USCA4 Opinion 962544.P
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MARY PAT PECK; JEANNIE
O'HALLORAN; THOMAS LYNCH,
Plaintiffs-Appellants,
and
GRACE GLASER LYNCH; JAMES
LOCKHART,
Plaintiffs,
v.
UPSHUR COUNTY BOARD OF
No. 96-2544
EDUCATION; RICHARD G. HOOVER, in
his official capacity as
superintendent of Upshur County
Schools,
Defendants-Appellees.
AMERICANS UNITED FOR
SEPARATION OF CHURCH AND STATE;
THE AMERICAN JEWISH CONGRESS;
TEXAS JUSTICE FOUNDATION,
Amici Curiae.
Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(CA-95-21-2-21)
Argued: October 2, 1997
Decided: August 14, 1998
Before LUTTIG and MOTZ, Circuit Judges, and MICHAEL,
Senior United States District Judge for the
Western District of Virginia, sitting by designation.
Affirmed in part and reversed in part by published opinion. Judge
Luttig wrote the opinion, in which Senior Judge Michael joined.
Judge Motz wrote an opinion concurring in part and dissenting in
part.
_________________________________________________________________
COUNSEL
ARGUED: Robert Milton Bastress, Jr., Morgantown, West Virginia,
for Appellants. James Jeffrey Knicely, KNICELY & COTOR-
CEANU, P.C., Williamsburg, Virginia, for Appellees. ON BRIEF:
Allan N. Karlin, ALLAN N. KARLIN & ASSOCIATES, Morgan-
town, West Virginia, for Appellants. Professor Gary C. Leedes, T. C.
Williams School of Law, UNIVERSITY OF RICHMOND, Rich-
mond, Virginia; Michael D. Lorensen, BOWLES, RICE, MCDAVID,
GRAFF & LOVE, Martinsburg, West Virginia, for Appellees. Steven
K. Green, Julie A. Segal, AMERICANS UNITED FOR SEPARA-
TION OF CHURCH AND STATE, Washington, D.C., for Amicus
Curiae Americans United. Marc D. Stern, AMERICAN JEWISH
CONGRESS, New York, New York, for Amicus Curiae Congress.
Eric Bohnet, Midland, Texas; Gregory S. Coleman, Shelton M.
Vaughan, Robert W. Higgason, WEIL, GOTSHAL & MANGES,
L.L.P., Houston, Texas, for Amicus Curiae Foundation.
_________________________________________________________________
OPINION
LUTTIG, Circuit Judge:
The Upshur County West Virginia School Board has, for some
years now, allowed non-student, private groups such as Little League,
Boy Scouts, Girl Scouts, 4-H, and the Women's Christian Temper-
ance Union to distribute literature in the Upshur County public
schools. In accordance with written policy, however, the Board has
denied groups wishing to distribute religious or political materials the
same access to the County's schools. Three years ago, in response to
a request by a local religious group, and in an attempt to blunt the
Board's discrimination against private religious and political speech,
the Board interpreted its written policy so as to allow the passive dis-
2
tribution of religious (and political) material in the schools. Pursuant
to this new policy, the Board thereafter designated a single day during
the year on which private religious groups can make Bibles or other
religious material available on tables set up in accessible locations,
such as halls or libraries, in the Upshur County schools. The table dis-
plays are set up and stocked entirely by private citizens who are not
affiliated in any way with the schools, and the tables bear signs
informing students only that they should feel free to take the Bibles
or other material offered. Pursuant to district court injunction, the
tables also bear a disclaimer, renouncing any sponsorship or endorse-
ment by the school. No one is allowed to enter classrooms to
announce the availability of the religious or political material, or to
stand at the tables to encourage or pressure students to take the mate-
rial. No school announcement or assembly is allowed to mark the
availability of the Bibles or any other religious or political material.
School principals are charged with ensuring strict compliance with
these guidelines.
Upon challenge by appellants, the district court held that the
School Board could, for one day during the year, permit the table dis-
plays without violating the Establishment Clause because the Board
has a neutral policy of allowing religious and nonreligious groups
alike to set up such displays in the schools, and because the displays
do not constitute an impermissible endorsement of religion. Except as
to one aspect of the district court's judgment discussed below, we
affirm.
I.
A.
The Upshur County School Board has historically allowed non-
student, private groups, such as Little League, Boy Scouts, Girl
Scouts, 4-H, and the Women's Christian Temperance Union, to dis-
tribute literature in the schools, although there has been no formal,
written policy to this effect. Superintendent Lynn E. Westfall or
school activity personnel "review materials before they are made
available to be distributed to students," J.A. at 96, 104, 136, to ensure
that the materials are age "appropriate" and not "harmful to children"
and that the materials will not cause a "[m]ajor disruption" of the
3
school environment. J.A. at 117-18, 123, 136, 160-61, 163-64, 195.
In response to an incident in which members of the Gideons "went
into the classroom, talked to the students, and then handed Bibles to
the students," J.A. at 122-23, 102, however, the School Board adopted
a policy in 1989 prohibiting the "distribution" of religious or political
advocacy materials to students in the County's schools. The 1989 Pol-
icy states in relevant part:
Since the public schools must remain neutral concerning
matters of particular religious and political beliefs, the
Upshur County Board of Education hereby affirms that the
following types of materials shall not be distributed to stu-
dents in the Upshur County Schools:
1. Materials advocating a particular religion, denomina-
tion, or the beliefs thereof;
2. Materials advocating for views of a particular political
party or candidate for any elective office.
J.A. at 330.
During the summer of 1994, two state senators, a local business-
man, and Ed McDaniels, a local teacher and minister, approached
Superintendent Westfall to ask whether the Board could legally allow
religious groups to set up "a table in a predetermined location [in an
Upshur County school] with religious material upon it [accessible] to
students, where students [could] freely come by and pick up" the
materials. J.A. at 182. McDaniels and his supporters believed that
then-recent Supreme Court decisions, including Lamb's Chapel v.
Center Moriches Union Free School District, 508 U.S. 384 (1993);
Board of Education of Westside Community Schools v. Mergens, 496
U.S. 226 (1990); and Widmar v. Vincent , 454 U.S. 263 (1981), con-
firmed that, pursuant to a neutral practice of allowing the distribution
of literature in the schools, the Board could allow McDaniels' group
to make Bibles and other religious material available to students with-
out violating the Establishment Clause and that, in fact, to deny the
group the opportunity to do so would affirmatively discriminate
against religious speech.
4
In response to the group's request, Westfall sought legal counsel
and was advised that there might be Establishment Clause concerns
if the Board were to allow personal distribution of Bibles and other
religious materials, but that "[t]here was neither statutory nor case law
specifically prohibiting" the Board from allowing religious groups to
passively make Bibles or other religious material available in the
manner proposed. J.A. at 102-03, 224, 243, 302. Westfall informed
the other members of the Upshur County School Board of this advice,
J.A. at 302, and also of the fact that some of McDaniels' supporters
were considering pursuing in court their claim that the Board's policy
of forbidding private religious speech impermissibly discriminated
against such speech. J.A. at 296.
At its December 6, 1994, meeting, the School Board considered
McDaniels' request that religious groups be allowed to make Bibles
available to Upshur County students one day during the year at prede-
termined locations in the schools, framing its inquiry as whether
McDaniels' request could be accommodated under the language of
the existing 1989 Policy. J.A. at 240, 243, 251-52, 268-69. After hear-
ing testimony in support of McDaniels' request, the Board interpreted
"distribute" in its 1989 Policy to mean "to hand to, to pass out," J.A.
at 21, and distinguished such distribution from passively making
materials available for students to pick up if they wished. Thus, the
Board determined that the 1989 Policy did not prohibit private groups
from making Bibles and other religious material available to students
on tables located in the schools. Accordingly, the Board "instructed
the Superintendent to meet with Mr. McDaniels to arrange a day for
making Bibles available to students of Upshur County schools." J.A.
at 330.
Superintendent Westfall met with McDaniels on February 14,
1995, to select the day on which McDaniels would be allowed to
make Bibles available and to establish the guidelines that McDaniels
and his group were to follow. Because the Board was sensitive to pos-
sible Establishment Clause concerns, Westfall imposed a number of
restrictions on the manner in which the Bibles could be made avail-
able. The private groups making the Bibles available were to be
responsible for setting up the tables on which the Bibles would be dis-
played. J.A. at 24. Bibles not picked up by students during the day
were to be removed at the end of that day by the groups responsible
5
for the display. J.A. at 24. No teacher or other school employee was
to participate in these or any other custodial activity relating to the
Bible displays. J.A. at 108. The tables were to be placed in a location
in each school (such as a library or hall) that was accessible to stu-
dents, J.A. at 108, 374, "where students normally congregate and
would not feel they were being watched or pressured into taking a
Bible," J.A. at 374 (district court op.); there was to be a sign on each
table that read "Please feel free to take one," J.A. at 24, 94; and the
source of the Bibles was not to be identified, J.A. at 95. No one was
to be allowed to stand at the table to encourage or pressure students
to take Bibles, J.A. at 25, and no one was to be allowed to enter class-
rooms to discuss the Bibles' availability, J.A. at 108-09. Moreover,
the schools were not to announce that Bibles were available or hold
any school assembly in connection with the availability of the Bibles.
J.A. at 108. Westfall also "reiterated in that meeting that everyone
understood that any other religious material representing any other
religious beliefs would be given equal opportunity either on that day
or some other day to be arranged . . . in the same manner [that the
Bibles were] to be made available to students." J.A. at 25.
Additionally, Westfall advised Upshur County school principals
that the Board was supervising access to the schools, not sponsoring
or promoting the dissemination of Bibles, and instructed the princi-
pals to ensure compliance with the guidelines. J.A. at 25-26, 375 (dis-
trict court op.). Westfall also told principals that if a kindergartner
was unable to read the sign, the principal could read it to him or help
the student to read the sign as a reading exercise. J.A. at 25.
B.
On February 23, 1995, appellants filed suit under 42 U.S.C. S 1983
to enjoin the scheduled placement of Bibles on tables in the schools.
After a brief hearing on February 24, 1995, the district court prelimi-
narily enjoined appellees from providing access to the schools to any
individual or group seeking to make Bibles available until a hearing
could be held on the merits of appellants' challenge. A trial on a per-
manent injunction was then held on May 30, 1995, and on September
30, 1996, the district court issued a memorandum opinion and order
vacating the preliminary injunction and denying a permanent injunc-
tion. J.A. at 3-7, 371-403.
6
In denying a permanent injunction, the district court held that the
Upshur County School Board had not created a public forum in its
schools, but had created "through policy and practice, . . . a nonpublic
or `limited purpose' forum to which selective access is permitted for
the purpose of enhancing the educational mission of the public
schools." J.A. at 383. The court noted that under Lamb's Chapel,
"[c]ontrol over access to a nonpublic forum can be based on subject
matter and speaker identity so long as the distinctions drawn are rea-
sonable in light of the purpose served by the forum and are viewpoint
neutral," J.A. at 384 (quoting Lamb's Chapel , 508 U.S. at 392-93).
Because the Board had decided that distribution of Bibles was consis-
tent with the educational mission of schools to expose children to a
wide variety of views, the court concluded that plaintiffs were
demanding that the court "enforce an impermissible viewpoint dis-
crimination against religious material that the Board has concluded is
consistent with the purpose of the forum." J.A. at 385.
The district court then held that making the Bibles available would
not violate the Establishment Clause. The court first applied the "neu-
trality test," and concluded that the passive distribution of the Bible
was permitted pursuant to a neutral government policy of providing
access to the Upshur County schools for private expression consistent
with the educational mission of the schools. J.A. at 392-94, 383-85.
