpful guidance for a case such as this one in which the
legislative history is conflicting. The Mergens plurality noted that "[e]ven if
some legislators were motivated by a conviction that religious speech in
particular was valuable and worthy of protection, that alone would not
8
The issue of whether the type of student initiated, nonsectarian,
nonproselytizing, voluntary school prayer permitted at high school graduations in Jones
is constitutional is not raised by the facts of this case. Thus, we need not address that
issue, nor whether there is tension between the Fifth Circuit decision in Jones and this
circuit's decision in Jager v. Douglas County Sch. Dist., 862 F.2d 824 (11th Cir.), cert.
denied, 490 U.S. 1090, 109 S. Ct. 2431 (1989).
16
invalidate the Act, because what is relevant is the legislative purpose of the
statute, not the possibly religious motives of the legislators who enacted
the law." Mergens, 496 U.S. at 249, 110 S.Ct. at 2371 (plurality). Although
some Georgia legislators expressed religious motives for voting for the Act,
the fact remains that the language of the statute as enacted reveals a
clearly secular legislative purpose: to provide students with a moment of
quiet reflection to think about the upcoming day.
An overall assessment of the legislative history may well support a
clear secular purpose, as the district court found. We need not so decide,
however, because we readily conclude at the very least that the legislative
history cannot be construed to override the express statutory language
articulating a clear secular purpose and also disclaiming a religious
purpose.
For the foregoing reasons, we conclude that the Act has a clearly
secular purpose. Because the Act's clearly secular purpose is sincere and
not a sham,9 we conclude that the Act satisfies the first prong of the Lemon
test.
9
This case is not like Edwards v. Aguillard, for example, in which the
Louisiana Legislature's supposedly secular purpose for enacting the Louisiana
creationism statute was found to be a sham. In Edwards, the primary sponsor of the
Louisiana statute introduced the statute for a religious purpose and the statute's
supposedly secular purpose of promoting academic freedom was completely
undermined by the statute's narrowing of the science curriculum. Edwards, 482 U.S. at
586-93, 107 S.Ct. at 2579-84.
17
B. Primary Effect
Under the second prong of the Lemon test, a statute violates the
Establishment Clause if its primary effect is to advance or inhibit religion.
The effects prong of the Lemon test "``asks whether, irrespective of [the]
government's actual purpose, the practice under review in fact conveys a
message of endorsement or disapproval'" of religion. Jaffree, 472 U.S. at 56
n.42, 105 S. Ct. at 2489 n.42 (quoting Lynch, 465 U.S. at 690, 104 S. Ct. at
1368 (O'Connor, J., concurring)). See also Jager, 862 F.2d at 831.
The facts presented in this case demonstrate that the Act, as
implemented by the Gwinnett County School District, does not have the
primary effect of either advancing or inhibiting religion. The announcement
made over the school intercom by Principal Hendrix indicated only that
there would be a moment of silence to reflect on the day's activities. This
announcement in no way suggested that students should or should not
pray silently during the moment of quiet reflection. The Administrative
Bulletin circulated to all school principals instructed that teachers should
not suggest that students use the moment of quiet reflection for prayer.
The Administrative Bulletin advises that if students ask if they can pray
during the moment of quiet reflection, the teacher should tell the students
that they may pray silently if they wish. There is no indication in this case
that any teacher encouraged prayer in violation of the guidelines stated in
the Administrative Bulletin. There is no evidence in this case that any
18
students were exhorted to pray, favored for praying, or disfavored for not
praying. Cf. Jaffree, 472 U.S. at 78, 105 S. Ct. at 2498 (O'Connor, J.,
concurring) (suggesting Establishment Clause problems arise if teachers
exhort students to pray or favor students who pray). The record in this
case indicates only that two of Bown's students placed Bibles on their
desks during the moment of quiet reflection, and one of these students
bowed her head.
Bown contends, however, that the Act, by mandating a moment of
silence, both advances and inhibits religion by favoring silent prayer and
discouraging other forms of prayer. We are unpersuaded by this argument.
