Freiler v. Tangipahoa Parish

REVISED - August 19, 1999

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________

No. 97-30879 & No. 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.

_________________________________________________________________

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

August 13, 1999

Before KING, Chief Judge, and POLITZ and BENAVIDES, Circuit
Judges.

BENAVIDES, Circuit Judge:

Parents of children in the Tangipahoa Parish Public Schools

brought this suit to enjoin their school board from mandating

that a disclaimer be read immediately before the teaching of

evolution in all elementary and secondary classes. The district

court held that the disclaimer constituted an establishment of

religion in violation of the First Amendment. We affirm.
 I.

The teaching of evolution has created controversy for many

years in the Tangipahoa Parish Public Schools (“TPPS”).

Following a failed attempt to introduce creation science into the

Tangipahoa curriculum as a legitimate scientific alternative to

evolution, the Tangipahoa Parish Board of Education (“School

Board” or “Board”) adopted a resolution disclaiming the

endorsement of evolution.1 The resolution, which passed by a 5-4

vote of the School Board on April 19, 1994, reads:

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

It is hereby recognized by the Tangipahoa Board of

1
The passage of the disclaimer was not the first action by
the School Board concerning the teaching of evolution. In
December 1993, a member of the School Board proposed a Policy on
the Inclusion of Religious Material and Discussions on Religion
in the Curriculum and in Student Activities (“Policy”). That
same member later proposed a Revised Draft of Policy (“Revised
Policy”). These policies would have allowed the teaching of
alternative theories of the origin of mankind, including Creation
science. Even though it was defeated in Committee, the Revised
Policy was discussed at a March 1994 School Board meeting.
During that meeting, the Board rejected two items in the Revised
Policy concerning the study of creation science and a graduation
ceremony prayer.
The Board passed four other items included in the Revised
Policy. Those items provided that (1) no religious belief or non-
belief should be promoted or disparaged by the school system; (2)
religious materials may be included in secular education (e.g.
literature, art, humanities, etc.); (3) artistic expressions
(e.g. music, art, etc.) could have religious themes if they were
presented objectively; and (4) students could distribute
religiously oriented materials as long as students followed the
school’s rules pertaining to content-neutral time, place, and
manner restrictions.

2
 Education, that the lesson to be presented, regarding
the origin of life and matter, is known as the
Scientific Theory of Evolution and should be presented
to inform students of the scientific concept and not
intended to influence or dissuade the Biblical version of
Creation or any other concept.

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

Preceding the adoption of the resolution, School Board

members and parents who were present at the April 19, 1994,

meeting discussed the language of the disclaimer. In particular,

debate centered on the inclusion of the phrase “Biblical version

of Creation.” A School Board member, Logan Guess, voiced

concerns that the reference to the Bible excluded non-Christian

viewpoints from the disclaimer. He argued that, even though the

disclaimer also included the phrase “or any other concept,”

School Board members were concerned only with declining to

endorse evolution because of its inconsistency with the Biblical

version of creation. Bailey, the board member who proposed the

disclaimer, justified including the phrase, arguing that because

“there are two basic concepts out there” (presumably creation

science and evolution), and because he believed that “perhaps 95

percent” of the community “fall into the category of believing

[in] divine creation,” the Board should not “shy away, or hide

away from saying that this is not to dissuade from the Biblical

version.” In his closing remarks immediately before the Board

3
voted to adopt the disclaimer, Bailey further suggested that

evolution theory as taught in science class should not be

confused with fact and that the School Board should explicitly

decline to endorse evolution theory because of its inconsistency

with the faith of the larger community.

On November 7, 1994, approximately seven months after the

resolution passed, several parents of children in the TPPS

brought suit in the U.S. District Court for the Eastern District

of Louisiana, challenging the validity of the disclaimer under

provisions in the United States and Louisiana constitutions

barring laws “respecting an establishment of religion.”2 U.S.

