dissenting:
I respectfully dissent.
The First Amendment provides, in part, that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof....” The Founding Fathers were specially concerned that these United States would not labor under a state sponsored church or religion. The United States Supreme Court has made it abundantly clear that the Constitution does not require complete separation of church and state and that it “[affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any. See, e.g., Zorach v. Clauson, 343 U.S. 306-314, 315, 72 S.Ct. 679, 684, 96 L.Ed. 954 (1952); Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 211, 68 S.Ct. 461, 465, 92 L.Ed. 649 (1948).” Lynch v. Donnelly, 465 U.S. 668, 673, 104 S.Ct. 1355, 1359, 79 L.Ed.2d 604 (1984). I believe that those mandates were violated by Principal Madigan and the School District in this case. Their actions forbidding Mr. Roberts from reading his Bible during his fifth grade class’ 15-min-ute silent reading period and ordering the removal of the two challenged books from his classroom library were acts of intolerance, lack of accommodation and hostility toward the Christian religion.1
There is no assertion by Mr. Roberts that his reading the Bible during the class silent reading period was an exercise compelled by his religious beliefs. See Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). By the same token, this is not a case involving a religious practice in violation of a state statute. Employment Div., Oregon Dept. of Human Resources v. Smith, — U.S. —, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (claimed religious use of peyote cannot prevail un*1060der the Free Exercise Clause in light of Oregon’s statute declaring it a felony to knowingly possess the drug); Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1879) (religious belief in polygamy cannot prevail over state criminal statute outlawing the practice). Thus, in the instant case, none of Mr. Roberts’ practices constituted any 'per se violation of any Colorado law, custom or policy. Accordingly, the district court should have judged the case with a view to accommodate Mr. Roberts’ practices. The burden was cast on the school district to demonstrate, as the majority opinion now agrees, that Mr. Roberts’ challenged practices materially and substantially interfered with the operation of the school. This burden is analogous to the “compelling governmental interest” test announced in Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), which requires that religious liberty under the Free Exercise Clause of the First Amendment cannot be interfered with or encroached upon, directly or indirectly, unless required by clear and compelling governmental interests “of the highest order.” Yoder, 406 U.S. at 215, 92 S.Ct. at 1533.
It is a far cry from tolerance and accommodation toward Christianity to interpret the practices in Mr. Roberts’ classroom as “teaching” or “endorsement” of Christianity in violation of the Establishment Clause. I observe that such findings by the district court, which the majority here upholds under either the clearly erroneous standard or the de novo standard, have no basis in any aggrieved testimony of fifth grade students or their parents, past or present. The only “live” complainant in this case was Principal Madigan, whose views on separation of church and state are absolute. She applied a “bright line” approach. The district court’s “findings” are really legal conclusions. There is no basis, other than speculation, for implying, as does the majority opinion, that the practices in Mr. Roberts’ classroom constituted religious indoctrination. (Maj. Opinion, pp. 1054-1055). Presumably, such would not have been the case had Mr. Roberts read the books on Buddhism or Indian religions. Principal Madigan did not object to them. Thus, it seems that any concern that elementary children are “vastly more impressionable than high school or university students,” (Appellee’s Briefs, p. 32), cannot be a serious defense. In this case, it was Principal Madigan and the School District who violated the Establishment Clause.
In the following Supreme Court opinions interpretive of the Establishment Clause in the context of the public schools, it is important to note that the condemned activity was openly pursued or actively — rather than passively — sponsored: Stone v. Grahamn, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199, reh. denied, 449 U.S. 1104, 101 S.Ct. 904, 66 L.Ed.2d 832 (1980) (held that the posting of a copy of the Ten Commandments on the wall of each public school room violated the Establishment Clause because no secular purpose had been demonstrated); Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962) (formulated prayers which were required to be repeated by students in public schools violated Establishment Clause); McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948) (released time arrangement whereby students who wished could attend religious instruction classes during regular school hours in public school buildings, held to be violative of Establishment Clause by virtue of use of tax-supported property to promote religion).
In those cases where a religious exception has not been allowed from a state statute or regulation, the Supreme Court has cast the burden on the government to rely on more than mere speculation about potential harms; the government has been required to present evidentiary support for a refusal to allow a religious exception. United States v. Lee, 455 U.S. 252, 257-258, 102 S.Ct. 1051, 1055-1056, 71 L.Ed.2d 127 (1982) (The government must demonstrate that unbending application of its regulation to a religious objector is essential to accomplish an overriding governmental interest); Thomas v. Review Board of Indiana Employment Security Div., 450 U.S. 707, 719, 101 S.Ct. 1425, 1432-1433, 67 L.Ed.2d 624 (1981), (rejected the state’s rea*1061sons for refusing to grant a religious exemption for failure to demonstrate that the means employed were the least restrictive means of achieving a compelling state interest because no evidence in the record supported the state’s reasons).
