UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
Nos. 97-30879,98-30132
__________________
HERB FREILER; SAM SMITH, Individually and in
his capacity as Administrator of the Estate
of his minor child Steven Smith; JOHN JONES,
Plaintiffs-Appellees,
v.
TANGIPAHOA PARISH BOARD OF EDUCATION; E.F.
BAILEY; ROBERT CAVES; MAXINE DIXON; LEROY HART;
RUTH WATSON; DONNIE WILLIAMS, SR.; ART ZIESKE,
Individually and in their capacities as members
of the School Board; TED CASON, Individually and
in his capacity as Superintendent of Schools,
Defendants-Appellants.
______________________________________________
Appeals from the United States District Court for the
Eastern District of Louisiana, New Orleans
______________________________________________
January 24, 2000
ON PETITION FOR REHEARING EN BANC
(Opinion 8/13/99, 5th Cir., ______, ______ F.3d ______)
Before KING, Chief Judge, and POLITZ and BENAVIDES, Circuit Judges.
PER CURIAM:
The School Board contends that the panel opinion misquoted the
disclaimer's language, substituting and for or in a disclaimer
passage. The School Board is correct. The particular passage as
stated in the disclaimer reads as follows:
“It is further recognized by the Board of Education that
it is the basic right and privilege of each student to
form his/her own opinion or maintain beliefs taught by
parents on this very important matter of the origin of
life and matter.”
The improper substitution of “and” for “or” does not affect
the outcome of this case.
In denying rehearing, we emphasize that we do not decide that
a state-mandated statement violates the Constitution simply because
it disclaims any intent to communicate to students that the theory
of evolution is the only accepted explanation of the origin of
life, informs students of their right to follow their religious
principles, and encourages students to evaluate all explanations of
life’s origins, including those taught outside the classroom. We
decide only that under the facts and circumstances of this case,
the statement of the Tangipahoa Parish School Board is not
sufficiently neutral to prevent it from violating the Establishment
Clause.
Treating the Petition for Rehearing En Banc as a Petition for
Panel Rehearing, the Petition for Panel Rehearing is DENIED. The
court having been polled at the request of one of the members of
the court and a majority of the judges who are in regular active
service not having voted in favor (Fed.R.App.P. and 5th Cir. R.
35), the Petition for Rehearing En Banc is DENIED.
RHESA HAWKINS BARKSDALE, Circuit Judge, joined by E. GRADY JOLLY,
PATRICK E. HIGGINBOTHAM, EDITH H. JONES, JERRY E. SMITH, EMILIO M.
GARZA, and HAROLD R. DeMOSS, JR., Circuit Judges, dissenting from
the denial of rehearing en banc:
For the second time in less than a year, our court has refused
to grant rehearing en banc to consider application of the
Establishment Clause of the First Amendment to issues of
exceptional importance to students, parents, and educators. See
Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806 (holding
unconstitutional, inter alia, student-led prayers before football
games), reh’g denied, 171 F.3d 1013 (5th Cir.), cert. granted, ___
U.S. ___, 120 S. Ct. 494 (1999). I joined the dissent from the
denial of rehearing in Santa Fe, and respectfully dissent from this
denial, because I believe our court’s recent Establishment Clause
jurisprudence is not only inconsistent with Supreme Court
precedent, as well as ours, but is also so erroneous and
unwarranted it will be understood by some as being nothing less
than hostile toward religion. See id.; Doe v. Beaumont Indep. Sch.
Dist., 173 F.3d 274, reh’g granted, 173 F.3d 313 (5th Cir. 1999).
The panel strikes down a disclaimer from endorsement of the
theory of evolution (the disclaimer), required to be read in
Tangipahoa Parish schools at the start of a lesson on evolution.
Freiler v. Tangipahoa Parish Bd. of Educ., 185 F.3d 337 (5th Cir.
1999). Among other things, the disclaimer advises students that
the lesson is “presented to inform [them] of the scientific concept
and not intended to influence or dissuade the Biblical version of
Creation or any other concept”. The panel holds the disclaimer
unconstitutional for not being neutral. Id. at 345-48.
But, in seeking to enforce constitutionally mandated
neutrality, the panel has strayed, no doubt unintentionally, onto
3
a path of intolerance. See Lynch v. Donnelly, 465 U.S. 668, 673
(1984) (“Nor does the Constitution require complete separation of
church and state; it affirmatively mandates accommodation, not
merely tolerance, of all religions, and forbids hostility toward
any”). Unfortunately, notwithstanding this case being one of
“exceptional importance”, as well as there being the necessity “to
secure or maintain uniformity of [our] court’s decisions”, the very
fodder for granting en banc rehearing pursuant to FED. R. APP. P.