Const. amends., I, XIV; La. Const. art. I, sec. 8. The district

court concluded that the resolution was devoid of secular purpose

and therefore ran afoul of the first prong of the three-part test

of Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). In reaching

this conclusion, the district court discredited the School

Board’s assertion that its secular purpose in adopting the

disclaimer was to promote critical thinking and information

gathering by students on the subject of the origin of life. The

court noted that School Board members did not mention this

purported purpose during the adoption debate and that the

2
The First Amendment of the United States Constitution in
relevant part provides: "Congress shall make no law respecting
an establishment of religion or prohibiting the free exercise
thereof...." This prohibition is applicable to the states
through the Fourteenth Amendment. See Stone v. Graham, 449 U.S.
39, 41 n. 2, 101 S. Ct. 192, 193 n. 2 (1980); School District of
Abington v. Schempp, 374 U.S. 203, 215-16, 83 S. Ct. 1560,
1567-68 (1963).

4
Tangipahoa Parish Public Schools already encouraged students to

think critically about all issues before the adoption of the

disclaimer. The district court found that the statements made by

School Board members both during the adoption debate and while

testifying at trial revealed that the disclaimer, in fact, had a

religious purpose--i.e., to satisfy the religious concerns of the

majority that the teaching of evolution in public school

contradicted lessons taught in Sunday school. Accordingly, the

court held the resolution invalid under the federal and state

constitutions and enjoined the reading of the disclaimer. The

School Board and the named individual defendants then brought

this appeal.

II

The sole issue for our resolution is whether the specific

disclaimer adopted by the Tangipahoa Parish Board of Education

contravenes the First Amendment. We limit our analysis to the

precise language of the disclaimer and the context in which it

was adopted. We do not confront the broader issue of whether the

reading of any disclaimer before the teaching of evolution would

amount to an unconstitutional establishment of religion.

States and their duly authorized boards of education have

the right to prescribe the academic curricula of their public

school systems. Courts therefore must exercise great “care and

restraint” when called upon to intervene in the operation of

public schools. Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.

Ct. 266, 270 (1968). Given, however, that the “vigilant

5
protection of constitutional freedoms” is nowhere more vital than

in American public education, id., 89 S. Ct. at 270, the right to

prescribe public school curriculum must of necessity be limited

in scope. States may not require that teaching and learning be

tailored to the principles or prohibitions of any religious sect

or dogma. See id. at 106, 89 S. Ct. at 271.

In the context of public education, we have evaluated state

action challenged on Establishment Clause grounds under each of

“three complementary (and occassionally overlapping) tests”

established by the Supreme Court. Doe v. Santa Fe Independent

School District, 168 F.3d 806, 816 (5th Cir. 1999). The first

test, and the one of longest lineage, is the disjunctive three-

part Lemon test, under which a state practice is unconstitutional

if (1) it lacks a secular purpose; (2) its primary effect either

advances or inhibits religion; or (3) it excessively entangles

government with religion. See Lemon, 403 U.S. at 612-613, 91 S.

Ct. at 2111. The second test, commonly referred to as the

endorsement test, seeks to determine whether the government

endorses religion by means of the challenged action. See, e.g.,

County of Allegheny v. ACLU, 492 U.S. 573, 594, 109 S. Ct. 3086,

3101 (1989) (holding that the display of a creche on the Grand

Staircase of the Allegheny County Courthouse violated the First

Amendment but that the display of a menorah as part of a secular

exhibit was constitutional). The government unconstitutionally

endorses religion when it “conveys a message that religion is

‘favored,’ ‘preferred,’ or ‘promoted’ over other beliefs.” Id.

6
at 593, 109 S. Ct. 3086. Finally, the third test, aptly named

the coercion test, analyzes school-sponsored religious activity

in terms of the coercive effect that the activity has on

students. See, e.g., Lee v. Weisman, 505 U.S. 577, 112 S. Ct.

2649 (1992) (holding unconstitutional a school district’s policy

permitting school principals to invite clergy to give

“nonsectarian” invocations and benedictions at graduation

ceremonies). Under this test, school-sponsored activity

contravenes the First Amendment when “(1) the government directs

(2) a formal religious exercise (3) in such a way as to oblige

the participation of objectors.” Jones v. Clear Creek

Independent School District, 977 F.2d 963, 970 (5th Cir. 1992)

(“Clear Creek II”) (citation omitted).