Cases involving the challenges presented here must necessarily be decided on a case-to-case basis. A person in Mr. Roberts’ position as an elementary school classroom teacher must be alert to the possibility that actions on his part could constitute government actions violative of the Establishment Clause without further evidence. For example, in a less discreet classroom scenario than that presented in the case at bar, a violation could be found to exist. However, unlike Stone, Engel, and McCollum, the activities here were passive and de minimis. If the condemned activities in this case could, by simple inference, be held to be violative of the principle of separation of church and state, reliance would necessarily have to weigh almost entirely on the proposition that Mr. Roberts’ fifth graders were ages 10 or 11 and thus easily proselytized. The problem is simply that there is no evidence to support such a bald conclusion. No students or parents testified in support of Principal Madigan or the School District. No witness protested that Mr. Roberts’ practice of reading from his Bible or the maintenance in his classroom library of the two condemned books were motivated by Mr. Roberts’ intention to promote belief in Christianity. Under these circumstances and on the record made, I would hold that the activities did not amount to an intrusion on the separation of church and state principle.
Where disputes arise over government restrictions on a person’s exercise of a religious practice (here, Mr. Roberts’ desire to read from his Bible during the silent 15-minute class reading period), the court must determine whether the government has demonstrated a compelling interest in enforcing its policy (here, Principal Madi-gan’s separation of church and state principle) and whether the policy represents the least restrictive means of fulfilling the governmental interest. Wisconsin v. Yoder, supra; Sherbert v. Verner, supra. Although he does not specifically so argue, Mr. Roberts’ practice of reading his Bible during the class 15-minute silent reading period was a minimal, discreet exercise of the Free Exercise Clause of the First Amendment. As such, Principal Madigan and the School District unduly burdened Mr. Roberts’ rights. See Hernandez v. Commissioner, 490 U.S. 680, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989); Wisconsin v. Yoder, supra, 406 U.S. at p. 220, 92 S.Ct. at p. 1535-36.
The majority has come to agree that the “substantial interference” standard of review set forth in Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), applies here. In Tinker, three public school pupils were suspended from school for violating a school policy, with which they were aware, by wearing black armbands in protest of the government’s policy in Vietnam. The students were quiet and passive, just as was Mr. Roberts, and they did not impinge upon the rights of others. There is no evidence that Mr. Roberts’ actions impinged upon the rights of others.
The Tinker court observed that the armband display “does not concern aggressive, disruptive action or even group demonstrations” and that there was no evidence that the armband display interfered with school work or collided with the rights of other students to be let alone. Id. at 508, 89 S.Ct. at 737. By the same standard, there is no evidence that Mr. Roberts’ actions interfered with school work or collided with the rights of the students. Tinker required evidence demonstrating that “[ejngaging in the forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school....’” Id. at 509, 89 S.Ct. at 738. There is not a scintilla of evidence in the case at bar demonstrating that any of Mr. Roberts’ practices materially and substantially interfered with the appropriate operation of the school. Thus, I submit that, under the strict Tinker standard, the defendants-appellants *1062failed to carry their burden of proof.2 This is a case in which to promote tolerance. In my view, under the strict standard of Tinker, the defendants failed to prove that Mr. Roberts’ behavior “materially and substantially interfere[d] with ... the operation of the school.” Tinker, 393 U.S. at 509, 89 S.Ct. at 738.
The maintenance of the two challenged books in Mr. Roberts' classroom library was entirely passive in character, just as was Mr. Roberts’ practice of reading his Bible during the class’ 15-minute silent reading period. These books were not assigned to the students and there is no evidence that Roberts ever referred the students to them. Furthermore, Roberts’ practice of reading his Bible while seated at his desk during the class 15-minute silent reading period was carefully exercised. Under these circumstances, the School District did not prove that there was a compelling governmental interest justifying its command that Mr. Roberts refrain from reading his Bible during the 15-minute silent reading period, and remove the two books from the classroom library. “First Amendment rights must always be applied in light of the special characteristics of the ... environment in the particular ease.” Tinker, 393 U.S. at 506, 89 S.Ct. at 736.
