Doe v. South Iron R-1 School District, No. 06-392 (E.D. Mo. Sept. 5, 2006)
A Missouri federal district court has ruled that a school district
’s policy allowing an outside group to distribute Bibles to elementary school students in the classroom violates the Establishment Clause. South Iron R-1 School District (SISD) for years allowed the distributions by members of the Gideons International, until Superintendent Homer Lewis decided to end the practice because he believed it unconstitutional. Called upon to defend his decision during a school board meeting, Mr. Lewis said he acted on the advice of the district’s attorney and insurance carrier. If the board wished to continue to allow the practice, he recommended adopting an "open forum" policy that would allow distribution by any organization. The board ignored this recommendation and voted to allow the Gideons to continue as in the past. At the beginning of the next school year, the board again discussed the matter but reached the same decision. Mr. Lewis resigned, indicating he believed that board’s actions were "illegal" and would prove "costly" to SISD.
When the Gideons distributed Bibles in fifth grade classrooms accompanied by the elementary school principal, two parents sued in federal court seeking an injunction to block such distributions. SISD’s attorney notified the board that the insurance carrier refused to represent the district in the suit. He again advised the board that the practice violated the federal and state constitutions. The board then adopted a new policy, under which groups seeking to distribute materials are required to submit the materials to the superintendent at least 48 hours in advance. If the superintendent does not respond by the end of the 48-hour period, the materials may be distributed. Distribution must be made in front of the administrative offices or in the cafeteria, before or after the school day, before or after classes, or during lunch time. All requests are to be approved unless the material is libelous, illegal, obscene, or commercial, endorses political candidates, promotes alcohol, tobacco, drugs, or illegal activity, or is likely to cause substantial disruption. Appeals of the superintendent’s decision are to be heard at the next board meeting. No student is to be coerced to accept any materials. The policy does not apply to distribution by students.
Addressing the board’s past actions, the court rejected SISD’s contention that the suit should be dismissed based on qualified immunity. While qualified immunity shields government officials unless their conduct violates a clearly established constitutional right of which a reasonable person in their position would have known, the court concluded the court decisions on this issue are clear. None of the decisions cited by SISD to the contrary approved classroom Bible distributions, the court found. In Berger v. Renesselaer Central School Corporation, 982 F.2d 1160 (7th Cir. 1993), the most recent case cited by SISD, the Seventh Circuit "considered and rejected all the same arguments" SISD made, particularly the argument "that refusing to allow the distribution would constitute impermissible viewpoint discrimination." The court also rejected SISD’s argument that more recent Supreme Court decisions cast doubt on the rulings. While conceding these recent decisions "have expanded religious groups’ access to school funding and facilities," the court emphasized that "none of those cases involved distributing religious materials or holding religious activities in the classroom during the school day." SISD failed to persuade the court that the district already had an "open forum" before it changed its policy. The record did not support such a finding, especially in light of the fact that when Mr. Lewis suggested the board adopt an open forum policy, the board instead voted "to pretend like this meeting never happened." At any rate, the court determined, no court has suggested an open forum policy would sanction this kind of distribution to avoid viewpoint discrimination. SISD’s reliance on Peck v. Upshur County Board of Education, 155 F.3d 274 (4th Cir. 1998), a case upholding distribution of Bibles on school property, was misplaced because in that case the distribution did not take place in the classroom. Instead, Jabr v. Rapides School Board, 171 F.Supp.2d 653 (W.D. La. 2001), a case involving distribution of Bibles by a principal in his office, was more persuasive because the coercive effect on the captive audience was similar. As a result, the court concluded that SISD officials were not entitled to qualified immunity and the parents had demonstrated they were likely to succeed on the merits of their claim.
Turning to the question of whether the board’s new policy mooted the need for injunctive relief, the court found the policy’s appeals process inadequate to prevent distribution from taking place until objections could be heard. As a result, the alleged violation was susceptible to recurrence, and injunctive relief would be required to prevent an ongoing violation. The new policy still violated the Establishment Clause, because every court that has considered distribution of Bibles to elementary school students on school property during school hours has found this unconstitutional. Referring again to Peck, the court pointed out that the Fourth Circuit had explicitly stated that allowing distribution of Bibles to elementary school students would be unconstitutional. While conceding that the Third, Fourth, Sixth, and Ninth Circuits all have upheld distributing promotional flyers for religious groups in elementary classrooms, the court drew a distinction between such flyers and the Bible, a distinction it found the U.S. Supreme Court has long held. The Bible is religious literature that is different from a flyer intended merely to advertise or announce activities. The court disagreed with SISD’s reading of the Supreme Court’s decision in Good News Club v. Milford Central School, 533 U.S. 98 (2001), as having rejected the idea that courts must consider the age and impressionability of elementary school students. Good News Clubs was limited to use of school facilities, rather than distribution in a classroom setting where children may feel pressured to take a Bible. SISD’s policy lacked the safeguards present in Peck to prevent a school employee from being involved in the distribution. The court concluded that "the evidence of the School Board’s behavior here raises a very strong inference that the purpose of this new policy is to promote Christianity by providing a means for Christian Bibles to be distributed to the elementary school students."
Doe v. South Iron R-1 School District, No. 06-392 (E.D. Mo. Sept. 5, 2006)
[Link to full opinion]
[Editor
’s Note: For a summary of the most recent of the other cases involving distribution of religious materials, see the first link below. The second link is to an NSBA chart that tracks federal court decisions on this issue.]
[NSBA School Law pages on Child Evangelism Fellowship of Maryland v. Montgomery County Public Schools]
[NSBA chart on distribution of religious materials in public schools]