The Bible hand-out was private religious expression, not government
speech, the district court reasoned, because it was privately sponsored
and carried out by private citizens. J.A. at 393. The court also con-
cluded that the Board's equal access policy did not discriminate in
favor of Christianity -- even if it incidentally benefitted Christian
religions -- because the policy allowed handouts of "`religious mate-
rials' generally." J.A. at 394.
The district court also held that making the Bible available to stu-
dents was not an impermissible endorsement of religion. The court
concluded that a "reasonable student" would not be likely to view the
Bible distribution as an endorsement because that student would
know that the Board allows other organizations to distribute literature;
because school personnel would not be involved in the distribution of
the Bibles; because the signs on the tables would emphasize that tak-
ing a Bible was completely voluntary; and because an express dis-
claimer could be affixed that would further negate any appearance of
7
endorsement. J.A. at 397-99. The court acknowledged that the
Board's policy granted speakers access to a captive audience of
Upshur County students, but found that
[t]he fact that school age children, presumably of all faiths,
are compelled to be in close proximity to the forum is coun-
terbalanced by the voluntary basis on which the religious
materials will be made available. No student will be forced
to take a Bible, and the mere fact that students might inad-
vertently come into contact with an unattended table full of
free Bibles does not, in this Court's opinion, present a sig-
nificant risk of perceived "endorsement" of Christianity in
light of the general context in which the "reasonable stu-
dent" will perceive the tables.
J.A. at 400. The court also found that the schools would have to take
into account the "age appropriateness" of the Bible handout, perhaps
implying that modifications of the plan might be required if the chil-
dren were too young to distinguish between private and government
speech.
The plaintiffs thereafter moved for a stay of the decision and rein-
statement of the preliminary injunction pending appeal. On October
24, 1996, the district court declined to reinstate the injunction because
it concluded that the injunction would violate the First Amendment
rights of those citizens who wanted to make the Bibles available. The
district court did, however, enjoin the Board to post a disclaimer sign
on the tables with language substantially as follows:
These materials are neither sponsored nor endorsed by the
Upshur County Board of Education, its agents or employees.
The views and information contained in the materials do not
reflect the approval nor disapproval of this Board or the
school administration.
J.A. at 411-12.
Appellants have appealed the district court's denial of injunctive
relief, but the Board has not appealed the district court's injunction
8
that a disclaimer be placed on the tables on which the Bibles are dis-
played. Accordingly, we consider the constitutionality of the Bible
displays with the above-quoted disclaimers affixed.
II.
The Supreme Court has, over the past decade, consistently sus-
tained against Establishment Clause challenge neutral government
policies that permit private religious speech on and within state edu-
cational and other properties on the same terms as private secular
speech is permitted. See, e.g., Rosenberger v. Rector of University of
Virginia, 115 S. Ct. 2510, 2520-25 (1995) (holding that university
could pay the publication expenses of a student Christian newspaper
in accordance with its general policy of funding student newspapers);
Capitol Square Review and Advisory Board v. Pinette, 115 S. Ct.
2440, 2447-50 (1995) (plurality) (holding that a state could, pursuant
to a "religiously neutral" policy, permit a private party to display a
cross in a traditional public forum located next to the state's seat of
government); id. at 2451-52 (O'Connor, J., concurring in part and
concurring in the judgment); Lamb's Chapel, 508 U.S. at 395-97
(holding that a school could allow after-hours access to its facilities
to a religious group when the school had made its facilities generally
available to a wide variety of public organizations); Mergens, 496
U.S. at 247-53 (1990) (plurality) (holding that a high school could
officially recognize a student religious club and afford it the same
benefits as other student clubs); id. at 260-62 (Kennedy, J., joined by
Scalia, J., concurring in part and concurring in the judgment) (same);
Widmar, 454 U.S. at 270-75 (holding that a university could allow a
student religious group to use university facilities that were generally
available for activities of student groups). Indeed, the Supreme Court
has recently affirmed that the neutrality of a government program is
a "significant factor in upholding [it] in the face of Establishment
Clause attack." Rosenberger, 115 S. Ct. at 2521. As the Court has
said, government acts neutrally if it acts for some purpose other than
advancing religion, see id. at 2522, and if, when it opens a forum for
private speech, it respects the distinction between government speech
and private speech endorsing religion by refraining from encouraging
any mistaken impression that the private speakers speak for the gov-
ernment, see id. at 2523. The Upshur County School Board's policy
herein challenged satisfies both of these requirements.
9
A.
The Board's policy is neutral because it was plainly adopted, not
to advance religion, but for the secular purpose of"open[ing] a forum
for speech," id. at 2522, in order to further the schools' educational
mission. At the conclusion of a full bench trial, the district court spe-
cifically found that the Board's "express purpose" for its practice of
"allow[ing] private speakers to access the public schools" is to "en-
hance [the students'] education by exposing them to a broad spectrum
of knowledge." J.A. at 384. The Supreme Court has repeatedly held
that such "an open-forum policy, including nondiscrimination against
religious speech, [has] a secular purpose." Widmar, 454 U.S. at 271
(footnotes omitted); see also Mergens, 496 U.S. at 248 (plurality).
Appellants argue that the Board did not adopt a general "policy cre-
ating a forum for the distribution of materials enlarging student
thought and knowledge," Appellants' Brief at 13, but merely
approved a motion instructing the Superintendent to meet with
McDaniels to arrange a day for making Bibles available, id. at 27, in
order to appease a "vocal" group of Christian constituents, id. at 40-
41. Thus, appellants argue, the Board's decision to allow Bibles to be
made available was not facially neutral, but rather exhibited a "facial
preference for Bibles," id. at 28.
The Board's decision, however, must be viewed against the back-
drop of the Board's existing policy, which appellants would have the
court wholly ignore. Although, as noted, the Board had not adopted
a written policy allowing the distribution of private material in the
schools, the well established, historical practice of the Board was to
allow distribution of such material (subject only to routine administra-
tive review for age appropriateness), but to forbid distribution of reli-
gious and political material altogether. The district court found that
the Board had adopted this ban on the distribution of religious litera-
ture, not because it believed that such literature was inconsistent with
the purpose of the school forum, but "[s]olely" because it believed
"that allowing Bibles to be distributed was a violation of the Estab-
lishment Clause." J.A. at 384-85. When, in light of the Supreme
Court's more recent precedents, McDaniels and other private citizens
requested that they be allowed to make Bibles available, the Board
was persuaded by their argument that the Establishment Clause did
10
not require the Board's existing policy of complete exclusion of reli-
gious materials and discrimination against religious speech and, there-
fore, granted the citizens' request. J.A. at 385. And, indeed, the
Supreme Court's decisions that had been rendered since the 1989
adoption of the Board's policy, including Lamb's Chapel and
Mergens, had confirmed not only that the state could allow private
religious speech in a state forum governed by a neutral policy of equal
access, but that discrimination against religious speech in such a
forum could violate the First Amendment. Even appellants concede
that the Board's 1989 policy, as originally interpreted, may well have
been unconstitutional. See Appellants' Reply Brief at 9.
Accordingly, as the district court found, when the Board acted to
eliminate the absolute prohibition on private religious literature in the
schools, "the Board was not exhibiting any favoritism" for religion in
general or Christianity in particular, but was simply lifting one forum
restriction on religious speech to which most other speech had never
been subject and thereby "permitting the distribution of Bibles and
other religious material similar in character to material already per-
mitted." J.A. at 385. Cf. Capitol Square, 115 S. Ct. at 2447 (plurality)
("We find it peculiar to say that government`promotes' or `favors'
a religious display by giving it the same access to a public forum that
all other displays enjoy."). As Board member Martha White Feola
explained, "the intention was to offer choices to children, not [to]
put[ ] Bibles in their hands or any other religious materials." J.A. at
138.
And, indeed, the Board's December 1994 interpretation of the
word "distribute" in its 1989 policy on its face applies equally to all
religious speech and to political speech, as well-- the only two cate-
gories of speech restricted and disadvantaged by the 1989 policy.
Superintendent Westfall confirmed that the Board's policy clarifica-
tion reaches all speech restricted by the 1989 policy, that the Board's
position at its December meeting was that "other materials would be
made available equitably with the Bibles," J.A. at 225, and that the
Board intended, by affirming a broad equal access policy, "to provide
equal availability to any other group that chose to offer to make mate-
rials available to students," J.A. at 22, 109-110. See also J.A. at 128,
Testimony of Superintendent Westfall ("[The Board's] understanding
from the outset of this issue [was] that other groups would have equal
11
access to follow the same procedure" for making literature available.);
J.A. at 109-10, Testimony of Superintendent Westfall (stating that the
Board communicated to those who attended the December 1994
Board meeting that groups that wanted to distribute other religious
material would have equal access to the schools). The Board clearly
recognized that it was creating an "open forum," to which political
groups, adherents of all faiths, individuals opposed to religion, and
others with a "certain perspective they want to make available to stu-
dents" will share access. J.A. at 128-29. The record that we have
before us thus provides every "assurance that the next similarly situ-
ated group seeking" access to the Upshur County school forums will
receive access on the same -- if not more favorable -- terms than
those under which McDaniels' group was provided access. Board of
Education of Kiryas Joel Village School District v. Grumet, 512 U.S.
687, 703 (1994).
In fact, rather than elevating religious speech to a preferred status,
the Board's policy clarification still leaves private religious speech at
a disadvantage vis-a-vis most other speech, because it precludes reli-
gious speakers from delivering their messages to Upshur County stu-
dents face-to-face. The Board has also imposed numerous other
restrictions on religious speech, in order to minimize Establishment
Clause concerns, including, significantly, limiting religious speakers
to a single day during the year on which to make their literature avail-
able, requiring an explicit disclaimer, and instructing principals to
ensure compliance with the strict guidelines governing the displays of
religious materials. From all of these actions, it is evident that the
Board has made a good faith effort to recognize the legitimate claim
of its religious citizens under recent Supreme Court precedent not to
be discriminated against in the Upshur County school forums, while
attempting to mitigate the risk of "abuses involving direct contact
with students and potential religious proselytizing in the classroom,"
Appellees' Brief at 35.
The fact that the motion approved by the Board was directed only
to making Bibles available is neither surprising nor troubling. The
Board was simply acting on the one request to make literature avail-
able that its constituents had placed on its agenda. Had the Board also
received requests by citizens to make the Koran, or the Book of Mor-
12
mon, or political materials available, it must be presumed that the
Board would have granted those requests by motion as well.
Nor is the fact that McDaniels' request to offer the Bibles was reli-
giously motivated ultimately relevant to our inquiry as to the permis-
sibility of the Board's action. We do not impute an impermissible
purpose to advance religion to an elected official merely because he
responds to a religiously motivated constituent request, and the record
is absolutely devoid of any evidence that would suggest that any
Board member's vote was religiously motivated. As the district court
noted, J.A. at 388, appellants do not even contend that the Board was
religiously motivated in allowing private citizens to offer the Bibles
to the County's students; appellants argue only that the decision was
politically motivated.
In sum, by accommodating its constituents' request that religious
speech be allowed at least limited access to the Upshur County open
school forums, the Board did nothing more than affirm "the right of
religious speakers to use [the Upshur County school] forums on equal
terms with others," Widmar, 454 U.S. at 272 n.12, and the Supreme
Court has explicitly held that "prevent[ing] discrimination against
religious and other types of speech" in a school forum is an "undeni-
ably secular" purpose. Mergens, 496 U.S. at 249 (plurality).
B.
