Chandler’s List

Laurie A. Lattimore May/June 1998 Michael Chandler has been trying to figure out why he's different. A product of northeast Alabama, Chandler has lived in De Kalb County all his life. As he walks along his deck, pointing out the boundaries of his 30-acre property, Chandler tells his junior high son not to stay out too long on the four-wheeler-it's getting cold.

He saunters into the garage to show off his 1966 silver Corvette Roadster. Then to the 1950 candy-apple red Mercury with remote control doors and the 1951 black Ford. Pointing to the black beauty, Chandler says, "This was my first car. I got it in 1967 and have had it ever since." Jesse is partial to the Corvette; the 14-year-old is counting the days until he gets to take over his dad's wheels.

Chandler grew up Southern Baptist and married a Methodist. He's been teaching in De Kalb County since he graduated from nearby Jacksonville State University and the University of Alabama in Tuscaloosa, just 100 miles down the road.

Chandler is not a troublemaker. A dedicated educator and self-professed Christian, he's just doing what he believes is right. Unfortunately, his fight to uphold the First Amendment put him at odds with many of his neighbors. When he was responsible for getting Alabama's 1993 school prayer law overturned last spring, the opposition let loose. When the federal court judge followed up his March 12 decision with an October 29 injunction for De Kalb County, the opposition turned into hysteria.

"I can't figure out," Chandler says, "why nobody else sees it."

At least one important player does see it his way. Judge Ira DeMent determined in March 1997 that a state law allowing student-initiated voluntary prayer violated the Establishment Clause of the U.S. Constitution. The state law allowed for "nonsectarian, nonproselytizing student-initiated voluntary prayer, invocation and/or benedictions" during compulsory or non-compulsory school-related events, including assemblies, commencement exercises and athletic events.

In the 18-page decision for Chandler v. James, DeMent argued that while much of the religious activity in De Kalb County may have been led by students, it still carried government endorsement because of its time, place, and manner. Subjecting all students to listen to a prayer offered to God or to a scripture reading from the Bible is the school's sponsorship of Christianity-even if student-initiated and student-led.

"Because the resources and facilities of the state are utilized when a 'student-initiated' prayer is given in the public schools, those hearing the prayer may be led to believe the state is associated with or endorses either the speaker's religion or religion over nonreligion," DeMent wrote. The judge explained that what is considered permissible religious activity in some settings actually violates the government's neutrality toward religion in public schools. Quoting from the landmark Lee v. Weisman (1992), in which prayers were outlawed during graduation exercises, DeMent noted that what believers may think is merely asking for respect of their religious convictions is often an attempt to employ the state, via the public schools, to "enforce a religious orthodoxy."

And that is exactly what Chandler found. Videotaping school assemblies and football games for more than 10 years, Chandler, the assistant principal at Valley Head High School, was able to convince the judge that De Kalb County schools were essentially endorsing Christianity and stopping just short of trying to evangelize it. In fact, one letter to the editor in the Alabama Baptist News Journal stated that the paper's support of the judge's ruling was blasphemy because the decision prohibited the mission to spread the gospel in public schools.

But in his March ruling and October injunction, DeMent carefully stressed that he is not banning students' rights to religious expression at school. In fact, the judge distinguishes the legal from the illegal in his injunction: students can use religious textbooks if material is presented in an historical/ objective manner; express religious beliefs in their homework, reports, artwork, and other assignments or through personal jewelry and clothing; engage in religious activity during noninstructional time; pray individually at a graduation ceremony or make reference to God during a speech as long as it does not call on audience response; make announcements over PA systems about meeting times for religious clubs or activities; and distribute religious material during noninstructional time. Students can even gather a group to pray together during noninstructional hours as long as only those who wish to participate are involved.

On the other hand, he said that students are not allowed to offer vocal prayer, scripture readings, or devotion during instructional time, even if student-led; lead a public prayer or give a devotional during graduation exercises; say a prayer over the PA system at school or school-sponsored athletic events; and allow outside groups to pass out Bibles on campus and during instructional time. The judge dismissed the idea of students leading prayers during classtime and just announcing that those who do not want to participate are not forced to.

