Karen B. v. David Treen ( 1981 )

CHARLES CLARK, Circuit Judge:

Parents of students were denied declaratory and injunctive relief from the Louisiana statute and derivative Jefferson Parish School Board regulations which establish guidelines for student participation in prayer at school. They contend that the statute and regulations offend the First Amendment proscription against enactment of laws respecting the establishment of religion. We agree and reverse the district court.

I.

Louisiana Revised Statutes § 17:2115 (1981) has two components. Subsection A provides that each parish and city school board shall permit the appropriate local school authorities to allow those students and teachers who so desire to observe a brief period of silent meditation at the beginning of each school day. The statute expressly declares that this observance can neither be intended nor identified as a religious exercise. The plaintiffs have no quarrel with the silent meditation provision of the statute, and it is not involved in this litigation.

The challenged provision, subsection B, is essentially enabling legislation. It provides that a school board may authorize the appropriate school officials to allow each classroom teacher to ask whether any student wishes to offer a prayer and, if no student volunteers, to permit the teacher to pray. The statute limits any prayer offered to no longer than five minutes and provides that no student or teacher may be compelled to pray. In the event a student in the classroom objects or the student’s parent or legal guardian objects in writing to the proper school authority, subsection B provides that the student may not be required to participate or to be present during the time prayer is being offered. See La. Rev.Stat. § 17:2115(B) (1981).

The Jefferson Parish School Board has adopted a resolution establishing guidelines to implement section 17:2115(B) in parish schools. These guidelines provide that each school day will begin at the regular time with a minute of prayer followed by a minute of silent meditation. Under the school board guidelines, each teacher must ask if any student wishes to volunteer a prayer, and, if no student wishes to do so, the teacher may offer a prayer of his own. If the teacher elects not to pray, then the period of silent meditation would be observed immediately. The school board guidelines provide that no prayer may be longer than one minute in duration.

Jefferson Parish has also made elaborate provisions for excusing students who do not want to participate in the prayer portion of the morning exercises. According to a school board letter explaining the program to parents, any student who desires to participate in the minute of prayer must submit the express written permission of his parents and make a verbal request to join in the exercise. Students without this permission may either report to class, where they must remain seated and quiet throughout the morning exercises, or remain outside the classroom under other supervision. The school board guidelines also establish two alternative methods for dealing with the supervision of non-participating students. After the minute of prayer has been completed, all students must report to the classroom for a minute of silent meditation.

After hearing testimony and argument, the district court held that section 17:2115(B) and the parish implementing •regulations do not offend the Constitution but issued an injunction pending appeal in order to maintain the status quo.

II.

The Establishment Clause of the First Amendment prohibits Congress and the states from enacting any law “respecting an establishment of religion.” U.S. Const. Amendment I. See Everson v. Board of Education, 330 U.S. 1, 15 — 16, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947). In Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962), the Supreme Court held that daily classroom recitation of a denominationally neutral, state-composed prayer violates the Establishment Clause even though students could be excused from participation. The following year, the Court held that daily Bible reading and class recitation of the Lord’s Prayer also offends the Constitution, even though individual students were free not to attend the morning exercises. School District of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963). Since that time, the Supreme Court has examined three principal criteria to determine whether a state legislative enactment comports with the Establishment Clause: (1) whether the statute has a secular legislative purpose, (2) whether the principal or primary effect of the statute is neither to advance nor to inhibit religion, and (3) whether the statute fosters “an excessive government entanglement with religion.” Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745, 755 (1971). See Stone v. Graham, 449 U.S. 39, 40, 101 S.Ct. 192, 193, 66 L.Ed.2d 199, 201 (1980); Committee for Public Education and Religious Liberty v. Regan, 444 U.S. 646, 652, 100 S.Ct. 840, 846, 63 L.Ed.2d 94, 101 (1980); Roemer v. Maryland Public Works Board, 426 U.S. 736, 748, 96 S.Ct. 2337, 2348, 49 L.Ed.2d 179, 188 (1976). If a statute fails to satisfy any one of these three tests, it will not survive a constitutional attack brought under the Establishment Clause. Stone v. Graham, 449 U.S. at 40, 101 S.Ct. 192, at 193, 66 L.Ed.2d at 201. Applying these settled principles of constitutional jurisprudence, we hold that the Louisiana statute and Jefferson Parish regulations permitting student and teacher prayers in the public schools violate the First Amendment.

