Legal Clips, [September 2007]Pending a decision on the merits of the case, the U.S. Court of Appeals for the Eighth Circuit has upheld a lower court’s preliminary injunction barring a Missouri school district from permitting the distribution of Bibles to elementary school students on school grounds during the school day. The court rejected the parties’ requests that it consider issues that go to the merits of case and instead limited its review to whether the lower court abused its discretion in granting the injunction. South Iron R-1 School District for years allowed the distributions by members of the Gideons International. Ignoring the warnings of its superintendent, attorney, and insurance carrier that the practice was unconstitutional, the school board voted to allow the practice to continue, until a lawsuit was filed and the board adopted a new policy. The U.S. district court issued an injunction based on the old policy and rejected the board’s argument that its new policy mooted the need for the order. The new policy’s appeals process was inadequate to prevent distribution from taking place until objections could be heard, the court found, so the alleged violation was susceptible to recurrence.
The Eighth Circuit affirmed. Addressing the old policy first, the court rejected the district’s argument that the injunction, by banning distribution of Bibles, "mandates a content-based restriction on speech and is thus invalid." The appeals court found that the school was not a traditional public forum and that the school district had not created a limited public forum at the school. Rather, the school was a nonpublic forum in which school officials’ regulation of speech is constitutionally permissible, provided such regulation is reasonable and does not attempt to suppress speech based on the speaker’s viewpoint. The Supreme Court’s Establishment Clause decisions have focused on whether the governmental activity in question constituted impermissible government religious expression, endorsement, or coercion, the appeals court observed, not whether the injunction was "content-based." Noting that the Supreme Court’s recent decisions regarding school prayer and posting the Ten Commandments in public schools were inherently based on content-based distinctions, the Eighth Circuit rejected the contention that the lower court’s injunction was invalid because it is content-based. Instead, the court agreed that the plaintiffs had satisfied all the requirements for issuance of the injunction and that distributing Bibles to elementary school students in the classroom raises greater Establishment Clause concerns than do activities such as allowing outside groups to distribute religious flyers or inviting ministers to give nonsectarian prayers at graduation ceremonies.
The Eighth Circuit next rejected the school district’s argument that the district court erred in enjoining the new policy, which the school district argued was constitutional on its face. The appeals court found that the lower court had not enjoined the new policy per se but had issued an injunction based on the old policy and merely had determined that the new policy did not moot the need for the injunction. While the injunction happens to prohibit some of the methods of Bible distribution that the new policy permits, the appeals court found that this prohibition "is a far cry from declaring the new policy unconstitutional or enjoining the District from taking any action to implement the policy." Nor had the school district challenged the preliminary injunction as being overly broad or vague.
Doe v. South Iron R-1 Sch. Dist., No. 06-3373 (8th Cir. Aug. 21, 2007)
[Editor’s Note: For a summary of the district court’s decision, which explains the history of the case and the details of the school district’s policies and practices that were at issue, see below.]
NSBA School Law pages on Doe v. South Iron R-1 Sch. Dist.