Appeals court strikes down school policy of inviting clergy to counsel students

Thursday, April 29, 1999

A federal appeals court has found that a clergy-run counseling program in a Texas public school district is unconstitutional because the program had the primary effect of advancing and endorsing religion in the public schools.

In 1996, the superintendent of the Beaumont Independent School District instituted a “Clergy in the Schools” program. Clergy — overwhelmingly Protestant Christians — were invited to enter the schools and counsel groups of students. Shortly after the program began, seven Beaumont district students and some parents filed a federal lawsuit against the school district, claiming the program subverted the establishment clause of the First Amendment. A federal district court ruled in favor of the school district.

In mid-April, a three-judge panel of the 5th U.S. Circuit Court of Appeals ruled 2-1 to invalidate the district court opinion.

Judge Jacques L. Wiener, writing for the majority, said that the counseling program failed all constitutional tests created by the U.S. Supreme Court to determine when a government action subverts the establishment clause.

Wiener first concluded that the school district had no secular reason for instituting the clergy-run program. The district had argued that the program had secular purposes, such as fostering values and civic morals in students, exposing clergy to issues of today's students, and providing “a safe school atmosphere.”

Wiener termed the school district's claims “feckless,” citing a speech in favor of school prayer by the superintendent and a pamphlet created by the school district called “Reasons for a School-Church Alliance,” which was given to the clergy. The tract cited benefits to children who regularly attend churches and religious schools and concluded with the message: “A strong religious base enhances education for socioeconomically disadvantaged children!”

The pamphlet and the superintendent's comments “constitute strong evidence that BISD's (Beaumont Independent School District) purpose in confecting, shepherding, and implementing the Program was to promote and endorse religion,” Wiener wrote.

He also said the “primary effect” of the counseling program was to advance religion, despite claims by the school district that the program would only advance “religion-neutral, secular dialogue between clergymen and students.”

“A governmental measure advances religion over irreligion when it gives a preferential, exceptional benefit to religion that it does not extend to anything else,” wrote Wiener. “This is precisely what BISD has done here. A student who is plucked from his or her classroom, escorted to another part of the school, and addressed by a homogenous group of adults on matters of morality and civic virtue, while two school administrators look on approvingly or join in the activity, will undoubtedly be impressed with the prestige and importance of those adults. Under BISD's program, the only faces that the selected students will see at the head of the class will be those of the clergy volunteers. BISD cannot, consistent with the Establishment Clause, wield its power over its students to grant such a preferential access to representatives of established religion.”

Finally, Wiener wrote that the program unconstitutionally entangled school officials with organized religion, coerced students into attending the counseling sessions and endorsed the religious beliefs of the clergy.

“Under this program, BISD administrators select students for immediate participation without notifying their parents, much less obtaining parental consent,” Wiener wrote. “A selected student who does not wish to participate is placed in the untenable position of having to choose either to attend a session he truly wants to avoid or to decline the 'invitation' and thereby risk actual or perceived opprobrium and ostracism from BISD administrators and faculty, not to mention from his peers. This affords the student no real choice, just a 'Hobson's Choice' — either to participate in the Program against his wishes or decline at the risk of becoming a pariah.”

Americans United for Separation of Church and State, a nonprofit group based in Washington, D.C., that had filed a friend-of-the-court brief in support of the seven Beaumont students, lauded the 5th Circuit ruling.

“We pointed out early on that the Beaumont school officials apparently designed the most unconstitutional program they could,” Rob Boston, assistant communications director for the group, said. “I was surprised that in this day and age a federal district court could have approved of the program, which was structured in such a way as to be patently unconstitutional. I believe any further appeals of this decision would be fruitless.”

Tanner Hunt and Melody Thomas, attorneys for the Beaumont Independent School District, however, said they thought an appeal was called for and would file a brief with the appeals court by tomorrow. Specifically, the attorneys said they would ask the entire 5th Circuit to reconsider the case.

“This decision effectively bars clergymen from voluntary participation in public schools nationwide,” Hunt said. “The school district has a number of other citizens who are not clergy that have gotten involved in counseling young people, such as doctors, lawyers and retired people from all walks of life. But according to this majority opinion, the school district cannot have clergy — it discriminates against clergy.”

Hunt also questioned the 5th Circuit's characterization of the counseling program as one that coerced students into participation. “The majority got it all wrong — a great deal of care had been taken by school officials to protect the confidentiality of students” in the counseling program, he said.