The neutrality of the Board's action is evidenced, not only by its
secular purpose of reducing the extent of discrimination against reli-
gious speech, but also by the fact that the Board has affirmed and
maintained the distinction between its own speech and the private
religious speech that occurs in the school forum by acting affirma-
tively to discourage any mistaken impression that the private speakers
are speaking for the Board or the schools. See Rosenberger, 115 S. Ct.
at 2522-23. In Rosenberger, the Supreme Court concluded that the
University of Virginia had not fostered any mistaken impression that
the views printed in the student publications it funded were its own,
because the University made clear to the student publishers that fund-
ing should not be misinterpreted as responsibility for or approval of
their publications, and because it required the student publications to
include a written disclaimer, which made clear to readers that the pub-
13
lications were independent of the University. See id. at 2514; cf.
Mergens, 496 U.S. at 251 (plurality) ("To the extent a school makes
clear that its recognition of [a student religious club] is not an
endorsement of the views of the club's participants, students will rea-
sonably understand that the school's official recognition of the club
evinces neutrality toward, rather than endorsement of, religious
speech.") (citations omitted).
The Upshur County School Board has taken similar"pains to disas-
sociate itself from the private speech" at issue in this case.
Rosenberger, 115 S. Ct. at 2523. The Board has informed McDaniels
and his supporters that it is allowing them to make Bibles available
because it has an equal access policy and does not wish to discrimi-
nate against religious speech, not because the Board wants students
to embrace the religious message of the Bible. See, e.g., J.A. at 25.
Additionally, the Board has taken significant steps to prevent Upshur
County students from mistakenly concluding that the Board is spon-
soring the Bible display by requiring, in accordance with the district
court's injunction, that disclaimers be placed on the tables that explic-
itly state that the schools are neither endorsing nor sponsoring the dis-
play, and by setting strict guidelines which forbid any school teacher
or employee from participating in any way in making the Bibles
available.
Appellants advance two arguments that the Board has, notwith-
standing these prophylactic steps, impermissibly blurred the line
between private religious speech and government speech, such that
the Bible displays are fairly attributable to the schools themselves.
First, appellants argue that the state has, in essence, transformed the
private religious expression at issue in this case into government
speech by allowing it to occur in school during school hours when
state law mandates student attendance, thereby compelling a "captive
audience" of students to receive the religious message. Appellants'
Brief at 17, 35-40 ("[W]hen the government creates a captive audi-
ence through compulsory attendance laws and turns that audience
over to a private religious group, the government is not merely a pas-
sive conduit for expression . . . but is a participant."). The Board has
not, however, compelled any student to hear or receive the religious
message of the Bible. The Bibles are not distributed in the formal
classroom setting, are not part of classroom activities, and are not part
14
of the schools' curriculum. No student is required or even encouraged
to pick up a Bible, much less to read one. In fact, both school employ-
ees and the private citizens organizing the Bible display are affirma-
tively forbidden from, in any way, pressuring or even encouraging
students to take Bibles.
Of course, the very fact that the Bibles are available may be
thought to convey a religious message to Upshur County students --
one which students may inadvertently and involuntarily receive if
they walk through the particular area in which the Bibles are dis-
played. Appellants argue that this message, at least, must be attributed
to the government because the state effectively compels students to
receive the message by compelling their school attendance. However,
this message, too -- if received at all -- is received during "nonin-
structional time," when students are in the hall or library outside of
the structured classroom setting. Mergens, 496 U.S. at 251 (plurality).
Moreover, the Supreme Court has never held that the mere fact that
private religious speech occurs during school hours is sufficient to
render it state speech. Indeed, the Court implicitly rejected this sug-
gestion in Mergens when it treated the speech of religious clubs at a
high school as private religious expression, despite the fact that the
official school recognition of the clubs mandated by the Court's opin-
ion would guarantee the religious clubs "access to the school newspa-
per, bulletin boards, the public address system, and the annual Club
Fair." Id. at 247, 250-51.
Undoubtedly, the distribution of the school newspaper, student
viewing of school bulletin boards, and announcements over the public
address system about official club activities all occured during school
hours. Nevertheless, the Mergens plurality and Justices Kennedy and
Scalia in concurrence were apparently neither troubled nor swayed by
Justice Marshall's concern that "[t]he comprehensiveness of [this
access] highlight[ed] the Establishment Clause dangers posed by"
conferring official school recognition on high school religious clubs.
Id. at 268 (Marshall, J., concurring in the judgment).
The imposition on a student from seeing a privately sponsored
table of Bibles in the hallway during one day of the school year is,
we are satisfied, no greater than that from seeing signs advertising a
religious club on the school's bulletin boards or hearing broadcasts
15
about the clubs over the public address system every day, and the
argument for attributing the religious speech to the government is no
greater in the former situation than in the latter. The only message
fairly attributable to the government in either case is that private
speech will be allowed in the forum on a nondiscriminatory basis.
Second, appellants argue that Upshur County schools are not public
forums for private speakers, but are in fact "tightly controlled non-
forum[s]" to which the Board allows access on a discretionary basis
only to speech that it deems age appropriate, not harmful to students,
and not disruptive to the school environment. Appellants' Brief at 19.
Consequently, appellants contend, all of the speech allowed in the
Upshur schools has been approved or "endorsed" by the Board,
reflects the Board's view of what is appropriate for students to hear,
and, as a result, becomes -- in some sense -- the Board's speech. See
id. at 19, 33. We cannot accept this argument that the mere fact that
the school, quite properly, retains the prerogative to exclude from its
halls speech that threatens its educational mission means either that
the Bible sponsors speak for the Board or that the Board is fostering
the mistaken impression that they do.
The government need not be administering a "public forum" or
even a "limited public forum" as those terms are understood in free
speech jurisprudence in order for it to allow private religious expres-
sion on a neutral basis without violating the Establishment Clause.
See, e.g., Lamb's Chapel, 508 U.S. at 391-93, 395 (declining to
decide whether school facilities were a "public forum" or a "nonpub-
lic forum" because, in either event, the schools were required by the
Free Speech Clause to allow religious groups to use those facilities on
equal terms and providing such equal access would not violate the
Establishment Clause); Widmar, 454 U.S. at 267 (holding that a uni-
versity could not discriminate against religious speech in a "generally
open" forum); Mergens, 496 U.S. at 241-42, 246-48 (plurality) (hold-
ing that even though the school might not be the kind of "limited pub-
lic forum" recognized in Widmar, it was a"limited open forum" as
defined by Congress under the Equal Access Act and the school was
thus required to allow religious clubs and could do so without violat-
ing the Establishment Clause).
In fact, it is well established that "schools do not endorse every-
thing they fail to censor," Mergens, 496 U.S. at 250 (plurality), even
16
when the school is administering a forum that is"explicitly designed
to advance the school's interest in shaping the character of its stu-
dents," id. at 268 (Marshall, J., concurring in the judgment). Like the
Board in this case, the school district in Mergens did not have a writ-
ten policy governing the formation of student clubs, but, in practice,
it allowed those clubs whose "goals and objectives [were] consistent
with school board policies and with the school district's `Mission and
Goals' -- a broadly worded `blueprint' that expresses the district's
commitment to teaching academic, physical, civic, and personal skills
and values." Id. at 232 (plurality).
The plaintiffs in Mergens contended that because the clubs were
obviously "an integral part of [the school's] educational mission, offi-
cial recognition of [a religious club] would effectively incorporate
religious activities into the school's official program, endorse partici-
pation in the religious club, and provide the club with an official plat-
form to proselytize other students." Id. at 247-48. Justice Marshall,
joined by Justice Brennan, agreed that, because the"school's message
with respect to its existing clubs [was] not one of toleration but one
of endorsement," id. at 265 (Marshall, J., concurring in the judgment),
the school was required to take special steps to"fully dissociate itself
from [the proposed religious] club's religious speech and avoid
appearing to sponsor or endorse the club's goals," id. at 270. Justice
Marshall would have required the school either to"entirely discon-
tinue encouraging student participation in clubs and clarify that the
clubs are not instrumentally related to the school's overall mission"
or "to continue its general endorsement of those student clubs that did
not engage in controversial speech," but to "affirmatively disclaim[ ]
any endorsement of the Christian club," id .
However, a majority of the Court in Mergens unmistakably
rejected the plaintiffs' and Justice Marshall's position, and held that
it would not violate the Establishment Clause for the school to allow
religious clubs without changing its existing policy. See Mergens, 496
U.S. at 248 (plurality); id. at 260-62 (Kennedy, J., joined by Scalia,
J., concurring in part and concurring in the judgment). Certainly, to
allow religious clubs under that policy, the school in Mergens would
have to find, implicitly at least, that student participation in religious
activities is consistent with the school's view of appropriate student
character development. Cf. id. at 261 ("I should think it inevitable that
17
a public high school `endorses' a religious club, in a commonsense
use of the term, if the club happens to be one of many activities that
the school permits students to choose in order to further the develop-
ment of their intellect and character in an extracurricular setting.").
Nevertheless, as Justice Kennedy explained, "no constitutional viola-
tion occurs if the school's action is based upon a recognition of the
fact that membership in a religious club is one of many permissible
ways for a student to further his or her own personal enrichment." Id.
Similarly in this case, the Board's decision that religious speech is
one of many kinds of speech that is consistent with the schools' edu-
cational mission and that is appropriate for students to hear if they so
choose does not evince the favoritism of religion that the Establish-
ment Clause condemns. Rather, to require the Board to exclude reli-
gious literature as such from the forum it has created to further the
schools' educational mission by exposing the county's students to a
variety of age appropriate private speech would evince the hostility
toward religious speech that the Establishment Clause does not
require and that the Free Exercise and Free Speech Clauses forbid.
See, e.g., id. at 248 (plurality) ("The Establishment Clause does not
license government to treat religion and those who teach or practice
it, simply by virtue of their status as such, as subversive of American
ideals and therefore subject to unique disabilities.") (quoting
McDaniel v. Paty, 435 U.S. 618, 641 (1978) (Brennan, J., concurring
in the judgment)) (internal quotation marks omitted); Rosenberger,
115 S. Ct. at 2525 (O'Connor, J., concurring) ("Withholding access
would leave an impermissible perception that religious activities are
disfavored . . .; if a State refused to let religious groups use facilities
open to others, then it would demonstrate not neutrality but hostility
toward religion."); Kiryas Joel, 114 S. Ct. at 2498 (O'Connor, J., con-
curring in part and concurring in the judgment) ("The Religion
Clauses prohibit the government from favoring religion, but they pro-
vide no warrant for discriminating against religion.").
Of course, if the Board "manipulate[d] its administration of" the
forum through its residual discretion to exclude harmful, disruptive,
or age inappropriate materials, so as to give "preferential access" to
religious groups or so as to ensure "that only certain religious groups
take advantage of it," then that "governmental favoritism" of religious
speech would violate the Establishment Clause. Capitol Square, 115
18
S. Ct. at 2448-49 (plurality). The record is devoid of any evidence,
however, that the Board has applied its forum standards in a manner
that discriminates in favor of Bibles or against other religious materi-
als or non- or anti-religious materials. Absent such evidence, we
refuse to impute to the Board the unconstitutional intent to favor reli-
gion. We presume that the Board will administer the Upshur County
school forums in accordance with the dictates of the Constitution.
C.
