Lanner v. Wimmer, s. 79-1520

• Decision Date: 25 November 1981
• Docket Number: Nos. 79-1520,79-1525,s. 79-1520
• Citation: 662 F.2d 1349
• Parties: 1 Ed. Law Rep. 138 Ronald M. LANNER, Harriet F. Lanner, John A. Scherting, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. Joanne WIMMER, Thad Carlson, E. Malcolm Allred, Ronald A. Peterson, Maria Ellworth, constituting the Board of Education for the City of Logan, Utah; James C. Blair, Superintendent of Schools for the City of Logan, Utah; Rulon C. Olsen, Principal, Logan High School, Logan, Utah; Sherman Hansen, Principal, Logan Junior High School, Logan, Utah; and their officers, employees, agents and assigns; and the Utah State Board of Education, Defendants-Appellees, and Cross-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1349

662 F.2d 1349

1 Ed. Law Rep. 138

Ronald M. LANNER, Harriet F. Lanner, John A. Scherting, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. Joanne WIMMER, Thad Carlson, E. Malcolm Allred, Ronald A Peterson, Maria Ellworth, constituting the Board of Education for the City of Logan, Utah; James C. Blair Superintendent of Schools for the City of Logan, Utah; Rulon C. Olsen, Principal, Logan High School, Logan, Utah; Sherman Hansen, Principal, Logan Junior High School, Logan, Utah and their officers, employees, agents and assigns; and the Utah State Board of Education, Defendants-Appellees, and Cross-Appellants.

Nos. 79-1520, 79-1525.

United States Court of Appeals Tenth Circuit.

Argued and Submitted July 9, 1981.

Decided Oct. 13, 1981.

On Rehearing Nov. 25, 1981.

Kathryn Collard, Salt Lake City, Utah, for plaintiffs-appellants.

Arthur H. Nielsen, Salt Lake City, Utah (with Clark R. Nielsen, Salt Lake City, Utah, on the brief), of Nielsen, Henriod, Gottfredson & Peck, Salt Lake City, Utah (and with David W. Sorenson, Logan, Utah, on the brief); and Thomas C. Anderson, Asst. Atty. Gen., Salt Lake City, Utah (with Robert B. Hansen, Atty. Gen., Salt Lake City, Utah, on the brief), for defendants-appellees and cross-appellants.

Before BARRETT, DOYLE and McKAY, Circuit Judges.

McKAY, Circuit Judge.

This case is a challenge to a school "released-time" program which permits students to take church-sponsored seminary classes off school premises during school hours. The challenge is based on the establishment and free exercise clauses of the first amendment.

I. Background

The proper adjudication of a case involving the interplay between religion and government-mandated public school programs is assisted by an outline of the problems inevitably created by the entry of The drafters of the first amendment probably foresaw little or no conflict between that amendment's protection of the free exercise of religion and its prohibition against congressional laws respecting an establishment of religion. The incorporation of both clauses into the fourteenth amendment ¹ and the advent of the widespread entry of government into the business of teaching and compulsory education, ² however, made conflict between the two clauses inevitable, and it seems doubtful that any court ruling or series of rulings will substantially reduce the claims of conflict. No comprehensive school curriculum worthy of public support can be developed without broaching subjects and questions concerning morality and the origin, meaning, and destiny of humanity. Teachings concerning these same topics have been central to the role of religion from time immemorial. No matter how public school teachers treat such subjects as history, literature, psychology, biology, anthropology, and geology, their concepts ostensibly approved and even imposed by state authority will inevitably offend the deeply held religious beliefs of some students and parents. Children are and will be compelled, on pain of reduced grades, to give answers which both directly and by implication lead to the conclusion that their religious beliefs are false. So long as the state engages in the widespread business of molding the belief structure of children, the often recited metaphor of a "wall of separation" ³ between church and state is unavoidably illusory.

government into the business of purveying ideas through public education. The general principles for resolving the inevitable conflicts must be gleaned from the cases so far decided by the Supreme Court.

