Croft v. Governor of Texas

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
March 16, 2009

No. 08-10092 Charles R. Fulbruge III
Clerk

DAVID WALLACE CROFT; SHANNON KRISTINE CROFT, as Parents and
Next Friend of minor Children

Plaintiffs-Appellants
v.

GOVERNOR OF THE STATE OF TEXAS, Rick Perry

Defendant-Appellee

Appeal from the United States District Court
for the Northern District of Texas

Before KING, BENAVIDES, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
David and Shannon Croft, as parents and next friends of their three minor
children (collectively, the “Crofts”), bring suit against the governor of the state
of Texas, Rick Perry (“Perry”), arguing that Texas Education Code § 25.082(d)
is an unconstitutional establishment of religion. The district court granted
summary judgment in favor of Perry, holding that § 25.082(d) had a secular
legislative purpose and was not an establishment of religion. For the following
reasons, we affirm.
 No. 08-10092

FACTS AND PROCEEDINGS
Section 25.082(d) provides for a mandatory moment of silence to be
observed in Texas schools in which a student may “as the student chooses,
reflect, pray, meditate, or engage in any other silent activity that is not likely to
interfere with or distract another student.” T EX. E DUC. C ODE § 25.082(d). The
provision, which became effective September 1, 2003, is a subsection of a broader
statute amended at the same time under the heading “School Day; Pledges of
Allegiance; Minute of Silence” (the “2003 Amendments”). Texas Education Code
§ 25.082, in its entirety, provides as follows:1
(a) A school day shall be at least seven hours each day, including
intermissions and recesses.
(b) The board of trustees of each school district shall require
students, once during each school day at each school in the district,
to recite [pledges of allegiance to the United States and Texas flags]
(c) On written request from a student’s parent or guardian, a school
district shall excuse the student from reciting a pledge of allegiance
under Subsection (b).
(b) (d) A The board of trustees of each school district may shall
provide for a period the observance of one minute of silence at the
beginning of the first class of each school day at each school in the
district following the recitation of the pledges of allegiance to the
United States and Texas flags under Subsection (b). during which
a During the one-minute period, each student may, as the student
chooses, reflect, pray, or meditate., or engage in any other silent
activity that is not likely to interfere with or distract another
student. Each teacher or other school employee in charge of
students during that period shall ensure that each of those students
remains silent and does not act in a manner that is likely to
interfere with or distract another student.
As the underlined and stricken portions indicate, the amendments changed a
1995 statute that was simply entitled “School Day” and provided as follows:

1
The underlined portions are the provisions added or amended in 2003, while the
stricken portions are the 1995 provisions that were deleted.

2
 No. 08-10092

(a) A school day shall be at least seven hours each day, including
intermissions and recesses.
(b) A school district may provide for a period of silence at the
beginning of the first class of each school day during which a
student may reflect or meditate.
T EX. E DUC. C ODE § 25.082 (1995). The 2003 statute left untouched a broader, yet
related, 1995 provision entitled “Exercise of Constitutional Right to Pray,” which
states that:
A public school student has an absolute right to individually,
voluntarily, and silently pray or meditate in school in a manner that
does not disrupt the instructional or other activities of the school.
A person may not require, encourage, or coerce a student to engage
in or refrain from such prayer or meditation during any school
activity.
T EX. E DUC. C ODE § 25.901.
As the district court noted, the 2003 moment of silence provision of § 25.082
differs from the 1995 version as follows:
(1) it made the provision of a moment of silence mandatory rather
than discretionary; (2) it changed “period of silence” to “one minute
of silence”; (3) it added the word “pray” to the list of designated
options; (4) it added the catch-all “or engage in any other silent
activity that is not likely to interfere with or distract another
student”; and (5) it added a provision for teachers or other school
employees to maintain discipline during the one-minute period.
Croft v. Governor of Tex., 530 F. Supp. 2d 825, 829 (N.D. Tex. 2008). The 2003
statutory section, on the whole, also made the following changes: (1) it added the
pledge of allegiance to the United States flag; (2) it added the pledge of
allegiance to the Texas state flag; and (3) it provided a procedure for exemption
from reciting either pledge.
Beyond the relative changes and additions represented by the provision
itself, the 2003 statute does not include a signing statement or preamble by
which legislative intent can be inferred. Nevertheless, transcripts from