Despite all of appellants' broad arguments to the contrary, appel-
lants themselves concede, as they must, that the Upshur County
schools could, as a general matter, permit private distribution of reli-
gious materials pursuant to a neutral, open access policy because
"[a]n open access policy `does not confer any imprimatur of State
approval on religious sects or practices' . . . because the forum is
available to a broad class of nonreligious as well as religious speak-
ers." Appellants' Reply Brief at 20 (quoting Appellees' Brief at 35);
see also Appellants' Brief at 38 ("If . .. the Board had requests from
a wide spectrum of private groups wanting to make mass distributions
of free books to students, then it might be able legitimately to decide
to accommodate those requests, including requests from religious
groups to distribute religious materials."). Because the Board has, in
fact, adopted such a neutral, equal access policy, appellants' case
against the Board's decision to allow passive distribution of religious
materials reduces to the single, factual assertion that Christian reli-
gious speech is dominating and will always dominate the Upshur
County school forums. See Appellants' Brief at 29-33. According to
appellants, this alleged domination means that "even if the Upshur
County Board has a policy that sa[ys] any private groups or citizens
[can] distribute their books to the county's school children, that policy
would still violate the Establishment Clause," because the only groups
who have taken advantage of the equal access policy and are likely
to take advantage of it in the future are Christians who want to make
Bibles available. Id. at 30.
Justice O'Connor has suggested that, "[a]t some point, . . . a private
religious group may so dominate a public forum that a formal policy
of equal access is transformed into a demonstration of approval," and
that the resulting "endorsement" of religion violates the Establishment
19
Clause. Capitol Square, 115 S. Ct. at 2454 (O'Connor, J., concurring
in part and concurring in the judgment). Even assuming, however,
that a neutral government policy of equal access may be converted
into government favoritism toward religion if religious groups are the
only speakers who choose to use the forum, we doubt that the passive
distribution of Bibles on a single day during the year, when other
material is distributed freely and actively throughout the year, could
ever constitute impermissible domination of a forum, even in the
absence of other speech similar to the Bible. But, in any event, appel-
lants' argument that the Bible or other religious speech will dominate
Upshur County's forums lacks factual support in the record and is
both premature and speculative.
Appellants all but concede not only that there is a sufficiently vig-
orous exchange of informational announcements and pamphlets in the
Upshur County schools that the schools could allow distribution of
religious materials of a "similar" character, but also that the schools
would risk unconstitutionally discriminating against religious speech
were they to exclude such religious materials. See Appellants' Reply
Brief at 9 (noting that the schools could encounter constitutional "dif-
ficulties if they refused to distribute `religious' materials that were
analogous to informational announcements by the scouts, 4-H, or the
Little League"). Thus, appellants' argument that Christian religious
speech is dominating the Upshur county school forums depends on
their characterization of passive Bible distribution as a radically dif-
ferent form of speech than has historically occurred in the Upshur
forums. Appellants argue that "youth activities groups -- the scouts,
4-H, and Little League" and "their literature are so dramatically dif-
ferent from a coalition of churches (or of just private citizens) hand-
ing out Bibles that they cannot possibly provide an antidote for the
religious message of the defendants' action in permitting the Bible
distribution." Appellants' Reply Brief at 4. Even indulging appellants'
intimation that private religious speech in a generally open school
forum is a poison in need of "antidote," we are not persuaded that the
difference between books, on the one hand, and pamphlets on the
other, is of constitutional moment. Nor do we understand how the
character of the private speaker is relevant to our analysis.
Moreover, and perhaps most important for resolution of the partic-
ular case before us, even if there is a constitutionally significant dif-
20
ference between Bible distribution and distribution of the type of
literature previously made available in the Upshur schools, appel-
lants' argument would nonetheless be premature. The Board only
recently clarified its 1989 policy so as to open the Upshur County
school forums to a much broader spectrum of speech-- including
religious and political speech -- than traditionally has had access to
the Upshur County schools, and it was only during the process lead-
ing to this clarification that the Board actually affirmed that the
Upshur County schools are "open forum[s]" that welcome a wide
variety of private speech. We cannot hold that the Board's policy of
providing equal forum access to private speakers violates the Estab-
lishment Clause simply because the first speaker in the forum happens
to deliver a religious message, any more than we could hold that the
Equal Access Act sustained in Mergens would be unconstitutional as
applied to the approval of a religious club simply because it was the
first to apply for recognition under a school policy allowing students
to establish official, noncurricular clubs. Any such holding would
exhibit an antipathy toward religious speech both at odds with our
religious heritage and forbidden by our Constitution.
Implicitly conceding the weakness of any contention that the con-
stitutionality of the Upshur County forum turns solely on the fortuity
that the first speaker in the forum was religious, appellants emphasize
at every turn that citizens distributing Bibles are likely to be the only
religious (or political) speakers that will ever enter the Upshur schools
under the Board's policy. Thus, appellants are at pains to frame the
issue before us as
[w]hether a county school board violates the Establishment
Clause of the First Amendment to the United States Consti-
tution by permitting a private religious group to use the pub-
lic schools to make Bibles available, during the school day,
to all of the county's school children when no similar distri-
butions, for books other than Bibles, have ever occurred in
the school system or are likely to occur there in the future.
Appellants' Brief at 1-2 (emphasis added); see also id. at 32 (arguing
that, in Upshur County, "where the Bible has been the only noncur-
ricular book distributed to Upshur County students in the systems's
history and where that is likely to remain the case, the reasonable stu-
21
dent, seeing the table with Bibles . . ., will naturally conclude that the
Bible is a book favored by the county's officialdom") (emphasis
added); id. at 9 ("No organization, however, had ever requested the
opportunity (before or after the Board's December vote) to distribute
or make available in the schools any piece of substantive literature
other than Bibles."). Appellants' unsupported prognostications, how-
ever, are nowhere close to the "empirical evidence that religious
groups will dominate [the] open forum," Mergens, 496 U.S. at 252
(plurality) (quoting Widmar, 454 U.S. at 275), which might serve to
invalidate the county's facially neutral policy.
Appellants argue that the fact that no groups other than McDaniels'
have requested that they be allowed to distribute"substantial" litera-
ture in the Upshur schools since the Board clarified its policy con-
firms that no such requests are likely ever to be forthcoming.
However, this is precisely the case where there is every reason to
believe that the future will not necessarily resemble the past. The
Board's clarification of its equal access policy is relatively recent and
has been under legal attack almost from its inception. Appellants filed
this suit less than three months after the December 1994 policy inter-
pretation and little more than a week after Superintendent Westfall
first met with McDaniels to arrange a date for making the Bibles
available. J.A. at 3, 94. The policy was then preliminarily enjoined
until just over a year ago, after which time this appeal has been pend-
ing.
It is hardly surprising that the Board has not been flooded with
requests for permission to distribute literature in the Upshur schools
pursuant to the new policy. Once this legal challenge is resolved, it
would stand to reason that any number of groups will choose to take
fuller advantage of the Upshur County school forums. And even rela-
tively limited participation by other groups would, in our view, pre-
vent a one-day passive Bible distribution from dominating the school
forums.
In other words, given the chance, the Upshur school forums may
well become the broad forums that the Board envisioned when it
interpreted its policy to further advance the schools' educational mis-
sion by expanding the scope of ideas to which Upshur students are
exposed. J.A. at 226-28. Even appellants concede that religious par-
22
ticipation in such a forum would withstand Establishment Clause
attack and, indeed, that religious speech could not constitutionally be
excluded from such a forum. See Appellants' Brief at 38; Appellants'
Reply Brief at 9. As we held in Fairfax Covenant Church v. Fairfax
County School Board, 17 F.3d 703, 708 (4th Cir. 1994):
[E]mpirical evidence of domination . . . is not fulfilled by
. . . anxiety or concern about whether the empirical circum-
stances could exist in the future. Mere speculation that a
nonexclusive access to a public forum might ripen into a
violation of the Establishment Clause, absent any facts sug-
gesting that probability, is not a justification sufficiently
compelling to burden free access to the forum.
Id. at 708 (emphasis added). Just as "[w]ithholding access [to an open
forum] would leave an impermissible perception that religious activi-
ties are disfavored" and "would demonstrate not neutrality but hostil-
ity toward religion," Rosenberger, 115 S. Ct. at 2525 (O'Connor, J.,
concurring), so to would prematurely intervening to exclude religious
speech from a newly established open forum based on sheer specula-
tion that the religious speech might someday so dominate the forum
that an open-access policy would be transformed into a prohibited
establishment of religion.
D.
As should be evident from the foregoing discussion, we are con-
vinced that the Board has neither coerced any student to participate
in a religious activity nor impermissibly "endorsed" religion by allow-
ing, under the circumstances described, the privately sponsored Bible
displays for a single day during the year. "The inquiry with respect
to coercion must be whether the government imposes pressure upon
a student to participate in a religious activity." Mergens, 496 U.S. at
261 (Kennedy, J., concurring in part and concurring in the judgment)
(emphasis added). As we discussed earlier, the Board's action does
not raise the specter of official coercion because neither the Board nor
any other school employee will require or even encourage any student
to pick up a Bible, much less to read one, and the Board has also
expressly forbidden the private sponsors of the tables from imposing
upon any student to take a Bible. The Bibles are made available out-
23
side of the formal classroom setting and students will be able to
ignore or simply walk past the table set up in the hall or library --
presumably without even calling any attention to that choice. Thus,
no student will be put to the choice of "participating [in a religious
exercise], with all that implies, or protesting." Lee v. Weisman, 505
U.S. 577, 593 (1992). We recognize that some "possibility of student
peer pressure remains, but there is little if any risk of official state
endorsement or coercion where no formal classroom activities are
involved and no school officials actively participate." Mergens, 496
U.S. at 251 (plurality).
Neither do we perceive any significant risk that a reasonable
observer would believe that the schools were endorsing or favoring
religion. Both Congress and the Supreme Court have recognized that
at least secondary school students are capable of distinguishing
between a school's equal access policy and school sponsorship of reli-
gion. See id. at 250-51. And we believe that students are particularly
capable of recognizing that distinction where, as here, a reasonable
observer would know both that the school has allowed other private
groups to distribute literature in the past and that those groups, and
others, are "free to initiate" other displays in the future, id. at 252; the
tables displaying the Bibles are set up for only one day and are
located outside of the classrooms in areas that the students can freely
leave; no pressure is exerted on students to take Bibles; the tables bear
an explicit disclaimer renouncing any school endorsement; and no
teacher or other school employee is involved in any way in making
the Bibles available.* As the Supreme Court itself has noted, "[t]he
_________________________________________________________________
*While we are not convinced that, even in the elementary school con-
text, concerns of coercion or endorsement should be sufficient to consti-
tutionally foreclose the County from implementing a neutral policy
designed to accommodate free speech and free exercise interests -- espe-
cially where, as here, the children's only exposure to the private religious
speech is both passive and limited -- we are convinced that a majority
of the Supreme Court might well believe that these concerns should be
and are sufficient in the elementary school context to invalidate such a
policy. We can appreciate fully what might be the Court's thinking in
this regard. In elementary schools, the concerns animating the coercion
principle are at their strongest because of the impressionability of young
elementary-age children. Moreover, because children of these ages may
24
proposition that schools do not endorse everything they fail to censor
is not complicated." Id. at 250.
III.
We hold, accordingly, that the state does not violate the Establish-
ment Clause when it permits private entities to passively offer the
Bible or other religious material to secondary school students on a
single day during the year pursuant to a policy of allowing private
religious and nonreligious speech in its public schools. In so holding,
we are fully mindful of the unrivaled symbolic power of the Bible.
We also recognize that there is an almost irresistible visceral tempta-
tion to raise the constitutional hurdle proportionately to the power of
this text. But ultimately we are convinced that the power of a given
religious text must be irrelevant to the constitutional analysis and that
we cannot yield to the temptation to adjust the constitutional calculus
depending upon the content of the particular religious material at
issue. The Bible is no less deserving of the Constitution's protection
than any other text of faith. And to hold otherwise would be indirectly
to set us on a course of religious discrimination as antithetical to the
values underlying the Establishment and Free Exercises Clauses as
the direct establishment of a state church itself.
In the end, this case is not about the Bible, but about the principled
application of established Supreme Court precedents which hold that
the state may no more discriminate against, than it can establish, reli-
gion when it opens its facilities to private speech.