"Students can really do anything they want as long as they don't force others to do it with them," Chandler said, noting the decision does not take away rights but rather clarifies the religious liberty students do have. Because school administrators in Alabama can be sure most prayers and other religious activities will come out of a Christian faith, they aren't worried about prayers broadcast over PA systems and at assemblies, he added. "They wouldn't be in favor of freedom of religious expression if it weren't Protestant."

Chandler's concern over illegal religious activity started in the early 1980s, when a new student to Valley Head Elementary School requested not to sit in on the religion classes. The young Jehovah's Witness would not stand for listening to a Protestant preacher while attending a public school.

"I didn't know we had religion classes, but I found out it was true-a pastor came in every week and made the rounds to every classroom for a Bible study lesson," Chandler said, adding that he promptly arranged for the girl to spend the religion period sitting in his office. However, this led to ridicule by her classmates. "I went to the school board and they refused to stop it. They told me the classes did some good."

Having failed to put an end to the unconstitutional practices through a school board mandate, Chandler began documenting his complaints with written records and videotapes. Such labor for more than a decade was the bedrock of evidence in DeMent's determination that De Kalb County was in fact violating the First Amendment by following the state's school prayer law. Some of Chandler's cited violations include prayers before required school assemblies, prayers broadcast over the PA system at school and at football games, and Bibles passed out by Gideons during classtime.

"The Gideons would walk down the aisles of a classroom and hand out Bibles," Chandler recalled. In one instance a boy refused to take the Bible. "He drew back, and the Gideon asked why wouldn't he want to take the Book that could change his life. That made me mad, because kids feel pressured."

Chandler and his wife, Barbara, knew that once he contacted the ACLU over the religion in schools issue, the family would take some heat. But Chandler admits he did not expect the barrage of opposition over what he considers a fairly cut-and-dried constitutional matter.

"They've been doing it so long, they actually think they've got the right to continue," Chandler stated.

As is often the case, the most vocal against DeMent's ruling have no idea what his decision prohibits and what it permits. Prayer is no longer just a spiritual act in De Kalb County; it is a political agenda across the state.

Since the October decision, students at various De Kalb County schools have protested. Twenty-three students in Fyffe were suspended for cutting class to participate in a prayer demon-stration. In Boaz hundreds of students filed out of classes to meet on the tennis courts and pray. Nearly 60 students in Albertville refused to go to classes. Instead they marched to City Hall and prayed around the flagpole. Students at Sardis, Crossville, Glencoe, and Sand Mountain high schools met at midfield during the halftimes of their hometown football games to pray-more for protest than conviction, no doubt.

A Saturday night rally in Rainsville the week after DeMent's order attracted thousands to the local community center. Headed by Dean Young, rally organizers claimed DeMent's ruling "took God out of schools" and violated students' rights to religious liberty. Young, chief of Alabama's Christian Family Association, is most widely known for his association with Judge Roy Moore, the Etowah County judge who has gained notoriety and celebrity for his fight to keep the Ten Commandments on his courtroom wall.

Ignoring the U.S. Constitution and legal precedent for the last 30-plus years, Young is calling for the religious tradition of the Bible Belt to be the order of the day.

"It is a sad day in this state and nation when a single judge can force his opinion on the people of Alabama when the vast majority of the citizens in this state disagree with that opinion," Young stated. "If one federal judge can dictate to the people of this state how they cannot perform religious activities, we are not very far from the time when they will remove all religious rights of the people."

It hasn't helped that Alabama's Governor Fob James and Judge Moore are two of the most outspoken against DeMent's order. After all, down South, school prayer is a good vote-getter at election time in November. James stated his support for the student protests and even encouraged such reaction. "I am totally sympathetic to students, teachers, and all Alabamians who lawfully protest Judge DeMent's unlawful order to strip them of their constitutional right to acknowledge God in or near public schools," the governor said.

