Freiler v. Tangipahoa Parish ( 1999 )

  •                     REVISED - August 19, 1999
                           FOR THE FIFTH CIRCUIT
                       No. 97-30879 & No. 98-30132
    HERB FREILER; SAM SMITH, Individually and in his capacity as
    Administrator of the Estate of his minor child Steven Smith; JOHN
    ZIESKE, Individually and in their capacities as members of the
    School Board; TED CASON, Individually and in his capacity as
    Superintendent of Schools,
               Appeal from the United States District Court
                   for the Eastern District of Louisiana
                                August 13, 1999
    Before KING, Chief Judge, and POLITZ and BENAVIDES, Circuit
    BENAVIDES, Circuit Judge:
         Parents of children in the Tangipahoa Parish Public Schools
    brought this suit to enjoin their school board from mandating
    that a disclaimer be read immediately before the teaching of
    evolution in all elementary and secondary classes.       The district
    court held that the disclaimer constituted an establishment of
    religion in violation of the First Amendment.       We affirm.
         The teaching of evolution has created controversy for many
    years in the Tangipahoa Parish Public Schools (“TPPS”).
    Following a failed attempt to introduce creation science into the
    Tangipahoa curriculum as a legitimate scientific alternative to
    evolution, the Tangipahoa Parish Board of Education (“School
    Board” or “Board”) adopted a resolution disclaiming the
    endorsement of evolution.1   The resolution, which passed by a 5-4
    vote of the School Board on April 19, 1994, reads:
         Whenever, in classes of elementary or high school, the
         scientific theory of evolution is to be presented,
         whether from textbook, workbook, pamphlet, other
         written material, or oral presentation, the following
         statement shall be quoted immediately before the unit
         of study begins as a disclaimer from endorsement of
         such theory.
         It is hereby recognized by the Tangipahoa Board of
          The passage of the disclaimer was not the first action by
    the School Board concerning the teaching of evolution. In
    December 1993, a member of the School Board proposed a Policy on
    the Inclusion of Religious Material and Discussions on Religion
    in the Curriculum and in Student Activities (“Policy”). That
    same member later proposed a Revised Draft of Policy (“Revised
    Policy”). These policies would have allowed the teaching of
    alternative theories of the origin of mankind, including Creation
    science. Even though it was defeated in Committee, the Revised
    Policy was discussed at a March 1994 School Board meeting.
    During that meeting, the Board rejected two items in the Revised
    Policy concerning the study of creation science and a graduation
    ceremony prayer.
         The Board passed four other items included in the Revised
    Policy. Those items provided that (1) no religious belief or non-
    belief should be promoted or disparaged by the school system; (2)
    religious materials may be included in secular education (e.g.
    literature, art, humanities, etc.); (3) artistic expressions
    (e.g. music, art, etc.) could have religious themes if they were
    presented objectively; and (4) students could distribute
    religiously oriented materials as long as students followed the
    school’s rules pertaining to content-neutral time, place, and
    manner restrictions.
         Education, that the lesson to be presented, regarding
         the origin of life and matter, is known as the
         Scientific Theory of Evolution and should be presented
         to inform students of the scientific concept and not
         intended to influence or dissuade the Biblical version of
         Creation or any other concept.
         It is further recognized by the Board of Education that
         it is the basic right and privilege of each student to
         form his/her own opinion and maintain beliefs taught by
         parents on this very important matter of the origin of
         life and matter. Students are urged to exercise
         critical thinking and gather all information possible
         and closely examine each alternative toward forming an
         Preceding the adoption of the resolution, School Board
    members and parents who were present at the April 19, 1994,
    meeting discussed the language of the disclaimer.   In particular,
    debate centered on the inclusion of the phrase “Biblical version
    of Creation.”   A School Board member, Logan Guess, voiced
    concerns that the reference to the Bible excluded non-Christian
    viewpoints from the disclaimer.   He argued that, even though the
    disclaimer also included the phrase “or any other concept,”
    School Board members were concerned only with declining to
    endorse evolution because of its inconsistency with the Biblical
    version of creation.   Bailey, the board member who proposed the
    disclaimer, justified including the phrase, arguing that because
    “there are two basic concepts out there” (presumably creation
    science and evolution), and because he believed that “perhaps 95
    percent” of the community “fall into the category of believing
    [in] divine creation,” the Board should not “shy away, or hide
    away from saying that this is not to dissuade from the Biblical
    version.”   In his closing remarks immediately before the Board
    voted to adopt the disclaimer, Bailey further suggested that
    evolution theory as taught in science class should not be
    confused with fact and that the School Board should explicitly
    decline to endorse evolution theory because of its inconsistency
    with the faith of the larger community.
