Cheema v. Thompson

• Decision Date: 12 October 1995
• Docket Number: No. 94-16868.,94-16868.
• Citation: 67 F.3d 883
• Parties: Gurdev Kaur CHEEMA, Individually and as Guardian ad Litem for Rajinder Singh Cheema, Sukhjinder Kaur Cheema, and Jaspreet Singh Cheema; Gurdeep Singh Bhatia; Gurmeet Singh Thiara, Plaintiffs-Appellees, v. Harold THOMPSON, individually and in his official capacity as Superintendent of the Livingston Union School District; Henry M. Escobar; Benjamin Alvarnaz; Vernon Boyd; Fred Kishi; Janet Martin; David Theodore; Paul De Ayora; Filomena Sousa; and William Eldrige, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

67 F.3d 883

Gurdev Kaur CHEEMA, Individually and as Guardian ad Litem for Rajinder Singh Cheema, Sukhjinder Kaur Cheema, and Jaspreet Singh Cheema; Gurdeep Singh Bhatia; Gurmeet Singh Thiara, Plaintiffs-Appellees, v. Harold THOMPSON, individually and in his official capacity as Superintendent of the Livingston Union School District; Henry M. Escobar; Benjamin Alvarnaz; Vernon Boyd; Fred Kishi; Janet Martin; David Theodore; Paul De Ayora; Filomena Sousa; and William Eldrige, Defendants-Appellants.

No. 94-16868.

United States Court of Appeals, Ninth Circuit.

Submitted April 18, 1995^*.

Order August 1, 1995.

Order Withdrawn October 12, 1995.

Decided October 12, 1995.

Lois A. Lindstrom, Ericksen, Arbuthnot, Kilduff, Day & Lindstrom, Oakland, California, for defendants-appellants.

Stephen V. Bomse, Heller, Ehrman, White & McAuliffe, San Francisco, California, for plaintiffs-appellees.

Before: FLETCHER, HALL, and WIGGINS, Circuit Judges.

Opinion by Judge HALL; Dissent by Judge WIGGINS.

ORDER

The order filed August 1, 1995, is hereby withdrawn and the opinion below filed in its stead.

OPINION

CYNTHIA HOLCOMB HALL, Circuit Judge:

Appellants Livingston Union School District (the "school district") appeal the district court's preliminary injunction ordering them to accommodate three schoolchildren's religious practices until this dispute under the Religious Freedoms Restoration Act of 1993 ("RFRA"), 42 U.S.C. §§ 2000bb et seq., can be litigated on the merits.

The district court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction of the appeal pursuant to 28 U.S.C. § 1292(a)(1). We review the district court's preliminary injunction for abuse of discretion. Stanley v. Univ. of Southern Calif., 13 F.3d 1313, 1319 (9th Cir.1994). Finding none, we affirm.

I

Three young Khalsa Sikh children stand at the center of this controversy: Rajinder, Sukhjinder, and Jaspreet Cheema (together, the "children" or "Cheemas"). A central tenet of their religion requires them to wear at all times five symbols of their faith: "kes" (long hair), "kangha" (comb), "kachch" (sacred underwear), "kara" (steel bracelet), and a "kirpan" (ceremonial knife).¹ This case began when the school district in which the Cheemas reside refused to allow the children to wear kirpans to school.

The school district relied on its total ban of all weapons, including knives, from school grounds. It also pointed to two state statutes, both of which it thought compelled its policy. See Cal.Pen.Code § 626.10(a) (making it a crime to carry a knife with a blade longer than 2½ inches on school property); Cal.Educ.Code § 48915(a) (authorizing expulsion for the possession of "any knife ... of no reasonable use to the pupil" on school grounds). As far as the school district was concerned, there was nothing left to discuss; a kirpan was unquestionably a knife, and as such it fell squarely within the absolute ban.

This left the Cheema children with two choices if they wished to attend school: either leave their kirpans at home (and violate a fundamental tenet of their religion) or bring them to school (and face expulsion and/or criminal prosecution). The children did neither, electing instead to stay home while their parents brought this federal action under the Religious Freedoms Restoration Act.

II

The Cheemas claimed in their lawsuit that the district's policy, as applied to them, violated their statutory right to the free exercise of religion as guaranteed by 42 U.S.C. §§ 2000bb et seq. The children immediately asked for a preliminary injunction enjoining enforcement of the ban. The district court denied the motion, and the children appealed.

The narrow issue on appeal was whether the district court had abused its discretion in denying the request for a preliminary injunction. See Stanley, 13 F.3d at 1319 (articulating standard of review). We held that it did. See Cheema v. Thompson, No. 94-16097, 1994 WL 477725 (Sept. 2, 1994) (memorandum disposition).

