May v. Cooperman , 780 F.2d 240 ( 1985 )

OPINION OF THE COURT

GIBBONS, Circuit Judge.

This appeal by the New Jersey Senate and Assembly as intervening defendants seeks to overturn a declaratory judgment of the district court that N.J.S.A. 18A:36-4 (West 1984-1985) violates the establishment clause of the first amendment. The intervening defendants also appeal from a declaratory judgment that plaintiffs are entitled to counsel fees on the authority of 42 U.S.C. § 1988 (1982). The. appeal requires that we assess the impact on the district court’s ruling of the subsequent decision of the Supreme Court in Wallace v. Jaffree, — U.S.-, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985). We affirm the declaratory judgment that the statute is unconstitutional, but dismiss the appeal from the declaratory judgment on fees.

I.

The challenged statute, passed by the New Jersey Legislature over the Governor’s veto on December 16, 1983, provides,

Principals and teachers in each public elementary and secondary school of each school district in this State shall permit students to observe a 1 minute period of silence to be used solely at the discretion of the individual student, before opening exercises of each school day for quiet and private contemplation or introspection.

N.J.S.A. 18A:36-4. Shortly after its passage, on January 10, 1983, several public school pupils, several parents of public school pupils, and one public school teacher filed a verified complaint seeking a declaration that N.J.S.A. 18A:36-4 is unconstitutional, on its face and as applied, and an injunction prohibiting the defendants from implementing it. The named defendants are Saul Cooperman, Commissioner of New Jersey’s Department of Education, the Edison Township Board of Education, and the Old Bridge Township Board of Education. Cooperman was joined because he allegedly is charged with implementing, enforcing, and promulgating N.J.S.A. 18A:36-4. See N.J.S.A. 18A:4-23 (West 1968) (“The Commissioner shall have supervision of all schools of the state receiving support or aid from state appropriations____”). The two Boards of Education were joined because the schools operated by them allegedly took steps to implement the statute.

On the day the complaint was filed the district court issued a temporary restraining order enjoining the defendants from enforcing N.J.S.A. 18A:36-4. Thereafter it became known that the New Jersey Attorney General, who under New Jersey law would normally be responsible for defending Commissioner Cooperman, would not defend the constitutionality of the Act. On January 14, 1983 the temporary restraining order was modified so as to direct the Commissioner of Education

to notify the school districts of the State of New Jersey ... that this Court has made an initial determination that P.L. 1982, Ch. 205 [N.J.S.A. 18A:36-4] is unconstitutional and that a temporary restraint has been issued restraining any further enforcement of that provision by defendants and that pursuant to the further Order of this Court the local school districts of the State of New Jersey, their officers, agents, servants, and employees and successors are to immediately cease any further enforcement of P.L. 1982, Ch. 205, pending a hearing for a Preliminary Injunction.

Joint Appendix 56-57. By the time the January 14, 1983 order had been entered the court was aware that, while the Attorney General would not defend the legislation, the President of the New Jersey Senate, the Speaker of the New Jersey General Assembly, the Senate, and the General Assembly (legislators) sought to intervene for that purpose. Those applicants for intervention consented to the January 14, 1983 modification of the temporary restraining order, although it is not clear why they had any authority to consent to an order purporting to bind nonparty school districts. On January 18,1983 the legislators’ motion to intervene was granted. They and the named defendants on the same day consented to the entry of an order enjoining enforcement of N.J.S.A. 18A:36-4 until the further order of the court.

Thereafter the Attorney General filed on behalf of the Commissioner of Education an answer in which he denied that he had implemented, or was charged with the duty of implementing, enforcing, or promulgating N.J.S.A. 18A:36-4. The answer also pleaded that the plaintiffs had not been deprived of any rights, privileges, or immunities secured to them by the United States or the New Jersey Constitutions. Thus the Attorney General’s answer appears to put in issue the question whether the Commissioner is an appropriate defendant and also the question whether N.J.S.A. 18A:36-4 is unconstitutional. The Attorney General did not, however, take any further steps in defense of the merits of the complaint.

The School District of Old Bridge Township also filed an answer, in which it admitted instituting, pursuant to N.J.S.A. 18A:36-4, the practice of observing a moment of silence. Edison Township School District apparently defaulted. Neither it nor Old Bridge Township School District took any further active role in the litigation.

The answer of the intervening legislators, in contrast with that of the Commissioner of Education, admitted that the Commissioner was charged with the duty of implementing, enforcing, and promulgating N.J.S.A. 18A:36-4. The legislators also defended the constitutionality of the legislation through final hearing, which commenced on September 15, 1983. Prior to the final hearing the district court resolved several disputes over discovery, to which further reference is made below.

The district court made findings of fact and conclusions of law in support of a final judgment, dated November 10, 1983 “that New Jersey P.L.1982, Ch. 205 is unconstitutional on its face and as applied, and that judgment is granted in favor of the plaintiffs herein.” Joint Appendix 272. The final judgment contains no injunction. The preliminary injunction presumably terminated upon the entry of the final judgment. Thus we review only a declaratory judgment.