         On November 7, 1994, approximately seven months after the
    resolution passed, several parents of children in the TPPS
    brought suit in the U.S. District Court for the Eastern District
    of Louisiana, challenging the validity of the disclaimer under
    provisions in the United States and Louisiana constitutions
    barring laws “respecting an establishment of religion.”2    U.S.
    Const. amends., I, XIV; La. Const. art. I, sec. 8.   The district
    court concluded that the resolution was devoid of secular purpose
    and therefore ran afoul of the first prong of the three-part test
    of Lemon v. Kurtzman, 
    403 U.S. 602
    , 612-13 (1971).   In reaching
    this conclusion, the district court discredited the School
    Board’s assertion that its secular purpose in adopting the
    disclaimer was to promote critical thinking and information
    gathering by students on the subject of the origin of life.    The
    court noted that School Board members did not mention this
    purported purpose during the adoption debate and that the
          The First Amendment of the United States Constitution in
    relevant part provides: "Congress shall make no law respecting
    an establishment of religion or prohibiting the free exercise
    thereof...." This prohibition is applicable to the states
    through the Fourteenth Amendment. See Stone v. Graham, 
    449 U.S. 39
    , 41 n. 2, 
    101 S. Ct. 192
    , 193 n. 2 (1980); School District of
    Abington v. Schempp, 
    374 U.S. 203
    , 215-16, 
    83 S. Ct. 1560
    1567-68 (1963).
    Tangipahoa Parish Public Schools already encouraged students to
    think critically about all issues before the adoption of the
    disclaimer.    The district court found that the statements made by
    School Board members both during the adoption debate and while
    testifying at trial revealed that the disclaimer, in fact, had a
    religious purpose--i.e., to satisfy the religious concerns of the
    majority that the teaching of evolution in public school
    contradicted lessons taught in Sunday school.       Accordingly, the
    court held the resolution invalid under the federal and state
    constitutions and enjoined the reading of the disclaimer.       The
    School Board and the named individual defendants then brought
    this appeal.
         The sole issue for our resolution is whether the specific
    disclaimer adopted by the Tangipahoa Parish Board of Education
    contravenes the First Amendment.       We limit our analysis to the
    precise language of the disclaimer and the context in which it
    was adopted.   We do not confront the broader issue of whether the
    reading of any disclaimer before the teaching of evolution would
    amount to an unconstitutional establishment of religion.
         States and their duly authorized boards of education have
    the right to prescribe the academic curricula of their public
    school systems.   Courts therefore must exercise great “care and
    restraint” when called upon to intervene in the operation of
    public schools.    Epperson v. Arkansas, 
    393 U.S. 97
    , 104, 89 S.
    Ct. 266, 270 (1968).   Given, however, that the “vigilant
    protection of constitutional freedoms” is nowhere more vital than
    in American public education, id., 89 S. Ct. at 270, the right to
    prescribe public school curriculum must of necessity be limited
    in scope.   States may not require that teaching and learning be
    tailored to the principles or prohibitions of any religious sect
    or dogma.   See id. at 106, 89 S. Ct. at 271.
