Alabama attorney general appeals school-prayer order

Monday, March 23, 1998

In the ongoing battle over religious expression in Alabama public schools, the state's attorney general has asked a federal appeals court to invalidate parts of a district judge's injunction against school-sponsored religious expression.

State Attorney General Bill Pryor late last week filed an appeal with the U.S. Court of Appeals for the 11th Circuit arguing that an injunction issued last year against DeKalb County schools “unconstitutionally restricts the religious expression of students and other private nonparties…” and “improperly imposes a monitor upon the school system as an enforcement mechanism.”

Judge Ira DeMent issued a permanent injunction in October 1997 ordering DeKalb County school officials to cease sanctioning all manner of student religious expression. The attorney general states in a 40-page appeal that DeMent's order goes well beyond constitutional bounds and ends up discriminating against and chilling religious expression in the public schools.

“For example, students may chant popular secular songs or do physical exercises during noninstructional times even if they are noisy, attract attention, and bother other students, so long as they observe all relevant time, place and manner regulations,” Pryor said in his appeal.

“However, students may not recite prayers or hymns or engage in religious activities unless they are done 'quietly,' do not 'unduly call attention' to themselves, and do not 'interfere' with other students' ability to 'avoid … imposition' of religious activities.”

Pryor's appeal also claims the court-appointed monitor subverts free-speech rights of students. “The protection of religious speech is undermined when students, under the watchful eye of a monitor, are subjected to the anxiety and fear that their religious speech may bring legal repercussions. … A monitor patrolling classrooms, offices, sporting events and other school functions for any improper religious expression will surely intimidate students out of engaging in permissible religious expression,” Pryor said.

DeMent's permanent injunction was prompted by a lawsuit filed by Michael Chandler, an assistant high school principal in DeKalb County who challenged the constitutionality of a 1993 state school-prayer bill. In 1996, DeMent found the law unconstitutional as a violation of separation of church and state because it allowed for school-sponsored religious activities. DeKalb County school officials, however, did not cease supporting and encouraging student religious expression during all hours of the school day.

DeMent responded to the state's noncompliance by issuing the order permanently enjoining “religious activity in class, including vocal prayer, Bible and religious devotional or scriptural readings, distribution or religious materials, texts or announcements, and discussions of devotional/inspirational nature, regardless of whether it was initiated by students.” DeMent's order also called for court-approved monitor to make sure DeKalb County teachers and administrators abide by the injunction.

DeMent's order, however, noted that students would still be able to voluntarily express their religious beliefs in many ways. According to the order, students are allowed to express their beliefs in school-related assignments, on their clothing, during commencement exercises and during non-curricular religious club meetings.

Pamela Sumners, a Birmingham attorney representing Chandler, said that Pryor's appeal is “disingenuous” to suggest that student religious speech is subverted by DeMent's order.

“The public schools are not public forums in the traditional meaning,” Sumners said. “The federal courts and the U.S. Supreme Court have clearly said that school officials contain a high degree of control over school-sponsored situations, like graduation ceremonies. From a constitutional perspective, there is no difference between school officials performing the unconstitutional acts and school children performing them.”

Sumners said DeKalb County schools deserve to be monitored.

“After DeMent's ruling that the state school prayer law was unconstitutional, DeKalb County officials continued to permit prayer at graduation, over the loudspeaker at football games,” she said. “The school officials' conduct has earned them a monitor. The only way that a monitor is not justifiable is if we wish for our courts to continue writing advisory opinions. DeKalb County has proven they cannot be trusted.”

The American Center for Law and Justice, a national legal and educational group dedicated to religious liberty issues, continues to assist Pryor in the appeal.

Jay Sekulow, chief counsel for the ACLJ, said DeMent's order is “seriously flawed.”

“Our concern is that the court clear the way for students to participate in constitutionally protected student-led and student-initiated prayer at graduation,” Sekulow said.