Our multi-test analysis in past cases has resulted from an

Establishment Clause jurisprudence rife with confusion and from

our own desire to be both complete and judicious in our decision-

making. See, e.g., Doe ex rel. Doe v. Beaumont Independent

School District, 173 F.3d 274, 295 (5th Cir.) (analyzing school

district’s “Clergy in Schools” volunteer counseling program

utilizing Lemon, endorsement, and coercion tests), on reh’g en

banc, ___ F.3d ___ (1999); Ingebretsen v. Jackson Public School

District, 88 F.3d 274, 280 (5th Cir. 1996) (examining state

statute permitting public school students to initiate

nonsectarian, nonproselytizing prayer at compulsory and

noncompulsory school events pursuant to the Lemon, endorsement,

and coercion tests); Clear Creek II, 977 F.2d 963, 966-969, 972

7
(employing Lemon, endorsement, and coercion analysis to uphold a

school district resolution permitting public high school seniors

to choose student volunteers to deliver nonsectarian,

nonproselytizing invocations at graduation ceremonies). Nothing

in our Circuit’s case law requires that contested government

action be examined under each Supreme Court-delineated test. Cf.

Santa Fe Independent School District, 168 F.3d at 818 (explaining

that, because student-selected, student-given, sectarian,

proselytizing invocations and benedictions violate the Lemon test

and the endorsement test, analysis under the coercion test was

not necessary); Helms v. Picard, 151 F.3d 347, 362 (5th Cir.

1998) (analyzing a school aid program in accordance with only the

Lemon test), cert. granted sub nom., Mitchell v. Helms, No. 98-

1648, 1999 WL 231469 (U.S. Jun. 14, 1999). The decision to apply

a particular Establishment Clause test rests upon the nature of

the Establishment Clause violation asserted. Where, as in the

instant action, the practice at issue does not direct student

participation in a formal religious exercise, we elect not to

apply the coercion test.

III

Although widely criticized and occasionally ignored, the

Lemon test continues to govern Establishment Clause cases. In

Agostini v. Felton, 521 U.S. 203, 117 S. Ct. 1310 (1997), the

Supreme Court laid to rest rumors of the Lemon test’s demise when

it exclusively applied Lemon analysis to a school aid program.

The Court acknowledged the continued viability of the general

8
Lemon principles used to evaluate whether government action

violates the Establishment Clause and noted in particular that

the nature of the inquiry under Lemon’s purpose prong has

“remained largely unchanged.” Id. at 223, 117 S. Ct. at 2010.

A.

The first prong of the Lemon test requires that challenged

state action have a secular purpose. See Lemon, 403 U.S. at 612,

91 S. Ct. at 2111. Lemon’s first prong does not require that

challenged state action have been enacted in furtherance of

exclusively, or even predominately, secular objectives. See

Wallace v. Jaffree, 472 U.S. 38, 56, 105 S. Ct. 2479, 2489 (1985)

(explaining that a statute motivated in part by a religious

purpose may satisfy Lemon’s purpose prong). In order for state

activity to pass muster under Lemon’s first criterion a sincere

secular purpose for the contested state action must exist; even

if that secular purpose is but one in a sea of religious

purposes. See id. at 56, 105 S. Ct. at 2489.

The School Board has articulated three distinct, albeit

intertwined, purposes for the contested disclaimer. According to

the Board, the disclaimer serves (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.