It is true that students may not engage in audible prayer under the terms of
the Act because audible prayer necessarily would not be silent. However,
this conclusion does not cause the Act to run afoul of the second prong of
the Lemon test. The Act mandates a moment of quiet reflection, not a
moment of silent prayer. Students with religious beliefs which require non-
silent prayer need not engage in silent prayer during the moment of quiet
reflection. These students may sit silently, reflecting on whatever topic
they choose, without compromising their religious beliefs or being forced to
listen to other students' prayers. See Jaffree, 472 U.S. at 72, 105 S. Ct. at
2498 (O'Connor, J., concurring). Similarly, students who do not believe in
prayer or religion at all may sit silently and think about any topic of their
choice without being forced to pray or to listen to others' prayers. For that
19
matter, students who do believe in silent prayer as a form of religious
activity may pray silently, but are not forced to pray or to listen to others'
prayers. All students may use the moment of quiet reflection as they wish,
so long as they remain silent.10 To the extent that individual students
decide to use the moment of quiet reflection as an opportunity to pray
silently (as opposed, for example, to using the moment of quiet reflection to
think about the day's activities, the secular topic suggested in the statute),
the statute does not have the primary effect of either advancing or
inhibiting religion so long as the moment of quiet reflection exercise is
conducted in the manner prescribed by the statute (i.e., that the moment of
quiet reflection is silent and is not conducted as a religious exercise).
We also note that this case does not involve impermissible
government coercion of students to engage in religious activity. See Lee v.
Weisman, 505 U.S. 577, ___, 112 S. Ct. 2649, 2658-59 (1992) (discussing the
dangers of government coercion inherent in school religious activities).11
10
As the court noted in Gaines v. Anderson, "If a student's beliefs preclude prayer in
the setting of a minute of silence in a schoolroom, he may turn his mind silently toward a
secular topic, or simply remain silent, without violating the statute or guidelines or facing
the scorn or reproach of his classmates." 421 F. Supp. 337, 345 (D. Mass. 1976) (three
judge district court) (discussing Free Exercise Clause).
11
It is not entirely clear how the coercion inquiry interacts with the Lemon test.
However, an examination of coercion seems to involve an analysis of the effects of a
particular statute, so we include our discussion of coercion in our examination of the
Act's effects. We note that some Justices have indicated that a showing of coercion is
sufficient to prove an Establishment Clause violation, but is not necessary to establish
such a violation. See Weisman, 505 U.S. at ___, 112 S. Ct. at 2664 (Blackmun, J.,
concurring) ("Although our precedents make clear that proof of government coercion is
not necessary to prove an Establishment Clause violation, it is sufficient. Government
[coercion] . . . is an obvious indication that the government is endorsing or promoting
20
The facts in this case do not indicate that the state has created a situation
in which students are faced with public pressure or peer pressure to
participate in religious activity. Cf. Weisman, 505 U.S. at ___, 112 S. Ct. at
2658 (explaining that school sponsored prayers at a high school graduation
create public pressure and peer pressure to at least maintain respectful
silence during the prayers). The Act explicitly says that the moment of
quiet reflection is not to be conducted as a religious exercise. O.C.G.A. §
20-2-1050(b) (1996). All that students must do under the Act is remain silent
for 60 seconds; they are not encouraged to pray or forced to remain silent
while listening to others' prayers. As a result, we conclude that this case
reveals no coercion.12
For the foregoing reasons, we conclude that there has been no
violation of the second prong of the Lemon test.
C. Excessive Entanglement
The third prong of the Lemon test dictates that the statute must not
foster an excessive government entanglement with religion. The Lemon
religion."); Weisman, 505 U.S. at ___, 112 S. Ct. at 2672 (Souter, J., concurring) ("Our
precedents . . . . simply cannot, however, support the position that a showing of coercion
is necessary to a successful Establishment Clause claim.").
12
We reject Bown's argument that there is evidence of coercion in this case. The
fact that two students placed Bibles on their desks and one of them also bowed her head
does not indicate coercion. Indeed, the fact that out of the entire class only two students
did so indicates a lack of coercion. We express no opinion on a case in which there is
substantial evidence of visible religious activity in the classroom.
