Bown v. Gwinnett County School District

United States Court of Appeals,

Eleventh Circuit.

No. 95-9595.

Brian Gillespie BOWN, Plaintiff-Appellant,

v.

GWINNETT COUNTY SCHOOL DISTRICT, Zell Miller, in his official
capacity as Governor of the State of Georgia, Michael Bowers, in
his official capacity as Attorney General of the State of Georgia,
George G. Thompson, Defendants-Appellees.

May 6, 1997.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:94-CV-2224-FMH), Frank M. Hull, Judge.

Before ANDERSON and CARNES, Circuit Judges, and CUDAHY*, Senior
Circuit Judge.

ANDERSON, Circuit Judge:

The only issue before us in this appeal involves a challenge

to Georgia's Moment of Quiet Reflection in Schools Act ("the Act").

O.C.G.A. § 20-2-1050 (1996). Appellant Brian Gillespie Bown filed

this suit seeking a declaratory judgment that the Act violates the

Establishment Clause of the First Amendment and requesting that the

Act's enforcement be enjoined. On a stipulated record, the

district court made findings of fact and conclusions of law and

entered final judgment for the appellees, holding that the Act does

not violate the Establishment Clause. We affirm.

I. FACTS

A. The Act and its Legislative History

The Moment of Quiet Reflection in Schools Act became effective

on July 1, 1994. The Act amended the former version of § 20-2-

*
Honorable Richard D. Cudahy, Senior U.S. Circuit Judge for
the Seventh Circuit, sitting by designation.
1050, which had allowed teachers to conduct a brief period of

"silent prayer or meditation" at the beginning of each school day.

The 1994 Act, as codified, provides as follows:

20-2-1050. Brief period of quiet reflection authorized;
nature of period.

(a) In each public school classroom, the teacher in
charge shall, at the opening of school upon every school day,
conduct a brief period of quiet reflection for not more than
60 seconds with the participation of all the pupils therein
assembled.

(b) The moment of quiet reflection authorized by
subsection (a) of this Code section is not intended to be and
shall not be conducted as a religious service or exercise but
shall be considered as an opportunity for a moment of silent
reflection on the anticipated activities of the day.

(c) The provisions of subsections (a) and (b) of this
Code section shall not prevent student initiated voluntary
school prayers at schools or school related events which are
nonsectarian and nonproselytizing in nature.

O.C.G.A. § 20-2-1050 (1996). The Act's uncodified preamble states:

The General Assembly finds that in today's hectic society, all
too few of our citizens are able to experience even a moment
of quiet reflection before plunging headlong into the day's
activities. Our young citizens are particularly affected by
this absence of an opportunity for a moment of quiet
reflection. The General Assembly finds that our young, and
society as a whole, would be well served if students were
afforded a moment of quiet reflection at the beginning of each
day in the public schools.

Moment of Quiet Reflection in Schools Act, Act No. 770, § 1, 1994

Ga. Laws 256, 256 (1994). The Act also contains an uncodified

severability provision which provides: "If any portion of this

bill is found to be unconstitutional, it shall be stricken and the

remaining portions of this bill shall remain in full force and

effect as if the stricken portion had not been enacted." Id., § 4,

1994 Ga. Laws at 257.

Senator David Scott, the primary sponsor of the Act,
introduced the Act as Senate Bill 396 in January 1994. Senator

Scott represented an urban district in Atlanta, Georgia. He was

the Chairman of the Senate Education Committee, Chairman of the

Youth, Aging and Human Ecology Committee, and a member of the State

Violence Task Force Committee to prevent violence in schools.

Senator Scott introduced Senate Bill 396 as a part of a package of
1
legislation aimed at reducing violence among Georgia's youths.

Senator Scott had observed that after several killings on school

campuses, students came together to have a moment of silent

reflection. Noting that this moment of silence seemed to be

beneficial and calming, Senator Scott believed that providing

students with an opportunity for silent introspection at the

beginning of each school day would help to combat violence among

Georgia's students. As a result, he introduced Senate Bill 396 as

a part of his overall strategy for curbing juvenile violence.

After Senate Bill 396 passed in the Senate, the Georgia House

of Representatives considered it and approved it with two

amendments: the Johnson amendment and the Davis amendment. The

Johnson amendment extended the period of silence from 60 to 120

seconds. The Davis amendment contained the present Act's

subsection (c) and a subsection (d) stating that religious clubs

shall not be prevented from meeting or recruiting members on school

property as long as other student groups are given equal access.