When the declaratory judgment was entered the district court ruled initially that the plaintiffs were not entitled to attorney’s fees and costs pursuant to 42 U.S.C. § 1988 (1982). See May v. Cooperman, 572 F.Supp. 1561, 1576 (D.N.J.1983). Thereafter plaintiffs moved for reconsideration of their fee application. On January 26, 1984, 578 F.Supp. 1308, the court ordered that the November 10, 1983 order be amended to award counsel fees and costs as against the .legislators intervenors- only. Joint Appendix 299. The January 26 order directed plaintiffs’ counsel to submit an affidavit of services and costs. Id. The intervening legislators filed a notice of appeal from the January 26, 1984 order, seeking a reversal both of the declaratory judgment that N.J.S.A. 18A:36-4 is unconstitutional and of the declaratory judgment that the plaintiffs are entitled to a fee award. At the time of the notice of appeal, however, the district court had not determined the amount of fees and costs to be awarded.¹

II.

Because N.J.S.A. 18A:36-4 became law shortly before the public schools of New Jersey recessed for the traditional Christmas holiday, and because its implementation was enjoined pendente lite shortly after that recess ended, there was little available evidence of the actual operation of the Act. The Commissioner of Education took no steps to construe it or in any way to implement it. The two named defendant school districts took certain steps to implement the Act, some of which are discussed hereafter, but neither the New Jersey Department of Education nor the New Jersey courts have addressed the question whether the steps taken by those-school districts are consistent with the Act. The Act contains no enforcement mechanism of its own. It may fall within the purview of N.J.S.A. 18A:6-9 (West 1968), which provides, “The Commissioner shall have jurisdiction to hear and determine, without cost to the parties, all controversies and disputes arising under the school laws____” So far as the record discloses, no controversies or disputes over this Act have been presented to the Commissioner.²

The arid circumstances in which the case was litigated is of some significance because of the rather ambiguous statutory language, which provides,

Principals and teachers ... shall permit students to observe a 1 minute period of silence to be used solely at the discretion of the individual student ... for quiet and private contemplation or introspec-tion____

N.J.S.A. 18A:36-4. If the Act said “shall not permit students to observe a period of silence,” its meaning would be straight forward, and we would probably be discussing a free exercise claim rather than an establishment claim.³ If the Act said “shall require students to observe a period of silence,” its meaning would be equally straightforward, and the focus of the free exercise claim commensurately narrower. The “shall permit” language on its face does not inform us what role the legislature intended for principals and teachers. One possible interpretation is that the legislature intended to compel teachers to require that all pupils engage in a silent moment. Another is that if some pupils desire to remain silent teachers will require that other pupils accommodate their conduct so as not to disturb the silent ones. A third is that teachers should merely permit those pupils desiring to remain silent for a minute at the beginning of the school day to do so, while other pupils go about their business.

The district court’s opinion appears to proceed on the assumption that the Act should be construed in the first manner; that is, that it directs that all pupils be required to engage in a silent moment.⁴ Because the Attorney General did not participate on behalf of the Commissioner of Education, we have no way of knowing how New Jersey education officials at the state level would construe the statute.

To some extent, the intervenor legislators lent support to the district court’s apparent interpretation that the Act means “shall require” rather than “shall permit.” Their defense of the Act suggested that it had the secular purpose of providing a calm transition from nonschool life to school work. Obviously, the calm transition explanation would be plausible only if the minute of silence were mandated for all pupils. The district court rejected this posited secular purpose as an after-the-fact rationalization and a pretext. The court nevertheless assumed that the Act mandated a compulsory moment of silence for all pupils.

Our puzzlement over the district court’s apparent interpretation of the “shall permit” language is not lessened by a review of previous efforts in New Jersey to deal with the subject of school prayer and moments of silence. Plainly the legislators most interested in the two subjects were quite aware of the difference between a statute requiring student participation in a moment of silence and one merely permitting students desiring to do so to observe such a moment. In 1968, 1969, and 1970 the legislature passed bills that, in contrast with N.J.S.A. 18A:36-4, provided,

In each public school classroom, the teacher in charge may, or if so authorized or directed by the board of education by which he is employed, shall, at the opening of the school upon every school day, conduct a brief period of silent prayer or meditation with the participation of all pupils therein assembled.

A. 640 (1968) (emphasis supplied): A. 146 (1969); A. 597 (1970). Each of these enactments was vetoed by Governors Hughes and Cahill, who were in office at the respective times of enactment. Governor William Cahill in his veto message returning Assembly Bill No. 597 to the legislature observed, “Insofar as the bill provides for a brief period of meditation, it is unnecessary since there is presently no provision of law which prohibits individual teachers or school authorities from holding moments of silence in the classroom.” Some school districts, the evidence discloses, did in fact hold moments of silence in the classroom before the vetoed bills were passed.⁵