We treat the School Board’s three-fold articulation of

9
purpose with deference. See Santa Fe Independent School

District, 168 F.3d at 816. Deference, however, ought not be

confused with blind reliance. Accordingly, we examine each of

the disclaimer’s avowed purposes to ensure that the purpose is

sincere and not a sham. See id. (citing Edwards v. Aguillard,

482 U.S. 578, 586-87, 107 S. Ct. 2573, 2579 (1987)). In

undertaking such a “sham” inquiry, we consider whether the

disclaimer furthers the particular purposes articulated by the

School Board or whether the disclaimer contravenes those avowed

purposes. See Aguillard, 482 U.S. at 589, 107 S. Ct. at 2580

(finding purported purpose of protecting academic freedom to be

insincere in light of the fact that “the Act does not serve to

protect academic freedom, but has the distinctly different

purpose of discrediting evolution”). If the disclaimer furthers

just one of its proffered purposes and if that same purpose

proves to be secular, then the disclaimer survives scrutiny under

Lemon’s first prong.

We find that the contested disclaimer does not further the

first articulated objective of encouraging informed freedom of

belief or critical thinking by students. Even though the final

sentence of the disclaimer urges students “to exercise critical

thinking and gather all information possible and closely examine

each alternative toward forming an opinion," we find that the

disclaimer as a whole furthers a contrary purpose, namely the

protection and maintenance of a particular religious viewpoint.

In the first paragraph to be read to school children, the

10
Tangipahoa Board of Education declares that the “Scientific

Theory of Evolution . . . should be presented to inform students

of the scientific concept” but that such teaching is ”not

intended to influence or dissuade the Biblical version of

Creation or any other concept.” From this, school children hear

that evolution as taught in the classroom need not affect what

they already know. Such a message is 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. This conclusion is even

more inescapable when the message of the first paragraph is

coupled with the statement in the last that it is “the basic

right and privilege of each student to . . . maintain beliefs

taught by parents on [the] . . . matter of the origin of

life . . . .” We, therefore, find that the disclaimer as a whole

does not serve to encourage critical thinking and that the School

Board’s first articulated purpose is a sham.

We find that the disclaimer does further the second and

third purposes articulated by the School Board. The disclaimer

explicitly acknowledges the existence of at least one alternative

theory for the origin of life, i.e., the Biblical version of

creation. Additionally, the disclaimer reminds school children

that they can rightly maintain beliefs taught by their parents on

the subject of the origin of life. We have no doubt that the

disclaimer will further its second and third avowed objectives of

disclaiming any orthodoxy of belief that could be implied from

11
the exclusive place of evolution in the public school curriculum

and reducing student/parent offense caused by the teaching of

evolution. Accordingly, we conclude that these two purposes are

sincere.

We next consider whether disclaiming orthodoxy of belief and

reducing student/parent offense are permissible secular

objectives. In conducting this inquiry, we are mindful that a

purpose is no less secular simply because it is infused with a

religious element. Cf. Corporation of the Presiding Bishop of

the Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S.

327, 335, 107 S. Ct. 2862, 2868 (1987) (explaining that the

Lemon test, requiring that the law at issue serve some secular

legislative purpose, does not require that the contested law's

purpose be unrelated to religion); Lynch v. Donnelly, 465 U.S.

668, 673, 104 S. Ct. 1355, 1359 (1984) (noting that the

Constitution "affirmatively mandates accommodation, not merely

tolerance, of all religions . . . . Anything less would require

the 'callous indifference' we have said was never intended").

For this reason, the fact that evolution, the subject about which

the School Board sought to disclaim any orthodoxy of belief, is

religiously charged, see Aguillard, 482 U.S. at 593, 107 S. Ct.

at 2582 (noting that evolution is the one scientific theory that

historically has been opposed by certain religious sects), and

the fact that the sensitivities and sensibilities to which the

School Board sought to reduce offense are religious in nature,

does not per se establish that those avowed purposes are

12
religious purposes.

In order to avoid the “callous indifference” first cautioned

against by the Supreme Court in Zorach v. Clauson, 343 U.S. 306,

314, 702 S. Ct. 679, 684 (1952), we conclude that, under the

instant facts, the dual objectives of disclaiming orthodoxy of

belief and reducing student/parent offense are permissible

secular objectives that the School Board could rightly address.