The conflicts between public school curricula and religious doctrines cannot be avoided by simply declaring that everything public schools teach is "secular" and therefore not religious. Such a shallow definitional approach ignores the role that religion has historically played, and will likely continue to play, in the development of belief systems. At the same time, it is far too late in our history to remove government from the business of teaching ideas, through public education, about the nature and history of humanity. Notwithstanding the metaphor of a wall of separation, it is unavoidable that conflict will exist between the demands of the free exercise clause and those of the establishment clause at least in the competition for the minds of the nation's children. In the milieu of public education, there is not an impregnable wall of separation. Rather, the inevitable conflicts outlined above dictate that there must be some measure of accommodation to avoid the constitutionally impermissible result of totally subordinating either religion clause to the other. The principles for resolving the inevitable conflicts and the degree of permissible and necessary accommodation have been set forth by the Supreme Court. Our task in this case is to apply those principles.

The general test for determining whether a state statute violates the establishment DB1(2-4) The first principle made clear by the cases is that states may not use compulsory public education laws to prohibit parents from avoiding religiously offensive instruction by opting for totally private sectarian education for their children. Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). ⁴ States are permitted to recognize attendance at church-sponsored schools as satisfying compulsory education laws as to the number of hours in attendance and as to specified subjects studied. Everson v. Board of Education, 330 U.S. 1, 18, 67 S.Ct. 504, 512, 91 L.Ed. 711 (1947); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). Some entanglement is permissible to insure educational minimums in private religious schools. A state may require that attendance at private schools, if it is to satisfy state compulsory-attendance laws, be at institutions which provide minimum hours of instruction under the supervision of teachers of specified training and covering certain prescribed subjects. Board of Education v. Allen, 392 U.S. 236, 245-46, 88 S.Ct. 1923, 1927, 20 L.Ed.2d 1060 (1968).

clause was set forth in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). The three prongs of the test are: (1) the statute must have a secular legislative purpose; (2) its principal or primary effect must be one that neither advances nor inhibits religion; and (3) the statute must not foster an excessive government entanglement with religion. Id. at 612-13, 91 S.Ct. at 2111. Other cases involving the constitutionality of state statutes and programs set forth specific principles applicable to the case before us.

Some forms of state financial assistance to church-sponsored schools are also permitted, ⁵ while other forms are prohibited. ⁶

The Constitution also permits public schools to accommodate students' religious beliefs so that students may claim their free exercise rights without being forced to withdraw totally from public schools. Public schools may permit the release of students during school hours for attendance at Courts have rarely entered the thicket of trying to supervise the manner in which public schools teach traditional subjects which may conflict with or offend the religious sensibilities of some students. ⁷ It is clear, however, that public schools are prohibited from engaging in activities which are essentially religious, religiously ceremonial, or worship-like, such as the recitation of prayer or scripture, School District of Abington v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963); Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962), and the posting of the ten commandments on classroom walls, Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980). Also, while public schools may conduct patriotic ceremonies such as the pledge of allegiance, they may not compel participation by children who object on free exercise grounds. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943).

religious classes taught by religious teachers on private property but not on public school premises. Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952); McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948).

II. Facts

With this general outline in mind, we turn to the facts of the case before us. The Logan School District has implemented a permissive released-time program for public school students in grades nine through twelve. The released-time program is available to any student who wishes to enroll in a course sponsored by any religious organization. There is evidence in the record that non-religious activities may also be approved in the released-time program. Except for some occasional enrollment in released-time classes sponsored by several Protestant churches in the community, however, the overwhelming use of the program is by persons attending released-time classes offered by a seminary operated by the Church of Jesus Christ of Latter-Day Saints (L.D.S. Church). The trial court carefully summarized the administration of the released-time program as follows:

Administration of the Release Time Program and Integration

Between Schools

Registration at Logan Senior High School and Junior High School occurs in the spring preceding the school year in which the classes are to be taken. Although differing in many respects, registration for the release-time program is generally similar. Each student completes and returns to the high school or junior high a preregistration form or class schedule. If such student desires to attend seminary he or she indicates such a desire by requesting released time on the pre-registration form. The students or their parents are furnished forms by the seminary or ecclesiastical officers of the L.D.S. Church, on which parents may request permission from the school to have their children released for one period during the...