Despite vetoes by two successive governors, a bill identical to that quoted above was pre-filed in the 1972 legislative session. A. 133 (1972). In 1974 a bill was introduced that initially substituted the word “may” for “shall” conduct, which apparently would have made the exercise optional with teachers, but not with pupils. A. 373 (1974). It was amended in committee to restore the word “shall”. Assembly Committee Amendments to A. 373. In 1976 a bill identical to that vetoed by Governors Hughes and Cahill was pre-filed. A. 648 (1976). That same year another bill was introduced similar in language to Assembly Bill No. 648, except that it provided that if the local school district authorizes it a teacher “may” rather than “shall” conduct a moment of silence. A. 2159 (1976). Assembly Bill No. 648 was amended in committee to read, “In each public school classroom, the teacher shall at the opening of school upon every school day, conduct a period of silent meditation with the participation of all the pupils therein assembled.” Thus as amended, the 1976 version of Assembly Bill No. 648 would have removed any local school board option and made mandatory the participation of all pupils in a moment of silence. The statement of the Assembly Education Committee to Assembly Bill No. 648 indicates that the amended version was modeled upon Mass.Gen.Laws Ann., Ch. 71, § 1A (West 1982) which was held to be constitutional in Gaines v. Anderson, 421 F.Supp. 337 (D.Mass.1976) (three judge district court). The Gaines v. Anderson court reasoned that when Massachusetts legislature struck the word “prayer” from the bill that became law and substituted the word “meditation,” it “demonstrated awareness of the distinction between these two words and an intention to further secular purposes without infringing the values protected by the Establishment Clause.” Id. at 342. The Massachusetts law is mandatory, and the Assembly Committee’s reference to it presumably conveys the intention of accomplishing a mandatory silent moment that would be recognized as having a secular purpose. The legislature’s awareness of the distinction between mandatory and permissive legislation on the subject in issue is confirmed by the Report of the Senate Education Committee on Assembly Bill No. 648 and Senate Bill No. 3042. The report notes, “Assembly Bill No. 648 is a modification of proposals introduced m previous sessions and requires rather than permits a brief period of silent meditation. Senate Bill No. 3024 would make it optional with the local districts.” The report refers to similar legislation in Connecticut, Public Act No. 74-367, § 2, Pennsylvania, 24 P.S. § 15-1516.1, and Massachusetts, Mass.Gen. Laws Ann., Ch. 71 § 1A. Bill No. 648 as amended was passed, but vetoed by Governor Byrne.

Bills that would make pupil participation mandatory were introduced in subsequent legislatures. E.g. A. 1028 (1980) (local option); A.342 (1980) (all school districts); A.2197 (1981) (local option; amended by Senate to require moment of silence in all school districts. Assembly Bill 2197 was passed but it, too, was vetoed).

After 1976 the moment of silence bills all omitted specific reference to prayer. The Bill that became law in 1982 also omitted any specific reference to prayer. In Assembly Bill No. 1064, introduced on March 8, 1982, however, the supporters of a moment of silence changed their proposal significantly. The caption and enacting clause read,

An Act to allow students of public schools to participate in a 1 minute period of silence before the opening of each school day and supplementing Chapter 36 of Title 18A of the New Jersey Statutes.

Be it enacted by the Senate and General Assembly of the State of New Jersey.

1. Principals and teachers in each public elementary and secondary school district in this state shall permit students to observe a 1 minute period of silence to be used solely at the discretion of the individual student, before the opening exercises of each school day for quiet and private contemplation or introspection.

2. This Act shall take effect immediately.

A. 1064 (1982) (emphasis supplied). This Bill was referred to the Senate and Assembly Education Committees, which filed identical reports as follows:

Assembly Bill No. 1064 requires all principals and teachers in the public elementary and secondary schools of New Jersey to permit students to observe one minute of silence before the opening exercises of each school day. The bill provides that the one minute of silence is to be used solely at the discretion of the individual student for quiet contemplation or introspection.

A statute similar to that proposed in Assembly Bill No. 1064 was enacted in Massachusetts and has been upheld by the United States District Court of Massachusetts. (Civil Action No. 76-435-M, September 1, 1976).

Statements of Senate and Assembly Education Committees to A. 1064. This Bill is consistent with prior legislative efforts to eliminate the local school district option. It is inconsistent with prior legislative efforts, in that all prior moment of silence proposals mandated the participation of all students.

The New Jersey Legislature does not preserve a transcription of its committee hearings or floor debates. Several witnesses who attended hearings of the Senate or house Education Committee and floor discussion on the Bill testified about what transpired in those proceedings. None of these witnesses referred to anything that took place during the proceedings that would lend support to a reading of the proposed law as mandating student participation.⁶ Indeed the only relevant remark to which any witness referred was Marianne Rhode’s quotation of Senator Ewing: “Why shouldn’t this be allowed? Why not give students the opportunity?” Trial transcript, Sept. 14, 1983, p. 231. There is, so far as we have been able to discover, no other legislative history bearing on the proper interpretation of N.J.S.A. 18A:36-4.

Given the legislature’s fairly clear understanding of the difference between legislation mandating a certain action and legislation permitting it, the statement of purpose in Assembly Bill 1064, the wording of the Education Committee reports on that Bill, and the absence of any legislative history suggesting that the Bill means other than what it says, we conclude that the challenged law is, insofar as student participation is concerned, permissive only.