The problem stems from a basic conflict over the meaning of church-state separation. Since the Supreme Court first identified the legal separation of church and state in Engle v. Vitale (1962), the balance between the free exercise of religion and a state- sponsored religion has been a sticky one. The Court ruled in Engle that a prayer recited before school every morning was state-sponsored and therefore unconstitutional. A year later the Supreme Court said reading a scripture and reciting the Lord's Prayer were advancing religion-a position the Court has reinforced in a variety of cases over the past three decades.

Alabama's early attempts to pass a state law permitting prayer in schools were shot down in Wallace v. Jaffree (1985); the Court said the way the law was written made the moment of meditation or voluntary prayer cross the line of separation between religion and government. Now Judge DeMent has said the Constitution still reads the same as it did in 1985, as it did in 1962-that government attempts to legislate prayer into public schools violates First Amendment guarantees.

But Alabama has a history of being stubborn. In spite of the legal precedents, Alabama officials are determined to push the issue on the U.S. Supreme Court once again.

The day of DeMent's October injunction, the American Center for Law and Justice of Alabama was already inundating pressrooms with a release stating its opposition.

"This is a classic case of overbreadth," said Stuart J. Roth, executive director of the ACLJ of Alabama. Roth claimed DeMent had proscribed vocal prayer, Bible devotionals, scripture readings, and distribution of religious materials completely. "This injunction will inevitably create 'religion-free' zones in public schools throughout the state and invite government censorship of clearly protected free speech."

Taking advantage of the situation by offering legal counsel to students who believed their constitutional rights were abridged as a result of the injunction, Roth has since joined with Alabama attorney general Bill Pryor in filing an appeal in U.S. district court and has been litigating the issue for students who believe their rights have been violated.

"[DeMent's] order strikes at the very heart of fundamental religious liberties," Roth stated. "Our country's religious liberties must be protected so that public school students have the right to share their religious beliefs with fellow students in the marketplace of ideas."

Pryor, who curiously supported DeMent's ruling in March when the judge struck down Alabama's latest school prayer law, is most likely appealing the ruling for its political boost (informal polls in the local press suggest that anywhere from 60 to 80 percent of respondents favor prayer in school). Pryor is concerned only with portions of the ruling that he claims limit constitutional religious expression. "I am committed to this appeal and to the restoration of our students' right to prayer and free expression of their religious feeling," Pryor stated.

Some of the opposition revolves around the monitors Judge DeMent ordered in each De Kalb County school to ensure the schools do not continue with the unconstitutional religious practices. While almost all legal scholars recognize these "prayer police" are potential red flags if their authority is abused, DeMent's watchdog plan is taken directly from the 1960s, when courts used monitors to guarantee that the civil rights of all students were obeyed.

"This federal monitor business is an injustice," said Dean Young. "We are seeing our children being squeezed out of their religious liberties, and if we don't do something now, it will continue to get worse."

Pamela Sumners, a Birmingham attorney working with the American Civil Liberties Union on behalf of Chandler, noted that the ACLU agreed to join in having those phrases withdrawn, but the state refused. Sumners believes the governor and attorney general have too much political popularity to milk from this case before letting it go.

"The response we got was that there would be no accommodation to rewriting the case. It is an election year, and they want to appeal," she said. "It is the sheerest, crassest propaganda I have ever seen."

Sumners believes the governor is just wasting taxpayer money with his lawsuit. "If the Supreme Court doesn't just throw it out at the beginning, I think they'll just tell James the same thing they told him 12 years ago . . . that he is wrong."

For now the governor is enjoying chastising the Supreme Court and the federal courts for "wrongfully taking power away from the states" in his estimation (see box). Ironically, James would like to see the matter of state's rights answered by federal power-the U.S. Congress. And in the immediate case, James wants President Clinton to go over the court decision and rule it does not apply to the state of Alabama.

"If Clinton had the guts of the great presidents-Jefferson, Jackson, and Roosevelt-he would not allow this order to be followed," James said.

But while James and Pryor continue making the prayer issue a political one, Michael Chandler, with his list of abuses, is fighting to teach his students that they do have religious rights-individual rights granted by the Constitution, not rights promulgated through majority rule-and that those rights apply to everyone, not just Christians.