In Lynch v. Donnelly, supra, the Supreme Court majority observed:
The Court has invalidated legislation or governmental action on the ground that a secular purpose was lacking, but only when it has concluded that there was no question that the statute or activity was motivated wholly by religious considerations. See, e.g., Stone v. Graham, supra, [449 U.S. 39] at 41 [101 S.Ct. 192, 193-94, 66 L.Ed.2d 199;] Epperson v. Arkansas, 393 U.S. 97, 107-09 [89 S.Ct. 266, 272-73, 21 L.Ed.2d 228] (1968); Abington School District v. Schempp, supra, [374 U.S.] at 223-224 [83 S.Ct. at 1572;] Engel v. Vitale, 370 U.S. 421, 424-425 [82 S.Ct. 1261, 1263-64, 8 L.Ed.2d 1285] (1962). Even where the benefits to religion were substantial, as in Everson v. Board of Education, 330 U.S. 1 [67 S.Ct. 504, 91 L.Ed. 711] (1947); Board of Education v. Allen, 392 U.S. 236 [88 S.Ct. 1923, 20 L.Ed.2d 1060] (1968); Walz [v. Tax Comm’n, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970) ] supra; and Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971) ] supra, we saw a secular purpose and no conflict with the Establishment Clause. Cf. Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982).
465 U.S. at 680, 104 S.Ct. at 1362-63.
In my view, the Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) test is inapplicable in the instant case, simply because the actions condemned here are not of the type or character sufficient to implicate government entanglement with religion. In reality, out of concern for a “bright line” demand for separation of church and state, the defendants effectively denied Mr. Roberts that degree of tolerance to which he is entitled. At the evidentiary hearing conducted by the district court on the injunction issue, two witnesses, the school’s librarian and music teacher, testified that Principal Madi-gan removed the Bible from the main school library in keeping with her concept of separation of church and state. While *1063the district court did not agree with Principal Madigan’s action in removing the Bible from the main school library (the district court enjoined Principal Madigan and the School District from removing the Bible from the school library), the court did uphold her actions, approved by the School District, in ordering Mr. Roberts to remove his Bible from his desk, not to read from his Bible during the 15-minute silent reading period and to remove “The Bible in Pictures” and “The Story of Jesus” from his 239-book classroom library. I would hold that Principal Madigan’s actions were constitutionally unwarranted and that the district court was clearly erroneous. Principal Madigan insisted on the obliteration of all Christian books from the school premises. Her extreme stance would convert the “primary effect” prong of the Establishment Clause into governmental disapproval, disparagement and hostility toward the Christian religion.
There is nothing in the record demonstrating, in fact, that Mr. Roberts’ placement of his personal Bible on his desk, his habit of reading the Bible during the class’ 15-minute silent reading period or the placement of the above-referred to books in the classroom library had a coercive effect on or that it tended to proselytize Mr. Roberts’ fifth grade students. Any concerns voiced in regard to the Establishment Clause impact are entirely speculative.
There is no evidence that Mr. Roberts at any time ever spoke to his students concerning his possession of a Bible or his preference in reading from it. Thus, there is no evidence of any “coercive” effect. Furthermore, there is no evidence that Mr. Roberts ever assigned any members of his fifth grade class to read any of the books in his classroom library, including a book on Buddhism and a book on American Indian religions.
In my view, the district court erred in drawing any distinction between the maintenance of the Bible in the school library while denying the simple maintenance of “The Bible in Pictures” and “The Story of Jesus” in the classroom library. Not one word was spoken by Mr. Roberts concerning the Bible, his reading of the Bible, or of the two condemned books in his classroom library which could involve any successful application of the Lemon test in favor of the state out of concern for violation of the Establishment Clause of the First Amendment.
In Marsh v. Chambers, 463 U.S. 783, 792, 103 S.Ct. 3330, 3336, 77 L.Ed.2d 1019 (1983), the Supreme Court majority held that the practice of opening each daily session of the Nebraska legislature with a prayer by a chaplain paid by the State did not violate the Establishment Clause of the First Amendment because the practice had become historically accepted as “[pjart of the fabric of our society.” Mr. Justice Brennan, joined by Mr. Justice Marshall, dissented. They would hold the legislative prayer practice violative of the Establishment Clause. No one can logically argue that the daily prayer practice in Marsh could meet the test of the first prong of the Lemon v. Kurtzman test, i.e., the statute (or practice) must have a secular legislative purpose. And no justice on the Supreme Court in Marsh raised the contention addressed in Engel v. Vitale, supra, that the legislature’s daily prayer imposed an impermissible endorsement of prayer in public facilities or that it had a coercive effect upon non-religious minorities to conform.