Although our reading of N.J.S.A. 18A:36-4 is significant in determining the validity of the Act, it does not change the nature of constitutional analysis to be applied. Viewing N.J.S.A. 18A:36-4 as an accommodation statute broadens the issue, but because the state legislators chose to act the statute must still be evaluated as an establishment clause case, and not a free exercise statute. See Thornton v. Caldor, Inc., — U.S.-, 105 S.Ct. 2914, 86 L.Ed.2d 557 (1985) (analyzing a state statute that provided private sector employees with the right not to work on their Sabbath under the establishment clause). Thus the issue presented by this appeal is whether a state may direct school principals and teachers to permit pupils desiring to do so to observe a moment of silence at the beginning of the school day.

III.

The Supreme Court has conceded that the principles embodied in the establishment clause of the first amendment have proven difficult to apply. See Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 1370, 79 L.Ed.2d 604 (1984) (Brennan, J., dissenting). Faced with this difficult application, the Court has sought guidance by analyzing establishment clause cases under the three-part disjunctive test announced in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). In Lemon the Court stated, “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster 'an excessive government entanglement with religion.’ ” Id. at 612-13, 91 S.Ct. at 2111 (citations omitted). Although this test has been questioned by certain members of the Court, see Wallace v. Jaffree, 105 S.Ct. at 2497 (O’Connor, J., concurring), in the Court’s most recent establishment clause case, a clear majority endorsed the Lemon test as the rubric under which a challenged governmental practice will be judged. See Wallace v. Jaffree, 105 S.Ct. at 2489; see also Lynch v. Donnelly, 104 S.Ct. at 1362.

The district court, applying the three-part disjunctive test of Lemon v. Kurtz-man, concluded that the law failed in each respect. According to the district court, the law was enacted for a religious rather than a secular purpose, had the effect both of advancing and of inhibiting religion, and fostered excessive government entanglement with religion. Because we disagree with the district court’s analysis in some respects, it is convenient to reverse the usual order of discussion of the Lemon v. Kurtzman standards.

A.

Entanglement

Supporting its conclusion that the law would foster an excessive entanglement with religion, the.district court reasoned,

Implementation of the Bill would not involve the State in the kind of continued and pervasive monitoring of sectarian activities which were condemned in Lemon v. Kurtzman, supra. It would, however, tend to promote divisiveness among and between religious groups, another form of entanglement. Gilfillan v. City of Philadelphia [637 F.2d 924] 932 [(3d Cir.1980)]. A required moment of silence would pit children and parents who believe in prayer against children and parents who do not.

May v. Cooperman, 572 F.Supp. at 1575.

We do not find this reasoning persuasive. In the first place, as noted in Part I, we are not dealing with a “required” moment of silence, if by “required” is meant an exercise in which all pupils are required to participate. Moreover, the Supreme Court has never held that the potential for political disagreement over government action accommodating religious beliefs is sufficient to trigger the application of the excessive entanglement test. Indeed in Lynch v. Donnelly the Court expressly stated “that this Court has not held that political divisiveness alone can serve to invalidate otherwise permissible conduct.” 104 S.Ct. at 1364. See also Mueller v. Allen, 463 U.S. 388, 404 n. 11, 103 S.Ct. 3062, 3071 n. 11, 77 L.Ed.2d 721 (1983) (reference to political divisiveness in Lemon v. Kurtzman confined to cases where direct financial subsidies are paid to parochial schools or to teachers in parochial schools). No doubt any accommodation made by government to the free exercise of religion by believers is politically divisive in the sense that it offends those who believe that such accommodation is an unwarranted toleration. If political divisiveness were the test for entanglement, no governmental accommodation of religion would survive establishment scrutiny. The law is otherwise. See, e.g., Mueller v. Allen, 463 U.S. 388, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983); Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970) (tax exemption of Church property does not violate establishment clause).

B.

Primary Effect

Supporting its conclusion that the primary effect of N.J.S.A. 18A:36-4 is to advance and to inhibit religion, the district court reasoned.

[T]he State has injected itself into religious matters by designating a time and place when children and teachers may pray if they do so in a particular manner and by mandating conduct by all other . children and teachers so that the prayers may proceed uninterrupted in their presence.

While this form of legislation advances the religion of some, it inhibits the religion of others in at least two ways

First, there are those whose religious practices include silent prayer and meditation but who, as an article of faith, believe that the State should have no part in religious matters. For them mandated prayer is no longer prayer____ Thus the State, seeking to further religion by mandating certain religious observances, in fact weakens religion by draining vitality from these observances.

Second, by mandating a minute of silence which permits some persons from engaging in prayer, Bill 1064 prevents other persons from engaging in their kind of prayer____ Bill 1064, therefore, mandates an environment which allows some to pray but prevents others from engaging in their form of prayer.

Finally there are those who profess no religion and to whom any form of prayer is offensive. Bill 1064 requires these persons to assume a posture suggestive of particular forms of prayer which are responsive to particular beliefs about ultimate reality.

May v. Cooperman, 572 F.Supp. at 1574-75.

While the district court’s analysis of the effects aspect of the Lemon v. Kurtzman test presents us with a closer issue than the court’s entanglement analysis, we find it flawed as well.

Relying on the testimony of witnesses with theological training, the court found as a fact that “A short period of group silence at the commencement of the day or at the commencement of an undertaking constitutes one of the traditional forms of prayer of major religious bodies in New Jersey.” Id. at 1571 (footnote omitted). This finding is not clearly erroneous. Thus for our analysis of the effects issue we will assume that silence is for many pupils the equivalent of prayer. It does not follow, however, that for all pupils that is the case. Moreover, the district court’s reasoning seems to be predicated upon an interpretation of the statute as mandating student participation; an interpretation that we have rejected.