         In the context of public education, we have evaluated state
    action challenged on Establishment Clause grounds under each of
    “three complementary (and occassionally overlapping) tests”
    established by the Supreme Court.    Doe v. Santa Fe Independent
    School District, 
    168 F.3d 806
    , 816 (5th Cir. 1999).    The first
    test, and the one of longest lineage, is the disjunctive three-
    part Lemon test, under which a state practice is unconstitutional
    if (1) it lacks a secular purpose; (2) its primary effect either
    advances or inhibits religion; or (3) it excessively entangles
    government with religion.   See Lemon, 403 U.S. at 612-613, 91 S.
    Ct. at 2111.   The second test, commonly referred to as the
    endorsement test, seeks to determine whether the government
    endorses religion by means of the challenged action.    See, e.g.,
    County of Allegheny v. ACLU, 
    492 U.S. 573
    , 594, 
    109 S. Ct. 3086
    3101 (1989) (holding that the display of a creche on the Grand
    Staircase of the Allegheny County Courthouse violated the First
    Amendment but that the display of a menorah as part of a secular
    exhibit was constitutional).   The government unconstitutionally
    endorses religion when it “conveys a message that religion is
    ‘favored,’ ‘preferred,’ or ‘promoted’ over other beliefs.”    Id.
    at 593, 
    109 S. Ct. 3086
    .   Finally, the third test, aptly named
    the coercion test, analyzes school-sponsored religious activity
    in terms of the coercive effect that the activity has on
    students.   See, e.g., Lee v. Weisman, 
    505 U.S. 577
    112 S. Ct. 2649
     (1992) (holding unconstitutional a school district’s policy
    permitting school principals to invite clergy to give
    “nonsectarian” invocations and benedictions at graduation
    ceremonies).   Under this test, school-sponsored activity
    contravenes the First Amendment when “(1) the government directs
    (2) a formal religious exercise (3) in such a way as to oblige
    the participation of objectors.”       Jones v. Clear Creek
    Independent School District, 
    977 F.2d 963
    , 970 (5th Cir. 1992)
    (“Clear Creek II”) (citation omitted).
         Our multi-test analysis in past cases has resulted from an
    Establishment Clause jurisprudence rife with confusion and from
    our own desire to be both complete and judicious in our decision-
    making.   See, e.g., Doe ex rel. Doe v. Beaumont Independent
    School District, 
    173 F.3d 274
    , 295 (5th Cir.) (analyzing school
    district’s “Clergy in Schools” volunteer counseling program
    utilizing Lemon, endorsement, and coercion tests), on reh’g en
    banc, ___ F.3d ___ (1999); Ingebretsen v. Jackson Public School
    88 F.3d 274
    , 280 (5th Cir. 1996) (examining state
    statute permitting public school students to initiate
    nonsectarian, nonproselytizing prayer at compulsory and
    noncompulsory school events pursuant to the Lemon, endorsement,
    and coercion tests); Clear Creek II, 
    977 F.2d 963
    , 966-969, 972
    (employing Lemon, endorsement, and coercion analysis to uphold a
    school district resolution permitting public high school seniors
    to choose student volunteers to deliver nonsectarian,
    nonproselytizing invocations at graduation ceremonies).   Nothing
    in our Circuit’s case law requires that contested government
    action be examined under each Supreme Court-delineated test.      Cf.
    Santa Fe Independent School District, 168 F.3d at 818 (explaining
    that, because student-selected, student-given, sectarian,
    proselytizing invocations and benedictions violate the Lemon test
    and the endorsement test, analysis under the coercion test was
    not necessary); Helms v. Picard, 
    151 F.3d 347
    , 362 (5th Cir.
    1998) (analyzing a school aid program in accordance with only the
    Lemon test), cert. granted sub nom., Mitchell v. Helms, No. 98-
    1999 WL 231469
     (U.S. Jun. 14, 1999).   The decision to apply
    a particular Establishment Clause test rests upon the nature of
    the Establishment Clause violation asserted.   Where, as in the
    instant action, the practice at issue does not direct student
    participation in a formal religious exercise, we elect not to
    apply the coercion test.