3
 No. 08-10092

committee hearings and floor debates, which were summarized at length by the
district court, id. at 837–45, provide significant insight into the purpose of the
legislation.2 Pertinent details are as follows:
• On February 11, 2003, in introducing in committee the first
draft of Senate Bill 83—which did not include a pledge and
was designed to amend § 25.901 (the “right to pray” section),
not § 25.082 (the “school day” section)—its sponsor, Senator
Wentworth, repeatedly stated, “since the U.S. Supreme Court
has [just] upheld [a similar mandatory statute] in Virginia we
ought at least to give Texas students the opportunity to
reflect, meditate or pray.”3 The senator acknowledged that a
period of silence already existed in Texas law (under §
25.082), but expressed a desire to add “prayer” to “bring to the
State of Texas . . . the advantage and opportunity [that
Virginia students have] already.” Senator Wentworth also
stated that the bill was prompted by the Supreme Court
“ruling upholding a Virginia state statute,” and that although
it may not restore the audible prayer that “[m]ost Texans”
prefer, it is what the Supreme Court now allows, and all that
it allows. As to the minute of silence being required, he
thought this would help relieve controversy at the local level.
• Discussing the original bill, Senator Wentworth lamented the
“coarsening of society” and “the lack of prayer in schools.”
Yet, he repeatedly asserted that, “for purposes of legislative
intent, this is not a prayer bill. . . . It’s an opportunity to give
people a chance to spend 60 seconds on a daily basis to reflect

2
In articulating the purposes of the 2003 statute, Perry relies on an October 10, 2006
letter by Shirley Neeley, Commissioner of the Texas Education Agency, indicating the
purposes of accommodating religion, encouraging thoughtful contemplation, and promoting
patriotism. Yet, given that the letter was written several years after the statute’s adoption
and contemporaneous with this litigation, we need not defer to its interpretation. See, e.g., In
re GWI PCS 1 Inc., 230 F.3d 788, 807 (5th Cir. 2000) (“where an agency’s interpretation occurs
at such a time and in such a manner as to provide a convenient litigation position for the
agency, we have declined to defer to the interpretation”).
3
The Virginia law to which Senator Wentworth referred in the committee meeting was
a mandatory “minute of silence” that was held constitutional by the Fourth Circuit. Brown
v. Gilmore, 258 F.3d 265 (4th Cir. 2001). The Supreme Court actually denied certiorari, and
never ruled on the merits of the case. See Brown v. Gilmore, 534 U.S. 996 (2001). Senator
Wentworth acknowledged this distinction later, but argued that it was immaterial.

4
 No. 08-10092

or meditate or pray.” He observed, “we won’t know whether
they’re doing any of those three things . . . [t]hey may be doing
something else, because it is actually 60 seconds of silence.”
Senator Janek added that the approach is “a more civilized
moment [for voluntary prayer or meditation] . . . rather than
[] the cacophony of the school noises and lockers slamming.”
• Senator Wentworth dismissed a challenge to the silent, rather
than verbal or physical, nature of voluntary prayer activity in
the bill as arguably unconstitutional, and repeatedly stressed
his desire to conform to Supreme Court precedent—e.g., “I’m
not trying to pass a bill that’s going to be struck down by the
U.S. Supreme Court, and that’s why I’ve tailored the language
to follow another state statute that’s already been upheld by
the U.S. Supreme Court.”
• In the February 2003 committee meeting, concern was raised
by legislators about the nature of the bill as an exception to
the non-coercion rights in § 25.901, and, as the district court
recounted, witnesses testified on both sides of this issue and
the bill generally. Pertinently, Kathy Douglas of the Texas
Association of School Boards suggested that to “show . . . the
legislative intent to separate this issue from the issue of
prayer,” the bill might be better suited in amending § 25.082
(the “school day”), not § 25.901 (the “right to pray”).
• At a March 25, 2003 committee meeting, Senator Wentworth
announced that the bill had been altered to amend § 25.082,
not § 25.091 (as urged by Ms. Douglas), include pledges to the
United States and Texas flags (with an opt-out), and require
students to stand. Witnesses testified for and against the bill.
An amendment was made to delete the rule that students
stand, and the bill unanimously passed (7 to 0) in committee.
• On April 1, 2003, the related House Bill 793 was introduced
to the House Public Education Committee by Representative
Branch. According to the Governor’s representations to the
district court,4 Representative Branch stated to the
committee—in response to challenges from colleagues that the
bill was “bathed in religio[n]”—that “silence at the beginning

4
The evidence presented for the April 1, 2003 House Committee and May 5, 2003
House floor discussions is limited to transcription of the audio tapes.