The district court’s observation that by mandating a minute of silence the legislation “prevents other persons from engaging in their kind of prayer ...” is a non sequitur. The statute simply does not address the problem of accommodating the beliefs of those whose prayer must be oral or otherwise self expressive. Undoubtedly the school environment requires limitation upon the time, place, and manner of such self expression, even when it is religiously motivated. It is, however, the compulsory school attendance law, not N.J.S.A. 18A:36-4, that “prevents other persons from engaging in their kind of prayer.” The challenged statute is a limited exception to the general school regulations, which for educational purposes impose in schools a structured environment in which even religiously-motivated students are required to do the school’s thing, and not their own.

That is not to suggest that the practice of observing a moment of silence has no effect upon those pupils who decline to participate in it or those teachers who must permit it. To put the matter in concrete terms, we look at the evidence presented on behalf of Jeffrey May, a plaintiff. May, a high school teacher in the Edison Township school system, and an agnostic, was informed by his school principal that he had to comply with the statute. The principal wrote,

The interpretation of [N.J.S.A. 18A:36-4] for our school is as follows. We will observe one minute of seated silence in each homeroom at the very beginning of the opening exercises.

You will note that the Bill says students shall be permitted to observe a minute of silence. That will be interpreted to mean that there will be a minute of silence in the classroom so that each student may use that time as the individual interprets his or her desire to do so. This means that there will be no talking and no movement about the room. Each student will remain seated in his or her seat during the one minute period. At the conclusion of the one minute, students will be asked to rise and participate in the Pledge, and the remainder of the homeroom procedure will continue as in the past.

Exhibit C to Complaint. May refused to implement N.J.S.A. 18A:36-4 and was cited for insubordination. Exhibit C to Complaint. Before any administrative proceedings took place on that charge, he filed this action.

The principal’s letter demonstrates the manner in which N.J.S.A. 18A:36-4 may impact upon nonbelieving or otherwise objecting teachers and pupils. His reference in the last quoted sentence to the Pledge is to the exercise mandated in New Jersey by N.J.S.A. 18A:36-3(c) (West 1968).⁷ That statute requires the recitation of a pledge of allegiance to the flag, but excuses from that recitation pupils who have conscientious scruples against it. Such pupils are nevertheless required “to show full respect to the flag while the pledge is being given merely by standing at attention____” In Lipp v. Morris, 579 F.2d 834 (3d Cir.1978), we considered a challenge to the constitutionality of the pledge statute by a pupil who objected to the requirement that she engage in symbolic speech by standing at attention. We held that the requirement that she stand at attention violated her first amendment rights, but that this requirement was severable from the remainder of the statute. Significantly, however, we did not prohibit the exercise because it had the incidental effect of requiring the objecting pupil to remain in her seat and refrain from interrupting the observance of the exercise by others. So, too, with the minute of silence. Compliance with N.J. S.A. 18A:36-4, by permitting willing students to engage in that observance, has the inevitable effect of requiring that other students refrain from interrupting that exercise. The teacher in charge is also required, as a practical matter, to prevent such interruption. If the moment of silence is to be permitted for some, school discipline must in the meantime be maintained for others. Unquestionably the maintenance of such discipline prevents the others from engaging in their own oral or self-expressive conduct. We hold, however, that a restriction of this kind is valid as a legitimate time, place, and manner regulation. See, e.g., Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37, 45-46, 103 S.Ct. 948, 954-55, 74 L.Ed.2d 794 (1983); Heffron v. International Society for Krishna Consciousness Inc., 452 U.S. 640, 648-52, 101 S.Ct. 2559, 2564-66, 69 L.Ed.2d 298 (1981); United States Postal Service v. Council of Greenburgh Civil Assns., 453 U.S. 114, 132, 101 S.Ct. 2676, 2686, 69 L.Ed.2d 517 (1981). We do not hold that the requirements suggested in the principal’s letter, that the pupils in homeroom classes remain seated, is the only possible accommodation to the views of nonparticipants. That would depend, we think, upon the structure of each district’s educational program. In some districts it may be possible that nonparticipating pupils leave the classroom during the exercise. But the record in this case is simply too incomplete to adjudicate what time, place, and manner accommodations are required.

The district court’s observation that the state has injected itself into religious matters by designating a time and place when children and teachers may pray does not in our view satisfy the effects test. The state equally injects itself into religious matters when it designates a time and place when children and teachers may not pray. As we observed with respect to the effect on persons whose prayer takes more expressive forms, some form of time, place, and manner restraint is necessary for the accomplishment of a school’s educational mission. So, too, if accommodation to the preferences of those who wish to pray silently is to be made at all, the state must be free to designate when, during the school day, such accommodation shall take place. We conclude, therefore, that the district court erred in finding that the primary effect of the challenged statute is both to advance and to inhibit religion.

C.