         Although widely criticized and occasionally ignored, the
    Lemon test continues to govern Establishment Clause cases.   In
    Agostini v. Felton, 
    521 U.S. 203
    117 S. Ct. 1310
     (1997), the
    Supreme Court laid to rest rumors of the Lemon test’s demise when
    it exclusively applied Lemon analysis to a school aid program.
    The Court acknowledged the continued viability of the general
    Lemon principles used to evaluate whether government action
    violates the Establishment Clause and noted in particular that
    the nature of the inquiry under Lemon’s purpose prong has
    “remained largely unchanged.”   Id. at 223, 117 S. Ct. at 2010.
         The first prong of the Lemon test requires that challenged
    state action have a secular purpose.   See Lemon, 403 U.S. at 612,
    91 S. Ct. at 2111.   Lemon’s first prong does not require that
    challenged state action have been enacted in furtherance of
    exclusively, or even predominately, secular objectives.      See
    Wallace v. Jaffree, 
    472 U.S. 38
    , 56, 
    105 S. Ct. 2479
    , 2489 (1985)
    (explaining that a statute motivated in part by a religious
    purpose may satisfy Lemon’s purpose prong).      In order for state
    activity to pass muster under Lemon’s first criterion a sincere
    secular purpose for the contested state action must exist; even
    if that secular purpose is but one in a sea of religious
    purposes.   See id. at 56, 105 S. Ct. at 2489.
         The School Board has articulated three distinct, albeit
    intertwined, purposes for the contested disclaimer.     According to
    the Board, the disclaimer serves (1) to encourage informed
    freedom of belief, (2) to disclaim any orthodoxy of belief that
    could be inferred from the exclusive placement of evolution in
    the curriculum, and (3) to reduce offense to the sensibilities
    and sensitivities of any student or parent caused by the teaching
    of evolution.
         We treat the School Board’s three-fold articulation of
    purpose with deference.   See Santa Fe Independent School
    District, 168 F.3d at 816.   Deference, however, ought not be
    confused with blind reliance.   Accordingly, we examine each of
    the disclaimer’s avowed purposes to ensure that the purpose is
    sincere and not a sham.   See id. (citing Edwards v. Aguillard,
    482 U.S. 578
    , 586-87, 
    107 S. Ct. 2573
    , 2579 (1987)).   In
    undertaking such a “sham” inquiry, we consider whether the
    disclaimer furthers the particular purposes articulated by the
    School Board or whether the disclaimer contravenes those avowed
    purposes.   See Aguillard, 482 U.S. at 589, 107 S. Ct. at 2580
    (finding purported purpose of protecting academic freedom to be
    insincere in light of the fact that “the Act does not serve to
    protect academic freedom, but has the distinctly different
    purpose of discrediting evolution”).   If the disclaimer furthers
    just one of its proffered purposes and if that same purpose
    proves to be secular, then the disclaimer survives scrutiny under
    Lemon’s first prong.
         We find that the contested disclaimer does not further the
    first articulated objective of encouraging informed freedom of
    belief or critical thinking by students.   Even though the final
    sentence of the disclaimer urges students “to exercise critical
    thinking and gather all information possible and closely examine
    each alternative toward forming an opinion," we find that the
    disclaimer as a whole furthers a contrary purpose, namely the
    protection and maintenance of a particular religious viewpoint.
    In the first paragraph to be read to school children, the
    Tangipahoa Board of Education declares that the “Scientific
    Theory of Evolution . . . should be presented to inform students
    of the scientific concept” but that such teaching is ”not
    intended to influence or dissuade the Biblical version of
    Creation or any other concept.”    From this, school children hear
    that evolution as taught in the classroom need not affect what
    they already know.   Such a message is contrary to an intent to
    encourage critical thinking, which requires that students
    approach new concepts with an open mind and a willingness to
    alter and shift existing viewpoints.     This conclusion is even
    more inescapable when the message of the first paragraph is
    coupled with the statement in the last that it is “the basic
    right and privilege of each student to . . . maintain beliefs
    taught by parents on [the] . . . matter of the origin of
    life . . . .”   We, therefore, find that the disclaimer as a whole
    does not serve to encourage critical thinking and that the School
    Board’s first articulated purpose is a sham.