5
 No. 08-10092

of the day is a good thing for students, . . . [and] not only to
focus on the patriotism of the country, the love of state, but
also a common moment of preparation, deliberation, and
meditation to focus on the serious business of educating our
students that day.” Co-author Representative Bonnen added,
“I can tell you the authors’ intent . . . [i]t’s to give [students]
a time to really thing [sic] about the seriousness of the day.”
• On April 4, 2003, the senate bill was debated on the floor. At
that debate, several senators raised objections to using the
word “pray,” the mandatory nature of the measure, and that
only silent prayer is allowed. Senator Wentworth stated that
“this is not a school prayer amendment,” “this bill came about
as the result of my reading a newspaper account last year of
the United States Supreme Court’s upholding the Virginia
statute,” and “[s]chool districts still will be neutral on religion
even if this bill is passed . . . .” Senator Lucio added that the
pledge helps to “teach our kids Americanism, patriotism,” and
“to have a moment of silence really gives an opportunity for
our children . . . to pray just momentarily to their God and to
be thankful that they live in the greatest country in the
world.” After respective amendments were defeated to revisit
the issue in two years and delete the word “pray,” the bill
passed 27 to 4.
• On May 5, 2003, the bill was debated on the House floor. At
that time, Representative Branch asserted that “[t]he primary
purpose of S.B. 83 is to promote the core values of patriotism
and establish a contemplative period that underscores the
seriousness of the education endeavor. It directs school
districts to provide for the U.S. pledge, the Texas pledge, that
is the pledge to the Texas flag, and also a one minute period
of silence.”
• Finally, on May 6, 2003, the bill was debated on the House
floor. Representative Hupp offered an amendment to make a
minute of silence up to local school boards; the amendment
was defeated. In support of the bill, Representative Edwards
lamented “that a number of undesirable things happened
when we took prayer out of school.”
• In the final House debate on May 6, 2003, the bill’s sponsor,
Representative Branch, proclaimed that the bill offers “an

6
 No. 08-10092

opportunity for the school children to say the U.S. pledge, the
Texas pledge and have this minute of silence when they can
do anything they want; but it does set the tone for the day
that this is serious business, education and that they can
contemplate what they plan to do with their day.” In
responding to a challenge as to the type of activity as limited
to silence, Representative Branch opined, “[a]ll this bill does
is tries to have a neutral space, a period of silence . . . [i]t
doesn’t direct any activity.” He stated further that he
understood that “a moment of silence which allows for prayer
is permissible constitutionally,” and that “although [he] might
occasionally disagree with the Supreme Court, [he] respect[s]
it as the rule of law of the land . . . .” The bill passed 132 to 4,
with 1 abstention.
The District Court reviewed all of the legislative history and upheld the
statute. It rejected two of the purposes offered by Perry: fostering patriotism
and accommodation of religion. But the court held that the addition of “pray”
along with other “substantive changes to the activities students could engage in,
both prior to, and during, the moment of silence” did serve a secular purpose of
encouraging a period of thoughtful contemplation. Croft, 530 F. Supp. 2d at 838,
847. As a result, it survived the first prong of Lemon. The court also held that
the addition of “pray” did not have the primary effect of advancing religion or
cause excessive entanglement between government and religion, and so did not
violate the Establishment Clause. The Crofts appeal.
STANDARD OF REVIEW AND APPLICABLE LAW
The parties dispute the correct standard of review for this case. Perry
relies on Lynch v. Donnelly, 465 U.S. 668, 681 (1984), to argue that a district
court’s findings on legislative purpose should be affirmed unless clearly
erroneous. But Lynch came to the Supreme Court following a trial on the
merits. See id. at 671–72; Donnelly v. Lynch, 525 F.Supp. 1150, 1154 (D.R.I.
1981). The same appears to be true of the only other case cited by Perry, May
v. Cooperman, 780 F.2d 240, 242 (3rd Cir. 1985) (referencing a “final hearing”

7
 No. 08-10092

and the district court making “findings of fact and conclusions of law in support
of a final judgment”).
This case, however, comes to us on the district court’s grant of summary
judgment. Therefore, the normal summary judgment standard of review applies.
We review “a grant of summary judgment de novo, applying the same legal
standard as the district court.” Miller v. Gorski Wladyslaw Estate, 547 F.3d 273,
277 (5th Cir. 2008). Summary judgment should be rendered if the record
demonstrates that “there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” F ED. R. C IV. P. 56(c).
The Supreme Court established a general framework for analyzing
Establishment Clause challenges in Lemon v. Kurtzman, 403 U.S. 602 (1971).
Lemon has three prongs: (1) “the statute must have a secular legislative
purpose;” (2) “its principle or primary effect must be one that neither advances
nor inhibits religion;” and (3) “the statute must not foster an excessive
government entanglement with religion.” Id. at 612–13 (internal quotations
omitted). In addition, a statute cannot discriminate among religious sects
without showing a compelling governmental interest and a “close fit.” See
Larson v. Valente, 456 U.S. 228, 247 (1982).
In evaluating a secular purpose, it “must be sincere; a law will not pass
constitutional muster if the secular purpose articulated by the legislature is
merely a sham.” Wallace v. Jaffree, 472 U.S. 38, 64 (1985) (internal quotation
marks omitted). But the statute need not have “exclusively secular” objectives.
Id. Rather, the “touchstone” is neutrality, and it is only “[w]hen the government
acts with the ostensible and predominant purpose of advancing religion [that]
it violates that central Establishment Clause value of official religious
neutrality.” McCreary County v. ACLU, 545 U.S. 844, 860 (2005). In McCreary
County, the Supreme Court reviewed all of the times that it had invalidated a
statute because of an illegitimate purpose and determined that “[i]n each case,