Purpose

The most difficult aspect of the instant case is presented by the legislative purpose feature of the Lemon v. Kurtzman formulation. This difficulty is compounded by the Supreme Court’s intervening decision in Wallace v. Jaffree, — U.S.-, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985). In that case the Court struck down an Alabama statute authorizing a moment of silence at the beginning of each school day because the statute lacked a secular purpose. 105 S.Ct. at 2490. Specifically, the Alabama statute provided.

At the commencement of the first class of each day in all grades in all public schools the teacher in charge of the room in which the class is held may announce that a period of silence not to exceed one minute in duration shall be observed for meditation or voluntary prayer and during any such period no other activities shall be engaged in.

Alabama Code § 16-1-20.1 (Supp.1984) (emphasis supplied). In contrast to N.J.S.A. 18A:36-4, this Alabama statute appears to be optional for teachers, but mandatory for students. It also specifically mentions voluntary prayer. The Supreme Court held that it violated the purpose test of Lemon v. Kurtzman because the sole purpose behind its enactment was the endorsement or approval of religion. Wallace v. Jaffree, 105 S.Ct. at 2490. In reaching that conclusion the court relied on the testimony of Senator Donald G. Holmes, the prime sponsor of the legislation, that his sole purpose was to reintroduce voluntary prayer in public schools. Id. at 2483.

Although the Supreme Court’s decision in Wallace v. Jaffree was limited to a determination of the constitutionality of one Alabama statute, in its analysis the Court contrasted and discussed two other Alabama statutes. One of these statutes authorized teachers to lead “willing students” in a designated prayer. Alabama Code § 16-1-20.2 (Supp.1984). In an earlier opinion the Court had summarily affirmed the judgment of the Court of Appeals for the Eleventh Circuit holding this statute to be unconstitutional. See Wallace v. Jaffree, 466 U.S. 924, 104 S.Ct. 1704, 80 L.Ed.2d 178 aff'g, 705 F.2d 1526 (11th Cir.1983).

Another Alabama statute discussed in Wallace v. Jaffree provides,

At the commencement of the first class each day in the first through sixth grades in all public schools, the teacher in charge of the room in which each such class is held shall announce that a period of silence, not to exceed one minute in duration, shall be observed for meditation, and during any such period silence shall be maintained and no activities shall be engaged in.

Alabama Code § 16-1-20 (Supp.1984). In contrast with N.J.S.A. 18A:36-4, this Alabama statute appears to be mandatory both for teachers and for pupils. Like the New Jersey statute, however, section 16-1-20 omits any specific reference to prayer. The plaintiff in the Jaffree case initially challenged the constitutionality of section 16-1-20. At the preliminary injunction stage the district court in Alabama held that it was valid. Jaffree By ex rel, Jaffree v. James, 544 F.Supp. 727, 732 (S.D.Ala.1982). By the time the case reached the Supreme Court the plaintiff had abandoned any claim that section 16-1-20 was unconstitutional. Wallace v. Jaffree, 105 S.Ct. at 2481. Thus, technically the Supreme Court did not address the constitutionality of section 16-1-20. In justifying the holding that section 16-1-20.1 was unconstitutional, however, Justice Stevens in the opinion of the Court observed,

The legislative intent to return prayer to the public schools is, of course, quite different from merely protecting every student’s right to engage in voluntary prayer during an appropriate moment of silence during the school day. The 1978 statute already protected that right, containing nothing that prevented any student from engaging in voluntary prayer during a silent minute of meditation. Appellants have not identified any secular purpose that was not fully served by § 16-1-20 before the enactment of § 16-1-20.1.

The Legislature enacted § 16-1-20.1 despite the existence of § 16-1-20 for the sole purpose of expressing the State’s endorsement of prayer activities for one minute at the beginning of each day. The addition of “or voluntary prayer” indicates that the State intended to characterize prayer as a favored practice.

105 S.Ct. at 2491-92 (footnote omitted). Justice O’Connor, concurring, noted that “[b]y mandating a moment of silence, a State does not necessarily endorse any activity that might occur during that period.” Id. at 2499 (O’Connor, J., concurring). Justice Powell, concurring, observed, “I agree fully with Justice O’CONNOR’S assertion that some moment-of-silence statutes may be constitutional, a suggestion set forth in the Court’s opinion as well.” Id. at 2493 (Powell, J., concurring) (footnote omitted). Justice White, dissenting stated that

[I]n my view the First Amendment does not proscribe either (1) statutes authorizing or requiring in so many words a moment of silence before classes begin or (2) a statute that provides, when it is initially passed, for a moment of silence for meditation or prayer. As I read the filed opinions, a majority of the Court would approve statutes that provided for a moment of silence but did not mention prayer.

Id. at 2508 (White, J., dissenting). Neither Justice Burger nor Justice Rehnquist, who filed separate dissenting opinions, expressed any disagreement with Justice White’s appraisal of the status of moment-of-silence legislation.

It is clear, therefore, that in the abstract a statute such as N.J.S.A. 18A:36-4 would not, in the opinion of the Supreme Court, be deemed invalid under the purpose leg of Lemon v. Kurtzman. But unlike Wallace v. Jaffree the moment of silence statute is not before us in the abstract. The plaintiffs continue to challenge it. They have made a record in support of that challenge, and the district court has made findings as to the legislative purpose. Thus it seems appropriate to take account of Justice O’Connor’s observation that “[t]he face of the statute or its legislative history may clearly establish that it seeks to encourage or promote voluntary prayer over other alternatives, rather than merely provide a quiet moment that may be dedicated to prayer by those so inclined.” Id. at 2499 (O’Connor, J., concurring).