_________________________________________________________________
be unable to fully recognize and appreciate the difference between gov-
ernment and private speech -- a difference that lies at the heart of the
neutrality principle -- the County's policy could more easily be
(mis)perceived as endorsement rather than as neutrality. Thus, because
our obligation as a court of appeals is to reason as we believe the
Supreme Court would, we do hold that the School Board's policy is
unconstitutional to the extent that it allows the display of Bibles and
other religious material in the elementary schools of the County. Accord-
ingly, to the extent that the district court judgment sustains this aspect of
the Upshur County policy, the judgment is reversed.
25
As to this issue, appellants all but concede that, prior to adoption
of the policy they challenge today, the Upshur County School Board
was unconstitutionally denying private religious speech the same
access to the public schools that was afforded private nonreligious
speech; they acknowledge that the state, once it opened the halls of
its schools to private speech, could not discriminatorily ban private
religious speech from those halls. Appellants even concede that,
today, the Upshur County School Board may constitutionally permit
private groups to offer the Bible and other religious materials in open
forums of the Upshur County schools, because the imprimatur of the
state is not conferred upon a religious message that is imparted by a
private party in such forums. And appellants acknowledge, as the dis-
trict court specifically found, that the County has invited private
speakers into its public schools. Essentially, appellants' only argu-
ment is that Upshur County does not have a policy of open access that
sufficiently "diffuses the religious impact" of the Bibles because the
only persons who, thus far, have availed themselves of the School
Board's new policy allowing the distribution of religious and political
material are persons who wish to offer the Bible. Until and unless
other speakers enter the open forum recently created by the Board, so
the argument goes, private religious speech must be banned from the
forum by the Constitution.
If Upshur County's newly created open forums in fact become so
dominated by private religious speech that a genuine threat of an
established religion becomes apparent -- as appellants fear but at this
point only speculate will occur -- there will be time enough to
address such an argument. In order for such an argument to prevail
at this time, however, we would have to hold that private religious
speech is forbidden by the Establishment Clause merely because it
happens to be the first speech uttered in a state's open forum. Such
a holding would represent an antipathy toward religion that the Estab-
lishment Clause does not require, and that the Free Exercise and Free
Speech Clauses affirmatively proscribe.
The judgment of the district court is affirmed in part and reversed
in part.
It is so ordered.
26
DIANA GRIBBON MOTZ, Circuit Judge, concurring in part and dis-
senting in part:
The Upshur County School Board permitted a group of ministers,
politicians, and businessmen to distribute Bibles in all public elemen-
tary and secondary schools during regular school hours, when state
law compels student attendance. Except as to the very youngest and
most impressionable children, the majority concludes that this action
did not violate the Establishment Clause. That holding is not just
unprecedented; it also is contrary to both the spirit and the letter of
controlling Supreme Court authority.
The Supreme Court has never held that the government can permit
private groups to display sectarian religious materials, let alone dis-
tribute Bibles, in public schools while school is in session. Rather, the
Court has repeatedly stressed the susceptibility of school children to
the power of government and the pressure of peers in"enforc[ing]
religious orthodoxy," Lee v. Weisman, 505 U.S. 577, 592-93 (1992),
and has warned against the use of the Bible as an"instrument of reli-
gion" in the public schools, School Dist. of Abington Township v.
Schempp, 374 U.S. 203, 224 (1963). Accord Stone v. Graham, 449
U.S. 39, 41 n.3 (1981) (per curiam); Edwards v. Aguillard, 482 U.S.
578, 608 (1987) (Powell, J., concurring).
Because "[t]he State exerts great authority and coercive power
through mandatory attendance requirements, and because of the stu-
dents' emulation of teachers as role models and the children's suscep-
tibility to peer pressure," the Court itself has pointed out the
frequency with which it has been required "to invalidate statutes
which advance religion in public elementary and secondary schools."
Edwards, 482 U.S. at 584. For example, the Court has prohibited as
violative of the Establishment Clause not only an in-school Bible
reading requirement, Schempp, 374 U.S. at 223-26, but also the post-
ing of privately financed copies of the Ten Commandments in public
school classrooms, Stone, 449 U.S. at 39-41, the imposition of limita-
tions on the teaching of evolutionary theory in public schools,
Edwards, 482 U.S. at 586-96; Epperson v. Arkansas, 393 U.S. 97,
104-09 (1968), the observance of a one-minute period of meditative
silence or voluntary prayer during regular school hours, Wallace v.
Jaffree, 472 U.S. 38, 55-61 (1985), and, most recently, the use of a
27
short nonsectarian prayer at non-compulsory high school and middle
school graduation ceremonies. Lee, 505 U.S. at 586-99.
In this case, considering the context and history of the County, its
schools, and the Bible distribution, a reasonable observer could only
conclude that by permitting a private group to make Bibles available
at all levels of the public school system -- in the high schools, junior
high schools, middle schools, and elementary schools-- the Board
effectively endorsed religion. The Establishment Clause prohibits this
result. Accordingly, I respectfully dissent.
I.
The majority opinion requires me to address two preliminary mat-
ters before reaching the heart of the Establishment Clause analysis.
A.
The majority omits many essential -- and undisputed -- facts con-
cerning the challenged Bible distribution. Knowledge of those facts
is necessary for an understanding of the context of the Bible distribu-
tion, which in turn provides the basis for the Establishment Clause
analysis. Those critical, uncontroverted facts are as follows:
First, and indisputably, the Bible was and is the only sectarian reli-
gious text -- indeed, the only non-curricular book of any sort -- that
the Upshur County School Board has ever approved for distribution
in the County schools. The Board adopted its 1989 policy in reaction
to an in-school Bible distribution by the Gideons. Superintendent
Lynn Westfall (a thirty-two-year veteran of the Upshur County
schools) testified that after the Gideons "went into the classroom[s],
talked to the students, and then handed the Bibles to the students," the
Board approved its policy prohibiting the distribution of religious
materials "advocating a particular religion, denomination, or the
beliefs thereof" in the schools. A Board member further explained
that the Board considered the Gideons' distribution"a problem"
because "children were being coerced or pressured into accepting
things." Moreover, when the Board adopted its 1989 policy it made
no distinction between permitting groups to distribute religious mate-
28
rials (including Bibles) and permitting them to make available reli-
gious materials. (Similarly, I make no distinction herein between
"distributing" and "making available.") The Board followed that pol-
icy -- without exception -- until it sanctioned the Bible distribution
now at issue.
Second, after adoption of the 1989 policy, only four private groups
distributed literature in the schools prior to the challenged Bible dis-
tribution: the Little League, the Boy Scouts, the Girl Scouts, and the
4-H Club. (Some twenty years earlier, the Women's Christian Tem-
perance Union had distributed some literature in the schools, but that
distribution had not been repeated in recent times.) These four groups,
recognized by the Superintendent as "quasi-educational," "[y]outh
service, youth activity-oriented groups," distributed "informational
announcements and pamphlets" regarding membership and activities.
Although the public schools in Upshur County and throughout the
state commonly receive requests to distribute Bibles, the four groups
granted access neither requested nor received permission to distribute
Bibles, sectarian religious texts, books espousing theological or reli-
gious principles, or, in fact, books of any kind.
Third, the circumstances leading to the Board's decision to permit
the challenged Bible distribution remain uncontroverted. In August
1994, Reverend Eddie McDaniels, a local minister and radio talk
show host, accompanied by a businessman and two state senators,
asked to place Bibles on tables in public schools-- to "make them
available" to students. The group argued that"making the Bibles
available" did not violate the Board's formal policy barring "distribu-
tion" of sectarian religious materials. Reverend McDaniels indicated
to the Superintendent (who in turn reported to the Board) that "some
of the people involved feel strongly enough about this issue that they
may pursue it legally."
The Superintendent sought counsel from the Board's attorney, who
advised that, although existing law did not "specifically prohibit" a
private group from making the Bibles available, the Board should
deny the request and adhere to its existing policy. The Superintendent
reported this advice to the Board, along with his opinion that the
Board should "stand[ ] firmly behind[the] existing policy," because
"at the time that the Board adopted [the] policy, both distribution and
29
[the making] availab[le] of Bibles were prohibited." In late October,
the Superintendent shared the research with Reverend McDaniels'
group, and suggested that the group distribute the Bibles through the
Fellowship of Student Athletes, "a voluntary student group that meets
off school hours," which, like other student clubs in the schools, could
freely make Bibles (or other religious or non-religious literature)
available to their fellow students. Reverend McDaniels' group
rejected this suggestion.
After meeting with the Superintendent, Reverend McDaniels
attempted to convince each member of the Board to permit the distri-
bution of Bibles throughout the school system. He informed them that
one of the members of his congregation, Tom Shaw, planned to pub-
lish a statement in the local paper urging citizens to vote against the
upcoming school tax levy unless the Board sanctioned the Bible dis-
tribution. In exchange for a commitment to consider the distribution
at their next Board meeting, Reverend McDaniels stated that he
would try to halt publication of Shaw's statement. In response, one
Board member suggested that the group distribute the Bibles through
the parent-teacher organization, or at grocery stores, other business
places, or at after school events. Reverend McDaniels again rejected
these suggestions and the idea of distributing Bibles in the churches,
explaining that "there are people who do not go to church that he
could probably find in school."
When the Board resisted Reverend McDaniels' proposal, a large
print, twelve-paragraph statement attacking the nondistribution policy
appeared in the Record Delta, an Upshur County newspaper. That
statement reads in pertinent part:
WAKE UP UPSHUR COUNTY
. . . .
The problem that confronts this community is an action
taken five years ago by the county board of education that
prohibits the distribution of Bibles in public schools.
. . . .
30
The school board said it based its decision to stop the
practice on the need for public schools to "remain neutral
concerning matters of particular religious and political
beliefs."
The board's decision would make sense if the Bibles were
to be used in classrooms. That is not the intention of the dis-
tribution program. It is simply a way to make sure that every
student has a [B]ible for personal use.
. . . .
Guns have already made an appearance in some Upshur
County schools. Is it not better to carry a Bible to school
than a gun? And when did guns start appearing in our class-
rooms? They showed up only after the 1989 school board
action to ban the distribution of [B]ibles .
Our school board should review this decision and reverse
it as soon as possible. If it does not, we should remember
their position the next time a special school levy comes up.
We should vote to withhold our taxes until the school board
comes to its senses.
We will have an opportunity to do just that when the
school levy comes before us for a vote in November .
. . . .
We must get Bibles back into the lives of our young peo-
ple. Schools are the best place to distribute them because
that's where the kids are. Let's make sure that this program
is reinstated in Upshur County.
This Ad Paid for by Tom Shaw, HC78 Box 134, Rock Cave,
WV 26234.
(Emphasis added).
31
Notwithstanding the newspaper statement, the Board refused to
vote on the Bible distribution at its November meeting. Shortly there-
after the school tax levy was defeated in a close vote.
In early December, the Superintendent advised the Board that Rev-
erend McDaniels had met with twelve to fifteen local ministers to dis-
cuss the Bible distribution, that money had been raised from local
businesses to purchase Bibles, and that petitions were being circulated
in the churches on Sunday in support of the Bible distribution. The
Superintendent then proposed the Bible distribution plan at issue here
as a "compromise." He acknowledged that "this action is contrary to
the advice of our Board attorney," but stated that he thought "we will
pay dearly if we do not make at least this minor concession."
More than 500 people attended the Board's December meeting (the
usual attendance ranged from 30 to 40). Almost two dozen Upshur
County Protestant churches presented the Board with petitions in
favor of the Bible distribution. Reverend McDaniels, another clergy-
man, and several other citizens spoke at the Board meeting and the
Superintendent recounted that "[t]he gist of the testimony was that the
Bibles needed to be made available to students to improve morals,
discipline in schools and to improve society in general."