8
 No. 08-10092

the government’s action was held unconstitutional only because openly available
data supported a commonsense conclusion that a religious objective permeated
the government's action.” Id. at 863 (emphasis added). While the purpose
requirement “serves an important function,” it is “rarely . . . determinative.” Id.
at 859 (quotation omitted). This is “presumably because government does not
generally act unconstitutionally, with the predominant purpose of advancing
religion.” Id. at 863.
What is important for Lemon’s purpose prong is the overall legislative
purpose of the allegedly unconstitutional provision, not a particular legislator’s
motive in supporting it. Bd. of Educ. of Westside Cmty. Schs. v. Mergens, 496
U.S. 226, 249 (1990). Some legislators may have religious motives, but that
alone does not invalidate an act with an otherwise secular legislative purpose.
See, e.g., id. (“Even if some legislators were motivated by a conviction that
religious speech in particular was valuable and worthy of protection, that alone
would not 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.”). Long ago, the Supreme Court found that the “daily recitation of the
Pledge of Allegiance, or even the observance of a moment of reverent silence at
the opening of class, may . . . serve the solely secular purposes of the devotional
activities without jeopardizing either the religious liberties of any members of
the community or the proper degree of separation between the spheres of
religion and government.” Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203,
281 (1963). More recently, the Supreme Court and three Circuit Courts have
heard direct challenges to moment of silence statutes.
In Wallace v. Jaffree, the Supreme Court struck down an Alabama statute
that had amended an earlier moment of silence statute to add the option for
voluntary prayer. 472 U.S. at 61. In Wallace, the legislative history was
absolutely clear that the statute had the purpose of advancing religion. Id. at

9
 No. 08-10092

56–57. The sponsor of the bill stated that it was an “effort to return voluntary
prayer” to public schools, and that the bill had no secular purpose. Id. Nor did
the state “present evidence of any secular purpose.” Id. at 57. The only
substantive change was the addition of “or voluntary prayer” to a previous
statute which mandated a moment of silence “for meditation.” Id. at 58. The
Court found that there was no secular purpose for this change, since voluntary
prayer was already protected by the previous statute. Id. Because there was no
secular purpose, the statute violated the first prong of Lemon and was
unconstitutional. Id. at 61.
Justice O’Connor concurred in Wallace, but wrote separately to examine
moment of silence statutes in more detail. She found that a moment of silence
is “not inherently religious,” and that by mandating such a period, “a State does
not necessarily endorse any activity that might occur during the period.” Id. at
72–73. Even if the statute specifies a student may pray, “the State has not
thereby encouraged prayer over other specified alternatives.” Id. at 73. But if
a teacher tells children to pray, or if the face of the statute or legislative history
promotes prayer over other alternatives, then the state may be improperly
endorsing religion. Id. Examining legislative purpose, however, is a “deferential
and limited” inquiry, and courts have “no license to psychoanalyze the
legislators.” Id. at 74. “If a legislature expresses a plausible secular purpose for
a moment of silence statute in either the text or the legislative history . . . then
courts should generally defer to that stated intent.” Id. at 74–75. “Since there
is arguably a secular pedagogical value to a moment of silence in public schools,
courts should find an improper purpose behind such a statute only if the statute
on its face [or] in its official legislative history . . . suggests it has the primary
purpose of endorsing prayer.” Id. at 75. In Wallace, however, given its
legislative history and the fact that no secular purpose was advanced, Justice

10
 No. 08-10092

O’Connor found that “the conclusion is unavoidable that the purpose of the
statute is to endorse prayer in public schools.” Id. at 77.
Soon after Wallace, the Third Circuit invalidated a New Jersey moment
of silence statute. May, 780 F.2d 240. The District Court in May had found that
the New Jersey statute, which does not mention prayer, violated all three prongs
of Lemon. Id. at 247. The Third Circuit held that there was no violation of the
effect or entanglement prongs. Id. at 247–50. The district court, however, ruling
before Wallace, had found that the state’s proffered secular purpose—“to provide
a transition from nonschool life to school life”—was pretextual. Id. at 251. The
Third Circuit could not say that this finding was “clearly erroneous,” and so
accepted the district court’s finding that there was no secular purpose. Id. at
252. The Third Circuit did not find any evidence, however, that the statute was
passed to encourage prayer over other alternatives. Id. But “because the
Supreme Court has expressly required a secular purpose when considering a
constitutional challenge under the establishment clause and because the district
court made a finding that [the statute] lacked such a secular purpose, we hold
the New Jersey statute to be unconstitutional under the first amendment.” Id.
at 253.
In 1997, the Eleventh Circuit upheld a Georgia moment of silence statute
in Bown v. Gwinnett County School District, 112 F.3d 1464 (11th Cir. 1997). The
statute allowed for a moment of silence, but specifically stated that it was not
intended to be conducted as a religious service, and a preamble to the act stated
that the purpose was to allow a moment of quiet reflection for students. Id. at
1466. The legislative history indicated that the sponsor had brought the act
forward as part of a package to reduce youth violence. Id. at 1467. The
legislative transcripts revealed that some House members wanted to institute
school prayer and saw the act as accomplishing that goal. Id. A few members
opposed the act for that reason, although several spoke in favor and stated that

