MATTHEW STARK v IND SCHOOL DIST #640
United States Court of Appeals
for the eighth circuit
___________
No. 96-3250
___________
Matthew Stark, Marcia Neely, *
*
Plaintiffs/Appellees, *
*
v. *
*
Independent School District, *
No. 640, and the members of *
its Board of Directors, *
*
Defendant/Appellant, * Appeal from the United States
* District Court for the
Leon Plaetz, Curtis Trost, * District of Minnesota.
Scott Frederickson, Tom Franta, *
Barb Beranek, Alois Guetter, *
*
Defendants. *
*
_________________ *
*
Jeff Paskewitz, Mavis *
Paskewitz, Stuart Paskewitz, *
Ben Paskewitz, Ron Paskewitz, *
Naomi Paskewitz, Carrie *
Paskewitz, Joe Paskewitz, *
Gordon Barber, Twyla Barber, *
Peter Barber, Cindy Logan, *
Sheldon Logan, Joanna Logan, *
Clayton Paskewitz, Linda *
Paskewitz, Trisha Paskewitz, *
Minnesota Education Association,*
Minnesota Federation of *
Teachers, *
*
Amicus Curiae. *
___________
Submitted: November 20, 1996
Filed: August 21, 1997
___________
Before WOLLMAN, BEAM, and MURPHY, Circuit Judges.
___________
WOLLMAN, Circuit Judge.
This is an appeal from an injunction enjoining the operation
of a public school. We reverse and remand with directions to
dismiss the complaint.
Factual Background
Independent School District No. 640 (the district) is a rural
school district located in southwestern Minnesota. It covers
approximately 225 square miles of agricultural land, including the
towns of Wabasso and Vesta. The district operated elementary
schools in both Wabasso and Vesta until the 1983-84 school year.
It closed the Vesta elementary school and sold the building in May
1984. Thereafter, the Vesta children attended the Wabasso school,
which is approximately fourteen miles from Vesta.
Lloyd Paskewitz bought the old Vesta elementary school
building in 1991. Paskewitz and several other Vesta families are
members of a religious group known as the Brethren, a group that
originated in Dublin, Ireland, in the late 1820s.(1) See Bryan
Ronald Wilson, "The Brethren" A Recent Sociological Study (1981).
(Appellees' App. Ex. W.) It is undisputed that the Brethren have
a sincerely held religious belief in avoiding the use of
technology, including televisions, radios, videos, films, and
computers.
In August 1992, Paskewitz, on behalf of several of the Vesta
Brethren families, wrote to Dr. George Bates, the district's
superintendent, about the possibility of reopening the Vesta
elementary school in the form of a multi-age classroom. Paskewitz
offered to lease space in the old school to the district in
consideration of the district's providing a teacher and supplies.
Paskewitz's letter stated, "[w]e would have no objection to it
being a public school," but requested that "the charter of the
school in Vesta" contain a clause stating "[t]hat no T.V., Radios,
Videos, and Computers be used." Paskewitz stated that there were
approximately twenty-one Brethren children that would be interested
in attending and that the group had heard that other, non-Brethren
children might be interested in attending the Vesta school.
Paskewitz's letter also noted that the Brethren children would not
require transportation or school lunches, as the children could
walk to school and would go home for lunch in accordance with their
religious beliefs.
Dr. Bates attested that he considered the feasibility of
opening a multi-age classroom in Vesta. He stated that the primary
benefits of such a classroom included the reduction in the number
of students being bussed to Wabasso, the availability of an
additional multi-age classroom, the reduction in class sizes in
grade-specific classrooms, and the alleviation of space shortage in
the Wabasso building. He noted
that the relative costs of the proposed classroom were minimal.
After holding public meetings, the school board unanimously
approved the proposal. Members of the school board attested that
they approved the opening of the Vesta school for several reasons,
most of which were financial. Opening the Vesta school would
prevent the Brethren children from possibly being home-schooled,
which would have meant a loss in state aid of roughly $3,200 for
each student withdrawn from school. A Vesta school eliminated the
need to bus Vesta students to Wabasso, and it was more economical
to send one teacher to Vesta than to bus Vesta children to Wabasso.
Additionally, opening a multi-age classroom in Vesta would provide
educational benefits for those students who otherwise might have
been home-schooled. Dr. Bates and the school board members
attested that during the approval process they did not discuss the
religious backgrounds of the parents or students who might attend
the Vesta school, nor were those religious backgrounds relevant to
their decision.
A three-year lease was signed on October 12, 1993, by the
district, Paskewitz, and the Brethren.(2) The lease provided that
the Vesta school would be operated by the district in the form of
a multi-age classroom and would be "a public school for any
resident student in the School District." The district would
provide teachers and administrative services, establish the
curriculum "in compliance with state laws and rules," and provide
classroom materials for instruction. The parents of the Brethren
children would "have the right to comment on and provide input
regarding" classroom materials "to the same extent as other parents
in the School District," but the district retained "the sole
discretion" regarding "final approval" of textbooks and
instructional materials. The lease provided that "[t]he School
District shall, to the extent permitted under applicable law and
rules and regulations . . . limit the use of technology such as
television, radio, audio and/or video recordings, computers and
movies in the classrooms at the school." The district would
provide special education, certain federally funded educational
services, and counseling services, as well as instruction in
health, physical education, and music at the Wabasso School to any
Vesta students needing them.(3) The lease stated that "[a]ll
policies adopted by the [School District] . . . shall apply at the
[Vesta] school." Paskewitz and the Brethren agreed to pay all
utilities, provide custodial services, repair and maintain the
building and grounds, pay property taxes, provide property and
liability insurance related to the building, and remove snow.