Finally, it remains undisputed that, as recorded in the minutes of
the December meeting, upon a motion duly made, seconded, and car-
ried, "the Board instructed the Superintendent to meet with Mr.
McDaniels to arrange a day for making Bibles available to students
of Upshur County Schools based on the premise that making Bibles
available to students and distributing Bibles to students are not the
same." (Emphasis added). As the Superintendent acknowledged, the
Board minutes from that meeting do not contain any suggestion that
religious materials other than Bibles would be permitted in the Upshur
County schools. And, as the Board concedes in its brief, the Superin-
tendent and Board members admitted on cross-examination that "the
only discussion among the Board was basically whether . . . to make
available was within or without the policy already in existence by the
Board." Brief of Appellee at 8 (quoting the Superintendent). Specifi-
cally, the Board president conceded that no member of the Board or
Administration ever mentioned -- in all of the discussions prior to
granting permission for the Bible distribution -- that the 1989 policy
32
"was going to be adopted, changed or interpreted in order to provide
a broad forum for the free flow of ideas." He further testified that he
had never "directed" the Superintendent "to bring a broad public
forum into the schools of Upshur County," and during his tenure on
the Board (since 1982), he had never suggested that"it might be a
good idea to create a broad public forum" in the schools, nor did he
recall other Board members making such a suggestion.
B.
The other preliminary matter that I must note is the district court's
express finding, accepted by the majority, that the Upshur County
schools constitute a nonpublic forum.
In a traditional public forum -- a public street or park -- long "de-
voted to assembly and debate," Perry Educ. Ass'n v. Perry Local
Educators' Ass'n, 460 U.S. 37, 45 (1983), the government can
exclude a speaker "only when the exclusion is necessary to serve a
compelling state interest and the exclusion is narrowly drawn to
achieve that interest." Arkansas Educ. Television Comm'n v. Forbes,
118 S. Ct. 1633, 1641 (1998) (internal quotation marks omitted). Sim-
ilarly, the government may create a designated or limited purpose
public forum by opening public property "for use by the public as a
place for expressive activity," which it may limit to "use by certain
groups . . . or for the discussion of certain subjects." Perry, 460 U.S.
at 45, 46 n.7. As long as a designated public forum retains its "open
character," it "is bound by the same standards as apply in a traditional
public forum." Id. at 46.
The government, however, retains significant power to limit private
speech in a nonpublic forum -- i.e., a"[p]ublic property which is not
by tradition or designation a forum for public communication." Id. It
can deny access to a nonpublic forum "on the basis of subject matter
and speaker identity," id. at 49, if"the distinctions drawn are reason-
able in light of the purpose served by the forum and are viewpoint
neutral." Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473
U.S. 788, 806 (1995). "In contrast to a public forum, a finding of
strict incompatibility between the nature of the speech or the identity
of the speaker and the functioning of the nonpublic forum is not man-
dated." Id. at 808. If the characteristics of the private speaker seeking
33
access to a nonpublic forum do not match the characteristics of the
class of speakers to which the forum has been made selectively avail-
able, the government may exclude the speaker. See Arkansas Educ.,
118 S. Ct. at 1642; Perry, 460 U.S. at 48 (in a nonpublic forum or
even a designated public forum "the constitutional right of access . . .
extend[s] only to entities of a similar character").
After a thorough analysis properly based on "the history of the
forum, the practice and policy of the Board, and the nature of the
property," Peck v. Upshur County Bd. of Educ. , 941 F. Supp. 1465,
1471 (D. W. Va. 1996); see Cornelius, 473 U.S. at 802-05, the district
court found that the Board "had in place" a nonpublic forum to which
it permitted "selective access . . . for the purpose of enhancing the
educational mission of the public schools." Peck, 941 F. Supp. at
1472. That finding was clearly correct. Public schools do not by
nature possess the attributes of a public forum open for "indiscrimi-
nate use" by the citizenry or some segment thereof. See Hazelwood
Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267-70 (1988). Nor does the
Board's 1989 policy or historical practice in any way suggest that the
Board intentionally designated the schools a public forum. Cf.
Arkansas Educ., 118 S. Ct. at 1641-42. Thus, although my colleagues
in the majority refer to the Board's creation of an"open forum," ante
at 12, 16, 21, 22, 23, 26, and an "open school forum," id. at 13, 21,
they, too, accept the district court's finding that the Upshur County
schools constitute a nonpublic forum. See id. at 7, 16.
Given this unquestioned and unquestionably correct finding; given
that, in a nonpublic forum, the government need only afford similarly
situated private religious groups the same access it has granted private
groups lacking a religious viewpoint; and given that the Board
granted access in the previous five years solely to private youth activ-
ity groups distributing informational literature, in my view, the Free
Speech Clause did not require the Board to permit a group of clergy,
politicians, and businessmen to distribute Bibles in the schools. But
even if Reverend McDaniels' group did possess such a right, the
Board could not constitutionally grant the group access to the schools
if the distribution offended the Establishment Clause. This is so
because "[t]here is no doubt that compliance with the Establishment
Clause is a state interest sufficiently compelling to justify content-
based restrictions on speech." Capital Square Review & Advisory Bd.
34
v. Pinette, 115 S. Ct. 2240, 2446 (1995); see also Lamb's Chapel v.
Center Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993);
Widmar v. Vincent, 454 U.S. 263, 271 (1981).
Consequently, in this case the importance of the district court's
express finding -- unchallenged by the majority-- that the schools
constitute a nonpublic forum does not lie in determining the group's
Free Speech right of access; Reverend McDaniels' group has been
given access. Rather, I emphasize the district court's finding that the
schools constituted a nonpublic forum because the nature of the forum
proves crucial to the Establishment Clause analysis, see infra S II.B.1,
to which I now turn.
II.
In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Supreme Court
enunciated a three-part test to determine whether government action
violates the Establishment Clause. To satisfy the prohibition against
conduct that establishes religion, government action must: (1) have a
secular purpose; (2) have as its "primary effect . . . one that neither
advances nor inhibits religion"; and (3) "not foster an excessive gov-
ernment entanglement with religion." Id. at 612-13 (internal quotation
marks omitted). A majority of the Court has recently reaffirmed the
importance of Lemon's "purpose" prong, and concluded that its "ef-
fect" and "entanglement" prongs rightly comprise a single inquiry.
See Agostini v. Felton, 117 S. Ct. 1997, 2010, 2015 (1997). I first
address the "purpose" and then the "effect" of the Board's action.
A.
"`The purpose prong of the Lemon test asks whether government's
actual purpose is to endorse or disapprove of religion.'" Edwards, 482
U.S. at 585 (quoting Lynch v. Donnelly, 465 U.S. 668, 690 (1984)
(O'Connor, J., concurring)). "[T]he First Amendment requires that
[government action] must be invalidated if it is entirely motivated by
a purpose to advance religion." Wallace, 472 U.S. at 56. Although the
government must act with a "clearly secular purpose," still it may be
"motivated in part by a religious purpose." Id. (citing Schempp, 374
U.S. at 296-303 (Brennan, J., concurring)).
35
The majority holds that the Board's decision to permit the Bible
distribution "was plainly adopted . . . to further [its] educational mis-
sion." Ante at 10. Noting that the Board's 1989 policy enunciated its
commitment to the "unrestricted pursuit of knowledge," the majority
implies that the Bible distribution grew naturally from that policy. See
ante at 10-13. But the uncontroverted facts offer no support for this
theory. The Board adopted its 1989 policy, expressly barring the dis-
tribution of religious materials "advocating a particular religion,
denomination, or the beliefs thereof," because of its concern that the
previous Bible distribution (by the Gideons) resulted in coercion of
students. The Board steadfastly followed that policy during the subse-
quent five years, and ultimately permitted the contested Bible distri-
bution only in response to political strong-arming and threatened legal
action, and only after initially deciding to stand by its nondistribution
policy.
Furthermore, in view of the newspaper statement urging the Board
to allow Bibles in the schools, the multiple petitions in favor of Bibles
in the schools, the Board minutes recording the vote to permit a Bible
distribution, and the Board president's acknowledgment that, prior to
granting this permission, the Board never discussed creating a "broad"
forum, the majority's reliance on post hoc testimony to conclude that
the Board intended to create "an `open forum' to which . . . adherents
of all faiths, individuals opposed to religion, and others . . . will share
access," ante at 12, is singularly unpersuasive.
In determining the purpose of challenged government action, the
proper inquiry focuses on its stated purpose and history. See, e.g.,
Edwards, 482 U.S. at 586-87. Although on occasion the Court has
considered the trial testimony of those responsible for a challenged
state action as to their motivation, see, e.g. , Wallace, 472 U.S. at 57,
that practice has been criticized within the Court, see id. at 77
(O'Connor, J., concurring); id. at 86-87 (Burger, C.J., dissenting).
Perhaps more important, the Court has never held that self-serving,
after-the-fact testimony about motivation can establish a particular
secular purpose when the government action itself and the events that
led to it compel a different conclusion. After all, the stated purpose
underlying governmental action must be "sincere and not a sham."
Edwards, 482 U.S. at 586-87. In this case, as one of the amici filing
a brief in support of the Board notes, "Board members admitted at
36
trial that the Board did not reach its decision for educational purposes
but did so because of community pressure." Amicus Curiae Brief of
Texas Justice Foundation at 11 (emphasis added).
The undisputed facts thus make the purpose inquiry closer than the
majority suggests. The record undeniably demonstrates that Reverend
McDaniels' group -- who wanted to distribute a particular version of
the Bible in the public schools "because that's where the kids are" --
sought to "advance religion," and that the Board voted to permit the
Bible distribution only after that group lobbied and petitioned the
Board, and worked to defeat the school tax. These facts lead to the
almost inescapable inference that the Board acted to appease the
group. The Board's epiphany arose from its political sensitivities, not
its educational sensibilities.
But does this conclusion translate to an improper purpose? The dis-
trict court held it does not, Peck, 941 F. Supp. at 1473-74 n.7; how-
ever, the parents who challenge the Bible distribution argue that the
Board necessarily embraced the religious biases of Reverend McDan-
iels' group. They maintain that "when the Board acted solely with the
design of appeasing the group . . . the religious purpose of the group
became the religious purpose of the Board." Brief of Appellants at 48.
In support of this proposition the parents cite Palmore v. Sidoti, 466
U.S. 429, 432-34 (1984), in which the Supreme Court held, in an
equal protection context, that government cannot act to give effect to
private biases.
Even if Palmore applies as suggested by the parents -- and I think
it does not, see Board of Educ. of Westside Community Sch. v.
Mergens, 496 U.S. 226, 249 (1990) (plurality opinion) -- it provides
no basis to conclude that the Board was "entirely motivated" to "ad-
vance religion," Wallace, 472 U.S. at 56. As already noted above, I
believe Reverend McDaniels' group had no right to distribute Bibles
in the Upshur County schools. See supraS I.B. This conclusion does
not, however, require that a court shut its eyes to the record. Reverend
McDaniels' group asserted such a right and threatened suit to estab-
lish it. At the Board's request, its attorney researched the question and
concluded that, although the distribution might cause Establishment
Clause concerns, no law "specifically prohibited" it. The undisputed
facts demonstrate that the Board's motivation stemmed at least in part
37
from an aversion to a loss of needed revenue for the schools, from the
familiar desire to avoid a lawsuit, and from an (erroneous) concern for
accommodating the group's asserted right to access the schools. This
undoubtedly satisfies the secular purpose criterion and the district
court did not err in so finding.
B.