11
 No. 08-10092

they did not believe that it authorized school prayer or had a religious purpose.
Id.
The Bown court first examined the statutory language, and found that the
preamble and act espoused a clear secular purpose of allowing a moment of quiet
reflection. Id. at 1469–71. While the court noted that the legislative history was
“somewhat conflicting,” it held that it was not inconsistent with this secular
purpose. Id. at 1471. Even though some of the legislators may have indeed had
religious motives, the language of the statute revealed a clearly secular purpose,
which satisfied the first Lemon prong. Id. at 1472. The court also found that
there was no impermissible effect of the statute or any resulting excessive
entanglement of the state with religion. Id. at 1472–74.
In 2001, the Fourth Circuit upheld a Virginia moment of silence statute
in Brown v. Gilmore, 258 F.3d 265 (4th Cir. 2001). In 1976, Virginia enacted a
moment of silence statute which authorized, but did not require, schools to
observe a moment of silence where students could “meditate, pray, or engage in
any other silent activity.” Id. at 270. The Virginia legislature later amended the
statute in 2000 to require that every school provide the minute of silence. Id. at
271. In analyzing the legislative purpose, the Fourth Circuit first examined its
text and found two secular purposes: to promote non-religious meditation and
to accommodate religion. Id. at 276. The court held that a “statute having dual
legitimate purposes—one clearly secular and one the accommodation of
religion—cannot run afoul of the first Lemon prong.” Id. at 277. Nor did the
statute facially violate the second prong of Lemon “given the statute’s facial
neutrality between religious and nonreligious modes of introspection and other
silent activity.” Id. The court also did not find an excessive entanglement,
holding that the “involvement in religion is negligible, [with the teacher only]
informing students that one of the permissible options during the moment of
silence is prayer.” Id. at 278.

12
 No. 08-10092

In all four of these cases, none of the courts found that moment of silence
statutes had the primary effect of advancing or inhibiting religion, or fostered
excessive government entanglement with religion. All of the courts focused on
the legislative purpose of these statutes. Wallace overturned the Alabama
statute because the state did not advance any secular purpose, and the statute’s
sponsor explicitly stated that the statute was meant to bring prayer back into
schools. May overturned the New Jersey statute because the district court had
found that the proffered secular purpose was pretextual. That finding was not
clearly erroneous, and with no other secular reasons offered, the Third Circuit
was compelled to find the statute unconstitutional. All of these cases follow the
Supreme Court’s assertion in McCreary that statutes have only been overturned
on the purpose prong of Lemon if a religious purpose “permeated” the
government’s action or the secular purpose serves only as a “sham.”
DISCUSSION
A. Standing
Constitutional standing has three elements: (1) an “injury in fact” that is
(a) concrete and particularized and (b) actual or imminent; (2) a causal
connection between the injury and the conduct complained of; and (3) the
likelihood that a favorable decision will redress the injury. Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560–61 (1992). The Alliance Defense Fund (ADF)
amicus brief and Perry argue that the Crofts have not stated any sufficient
injury, and so lack standing to bring this case.
“The loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347,
373 (1976). The question then becomes whether the Crofts have alleged a
personal loss of First Amendment freedoms. It is not enough simply to argue
that there has been some violation of the Establishment Clause; they must

13
 No. 08-10092

allege a personal violation of rights.5 Valley Forge Christian Coll. v. Ams. United
for Separation of Church & State, Inc., 454 U.S. 464, 486 n.22 (1982).
The Crofts have children who are required to observe a moment of silence
every day they attend school. The Crofts’ complaint alleges that the moment of
silence statute violates the Establishment Clause and that their children’s
constitutional rights are being violated by being required to undergo the moment
of silence. Perry argues that the Crofts have not alleged any specific injury that
resulted from participating in the moment of silence.
In Doe v. Tangipahoa Parish School Board, 494 F.3d 494 (5th Cir. 2007)
(en banc), the Fifth Circuit evaluated standing in an Establishment Clause
context. The plaintiffs were challenging prayers said at school board meetings,
and the court found that unless they could prove that they were “exposed to” and
“injured by” those prayers, they lacked standing. Id. at 497. Because there was
no evidence that the plaintiffs had ever attended a school board meeting,
however, they could not prove any injury from the prayers. Id. at 499. The
plaintiff bears the burden to prove standing “with the manner and degree of
evidence required at successive stages of the litigation.” Id. at 498 (quoting
Lujan, 504 U.S. at 561). But the Doe court specifically noted that they could
“certainly ‘assume’ that the Does may have been offended by an invocation at a
school board meeting, if they attended one.” Id. After a bench trial based on
stipulations, however, the Does had brought forward no evidence that they had
ever attended a school board meeting and heard the offending prayer, so they
lacked standing. Id.
At this stage of litigation—summary judgment—the plaintiffs’ burden on
standing is only to raise an issue of material fact. The Crofts have alleged that

5
The Crofts have not argued that they have taxpayer standing to challenge the
statute, or that they have suffered “psychological discomfort,” so we need not consider those
arguments addressed by Perry and the ADF amicus.