In this case the district court found that the statute, although facially neutral, had a religious and not a secular purpose. The court did not find that teachers had encouraged voluntary prayer over other alternative uses of the minute of silence.⁸ The finding addressed the purpose of the legislature, not of teachers. In reaching that conclusion the district court relied heavily upon evidence suggesting that the silent minute has no legitimate pedagogical value. The legislators’ tendered secular purpose — to provide a transition from non-school life to school life — was rejected as pretextual. May v. Cooperman, 512 F.Supp. at 1571. Having rejected the one secular purpose tendered by the intervening defendants, the court noted the history in the New Jersey legislature of other less facially neutral efforts to return prayer to the public schools; in particular the previous activities of one sponsor of the instant legislation.

Because we cannot say that this finding by the district court is clearly erroneous,⁹ see Fed.R.Civ.P. 52(a), we accept the trial court’s finding that the legislature’s purpose in enacting N.J.S.A. 18A:36-4 was religious, at least to the extent of requiring school districts to accommodate those students desiring the opportunity to engage in prayer at some point during the school day. That, however, is only the beginning of the inquiry. The district court’s rejection of the tendered transitional moment secular purpose as pretextual does not compel the conclusion that the state seeks, in Justice O’Connor’s words “to encourage voluntary prayer over other alternatives.” A purpose of accommodating the religious beliefs of some students is itself a religious purpose, in the sense that absent such beliefs there would have been no reason for the accommodating state action. Given the language of the New Jersey statute which, unlike section 16-1-20 of the Alabama statute, is permissive for students, and the record evidence, we do not believe a finding that the religious purpose was to encourage prayer over other alternatives, rather than to accommodate those wishing to pray, would be sustainable.

Thus the question presented by this appeal narrows to this: May the state, acting through the legislature or through a school board or through an individual teacher, take action in the school setting that, while not endorsing prayer in preference to other forms of silent activity, provides for a minute of silence for the purpose of permitting prayer by those who want to pray. We do not find any clear answer in Wallace v. Jaffree. Nevertheless, while there was no finding in Wallace v. Jaffree that the Alabama statute was enacted for the purpose of accommodating prayer, there is also no indication that the secular purpose requirement of the Lemon v. Kurtzman test turns on the mandatory as opposed to permissive nature of a statute. Indeed, in contrasting different Alabama statutes, the Court specifically noted that while earlier statutes were mandatory for teachers the statute it was considering was permissive. This distinction, however, was of no relevance to the Court’s constitutional analysis. See Wallace v. Jaffree, 105 S.Ct. at 2491. Moreover, in the recent case of Thornton v. Caldor, Inc., — U.S. -, 105 S.Ct. 2914, 2917, 86 L.Ed.2d 557 (1985), the Court applied the Lemon v. Kurtzman test to strike down a Connecticut statute that was designed to accommodate religious views.¹⁰ Accordingly, because the Supreme Court has expressly required a secular purpose when considering a constitutional challenge under the establishment clause and because the district court made a finding that N.J.S.A. 18A:36-4 lacked such a secular purpose, we hold the New Jersey statute to be unconstitutional under the first amendment.

IV.

The legislators also appeal from the district court’s declaratory judgment that fees may be assessed against them. Since, however, no amount of fees had been fixed, that declaratory judgment is interlocutory. See Bandai America Inc. v. Bally Midway Mfg. Co., 775 F.2d 70 (3d Cir.1985)); West v. Keve, 721 F.2d 91, 94-97 (3d Cir.1983); DeLong Corp. v. Raymond International Inc., 622 F.2d 1135, 1138-39 (3d Cir.1980). Although the district court subsequently fixed a fee amount, the legislators appealed from the declaratory judgment and not the subsequent judgment awarding an actual fee amount. Thus that appeal must be dismissed.

V.

The declaratory judgment that N.J.S.A. 18A:36-4 is unconstitutional will be affirmed. The appeal from the declaratory judgment that the legislators are liable for attorneys fees will be dismissed.

1 . The amount was subsequently fixed on March 28, 1984. See May v. Cooperman, 582 F.Supp. 1458 (D.N.J.1984). As this award was fixed after the notice of appeal had been filed, the issue of the fee award is not properly presented for our review. See West v. Keve, 721 F.2d 91, 94-97 (3d Cir.1983). The final declaratory judgment on the merits is nevertheless reviewable at this time. See Carpenters Health & Welfare Fund v. Kenneth R. Ambrose, Inc., 727 F.2d 279, 286 n. 2 (3d Cir.1983); West v. Keve, 721 F.2d 91, 93 (3d Cir.1983); Kane Gas Light & Heating Co. v. International Bhd. of Teamsters, 687 F.2d 673, 677 n. 5 (3d Cir.1982), cert. denied, 460 U.S. 1011, 103 S.Ct. 1251, 75 L.Ed.2d 480 (1983).

