526 F.3d 1151 (8th Cir. 2008), 07-2651, Pucket v. Hot Springs School Dist. No. 23-2

Docket Nº:07-2651.
Citation:526 F.3d 1151
Party Name:Daniel PUCKET, in his own capacity; Amy Pucket, in her own capacity; Luke Pucket, by and through his parents and guardians, Daniel and Amy Pucket; Benjamin Pucket, by and through his parents and guardians, Daniel and Amy Pucket, Appellants, v. HOT SPRINGS SCHOOL DISTRICT NO. 23-2; Hot Springs School Board, Appellees, Lawrence Long; in his official
Case Date:May 23, 2008
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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526 F.3d 1151 (8th Cir. 2008)

Daniel PUCKET, in his own capacity; Amy Pucket, in her own capacity; Luke Pucket, by and through his parents and guardians, Daniel and Amy Pucket; Benjamin Pucket, by and through his parents and guardians, Daniel and Amy Pucket, Appellants,

v.

HOT SPRINGS SCHOOL DISTRICT NO. 23-2; Hot Springs School Board, Appellees,

Lawrence Long; in his official capacity as Attorney General of South Dakota, Intervenor Defendant-Appellee.

No. 07-2651.

United States Court of Appeals, Eighth Circuit.

May 23, 2008

Submitted: March 14, 2008.

Appeal from the United States District Court for the District of South Dakota.

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Roger T. Severino, argued, Kevin J. Hasson, Eric C. Rassbach, Washington, DC, Daniel F. Duff, Jeffrey G. Hurd, Rapid City, SD, on the brief, for appellant.

Diane Patrick Best, argued, Naomi R. Cromwell, Roxanne Giedd, on the brief, Pierre, SD, for appellee.

Before RILEY, GRUENDER and SHEPHERD, Circuit Judges.

GRUENDER, Circuit Judge.

The Hot Springs School District 23-2 and Hot Springs School Board ("School District") discontinued busing students of Bethesda Lutheran School ("Bethesda"), a private religious school located within the School District's boundaries. Daniel, Amy, Luke and Benjamin Pucket ("Puckets"), parents of students and students enrolled at Bethesda, filed an action under 42 U.S.C. § 1983, arguing that the School District's termination of busing services for Bethesda students violated the First and Fourteenth Amendments of the United States Constitution. The Puckets argue that the School District unconstitutionally deprived them of busing services because it relied on two allegedly unconstitutional provisions of the South Dakota Constitution to terminate the busing services. South Dakota Attorney General Lawrence Long ("State") intervened to defend the state constitution provisions. The district court 1 granted the summary

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judgment motions of the School District and the State. On appeal we conclude that the Puckets lack standing to bring this lawsuit, and we affirm the dismissal.

I. BACKGROUND

Prior to the 2002-2003 school year, the School District provided bus transportation to students attending Bethesda who lived along existing School District bus routes. On March 21, 2002, the School District received a letter from Linda Joski, an account executive at Arthur J. Gallagher & Co., the administrator for the School District's automobile liability insurance policy. The letter informed the School District that "[i]t has come to our attention that Hot Springs School District is transporting children for a local parochial school." The letter requested that the School District discontinue busing as soon as possible and no later than the beginning of the 2002-2003 school year because "this activity would not be considered 'school sponsored' " and thus "create[d] a liability situation which [was] beyond the scope" of the School District's insurance policy. Beth Spitzer, Bethesda's principal, learned of the insurance problem from a School District employee.

In July 2002, the Association of School Boards ("Association"), of which the School District was a member, received a letter from its counsel, who was also counsel for the School District, addressing the issue of insurance coverage for school districts providing busing for private-school children. In the letter, counsel noted that in South Dakota Attorney General Opinion 92-04 ("Opinion 92-04") the Attorney General determined that a public school district lacked the statutory authority to provide busing for children attending a religious school and questioned whether such an arrangement would be constitutional even if statutory authority permitted it. Counsel concluded that an insurance company could deny coverage to a school district busing private-school children. The School District also received a copy of this letter.