14
 No. 08-10092

their children are enrolled in Texas public schools and are required to observe
the moment of silence daily. Perry does not dispute this fact, and while still a
party, the school district admitted in its answer that the Crofts’ children
attended school there. The Crofts’ children are definitely present for the
moment of silence, and like in Doe, we can assume that they or their parents
have been offended—else they would not be challenging the law. That is enough
to establish standing at this stage of the suit.
The ADF amicus claims that a moment of silence cannot violate the
Establishment Clause, as there is no active religious component. But that is a
question to be determined on the merits, which must come after determining
whether we have jurisdiction to hear the case. See, e.g., Plains Commerce Bank
v. Long Family Land & Cattle Co., 128 S.Ct. 2709, 2716 (2008) (“[W]e bear an
independent obligation to assure ourselves that jurisdiction is proper before
proceeding to the merits.”). Because the Crofts have claimed a personal violation
of their First Amendment rights, we have jurisdiction to determine on the merits
whether those rights have in fact been violated.
B. Establishment Clause
1. Purpose
In his brief, Perry advances three secular purposes for the 2003
Amendments: fostering patriotism, providing a period for thoughtful
contemplation, and protecting religious freedom. The 2003 Amendments
changed the way that every schoolchild in Texas begins the day. They provide
for the recitation of the pledges of allegiance to the flags of the United States and
Texas, followed by a minute of silence for students to “reflect, pray, meditate, or
engage in any other silent activity . . . .” T EX. E DUC. C ODE § 25.082. On its face,
the statute seems to serve two of the above purposes: of fostering patriotism (for
both America and the State of Texas), and of providing a period for thoughtful
contemplation. From the statutory language alone, it does not appear that the

15
 No. 08-10092

legislative purpose in adding the term “pray” to § 25.082(d) is to advance
religion, particularly since the bill expressly allows for any silent use of the
moment of silence, either religious or non-religious.
Regarding the third stated purpose, of protecting religious freedom, this
purpose does not appear on the face of the statute. While the option to “pray” is
included in the 2003 Amendments, Texas already had a statute specifically
stating that students have “an absolute right” to “silently pray or meditate in
school.” T EX. E DUC. C ODE § 25.901. Any purpose of protecting religious freedom
was already accomplished by this earlier statute. There is also no state-imposed
burden on free exercise rights that the 2003 Amendments protect against, and
so “protecting religious freedom” does not seem to be a valid purpose on the face
of the statute. See Wallace, 472 U.S. at 57 n.45 (“[I]t is undisputed that . . . there
was no governmental practice impeding students from silently praying for one
minute at the beginning of each schoolday; thus, there was no need to
‘accommodate’ or to exempt individuals from any general governmental
requirement because of the dictates of our cases interpreting the Free Exercise
Clause.”).
Prior to the 2003 Amendments, Texas already had a moment of silence
statute that allowed districts to provide for a “period of silence” where students
might “reflect or meditate.” T EX. E DUC. C ODE § 25.082(b) (1995). The 2003
Amendments, however, include several substantive changes such as the addition
of the pledges, making the moment of silence mandatory, establishing the
indefinite “period” as “one minute,” and allowing students to “pray” or “engage
in any other silent activity.” This case is thus somewhat different than Wallace,
where the Supreme Court found that the only substantive change was the
addition of the words “or voluntary prayer.” 6 472 U.S. at 58–59. As such, we

6
The Supreme Court considered two other textual changes in Wallace: that the new
statute applied to all grades and that it changed the word “shall” to “may.” 472 U.S. at 58.

16
 No. 08-10092

must consider all of the substantive changes in evaluating the purpose behind
the 2003 Amendments.
The Crofts focus on the addition of the word “pray” without examining the
other changes. But the amendments were introduced as a package to change the
start of every school day to include the pledges of allegiance and a more
comprehensive list of appropriate activities during the minute of silence (itself
changed from a period of silence); in fact, during the legislative process, it was
purposefully changed from being a bill that amended the exercise of a right to
pray to being one that amended the beginning of the school day. This is not an
omnibus bill with provisions that have little to no relation to one another. The
Crofts do not point to any case law requiring us to parse the legislature’s intent
so finely as to go word by word looking for religious purpose. In Wallace, the
only reason that the Supreme Court focused solely on the addition of “prayer”
was because that was the only substantive change in the amendment that
affected the children at issue. 472 U.S. at 58–59. Conversely, in Bown, the
Eleventh Circuit considered as indicative of legislative purpose that the bill was
brought forward as part of a legislative package aimed at reducing youth
violence. 112 F.3d at 1467. Here, we have multiple substantive changes altering
the beginning of every Texas public school day, including the option to engage
in “any other silent activity” during the moment of silence. T EX. E DUC. C ODE §
25.082(d) (emphasis added). We consider the purpose of the 2003 Amendment,
including the addition of the word “pray,” in this context.
From the bill’s text, the obvious purpose of the pledges is to inculcate
patriotism among students. Following the pledges with a minute of silence then
allows time for reflection before starting the school day. Thus, at least from the

