JOHNSON, Circuit Judge:
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.
A. Procedural History
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. § 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. §§ 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
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.
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.
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:
Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971) (citations omitted).
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
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.
A. Home Economics Textbooks
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
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:
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,
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 values
It is obvious that Appellees find some of the material in these textbooks offensive. That fact, however, is not sufficient to render use of this material in the public schools a violation of the establishment clause. See Epperson, 393 U.S. at 107, 89 S.Ct. at 272 (quoting Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 505, 72 S.Ct. 777, 782, 96 L.Ed. 1098 (1952)) ("The state has no legitimate interest in protecting any or all religions from views distasteful to them.").
B. History and Social Studies Textbooks
The district court's conclusion that the history and social studies textbooks violated the establishment clause was based on its finding that these books failed to include a sufficient discussion of the role of religion in history and culture. The district court found that the history books omit certain historical events with religious significance and "uniformly ignore the religious aspect of most American culture." Smith, 655 F.Supp. at 985. The district court found that "[r]eligion, where treated at all, is generally represented as a private matter, only influencing American public life at some extraordinary moments," and that "[t]his view of religion is one humanists have been seeking to instill for fifty years." Id. The district court concluded that the history books "assist that effort by perpetuating an inaccurate historical picture" and held that the books "lack so many facts as to equal ideological promotion." Id. The district court also found that the history books "discriminate against the very concept of religion, and theistic religions in particular, by omissions so serious that a student learning history from them would not be apprised of relevant facts about America's history." Id. Use of the social studies books was found unconstitutional because the books failed to integrate religion into the history of American society, ignored the importance of theistic religion as an influence in American society and contained "factual inaccuracies ... so grave as to rise to a constitutional violation." Id. at 985-86.
It is clear on the record of this case that, assuming one tenet of secular humanism is to downplay the importance of religion in history and in American society, any benefit to secular humanism from the failure of the challenged history and social studies books to contain references to the religious aspects of certain historical events or to adequately integrate the place of religion in modern American society is merely incidental. There is no doubt that these textbooks were chosen for the secular purpose of education in the areas of history and social studies, and we find that the primary effect of the use of these textbooks is consistent with that stated purpose. We do not believe that an objective observer could conclude from the mere omission of certain historical facts regarding religion or the absence of a more thorough discussion of its place in modern American society that the State of Alabama was conveying a message of approval of the religion of secular humanism. Indeed, the message that reasonably would be conveyed to students and others is that the education officials,
Nor can we agree with the district court's conclusion that the omission of these facts causes the books to "discriminate against the very concept of religion." Smith, 655 F.Supp. at 985. Just as use of these books does not convey a message of governmental approval of secular humanism, neither does it convey a message of government disapproval of theistic religions merely by omitting certain historical facts concerning them.
The district court's reliance on Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968), to support its conclusion that omission of certain material regarding religion in this case constituted a first amendment violation is misplaced. Epperson involved an Arkansas statute that made it a crime to teach the theory of evolution in the public schools. Id. at 98, 89 S.Ct. at 266. The Supreme Court found that the law violated the establishment clause under the purpose prong of the Lemon test: the state forbade the teaching of evolution because it conflicted with a particular religious doctrine. 393 U.S. at 103, 89 S.Ct. at 269. The Court stated that "the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma." Id. at 106, 89 S.Ct. at 271. Thus, "[t]he State's undoubted right to prescribe the curriculum for its public schools does not carry with it the right to prohibit, on pain of criminal penalty, the teaching of a scientific theory or doctrine where that prohibition is based upon reasons that violate the First Amendment." Id. at 107, 89 S.Ct. at 272 (emphasis added).
There is no question in this case that the purpose behind using these particular history and social studies books was purely secular. Selecting a textbook that omits a particular topic for nonreligious reasons is significantly different from requiring the omission of material because it conflicts with a particular religious belief.
The home economics, social studies, and history textbooks at issue in this case do not violate the establishment clause of the first amendment. The district court's conclusions to the contrary reflect a misconception of the relationship between church and state mandated by the establishment clause. What is required of the states under the establishment clause is not "comprehensive identification of state with religion," but separation from religion. McCollum, 333 U.S. at 210 n. 6, 68 S.Ct. at 465 n. 6 (quoting Everson v. Board of Ed., 330 U.S. 1, 60, 67 S.Ct. 504, 533, 91 L.Ed. 711 (1947) (Rutledge, J., dissenting)). Yet implicit in the district court's opinion is the assumption that what the establishment clause actually requires is "equal time" for religion. Thus, the district court states that, while the state may teach certain moral values, it cannot advance any reason for those values unless "the possible different reasons [are] explained evenhandedly," Smith, 655 F.Supp. at 987, and finds that history may not be taught constitutionally in the schools unless the textbooks contain more references to the place of religion in history.
"Separation is a requirement to abstain from fusing functions of Government and religious sects, not merely to treat them all equally." McCollum, 333 U.S. at 227, 68 S.Ct. at 473 (Frankfurter, J., concurring), quoted in Abington, 374 U.S. at 219, 83 S.Ct. at 1570. The public schools in this country are organized
Abington, 374 U.S. at 218, 83 S.Ct. at 1569 (quoting Everson, 330 U.S. at 23-24, 67 S.Ct. at 515 (Jackson, J., dissenting)). The district court's opinion in effect turns the establishment clause requirement of "lofty neutrality" on the part of the public schools into an affirmative obligation to speak about religion. Such a result clearly is inconsistent with the requirements of the establishment clause.
The judgment of the district court is REVERSED and the case is REMANDED for the sole purpose of entry by the district court of an order dissolving the injunction and terminating this litigation.
REVERSED and REMANDED WITH DIRECTIONS.
Jaffree, 554 F.Supp. at 1129 n. 41. The district court had expressed similar views on the merits of this issue in its earlier opinion granting a preliminary injunction, which was issued before Appellees had filed their "Request for Alternate Relief":
Jaffree, 544 F.Supp. at 732. In that opinion, the district court stated that "[i]t is common knowledge that miscellaneous doctrines such as evolution, socialism, communism, secularism, humanism, and other concepts are advanced in the public schools." Id. at n. 2.
Briefs of amicus curiae urging affirmance of the district court were filed by the following organizations: Ad Hoc Committee to Oppose the Establishment of Humanism; Catholic League for Religious and Civil Rights; Christian Legal Society; Committee on the American Founding; Rabbinical Alliance of America; Southern Center for Law & Ethics; and Association for Public Justice.
McCollum v. Board of Ed., 333 U.S. 203, 235, 68 S.Ct. 461, 477, 92 L.Ed. 649 (1948) (Jackson, J., concurring).