35(a), our court does not think it necessary.
Immediately preceding this dissent is the statement crafted by
the panel to explain why the disclaimer fails. Surely, that is the
role of the opinion. In any event, this vague, good news for
everyone statement (the disclaimer to the disclaimer) may provide
comfort to those members of our court reluctant to allow en banc
rehearing. We are now seemingly assured that, in general,
disclaimers somewhat similar to the one at issue are
constitutionally permissible; but informed that, “under the facts
and circumstances of this case, the statement of the Tangipahoa
Parish School Board is not sufficiently neutral to prevent it from
violating the Establishment Clause”.
With all due respect to the panel, this disclaimer to the
disclaimer, while possibly being the balm necessary to save this
case from being reheard en banc, does far more harm than good. For
this extremely important and sensitive area of the law and of life,
it does nothing but muddy the waters even more. (For starters,
what does “not sufficiently neutral” mean?) Someone trying to
4
harmonize the panel’s holding about the disclaimer and its
disclaimer to the disclaimer could conclude, quite justifiably,
that the disclaimer does not pass muster because of one simple
fact: it mentions the Bible. Whether that be the panel’s holding,
or that be the reader’s conclusion, there is consistency in one
sense — each result should be of great concern to our court.
Sadly, it does not appear to be so.
The now-operative disclaimer to the disclaimer was prompted by
the panel holding that the Establishment Clause does not permit a
teacher, at the start of a lesson on evolution, to read a statement
informing students that the lessons are not intended to dissuade
their beliefs in alternative concepts of the origin of life and
matter; urging them to think critically about evolution and such
alternative concepts; and reminding them of their right to form
their own opinions or to maintain beliefs taught by their parents.
(Interestingly, what the disclaimer to the disclaimer suggests
would be permissible tracks the disclaimer quite closely.)
The disclaimer is required by the following resolution adopted
in 1994 by the Tangipahoa Parish School Board:
Whenever, in classes of elementary or high
school, the scientific theory of evolution is
to be presented, whether from textbook,
workbook, pamphlet, other written material, or
oral presentation the following statement
shall be quoted immediately before the unit of
study begins as a disclaimer from endorsement
of such [evolution] theory.
It is hereby recognized by the Tangipahoa
Parish Board of Education, that the lesson to
be presented, regarding the origin of life and
matter, is known as the Scientific Theory of
Evolution and should be presented to inform
5
students of the scientific concept and not
intended to influence or dissuade the Biblical
version of Creation or any other concept.
It is further recognized by the Board of
Education that it is the basic right and
privilege of each student to form his/her own
opinion or maintain beliefs taught by parents
on this very important matter of the origin of
life and matter. Students are urged to
exercise critical thinking and gather all
information possible and closely examine each
alternative toward forming an opinion.
(Emphasis added.) The panel opinion, in quoting the disclaimer,
erroneously uses “and” instead of “or” in the above passage about
a student’s right “to form his/her own opinion or”, not and,
“maintain beliefs taught by [his/her] parents”. 185 F.3d at 341.
The disclaimer to the disclaimer acknowledges this error, but
states that it “does not affect the outcome of this case”.
The School Board advanced three purposes for the disclaimer:
“(1) to encourage informed freedom of belief, (2) to disclaim any
orthodoxy of belief that could be inferred from the exclusive
placement of evolution in the curriculum, and (3) to reduce offense
to the sensibilities and sensitivities of any student or parent
caused by the teaching of evolution”. Id. at 344. The panel
concluded that the second and third purposes were permissible
secular objectives. Id. at 345.
But, in a holding that overlaps with its holding that the
disclaimer is not neutral, discussed infra, the panel decided that
the first purpose was a “sham”, concluding that the disclaimer
furthered a contrary purpose: “the protection and maintenance of
a particular religious viewpoint”. Id. at 344-45. In so doing,
6
the panel interpreted the message of the disclaimer as telling
students that “evolution as taught in the classroom need not affect
what they already know”; and that this was “contrary to an intent
to encourage critical thinking, which requires that students
approach new concepts with an open mind and a willingness to alter
and shift existing viewpoints”. Id. at 345 (emphasis added).
