Brown v. Woodland Joint Unified School Dist.

• Decision Date: 15 June 1994
• Docket Number: No. 92-15772,92-15772
• Citation: 27 F.3d 1373
• Parties: 92 Ed. Law Rep. 828 Douglas E. BROWN; Katherine E. Brown, Plaintiffs-Appellants, v. WOODLAND JOINT UNIFIED SCHOOL DISTRICT, Defendant-Appellee, Woodland Parents Group, Defendant-Intervenor-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1373

27 F.3d 1373

92 Ed. Law Rep. 828

Douglas E. BROWN; Katherine E. Brown, Plaintiffs-Appellants, v. WOODLAND JOINT UNIFIED SCHOOL DISTRICT, Defendant-Appellee Woodland Parents Group, Defendant-Intervenor-Appellee.

No. 92-15772.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 6, 1993.

Decided June 15, 1994.

Benjamin W. Bull, American Family Ass'n Law Center, Tupelo, MS, for plaintiffs-appellants.

Paul T. Friedman, Morrison & Foerster, San Francisco, CA; Elliot M. Mincberg, People for the American Way, Washington, DC, for defendant-intervenor-appellee.

Bruce J. Sarchet, Littler, Mendelson, Fastiff & Tichy, Sacramento, CA, for defendant-appellee.

Patrick J. Carome, Wilmer, Cutler & Pickering, Washington, DC, counsel for amicus American Ass'n of School Adm'rs, et al.

George D. Ruttinger, Crowell & Moring, Washington, DC, for amicus National Ass'n of Laity, et al.

Appeal from the United States District Court for the Eastern District of California.

Before: FERGUSON, THOMPSON, and O'SCANNLAIN, Circuit Judges.

Opinion by Judge O'SCANNLAIN.

O'SCANNLAIN, Circuit Judge:

We must decide whether classroom activities in a California public school district require children to practice the "religion" of witchcraft in violation of the federal Establishment Clause and the California Constitution.

I

Douglas E. Brown and Katherine E. Brown, parents of two students formerly enrolled in the Woodland Joint Unified School District (the "School District"), seek injunctive and declaratory relief under 42 U.S.C Sec. 1983, alleging that the School District had violated their children's rights under the United States and California Constitutions. The Browns and their children are part of the Christian Assembly of God denomination.

The Browns object to the School District's use of portions of Impressions, a teaching aid, in the first through sixth grades. Impressions is a series of 59 books containing approximately 10,000 literary selections and suggested classroom activities. It implements a "whole language" approach to reading instruction that has the goal of inducing children to read more quickly and with greater enthusiasm through the use of high quality literary selections. Literary selections are followed by suggested learning activities, such as having children compose rhymes and chants, act out the selections, and discuss the selections' characters and themes. The selections reflect a broad range of North American cultures and traditions.

The Browns challenge 32 of the Impressions selections (the "Challenged Selections"). They contend that these selections promote the practice of witchcraft, which they assert is a religion called "Wicca." Most of the Challenged Selections ask children to discuss witches or to create poetic chants. Some selections also ask students to pretend that they are witches or sorcerers and ask them to role-play these characters in certain situations.

The Browns have provided evidence indicating that practitioners of the witchcraft religion are known as sorcerers and witches and that spells and charms are sacred rituals of this occult religion. The Browns contend that, because the Challenged Selections resemble witchcraft rituals, the School District's use of the selections violates the federal and state Constitutions. ¹ The Browns concede that the author-editors of Impressions were unfamiliar with the religion of witchcraft when they developed Impressions and that neither the author-editors nor the publisher had any aim of promoting or endorsing any religious practices, including witchcraft, through Impressions.

After the School District incorporated Impressions into its curriculum, ² parents in the School District, including the Browns, complained. In response, the School District appointed a review committee, which included a Christian minister, to review Impressions for any emphasis on witchcraft or the occult. The committee reported that it did not have evidence or expertise to establish a connection between Impressions and occult practices. The School District adopted this report.

The review committee's report did not resolve the controversy. Student petitions and parent newsletters for and against Impressions have been circulated, and parent meetings have been held by both supporters and opponents. The Browns contend that the School District's use of Impressions became an issue in at least one local political race and that families in other parts of California as well as other states appear to be opposing Impressions nationally.

Finally, in January 1991, the Browns brought the instant action. The parties filed cross-motions for summary judgment, which was granted in favor of the School District. The Browns timely appealed.