Neither change, however, had any effect on the students involved in the litigation, who were
in “kindergarten or second grade” and to whom the mandatory language continued to apply.
Id. at 59. In this case, the many substantive changes to the statute did apply directly to the
Crofts’ children.

17
 No. 08-10092

statutory text, it seems that the purpose of the 2003 Amendments is to foster
patriotism and provide for a period, if a student so desires, of thoughtful
contemplation. Within this context, the purpose of § 25.082(d) is clearly
permissible. In addition to adding “pray,” the new text adds “engage in any
other silent activity that is not likely to interfere with or distract another
student.” The neutral, non-coercive purpose of providing examples of
permissible silent activities during the minute of silence at the start of a now
more organized and contemplative school day is buttressed further by the fact
that § 25.901, which still provides that “[a] person may not require, encourage,
or coerce a student” vis-a-vis prayer, was intentionally left unamended. T EX.
E DUC. C ODE § 25.901.
The legislative history generally supports these secular purposes.7 Unlike
in Wallace, where the sponsoring state senator stated that his sole purpose for
the bill at issue was “an effort to return voluntary prayer to the public schools,”
472 U.S. at 57 (internal quotation marks omitted), the supporting legislators in
Texas, particularly in the House debates, emphasized the need for an
opportunity to begin the school day with patriotic pledges and a reflective
moment. In May, the Third Circuit rejected the “transition from nonschool life
to school life” as a pretext, citing district court findings about a lack of
pedagogical support and a history of legislative efforts to “return prayer to the
public schools.” 780 F.2d at 251–52. Here, there is no pedagogical evidence to
rebut legislative intent, there are no relevant district court findings on which to
defer, and there is no evidence of a steady “prayer in schools” effort.
Although Senator Wentworth (and at least one House member) cited “lack
of prayer in schools” in lamenting various societal ills, he repeatedly emphasized

7
Where, as here, a valid secular purpose can be gleaned from the text of the statute at
issue, we are not convinced of the wisdom of reviewing legislative history, an arduous and
potentially risky task. Nevertheless, because the history here supports the textual purpose,
it is unnecessary to belabor the point.

18
 No. 08-10092

that “for purposes of legislative intent, this is not a prayer bill.” The House
sponsors also emphasized the non-religious purposes of the law even more
consistently. On the whole, the debates suggest a history more similar to Bown
and Brown, where several reasons, including the return to prayer but also purely
secular ones such as a reflective moment, were given in support of the pertinent
legislation and passed constitutional scrutiny. See Brown, 258 F.3d at 277;
Bown, 112 F.3d at 1471. “Indeed, the Wallace Court noted that even though a
statute is ‘motivated in part by a religious purpose’ it may still satisfy the Lemon
test.” Brown, 258 F.3d at 277 (quoting Wallace, 472 U.S. at 56). Even if some
legislators had religious motives in promoting this legislation, there are clear
secular legislative purposes present. This is unlike Wallace or May, where there
were really no secular purposes at all.
Finally, unlike Alabama’s “campaign of defiance” in Wallace, as the Fourth
Circuit described it in Brown, 258 F.3d at 279, and New Jersey’s history “of other
less facially neutral efforts to return prayer to the public schools” in May, 780
F.2d at 252, the effort in Texas was an isolated one to conform to current law, as
the legislature saw it. The legislative history repeatedly indicates that the
statute at hand was the direct product of the success of the Virginia statute in
Brown. In adding the word “pray,” Senator Wentworth conceded that he was
amending existing state law vis-a-vis school prayer; yet, in doing so, he was
trying to afford an “opportunity” to Texas students otherwise now enjoyed by
those in Virginia. Whether this bill was needed is debatable, but nothing in the
record can rebut the timing or purpose of Senator Wentworth’s bill marking it
as one that respects, rather than challenges, existing constitutional law. The
senator and his House colleagues repeatedly emphasized the importance of
conforming the bill to Supreme Court precedent—hardly evidence of a religious
purpose.

