Douglas T. Smith v. Board of School Commissioners of Mobile County, Alabama State Board of Education, Its Members, and Wayne Teague, Alabama State Superintendent of Education, Douglas T. Smith v. Guy Hunt, Governor of Alabama, Malcolm Howell, Corinne Howell, William P. Rodgers, Lemoine v. Brennan, Thomas A. Brennan, Alan v. Galdis, Barbara J. Bassett, Betty Ann Barnett Gartman, William David Gartman, Elizabeth T. Long, Vernon Moore, Brenda C. Moore, Defendants-Intervenors

Appellants, Alabama State Board of Education and Wayne Teague ("Board") and Malcolm Howell, et al. ("Defendant-Intervenors") appeal the district court's order enjoining the use in Alabama public schools of forty-four textbooks approved by the Board for inclusion on the State-Adopted Textbook List, the use of which the district court found to be a violation of the establishment clause of the first amendment. We reverse.

This case is a continuation of the Alabama school prayer cases, Jaffree v. Board of School Comm'rs, 554 F.Supp. 1104 (S.D.Ala.1983), aff'd in part, rev'd in part sub nom. Jaffree v. Wallace, 705 F.2d 1526 (11th Cir.1983), cert. denied sub nom. Board of School Comm'rs v. Jaffree, 466 U.S. 926, 104 S.Ct. 1707, 80 L.Ed.2d 181 (1984); Jaffree v. James, 554 F.Supp. 1130 (S.D.Ala.1983), aff'd in part, rev'd in part sub nom. Jaffree v. Wallace, 705 F.2d 1526 (11th Cir.1983), aff'd, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985), 466 U.S. 924, 104 S.Ct. 1704, 80 L.Ed.2d 178 (1984). In May 1982, Ishmael Jaffree brought an action on behalf of three of his minor children pursuant to 42 U.S.C.A. Sec. 1983 against the Mobile County School Board, various school officials, and three teachers seeking, inter alia, a declaratory judgment that certain classroom prayer activities conducted in the Mobile public school system violated the establishment clause of the first amendment and an injunction against classroom prayer. By his second amended complaint, Jaffree added as defendants the Governor of Alabama and other state officials, including Appellant Board, and challenged three Alabama statutes relevant to the school prayer issue as violative of the establishment clause. Douglas T. Smith and others ("Appellees") filed a motion to intervene in the Jaffree action alleging that an injunction against religious activity in the public schools would violate their right to free exercise of religion, and the district court allowed them to intervene as defendants. Subsequently, Appellees filed a motion entitled "Request for Alternate Relief" in which Appellees requested that, if an injunction were granted in favor of Jaffree, that injunction be enforced "against the religions of secularism, humanism, evolution, materialism, agnosticism, atheism and others" or, alternatively, that Appellees be allowed to produce additional evidence showing that these religions had been established in the Alabama public schools.

The district court bifurcated the claims against the Mobile County and local defendants and the claims against state officials. The district court granted Jaffree's motion for a preliminary injunction against enforcement of two of the challenged statutes, Ala.Code Ann. Secs. 16-1-20.1 and 16-1-20.2, Jaffree v. James, 544 F.Supp. 727, 732 (S.D.Ala.1982), but determined after trial on the merits that Jaffree was not entitled to relief in either action because the Supreme Court of the United States had erred in holding that the establishment clause of the first amendment prohibits the states from establishing a religion. Jaffree v. Board of School Comm'rs, 554 F.Supp. 1104, 1128 (S.D.Ala.1983), aff'd in part, rev'd in part sub nom. Jaffree v. Wallace, 705 F.2d 1526 (11th Cir.1983), cert. denied sub nom. Board of School Comm'rs v. Jaffree, 466 U.S. 926, 104 S.Ct. 1707, 80 L.Ed.2d 181 (1984); Jaffree v. James, 554 F.Supp. 1130, 1132 (S.D.Ala.1983), aff'd in part, rev'd in part sub nom. Jaffree v. Wallace, 705 F.2d 1526 (11th Cir.1983), aff'd, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985), 466 U.S. 924, 104 S.Ct. 1704, 80 L.Ed.2d 178 (1984). The district court therefore dismissed Jaffree's complaint for failure to state a claim upon which relief could be granted. Id.; 554 F.Supp. at 1132.