The 15-minute silent reading period was not a religious exercise. Just as a moment of silence does not endorse prayer over other alternatives, in my view, the fact that Mr. Roberts sometimes used the 15-minute silent reading period reading from his Bible does not, ipso facto, convey a message to his students that they should follow suit.
The Free Exercise Clause of the First Amendment mandates that the government not prohibit or interfere with the free exercise of religion. The clause imposes a burden on the government to facilitate the free exercise of religion. In that sense, the government is promoting a religious purpose and if the first and second prongs of the Lemon test were to apply, the Free Exercise Clause would necessarily fall because the government would not be pursu*1064ing a secular purpose, and the primary effect would be to advance religion.
In Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985), the Supreme Court struck down an Alabama statute authorizing a 1-minute period of silence in all public schools for “meditation or voluntary prayer” because the majority held that the established purpose was to endorse religion, and the enactment was not motivated by any clearly secular purpose. The Court majority applied the Lemon test.
Then-Chief Justice Warren Burger, in his dissent in Wallace v. Jaffree, made the following pertinent observations with which I agree and which I believe to be fully consistent with the majority opinion in Lynch v. Donnelly, supra, and applicable here:
[T]he Court’s extended treatment of the ‘test’ of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) suggests a naive pre-occupation with an easy, bright-line approach for addressing constitutional issues. We have repeatedly cautioned that Lemon did not establish a rigid caliper capable of resolving every Establishment Clause issue, but that it sought only to provide ‘signposts.... ’ [0]ur responsibility is not to apply tidy formulas by rote; our duty is to determine whether the statute or practice at issue is a step toward establishing a state religion.
* * sH * * *
[T]he statute does not remotely threaten religious liberty; it affirmatively furthers the values of religious freedom and tolerance that the Establishment Clause was designed to protect. Without pressuring those who do not wish to pray, the statute simply creates an opportunity to think, to plan, or to pray if one wishes — as Congress does by providing chaplains and chapels. It accommodates the purely private, voluntary religious choices of the individual pupils who wish to pray while at the same time creating a time for non-religious reflection for those who do not choose to pray. The statute also provides a meaningful opportunity for school children to appreciate the absolute constitutional right of each individual to worship and believe as the individual wishes. The statute ‘endorses’ only the view that the religious observances of others should be tolerated and, where possible, accommodated. If the government may not accommodate religious needs when it does so in a wholly neutral and non-coercive manner, the ‘benevolent neutrality' that we have long considered the correct constitutional standard will quickly translate into the ‘callous indifference’ that the Court has consistently held the Establishment Clause does not require. (Emphasis supplied).
472 U.S. at pp. 89-90, 105 S.Ct. at pp. 2506-07.
I would reverse the judgment of the district court and hold, on the record before us, that plaintiff Roberts has demonstrated that the defendants violated the Establishment Clause by requiring the removal of the two books from his classroom library and by barring him from reading or displaying his Bible during the class’ 15-min-ute silent reading period.
. Principal Madigan also requested that Mr. Roberts remove a poster depicting a mountain scene with the inscription: "You have only to open your eyes to see the hand of God.” Mr. Roberts complied with the request and, at trial, did not challenge the poster’s removal. Thus, the poster should not be considered when determining whether the defendants violated the Establishment Clause by prohibiting Mr. Roberts’ other practices. Even if the poster were to be considered, I believe that its nonsectarian reference to "God” is, at best, only minimally relevant to the issue of whether Mr. Roberts was unconstitutionally promoting Christianity in the classroom.
. The majority relies on Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) to bolster its position that school officials have broad discretion in controlling school activities (Footnote 10, p. 1056 of Majority Opinion). The problem is that Kuhl-meier differentiated between "personal expression that happens to occur on the school premises" protected under Tinker (which governs Mr. Roberts’ practices) and school activities "[tjhat students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school." Kuhlmeier, 484 U.S. at 271, 108 S.Ct. at 569. The Tinker standard, it is agreed, controls in this case. The "substantial interference” standard applied in Tinker is far less deferential than the "greater control” standard applied in Kuhlmeier. It is to be noted that Kuhlmeier involved the constitutional right of the high school principal to censor certain articles submitted for publication in the student newspaper. It was in that context that the Supreme Court upheld the principal’s actions as being “[rjeasonably related to legitimate pedagogical concerns." 484 U.S. at 273, 108 S.Ct. at 571. In the instant case, Principal Madigan’s actions did not involve educational concerns calling for the expertise of school officials; on the contrary, she exercised a judgment involving a conflict relating to basic constitutional values.