Senate Bill 396 then went to a conference committee with House

1
Senator Scott's legislative package included two other
bills. One bill required parents of students with chronic
disciplinary problems to participate in school disciplinary
programs. The other bill made the sale or transfer of firearms
to juveniles a felony. Neither of these two bills became law.
and Senate members. The Conference Committee deleted the Johnson

and Davis amendments and reported out the version of Senate Bill

396 originally approved by the Senate. The Senate adopted the

Conference Committee report, but the House rejected it.

A second conference committee was appointed. This conference

committee proposed the version of the bill originally approved by

the Senate, together with subsection (c) of the Davis amendment and

a severability provision. Both the Senate and the House passed

this version of the bill, and it became law.

The Georgia General Assembly does not officially record or

transcribe its proceedings, and it does not issue official

committee reports. However, Bown submitted to the district court

a certified transcript of the House proceedings during which the

House debated and approved the Johnson and Davis amendments. This

transcript reveals that some House members wanted to institute

school prayer and apparently believed that Senate Bill 396 would

accomplish this goal. A couple of House members opposed Senate

Bill 396 because they believed it instituted school prayer.

Several House members spoke in favor of Senate Bill 396 and stated

that they did not believe the bill authorized school prayer or had

a religious purpose.

B. The Act's Implementation by the Gwinnett County School District

Prior to the beginning of the 1994-95 school year, Bown, who

was a South Gwinnett High School teacher, expressed reservations

regarding the implementation of the Act. In a letter dated July 25,

1994, to Gwinnett County School Superintendent George Thompson,

Bown stated that he "resent[ed] the General Assembly's intrusion on
the operation of [his] classroom" and requested guidance regarding

the implementation of the Act in his classroom. Specifically, Bown

was concerned about the interpretation and enforcement of

subsection (c) and its interaction with subsections (a) and (b).

Bown also stated that he was uncertain what his responsibilities

would be if students engaged in audible prayer during the moment of

quiet reflection. Bown concluded the letter by stating that he was

concerned that he might face legal liability for enforcing the Act

or for attempting to determine what is and is not appropriate

prayer during the moment of quiet reflection.

In a letter dated August 12, 1994, Mr. Steve Spellman,

Administrative Assistant to the Gwinnett County School Board and

Superintendent, responded to Bown's letter by mailing Bown a copy

of an Administrative Bulletin that Spellman had sent to all school

principals in July 1994. The Administrative Bulletin instructed

that:

It is important that we recommend that teachers and
administrators do not suggest or imply that students should or
should not use [the moment of quiet reflection] for prayer.
If a student asks, a teacher should advise a student that if
the student desires to have a quiet prayer, he or she may do
so. The statute specifically says "moment of quiet
reflection." This clearly precludes students using the moment
of quiet reflection to pray audibly, singly or in unison. We
should not allow or tolerate any coercion or overbearing by
some students to force others to pray. Nevertheless, we
should be tolerant of non-disruptive, non-sectarian,
non-proselytizing, student initiated prayer so long as it does
not occur during the moment of quiet reflection; otherwise,
it will not be a moment of quiet reflection. This time is not
intended to be and shall not be conducted as a religious
service or exercise, but considered as an opportunity for a
moment of silent reflection on the anticipated activities of
the day.

Following his receipt of Spellman's letter, Bown again

attempted to raise his concerns regarding the Act in an August 16,
1994, faculty meeting and in a subsequent meeting with Principal

Delores Hendrix. Partially in response to Bown's concerns,

Superintendent Thompson and Principal Hendrix decided that Hendrix

should announce the moment of quiet reflection at the beginning of

each school day over the school intercom system in order to ensure

that the announcement was handled in a uniform way every day.

At the beginning of the school day on August 22, 1994, the

first day of the 1994-95 school year, Principal Hendrix made the

following announcement over South Gwinnett High School's intercom

system: "As we begin another day, let us take a few moments to

reflect quietly on our day, our activities, and what we hope to

accomplish." After Hendrix finished making this announcement, Bown

told his high school class, "You may do as you wish. That's your

option. But I'm going to continue with my lesson." Bown continued

teaching his lesson during the moment of quiet reflection. Two

students placed Bibles on their desks, and one of these students

bowed her head. No students attempted to pray audibly or to lead

others in prayer during the moment of quiet reflection or at any

other time during the school day.