The first-purpose-is-a-sham-conclusion is unwarranted. As
noted, the panel misquoted the following portion of the disclaimer:
“it is the basic right and privilege of each student to form
his/her own opinion or [not “and”, as the panel opinion mistakenly
quoted] maintain beliefs taught by parents on [the] ... matter of
the origin of life and matter”. This mistaken reading of the
disclaimer as conjunctive, rather than disjunctive, perhaps
explains why the panel discounted the disclaimer’s clear message
that, concerning the origin of life and matter, students are free
to either maintain their current beliefs, including those taught by
their parents, or to form their own, new, independent opinions.
In any event, the panel held that, on balance, the disclaimer
survives the secular purpose prong of Lemon v. Kurtzman, 403 U.S.
602 (1971). Freiler, 185 F.3d at 345. But, it concluded that it
was unconstitutional nevertheless, on the basis that it violates
Lemon’s second prong (and the endorsement test of County of
Allegheny v. American Civil Liberties Union, 492 U.S. 573, 605
(1989)): its principal or primary effect impermissibly advances
religion. Freiler, 185 F.3d at 345-48.
7
As our court stated in Doe v. Duncanville Indep. Sch. Dist.,
70 F.3d 402, 406 n.4 (5th Cir. 1995), “the Establishment Clause
[does not] prevent [school district] employees from treating
students’ religious beliefs and practices with deference and
respect; indeed, the constitution requires this”. (Emphasis
added.) Along this line, the Freiler panel “acknowledge[s] that
local school boards need not turn a blind eye to the concerns of
students and parents troubled by the teaching of evolution in
public classrooms”. Freiler, 185 F.3d at 345-46. Obviously, those
who might be so troubled might be those who believe in “the
Biblical version of Creation”.
Sadly, what the panel gives, it takes away. Notwithstanding
the palaver about school boards not being required “to turn a blind
eye to [such] concerns”, the panel relied on “the interplay of
three factors” in concluding that “the primary effect of the
disclaimer is to protect and maintain a particular religious
viewpoint, namely belief in the Biblical version of creation”:
(1) the juxtaposition of the disavowal of
endorsement of evolution with an urging that
students contemplate alternative theories of
the origin of life; (2) the reminder that
students have the right to maintain beliefs
taught by their parents regarding the origin
of life; and (3) the “Biblical version of
Creation” as the only alternative theory
explicitly referenced in the disclaimer.
Id. at 346.
1. The juxtaposition of the disavowal of endorsement of
evolution with an urging that students contemplate alternative
theories of the origin of life.
8
Considering the context in which the disclaimer is to be
presented (at the start of a lesson presenting evolution as the
sole explanation for the origin of life and matter), how can such
“juxtaposition” impermissibly advance religion?
The theory of evolution may be viewed by some as anti-
religious. The disclaimer recognizes this historic tension between
evolution (scientific concept) and other theories or concepts about
the origin of life and matter, using the “Biblical version of
Creation” as but an example of such other concepts. And, it
affirmatively notes that evolution is the only theory taught. In
furtherance of the purposes to disclaim any orthodoxy of belief
that could be inferred from the exclusive placement of evolution in
the curriculum, and to reduce any resulting offense to students who
adhere to concepts other than evolution, the disclaimer points out
that the fact that evolution is the only such concept taught —
“presented to inform students of [that] scientific concept” — is
not intended to influence or dissuade any other concept, including
the Biblical version. The disclaimer balances; it neutralizes; it
is consistent with the requisite neutrality.
But, the panel construes the disclaimer’s urging students to
“exercise critical thinking” as being solely with respect to the
Biblical theory, interpreting it as “encourag[ing] students to read
and meditate upon religion in general and the ‘Biblical version of
Creation’ in particular”. Id. at 346. In so doing, the panel
ignores the disclaimer’s plain language (urging students to
“closely examine each alternative”, including evolution), as well
9
as the context in which the disclaimer is presented, i.e.,
preceding a lesson which presents evolution as the sole explanation
for the origin of life and matter. Therefore, the panel
misunderstands the message.
The curriculum provides students with information about only
one concept (evolution). The disclaimer’s mere mention of the
existence of other concepts, without presenting any information
about the content of those concepts, neither gives any preferred
status to, nor advances, any other concept, which students must
make an additional effort to consider or learn, outside the
classroom.
2. The reminder that students have the right to maintain
beliefs taught by their parents regarding the origin of life.