This Court reversed, finding that both the school room prayer activities and sections 16-1-20.1 and 16-1-20.2 violated the establishment clause, and remanded the action to the district court with directions that the district court "award costs to appellant and forthwith issue and enforce an order enjoining the statutes and activities held in this opinion to be unconstitutional." Jaffree v. Wallace, 705 F.2d 1526, 1536-37 (11th Cir.1983), cert. denied in part sub nom. Board of School Comm'rs v. Jaffree, 466 U.S. 926, 104 S.Ct. 1707, 80 L.Ed.2d 181 (1984), aff'd in part, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985); 466 U.S. 924, 104 S.Ct. 1704, 80 L.Ed.2d 178 (1984). The Supreme Court denied certiorari with regard to the nonstatutory school prayer practices, Board of School Comm'rs v. Jaffree, 466 U.S. 926, 104 S.Ct. 1707, 80 L.Ed.2d 181 (1984), and affirmed this Court's decision with regard to the statutory provisions. Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985); Wallace v. Jaffree, 466 U.S. 924, 104 S.Ct. 1704, 80 L.Ed.2d 178 (1984).

In its opinion denying relief in Jaffree, the district court had stated that "[i]f the appellate courts disagree with this Court in its examination of history and conclusion of constitutional interpretation thereof, then this Court will look again at the record in this case and reach conclusions which it is not now forced to reach." Jaffree, 554 F.Supp. at 1129. In a footnote, the district court indicated that the issues not reached dealt with (1) the free speech rights of teachers and students who wished to pray in school and (2) the teaching of the religion of secular humanism in the schools. Id. at n. 41.1 On remand, the district court issued an order in response to Jaffree's request for attorney's fees, finding that the relief requested by Appellees had not been fully addressed in the prior decisions in the case and, therefore, remained for consideration by the district court on remand. The district court interpreted the position of the Appellees as that "if Christianity is not a permissible subject of the curriculum of the public schools, then neither is any other religion, and under the evidence introduced it is incumbent upon this Court to strike down those portions of the curriculum demonstrated to contain other religious teachings." For the purpose of considering this issue, the district court sua sponte realigned the parties by making Appellees parties plaintiff, consolidated the cases, and invited the parties to submit briefs in support of their positions and to petition the Court to reopen the record for the presentation of additional evidence. The district court stated that the original plaintiffs could withdraw, if they felt their position had been "fully justified," in which case the district court would consider the attorney's fees question, or could remain in the litigation, in which event the motion for attorney's fees would be denied as premature. The original plaintiffs did withdraw, and Appellees filed a position statement in which they asserted, inter alia, that the curriculum in the Mobile County School System unconstitutionally advanced the religion of Humanism and unconstitutionally inhibited Christianity, and that the exclusion from the curriculum of "the existence, history, contributions and role of Christianity in the United States and the world" violated their constitutional rights of equal protection, teacher and student free speech, the student's right to receive information, and teacher and student free exercise of religion.

The twelve Defendant-Intervenors, who are parents of children currently enrolled, or soon to be enrolled, in the Mobile County School System, filed a motion to intervene as defendants in the action, which was granted by the district court. The district court certified two plaintiff classes: Class A consisting of "all those persons adhering by belief and practice to a theistic religion, who are or will be teachers in the public schools of Alabama" and Class B consisting of "all those persons adhering by belief and practice to a theistic religion, who are Alabama taxpayers and who are or will be parents of children in the public schools of Alabama." Prior to trial, defendants Governor Wallace and the Mobile County Board of School Commissioners agreed to entry of a consent decree in favor of Appellees.