Later that day, Bown met with Superintendent Thompson and

Principal Hendrix. Superintendent Thompson instructed Bown to

comply with the moment of quiet reflection by remaining silent for

the specified sixty seconds and gave Bown overnight to reconsider

his actions. The next day, Bown informed Hendrix that he did not

feel he could obey the Act and he left the school's campus. Bown

was suspended from his job. The Board of Education subsequently

terminated his employment with the Gwinnett County School District.
 II. ANALYSIS

Bown argues that the Act violates the Establishment Clause of

the First Amendment.2 In analyzing this Establishment Clause

challenge, we use the three part test articulated in Lemon v.

Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). See

Lamb's Chapel v. Center Moriches Sch. Dist., 508 U.S. 384, 395 n.

7, 113 S.Ct. 2141, 2148 n .7, 124 L.Ed.2d 352, 363 n. 7 (1993)

(noting that despite heavy criticism of the Lemon test, Lemon has

not been overruled). See also Jager v. Douglas County Sch. Dist.,

862 F.2d 824, 828-29 (11th Cir.), cert. denied, 490 U.S. 1090, 109

S.Ct. 2431, 104 L.Ed.2d 988 (1989) (discussing appropriateness of

using Lemon test). Under the Lemon test, "[f]irst, the statute

must have a secular legislative purpose; second, its principal or

primary effect must be one that neither advances nor inhibits

religion ...; finally, the statute must not foster "an excessive

government entanglement with religion.' " Lemon, 403 U.S. at 612-

13, 91 S.Ct. at 2111 (citations omitted). In order to withstand an

Establishment Clause challenge, a statute must satisfy all three

prongs of the Lemon test. Stone v. Graham, 449 U.S. 39, 40-41, 101

S.Ct. 192, 193, 66 L.Ed.2d 199 (1980) (per curiam).

A. Secular Purpose

1. Determination of Purpose

The first prong of the Lemon test requires that the

2
The Establishment Clause of the First Amendment provides
that "Congress shall make no law respecting an establishment of
religion.... " U.S. Const. amend. I. The Establishment Clause,
as incorporated by the Fourteenth Amendment, applies to the
states. Everson v. Bd. of Educ. of Ewing, 330 U.S. 1, 8, 67
S.Ct. 504, 508, 91 L.Ed. 711 (1947).
challenged statute have a "clearly secular purpose." Wallace v.

Jaffree, 472 U.S. 38, 56, 105 S.Ct. 2479, 2489, 86 L.Ed.2d 29

(1985). However, the statute's purpose need not be exclusively

secular. Lynch v. Donnelly, 465 U.S. 668, 681 n. 6, 104 S.Ct.

1355, 1363 n. 6, 79 L.Ed.2d 604 (1984). A statute violates the

Establishment Clause if it is "entirely motivated by a purpose to

advance religion." Jaffree, 472 U.S. at 56, 105 S.Ct. at 2489.

See also Church of Scientology v. City of Clearwater, 2 F.3d 1514,

1527 (11th Cir.1993), cert. denied, 513 U.S. 807, 115 S.Ct. 54, 130

L.Ed.2d 13 (1994) (" "[N]o legislative recitation of a supposed

secular purpose can blind us' to an enactment's "pre-eminent

purpose.' " (quoting Stone v. Graham, 449 U.S. 39, 41, 101 S.Ct.

192, 194, 66 L.Ed.2d 199 (1980) (per curiam))). In determining a

statute's purpose, the court should inquire into " "whether [the]

government's actual purpose is to endorse or disapprove of

religion.' " Jaffree, 472 U.S. at 56, 105 S.Ct. at 2489 (quoting

Lynch, 465 U.S. at 690, 104 S.Ct. at 1368 (O'Connor, J.,

concurring)). See also County of Allegheny v. ACLU, 492 U.S. 573,

592, 109 S.Ct. 3086, 3100, 106 L.Ed.2d 472 (1989); Edwards v.

Aguillard, 482 U.S. 578, 585, 107 S.Ct. 2573, 2578, 96 L.Ed.2d 510

(1987); Jager, 862 F.2d at 829. A court usually should be

deferential to the state's articulation of a secular purpose, but

the secular purpose must be sincere and not a sham. Edwards, 482

U.S. at 586-87, 107 S.Ct. at 2579.