         We find that the disclaimer does further the second and
    third purposes articulated by the School Board.     The disclaimer
    explicitly acknowledges the existence of at least one alternative
    theory for the origin of life, i.e., the Biblical version of
    creation.   Additionally, the disclaimer reminds school children
    that they can rightly maintain beliefs taught by their parents on
    the subject of the origin of life.     We have no doubt that the
    disclaimer will further its second and third avowed objectives of
    disclaiming any orthodoxy of belief that could be implied from
    the exclusive place of evolution in the public school curriculum
    and reducing student/parent offense caused by the teaching of
    evolution.    Accordingly, we conclude that these two purposes are
         We next consider whether disclaiming orthodoxy of belief and
    reducing student/parent offense are permissible secular
    objectives.   In conducting this inquiry, we are mindful that a
    purpose is no less secular simply because it is infused with a
    religious element.    Cf. Corporation of the Presiding Bishop of
    the Church of Jesus Christ of Latter-day Saints v. Amos, 
    483 U.S. 327
    , 335,    
    107 S. Ct. 2862
    , 2868 (1987) (explaining that the
    Lemon test, requiring that the law at issue serve some secular
    legislative purpose, does not require that the contested law's
    purpose be unrelated to religion); Lynch v. Donnelly, 
    465 U.S. 668
    , 673, 
    104 S. Ct. 1355
    , 1359 (1984) (noting that the
    Constitution "affirmatively mandates accommodation, not merely
    tolerance, of all religions . . . . Anything less would require
    the 'callous indifference' we have said was never intended").
    For this reason, the fact that evolution, the subject about which
    the School Board sought to disclaim any orthodoxy of belief, is
    religiously charged, see Aguillard, 482 U.S. at 593, 107 S. Ct.
    at 2582 (noting that evolution is the one scientific theory that
    historically has been opposed by certain religious sects), and
    the fact that the sensitivities and sensibilities to which the
    School Board sought to reduce offense are religious in nature,
    does not per se establish that those avowed purposes are
    religious purposes.
         In order to avoid the “callous indifference” first cautioned
    against by the Supreme Court in Zorach v. Clauson, 
    343 U.S. 306
    702 S. Ct. 679
    , 684 (1952), we conclude that, under the
    instant facts, the dual objectives of disclaiming orthodoxy of
    belief and reducing student/parent offense are permissible
    secular objectives that the School Board could rightly address.
    Cf. Bethel School District No. 403 v. Fraser, 
    478 U.S. 675
    , 681,
    106 S. Ct. 3159
    , 3163 (1986) (noting that, in the context of a
    civil rights action, fundamental values essential to a democratic
    society include “tolerance of divergent political and religious
    views” and “consideration of the sensibilities of others, and, in
    the case of a school, the sensibilities of fellow students”).     In
    so doing, we acknowledge that local school boards need not turn a
    blind eye to the concerns of students and parents troubled by the
    teaching of evolution in public classrooms.
         Lemon’s second prong asks whether, irrespective of the
    School Board’s actual purpose, “the practice under review in fact
    conveys a message of endorsement or disapproval.”    Doe v. Santa
    Fe Independent School District, 
    168 F.3d 806
    , 817 (5th Cir.
    1999).    This is similar to analysis pursuant to the endorsement
    test.    Under either the second Lemon prong or the endorsement
    test, the Supreme Court has cautioned that a government practice
    may not aid one religion, aid all religions, or favor one
    religion over another.    See, e.g., County of Allegheny v. ACLU,
    492 U.S. 573
    , 605, 
    109 S. Ct. 3086
    , 3107 (1989) (“Whatever else
    the Establishment Clause may mean (and we have held it to mean no
    official preference even for religion over nonreligion), it
    certainly means at the very least that government may not
    demonstrate a preference for one particular sect or creed
    (including a preference for Christianity over other religions).”