Cf. Bethel School District No. 403 v. Fraser, 478 U.S. 675, 681,

106 S. Ct. 3159, 3163 (1986) (noting that, in the context of a

civil rights action, fundamental values essential to a democratic

society include “tolerance of divergent political and religious

views” and “consideration of the sensibilities of others, and, in

the case of a school, the sensibilities of fellow students”). In

so doing, we acknowledge 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.

B.

Lemon’s second prong asks whether, irrespective of the

School Board’s actual purpose, “the practice under review in fact

conveys a message of endorsement or disapproval.” Doe v. Santa

Fe Independent School District, 168 F.3d 806, 817 (5th Cir.

1999). This is similar to analysis pursuant to the endorsement

test. Under either the second Lemon prong or the endorsement

test, the Supreme Court has cautioned that a government practice

may not aid one religion, aid all religions, or favor one

religion over another. See, e.g., County of Allegheny v. ACLU,

13
492 U.S. 573, 605, 109 S. Ct. 3086, 3107 (1989) (“Whatever else

the Establishment Clause may mean (and we have held it to mean no

official preference even for religion over nonreligion), it

certainly means at the very least that government may not

demonstrate a preference for one particular sect or creed

(including a preference for Christianity over other religions).”

(citation omitted)). Nonetheless, where the benefit to religion

or to a church is no more than indirect, remote, or incidental,

the Supreme Court has advised that “no realistic danger [exists]

that the community would think that the [contested government

practice] was endorsing religion or any particular creed.”

Lamb’s Chapel v. Center Moriches Union Free School District, 508

U.S. 384, 395, 113 S. Ct. 2141, 2148 (1993).

Against this jurisprudential backdrop, the School Board

argues that the contested disclaimer’s primary effect is “to

communicate to students that they are free to form their own

opinions or maintain beliefs taught by parents concerning the

origin of life and matter.” According to the School Board, the

disclaimer advances freedom of thought, as well as sensitivity

to, and tolerance for, diverse beliefs in a pluralistic society.

We disagree.

In 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. See County of Allegheny,

492 U.S. at 620, 109 S. Ct. at 3115. After careful consideration

of the oral arguments, the briefs, the record on appeal, and the

14
language of the disclaimer, we conclude that the primary effect

of the disclaimer is to protect and maintain a particular

religious viewpoint, namely belief in the Biblical version of

creation. In reaching this conclusion, we rely on the interplay

of three factors: (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.

We note that the term “disclaimer,” as used by the School

Board to describe the passage to be read to students before

lessons on evolution, is not wholly accurate. Beyond merely

“disclaiming” endorsement of evolution, the two paragraph passage

urges students to take action--to “exercise critical thinking and

gather all information possible and closely examine each

alternative” to evolution.3 The disclaimer, taken as a whole,

encourages students to read and meditate upon religion in general

and the “Biblical version of Creation” in particular.4

3
In passing on the constitutionality of the contested
disclaimer, we consider the disclaimer as a whole. Accordingly,
we do not express an opinion as to whether the first paragraph
standing alone impermissibly advances religion.
4
The School Board asserts that the reference to the
“Biblical version of Creation” is merely illustrative, affording
meaning to the phrase “other concepts.” The School Board’s use
of a religious concept as the only illustration of an “other
concept[],” however, supports our conclusion that the disclaimer
impermissibly advances religion. Cf. Ingebretsen v. Jackson