To ascertain a statute's purpose, it is, of course, necessary

to examine the language of the statute on its face. Edwards, 482

U.S. at 594, 107 S.Ct. at 2583; Church of Scientology, 2 F.3d at
1527. It is also appropriate to consider the legislative history

of the statute and the specific sequence of events leading up to

the adoption of the statute. Edwards, 482 U.S. at 594-95, 107

S.Ct. at 2583; Church of Scientology, 2 F.3d at 1527.

2. The Act's Purpose

The Act's preamble sets forth a clearly secular purpose for

the Act. The preamble indicates that the Georgia General Assembly

felt that in "today's hectic society" there are few opportunities

to engage in what the General Assembly felt would be beneficial

quiet reflection. The preamble explains that the purpose of the

Act is to provide students with an opportunity for a brief period

of quiet reflection before beginning the day's activities.

The secular purpose explained in the preamble is repeated

expressly in the language of the statute itself. Subsection (a)

provides for a "brief period of quiet reflection."3 O.C.G.A. § 20-

2-1050(a) (1996). Subsection (b) further reveals that the Act's

purpose is secular by explaining that the "moment of quiet

reflection ... is not intended to be and shall not be conducted as

a religious service or exercise but shall be considered as an

opportunity for a moment of silent reflection on the anticipated

activities of the day." O.C.G.A. § 20-2-1050(b) (1996). Thus,

3
This Act amended the former version of § 20-2-1050, which
provided for a moment of "silent prayer or meditation." The
deletion of the words "prayer or meditation" and the substitution
of the words "period of quiet reflection" provides some support
for the idea that the Act's purpose is secular and is not to
establish a moment of prayer. Cf. Jaffree, 472 U.S. at 58-60,
105 S.Ct. at 2490-91 (where Alabama already had a moment of
silence statute, the fact that the new statute established a
period of silence "for meditation or voluntary prayer" conveyed a
message of endorsement and promotion of prayer).
subsection (b) expressly articulates a clear secular purpose and

also expressly disclaims a religious purpose. By stating that the

moment of quiet reflection shall not be conducted as a religious

service or exercise, the statute indicates that Georgia is not

advocating the moment of quiet reflection as a time for religious

activity.4 Subsection (b) even provides a secular topic on which

students may reflect: "the anticipated activities of the day."

Id.

Bown contends, however, that subsection (c) impermissibly

infuses the Act with an improper religious purpose. Bown argues

that subsection (c) authorizes voluntary, nonsectarian,

nonproselytizing, student initiated prayer and thus shows that the

Act has a religious purpose. However, an examination of the

language of subsection (c) and its legislative history reveals that

the most reasonable interpretation of subsection (c) is that it

does not affirmatively authorize any activity at all, but rather

merely rebuts any possible negative pregnant implied from the

prohibition of religious activity in subsection (b). The explicit

language of subsection (c) merely states that subsections (a) and

(b) do not prevent certain activity which the legislature

apparently believed was constitutional.5 This interpretation is

4
On the other hand, nothing in the statute prevents
individual prayer or religious meditation during the moment of
quiet reflection so long as such activity is silent.
5
As discussed in the text below, the lawmakers apparently
feared that the express prohibition in (b)—i.e., that the moment
of quiet reflection not be conducted in a religious manner—might
be misconstrued by some school officials as also preventing
constitutionally permissible religious activities at other school
events. The apparent intent of subsection (c) is to prevent any
such unintended reading of subsection (b).
clear from the plain language of subsection (c):

The provisions of subsections (a) and (b) of this Code section
shall not prevent student initiated voluntary school prayers
at schools or school related events which are nonsectarian and
nonproselytizing in nature.

O.C.G.A. § 20-2-1050(c) (1996) (emphasis added). No affirmative

activity is authorized. Thus, subsection (c) merely clarifies that

subsections (a) and (b) shall not prevent other activity that is

constitutionally permissible under the First Amendment.6
Several considerations lead us to reject Bown's argument that