That leads me to the final and most critical inquiry: did the Board's
action have the "effect" of establishing religion?
1.
Throughout its Establishment Clause jurisprudence, the Supreme
Court has stressed the importance of both government"neutrality"
and the avoidance of "endorsement" of religion. See, e.g., Schempp,
374 U.S. at 222 ("neutrality"); Engel v. Vitale, 370 U.S. 421, 436
(1962) ("endorsement"). Recently, however, these words have been
used to denominate two competing tests for determining whether,
absent unlawful government coercion, government action in the con-
text of a public forum has the effect of establishing religion.
Justice Scalia, joined by the Chief Justice and Justices Kennedy
and Thomas, has espoused a "neutrality test," which the majority
embraces and applies here. See ante at 9-20. Under this test, the gov-
ernment does not violate the Establishment Clause by permitting pri-
vate religious speech "in a traditional or designated public forum,
publicly announced and open to all on equal terms." Pinette, 115
S. Ct. at 2450 (plurality opinion). Rather, the government only vio-
lates the Establishment Clause if the challenged expression emanates
from the government itself, or if the government actually "discrimi-
nate[s] in favor of [or against] private religious expression or activ-
ity." Id. at 2447-48.
Six other justices, including four members of the present Court,
have rejected Justice Scalia's formulation. Instead, they have con-
cluded that, even in the context of a public forum, the government's
"impermissible message of endorsement can be sent in a variety of
contexts, not all of which involve direct government speech or out-
38
right favoritism," and have analyzed Establishment Clause challenges
using an "endorsement test," which "focuses upon the perception of
a reasonable, informed observer." Id. at 2452-54 (O'Connor, J., con-
curring, joined by Souter and Breyer, J.J.); see also id. at 2464-74
(Stevens, J., dissenting); County of Allegheny v. American Civil Lib-
erties Union, 492 U.S. 573 (1989) (five Justices finding the reaction
of a "reasonable observer" relevant to determining whether the gov-
ernment had endorsed religion); id. at 620 (opinion of Blackmun, J.);
id. at 635-36 (opinion of O'Connor, J., joined by Brennan and Ste-
vens, J.J.); id. at 642-43 (opinion of Brennan, J., joined by Marshall
and Stevens, J.J.).
Under the endorsement test, "[w]here the government's operation
of a public forum has the effect of endorsing religion, even if the gov-
ernmental actor neither intends nor actively encourages that result, the
Establishment Clause is violated." Pinette , 115 S. Ct. at 2454
(O'Connor, J., concurring) (internal citation omitted). This is so
because "the State's own actions (operating the forum in a particular
manner and permitting the religious expression to take place therein),
and their relationship to the private speech at issue actually convey a
message of endorsement." Id. It does not suffice to say that govern-
ment has "refrain[ed] from encouraging," ante at 9, the perception of
endorsement. "[T]he Establishment Clause forbids a State from hiding
behind the application of formally neutral criteria and remaining stu-
diously oblivious to the effects of its actions." Pinette, 115 S. Ct. at
2454 (O'Connor, J., concurring).
Although lines have thus been drawn as to the appropriate Estab-
lishment Clause test in the context of a public forum, no member of
the Supreme Court has directly discussed the proper test in the con-
text of a nonpublic forum like the Upshur County schools. However,
the Court has indicated in several ways that the proper analytical tool
in this context is the endorsement test.
To begin, the Court has never applied the neutrality test in any con-
text other than a public forum, publicly announced as open to all on
equal terms. The majority, although not entirely clear, seems to sug-
gest otherwise. In the midst of applying the neutrality test, the major-
ity relies on Lamb's Chapel, Mergens, and Widmar for the
proposition that "government need not be administering a `public
39
forum' or even `a limited public forum' as those terms are understood
in free speech jurisprudence in order for it to allow private religious
expression on a neutral basis without violating the Establishment
Clause." Ante at 16 (emphasis added). The implication that the
Supreme Court applied the neutrality test in Lamb's Chapel, Mergens,
and Widmar is simply wrong.
In each of those cases, the Court applied the language and analysis
of the endorsement test. See Lamb's Chapel, 508 U.S. at 391-95 ("no
realistic danger that the community would think that the District was
endorsing religion" when after-school facilities were "repeatedly"
used by a "wide variety" of private groups); Mergens, 496 U.S. at
231, 246-47, 250 (plurality opinion) (when high school permitted "30
recognized [student] groups" to "meet after school hours on school
premises" establishing a "limited open forum," students were "likely
to understand that [the] school does not endorse . . . student speech");
Widmar, 454 U.S. at 276-77 (doubtful that university students "could
draw any reasonable inference of University support[for private reli-
gious speech] from the mere fact of [supplying] a campus meeting
place" when university made its facilities available for meetings of
"over 100 recognized [private] student groups" creating an "open"
"public forum"). The Court's repeated use of the endorsement test,
not the neutrality test, in cases involving forums far more open than
the closely controlled nonpublic forum at issue here strongly suggests
that the endorsement test and not the neutrality test applies in this
instance.
Furthermore, seven members of the Court have given a clear signal
that the neutrality test has no place outside the context of a public
forum. Justice O'Connor, joined by Justices Souter and Breyer, has
expressly noted the limited application of the neutrality test, conclud-
ing that it is only a proposed "exception to the endorsement test for
the public forum context." Pinette, 115 S. Ct. at 2451 (O'Connor, J.,
concurring). Perhaps even more telling, Justice Scalia (the most vocal
proponent of the neutrality test), joined by the Chief Justice and Jus-
tices Kennedy and Thomas, has carefully restricted its application to
"a traditional or designated public forum, publicly announced and
open to all on equal terms." Id. at 2450 (plurality opinion).
Thus, a majority of the Court, and, significantly, even those mem-
bers espousing the neutrality test, has implicitly recognized that the
40
nature of the forum provides a baseline for an observer's perception
of the speech at issue. In a truly open, public forum with a wide array
of messages, a greater expectation exists that citizens will understand
government does not endorse any particular message-- that the gov-
ernment acts neutrally. Conversely, in a nonpublic forum, where gov-
ernment exerts enormous control over the content of expression (and
where the spectrum of private speech is circumscribed), it is far more
likely that citizens will perceive a message of government endorse-
ment, or lack of neutrality.
The forum at issue here obviously does not constitute "a traditional
or designated public forum, publicly announced and open to all on
equal terms." Id. Rather, as the district court expressly and correctly
found, the Upshur County public schools, during school hours, consti-
tute a nonpublic forum. Peck, 941 F. Supp. at 1471. See supra S I.B.
Thus, whatever the validity of the neutrality test in the public forum
context, and notwithstanding the majority's extensive reliance on it,
the neutrality test does not provide the proper mode of analysis here;
the endorsement test does.
2.
"[T]he endorsement test necessarily focuses upon the perception of
a reasonable, informed observer." Pinette, 115 S. Ct. at 2452
(O'Connor, J., concurring). "[W]hen [a] reasonable observer would
view a government practice as endorsing religion" the practice must
be held invalid. Id. at 2454. A reasonable observer is "deemed aware
of the history and context of the community and forum in which the
religious display appears," the importance vel non of the challenged
display as a "religious symbol," the "general history" of the "public
space in question" and how it "has been used in the past." Id. at 2455-
56.
A single, inexorable conclusion emerges from applying the reason-
able observer analysis in this case: the Board's action had the effect
of endorsing religion. A reasonable, informed observer -- aware of
the Board's historical concern for the effect of permitting in-school
Bible distributions, aware of the power of the Bible as an instrument
of religious indoctrination, aware of the nonpublic nature of the forum
(the public schools during school hours) and the control the Board
41
retained over access to it, aware of the genesis of the Board's decision
to permit the Bible distribution, and aware of the fact that the State
compels student attendance during the Bible distribution -- could not
conclude otherwise.
First, a reasonable observer would know that in 1989 the Board
adopted a written policy affirming the "unrestricted pursuit of knowl-
edge" in the public schools, including the study of "religious and
political ideas and works," but barring distribution of "[m]aterials
advocating a particular religion, denomination, or the beliefs thereof."
Moreover, the observer would know that the Board adopted this pol-
icy expressly to combat its concern that a previous Bible distribution
resulted in children "being coerced into accepting things." The
observer would also recognize that, prior to the Bible distribution at
issue in this case, the Board consistently adhered to its 1989 policy
-- it never permitted the distribution of sectarian religious materials.
Second, as the district court recognized, a reasonable observer
would understand the Bible's enormous "religious significance."
Peck, 941 F. Supp. at 1477. More than just an"unrivaled symbol[ ],"
ante at 25, the Bible is an "instrument of religion," Schempp, 374 U.S.
at 224, several orders of magnitude removed from the bulletin board
or public address system announcements at issue in Mergens. Cf. ante
at 15. A reasonable observer would know that Reverend McDaniels'
group sought, and the Board permitted, distribution of a particular
version of the Bible (the King James version), well recognized as hav-
ing special significance to Protestant Christians. See, e.g., Board of
Educ. of Kiryas Joel Village Sch. Dist. v. Grumet , 114 S. Ct. 2481,
2509 n.3 (1994) (Scalia, J., dissenting).
Certainly, "the Bible is worthy of study for its literary and historic
qualities" and so, without violating the Establishment Clause, a school
can present the Bible "objectively as part of secular program of edu-
cation." Schempp, 374 U.S. at 225. However, the Board does not con-
tend that the Bible distribution here was instituted or carried out as
part of the school curriculum. As the majority proclaims, "[t]he Bibles
are not distributed in the formal classroom setting, are not part of
classroom activities, and are not part of the school's curriculum."
Ante at 15.
42
I recognize that people of good will may nonetheless wish that the
public schools would instill in students veneration for the Bible and
the principles it espouses. But the Supreme Court has specifically
concluded that when, as here, privately financed religious expression
in the public schools "serves no [ ] educational function" its only pos-
sible effect is "to induce the schoolchildren to read, meditate upon,
perhaps to venerate and obey." Stone, 449 U.S. at 42. The Court has
held that "[h]owever desirable this might be as a matter of private
devotion it is not a permissible state objective under the Establish-
ment Clause." Id.
Third, a reasonable, informed observer would know that the Board
consistently operated the school system as a nonpublic forum, retain-
ing the authority to selectively deny access to inappropriate or harm-
ful groups and affording access only to a few youth activity groups
so that they could distribute informational pamphlets. No amount of
obfuscation can change the fact that this case differs dramatically
from the cases on which the majority so heavily relies. In those cases,
the government granted many groups access to a forum, making the
forum indeed "open," and then denied access to a similarly situated
group solely on the basis of its religious perspective. See, e.g.,
Rosenberger v. Rector & Visitors of the Univ. of Virginia, 115 S. Ct.
2510, 2515-17 (1995) (when a state university provided a "limited
public forum" to 118 student groups -- 15 of which were "student
news . . . or media groups" -- it could not exclude a student journal
solely because of the journal's "religious editorial viewpoint");
Lamb's Chapel, 508 U.S. at 393-95 (when public"property had
repeatedly been used by a wide variety of private organizations"
likely creating a "limited public forum," the government could not
deny access to a similarly situated group "solely because" of the "reli-
gious standpoint" of its speech); Widmar, 454 U.S. at 273-274 (when
a university routinely made its facilities available for meetings of
"over 100 recognized student groups," creating an "open" "public
forum," it could not deny access to another recognized student group
on account of the group's religious perspective alone).