The district planned to operate three multi-age classrooms
during the 1993-94 school year, two in Wabasso and one in Vesta.
The district solicited students for these classrooms, and fifty-
four students signed up and were allowed to request which school
they wished to attend. Thirty-five chose the Wabasso school, and
the remaining nineteen chose the Vesta school. Eleven parents of
twenty-nine current or former Vesta students attested that they
preferred sending their children to the Vesta school rather than
the Wabasso school because they liked the convenience of having
their children attend a school within walking distance and having
their children come home for lunch. They also preferred the multi-
age Vesta classroom to a grade-specific one in Wabasso.(4) Although
the Vesta school is open to any student in the district who wishes
to attend there, apparently only Brethren children have attended
the Vesta school since it opened.
Dr. Bates and the two Vesta teachers attested that the same
elementary curriculum is taught at the Vesta school as is taught at
the Wabasso school. Technology, in the form of computer
instruction, is a standard part of that curriculum for each grade
level. The teachers testified that when the Vesta school first
opened, students wishing computer instruction would have been
bussed to the Wabasso school to receive it. Both attested that the
district now provides computer and audio/visual equipment to them
at the Vesta school upon request. Although technology is available
to all students, both teachers testified that they do not regularly
use technology in their classroom instruction.
Minnesota law requires school districts to establish a
procedure that allows parents to review the content of
instructional materials provided to a minor child. If the parent
objects to that content, the district must make reasonable
arrangements for alternative instruction. See Minn. Stat. Ann.
126.699 (West 1994). The district's policy allows students with
religious objections to be excused from objectionable classes or
activities. If the class or activity is a required one, "suitable
alternative activities shall be provided." Dr. Bates attested that
the district has received numerous objections to various
activities, including the use of computer technology, drug
education, self-esteem training, certain books and audio and visual
presentations, and sex education; that the district does not
inquire into the motivations for a parent's objections; and that
the district provides alternative instruction.
All of the Brethren parents have objected to the use of
computers at the Vesta school and have asked for alternative
instruction for their children, which has been provided.
Accordingly, the educational curriculum at the Vesta school does
not include the use of computers, videos, films, or audio
presentations. While the Brethren children were attending the
Wabasso school prior to the reopening of the Vesta school, the
district accommodated their religious objections and allowed them
to avoid
participating in the use of technology.(5) It is undisputed that, in
light of the accommodations the district would make at the Wabasso
school for the Brethren children, the Brethren children have
received exactly the same education at the Vesta school that they
would have received if they had continued to attend the Wabasso
school. It is also undisputed that no religious instruction has
taken place at the Vesta school and that no religious artifacts are
present.
Procedural History
Matthew Stark and Marcia Neely are Minnesota citizens
utilizing taxpayer standing who filed suit against the district(6)
seeking a declaratory judgment that the creation and operation of
the Vesta school violates the Establishment Clause of the First
Amendment to the United States Constitution and article 1 section
16 of the Minnesota Constitution. They also sought an injunction
prohibiting the district from operating the Vesta school in
conformance with Brethren beliefs, a judgment requiring the
district to refund to the State of Minnesota all state aid the
district received for children attending the Vesta school, and an
award of attorney fees.
The case was submitted to the district court on cross-motions
for summary judgment. The court concluded that "the facts
presented by this case provide a clear example of state
sponsorship, or the advancement of a religion which violates the
mandates of the First Amendment." The court concluded that the
district had modified the Vesta school's curriculum "based solely
on the request of a religious group."
The district court further concluded that the primary effect
of the opening of the Vesta school was that of promoting religion;
that "the opening, and the manner of operation of, the Vesta school
lacks a secular purpose and was done to conform to the religious
beliefs of the Brethren"; and that the district had thus created
"an impermissible identification of its powers and duties with the
religious beliefs of the Brethren." The court entered an
injunction permanently enjoining the district "from operating the
Vesta School or any other school in conformance with the Brethren's
religious objections to the use of computers and other technology
and media." The court did not rule on the refunding of state aid
money or on the matter of attorney fees.
Following the district court's denial of the district's motion
for a stay pending appeal, we entered an order staying the district
court's injunction. Stark and Neely have moved to dissolve the
stay. Stark and Neely have dismissed their refund claim, and their
claim for attorney fees has been stayed pending the outcome of this
appeal.
First Amendment
We begin by noting that the decision by the district to open
a school and to accommodate parental requests for exemption from
aspects of the district's chosen curriculum falls within the
heartland of the "comprehensive powers and substantial discretion"
that are generally afforded to school districts in "discharg[ing]
the important tasks entrusted to them." Pratt v. Independent Sch.
Dist. No. 831, 670 F.2d 771, 775 (8th Cir. 1982). See Wisconsin v.
Yoder,
406 U.S. 205, 235
(1972) ("[C]ourts are not school boards or
legislatures, and are ill-equipped to determine the `necessity' of
discrete aspects of a State's program of compulsory education.").
Despite this considerable discretion, courts have recognized that
school boards must exercise their powers "`in a manner that
comports with the transcendent imperatives of the First
Amendment,'" and courts "have been particularly vigilant in
monitoring compliance with the Establishment Clause in elementary
and secondary schools." Edwards v.
Aguillard,
482 U.S. 578, 583-84
(1987) (quoting Board of Educ.,
Island Trees Union Free Sch. Dist. No. 26 v. Pico,
457 U.S. 853,
864
(1982)).
As the Supreme Court has stated, courts "do not . . .
intervene in the resolution of conflicts which arise in the daily
operation of school systems and which do not directly and sharply
implicate basic constitutional values." Epperson v. Arkansas,
393
U.S. 97, 104
(1968). Cf. Capitol Square Review and Advisory Bd. v.