subsection (c) affirmatively authorizes religious activity at

schools and school-related events. As noted above, the plain

language of (c) indicates that it affirmatively authorizes nothing

and is merely intended to guard against unintended interpretations

of subsections (a) and (b). The overall structure of the Act

further supports this view. The preamble clearly explains that the

6
Subsection (c)'s language is distinguishable from that of
the Mississippi statute at issue in Ingebretsen v. Jackson Pub.
Sch. Dist., 88 F.3d 274 (5th Cir.), cert. denied sub nom. Moore
v. Ingebretsen, --- U.S. ----, 117 S.Ct. 388, 136 L.Ed.2d 304
(1996). The Mississippi statute provided that voluntary, student
initiated prayers that are nonsectarian and nonproselytizing
"shall be permitted" at school events. Id. at 277. The
Mississippi statute thus affirmatively authorized this type of
student prayer. In contrast, subsection (c) of the Act states
that nothing in subsections (a) and (b) "shall prevent" activity
the legislators believed to be constitutional. Subsection (c)
thus merely makes it clear that subsections (a) and (b) do not
prevent any activity that is protected by the First Amendment.

We express no opinion in this case regarding whether a
statute which provides that voluntary, student initiated
prayers that are nonsectarian and nonproselytizing "shall be
permitted" at school events would violate the Establishment
Clause. See Chandler v. James, No. 96-D-169-N [--- F.Supp.
----] (M.D.Ala. Mar.12, 1997) (finding that Alabama statute
which provides that voluntary, student initiated,
nonsectarian, nonproselytizing prayers "shall be permitted"
at school is unconstitutional).
Act is focused on "a moment of quiet reflection" for secular

purposes, not on the religious purpose suggested by Bown's

interpretation. The secular moment of silence focus is also borne

out by the title of the Act ("Moment of Quiet Reflection in

Schools") and the caption for the Act as codified ("Brief period of

quiet reflection authorized; nature of period."). Finally, the

severability clause further supports our interpretation that

subsection (c) merely is intended to clarify subsections (a) and

(b) and does not infuse the Act with a religious purpose. The

severability clause provides that if any section of the Act is

found to be unconstitutional, the other sections of the Act will

remain in effect. Because of this severability clause, if

subsection (c) were struck down, subsections (a) and (b) would

remain and the moment of quiet reflection would continue. The

severability clause thus indicates that the Georgia legislators,

regardless of the validity of subsection (c), wanted to provide for

a moment of quiet reflection for Georgia's students and would be

satisfied to have subsections (a) and (b) enforced even in the

absence of subsection (c).

The Act's legislative history, although somewhat conflicting,

is not inconsistent with the express statutory language

articulating a clear secular purpose and disclaiming a religious

purpose. The Act's primary sponsor, Senator Scott, stated that he

introduced Senate Bill 396 as one way of addressing the problems of

violence which Georgia's children face. He viewed the Act not as

providing for school prayer, but rather as providing for a moment

for students to collect their thoughts, focus on the upcoming day,
and begin to develop self-respect and discipline. In the House

debate, it is true that several representatives indicated a desire

to reinstitute school prayer, and at least some apparently believed

that the bill as amended in the House would do so. However,

several legislators who supported the bill in the House indicated

that they did not believe that the bill had anything to do with

prayer.

Bown argues that the House debate with respect to subsection

(c)7 indicates a legislative purpose to restore prayer to the

schools. As noted above, several representatives apparently

believed that the amendment which ultimately survived as subsection

(c) was a step toward returning prayer to schools. However, as

also noted above, other legislators thought otherwise. There is

also strong evidence indicating that subsection (c) was motivated

by a Fifth Circuit decision which allowed voluntary,

student-initiated prayers at high school graduations if the prayers

were nonsectarian and nonproselytizing. See Jones v. Clear Creek

Indep. School Dist., 977 F.2d 963 (5th Cir.1992), cert. denied, 508

U.S. 967, 113 S.Ct. 2950, 124 L.Ed.2d 697 (1993). It is apparent

that the legislators supporting the addition of subsection (c) were

concerned that subsections (a) and (b) might be construed to

prohibit activities (like those in Jones ) that the legislators

believed to be constitutionally permissible. In other words, these

legislators viewed subsection (c) merely as making it clear that

7
Subsection (c) was the only portion of the Davis Amendment
which survived the Conference Committee and subsequent
legislative proceedings to become part of the final version of
the statute.
subsections (a) and (b) do not prevent constitutionally permissible

activity.8
We are thus faced with legislative history that is much

different from that in Jaffree. In Jaffree, the primary sponsor of

the Alabama statute and the Governor of Alabama both explicitly

conceded that the purpose of the Alabama statute was to return

prayer to the Alabama schools, and Alabama failed to present any

evidence of a secular purpose. Jaffree, 472 U.S. at 57 & n. 44,

105 S.Ct. at 2490 & n. 44. In contrast, in this case, the primary

sponsor of the Act indicated that the Act had a secular purpose.

