Garnett By and Through Smith v. Renton School Dist. No. 403

• Decision Date: 03 March 1989
• Docket Number: No. 88-3552,88-3552
• Parties: , 51 Ed. Law Rep. 399 Richard GARNETT, By and Through his next friend, Peggy SMITH; Scott Germino; Robert Ryan, By and Through his next friend, Jack Ryan; Richard Tracy, By and Through his next friend, Michael Tracy, Plaintiffs/Appellants, v. RENTON SCHOOL DISTRICT NO. 403; Robert L. Anderson, in his official capacity; Brian Barker, in his official capacity; John G. Dubois, in his official capacity; Marcia Holland, in her official capacity; Donald Jacobson, in his official capacity; Gary F. Kohlwes, in his official capacity; and Margarita Prentice, in her official capacity, Defendants/Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1121

865 F.2d 1121

57 USLW 2430, 51 Ed. Law Rep. 399

Richard GARNETT, By and Through his next friend, Peggy

SMITH; Scott Germino; Robert Ryan, By and Through his next

friend, Jack Ryan; Richard Tracy, By and Through his next

friend, Michael Tracy, Plaintiffs/Appellants, v. RENTON SCHOOL DISTRICT NO. 403; Robert L. Anderson, in his

official capacity; Brian Barker, in his official capacity;

John G. Dubois, in his official capacity; Marcia Holland,

in her official capacity; Donald Jacobson, in his official

capacity; Gary F. Kohlwes, in his official capacity; and

Margarita Prentice, in her official capacity, Defendants/Appellees.

No. 88-3552.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 6, 1988.

Decided Jan. 17, 1989.

As Amended March 3, 1989.

Steven T. McFarland, William H. Ellis, Jr., Michael E. Ritchie, Ellis & Li, Seattle, Wash., Kimberlee Wood Colby, Michael Stokes Paulsen, and Robert P. Reese, Jr., Center for Law & Religious Freedom, Merrifield, Va., Robert Hale, Families for Responsible Educational Environment, for the plaintiffs/appellants Richard Garnett, et al.

I. Franklin Hunsaker, Scott M. Stickney, Christopher A. Rycewicz, Bullivant, Houser, Bailey, Pendergrass & Hoffman, Portland, Or., for the defendants/appellees Renton School Dist. No. 403, et al.

John R. Bolton, Asst. Atty. Gen., Gene S. Anderson, U.S. Atty., Brant M. Laue, Sp. Asst. to the Atty. Gen., Anthony J. Steinmeyer, U.S. Dept. of Justice, Washington, D.C., for the amicus curiae U.S.

Marc D. Slonim, Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, Wash., for the amicus curiae American Civil Liberties Union of Washington Foundation.

R. Broh Landsman, Helsell, Fetterman, Martin, Todd & Hokanson, Seattle, Wash., for the amici curiae Anti-Defamation League of B'nai B'rith, the American Jewish Martin L. Ziontz, Bassett & Morrison, Seattle, Wash., for the amici curiae American Jewish Committee and Church Council of Greater Seattle.

Congress, and Americans for Religious Liberty.

Appeal from the United States District Court for the Western District of Washington.

Before FARRIS and POOLE, Circuit Judges, and KELLEHER, ^* District Judge.

FARRIS, Circuit Judge:

Richard Garnett and other Lindbergh High School students sought a district court order requiring the Renton School District to allow their student religious group to meet in a high school classroom prior to the start of the school day. The students appeal the district court's orders denying their motion for a preliminary injunction and entering judgment for the school district on the merits. 675 F.Supp. 1268. The students claim: 1) the First Amendment requires that the school district permit their group to meet; and 2) the Equal Access Act requires that the school district permit their group's meetings.

FACTS

Lindbergh High School is a public secondary school in the Renton School District. The district makes classrooms available during noninstructional time for use by students participating in approved "co-curricular" activities. The district's board of directors and superintendent determine whether to approve an activity based on District Policy 6470 which provides:

[t]he criteria to be used for approving co-curricular activities should include but not be limited to:

1. the purposes and/or objectives shall be an extension of a specific program or course offering,

2. the activity shall be acceptable to the community,

3. the activity should have carry-over values for lifetime activities,

4. the group shall be supervised by a qualified employee,

5. the cost of the activity must not be prohibitive to student or District,

6. the activity must comply with Title IX requirements,

7. the activity must take place on school premises unless approved in advance by the school principal, and

8. the activity must not be secretive in nature.