Pinette, 115 S. Ct. 2440, 2448 (1995) (plurality opinion)
("[O]utsiders or individual members of the community uninformed
about the school's practice. . . . might leap to the erroneous
conclusion of state endorsement.").
A.
The applicable test for evaluating whether state action has
violated the Establishment Clause is that established by Lemon v.
Kurtzman,
403 U.S. 602, 612-13
(1971). See Lamb's Chapel v. Center
Moriches Union Free Sch. Dist.,
508 U.S. 384, 389
n.7 (1993)
("Lemon, however frightening it may be to some, has not been
overruled."). "In order to satisfy the Lemon test, a challenged
governmental action must (1) have a secular purpose, (2) not have
the primary or principal effect of advancing religion, and (3) not
foster an excessive entanglement with religion." Good News/Good
Sports Club v. School Dist. of Ladue, 28 F.3d 1501, 1508 (8th Cir.
1994) (footnote omitted) (citing Lemon,
403 U.S. at 612
-13). See
also Agostini v. Felton, Nos. 96-552 & 96-553, 1997 WL 338583, at
*19 (U.S. June 23, 1997) ("Thus, it is simplest to recognize why
entanglement is significant and treat it . . . as an aspect of the
inquiry into a statute's effect.").
The decision to open a school in Vesta furthers the valid
secular purpose of educating the district's children. See Mueller
v. Allen,
463 U.S. 388, 395
(1983) (state has "secular purpose of
ensuring that the State's citizenry is well educated"); Wolman v.
Walter,
433 U.S. 229, 240
(1977) ("There is no question that the
State has a
substantial and legitimate interest in insuring that its youth
receive an adequate secular education."); Everson v. Board of Educ.
of Ewing Tp.,
330 U.S. 1, 7
(1947) ("It is much too late to argue
that legislation intended to facilitate the opportunity of children
to get a secular education serves no public purpose."). The
district's decision to open the school in Vesta was based upon the
secular reasons of space efficiency, savings in transportation
costs, and the addition of a multi-age classroom and corresponding
reduction in class sizes. Further, the decision forestalled the
plans of certain parents to home-school their children and thus
prevented a reduction in the amount of state aid flowing to the
district, funding that benefits all students within the district.
Relying primarily on School Dist. of Grand Rapids v. Ball,
473
U.S. 373
(1985), and Parents Ass'n of P.S. 16 v. Quinones, 803 F.2d
1235 (2d Cir. 1986), the district court concluded that the primary
effect of the district's decision to open the school at Vesta was
to promote religion. The court noted that the Vesta school is
perceived as a Brethren school and that the district had thus
"create[d] an impermissible identification of its powers and duties
with the religious beliefs of the Brethren."
Quinones involved a plan to educate Hasidic Jewish girls at a
public school by physically separating a group of classrooms from
the rest of the school and dedicating them for their use, and
providing only female public school teachers who would teach
primarily in Yiddish, with English taught as a second language.
See Quinones, 803 F.2d at 1237. The Second Circuit concluded that
this plan created "a symbolic link between the state and the
Hasidic sect" which appeared to endorse the separatist religious
views of the Hasidic Jews and that the plan thus failed the primary
effect test. See id. at 1241-42.
This case is distinguishable because the Vesta school does not
involve the complete segregation and dedication of part or all of
a public facility to a group of students for religious reasons as
in Quinones. That portion of Grand Rapids on which
the district court relied has now been overruled. See Agostini,
1997 WL 338583, at **16, 21.
The Vesta school is a public school open to all, and there is
no evidence that any students wishing to attend there have been
turned away. Further, that the school board's decision to open the
Vesta school coincided with certain parents' desire to see a public
school opened in Vesta does not compel a finding that the primary
effect of the decision was to advance religion or that the district
was sending a message of approval or disapproval of individual
religious choices. See Clayton by Clayton v. Place, 884 F.2d 376,
380 (8th Cir. 1989) ("The mere fact a governmental body takes
action that coincides with the . . . desires of a particular
religious group . . . does not transform the action into an
impermissible establishment of religion."). Any incidental
benefits to the Brethren's religious beliefs are secondary to the
primary effect of providing an additional school for the secular
education of Vesta children. Cf. Good News/Good Sports Club, 28
F.3d at 1508 (incidental benefits to religion from policy of
allowing group access to school property were secondary to primary
effect of providing neutral forum for exchange of ideas).
Although a district may not modify its curriculum to conform
to a set of sectarian beliefs, see Edwards v. Aguillard,
482 U.S.
at 593
; Epperson v. Arkansas,
393 U.S. at 106
; Pratt, 670 F.2d at
776-79 (removal of film from curriculum), nothing of the sort has
happened here. As evidenced by the material submitted to the
district court, the district's curriculum has not been altered in
any way at the Vesta school, and the same curriculum is taught at
Vesta as at the Wabasso school. While technology was not initially
provided at the Vesta school, and students not exempted from it
would have been bussed to Wabasso to receive it, the record shows
that technology is now available at the Vesta school. Thus,
contrary to the district court's finding, technology has never been
unavailable to students at the Vesta school. In sum, the
curriculum--whether the substantive curriculum or the availability
of technology--has not been
modified or changed in any way at the Vesta school from what is
taught at the Wabasso school.