It is true, as Bown argues, that some legislators expressed the

desire to return prayer to Georgia's schools and supported the Act

for this reason. However, it is also true that other legislators

felt that the Act did not involve school prayer. Furthermore,

there is no evidence as to what the many other legislators who

voted in favor of the Act believed the purpose of the Act was or

why they voted for the Act. The plurality in Board of Education of

Westside Community Schools v. Mergens, 496 U.S. 226, 110 S.Ct.

2356, 110 L.Ed.2d 191 (1990), provides helpful guidance for a case

such as this one in which the legislative history is conflicting.

The Mergens plurality noted that "[e]ven if some legislators were

motivated by a conviction that religious speech in particular was

8
The issue of whether the type of student initiated,
nonsectarian, nonproselytizing, voluntary school prayer permitted
at high school graduations in Jones is constitutional is not
raised by the facts of this case. Thus, we need not address that
issue, nor whether there is tension between the Fifth Circuit
decision in Jones and this circuit's decision in Jager v. Douglas
County Sch. Dist., 862 F.2d 824 (11th Cir.), cert. denied, 490
U.S. 1090, 109 S.Ct. 2431, 104 L.Ed.2d 988 (1989).
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." Mergens, 496 U.S. at 249, 110 S.Ct. at 2371

(plurality). Although some Georgia legislators expressed religious

motives for voting for the Act, the fact remains that the language

of the statute as enacted reveals a clearly secular legislative

purpose: to provide students with a moment of quiet reflection to

think about the upcoming day.

An overall assessment of the legislative history may well

support a clear secular purpose, as the district court found. We

need not so decide, however, because we readily conclude at the

very least that the legislative history cannot be construed to

override the express statutory language articulating a clear

secular purpose and also disclaiming a religious purpose.

For the foregoing reasons, we conclude that the Act has a

clearly secular purpose. Because the Act's clearly secular purpose

is sincere and not a sham,9 we conclude that the Act satisfies the

first prong of the Lemon test.

B. Primary Effect

Under the second prong of the Lemon test, a statute violates

the Establishment Clause if its primary effect is to advance or

9
This case is not like Edwards v. Aguillard, for example, in
which the Louisiana Legislature's supposedly secular purpose for
enacting the Louisiana creationism statute was found to be a
sham. In Edwards, the primary sponsor of the Louisiana statute
introduced the statute for a religious purpose and the statute's
supposedly secular purpose of promoting academic freedom was
completely undermined by the statute's narrowing of the science
curriculum. Edwards, 482 U.S. at 586-93, 107 S.Ct. at 2579-84.
inhibit religion. The effects prong of the Lemon test " "asks

whether, irrespective of [the] government's actual purpose, the

practice under review in fact conveys a message of endorsement or

disapproval' " of religion. Jaffree, 472 U.S. at 56 n. 42, 105

S.Ct. at 2489 n. 42 (quoting Lynch, 465 U.S. at 690, 104 S.Ct. at

1368 (O'Connor, J., concurring)). See also Jager, 862 F.2d at 831.

The facts presented in this case demonstrate that the Act, as

implemented by the Gwinnett County School District, does not have

the primary effect of either advancing or inhibiting religion. The

announcement made over the school intercom by Principal Hendrix

indicated only that there would be a moment of silence to reflect

on the day's activities. This announcement in no way suggested

that students should or should not pray silently during the moment

of quiet reflection. The Administrative Bulletin circulated to all

school principals instructed that teachers should not suggest that

students use the moment of quiet reflection for prayer. The

Administrative Bulletin advises that if students ask if they can

pray during the moment of quiet reflection, the teacher should tell

the students that they may pray silently if they wish. There is no

indication in this case that any teacher encouraged prayer in

violation of the guidelines stated in the Administrative Bulletin.

There is no evidence in this case that any students were exhorted

to pray, favored for praying, or disfavored for not praying. Cf.

Jaffree, 472 U.S. at 78, 105 S.Ct. at 2498 (O'Connor, J.,

concurring) (suggesting Establishment Clause problems arise if

teachers exhort students to pray or favor students who pray). The

record in this case indicates only that two of Bown's students
placed Bibles on their desks during the moment of quiet reflection,

and one of these students bowed her head.