15
 Although it is not per se unconstitutional to introduce

religion or religious concepts during school hours, there is a

fundamental difference between introducing religion and religious

concepts in “an appropriate study of history, civilization,

ethics, comparative religion, or the like” and the reading of the

School Board-mandated disclaimer now before us. Stone v. Graham,

449 U.S. 39, 42, 101 S. Ct. 192, 194 (1980). The TPPS

disclaimer5 does not encourage students to think about religion

in order to provide context for a political controversy studied

in a history class, see, e.g., Aguillard, 482 U.S. at 607 n.8,

107 S. Ct. at 2590 n.8 (Powell, J., concurring) (“For example,

the political controversies in Northern Ireland, the Middle East,

and India cannot be understood properly without reference to the

underlying religious beliefs and the conflicts they tend to

generate.”), or to promote understanding of different religions,

see, e.g., School District of Abington v. Schempp, 374 U.S. 203,

Public School District, 88 F.3d 274, 279 (5th Cir. 1996)
(explaining that a government measure advances religion when it
“gives a preferential, exceptional benefit to religion [or a
particular form of religion] that it does not extend to anything
else”). We also note that the record does not comport with the
School Board’s characterization of its reason for including
“Biblical version of Creation” in the disclaimer. When the
School Board debated the propriety of the proposed disclaimer, a
member suggested deleting the reference to the Biblical version
of creation. The Board ultimately rejected that suggestion,
apparently not because doing so might confuse students who needed
an illustrative reference, but because doing so would, in the
words of the disclaimer’s sponsor, “gut . . . the basic message
of the [disclaimer].”
5
Despite our conclusion that the statement to be read
student does more than “disclaim” evolution, we will continue to
refer to the entire statement as a disclaimer for purposes of
convenience.

16
225, 83 S. Ct. 1560, 1573 (1963) (“[I]t might well be said that

one’s education is not complete without a study of comparative

religion or the history of religion and its relationship to the

advancement of civilization.”). Instead, the disclaimer--

including the directive to “exercise critical thinking” in the

second paragraph, together with the explicit reference to the

“Biblical version of Creation” in the first paragraph--urges

students to think about religious theories of “the origin of life

and matter” as an alternative to evolution, the State-mandated

curriculum.

The School Board cites two cases, Lamb’s Chapel v. Center

Moriches Union Free School District, 508 U.S. 384, 113 S. Ct.

2141 (1993), and Widmar v. Vincent, 454 U.S. 263, 102 S. Ct. 269

(1981), in defense of its position that any benefit to religion

conferred by the disclaimer is merely incidental and that, as

such, the disclaimer does not impermissibly advance religion.

These cases, in which the Supreme Court found that government

action did not violate the Establishment Clause, are

distinguishable.

In Widmar, members of a registered religious group at a

state university brought an action challenging a university

policy which excluded religious groups from being able to utilize

university facilities that were generally available for

activities of registered student groups. See Widmar, 454 U.S. at

266, 102 S. Ct. at 273. The Court found that the challenged

policy violated the First Amendment. See id. at 277, 102 S. Ct.

17
at 278. In reaching this conclusion, the Widmar Court explained

that a “religious organization’s enjoyment of merely ‘incidental’

benefits does not violate the prohibition against the ‘primary

advancement’ of religion.” See id. at 273, 102 S. Ct. at 276.

The Court relied on two factors. See id. at 274, 102 S. Ct. at

276. First, the Court found that, in allowing a registered

student religious organization to use an otherwise open forum, a

public university “does not confer any imprimatur of state

approval on religious sects or practices.” Id., 102 S. Ct. at

276. Second, the court found that use of the university

facilities is available to a broad class of speakers, including

nonreligious speakers. See id., 102 S. Ct. at 277.

Unlike in Widmar, the particular benefit to religion at

issue here is not merely incidental. A teacher’s reading of a

disclaimer that not only disavows endorsement of educational

materials but also juxtaposes that disavowal with an urging to

contemplate alternative religious concepts implies School Board

approval of religious principles. Moreover, unlike the public

forum at issue in Widmar, the disclaimer crafted by the School

Board serves only to promote a religious alternative to

evolution. We know this because the only alternative theory

explicitly referenced in the text of the disclaimer is a

religious one. Therefore, Widmar does not support the Board’s

argument.

The School Board’s reliance on Lamb’s Chapel is misplaced as

well. In that case, the Court held that using a public school

18
after school hours for the showing of religiously oriented films

did not violate the Establishment Clause. See Lamb’s Chapel, 508

U.S. at 395, 113 S. Ct. at 2148. The Court found that “this film

series would not have been during school hours, would not have

been sponsored by the school, and would have been open to the

public, not just to church members.” Id., 113 S. Ct. at 2148.