II

The Browns assert the School District's use of the Challenged Selections violates the Establishment Clause of the United States Constitution, which provides: "Congress shall make no law respecting an establishment of religion...." U.S. Const. amend. I, cl. 1. The prohibition of the Establishment Clause applies to state governments through the Fourteenth Amendment. U.S. Const amend. XIV; Everson v. Board of Educ., 330 U.S. 1, 8, 67 S.Ct. 504, 507-08, 91 L.Ed. 711 (1947).

The School District does not contest the Browns' assertion that witchcraft ("Wicca") is a religion under the California and federal Constitutions, and we will assume, without deciding, that it is a religion for the purpose of this appeal. We thus apply the Lemon test to the Browns' claim, which requires a challenged government practice (1) to have a secular purpose, (2) to have a primary effect that neither advances nor inhibits religion, and (3) not to foster excessive state entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111-12, 29 L.Ed.2d 745 (1971); Grove v. Mead Sch. Dist. No. 354, 753 F.2d 1528, 1534 (9th Cir.), cert. denied, 474 U.S. 826, 106 S.Ct. 85, 88 L.Ed.2d 70 (1985).

A

The Browns concede that the author-editors of Impressions chose the Challenged Selections for a secular purpose and that the School District adopted Impressions for a secular purpose. They also do not assert that any School District teachers are using the Challenged Selections for the purpose of advancing witchcraft. Use of the Challenged Selections thus does not violate the purpose prong of the Lemon test.

B

The Browns contend that the use of the Challenged Selections violates the second prong of the Lemon test, which bars any government practice that has the "primary" effect of advancing or disapproving of religion, even if that effect is not intended. The concept of a "primary" effect encompasses even nominally "secondary" effects of government action that directly and immediately advance, or disapprove of, religion. Committee for Public Educ. & Relig. Lib. v. Nyquist, 413 U.S. 756, 783 n. 39, 93 S.Ct. 2955, 2971, 37 L.Ed.2d 948 (1973). A government practice has the effect of impermissibly advancing or disapproving of religion if it is "sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choices." School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 390, 105 S.Ct. 3216, 3226, 87 L.Ed.2d 267 (1985). The relevant inquiry thus "is whether the government's action actually conveys a message of endorsement of religion in general or of a particular religion." Kreisner v. City of San Diego, 1 F.3d 775, 783 (9th Cir.1993) (internal quotations omitted), cert. denied, --- U.S. ----, 114 S.Ct. 690, 126 L.Ed.2d 657 (1994).

The parties dispute the standard for judging whether a government action "conveys a message" of endorsement or disapproval of religion. The Browns assert that this inquiry must be made from the subjective perspective of an "impressionable child." The School District counters that the correct perspective is that of a reasonable observer. The district court took a middle ground between these approaches, concluding that "[t]he effect analysis is influenced to some degree by the audience to whom the message is conveyed. However, the extent to which it is influenced is more accurately described by the degree of care undertaken in the analysis not a shift away from the reasonable observer standard." District Court Order at 17.

We agree with the district court that the primary effect of a challenged practice generally is considered under the reasonable observer standard. Kreisner, 1 F.3d at 784. "This hypothetical observer is informed as well as reasonable; we assume that he or she is familiar with the history of the government practice at issue." Id. However, these assumptions are less valid for elementary school children, who are less informed, more impressionable and more subject to peer pressure than average adults. See Board of Educ. of Westside Comm. Sch. v. Mergens, 496 U.S. 226, 250, 110 S.Ct. 2356, 2371-72, 110 L.Ed.2d 191 (1990) (plurality portion of opinion); Edwards v. Aguillard, 482 U.S. 578, 584, 107 S.Ct. 2573, 2577-78, 96 L.Ed.2d 510 (1987); Ball, 473 U.S. 373, 385, 105 S.Ct. 3216, 3223, 87 L.Ed.2d 267 (1985); Roberts v. Madigan, 921 F.2d 1047, 1057-58 (10th Cir.1990), cert. denied, --- U.S. ----, 112 S.Ct. 3025, 120 L.Ed.2d 896 (1992). Courts thus have considered the more vulnerable nature of school-age children when analyzing the primary effect of state actions in the elementary school environment. ³

The Browns contend that this perspective demands a subjective standard for determining whether a challenged practice appears to children as endorsing or disapproving of a religion. We disagree. Rather than consider what effect a challenged government practice has had on a particular public school student, the Supreme Court and this circuit consistently have applied an objective standard for public school Establishment Clause inquiries. See, e.g., Lee v. Weisman, --- U.S. ----, ----, 112 S.Ct. 2649,...