Bown contends, however, that the Act, by mandating a moment of

silence, both advances and inhibits religion by favoring silent

prayer and discouraging other forms of prayer. We are unpersuaded

by this argument. It is true that students may not engage in

audible prayer under the terms of the Act because audible prayer

necessarily would not be silent. However, this conclusion does not

cause the Act to run afoul of the second prong of the Lemon test.

The Act mandates a moment of quiet reflection, not a moment of

silent prayer. Students with religious beliefs which require

non-silent prayer need not engage in silent prayer during the

moment of quiet reflection. These students may sit silently,

reflecting on whatever topic they choose, without compromising

their religious beliefs or being forced to listen to other

students' prayers. See Jaffree, 472 U.S. at 72, 105 S.Ct. at 2498

(O'Connor, J., concurring). Similarly, students who do not believe

in prayer or religion at all may sit silently and think about any

topic of their choice without being forced to pray or to listen to

others' prayers. For that matter, students who do believe in

silent prayer as a form of religious activity may pray silently,

but are not forced to pray or to listen to others' prayers. All

students may use the moment of quiet reflection as they wish, so
10
long as they remain silent. To the extent that individual

10
As the court noted in Gaines v. Anderson, "If a student's
beliefs preclude prayer in the setting of a minute of silence in
a schoolroom, he may turn his mind silently toward a secular
topic, or simply remain silent, without violating the statute or
guidelines or facing the scorn or reproach of his classmates."
students decide to use the moment of quiet reflection as an

opportunity to pray silently (as opposed, for example, to using the

moment of quiet reflection to think about the day's activities, the

secular topic suggested in the statute), the statute does not have

the primary effect of either advancing or inhibiting religion so

long as the moment of quiet reflection exercise is conducted in the

manner prescribed by the statute (i.e., that the moment of quiet

reflection is silent and is not conducted as a religious exercise).

We also note that this case does not involve impermissible
government coercion of students to engage in religious activity.

See Lee v. Weisman, 505 U.S. 577, 591-95, 112 S.Ct. 2649, 2658-59,

120 L.Ed.2d 467 (1992) (discussing the dangers of government

coercion inherent in school religious activities).11 The facts in

this case do not indicate that the state has created a situation in

which students are faced with public pressure or peer pressure to

participate in religious activity. Cf. Weisman, 505 U.S. at 591-

421 F.Supp. 337, 345 (D.Mass.1976) (three judge district court)
(discussing Free Exercise Clause).
11
It is not entirely clear how the coercion inquiry
interacts with the Lemon test. However, an examination of
coercion seems to involve an analysis of the effects of a
particular statute, so we include our discussion of coercion in
our examination of the Act's effects. We note that some Justices
have indicated that a showing of coercion is sufficient to prove
an Establishment Clause violation, but is not necessary to
establish such a violation. See Weisman, 505 U.S. at 604, 112
S.Ct. at 2664 (Blackmun, J., concurring) ("Although our
precedents make clear that proof of government coercion is not
necessary to prove an Establishment Clause violation, it is
sufficient. Government [coercion] ... is an obvious indication
that the government is endorsing or promoting religion.");
Weisman, 505 U.S. at 619, 112 S.Ct. at 2672 (Souter, J.,
concurring) ("Our precedents .... simply cannot, however, support
the position that a showing of coercion is necessary to a
successful Establishment Clause claim.").
93, 112 S.Ct. at 2658 (explaining that school sponsored prayers at

a high school graduation create public pressure and peer pressure

to at least maintain respectful silence during the prayers). The

Act explicitly says that the moment of quiet reflection is not to

be conducted as a religious exercise. O.C.G.A. § 20-2-1050(b)

(1996). All that students must do under the Act is remain silent

for 60 seconds; they are not encouraged to pray or forced to

remain silent while listening to others' prayers. As a result, we

conclude that this case reveals no coercion.12

For the foregoing reasons, we conclude that there has been no

violation of the second prong of the Lemon test.

C. Excessive Entanglement

The third prong of the Lemon test dictates that the statute

must not foster an excessive government entanglement with religion.