In contrast, between 1989 and 1994 the Board allowed only four
private youth activity groups access to the schools to distribute infor-
mational literature. Moreover, as the parents note,"nothing in the
record[ ] indicate[s] that any of[those] groups sought access to the
43
schools with any degree of regularity, let alone to a degree that would
create a lively exchange of ideas, information, or concepts." Reply
Brief at 4. Just as granting access to a wide variety of groups
decreases the likelihood that a message of endorsement is conveyed,
see Rosenberger, 115 S. Ct. at 2527 (O'Connor, J. concurring), so too
granting access to a few groups substantially increases that likelihood.
Fourth, a reasonable observer would fully comprehend that the
Board contravened its established policy and practice and permitted
the Bible distribution to accommodate those who wanted Bibles in the
schools, not to establish an "open" forum. That is, a reasonable
observer would know that the Board voted to "instruct[ ] the Superin-
tendent to meet with Reverend McDaniels to arrange a day for mak-
ing Bibles available" in the public schools only after (1) the Board
initially decided to affirm its 1989 policy barring all sectarian reli-
gious materials, (2) Reverend McDaniels heavily lobbied the Board
to permit the Bible distribution, (3) one of Reverend McDaniels' con-
gregants urged Upshur County voters "to withhold our taxes" unless
and until the Board permitted the Bible distribution, (4) the school tax
levy failed, (5) numerous Protestant churchgoers petitioned the Board
to make Bibles available, and (6) the 500-plus crowd at the December
meeting urged the Board to approve the Bible distribution.
Conversely, such an observer would also realize that, as the Board
president testified, no one -- including Board members -- ever urged
that the Board establish a broad, open forum, and when it permitted
the challenged Bible distribution the Board did not think it was adopt-
ing, changing, or interpreting its policy to create such a forum. In fact,
even after permitting the Bible distribution, the Board retained discre-
tion to withhold access to inappropriate speakers. Thus, contrary to
the majority's suggestion, in permitting the Bible distribution the
Board did not create a "newly established open forum." Ante at 23.
In admitting Reverend McDaniels' group, the Board acted, as the
government did in Grumet, 114 S. Ct. at 2491, in a sui generis man-
ner, which "gives reason for concern whether the benefit received . . .
will [be] provide[d] equally to other religious (and nonreligious)
groups." For this reason, as in Grumet,"we have no assurance that the
next similarly situated group" will receive the same treatment. Id.
And much like Grumet, "the historical context in this case" does not
"furnish us with any reason to suppose" that those seeking to distrib-
44
ute Bibles in the schools represent "merely one in a series" of groups
seeking this access. Id. Rather, a reasonable observer would know
that the history of the Upshur County schools conclusively demon-
strates that the proponents of Bibles are the only private groups that
have ever sought to place religious texts in the public schools, see
supra S I.A., and the demographics of heavily Protestant Upshur
County powerfully suggest that no other religious group will ever
seek to follow their lead.
Finally, a reasonable, informed observer would be aware that the
Bible distribution took place during a regular school day when state
law mandates school attendance and where the susceptibility of chil-
dren to the "subtle coercive pressure[s]" of government and their
peers is "most pronounced." Lee, 505 U.S. at 592; see also Edwards,
482 U.S. at 583-84. The Seventh Circuit, in holding another Bible dis-
tribution unconstitutional, noted that "[t]he only reason the Gideons
find schools a more amenable point of solicitation than, say, a church
or local mall, is ease of distribution, since all children are compelled
by law to attend school and the vast majority attend public schools."
Berger v. Rensslear Cent. Sch. Corp., 982 F.d. 1160, 1167 (7th Cir.
1993). Both Reverend McDaniels and the newspaper statement of his
follower voiced precisely this sentiment. See supra at 31 ("Schools
are the best place to distribute [Bibles] because that's where the kids
are."). As Justice Kennedy recently explained for the Court, "[w]hat
to most believers may seem nothing more than a reasonable request
that the nonbeliever respect their religious practices, in a school con-
text may appear to the nonbeliever or dissenter to be an attempt to
employ the machinery of the State to enforce a religious orthodoxy."
Lee, 505 U.S. at 592. He noted, citing several scholarly sources, that
"[r]esearch in psychology supports the common assumption that
adolescents are often susceptible to pressure from their peers towards
conformity, and that the influence is strongest in matters of social
convention." Id. at 593-94 (emphasis added).
Of course, many of the children whom the majority holds constitu-
tionally subject to the Bible distribution are not even "adolescents."
The majority reaches its extraordinary holding as to these young chil-
dren by employing an analysis, the neutrality test, see ante at 9-20,
that simply does not apply in this nonpublic forum. See supra at 38-
41. When the majority does briefly acknowledge the proper endorse-
45
ment test analysis, ante at 19-20, 23-25, it ignores the history and
context of the Bible distribution -- all of which would have been
apparent to any reasonable observer -- and concludes that all Upshur
County students except those in grades 1 to 4 "are particularly capable
of recognizing" the distinction "between a school's equal access pol-
icy and school sponsorship of religion." Ante at 24 & n.*. This con-
clusion wholly ignores the youth of the middle school and junior high
school children subjected to the Bible distribution. Neither the
Supreme Court nor Congress have ever suggested, let alone con-
cluded, that children this young have the capacity to discern whether
school authorities effectively sponsor religion. Indeed, the legislative
history of the Equal Access Act at issue in Mergens indicates that
Congress specifically choose to avoid its application to children of
this age. The original legislative proposal applied to both "public ele-
mentary and secondary school[s]," S. Rep. No. 98-357, at 38 (1984),
reprinted in 1984 U.S.C.C.A.N. 2348, 2384, but the law enacted by
Congress applies only to secondary schools, see 20 U.S.C.A.
S 4071(a) (West 1990).
Moreover, although Congress has "rejected the argument that high
school students are likely to confuse an equal access policy with state
sponsorship of religion," Mergens, 496 U.S. at 250 (plurality opin-
ion), Upshur County high school students did not confront a choice
between an "equal access policy and school sponsorship of religion."
Ante at 24. Let me be clear: no "equal access policy" existed in the
Upshur County Schools. Rather, students observed an established and
consistently followed policy that permitted no private sectarian reli-
gious speech in the public schools, a policy that allowed private
speech only from four youth groups distributing informational pam-
phlets (hardly the "vigorous exchange" characterized by the majority,
ante at 20), a policy that reserved discretion to the school administra-
tors over the "appropriateness" and "harmfulness" of materials, and a
policy from which the School Board deviated only after a well orga-
nized effort headed by a clergyman managed to defeat a school tax
levy. Reasonable, informed observers confronted with these facts
could only conclude that the School Board had endorsed religion. As
in Allegheny County, "[n]o viewer could reasonably think that [the
Bibles] occupy this location" -- here a table inside a public school
during mandatory school hours -- "without the support and approval
of the government." 492 U.S. at 599-600.
46
The majority's reliance on the fact that the distribution takes place
in the hallways as students move from one compulsory class period
to another does not alter the balance. See ante at 23-24. The Supreme
Court has rightly noted that "[l]aw reaches past formalism." Lee, 505
U.S. at 595. The State of West Virginia compels students to attend
school, not just individual classes.
Indeed, the distribution of Bibles in public schools during periods
of mandatory attendance may well amount to coercion just as the
short, nondenominational school graduation ceremony prayers in Lee
did. Justices Kennedy and Scalia have noted the difficulty in drawing
the "line between voluntary and coerced participation" in a secondary
school. Mergens, 496 U.S. at 261-62 (Kennedy, J., concurring, joined
by Scalia, J.). And the younger the children involved, the more
obscure the line becomes. Here, as in Lee,"the school district's super-
vision and control" of a "school setting" succeeded in "plac[ing] pub-
lic pressure, as well as peer pressure, on attending students" to
"signify adherence to the religious expression." 505 U.S. at 593-94.
In Lee, the Court held it not "consistent with the Establishment Clause
[to] place primary and secondary school children in this position." Id.
at 593.
I appreciate the factual differences between this case and Lee that
might lead some to conclude Lee presented a more obvious Establish-
ment Clause violation. For instance, in Lee, the challenged religious
expression was a short nondenominational prayer while here it is dis-
tribution of a religious text, and it could be argued that coercive pres-
sures to participate in a religious service exceed those inducing a
student to accept a free Bible. However, in view of the power of the
Bible as a tool of religious indoctrination, this argument loses force.
As Justice Brennan has noted, the "Holy Bible[is] more clearly sec-
tarian" than "rather bland" nondenominational prayers. See Schempp,
374 U.S. at 267 (Brennan, J., concurring). Devout and well meaning
members of the school community surely might bring more pressure
on a student to participate in a Bible distribution than in a nondenomi-
national graduation prayer.
Furthermore, other factual differences clearly indicate that the
Bible distribution constitutes the more obvious Establishment Clause
violation. For example, Bibles were made available during an entire
47
school day, much longer than the two minutes of nondenominational
prayer at issue in Lee. 505 U.S. at 594. (Similarly, the majority's inti-
mation that limiting the Bible distribution to a single day somehow
cures any constitutional concern, ante at 12, 15, 20, 23, 25 ignores the
fact that although the graduation prayers in Lee subjected the students
to religious activity only once or twice over the entire course of their
elementary and secondary school careers, the Supreme Court squarely
invalidated them.) Moreover, while most of the high school gradua-
tion ceremonies in Lee were "conducted away from the school," 505
U.S. at 583, the Bibles were distributed in the schools. And, whereas
the parties in Lee stipulated that "attendance at graduation ceremonies
[wa]s voluntary," id., no one disputes that public school attendance is
mandatory. Thus, the Bible distribution manifests the very element --
"legal coercion to attend school," -- that the dissent in Lee found crit-
ically absent. Id. at 643 (Scalia, J., dissenting).
Before concluding, I must briefly address the majority's sugges-
tions that the restrictions, principally a disclaimer, placed on the Bible
distribution render it constitutional. Ante at 12-13, 14-15, 19-20, 22-
24. In some situations a disclaimer can help to prevent a perception
of government endorsement, but an observer must be able to read and
understand a disclaimer if it is to have any effect. It remains unclear
whether the young children here could read or understand the Board's
disclaimer, even if read to them. Furthermore, no disclaimer can save
government action from an Establishment Clause challenge when, as
here, "other indicia of endorsement . . . outweigh the mitigating effect
of the disclaimer." Id. at 2462 n.2 (Souter, J., concurring). Just as the
nearly unanimous Stone Court concluded that a disclaimer was "not
sufficient to avoid conflict with the First Amendment," 449 U.S. at
41, the disclaimer in this case simply cannot eliminate the many indi-
cations of government endorsement.
Moreover, although I recognize the visceral appeal of holding that
the Bible distribution amounts to nothing more than a de minimis con-
stitutional violation, the Supreme Court has repeatedly rejected pre-
cisely this sort of "de minimis" contention. The Court has held that
"[i]t is no defense" to assert that constitutional violations are "rela-
tively minor encroachments on the First Amendment." Schempp, 374
U.S. at 225; see also Lee, 505 U.S. at 594; Engel, 370 U.S. at 436.
With unmatched eloquence, the Court has explained that "[t]he breach
48
of neutrality that is today a trickling stream may all too soon become
a raging torrent and, in the words of Madison, `it is proper to take
alarm at the first experiment on our liberties.'" Schempp, 374 U.S. at
225 (quoting James Madison, Memorial and Remonstrance Against
Religious Assessments).
III.
The ratifiers of the Bill of Rights knew too well the danger posed
by state encroachment on religious liberty, and so forbade official
actions that favor religion or a particular religious creed. Government
can convey a message of endorsement as well with a blind eye as with
a firm voice or a guiding hand. And, particularly where impression-
able school children are involved, government can coerce participa-
tion in even nominally voluntary religious activity. Today's majority
chooses to ignore the evident effect of the Board's conduct. Neither
the Establishment Clause nor the jurisprudence interpreting it counte-
nance that result. I must, therefore, dissent.