Pucket v. Hot Springs Sch. Dist. No. 23-2, No. 07-2651 (May 23, 2008)
The U.S. Court of Appeals for the Eighth Circuit (AR, IA, MN, MO, NE, ND, SD) has ruled that students attending a private sectarian school and their parents lacked legal standing to pursue claims based on a school district’s failure to provide bus service to the students. Prior to the 2002-03 school year, Hot Springs School District No. 23-2 (HSSD) had provided the service for students attending Bethesda Lutheran School (BLS), a school within HSSD’s boundaries, who lived along existing bus routes. However, in March 2002, HSSD’s automobile liability insurance carrier informed the district that this practice was not “considered school sponsored” and, therefore, “create[d] a liability situation which [was] beyond the scope” of HSSD’s policy. In July 2002, counsel for the Association of School Boards of South Dakota (ASBSD), of which HSSD is a member, issued a letter addressing the question of insurance coverage for school districts providing busing for private school students. The letter cited South Dakota Attorney General Opinion 92-04, which concluded that school districts lacked statutory authority to provide busing for children attending religious schools and questioned whether such arrangements would be constitutional under state law even if permitted by statute. Based on its insurance carrier’s request, HSSD discontinued the service at the beginning of the 2002-03 school year. When HSSD’s attorney requested a formal opinion from the state attorney general’s office regarding a school district’s authority to transport private school students, the office responded that the issue had been addressed in opinion 92-04.
In March 2003, the state enacted a law that granted school districts the authority to provide bus service to private school students. In May 2003, HSSD reinstated service for BLS students. Nonetheless, in April 2003 Daniel and Amy Pucket, the parents of two BLS students, sued HSSD in U.S. district court, alleging that the district had violated the parents’ and their children’s First Amendment free speech, free exercise of religion, and Establishment Clause rights, and their Fourteenth Amendment equal protection rights by denying service based on religion. In particular, the suit claimed that the two provisions of the state constitution cited in the attorney general opinion—on which they said HSSD relied—were “Blaine Amendments,” which they argued represented impermissible viewpoint discrimination under the U.S. Constitution. The court dismissed the case on the grounds that the Puckets lacked standing to sue prior to March 2003 when the new law was enacted because HSSD lacked the statutory authority to bus private school students. While the court held that they did have standing as of March 2003, it concluded “that no reasonable jury could find that the School District’s failure to reinstate busing between March 3 and May 16, 2003, was based on the South Dakota Constitution provisions.” The court also found that the district did not violate the First and Fourteenth Amendments to the Constitution.
The Eighth Circuit affirmed. As to the period from August 2002 to March 2003, the appeals court agreed with the lower court that the plain language of the state statute then in effect did not authorize HSSD to bus BLS students. Even after then, the court ruled, the Puckets still lacked standing to sue, because they failed to request bus service be reinstated or to show that requesting reinstatement would have been futile. To the contrary, the record was clear that HSSD had indicated that it wanted to resume busing BLS students as soon as it was authorized to do so and the insurance issue was resolved. “In fact,” the court opined, “the evidence leads us to believe that the Puckets may well have deliberately failed to request that the School District reinstate busing in an attempt to create a case or controversy for the overriding purpose of challenging the constitutionality of the South Dakota Constitution provisions. … [W]e cannot sanction the Puckets’ attempt to manufacture a lawsuit designed to challenge the South Dakota Constitution provisions without having met the essential elements of standing.”
Pucket v. Hot Springs Sch. Dist. No. 23-2, No. 07-2651 (May 23, 2008)
[Editor’s Note: In May the Arizona Court of Appeals also addressed the question of so-called “Blaine Amendments” in a suit over school voucher programs. That court found the question of the origins of the state constitution’s bar against funding religious schools was irrelevant to resolving the case. See below.]
NSBA School Law pages on Cain v. Horne