The district granted the parental requests for exemption from
technology pursuant to Minn. Stat. Ann. 126.699 and district
policy. Granting the parental requests made pursuant to the
statute and the policy served the secular purpose of facilitating
the secular education of children at the Vesta school. Even if the
district's decision to honor the requests for exemption was
motivated by a desire to accommodate the Brethren parents'
religious beliefs, such accommodation constitutes a legitimate
secular purpose so long as "the relevant governmental decisionmaker
. . . [does not] abandon[] neutrality and act[] with the intent of
promoting a particular point of view in religious matters." See
Corporation of the Presiding Bishop of the Church of Jesus Christ
of Latter-Day Saints v. Amos,
483 U.S. 327, 334-35
(1987); see also
Lynch,
465 U.S. at 673
("Nor does the Constitution require complete
separation of church and state; it affirmatively mandates
accommodation, not merely tolerance, of all religions, and forbids
hostility toward any."). The record shows that the district honors
all parental exemption requests, regardless of motivation.
The district's actions in granting the parental requests for
exemption did not have the primary effect of advancing religion.
"A law is not unconstitutional simply because it allows churches to
advance religion . . . . For a law to have forbidden "effects"
under Lemon, it must be fair to say that the government itself has
advanced religion through its own activities and influence." Amos,
483 U.S. at 337
. Although the religious beliefs of the Brethren
parents were accommodated by the granting of their requests for
exemptions, the district itself did not advance religion by
honoring those requests. See id. at 336-37 (any advancement of
religion as a result of exemption for religious groups in Civil
Rights Act of 1964 could not be "fairly attributed" to the
government).
We conclude that the district's application of state law and
district policy to grant parental requests for exemption will not
result in any excessive entanglement.
Because the record shows that the district grants all parental
exemption requests and routinely provides alternative instruction,
its policy actually "promotes less, rather than more," involvement
with religion because the district avoids considering parents'
motivations--including religious motivations--for requesting
exemptions. See Clayton, 884 F.2d at 379; Good News/Good Sports
Club, 28 F.3d at 1510 (no excessive entanglement where, in applying
open-access school use policy, school would not have to distinguish
among types of groups wanting to use school). The teachers have
altered their teaching methods only to the extent necessary to
accommodate the parental exemption requests, as they would any
exemption request. See Agostini, 1997 WL 338583, at *20
("Entanglement must be `excessive' before it runs afoul of the
Establishment Clause."); Wolman,
433 U.S. at 248
("It can hardly be
said that the supervision of public employees performing public
functions on public property creates an excessive entanglement
between church and state."); cf. Mueller,
463 U.S. at 403
(no
excessive entanglement from requirement that state officials
examine textbooks to determine if they qualify for tax deduction so
that deductions for sectarian books could be disallowed).
In conclusion, neither the decision to open the Vesta school
nor the district's application of the exemption policies violates
the Lemon test. Both actions had a secular purpose and did not
have the primary effect of advancing religion or endorsing the
Brethren's religious beliefs. Cf. Agostini, 1997 WL 338583, at
*21.
B.
Stark and Neely argue that the present case involves a
situation that is indistinguishable from that in Board of Educ. of
Kiryas Joel Village Sch. Dist. v. Grumet,
512 U.S. 687
(1994). In
that case, the Supreme Court held unconstitutional a special state
statute which created a school district for a village defined
exclusively along religious lines. See id.,
512 U.S. at 693
. The
"fundamental source of constitutional concern" in Kiryas Joel was
that the legislature had not exercised its
power in a manner neutral to religion. See id. at 703. The Court
was concerned that "[b]ecause the religious community of Kiryas
Joel did not receive its new governmental authority simply as one
of many communities eligible for equal treatment under a general
law, we have no assurance that the next similarly situated group
seeking a school district of its own will receive one." Id.
(footnote omitted). This lack of neutrality forced the Court to
conclude that the creation of the school district violated the
Establishment Clause. See id. at 704-05. Further, the legislation
could not be saved by viewing it as an accommodation of religion
because the "proposed accommodation singles out a particular
religious sect for special treatment," violating the principle of
"neutrality as among religions." Id. at 706-07.
This case is not Kiryas Joel. As we discussed earlier, the
record does not support Stark's and Neely's contention that the
district has taken special actions to wrongly benefit the Brethren,
and the fact that the district's actions coincide with the desires
of certain parents does not mean that the Establishment Clause has
been violated. See Clayton by Clayton, 884 F.2d at 380.(7) The
district here decided, for secular reasons, to open a public school
in a building in which a public school had previously been located,
a school that is open to all students regardless of religious
affiliation. The district grants the requests of all parents for
exemptions regardless of religious affiliation.
The extension of a benefit through the neutral application of
state law and the district's policy to allow parental requests for
exemption from curriculum--even if those requests are motivated by
the religious reasons of the parents and the honoring of the
requests accommodates those religious beliefs--does not violate the
Establishment Clause. The Supreme Court has said:
A central lesson of our decisions is that a significant
factor in upholding governmental programs in the face of
Establishment Clause attack is their neutrality towards
religion. . . . We have held that the guarantee of
neutrality is respected, not offended, when the
government, following neutral criteria and evenhanded
policies, extends benefits to recipients whose idealogies
and viewpoints, including religious ones, are broad and
diverse.
Rosenberger v. Rector and Visitors of the Univ. of Virginia, 115 S.
Ct. 2510, 2521 (1995); see also Agostini, 1997 WL 338583, at *18
("[W]here the aid is allocated on the basis of neutral, secular
criteria that neither favor nor disfavor religion, and is made
available to religious and secular beneficiaries on a
nondiscriminatory basis . . . the aid is less likely to have the
effect of advancing religion.").
The state action in this case is well within the boundaries
set by cases in which the Supreme Court has upheld "government
programs that neutrally provide benefits to a broad class of
citizens defined without reference to religion." Zobrest v.