    (citation omitted)).   Nonetheless, where the benefit to religion
    or to a church is no more than indirect, remote, or incidental,
    the Supreme Court has advised that “no realistic danger [exists]
    that the community would think that the [contested government
    practice] was endorsing religion or any particular creed.”
    Lamb’s Chapel v. Center Moriches Union Free School District, 
    508 U.S. 384
    , 395, 
    113 S. Ct. 2141
    , 2148 (1993).
         Against this jurisprudential backdrop, the School Board
    argues that the contested disclaimer’s primary effect is “to
    communicate to students that they are free to form their own
    opinions or maintain beliefs taught by parents concerning the
    origin of life and matter.”   According to the School Board, the
    disclaimer advances freedom of thought, as well as sensitivity
    to, and tolerance for, diverse beliefs in a pluralistic society.
    We disagree.
         In assessing the primary effect of the contested disclaimer,
    we focus on the message conveyed by the disclaimer to the
    students who are its intended audience.   See County of Allegheny,
    492 U.S. at 620, 109 S. Ct. at 3115.   After careful consideration
    of the oral arguments, the briefs, the record on appeal, and the
    language of the disclaimer, we conclude that the primary effect
    of the disclaimer is to protect and maintain a particular
    religious viewpoint, namely belief in the Biblical version of
    creation.   In reaching this conclusion, we rely on the interplay
    of three factors: (1) the juxtaposition of the disavowal of
    endorsement of evolution with an urging that students contemplate
    alternative theories of the origin of life; (2) the reminder that
    students have the right to maintain beliefs taught by their
    parents regarding the origin of life; and (3) the “Biblical
    version of Creation” as the only alternative theory explicitly
    referenced in the disclaimer.
         We note that the term “disclaimer,” as used by the School
    Board to describe the passage to be read to students before
    lessons on evolution, is not wholly accurate.   Beyond merely
    “disclaiming” endorsement of evolution, the two paragraph passage
    urges students to take action--to “exercise critical thinking and
    gather all information possible and closely examine each
    alternative” to evolution.3   The disclaimer, taken as a whole,
    encourages students to read and meditate upon religion in general
    and the “Biblical version of Creation” in particular.4
          In passing on the constitutionality of the contested
    disclaimer, we consider the disclaimer as a whole. Accordingly,
    we do not express an opinion as to whether the first paragraph
    standing alone impermissibly advances religion.
          The School Board asserts that the reference to the
    “Biblical version of Creation” is merely illustrative, affording
    meaning to the phrase “other concepts.” The School Board’s use
    of a religious concept as the only illustration of an “other
    concept[],” however, supports our conclusion that the disclaimer
    impermissibly advances religion. Cf. Ingebretsen v. Jackson
         Although it is not per se unconstitutional to introduce
    religion or religious concepts during school hours, there is a
    fundamental difference between introducing religion and religious
    concepts in “an appropriate study of history, civilization,
    ethics, comparative religion, or the like” and the reading of the
    School Board-mandated disclaimer now before us.   Stone v. Graham,
    449 U.S. 39
    , 42, 
    101 S. Ct. 192
    , 194 (1980).   The TPPS
    disclaimer5 does not encourage students to think about religion
    in order to provide context for a political controversy studied
    in a history class, see, e.g., Aguillard, 482 U.S. at 607 n.8,
    107 S. Ct. at 2590 n.8 (Powell, J., concurring) (“For example,
    the political controversies in Northern Ireland, the Middle East,
    and India cannot be understood properly without reference to the
    underlying religious beliefs and the conflicts they tend to
    generate.”), or to promote understanding of different religions,
    see, e.g., School District of Abington v. Schempp, 
    374 U.S. 203
    Public School District, 
    88 F.3d 274
    , 279 (5th Cir. 1996)
    (explaining that a government measure advances religion when it
    “gives a preferential, exceptional benefit to religion [or a
    particular form of religion] that it does not extend to anything
    else”). We also note that the record does not comport with the
    School Board’s characterization of its reason for including
    “Biblical version of Creation” in the disclaimer. When the
    School Board debated the propriety of the proposed disclaimer, a
    member suggested deleting the reference to the Biblical version
    of creation. The Board ultimately rejected that suggestion,
    apparently not because doing so might confuse students who needed
    an illustrative reference, but because doing so would, in the
    words of the disclaimer’s sponsor, “gut . . . the basic message
    of the [disclaimer].”