The School District decided to discontinue busing Bethesda students in accordance with its insurance administrator's request by the start of the 2002-2003 school year. On October 31, 2002, the School District's attorney contacted the South Dakota Attorney General to request a formal opinion on the question of whether a school district was authorized to transport private-school children. On November 6, 2002, the Attorney General's office responded by stating that, "this issue has been addressed in official Opinion No. 92-04."

The South Dakota Attorney General prepared Opinion 92-04 in 1992 in response to a question by another South Dakota school district regarding the legality of a public school district's providing busing to students of a church-operated preschool. Opinion 92-04 concluded that school districts could not provide simultaneous busing to public and nonpublic school students based on South Dakota statutes that regulate busing, particularly South Dakota Codified Laws §§ 13-24-20 and 13-29-1. Section 13-24-20 states that

The school board may grant the use of school facilities, computers, motor vehicles, or land belonging to the school district for any purposes which it considers advisable as a community service for such compensation as it determines.... The use may not interfere with school activities. Any person or persons or public body using such school facilities, computers, motor vehicles, or land is responsible to the school district for any and all damages that may be caused by reason of the use or occupancy.

Under § 13-29-1

The school board of any school district may acquire, own, operate, or hire buses for the transportation of students to and

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from its schools either from within or without the district or for transportation to and from athletic, musical, speech, and other interscholastic contests in which participation is authorized by the school board.

While Opinion 92-04 noted that "[n]othing on the face of [§ 13-24-20] would prohibit simultaneous public and private use of a bus," the Attorney General concluded that "when the entire scheme on public and private use of school buses is considered, it is my opinion that simultaneous public and private use of a school bus is not permissible under the existing statute." Opinion 92-04 also expressed "serious doubts" as to whether, even if busing was allowed under South Dakota statutes, it would be permissible under the South Dakota Constitution Article VI, § 3, which provides that "[n]o money or property of the state shall be given or appropriated for the benefit of any sectarian or religious society or institution" and Article VIII, § 16, which states that "[n]o appropriation of lands, money or other property or credits to aid any sectarian school shall ever be made by the state." 2

At a December 9, 2002 meeting and in response to Spitzer's repeated requests, the School District's board passed a motion stating: "The district would not allow Bethesda Lutheran School students bus service because it was declared unconstitutional by the South Dakota Attorney General and the loss of the district catastrophic insurance coverage if bus service is provided." As directed by the Puckets' counsel, Spitzer specifically requested that the School District's motion include a statement that the board was relying on the Attorney General's opinion that public schools' busing of private-school children would violate the South Dakota Constitution.

Following that meeting, on January 22, 2003, Vern Hagedorn, the School District's superintendent, recorded in his "busing log" 3 that the School District had offered to help Bethesda introduce legislation to allow busing for Bethesda students, "but all she [Spitzer] wanted was a statement that we wouldn't transport their students." The next day Spitzer recorded in her busing log that the counsel for the Association and the School District had called her and "want[ed] to pursue legislative action," but that she responded by telling him that "there was going to be a lawsuit."

Shortly thereafter, the South Dakota legislature passed South Dakota Codified Law § 13-29-1.2, which was effective immediately when the governor signed the bill on March 3, 2003. It stated in relevant part:

School districts may provide transportation to nonpublic school students if no additional public funds are expended to provide the transportation. No school district, however, is required under this section to provide transportation to nonpublic school students.

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On February 28, 2003, the School District learned that, in anticipation of the enactment of § 13-29-1.2, busing Bethesda students would no longer impact the School District's liability insurance. Although the Puckets did not request that the School District reinstate busing for Bethesda students after § 13-29-1.2 became effective, the School District did so on May 16, 2003.

However, on April 23, 2003, prior to the reinstatement of busing, the Puckets filed this lawsuit against the School District under 42 U.S.C. § 1983 for its failure to bus Bethesda students. The Puckets claimed that the decision not to bus Bethesda students violated the First and Fourteenth Amendments of the United States Constitution. Their complaint, which was served on the School District on May 8, 2003, alleged that the School District violated the Equal Protection and Free Exercise Clauses of the Constitution by denying Bethesda students busing based on their religion, that the School District violated the Free Speech Clause of the Constitution by denying Bethesda students busing because it teaches from a religious viewpoint, and that the School District violated the Establishment Clause of the Constitution by denying Bethesda students busing based on the South Dakota Constitution provisions, which...

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