2 . No party has urged that exhaustion of the remedies available under N.J.S.A. 18A:6-9 is a precondition to relief under 42 U.S.C. § 1983 (1982). See New Jersey Education Ass'n v. Burke, 579 F.2d 764, 779 n. 24 (3d Cir.), cert. denied, 439 U.S. 894, 99 S.Ct. 252, 58 L.Ed.2d 239 (1978) (exhaustion of remedies before Commissioner of Education not a precondition to section 1983 relief).

3 . See Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269; 70 L.Ed.2d 440 (1981); Bender v. Williamsport Area School Dist., 741 F.2d 538 (3d Cir.1984), cert. granted, — U.S. -, 105 S.Ct. 1167, 84 L.Ed.2d 319 (1985).

4 . The district court opinion is somewhat ambiguous in this respect. At one point the court opines. “What the minute of silence Bill has done is to mandate that all students assume the posture of one traditional form of prayer.” May v. Cooperman, 572 F.Supp. 1561, 1569 (D.N.J.1983). Elsewhere the court observes.

It is unclear whether Bill 1064 requires that every student remain present during the minute of silence or whether it simply requires that every student be given an opportunity to observe a minute of silence with the right of those who do not wish to participate to absent themselves.

Id. at 1570.

5 . There is in evidence a videotape of the moment of silence observed for many years in the schools of Sayreville, New Jersey.

6 . The witnesses included Joseph Chuman, affiliated with the Society for Ethical Culture, Marianne Rhodes, Associate Director of Government Relations of New Jersey School Board Association, and Rev. Dudley E. Sarfaty, Associate General Secretary of the New Jersey Council of Churches.

7 . Every Board of Education shall:

(c) Require the pupils in each school in the district on every school day to salute the United States flag and repeat the following pledge of allegiánce to the flag: "I pledge allegiance to the flag of the United States of America and to the republic for which it stands, one nation, under God, indivisible, with liberty and justice for all," which salute and pledge of allegiance shall be rendered with the right hand over the heart, except that pupils who have conscientious scruples against such pledge or salute, or are children of accredited representatives of foreign governments to whom the United States government extends diplomatic immunity, shall not be required to render such salute and pledge but shall be required to show full respect to the flag while the pledge is being given merely by standing at attention, the boys removing the headdress.

N.J.S.A. 18A:36-3(c).

8 . Indeed the district court found.

The experiences of various schools during the weeks when the minute of silence was enforced suggests that some students will use the minute of silence to pray; some will use it to engage in thoughtful meditation; some will tolerate it though considering it boring and stupid; some who believe it violates their religious convictions will nevertheless submit to it, not wishing to risk public ridicule; some who believe it violates their religious convictions will either refuse to observe it or will absent themselves from the place where others are observing it.

May v. Cooperman, 572 F.Supp. at 1572.

9 . The legislators contend that the district court's purpose inquiry is flawed in a number of respects. They object particularly, on hearsay grounds, to the admission in evidence of newspaper accounts of statements made by legislators as to their interest in having religion returned to the school. Plaintiffs urge that these newspaper reports were admissible under the omnibus hearsay exception in Rule 803(24) because they were more probative in showing legislative purpose than any other evidence they could produce through reasonable efforts. This is true, plaintiffs urge, because of the absence in New Jersey of transcripts of legislative proceedings and the district court's pretrial ruling that individual members of the legislature could not be deposed. This evidentiary issue is a difficult one for several reasons. First, the proponents of the evidence have made no showing that nonlegislator witnesses present during legislative sessions were unavailable. Second, the district court's recognition of a legislative privilege not to testify in a case in which legislative purpose is an issue may itself have been an error. In United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), the Supreme Court noted that "[w]hen the issue is simply the interpretation of legislation the Court will look to legislators for guidance as to the purpose of the legislation____” Id. at 383, 88 S.Ct. at 1682. However, the Court went on to say that such an inquiry was limited to a “well-defined class of cases where the nature of the constitutional question requires an inquiry into legislative purpose.” Id. at 383 n. 30, 88 S.Ct. at 1682 n. 30. This is such a case. One may question whether the requirements of Rule 803(24) can be satisfied by virtue of such an error.

The appeal will not, however, turn on any alleged error in the admission of hearsay newspaper reports, for there is ample other evidence supporting the district court’s conclusion that the purpose of the legislation was not secular but religious. The court’s finding that the tendered secular purpose — the transitional moment — is pretextual is supported by credited nonhearsay testimony by experts in the educational process. Moreover there was testimony, also credited, by witnesses who attended the Senate and General Assembly Education Committee hearings, suggesting that the primary concern of the legislators supporting the bill was to permit prayer in school. Our examination of the trial court’s findings of fact and conclusions of law convince us that its conclusion with respect to the absence of a secular purpose would not have been different had the newspaper clippings been excluded.

10 . In Thornton v. Caldor the Court concluded that a Connecticut statute, which provided private sector employees with an absolute right not to work on their designated Sabbath, violated the establishment clause. 105 S.Ct. at 2918. Significantly, the Court did not seem to believe that the accommodating purpose of the Connecticut statute made any difference in the Court’s establishment clause analysis. See id. at 2917.