          Despite our conclusion that the statement to be read
    student does more than “disclaim” evolution, we will continue to
    refer to the entire statement as a disclaimer for purposes of
    83 S. Ct. 1560
    , 1573 (1963) (“[I]t might well be said that
    one’s education is not complete without a study of comparative
    religion or the history of religion and its relationship to the
    advancement of civilization.”).    Instead, the disclaimer--
    including the directive to “exercise critical thinking” in the
    second paragraph, together with the explicit reference to the
    “Biblical version of Creation” in the first paragraph--urges
    students to think about religious theories of “the origin of life
    and matter” as an alternative to evolution, the State-mandated
         The School Board cites two cases, Lamb’s Chapel v. Center
    Moriches Union Free School District, 
    508 U.S. 384
    113 S. Ct. 2141
     (1993), and Widmar v. Vincent, 
    454 U.S. 263
    102 S. Ct. 269
    (1981), in defense of its position that any benefit to religion
    conferred by the disclaimer is merely incidental and that, as
    such, the disclaimer does not impermissibly advance religion.
    These cases, in which the Supreme Court found that government
    action did not violate the Establishment Clause, are
         In Widmar, members of a registered religious group at a
    state university brought an action challenging a university
    policy which excluded religious groups from being able to utilize
    university facilities that were generally available for
    activities of registered student groups.    See Widmar, 454 U.S. at
    266, 102 S. Ct. at 273.   The Court found that the challenged
    policy violated the First Amendment.    See id. at 277, 
    102 S. Ct. 17
    at 278.    In reaching this conclusion, the Widmar Court explained
    that a “religious organization’s enjoyment of merely ‘incidental’
    benefits does not violate the prohibition against the ‘primary
    advancement’ of religion.”    See id. at 273, 102 S. Ct. at 276.
    The Court relied on two factors.      See id. at 274, 102 S. Ct. at
    276.    First, the Court found that, in allowing a registered
    student religious organization to use an otherwise open forum, a
    public university “does not confer any imprimatur of state
    approval on religious sects or practices.”      Id., 102 S. Ct. at
    276.    Second, the court found that use of the university
    facilities is available to a broad class of speakers, including
    nonreligious speakers.    See id., 102 S. Ct. at 277.
           Unlike in Widmar, the particular benefit to religion at
    issue here is not merely incidental.     A teacher’s reading of a
    disclaimer that not only disavows endorsement of educational
    materials but also juxtaposes that disavowal with an urging to
    contemplate alternative religious concepts implies School Board
    approval of religious principles.     Moreover, unlike the public
    forum at issue in Widmar, the disclaimer crafted by the School
    Board serves only to promote a religious alternative to
    evolution.    We know this because the only alternative theory
    explicitly referenced in the text of the disclaimer is a
    religious one.    Therefore, Widmar does not support the Board’s
           The School Board’s reliance on Lamb’s Chapel is misplaced as
    well.    In that case, the Court held that using a public school
    after school hours for the showing of religiously oriented films
    did not violate the Establishment Clause.     See Lamb’s Chapel, 508
    U.S. at 395, 113 S. Ct. at 2148.     The Court found that “this film
    series would not have been during school hours, would not have
    been sponsored by the school, and would have been open to the
    public, not just to church members.”     Id., 113 S. Ct. at 2148.
    The Court concluded that, under these circumstances, there was no
    realistic danger that the community would think that the school
    district was endorsing religion.