A bench trial was held October 6-22, 1986 with regard to Appellees' claims. Appellees' evidence focused on elementary and secondary school textbooks in the areas of history, social studies, and home economics, which were on the Alabama State Approved Textbook List, and which Appellees argued unconstitutionally established the religion of secular humanism. The district court found that use of forty-four of these textbooks violated the establishment clause of the first amendment, and permanently enjoined the use of the textbooks in the Alabama public schools. Smith v. Board of School Comm'rs, 655 F.Supp. 939, 988 (S.D.Ala.1987). This appeal followed.2II. DISCUSSION

The first amendment provides in pertinent part that "Congress shall make no law respecting an establishment of religion...." The district court found that secular humanism constitutes a religion within the meaning of the first amendment and that the forty-four textbooks at issue in this case both advanced that religion and inhibited theistic faiths in violation of the establishment clause. The Supreme Court has never established a comprehensive test for determining the "delicate question" of what constitutes a religious belief for purposes of the first amendment, and we need not attempt to do so in this case, for we find that, even assuming that secular humanism is a religion for purposes of the establishment clause, Appellees have failed to prove a violation of the establishment clause through the use in the Alabama public schools of the textbooks at issue in this case.

The religion clauses of the first amendment require that states "pursue a course of complete neutrality toward religion." Jaffree, 472 U.S. at 60, 105 S.Ct. at 2492; accord, School Dist. of Abington Township v. Schempp, 374 U.S. 203, 215, 83 S.Ct. 1560, 1567, 10 L.Ed.2d 844 (1963) ("The government is neutral, and, while protecting all, it prefers none, and it disparages none."). The establishment clause, however, has not been interpreted as requiring mechanical invalidation of all government conduct conferring benefit on or giving special recognition to religion, but rather has been seen as erecting a "blurred, indistinct and variable barrier depending on all the circumstances of a particular relationship." Lynch v. Donnelly, 465 U.S. 668, 678-79, 104 S.Ct. 1355, 1362, 79 L.Ed.2d 604 (1984) (citations omitted). The Supreme Court has developed three criteria to serve as guidelines in determining whether this barrier has been breached by challenged government action:

First, 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 v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971) (citations omitted).3 Governmental action violates the establishment clause if it fails to meet any of these three criteria. Stone v. Graham, 449 U.S. 39, 40-41, 101 S.Ct. 192, 193, 66 L.Ed.2d 199 (1980). Although the Supreme Court occasionally has decided establishment cases without utilizing the Lemon criteria, e.g., Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), the Supreme Court recently reaffirmed the vitality of the Lemon test, noting that the Court has "particularly relied on Lemon in every case involving the sensitive relationship between government and religion in the education of our children." Grand Rapids School District v. Ball, 473 U.S. 373, 383, 105 S.Ct. 3216, 3222, 87 L.Ed.2d 267 (1985).

In applying the Lemon test to a situation involving the public schools, the Court "must do so mindful of the particular concerns that arise in the context of public elementary and secondary schools." Edwards v. Aguillard, --- U.S. ----, ----, 107 S.Ct. 2573, 2577, 96 L.Ed.2d 510 (1987). This special context is one which requires a sensitivity on the part of the court to both the broad discretion given school boards in choosing the public school curriculum, which mandates that courts not intervene in the resolution of conflicts arising in the daily operation of school systems unless basic constitutional values are "directly and sharply implicate[d]," and the pervasive influence exercised by the public schools over the children who attend them, which makes scrupulous compliance with the establishment clause in the public schools particularly vital. Epperson v. Arkansas, 393 U.S. 97, 104-05, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968). As the Supreme Court recently explained:

States and local school boards are generally afforded considerable discretion in operating public schools. At the same time ... we have necessarily recognized that the discretion of the States and local school boards in matters of education must be exercised in a manner that comports with the transcendent imperatives of the First Amendment.