The Court concluded that, under these circumstances, there was no

realistic danger that the community would think that the school

district was endorsing religion.

There are few, if any, parallels between the instant case

and Lamb’s Chapel. Here, the disclaimer approved by the School

Board is to be read during school hours by school teachers and

explicitly encourages students to consider religious alternatives

to evolution, a part of the state-mandated curriculum. Unlike in

Lamb’s Chapel, there is a much greater danger of students and

parents perceiving that the School Board endorses religion,

specifically those creeds that teach the Biblical version of

creation.

The benefit to religion conferred by the reading of the

Tangipahoa disclaimer is more than indirect, remote, or

incidental. As such, we conclude that the disclaimer

impermissibly advances religion, thereby violating the second

prong of the Lemon test as well as the endorsement test.

IV

The School Board additionally disputes the district court’s

award of attorneys’ fees to Appellee Freiler. We review a

19
district court’s award of attorneys’ fees for abuse of

discretion, and its factual findings relating to the award of

attorneys’ fees for clear error. See Watkins v. Fordice, 7 F.3d

453, 457 (5th Cir. 1993). Where a decision awarding attorneys’

fees is adequately supported by the record and the district court

has explained its reasons for the award, there is no abuse of

discretion. See Strong v. Bellsouth Telecommunications, Inc.,

137 F.3d 844, 851 (5th Cir. 1998).

The district court found that Freiler was a prevailing party

and awarded Freiler attorneys’ fees pursuant to 42 U.S.C. § 1988.

The court used the lodestar method of determining the appropriate

award, first multiplying an hourly rate by hours expended, and

then adjusting the award according to the factors outlined in

Johnson v. Georgia Highway Express, 488 F.2d 714 (1974).

The district court found that Freiler’s counsel kept

contemporaneous time records, and that they were therefore not

reconstructed. The court found that the records contained

sufficient detail to determine the time expended in pursuing

Freiler’s claim. The district court also reduced the number of

hours that Freiler’s counsel billed by ten percent to reflect

“possible redundancy and work which in hindsight may have been

unnecessary.” Lastly, the district court applied an hourly rate

of $150,6 based explicitly on application of the Johnson factors.

6
Freiler’s counsel had petitioned the court to award fees
based on an hourly rate of $175 an hour. The court agreed that
the $175 rate was “arguably” reasonable, but decided that a $150
rate was more appropriate based on Johnson.

20
The court multiplied the $150 rate by the adjusted billable

hours, and awarded $49,444.50 to Freiler’s counsel.

We affirm the district court’s award of attorneys’ fees.

First, the billing records are sufficiently detailed under our

analysis in League of United Latin American Citizens #4554 v.

Roscoe Independent School District, 119 F.3d 1228, 1233 (5th Cir.

1997). In that case, we found that billing records were adequate

where the records showed the date, the number of hours spent, and

a “short but thorough description of the services rendered.” Id.

Second, even if Freiler’s counsel failed to contemporaneously

produce billing records, as the School Board argued, such a

failure “does not preclude an award of fees per se, as long as

the evidence produced is adequate to determine reasonable hours.”

Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 325 (5th

Cir. 1995). Third, the district court did not commit clear error

in finding the $150 rate to be reasonable, given the declarations

that it reviewed from three New Orleans attorneys regarding

prevailing rates. Fourth, the district court did not commit

clear error when, instead of addressing the necessity and

potential redundancy of each billed hour, it reduced the overall

number of hours by ten percent. Indeed, Louisiana Power & Light

Co. v. Kellstrom, 50 F.3d 319, 325 (5th Cir. 1995), the only case

cited by the School Board in support of its argument that a

district court must analyze each billing item, is

distinguishable. In Kellstrom, the issue was whether the billing

records were sufficiently detailed, not whether the district

21
court judge had discretion to reduce the amount of hours billed

by a percentage. See id. at 325.

VI.

For the foregoing reasons, we affirm the district court’s

ruling that the disclaimer violates the First Amendment and the

district court’s award of attorneys’ fees to Appellee Freiler.

AFFIRMED.

22