In ruling on the preliminary injunction, the district court had to determine whether the children had demonstrated sufficient hardship together with a fair chance of success on the merits. Stanley, 13 F.3d at 1319. We were satisfied that the children had demonstrated the requisite hardship; indeed, their ongoing exclusion from the classroom amounted to irreparable injury. See Chalk v. U.S. Dist. Ct. Cent. Dist. of Calif., 840 F.2d 701, 709 (9th Cir.1988).

We also were convinced that the children had shown more than a fair chance of success on the merits. To prevail under RFRA, the children had to prove that their insistence on wearing kirpans was animated by a sincere religious belief and that the school district's refusal to accommodate that belief put a substantial burden on their exercise of religion. See 42 U.S.C. § 2000bb-1(a). The children unquestionably carried their burden. Even the school district conceded the point, at least insofar as the ruling on the preliminary injunction was concerned. That shifted the burden to the school district to save its policy by proving that the kirpan ban was necessary to serve a compelling governmental interest. Id. at § 2000bb-1(b).

We concluded, as did the district court, that the school district had a compelling interest in campus safety. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 213, 92 S.Ct. 1526, 1532, 32 L.Ed.2d 15 (1972). We even agreed that the kirpan ban served that interest, despite the almost total lack of evidentiary support in the record.² But we simply could not conclude that nothing short of a wholesale ban would adequately protect student safety. The problem was a total failure of proof; the school district refused to produce any evidence whatever to demonstrate the lack of a less restrictive alternative.³ Its stance, both before the district court and the panel, was that it had no obligation to do so. It was quite mistaken. See 42 U.S.C. § 2000bb-2(3) (putting burdens of production and persuasion on the government).

The district court overlooked this problem. When it denied the children's motion for a preliminary injunction, it simply declared that the absolute ban was necessary to protect the school district's compelling interest in, among other things, student safety. The district court's failure to consider RFRA's "no less restrictive alternative" requirement left us no choice but to reverse. Senate of California v. Mosbacher, 968 F.2d 974, 975 (9th Cir.1992) (misapplication of law constitutes abuse of discretion).

In sending the case back to the district court, we took care to spell out the school district's obligations under RFRA. We also urged the school district on remand to compile a record that would support its policy. In the meantime, however, the children had proven their case for a preliminary injunction. Not only had they shown hardship, they had demonstrated a very strong chance of success on the merits, thanks in large part to the failure of the school district to build a meaningful record. See Stanley, 13 F.3d at 1319 (hardship plus a fair chance of success on the merits requires preliminary injunction).

III

On remand the district court invited the parties to negotiate the terms of the preliminary injunction. The parties, however, failed to agree on a compromise solution, so the district court, as we specifically instructed, imposed its own plan. It ordered the school district to lift its wholesale kirpan ban and allow the children (and their kirpans) back to school under the following conditions:

1) the kirpan will be of the type demonstrated to the Board and to the District Court, that is: a dull blade, approximately 3-3½ inches in length with a total length of approximately 6½-7 inches including its sheath;

2) the kirpan will be sewn tightly to its sheath;

3) the kirpan will be worn on a cloth strap under the children's clothing so that it is not readily visible;

4) a designated official of the District may make reasonable inspections to confirm that the conditions specified above are being adhered to;

5) if any of the conditions specified above are violated, the student's privilege of wearing his or her kirpan may be suspended; and

6) the District will take all reasonable steps to prevent any harassment, intimidation or provocation of the Cheema children by any employee or student in the District and will take appropriate disciplinary action to prevent and redress such action, should it occur.

The school district now appeals. Again, our review is for abuse of discretion. Stanley, 13 F.3d at 1319. This time we find none. The school district does not cite a single legal or factual error that would permit a finding of abuse of discretion; instead, it asks us to vacate the injunction simply because they find its terms objectionable.⁴ However, we cannot simply substitute our judgment for that of the district court. United States v. Egbuniwe, 969 F.2d 757, 761 (9th Cir.1992). The district court faithfully applied RFRA to the facts of this case and came up with an injunction that it judged appropriate. We do not endorse the terms of the injunction, but neither do we think the district court abused its discretion. If the school district dislikes the injunction, it should use its opportunity to litigate this dispute on the merits to present the district court with adequate evidence from which a fully informed decision can be made.

AFFIRMED.

WIGGINS, Circuit Judge, dissenting.

INTRODUCTION

The majority affirms the district court's pre-trial "plan of accommodation," under which a school district is enjoined from enforcing both its own no-knives policy and a state statutory limitation on the size of knives on campuses against Sikh children who carry their knives ("kirpans") for religious reasons. Further, the plan of accommodation bars the school district from requiring that the kirpans in question be riveted to their sheaths. As a result of the majority's ruling, the school district must allow 7, 8 and...