... Students [in the public schools] are impressionable and their attendance is involuntary. The State exerts great authority and coercive power through mandatory attendance requirements, and because of the students' emulation of teachers as role models and the children's susceptibility to peer pressure. Furthermore, "the public school is at once the symbol of our democracy and the most pervasive means for promoting our common destiny. In no activity of the State is it more vital to keep out divisive forces than in its schools."

Edwards, --- U.S. at ----, 107 S.Ct. at 2577-78 (citations omitted). For these reasons, the Court must be "particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools." Id. at 2577.

The parties agree that there is no question of a religious purpose or excessive government entanglement in this case and our review of the record confirms that conclusion. Our inquiry, therefore, must center on the second Lemon criterion: whether use of the challenged textbooks had the primary effect of either advancing or inhibiting religion.

"The effect prong [of the Lemon test] asks whether, irrespective of government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval." Jaffree, 472 U.S. at 56 n. 42, 105 S.Ct. at 2490 n. 42 (quoting Lynch, 465 U.S. at 690, 104 S.Ct. at 1368 (O'Connor, J., concurring)). If government identification with religion conveys such a message of government endorsement or disapproval of religion, then "a core purpose of the Establishment Clause is violated." Ball, 473 U.S. at 389, 105 S.Ct. at 3226. In determining the message conveyed by use of the textbooks in this case, we recognize that we must use "particular care" as "many of the citizens perceiving the governmental message are children in their formative years." Id. at 390, 105 S.Ct. at 3226.

The district court found that the home economics, history, and social studies textbooks both advanced secular humanism and inhibited theistic religion. Our review of the record in this case reveals that these conclusions were in error. As discussed below, use of the challenged textbooks has the primary effect of conveying information that is essentially neutral in its religious content to the school children who utilize the books; none of these books convey a message of governmental approval of secular humanism or governmental disapproval of theism.4

The district court found that the home economics textbooks required students to accept as true certain tenets of humanistic psychology, which the district court found to be "a manifestation of humanism." Smith, 655 F.Supp. at 987. In particular, the district court found that the books "imply strongly that a person uses the same process in deciding a moral issue that he uses in choosing one pair of shoes over another,"5 and teach that "the student must determine right and wrong based only on his own experience, feelings and [internal] values" and that "the validity of a moral choice is only to be decided by the student." Id. at 986.6 The district court stated that "[t]he emphasis and overall approach implies, and would cause any reasonable thinking student to infer, that the book is teaching that moral choices are just a matter of preferences, because, as the books say, 'you are the most important person in your life.' " Id. The district court stated that "[t]his highly relativistic and individualistic approach constitutes the promotion of a fundamental faith claim" that "assumes that self-actualization is the goal of every human being, that man has no supernatural attributes or component, that there are only temporal and physical consequences for man's actions, and that these results, alone, determine the morality of an action." Id. at 986-87. According to the district court, "[t]his belief strikes at the heart of many theistic religions' beliefs that certain actions are in and of themselves immoral, whatever the consequences, and that, in addition, actions will have extra-temporal consequences." Id. at 987 (emphasis in original). The district court stated that "some religious beliefs are so fundamental that the act of denying them will completely undermine that religion" and "[i]n addition, denial of that belief will result in the affirmance of a contrary belief and result in the establishment of an opposing religion." Id. (emphasis in original). It concluded that, while the state may teach certain moral values, such as that lying is wrong, "if, in so doing it advances a reason for the rule, the possible different reasons must be explained evenhandedly" and "the state may not promote one particular reason over another in the public schools." Id. (footnote omitted).