The Lemon test's excessive entanglement prong has been interpreted

to mean that " "some governmental activity that does not have an

impermissible religious effect may nevertheless be

unconstitutional, if in order to avoid the religious effect [the]

government must enter into an arrangement which requires it to

monitor the activity.' " Nartowicz v. Clayton County Sch. Dist.,

736 F.2d 646, 649 (11th Cir.1984) (quoting Americans United for

Separation of Church and State v. School Dist. of the City of Grand

Rapids, 718 F.2d 1389, 1400 (6th Cir.1983)). We conclude that

12
We reject Bown's argument that there is evidence of
coercion in this case. The fact that two students placed Bibles
on their desks and one of them also bowed her head does not
indicate coercion. Indeed, the fact that out of the entire class
only two students did so indicates a lack of coercion. We
express no opinion on a case in which there is substantial
evidence of visible religious activity in the classroom.
there is no excessive entanglement in this case. All that the Act

requires is that the students and the teacher in charge remain

silent during the moment of quiet reflection. Teachers are not

required to participate in or lead prayers, nor are they required

to review the content of prayers during the moment of quiet

reflection. Cf. Jager, 862 F.2d at 831 (suggesting that excessive

entanglement might result if school officials monitored the content

of pre-football game invocations or chose the invocation speakers);

Ingebretsen, 88 F.3d at 279 (finding excessive entanglement when

school administrators participated in and reviewed the content of

prayers). The fact that a teacher must stop a student who prays

audibly or otherwise makes noise during the moment of quiet

reflection does not result in excessive government entanglement

with religion. There are many times during any given school day

when teachers tell their students to be quiet and when audible

activity of any kind is not permitted. The fact that this

particular period of silence is mandated statewide does not create

entanglement problems.

Bown argues that subsection (c) affirmatively permits student

initiated, voluntary school prayers so long as they are

nonsectarian and nonproselytizing. He argues that teachers would

have to monitor such prayers to ensure they were nonsectarian and

nonproselytizing, and that this monitoring would constitute

excessive entanglement. We can assume arguendo without deciding

that such monitoring would constitute excessive entanglement.

However, Bown's argument fails for two reasons. First, we have

already rejected Bown's interpretation of subsection (c) and
concluded that the most reasonable interpretation is that

subsection (c) affirmatively authorizes nothing at all. Rather, we

think subsection (c) merely clarifies that the moment of quiet

reflection statute does not prevent other activity that is

constitutionally permissible. See supra Part II.A.2. Thus, the Act

does not affirmatively authorize prayers which a teacher would have

to monitor, and the monitoring problem about which Bown speculates

simply does not arise under this Act.

Second, this case involves no prayer for a teacher to
monitor. Indeed, no case involving the moment of quiet reflection

would involve prayers for a teacher to monitor because any prayers

during the moment of quiet reflection necessarily must be silent.

Thus, the monitoring problem postulated by Bown is not present in

this case and is not likely to arise in any moment of quiet

reflection case.13

For the foregoing reasons, we conclude that the Act satisfies

13
The Supreme Court has indicated that an Establishment
Clause challenge may be made both facially and as applied. Bowen
v. Kendrick, 487 U.S. 589, 600-02, 108 S.Ct. 2562, 2569-70, 101
L.Ed.2d 520 (1988). We readily conclude that the instant statute
is not facially unconstitutional. As explained above, subsection
(c) does not affirmatively authorize any activity at all.
Rather, the focus of the Act is clearly upon the conduct of
moments of quiet reflection in schools. The express provision of
the Act—that the moment of quiet reflection is "not intended to
be and shall not be conducted as a religious service or exercise
but shall be considered as an opportunity for a moment of silent
reflection on the anticipated activities of the day"—persuades us
that most moment of quiet reflection exercises will be conducted
in a constitutionally permissible manner, as was the exercise in
the instant case. Thus, Bown's conclusory facial challenge is
without merit. See Bowen, 487 U.S. at 610, 108 S.Ct. at 2575
(rejecting a facial challenge because, inter alia, "nothing on
the face of the ... [statute] indicates that a significant
proportion of the federal funds will be disbursed to "pervasively
sectarian' institutions").
the third prong of the Lemon test.

III. CONCLUSION

The Georgia Moment of Quiet Reflection in Schools Act

satisfies all three prongs of the Lemon test. The Act has a

clearly secular purpose. The specific facts presented in this case

indicate that the Act does not have the primary effect of advancing

or inhibiting religion and does not create an excessive government

entanglement with religion. As a result, we hold that the Act does

not violate the Establishment Clause. The district court's

judgment for the appellees is affirmed.

AFFIRMED.