Catalina Foothills Sch. Dist.,
509 U.S. 1, 8
(1993). See, e.g.,
Rosenberger, 115 S. Ct. at 2521-25 (neutral program paying for
printing of student publications); Zobrest,
509 U.S. at 10
-14
(sign-language interpreter for deaf student at Catholic high
school); Witters v. Washington Dep't of Servs. for the Blind,
474
U.S. 481, 486-89
(1986) (vocational assistance for blind person
studying for religious vocation at Christian college); Mueller,
463
U.S. at 396
-99 (tax deduction for educational expenses); Widmar v.
Vincent,
454 U.S. 263, 273-75
(1981) (open access to university
facilities); Wolman,
433 U.S. at 237
-48 (textbooks, testing,
diagnostic and therapeutic services); Board of Educ. of Central
Sch. Dist. No. 1 v. Allen,
392 U.S. 236, 243-44
(1968) (textbooks);
Everson,
330 U.S. at 17
(bussing reimbursement). Indeed, by
granting exemptions without regard to parental motivations, the
district has adhered to the principle that "[a] proper respect for
both the Free Exercise and the Establishment Clauses compels the
State to pursue a course of neutrality toward religion, favoring
neither one religion over
others nor religious adherents collectively over
nonadherents." Kiryas Joel,
512 U.S. at 696
(quotation omitted).
To the extent that the district's application of the state law
and district policy to grant the parental requests for exemption
can be viewed as accommodating religion by removing a burden from
the Brethren families (forcing their children to use technology),
such action does not offend the Establishment Clause. "[T]he
Constitution [does not] require complete separation of church and
state; it affirmatively mandates accommodation." Lynch,
465 U.S.
at 673
. The Establishment Clause is not violated when the
government accommodates religious beliefs "by relieving people from
generally applicable rules that interfere with their religious
callings." Lee v. Weisman,
505 U.S. 577, 627
(1992) (Souter, J.,
concurring); id. at 628 ("accommodating religion reveals nothing
beyond a recognition that general rules can unnecessarily offend
the religious conscience when they offend the conscience of secular
society not at all"); Amos,
483 U.S. at 334
("This Court has long
recognized that the government may (and sometimes must) accommodate
religious practices and that it may do so without violating the
Establishment Clause." (quoted case omitted)). The district's
actions in this case follow our best traditions of the
accommodation of religious beliefs in the school context. See,
e.g., Yoder,
406 U.S. at 234
; Zorach v. Clauson,
343 U.S. 306
, 312-
15 (1952); West Virginia State Bd. of Educ. v. Barnette,
319 U.S.
624, 642
(1943).
C.
Finally, we examine the district's actions under the
"endorsement test." See Kiryas Joel,
512 U.S. at 720
("Experience
proves that the Establishment Clause . . . cannot easily be reduced
to a single test.") (O'Connor, J., concurring in part and
concurring in the judgment). The Supreme Court has "paid
particularly close attention to whether the challenged governmental
practice either has the purpose or effect of `endorsing' religion,
a concern that has long had a place in our Establishment Clause
jurisprudence." County of Allegheny v. American Civil Liberties
Union Greater Pittsburgh Chapter,
492 U.S. 573, 592
(1989). The
endorsement test has been thus explained:
[T]he Establishment Clause "prohibits government from
making adherence to a religion relevant in any way to a
person's standing in the political community." The
government violates this prohibition if it endorses or
disapproves of religion. "Endorsement sends a message to
nonadherents that they are outsiders, not full members of
the political community, and an accompanying message to
adherents that they are insiders, favored members of the
political community."
Id. at 625 (O'Connor, concurring in part and concurring in the
judgment) (quoting Lynch,
465 U.S. at 687
-88 (O'Connor, J.,
concurring)).
As we have discussed, the district has acted neutrally in this
case towards the citizens of the district regarding the decision to
open the school in Vesta and in applying the exemption policy.
Thus, the district has not made anyone's adherence to religion
relevant to their standing in the community and consequently has
not endorsed religion or a set of religious beliefs.
In sum, the district's actions in this case have not violated
the Establishment Clause.
Minnesota Constitution
We must also consider how the district's actions fare under
the Minnesota Constitution, for the "limitations contained in the
Minnesota Constitution are substantially more restrictive than
those imposed by U.S. Const. Amend. I." Americans United Inc. v.
Independent Sch. Dist. No. 622, 179 N.W.2d 146, 155 (Minn. 1970).
The district court did not separately analyze the state
constitutional
issue, but declared that because the district's actions violated
the federal constitution they also violated the state constitution.
The issue was briefed on appeal, however, and we exercise our
discretion to resolve it because it can be decided as a matter of
law. See Hutchins v. Champion Int'l Corp., 110 F.3d 1341, 1345
(8th Cir. 1997) (citing Talley v. United States Postal Serv., 720
F.2d 505, 508 (8th Cir. 1983)).
The Minnesota constitutional provisions preventing the
establishment of religion provide in relevant part that "nor shall
any money be drawn from the treasury for the benefit of any
religious societies or religious or theological seminaries," Minn.
Const. Art. I, 16, and that "[i]n no case shall any public money
or property be appropriated or used for the support of schools
wherein the distinctive doctrines, creeds or tenets of any
particular Christian or other religious sect are promulgated or
taught." Minn. Const. Art. XIII, 2. The "fundamental concept"
is "that the state may neither advance nor inhibit religion, which
. . . defines permissible limits of legislation under state . . .
law." Americans United, 179 N.W.2d at 157. The "establishment
clauses prohibit both `benefits' and `support' to schools teaching
distinctive religious doctrines." Minnesota Fed'n of Teachers v.
Mammenga, 500 N.W.2d 136, 138 (Minn. Ct. App. 1993).
As shown above, no religious instruction takes place at the
Vesta school, and there is no expenditure of public funds in
support of the teaching or promulgating of religious beliefs.
Accordingly, we conclude that no violation of the state
constitution has occurred.