First, the district court found that section 17:2115(B) and the implementing regulations had a secular legislative purpose. It reached this conclusion relying upon the testimony of two state legislators who were primarily responsible for enactment of the statute and the school board member who sponsored the implementing resolution in Jefferson Parish. These witnesses stated that the purpose of the school prayer program was to increase religious tolerance by exposing school children to beliefs different from their own and to develop in students a greater esteem for themselves and others by enhancing their awareness of the spiritual dimensions of human nature.

Under the decisions of the Supreme Court, however, this testimonial avowal of secular legislative purpose is not sufficient to avoid conflict with the Establishment Clause. In Stone v. Graham, supra, the Court struck down a Kentucky statute requiring a copy of the Ten Commandments, purchased with private contributions, to be displayed on the wall of each public classroom. The Kentucky legislature had expressly required that each posted copy bear the. following legend: “The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.” 449 U.S. at 41, 101 S.Ct. at 193, 66 L.Ed.2d at 201 (citations omitted). Nevertheless, the Court held the statute unconstitutional. Id. at-, 101 S.Ct. at 194, 66 L.Ed.2d at 202 (footnote omitted). See Schempp, 374 U.S. at 223-24, 83 S.Ct. at 1572, 10 L.Ed.2d at 859.

The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments is undeniably a religious text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact.

Similarly, the plain language of section 17:2115(B) and of the Jefferson Parish guidelines makes apparent their predominantly religious purpose. Prayer is perhaps the quintessential religious practice for many of the world’s faiths, and it plays a significant role in the devotional lives of most religious people. Indeed, since prayer is a primary religious activity in itself, its observance in public school classrooms has, if anything, a more obviously religious purpose than merely displaying a copy of a religious text in the classroom. Even if the avowed objective of the legislature and school board is not itself strictly religious, it is sought to be achieved through the observance of an intrinsically religious practice. The unmistakable message of the Supreme Court’s teachings is that the state cannot employ a religious means to serve otherwise legitimate secular interests. See Schempp, 374 U.S. at 224, 83 S.Ct. at 1572,10 L.Ed.2d at 859. Furthermore, the legislature’s provision for excusing students who do not desire to participate in the daily prayer session betrays its recognition of the fundamentally religious character of the exercise. Id.

Nevertheless, the defendants urge that this case is distinguishable from Stone and Schempp because the district court had before it the live testimony of the legislators and school board member who sponsored the prayer program. They do not explain, however, how the personal asseverations of individual legislators can be more compelling than the expression of secular intent actually embodied in the statute. In fact, the personal testimony of individual proponents, given in court after enactment of the statute, is far less persuasive, since it reflects only the partial perspectives of those legislators and not the collective intention of the entire legislative body. Neither such testimony nor the words of the enactment is sufficient to overcome the obvious religious means employed by the statute. Therefore, La.Rev.Stat. § 17:2115(B) violates the first prong of the test.

Second, the district court held that section 17:2115(B) and the Jefferson Parish program do not inhibit or promote religion. This conclusion was predicated upon the judge’s conviction that the prayer offered by a student or by a teacher could very well comprehend some secular objective. Thus, the district court asserted that the prayers could “relate to anything from sports to the weather to religion.”

This analysis is disingenuous. Prayer is an address of entreaty, supplication, praise, or thanksgiving directed to some sacred or divine spirit, being, or object. That it may contemplate some wholly secular objective cannot alter the inherently religious character of the exercise. Section 17:2115(B) and the parish implementing guidelines promote religion by encouraging observance of a religious ritual in the classroom.

The defendants contend that the challenged statute and regulations are not constitutionally infirm because they are entirely content-neutral and because student participation in the daily prayer is purely voluntary. Neither of these features cures the constitutional defect.

That the challenged provisions do not prescribe any particular form of prayer and do not promote some sectarian religious practice is without constitutional significance. The Supreme Court consistently has expressed the view that the First Amendment demands absolute governmental neutrality with respect to religion, neither advancing nor inhibiting any particular religious belief or practice and neither encouraging nor discouraging religious belief or unbelief. Thus, the Court could say,

It is now firmly established that a law may be one “respecting an establishment of religion” even though its consequence is not to promote a “state religion” and even though it does not aid one religion more than another but merely benefits all religions alike.