As discussed, the panel’s reliance on this factor may have
resulted from its misquoting the disclaimer (failing to recognize
the disclaimer’s use of “or” rather than “and” between the phrases
“form his/her own opinion” and “maintain beliefs taught by
parents”). As noted, we are now told that this error “does not
affect the outcome of this case”. In any event, how does reminding
students of their right to maintain beliefs taught by their parents
regarding the origin of life and matter, or to form their own
beliefs about the subject, advance religion? In that students are
taught about only one such concept — evolution — there is “no
realistic danger that the community would think that the [School
Board] was endorsing religion or any particular creed, and any
benefit to religion or to the Church would have been no more than
10
incidental”. Lamb’s Chapel v. Center Moriches Union Free Sch.
Dist., 508 U.S. 384, 395 (1993).
3. The “Biblical version of Creation” as the only alternative
theory specifically referenced in the disclaimer.
The panel reasoned that, because the only alternative theory
identified in the disclaimer is a religious one, the disclaimer
“serves only to promote a religious alternative to evolution”.
Freiler, 185 F.3d at 348. (As discussed, this may be the hook on
which the panel hangs its disclaimer to the disclaimer, denial of
rehearing hat.) The reliance on this factor is misplaced, because
the panel fails to take into account the disclaimer’s audience.
Yet, the panel acknowledges that, “[i]n assessing the primary
effect of the contested disclaimer, we focus on the message
conveyed by the disclaimer to the students who are its intended
audience”. Id. at 346.
The record reflects that an estimated 95% of the parish
students are adherents to the Biblical concept of creation.
Accordingly, use of the “Biblical version of Creation” as an
illustration of an alternative concept to evolution is hardly
surprising. Because the overwhelming majority of the students
expected to hear the disclaimer were familiar with that alternative
concept, the reference serves to give context to the message, but
without promoting that concept or expressing intolerance for any
other. Surely, giving context to a message is an admirable method
of instruction.
11
Contrary to the panel’s interpretation, the disclaimer
expressly encourages examination of “each alternative” concept for
life’s origin, including evolution, the Biblical version, and
others that are not identified. Moreover, the panel erroneously
assumes that all alternatives to evolution are religious in nature,
ignoring the existence of non-religious theories, such as the “Big
Bang” and panspermia (reproductive bodies of living organisms exist
throughout the universe and develop wherever the environment is
favorable).
Based on my review of the record, the language of the
disclaimer, and the context in which it was intended to be used,
the primary effect of the disclaimer is not to advance religion;
instead, it is to advance tolerance and respect for diverse
viewpoints. The record reflects that, to the overwhelming majority
of the parish students, the scientific concept of evolution
conflicts with their (or their parents’) beliefs about the origin
of life and matter; and its exclusive place in the curriculum had
caused concern among students and parents. The disclaimer’s
message is one of respect for diverse viewpoints, informing
students that teaching evolution as the sole concept for the origin
of life and matter is not intended to influence or dissuade them
from forming their own opinions about the subject or from
maintaining beliefs taught by their parents.
In examining the disclaimer’s effect, the panel erred by not
considering the context in which the disclaimer was intended to be
used. In the parish schools, evolution is taught; the “Biblical
12
version of Creation” is not! How can the effect of the disclaimer
be to endorse or advance a concept that is merely mentioned, using
only four words, when evolution is the only concept for the origin
of life and matter that is included in the curriculum, the only one
that will be explained and discussed in any lesson following the
disclaimer’s being read?
Understood and considered in the context in which it is
intended to be used, the disclaimer expresses tolerance for the
views of all students. A student who adheres to the concept of
evolution and does not adhere to the Biblical version of creation
is taught evolution; told the curriculum is not meant to disparage
other concepts, including the Biblical version; and encouraged to
think critically. Likewise, a student who adheres to the Biblical
version and believes it to conflict with the concept of evolution
is taught evolution; told the curriculum is not meant to disparage
other concepts; and encouraged to think critically.
As I noted in Murray v. City of Austin, Tex., 947 F.2d 147,
158 (5th Cir. 1991) (inclusion of Christian cross in city insignia
held constitutional), cert. denied, 505 U.S. 1219 (1992), Justice
Goldberg, in School Dist. of Abington Township, Pa. v. Schempp, 374
U.S. 203 (1963), stated that “the measure of constitutional
adjudication is the ability and willingness to distinguish between
real threat and mere shadow”. Id. at 308 (Goldberg, J.,
concurring). The disclaimer, as did the city insignia in Murray,
casts a “mere shadow” near, instead of being a “threat” to, the
principles underlying the Establishment Clause. But, the panel has
13
transformed neutrality into intolerance. Accordingly, I
respectfully dissent from the denial of rehearing en banc.
14
Freiler v. Tangipahoa Parish
Combined Opinion