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.,

(holding

unconstitutional, inter alia, student-led prayers before football

games), reh’g denied,

(5th Cir.), cert. granted, ___

U.S. ___,

(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.,

, reh’g granted,

(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.,

(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.

.

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,

(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”.

.

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”.

. The panel

concluded that the second and third purposes were permissible

secular objectives.

.

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”.

. 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”.

(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,

(1971). Freiler,

. 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,

(1989)): its principal or primary effect impermissibly advances

religion. Freiler,

.

7 As our court stated in Doe v. Duncanville Indep. Sch. Dist.,

, 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,

. 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.

.

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”.

. 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.,

(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,

. (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”.

.

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.,

(5th Cir. 1991) (inclusion of Christian cross in city insignia

held constitutional), cert. denied,

(1992), Justice

Goldberg, in School Dist. of Abington Township, Pa. v. Schempp,

(1963), stated that “the measure of constitutional

adjudication is the ability and willingness to distinguish between

real threat and mere shadow”.

(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