         There are few, if any, parallels between the instant case
    and Lamb’s Chapel.   Here, the disclaimer approved by the School
    Board is to be read during school hours by school teachers and
    explicitly encourages students to consider religious alternatives
    to evolution, a part of the state-mandated curriculum.    Unlike in
    Lamb’s Chapel, there is a much greater danger of students and
    parents perceiving that the School Board endorses religion,
    specifically those creeds that teach the Biblical version of
         The benefit to religion conferred by the reading of the
    Tangipahoa disclaimer is more than indirect, remote, or
    incidental.   As such, we conclude that the disclaimer
    impermissibly advances religion, thereby violating the second
    prong of the Lemon test as well as the endorsement test.
         The School Board additionally disputes the district court’s
    award of attorneys’ fees to Appellee Freiler.    We review a
    district court’s award of attorneys’ fees for abuse of
    discretion, and its factual findings relating to the award of
    attorneys’ fees for clear error.       See Watkins v. Fordice, 
    7 F.3d 453
    , 457 (5th Cir. 1993).    Where a decision awarding attorneys’
    fees is adequately supported by the record and the district court
    has explained its reasons for the award, there is no abuse of
    discretion.     See Strong v. Bellsouth Telecommunications, Inc.,
    137 F.3d 844
    , 851 (5th Cir. 1998).
         The district court found that Freiler was a prevailing party
    and awarded Freiler attorneys’ fees pursuant to 42 U.S.C. § 1988.
    The court used the lodestar method of determining the appropriate
    award, first multiplying an hourly rate by hours expended, and
    then adjusting the award according to the factors outlined in
    Johnson v. Georgia Highway Express, 
    488 F.2d 714
         The district court found that Freiler’s counsel kept
    contemporaneous time records, and that they were therefore not
    reconstructed.    The court found that the records contained
    sufficient detail to determine the time expended in pursuing
    Freiler’s claim.    The district court also reduced the number of
    hours that Freiler’s counsel billed by ten percent to reflect
    “possible redundancy and work which in hindsight may have been
    unnecessary.”    Lastly, the district court applied an hourly rate
    of $150,6 based explicitly on application of the Johnson factors.
           Freiler’s counsel had petitioned the court to award fees
    based on an hourly rate of $175 an hour. The court agreed that
    the $175 rate was “arguably” reasonable, but decided that a $150
    rate was more appropriate based on Johnson.
    The court multiplied the $150 rate by the adjusted billable
    hours, and awarded $49,444.50 to Freiler’s counsel.
         We affirm the district court’s award of attorneys’ fees.
    First, the billing records are sufficiently detailed under our
    analysis in League of United Latin American Citizens #4554 v.
    Roscoe Independent School District, 
    119 F.3d 1228
    , 1233 (5th Cir.
    1997).   In that case, we found that billing records were adequate
    where the records showed the date, the number of hours spent, and
    a “short but thorough description of the services rendered.”     Id.
    Second, even if Freiler’s counsel failed to contemporaneously
    produce billing records, as the School Board argued, such a
    failure “does not preclude an award of fees per se, as long as
    the evidence produced is adequate to determine reasonable hours.”
    Louisiana Power & Light Co. v. Kellstrom, 
    50 F.3d 319
    , 325 (5th
    Cir. 1995).   Third, the district court did not commit clear error
    in finding the $150 rate to be reasonable, given the declarations
    that it reviewed from three New Orleans attorneys regarding
    prevailing rates.   Fourth, the district court did not commit
    clear error when, instead of addressing the necessity and
    potential redundancy of each billed hour, it reduced the overall
    number of hours by ten percent.    Indeed, Louisiana Power & Light
    Co. v. Kellstrom, 
    50 F.3d 319
    , 325 (5th Cir. 1995), the only case
    cited by the School Board in support of its argument that a
    district court must analyze each billing item, is
    distinguishable.    In Kellstrom, the issue was whether the billing
    records were sufficiently detailed, not whether the district
    court judge had discretion to reduce the amount of hours billed
    by a percentage.   See id. at 325.
         For the foregoing reasons, we affirm the district court’s
    ruling that the disclaimer violates the First Amendment and the
    district court’s award of attorneys’ fees to Appellee Freiler.