Policy 6470 also states that the district "does not offer a limited open forum."

Garnett and others asked Lindbergh's principal and the school district for permission to use a Lindbergh classroom for weekday morning meetings of their non-denominational Christian student group. The group wished to discuss religious and moral issues, read the Bible, and pray. The principal and the district denied the group's requests because the club was not curriculum related and because allowing the proposed meetings would violate the Establishment Clause.

Members of the Christian group brought suit in U.S. District Court and moved for a preliminary injunction requiring the district to allow them to use a classroom for meetings. The district court consolidated the preliminary injunction motion with trial on the merits, and entered final judgment in favor of the school district.

STANDARD OF REVIEW

This appeal involves questions of law which are reviewed de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). Application of the Equal Access Act involves a "mixed question" of application of law to facts. The district court's application of the Act is not the sort of "essentially factual" inquiry which warrants application of the deferential clearly erroneous standard to a "mixed question." Id. at 1202 (citing Pullman-Standard v. Swint, 456 U.S. 273, 288, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982)). Rather, application of the Act requires "the consideration of legal principles," id. at 1204, of statutory interpretation and constitutional law, and is therefore subject to the general rule that "mixed questions will be reviewed independently." Id. The district court's findings concerning underlying historical facts, however, are reviewed for clear error. See Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 106 S.Ct. 1527, 89 L.Ed.2d 739 (1986).

I. THE FIRST AMENDMENT

A. The Establishment Clause

The Establishment Clause of the First Amendment, applied to the states through the Fourteenth Amendment, Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), prohibits state action "respecting an establishment of religion." U.S. Const. amend. I. The Supreme Court has applied the three-part "Lemon test" to determine whether state action comports with the Establishment Clause. First, the action must have a secular purpose. Second, the action's primary effect must be one that neither advances nor inhibits religion. Third, the action must not result in excessive entanglement of government with religion. Edwards v. Aguillard, 482 U.S. 578, 107 S.Ct. 2573, 2577, 96 L.Ed.2d 510 (1987) (citing Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971)).

1. Secular Purpose

Allowing the requested meeting of this particular student religious group in a public high school classroom at a time closely associated with the school day would violate the Establishment Clause. We recognize that such an action might arguably have the secular purpose of allowing equal access to school facilities. See Brandon v. Board of Educ. of Guilderland Central School Dist., 635 F.2d 971, 978-79 (2d Cir.1980). But it would also violate the Establishment Clause under both the second and third parts of the Lemon test. It would have the primary effect of advancing religion, and it would foster government entanglement with religion.

2. Primary Effect of Advancing or Inhibiting Religion

The second part of the Lemon test evaluates whether state action merely neutrally accommodates religion or unconstitutionally sponsors religion. Government may accommodate religious practices to avoid impinging on the right to freely exercise religious beliefs. Brandon, 635 F.2d at 975 (2d Cir.1980). Thus, government need not withhold generally available benefits from a religious organization simply because the organization is religious. Roemer v. Board of Public Works, 426 U.S. 736, 746-47, 96 S.Ct. 2337, 2344-45, 49 L.Ed.2d 179 (1976).

Government may not, however, take actions which even appear to sponsor religion. Thus, even insignificant amounts of direct aid to religious groups violate the Establishment Clause. In Everson v. Board of Educ., 330 U.S. 1, 16, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947), the Supreme Court held: "[no] tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion." Nowhere has the Supreme Court been more vigilant in prohibiting the appearance of state sponsorship of religious activities than in public elementary and secondary schools.

The State exerts great authority and coercive power through mandatory attendance requirements, and because of the students' emulation of teachers as role models and the children's susceptibility to peer pressure.... "The public school is at once the symbol of our democracy and the most pervasive means for promoting our common destiny. In no activity of the State is it more vital to keep out divisive forces than in its schools."

Edwards v. Aguillard, 107 S.Ct. at 2577-78 (citations omitted).

Permitting this student religious group to meet in a public high school just before the start of classes would impermissibly advance rather than neutrally accommodate religion. In Illinois ex rel. McCollum v. Board of Educ., 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948), the Supreme Court held that a school district impermissibly advanced religion by allowing religious instructors to provide religious education to students on a voluntary basis during the school day. The Court held: "This is beyond all question a utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith. And it falls squarely under the ban of the First Amendment." Id. at 210, 68 S.Ct. at 464. This case presents substantially the same issues as McCollum. Although the religious activity proposed would take place before formal instruction begins, it would occur...