Alabama school-prayer ban challenged by attorney general

Friday, December 4, 1998

A national religious-rights advocacy group and the Alabama Attorney General argued yesterday before a federal appeals court to overturn portions of a district judge's ban on government-sponsored prayer in public schools.

Before a three-judge panel of the 11th U.S. Circuit Court of Appeals, attorneys for the American Center for Law and Justice, often called the legal arm of the Christian Coalition, and state Attorney General Bill Pryor urged the judges to vacate parts of an order issued last year by U.S. District Judge Ira DeMent.

DeMent's Oct. 29, 1997, order barred DeKalb County school officials from sponsoring religious activity in the classrooms. DeMent, a Republican appointed to the bench by former President George Bush, filed the order only months after he had ruled in Chandler v. James that a 1993 state law, which permitted government-sponsored prayer in the public schools, violated the establishment clause of the First Amendment.

After his initial ruling in Chandler, the state chapter of the American Civil Liberties Union asked him to order DeKalb County school officials to cease their support of the unconstitutional prayer law.

“The defendants … are permanently enjoined from aiding, abetting, commanding, counseling, inducing, ordering, procuring, or permitting school organized or officially sanctioned religious activity in the classrooms of DeKalb County schools,” DeMent wrote in his order.

In addition, DeMent enlisted a Birmingham attorney to monitor DeKalb County schools to ensure the order would be followed and religious-liberty experts from The Freedom Forum First Amendment Center to conduct in-service training for teachers and administrators.

DeMent's order, however, stated that students would still be permitted to express their religious beliefs voluntarily in many ways. According to the order, students are allowed to express their beliefs in school-related assignments, on their clothing, during commencement exercises — provided comments are brief and personal — and in after-school religious club meetings.

Shortly after the ruling, Alabama Gov. Fob James derided DeMent and the order and stated that the First Amendment did not apply to Alabama. James then encouraged DeKalb County teachers and administers to flout the federal judge's order. Although Pryor publicly distanced himself from James' comments, he nonetheless filed an appeal of the decision with the 11th Circuit.

Last week, DeKalb County's attorney Bob French told DeMent that students in the county's schools were abiding by the injunction. “It might be concluded that religious activities are at an all-time high in DeKalb County as a result of the interest created by the court order.”

Pryor and the ACLJ, however, maintain that DeMent's order went too far. At yesterday's hearing, Jay Sekulow, chief counsel for the group, argued that portions of the order imposed discriminatory restrictions upon the religious speech of students.

“Our chief concern is that the appeals court clear the way for students to participate in constitutionally protected speech,” Sekulow told the judges. “The order currently in place puts the school district in a posture of having to censor the religious speech of students.”

DeMent's 17-page order detailed the kinds of religious activity forbidden in the public schools.

Regarding the use of the school's intercom system, DeMent ruled that school officials were barred from allowing students and “nonschool” persons from delivering religious or devotional messages over the intercom. “This provision includes the delivery of daily announcements,” DeMent wrote. “No exception to this provision shall be permitted during times of perceived crisis or exigent circumstances.”

In their 40-page brief filed with the 11th Circuit, the ACLJ and Pryor argue that such passages in DeMent's order reflect a hostility toward religion.

“The district court's explicit forbidding of prayers, devotional messages, and scriptural readings 'during times of perceived crisis or exigent circumstances,' is positively cruel,” the ACLJ and Pryor state. “The harsh refusal to admit that human beings commonly (and) understandably turn to God in times of crisis, war, and tragedy appears to reflect, not measured justice, but a relentless extirpation of all contact between government and religion.”

Stuart Roth, director of the ACLJ's southeast regional offices, also participated in yesterday's 40-minute hearing before the federal judges. Roth said that he believed the judges were “responsive to our arguments,” and that based on federal jurisprudence the panel should find in the group's favor.

“This was a permanent injunction that acted as a prior restraint on one of the students' fundamental liberties in our democracy; the free-speech clause of the First Amendment,” Roth said.

Roth added that DeMent's ruling on graduation ceremonies was especially troubling. In that section, DeMent wrote that students were allowed to give a “brief personal expression” that contained “religious references during commencement exercises.”

Roth said such a statement discriminates against religious speech. “There is no such restriction on a student who gets up there and makes a nonreligious speech.”

Pamela Sumners, a Birmingham attorney who argued on behalf of the state ACLU at yesterday's hearing, scoffed at Roth's claim that several portions of DeMent's order should be vacated.

“The 11th Circuit has previously ruled that you can't come into court and accuse a judge who has acted to preserve the establishment clause of being hostile toward religion,” Sumners said. “I won't sit here and predict what a court is going to do, but I will tell you that if the 11th Circuit applies the law and looks at the facts — none of which the ACLJ or Pryor contested — that it would conclude that DeMent produced a proper injunction.”

Sumners said she conceded before the panel yesterday that one statement in DeMent's 4,000 word document might have been inappropriate and could be removed.

On page 4 of DeMent's order, he states that students are allowed to partake in religious activity during nonclass time “so long as it does not unduly call attention thereto and so long as it does not interfere with the rights of other students to freely pass thereby or to avoid its imposition upon themselves.”

Sumners said all other objections by Pryor and ACLJ were groundless.

“This has really been a huge waste of tax dollars by the attorney general,” Sumners said. “It is also wholly repugnant that the state would hire the Christian Coalition to help out.”