Conclusion
The injunction is vacated, and the case is remanded to the
district court with directions to dismiss the complaint.
MURPHY, Circuit Judge, dissenting.
Because I believe that the establishment by the public school
district of this special school in Vesta for children of the
Brethren goes beyond what is permitted by the first amendment to
the United States Constitution, I respectfully dissent.
The district entered into a contractual arrangement with the
religious group known as the Brethren to operate a special public
school in Vesta tailored to meet the group's religious concerns.
Before 1984 the district operated two elementary schools: one in
Wabasso and one fourteen miles away in Vesta. After the school in
Vesta was closed for economic reasons, children of the Brethren
either attended the regular public elementary school in Wabasso or
were homeschooled. Various accommodations were made at Wabasso to
respect the religious beliefs of the Brethren, such as providing
separate tables for their children at lunch and excusing them from
activities that involved technological devices. Their opposition
to the use of technology includes any use of television, radio,
audio and video recordings, computers, or movies.
During 1992-93, the Brethren proposed a joint venture with the
school district to reopen the elementary school in Vesta and this
proposal was approved at a meeting of the school board in February
1993. The minutes of the meeting and contemporaneous newspaper
accounts indicate that the school was identified with the Brethren.
One such news story stated in part:
The Wabasso Board of Education has reached an
agreement with the Vesta Brethren to proceed with plans
for a K-6 elementary school at Vesta this fall.
. . . .
If it is legally possible to establish this school,
it would be operated without the assistance of modern
technology such as computers, and
video and audio equipment. The reasoning behind this is
that the Brethren's religious beliefs prohibit them from
using such items, and this has created a conflict in
trying to send their children to the public school in
Wabasso, which uses such teaching tools and methods.
To eliminate the need to remove these children from
the public school environment and teach them at home, the
Brethren made the proposal for a second school in Vesta
last year.
Vicki L. Gerdes, "Agreement is Reached on Proposed School in
Vesta," Redwood Gazette, June 17, 1993.
On October 12, 1993, the Brethren, the school district, and
Lloyd Paskewitz entered into a formal written agreement to operate
a public elementary school in Vesta.(8) Paskewitz had previously
purchased the Vesta school building, and the building was made
available under the agreement for the district to use free of
charge. Paskewitz and the Brethren also agreed to be responsible
for all maintenance, security, taxes, and insurance. In return the
district would provide a teacher and educational materials and
limit the use of technology. Section 6 of the Agreement provides:
The School District shall, to the extent permitted under
applicable law and rules and regulations adopted by the
School Board of the School District, limit the use of
technology such as television, radio, audio and/or video
recordings, computers and movies in the classrooms at the
school provided for herein.
Sections 8 and 9 indicate that the district envisioned a different
set of academic offerings at the Vesta school than at the public
school in Wabasso. These sections
reserve to the district the right to provide special education,
health, music, physical education classes, and hot lunches at the
Wabasso elementary school for any students at Vesta who might want
to participate in these normally available programs which would not
be offered at Vesta because of the preferences of the Brethren.
The Brethren were actively involved in other ways in the
reopening of the Vesta school. Lloyd Paskewitz and several other
members of the Brethren participated in the interviews conducted to
select a teacher for the new school. It is undisputed that it was
unprecedented to have non-district employees present at such
interviews. On June 1, 1993, Lloyd Paskewitz provided
Superintendent Bates with a list of 19 children who planned to
attend the school in Vesta, and only these children eventually
enrolled in the school.
There are significant differences between the curricula
offered at Vesta and Wabasso. Although the official curricula
adopted for the Vesta school calls for at least one half hour of
computer lab each week and district officials claim computer
technology is available at Vesta, computer training has never been
offered. Other forms of technology to which the Brethren object,
such as television, video players, and films, have not been used at
Vesta, although they are regularly used at Wabasso. The health
offerings at Vesta are also not the same as those offered at
Wabasso. The drug awareness education programs used in the Wabasso
school for kindergarten through sixth grade are not available at
Vesta. Although the official curricula at Vesta requires one half
hour of physical education each day "with specialists," it is
presented in an unstructured manner by a parent volunteer who has
no formal training in physical education. At Wabasso it is taught
in a structured manner by a physical education teacher. The Vesta
curricula officially requires at least an hour of musical
instruction each week, but the record does not indicate that music
is actually offered. If a child at the Vesta school wants such
standard curricula offerings, he or she must make a special request
and then commute thirty miles in the middle of the school day to
Wabasso for health, physical education, or music classes.
The facts of this case show an abandonment of the principle of
state neutrality in religious matters which underlies establishment
clause jurisprudence. See Board of Educ. of Kiryas Joel Village
Sch. Dist. v. Grumet, 114 S. Ct. 2481, 2487 (1994). The first
amendment prohibits the state from favoring one religion over
another or from favoring religious adherents collectively over non-
adherents. Id. (citing Epperson v. Arkansas,
393 U.S. 97, 104
(1968)). Religious neutrality is particularly important in the
context of elementary and secondary schools, where the students are
impressionable and attendance is involuntary. Edwards v.
Aguillard,
482 U.S. 578, 583-84
(1987). While the Supreme Court
"has long recognized that the government may (and sometimes must)
accommodate religious practices and that it may do so without
violating the Establishment Clause," Corporation of the Presiding
Bishop of the Church of Jesus Christ of Latter Day Saints v. Amos,
483 U.S. 327, 334
(1987) (citations and quotations omitted),
"accommodation is not a principle without limits," and at some
point accommodation may devolve into an unlawful fostering of
religion. Kiryas Joel, 114 S. Ct. at 2492; Amos,
483 U.S. at 334
.