In order to violate the primary effect prong of the Lemon test through advancement of religion, it is not sufficient that the government action merely accommodates religion. The constitution "affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility towards any." Lynch, 465 U.S. at 672, 104 S.Ct. at 1358. Nor is it sufficient that government conduct confers an indirect, remote or incidental benefit on a religion, Ball, 473 U.S. at 393, 105 S.Ct. at 3228; accord, Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U.S. 756, 771, 93 S.Ct. 2955, 2965, 37 L.Ed.2d 948 (1973), or that its effect merely happens to coincide or harmonize with the tenets of a religion:

[T]he Establishment Clause does not ban federal or state regulation of conduct whose reason or effect merely happens to coincide or harmonize with the tenets of some or all religions. In many instances, the Congress or state legislatures conclude that the general welfare of society, wholly apart from any religious considerations, demands such regulation. Thus, for temporal purposes, murder is illegal. And the fact that this agrees with the dictates of the Judaeo-Christian religions while it may disagree with others does not invalidate the regulation. So too with the questions of adultery and polygamy. The same could be said of theft, fraud, etc., because those offenses were also proscribed in the Decalogue.

McGowan v. Maryland, 366 U.S. 420, 442, 81 S.Ct. 1101, 1113-14, 6 L.Ed.2d 393 (1961) (citations omitted); accord, Harris v. McRae, 448 U.S. 297, 319, 100 S.Ct. 2671, 2689, 65 L.Ed.2d 784 (1980); Lynch, 465 U.S. at 682, 104 S.Ct. at 1364. In order for government conduct to constitute an impermissible advancement of religion, the government action must amount to an endorsement of religion. Lynch, 465 U.S. at 681, 104 S.Ct. at 1363. Further, the primary effect of challenged government action must be determined in light of the overall context in which it occurs: "[f]ocus exclusively on the religious component of any activity would inevitably lead to its invalidation under the Establishment Clause." Id. at 679-80, 104 S.Ct. at 1362.

Examination of the contents of these textbooks, including the passages pointed out by Appellees as particularly offensive,7 in the context of the books as a whole and the undisputedly nonreligious purpose sought to be achieved by their use, reveals that the message conveyed is not one of endorsement of secular humanism or any religion. Rather, the message conveyed is one of a governmental attempt to instill in Alabama public school children such values as independent thought, tolerance of diverse views, self-respect, maturity, self-reliance and logical decision-making. This is an entirely appropriate secular effect. Indeed, one of the major objectives of public education is the "inculcat[ion of] fundamental values necessary to the maintenance of a democratic political system." Bethel School Dist. No. 403 v. Fraser, --- U.S. ----, 106 S.Ct. 3159, 3164, 92 L.Ed.2d 549 (1986) (quoting Ambach v. Norwick, 441 U.S. 68, 77, 99 S.Ct. 1589, 1594, 60 L.Ed.2d 49 (1979)) (brackets in original). It is true that the textbooks contain ideas that are consistent with secular humanism; the textbooks also contain ideas consistent with theistic religion. However, as discussed above, mere consistency with religious tenets is insufficient to constitute unconstitutional advancement of religion.

Nor do these textbooks evidence an attitude antagonistic to theistic belief. The message conveyed by these textbooks with regard to theistic religion is one of neutrality: the textbooks neither endorse theistic religion as a system of belief, nor discredit it. Indeed, many of the books specifically acknowledge that religion is one source of moral values8 and none preclude that possibility. While the Supreme Court has recognized that "the State may not establish a 'religion of secularism' in the sense of affirmatively opposing or showing hostility to religion, thus 'preferring those who believe in no religion over those who do believe,' " Abington, 374 U.S. at 225, 83 S.Ct. at 1573 (citation omitted), that Court also has made it clear that the neutrality mandated by the establishment clause does not itself equate with hostility towards religion. See e.g., id.; McCollum v. Board of Ed., 333 U.S. 203, 211-12, 68 S.Ct. 461, 465, 92 L.Ed. 649 (1948); Engle v. Vitale, 370 U.S. 421, 433-35, 82 S.Ct. 1261, 1268-6