21
test's excessive entanglement prong has been interpreted to mean that
"'some governmental activity that does not have an impermissible religious
effect may nevertheless be unconstitutional, if in order to avoid the
religious effect [the] government must enter into an arrangement which
requires it to monitor the activity.'" Nartowicz v. Clayton County Sch. Dist.,
736 F.2d 646, 649 (11th Cir. 1984) (quoting Americans United for Separation
of Church and State v. School Dist. of the City of Grand Rapids, 718 F.2d
1389, 1400 (6th Cir. 1983)). We conclude that there is no excessive
entanglement in this case. All that the Act requires is that the students and
the teacher in charge remain silent during the moment of quiet reflection.
Teachers are not required to participate in or lead prayers, nor are they
required to review the content of prayers during the moment of quiet
reflection. Cf. Jager, 862 F.2d at 831 (suggesting that excessive
entanglement might result if school officials monitored the content of pre-
football game invocations or chose the invocation speakers); Ingebretsen,
88 F.3d at 279 (finding excessive entanglement when school administrators
participated in and reviewed the content of prayers). The fact that a teacher
must stop a student who prays audibly or otherwise makes noise during the
moment of quiet reflection does not result in excessive government
entanglement with religion. There are many times during any given school
day when teachers tell their students to be quiet and when audible activity
of any kind is not permitted. The fact that this particular period of silence is
22
mandated statewide does not create entanglement problems.
Bown argues that subsection (c) affirmatively permits student
initiated, voluntary school prayers so long as they are nonsectarian and
nonproselytizing. He argues that teachers would have to monitor such
prayers to ensure they were nonsectarian and nonproselytizing, and that
this monitoring would constitute excessive entanglement. We can assume
arguendo without deciding that such monitoring would constitute excessive
entanglement. However, Bown's argument fails for two reasons. First, we
have already rejected Bown's interpretation of subsection (c) and
concluded that the most reasonable interpretation is that subsection (c)
affirmatively authorizes nothing at all. Rather, we think subsection (c)
merely clarifies that the moment of quiet reflection statute does not prevent
other activity that is constitutionally permissible. See supra Part II.A.2.
Thus, the Act does not affirmatively authorize prayers which a teacher
would have to monitor, and the monitoring problem about which Bown
speculates simply does not arise under this Act.
Second, this case involves no prayer for a teacher to monitor. Indeed,
no case involving the moment of quiet reflection would involve prayers for a
teacher to monitor because any prayers during the moment of quiet
reflection necessarily must be silent. Thus, the monitoring problem
postulated by Bown is not present in this case and is not likely to arise in
23
any moment of quiet reflection case.13
For the foregoing reasons, we conclude that the Act satisfies the third
prong of the Lemon test.
III. CONCLUSION
The Georgia Moment of Quiet Reflection in Schools Act satisfies all
three prongs of the Lemon test. The Act has a clearly secular purpose. The
specific facts presented in this case indicate that the Act does not have the
primary effect of advancing or inhibiting religion and does not create an
excessive government entanglement with religion. As a result, we hold that
the Act does not violate the Establishment Clause. The district court's
judgment for the appellees is affirmed.
AFFIRMED.
13
The Supreme Court has indicated that an Establishment Clause challenge may be
made both facially and as applied. Bowen v. Kendrick, 487 U.S. 589, 600-02, 108 S. Ct.
2562, 2569-70 (1988). We readily conclude that the instant statute is not facially
unconstitutional. As explained above, subsection (c) does not affirmatively authorize
any activity at all. Rather, the focus of the Act is clearly upon the conduct of moments of
quiet reflection in schools. The express provision of the Act -- that the moment of quiet
reflection is "not intended to be and shall not be conducted as a religious service or
exercise but shall be considered as an opportunity for a moment of silent reflection on
the anticipated activities of the day" -- persuades us that most moment of quiet reflection
exercises will be conducted in a constitutionally permissible manner, as was the
exercise in the instant case. Thus, Bown's conclusory facial challenge is without merit.
See Bowen, 487 U.S. at 610, 108 S. Ct. at 2575 (rejecting a facial challenge because, inter
alia, "nothing on the face of the . . . [statute] indicates that a significant proportion of the
federal funds will be disbursed to 'pervasively sectarian' institutions").
24