An asserted motivation of religious accommodation, even if
justified by reference to a state statute, cannot shield
governmental actions that otherwise violate the principle of
neutrality embedded in the establishment clause. See Kiryas Joel,
114 S. Ct. at 2493.(9)
Here the school district has done far more than grant
individual exemptions to aspects of the public school curricula
under state law, for it has entered into a contractual relationship
with members of a religious group to tailor a school to their
preferences. The district has agreed to limit the use of
technology not for pedagogical reasons, but to match the tenets of
a single religious group. It also modified the health, music,
physical education, and computer curricula normally offered. The
district has acted to create a school where a student interested in
participating in the standard
health, physical education, music, or computer offerings must make
a special request and/or commute almost thirty miles during the
school day to obtain such regular educational services at Wabasso.
It is not surprising that non-Brethren children have not enrolled
at Vesta.
This case is similar to Kiryas Joel where the Supreme Court
found that the creation of a school district based on the religious
affiliation of the community members was unconstitutional because
it impermissibly singled out a particular religious group for
special treatment. 114 S. Ct. at 2491. The village of Kiryas Joel
had been established as an enclave for a particular sect of Hasidic
Jews called the Satmars who, like the Brethren, eschewed much of
the modern world and maintained a very isolated community. The
Satmar children were normally educated in private religious schools
in the village, but these parochial schools did not provide
services for handicapped students as required by state law. The
New York legislature created a special school district that
conformed to the boundaries of the village so that services for
handicapped children could be provided in a way acceptable to the
Satmars. Since the community of Kiryas Joel did not receive its
benefit "simply as one of many communities eligible for equal
treatment under a general law," there was no guarantee that the
next religious community desiring its own school district would be
given one and the arrangement was unconstitutional. Id.
Like the legislature in Kiryas Joel, the school district has
singled out a particular religious group for benefits by setting up
a school the Brethren find acceptable in order to retain their
participation in the public school system. There is no guarantee
that the next religious group in the district (or elsewhere in the
state) could obtain a special school for its members supported with
a publicly funded teacher teaching a modified curricula in
accordance with their religious beliefs. The establishment of the
school in Vesta thus violates the principle of neutrality and
"crosses the line from permissible accommodation to impermissible
establishment." Id.
The district argues it reopened the Vesta school to provide a
better public education by transporting fewer students from Vesta
to Wabasso, reducing the class size in Wabasso, and by lessening a
space shortage there as well, but these purposes could have been
carried out by reopening the Vesta school as it had operated before
without a special signed agreement with the Brethren. The only
reason the Brethren are involved is that the district presumably
could not afford to reopen the Vesta school without the financial
assistance they provided directly in the agreement and indirectly
by enrolling their children in the public school system. Even if
the district was motivated by improving the overall quality of
education in its area, it established a school in which the
curricula conformed to the religious objections of the Brethren in
exchange for financial assistance. This is not an acceptable
secular purpose. See Epperson,
393 U.S. at 106
("There is and can
be no doubt that the First Amendment does not permit the State to
require that teaching and learning must be tailored to the
principles or prohibitions of any religious sect or dogma.");
Edwards,
482 U.S. at 593
(striking down Louisiana's Creationism act
because the "purpose of the . . . Act was to restructure the
science curriculum to conform with a particular religious
viewpoint"); Pratt v. Independent Sch. Dist. No. 831, 670 F.2d 771
(8th Cir. 1982) (removing a film from a school curriculum based on
religious objections violated the Establishment Clause).
An impermissible effect of governmental action is one that
endorses or promotes religion. County of Allegheny v. American
Civil Liberties Union,
492 U.S. 573, 592-601
(1989); Texas Monthly,
Inc. v. Bullock,
489 U.S. 1, 17
(1989). Whether the primary effect
is the impermissible endorsement of religion can be measured by
what reasonable observers, including non-adherents, would conclude.
Allegheny,
492 U.S. at 595
, 627-32 (plurality opinion). As the
district court pointed out, the way in which the school was
reopened and operated created a perception in the community that
the school was really just for the children of the Brethren even
though it was theoretically open to all students. The effect of
establishing the school was thus an endorsement of the Brethren's
beliefs.
The majority relies on Clayton by Clayton v. Place, 884 F.2d
376 (8th Cir. 1989), for the idea that state action which
coincidentally mirrors certain religious beliefs does not have the
effect of promoting religion. Clayton upheld a rule prohibiting
dances at public schools where there was no evidence in the record
to indicate why the rule had been passed. Id. at 378, 380. In
contrast, the actions of the district regarding the school in Vesta
did not simply coincide with the beliefs of the Brethren. The
record reflects direct involvement of the Brethren in organizing
and financing the school. Mr. Paskewitz's letter, the meetings of
the school board, and the formal written agreement between the
district and the Brethren, all indicate that but for the religious
concerns and financial support of the Brethren, the school in Vesta
would never have been reopened or operated in the current manner.
Here there is far more than mere coincidence between the
modifications of the Vesta school program and the beliefs of the
Brethren.
The district contends the Vesta school does not advance
religion because it is open to all students and the same curricula
available at Wabasso is available to Vesta students willing to bus
to Wabasso for specific classes, but it is appropriate to look
beyond the theory to examine the practical reality of the
situation. See Kiryas Joel, 114 S. Ct. at 2488-89 (looking at
effect of statute, not its form); Lee v. Weisman,
505 U.S. 577,
593
, 595 (1992) ("subtle and indirect" pressure to participate in
religious ceremony can be as real as overt compulsion; "law reaches
past formalism"); Edwards,
482 U.S. at 586
-87 ("While the Court is
normally deferential to a State's articulation of a secular
purpose, it is required that the statement of such purpose be
sincere and not a sham."). The contemporaneous newspaper accounts
indicate the Vesta school is considered by both Brethren and non-
Brethren citizens to be a school for the Brethren children. The
Vesta school creates the perception that the state has singled out
the Brethren for special, preferential treatment by modifying the
standard curricula to fit their religious objections. Such
treatment has the primary effect of creating a state endorsement of
the religious views of the Brethren, Edwards,
482 U.S. at 593
("preference" for particular religious beliefs constitutes an
endorsement of religion), and cannot be reconciled with the
establishment clause cases which require the
government to adopt a neutral position toward religion. See, e.g.,
Kiryas Joel, 114 S. Ct. at 2487; Wallace v. Jaffee,
472 U.S. 38
,
52-54; Epperson,
393 U.S. at 104
.