Chandler knew when he started this fight more than a decade ago that it could come to this. But for the sociology/psychology teacher who was given the 1997 Religious Freedom Award from Americans United for the Separation of Church and State, constitutional rights are always worth standing up for.

"I have no regrets. I'll go to the Supreme Court if I have to," Chandler said, noting his motivation is for the students. "I hope they can go to school and are free to think whatever they want . . . with no coercive prayers."

Laurie A. Lattimore is news editor of the Alabama Baptist.




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Side Bar

WHISTLIN' DIXIE

by Laurie A. Lattimore

Judge DeMent's ruling against De Kalb County's violation of the First Amendment has become quite a platform for Alabama governor Fob James, who will run for his second term in November. When a Dothan high school principal reported that the band would not be allowed to play three religious Christmas carols in its program, the governor used the incident to broadcast another address on his opposition to DeMent. The governor failed to mention that the Dothan city school board had overruled the principal and determined the religious songs would not be a violation of DeMent's order.

"The attorney general and the governor saying that a valedictorian can't deliver a speech about how Mother Teresa influenced her life, and claiming that students can't use their Bibles in school or sing 'Silent Night,' are just blatant falsehoods," said Pamela Sumners of the ACLU, adding that polls indicating many Alabamians support the governor proves their ignorance. "We get what we elect."

And what they elected is a governor who believes the real issue in this case is not school prayer but jurisdiction. While lawyers and legal scholars debate the provisions of Judge DeMent's order, the governor is fighting to get the case thrown out. James believes the state constitution, not the Bill of Rights of the U.S. Constitution, is controlling, and therefore, federal courts, including DeMent's, have no authority on school prayer.

"We need to deal with the fundamental issue that Judge DeMent does not have the legal authority to meddle in the legal affairs of the people," James said from his Montgomery office, which lies less than 500 feet away from the historical site marking the birth of the Confederacy-the epitome of state's rights versus federal authority. "There is no shadow of a doubt that [DeMent] is out of line."

Feeling so strongly about his position, James wrote a 34-page letter to DeMent last June, claiming that the Constitution gave only certain authority to the federal government; where life, liberty, and property were concerned, the Constitution relegated power to the states. James argues religious liberty is therefore defined by the state, not the First Amendment. He further contends that using the Fourteenth Amendment to apply the First Amendment to the states is an illegal use of the Court's authority.

Sumners laughs at James's "secessionist tirade," pointing out the spanking Alabama received 13 years ago in the Wallace v. Jaffree case. James and his attorney son, Fob James, Jr., argued to the Supreme Court then that the application of the First Amendment to the states through the Fourteenth Amendment was absurd. The Court rejected the claim and subsequently struck down Alabama's school prayer/moment of silence law.

Thomas Berg, a law professor at Cumberland Law School in Birmingham, is a little softer in his criticism of James's opinion. Nevertheless, he thinks the governor's argument is a moot point. The law professor pointed out that historically there is some question about whether the Fourteenth Amendment was to apply to the states. Berg cited a statement by J. Bingham and J. Howard, two of the proposers of the 1867 amendment, in which they say clearly it is meant to apply to the states. "So that is definite evidence," he said.

However, Berg said there is a legitimate rebuttal as well. In 1875 Congress considered, and rejected, an amendment specifically stating that no state could establish a religion or prohibit the free exercise thereof. Governor James and others like him believe that such an amendment would never have been proposed had it been clear in 1867 that the Fourteenth Amendment was applying the First Amendment to the states.

But Berg-and more importantly for James, the Supreme Court-doesn't even question that the First Amendment does override state constitutions.

"It has been binding precedent for 50 years, and I think people want the Bill of Rights to apply to them," Berg said. "James will have no luck getting the Supreme Court to think otherwise."

Berg believes there are questionable areas in DeMent's ruling, but he would advise remanding the order back to the judge for clarification and more precise wording.

"Overall, the judge is right in line with the Supreme Court, and in my opinion, is constitutionally right and morally right," Berg said, which means that Governor James, with his assault on the incorporation of the First Amendment to the states, is, basically, whistlin' Dixie.

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Article Author: Laurie A. Lattimore