Appeals court to reconsider decision barring clergy from Texas school program

Thursday, June 24, 1999

A Texas school district will get another chance to defend its besieged clergy-run counseling program before a federal appeals court.

In April a three-judge panel of the 5th U.S. Circuit Court of Appeals voted 2-1 to invalidate a Beaumont Independent School District policy of permitting clergy — overwhelmingly Protestant Christians — to enter the district’s schools and counsel groups of students. The majority of the panel concluded that the policy ran afoul of the establishment clause of the First Amendment.

Shortly after the ruling, attorneys for the Beaumont school district filed a petition asking the entire 5th Circuit to rehear the case.

On June 21, a majority of the 5th Circuit judges voted to review the panel decision.

Before the three-judge panel, the school district had argued that its clergy-counseling program did not advance religion because non-clergy volunteers were also permitted to counsel students, and that the discussion between students and clergy were of a secular nature.

Judge Jacques L. Wiener, writing for the majority, dismissed the school district’s supporting arguments as insincere and said the counseling program unconstitutionally entangled church and state and impermissibly brought religion into the public schools.

“The court has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools,” Wiener wrote. “Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family. Students in such institutions are impressionable and their attendance is involuntary.”

Dissenting from the panel’s majority, Judge Emillio M. Garza accused the majority of forcing the school district to treat religious counselors in a hostile manner.

“The majority’s decision puts BISD in a constitutionally untenable position,” Garza wrote. “The school district now finds itself bound to treat the clergy differently than all other groups desiring to join its volunteer program. But the establishment clause proscribes such discrimination.”

In their petition for rehearing, the school district’s attorneys said the panel decision was hostile toward religion and therefore must be overturned.

“It is one thing to ban religious practices in public schools,” Tanner Hunt and Melody G. Thomas, the school district’s attorneys, argued in their petition before the 5th Circuit. “It is quite another to enjoin, permanently and without exception, participation by a specific class of concerned local citizens in an important secular aspect of public school life: that of bringing to students positive role models who can help them address and cope with the critical ethical and moral dilemmas faced by young people in these troubled times.”