Three primary criteria are helpful in considering whether
state action has the effect of advancing religion: whether it
results in government indoctrination of religious beliefs, whether
it defines the aid recipients by reference to religion, and whether
it creates an excessive entanglement between the state and
religion. Agostini v. Felton, Nos. 96-552, 96-553, 1997 WL 338583
(U.S. June 23, 1997) at *21. Applying these factors to the facts
of this case, the actions of the district have the impermissible
effect of advancing religion.
Aid that furthers the educational function of religious
schools is no longer presumed to be invalid per se, Agostini, 1997
WL 338583, at *15, but state action may impermissibly indoctrinate
religious beliefs when it provides direct aid to religious
institutions or when it relieves sectarian institutions of costs
they otherwise would bear. Id. at *17; see also Zobrest v. Catalina
Foothills Sch. Dist.,
509 U.S. 1, 12
(1993). Although the Vesta
school is theoretically open to the public, the district's actions
are suspect because they relieve the Brethren of costs they would
have otherwise borne in homeschooling or establishing their own
school. If this arrangement were upheld, it would no longer be
necessary for Catholic, Lutheran, Jewish, or Muslim communities to
expend the resources required to establish separate parochial
schools. They could also offer a district free rent in a building
they own in exchange for a teacher and teaching materials and
obtain a religiously homogeneous school with basic educational
instruction to their liking. This is the type of direct
subsidization that has the effect of advancing religion. Agostini,
1997 WL 338583, at *17; Meek v. Pittenger,
421 U.S. 349, 365-66
(1975) (lending instructional materials and equipment to sectarian
schools has the effect of advancing religion).
Aid provided to all eligible children on the basis of neutral,
secular criteria regardless of where they attend school is
permissible because it does not define
recipients on the basis of religion and does not provide incentives
for recipients to modify there religious beliefs. Agostini, 1997
WL 338583, at *18-19; see also Widmar v. Vincent,
454 U.S. 263, 274
(1981) . In contrast, the effect of the Vesta operation is to
provide a benefit for the Brethren which it does not provide for
non-Brethren. The Brethren children can now obtain a publicly
financed education in Vesta that conforms with their particular
religious beliefs, while non-Brethren children, either with or
without the reopened Vesta school, must still commute to Wabasso if
they want to receive all of the curricula regularly offered by the
district. The actions of the district violate the establishment
clause because they have the effect of singling out the Brethren
for a special benefit.
State aid or action will also advance religion if it leads to
an excessive entanglement between church and state.(10) The test for
an impermissible entanglement examines the character and purposes
of the institutions benefitted, the nature of the aid provided, and
the resulting relationship between the government and the religious
authority. Agostini, 1997 WL 338583, at *19 (quoting Lemon v.
Kurtzman,
403 U.S. 602, 615
(1971)). Here, the district has
entered into a contractual relationship with a religious group for
mutual benefit, essentially forming a partnership between the
Brethren and the district to open and operate the Vesta school with
a curricula acceptable to the religious group.
There are many competing values in our richly diverse society,
and the religion clauses of the first amendment protect the rights
of all to practice the religion of their choice and also prevent
the government from preferential advancement of any one religious
group. Because the school district's establishment of the special
school at Vesta crosses over the line permitted under the
Constitution, I dissent.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
**FOOTNOTES**
(1)
Paskewitz estimated that approximately 115 of the 300 people
living in Vesta are members of the Brethren.
(2)
Although the "Brethern" [sic] was an additional party to the
lease, the person who signed the lease allegedly on the Brethren's
behalf has attested that he had no authority to do so.
Furthermore, there is no evidence in the record that the Brethren
had any ownership interest in the Vesta school building. Thus, we
find little significance in the fact that they are a party to the
lease.
(3)
The lease stated that hot lunch would also be provided at the
Wabasso school, but the district has said that it would cater hot
lunches to students at the Vesta school if needed.
(4)
The multi-age classrooms in Wabasso were open only for the 1993-94
school year.
(5)
The district also supplied the Brethren children with a separate
lunch table at the Wabasso school.
(6)
The plaintiffs also sued members of the school board, Paskewitz,
and the Brethren. These defendants were dismissed at various
times, and their dismissals are not raised on appeal.
(7)
There has been no delegation of political power to the Brethren
community in this case. Cf. Kiryas Joel,
512 U.S. at 697
-702
(plurality opinion) (delegation of political power to group chosen
by religious criteria).
(8)
The majority finds "little significance" in the fact that the
Brethren were party to the lease, but the group's inclusion is
significant in light of the district's claim that it did not take
into account the religious background or beliefs of those who
requested exemptions from the standard curricula.
(9)
The district's decision to reopen the school by entering into a
special written agreement with a religious group could not have
been motivated by statutory duties because the district approved
the proposal from the Brethren to reopen the school in February
1993 and Minn. Stat. 126.699 (1996) was not passed until May
1993.
(10)
Agostini states that previous cases have essentially collapsed
the "effect" and "entanglement" prongs of the Lemon test. Id. at
*19.