19
 No. 08-10092

While there were references by some legislators to returning prayer to
schools, the religious motives of some legislators should not deflect us from the
secular purposes contained in the plain text of § 25.082(d) and espoused by the
legislature to justify the 2003 Amendments. Our review here is deferential, and
it is very clear that the Texas legislature had a plausible secular purpose to pass
these Amendments. As a result, they survive the first Lemon prong.
2. Primary Effect
The Crofts argue that the primary effect of the 2003 Amendments was to
“advance certain forms of mainstream Protestant Christian religion, while
inhibiting less mainstream religions.” Their argument is also that by including
“pray,” the state has given religious people a benefit because they need not
consult a lawyer to know that their children can pray during the moment of
silence while non-religious people must consult a lawyer to find out that their
children may “not pray” during the same period.
Again, the Crofts focus very narrowly on the addition of the word “pray”
while ignoring all of the other substantive changes to the statute. Their
argument that parents must consult a lawyer to determine that their children
may “not pray” is misguided given the fact that the 2003 Amendments clearly
state that children may pursue “any other silent activity” during the moment of
silence. T EX. E DUC. C ODE § 25.082(d) (emphasis added). “Not praying” is thus
covered by the catchall provision added by the 2003 Amendments.
There is nothing in the record to suggest that the primary effect of the
2003 Amendments is to advance Protestant Christianity. The statute is facially
neutral between religious and non-religious activities that students can choose
to engage in during the moment of silence. See Brown, 258 F.3d at 277. Nor
does the word “pray” by itself connote an endorsement of Protestant
Christianity.

20
 No. 08-10092

As Justice O’Connor stated in her Wallace concurrence: “It is difficult to
discern a serious threat to religious liberty from a room of silent, thoughtful
schoolchildren.” Wallace, 472 U.S. at 73. None of the courts examining moment
of silence statutes have found that the primary effect has been to advance or
inhibit religion, and the Crofts point to no case law that supports their
contentions. Instead, the primary effect of the 2003 Amendments seems to be
the same as the legislative purposes shown above: fostering patriotism and
mandating a moment of quiet reflection. Especially when analyzing these
Amendments in a facial challenge, we should not allow speculative fears to creep
into our analysis. See Brown, 258 F.3d at 277–78. The 2003 Amendments do
not have the primary effect of advancing religion, and so survive the second
Lemon prong.
Nor do arguments that the 2003 Amendments discriminate among
religious sects have merit. The Crofts claim that other religious sects may need
to make noise or motion in order to pray, and so the Amendments allow
Christian prayer while not allowing other forms of prayer. But as the May court
found, this “is a non sequitur. The statute simply does not address the problem
of accommodating the beliefs of those whose prayer must be oral or otherwise
self expressive. Undoubtedly the school environment requires limitation upon
the time, place, and manner of such self expression, even when it is religiously
motivated.” 780 F.2d at 248. The statute provides for a minute of silence and
allows any non-disruptive silent activity. This requirement that the activity,
including possible prayer, be silent does not discriminate among religious sects.
3. Excessive Entanglement
The Crofts argue that the 2003 Amendments cause excessive government
entanglement with religion by requiring that teachers regulate student behavior
to ensure silence and no distractions during the moment of silence. The Crofts
argue that this is a delegation of legislative power to teachers.

21
 No. 08-10092

Again, no court has ever accepted—especially on a facial challenge—that
a moment of silence statute is excessive government entanglement with religion.
Teachers are simply enforcing silence and preventing classroom distractions. As
the Bown court explained:
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
mandated statewide does not create entanglement problems.
112 F.3d at 1474. Delegating this responsibility to teachers is not a delegation
of legislative powers, as the legislature would not normally have the power to
enforce discipline in classrooms. Rather, it is direction to the executive branch
to enforce the law.
The Crofts raise the possibility that teachers may confiscate prayer beads
as distracting or prohibit certain religious or non-religious activities. All of these
speculative possibilities may be fertile ground for as-applied challenges to the
statute if they occur. But we should not engage in such speculation on a facial
review of the law. The statute here is neutral and simply instructs teachers to
maintain discipline in their classrooms during the moment of silence. This is
not, on its face, an excessive entanglement with religion, and so the 2003
Amendments survive the third Lemon prong.
CONCLUSION
The Crofts have standing to challenge the 2003 Amendments. But the
Amendments are constitutional and satisfy all three prongs of the Lemon
analysis. There is no excessive entanglement, and the primary effect of the
Amendments is not to advance religion. The most difficult prong—for this and
for moment of silence statutes generally—is legislative purpose. But our review
of legislative history is deferential, and such deference leads to an adequate

22
 No. 08-10092

secular purpose in this case. While we cannot allow a “sham” legislative
purpose, we should generally defer to the stated legislative intent. Here, that
intent was to promote patriotism and allow for a moment of quiet contemplation.
These are valid secular purposes, and are not outweighed by limited legislative
history showing that some legislators may have been motivated by religion.
Because the 2003 Amendments survive the Lemon test, they are not an
unconstitutional establishment of religion, and the judgment of the district court
is AFFIRMED.

23