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Ala. attorney general files brief targeting federal prayer injunction

MONTGOMERY, Ala. (BP)-A federal judge took steps “more drastic” than needed in an Alabama school prayer dispute, according to Alabama Attorney General Bill Pryor, who filed an appeal March 18 of federal Judge Ira DeMent’s actions.
Pryor’s brief, filed with the U.S. Court of Appeals for the Eleventh Circuit, contends that a permanent injunction issued Oct. 29 by DeMent, of the Montgomery-based U.S. District Court for middle Alabama, “suffers from two major flaws.”
First, the order “unconstitutionally restricts the religious expression of students” and other parties in DeKalb County, the county at issue, and, second, the order “improperly imposes a monitor upon the school system as an enforcement mechanism.”
According to a news release from Pryor’s office, his brief does not contest the district court’s findings concerning former practices in DeKalb County, but contends DeMent’s remedies create “new problems by violating the students’ constitutional guarantee of personal religious expression.”
In his brief, Pryor contended the district court erred “when it not only forbade official religious activities, but also ordered school officials to forbid private expressive activities, particularly student activities.” According to Pryor, the plaintiff in the case, Chandler v. James, did not contend, nor did the court find, that private religious expression had been a constitutional problem that should be controlled in DeKalb County. Thus, Pryor stated, DeMent overstepped his authority to impose an unnecessary and unconstitutional remedy.
“It would have been so much easier,” Pryor noted in his brief, “for the district court simply to state that student religious expression during noninstructional times was ‘subject to the same time, place, and manner restrictions imposed upon other student activity during noninstructional times.’ … and that ‘students and other nonschool speakers remain free to include religious contents and perspectives in their communications to the same intent that they remain free to include other (viewpoints) …'”
DeMent was also wrong to appoint a monitor to oversee compliance with his injunction, a step which is legally appropriate only in exceptional circumstances, according to the attorney general. A monitor is appropriate only if it has been demonstrated necessary — after actual defiance and refusal to comply with an order, Pryor argued, noting there was no evidence that the DeKalb County defendants had violated any injunction of the court. Rather, the injunction automatically came with an unwarranted monitor, Pryor said.
Pryor objected also to the “chilling effect (of) the monitor’s presence … . 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.”
Appointed to monitor DeMent’s injunction is Chriss Doss, a law professor at the Cumberland Law School of Samford University in Birmingham and director of the school’s Center for the Study of Law and the Church.
Earlier reports had indicated Oliver “Buzz” Thomas, special counsel for the National Council of Churches and former general counsel of the Baptist Joint Committee on Public Affairs, was the consensus choice as monitor, with ACLU attorney Pamela Sumners, who represented the plaintiff against the county school system, calling Thomas’ selection “more than likely.”
Thomas, who also serves as special counsel for the Freedom Forum First Amendment Center, Nashville, Tenn., nevertheless will be involved in the Alabama case, according to a report by the Baptist Joint Committee.
In the BJC’s Report from the Capital Newsletter Jan. 13, it was noted Thomas and Charles Haynes, the First Amendment Center’s scholar in residence, “will serve as trainers for Alabama school officials learning about religious expression in public schools” and “will also train monitors appointed to see that schools carry out (DeMent’s) injunction against school-sponsored religious activities … .”
According to the BJC newsletter’s Feb. 24 edition, Doss said school officials will have an opportunity to deal with situations first. “But in cases where I’m needed, I will step in,” he was quoted as saying.
According to the BJC newsletter, Doss said misleading statements in the media and by individuals have wrongly claimed that all prayer has been barred by the DeMent ruling. “Anybody who is really familiar with the history of these cases concerning school prayer – when they read the judge’s opinion with an open mind – will have to admit that he’s right on target,” Doss was quoted as saying. Doss also said education of school officials, parents and students will be key to implementing DeMent’s ruling.
Pryor, meanwhile, has enlisted Jay Sekulow, chief counsel of the American Center for Law and Justice, in appealing DeMent’s ruling. The ACLJ said its legal staff is providing its services free of charge.
A key concern, Sekulow noted, is that the appeals court protect “constitutionally protected student-led and student-initiated prayer at graduation. Under the current order, students are prohibited from mentioning God at their graduation ceremony.”
Pryor and Sekulow also contended that DeMent’s order stifles religious expression in the following areas:
— “Students may be allowed to select and read over the school public address system excerpts from secular literature, secular self-help or inspirational books and secular works expressing love, admiration or thanksgiving; however, students may not read excerpts from Scripture or other religious writings of the students’ own choosing.
— “Schools may allow representatives of Planned Parenthood, the National Rifle Association and Mothers Against Drunk Driving to enter classrooms and distribute literature or to leave pamphlets for student browsing at sites in the schools, but any other group or persons distributing religious materials are categorically barred.
— “The same ban on inviting audience participation would permit a student to invite joint recitation of the Pledge of Allegiance, a Robert Frost poem or a John Lennon song, but not a prayer or psalm.”
DeMent’s Oct. 29 injunction came eight months after he ruled a 1993 state law permitting prayer in school violated the establishment clause of the First Amendment, which protects against the state — including public schools — endorsing one religion over another, or religion over nonreligion.
Gov. Fob James’ promised Nov. 4 to fight DeMent’s injunction “by every legal and political means, with every ounce of strength I possess.”
DeMent’s DeKalb County injunction prohibits the governor, state attorney general and state board of education from enforcing the 1993 law and prohibits such practices as vocal prayer, Bible devotionals and Scripture readings specifically in DeKalb County schools. The injunction also bans school employees from distributing religious literature and other material in schools, on school grounds and at commencement ceremonies, and it bans use of school public address systems for delivering religious messages, according to a Religion News Service report.
In addition to the court battles, the judge’s injunction has spurred student protests, including a walkout by hundreds of students at Boaz (Ala.) High School Nov. 4 who formed a ring to pray — and made the pages of The New York Times for doing so. The newspaper also reported prayer protests by students from Albertville, Crossville, Sardis and Glencoe.
In striking down the state law, DeMent ruled certain religious activities in DeKalb County schools were outside the First Amendment provisions. Michael Chandler, the assistant principal at Valley Head High School who brought the original lawsuit, named praying during school assemblies, sporting events and other school-sponsored events, outside groups like the Gideons passing out Bibles during school hours and on campus and permitting religious clubs during instructional hours as some instances of constitutional violations.