April 28, 1999

Court nixes school counseling plan
___By Mark Wingfield
___Managing Editor
___BEAUMONT--A program that brings local clergy into Beaumont's public primary and secondary schools to act as counselors to students is unconstitutional and must be stopped, the 5th U.S. Circuit Court of Appeals ruled April 16.
___The "Clergy in the Schools" program of Beaumont Independent School District began in 1996 at the instigation of Superintendent Carrol Thomas Jr. Through this program, school officials invite clergy to provide group counseling to selected students under supervision of school officials.
___The program took place in elementary schools once each school year and in secondary schools twice each year. Students were selected for participation by school officials without prior notice and without requirement of parental consent.
___Beaumont school officials described the "Clergy in the Schools" program as a means of promoting civic virtues and morality. They instructed participating clergy not to discuss religion, quote religious materials, provide information about church services, identify their church affiliation or pray with students. Clergy were encouraged to discuss issues such as divorce but prohibited from talking about subjects such as sex and abortion.
___The appeals court found the school district's practices to violate both the United States Constitution and the Texas Constitution on multiple points.
___To reach this conclusion, the appeals court first had to overturn the district court's finding that the unnamed parents bringing the case on behalf of their four unnamed children lacked standing to bring a case at all.
___The lower court granted a summary judgment in favor of the school district because it found the aggrieved parents and their children had suffered no direct injury from the "Clergy in the Schools" program. Their children not only had not been selected to participate in the counseling sessions, but they did not know anyone else who had been either.
___In contrast, the appeals court said the plaintiffs need not have suffered direct injury but must only be local citizens whose taxes fund the school district.
___The appeals court drew a distinction between cases built upon a person's state or municipal taxpayer status versus cases built upon a person's federal taxpayer status.
___"To establish state or municipal taxpayer standing to challenge an Establishment Clause violation, a plaintiff must show only that (1) he pays taxes to the relevant entity, and (2) tax revenues are expended on the disputed practice," the appeals court wrote. "By contrast, to establish federal taxpayer standing, a plaintiff must, in addition to meeting those two requirements, show 'direct injury.'"
___Among the issues the appeals court found wrong with the Beaumont program are these:
___ The program is not truly voluntary. Although students selected for the program have an opportunity to opt out, this may not be a viable option for peer-conscious students, the court said. The justices described this as a "Catch-22" whereby students "either attend clergy counseling that he and his parents find offensive or decline after being selected and thus be subjected to the one thing that virtually no school child can abide--being perceived by his teachers and fellow students as 'different.'"
___ The program does not promote a purely secular purpose as the school district claims. "Government may play an active role in teaching civic values, virtues and the community's moral code, despite the fact that these values may overlap with religious beliefs," the justices wrote. "Nevertheless, the government's statement of secular purpose must be sincere and not a sham."
___ The program has the primary effect of advancing religion. "BISD's creation of a special program that recruits only clergymen to render volunteer counseling makes a clear statement that it favors religion over non-religion, at least in the context of those deemed suitable to participate in student counseling on matters of morality and virtue. BISD fails to include lay professionals, who are arguably well qualified to mentor students in this regard."
___ School officials wrongly created an excessive entanglement of religion with the performance of their public duties.
___ The program has a coercive effect on students. "To pass constitutional muster, the religious component of any governmental practice or policy cannot overwhelm the non-religious portions," the court wrote. "The program fails this test resoundingly. The clergy volunteers do not simply constitute a small part of a larger non-religious endeavor. They are, so to speak, the whole show."
___ The program endorses religion. "The palpably ubiquitous involvement of BISD and its highest officials--superintendent, school principals and counselors--conveys the unmistakable message that religion is favored, preferred and even promoted over other beliefs."
___School board members told the Beaumont Enterprise they are disappointed by the ruling.
___"I think it is a very sad day," said board member Woodrow Reese. "I didn't see any harm (in the program) but I did see a lot of good. Students need some type of mentors to come into schools. A lot feel they have no one to talk to, so they just drop out."

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