Committee for Public Education v. Nyquist, 413 U.S. 756, 771, 93 S.Ct. 2955, 2964-65, 37 L.Ed.2d 948, 962 (1973). See Engel, 370 U.S. at 430, 82 S.Ct. at 1266-67, 8 L.Ed.2d at 607; McCollum v. Board of Education, 333 U.S. 203, 210-11, 68 S.Ct. 461, 464-65, 92 L.Ed. 649, 658 (1948); Everson, 330 U.S. at 15-16, 67 S.Ct. at 511, 91 L.Ed. at 723.

State and school officials point out that student participation in the daily prayer session is allowed to be wholly voluntary. This fact is not' relevant to the Establishment Clause inquiry. As the Supreme Court said in Engel, “Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of students is voluntary can serve to free it from the limitations of the Establishment Clause . . . . ” 370 U.S. at 430, 82 S:Ct. at 1266-67, 8 L.Ed.2d 607. The Court then reiterated this principle in Schempp, stating that the constitutional defect of the religious exercises involved was not “mitigated by the fact that individual students may absent 'themselves upon parental request, for that fact furnishes no defense to a claim of unconstitutionality under the Establishment Clause.” 374 U.S. at 224-25, 83 S.Ct. at 1573, 10 L.Ed.2d at 859. The result is the same even though Jefferson Parish students must affirmatively request to participate in the prayer observance, for an Establishment Clause violation does not depend upon the presence of actual governmental coercion. See Schempp, 374 U.S. at 223, 83 S.Ct. at 1572, 10 L.Ed.2d at 858; Engel, 370 U.S. at 430, 82 S.Ct. at 1267, 8 L.Ed.2d at 607. Because section 17:2115(B) and the parish regulations promote an inherently religious practice, it violates the second prong of the test.

Third, the district court found that the statute, as implemented in the Jefferson Parish regulations, would not result in excessive governmental entanglement with religion. This finding was based on the provision for affirmative voluntary participation. As we have shown, this feature of the plan does not cure the constitutional infirmity.

The Jefferson Parish program has yet to be put into effect. Thus, the nature and extent of state involvement in religious activity is in some measure speculative at this time. What is certain is that the statute itself makes inappropriate governmental involvement in religious affairs inevitable. Louisiana makes school attendance compulsory for children seven to sixteen years of age. La.Rev.Stat. § 17:221(A) (1981). The morning exercises take place on school property during regular' school hours. The statute authorizes the classroom teacher to conduct the prayer observance, requiring him to select among any student volunteers and allowing him to pray if no student wishes to pray. The teacher must monitor the daily classroom activities and enforce the one minute time limitation. Moreover, school authorities have a statutory duty to supervise the implementation of the prayer program in order to guarantee that all participation would remain purely voluntary. It is clear that “the very restrictions and surveillance necessary to ensure that teachers play a strictly nonideological role give rise to entanglements between church and state.” Lemon v. Kurtzman, 403 U.S. at 620 — 21, 91 S.Ct. at 2115, 29 L.Ed.2d at 760. Because section 17:2115(B) and the Jefferson Parish procedures necessarily entail excessive governmental entanglements with religious activity, they violate the third prong of the test.

The district court expressed concern that striking down this public school prayer program would reflect a hostile attitude toward prayer and religion. This sort of self-created validation is unwarranted. See Engel, 370 U.S. at 433-35, 82 S.Ct. at 1268-69, 8 L.Ed.2d at 609-10. The Establishment Clause was, of course, intended to prevent persecution of religious minorities by civil authorities. But it also embodies the constitutional framers’ concerns about the proper role of government and for the integrity of religion. Justice Black summarized this function of the Establishment Clause in the following terms:

Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion....

The Establishment Clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too sacred, too holy, to permit its “unhallowed perversion” by a civil magistrate.

Engel, 370 U.S. at 431, 82 S.Ct. at 1267, 8 L.Ed.2d at 608 (footnotes omitted). To say that the Constitution forbids what Louisiana and Jefferson Parish have done is only to give effect to this special constitutional solicitude for the vitality of religion in American life.

For the foregoing reasons, the judgment of the district court is reversed and the case remanded for proceedings not inconsistent with this opinion.

REVERSED and REMANDED.