Berger v. Rensselaer Cent. School Corp.

• Decision Date: 17 February 1993
• Docket Number: No. 91-2279,91-2279
• Parties: , 80 Ed. Law Rep. 68 Joshua H. BERGER and Moriah H. Berger, b/n/f Allen H. BERGER, Plaintiff-Appellants, v. RENSSELAER CENTRAL SCHOOL CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1160

982 F.2d 1160

61 USLW 2417, 80 Ed. Law Rep. 68

Joshua H. BERGER and Moriah H. Berger, b/n/f Allen H BERGER, Plaintiff-Appellants, v. RENSSELAER CENTRAL SCHOOL CORPORATION, Defendant-Appellee.

No. 91-2279.

United States Court of Appeals Seventh Circuit.

Argued Oct. 21, 1992.

Decided Jan. 5, 1993.

Order Amending Opinion and Denying Rehearing Feb. 17, 1993.

Franklin A. Morse, II (argued), Barnes & Thornburg, South Bend, IN, Richard A. Waples, Indianapolis, IN, for plaintiffs-appellants.

Robert K. Skolrood, Nat. Legal Foundation, Virginia Beach, VA, John R. Price (argued) Indianapolis, IN, Jay A. Sekulow (argued) American Center for Law and Justice, Virginia Beach, VA, for defendant-appellee.

Joel H. Greenburg, Chicago, IL, Samuel Rabinove, American Jewish Committee, New York City, for amici curiae American Jewish Committee, Nat. Council of Churches of Christ in U.S., Unitarian Universalist Ass'n, American Jewish Congress and Americans United for Separation of Church and State.

Richard E. Shevitz, Hopper, Wenzel & Galliher, Sheila Suess Kennedy, Rubin & Levin, Indianapolis, IN, Steven M. Freeman, Anti-Defamation League of B'Nai B'Rith, New York City, for amicus curiae Anti-Defamation League of B'Nai B'Rith.

Richard E. Shevitz, Hopper, Wenzel & Galliher, Sheila Suess Kennedy, Rubin & Levin, Indianapolis, IN, for amicus curiae Indiana Interreligious Com'n on Human Equality.

Richard J. Darko, Lowe, Gray, Steele & Hoffman, Indianapolis, IN, for amicus curiae Indiana State Teachers Ass'n.

Peggy M. Hodges, American Family Ass'n, Tupelo, MS, for amicus curiae American Family Ass'n, Inc.

Robert K. Skolrood, Brian M. McCormick, Nat. Legal Foundation, Virginia Beach, VA, for amicus curiae Nat. Legal Foundation.

Keith A. Fournier, American Center for Law and Justice, Virginia Beach, VA, for amicus curiae American Center for Law and Justice.

Before CUMMINGS, Circuit Judge, PELL, Senior Circuit Judge, and KAUFMAN, Senior District Judge. ^*

CUMMINGS, Circuit Judge.

People are accustomed to finding Gideon Bibles tucked in the drawers of their hotel rooms; much less frequently do they find them stashed in the desks of their public school classrooms. In Rensselaer, Indiana, however, representatives of Gideon International have distributed Bibles in the public schools--usually in classrooms--for so many years that no one can seem to remember when the practice began. Moriah H. Berger and her brother Joshua are students in schools operated by the Rensselaer Central School Corporation ("Corporation"). Moriah was seven years old and in the first grade at Monnett Elementary School in May 1990 when plaintiffs filed an amended complaint challenging the Corporation's association with the Gideons. Joshua was ten years old and enrolled in the fifth grade at Rensselaer Central Middle School. The father of these children, Allen H. Berger, brought this suit on their behalf seeking to have the Corporation's practice declared an unconstitutional violation of the First Amendment's directive that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend. I. The district court threw out the Bergers' suit on summary judgment.

Though briefs in this case were first filed eighteen months ago, oral argument was postponed because the Supreme Court had on its docket the case of Lee v. Weisman, --- U.S. ----, 112 S.Ct. 2649, 120 L.Ed.2d 467. It is clear from the tenor of the initial briefs of both parties as well as from the numerous amici submissions in our case that, among those who follow such trends, the Supreme Court had been expected to work a radical change in Establishment Clause jurisprudence to allow more state involvement with religion. Defendants quoted as an expert source none other than The Washington Post for the proposition that Lee might "lead to an historic ruling which would 'allow a greater role for religion in public life' " (defendant's brief at 25). Defendant's brief discussed the expected shift anxiously, almost gleefully, because the prevailing precedent, Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745, was highly unfavorable to its position. However, the Supreme Court in Lee did not accept the invitation issued by the Solicitor General and others to give the government greater freedom to inject religion into its activities and policies. Lee, --- U.S. at ----, 112 S.Ct. at 2655. Instead, the Court left Lemon untouched, and created an equally vigilant Establishment Clause precedent by outlawing the practice of Providence, R.I. public schools of inviting clergy to deliver nonsectarian prayers at graduation ceremonies.

As a result, we must continue to view with suspicion governmental forays into religious activity, particularly in the context of public schools. The relationship between the Corporation and the Gideons cannot survive this scrutiny. Under the principles enunciated in Lemon and Lee, the distribution of Bibles in Indiana schools offends the First Amendment of the Constitution, and we are compelled to reverse the district court, 766 F.Supp. 696.

I.

The Rensselaer Central School Corporation has a written policy allowing the superintendent of schools and the principal of a given institution to grant permission to members of the community who wish to distribute literature or other publications to students. ¹ This policy appears to give a principal, in conjunction with the superintendent, total discretion to grant or deny access to school property. Yet the policy offers the principal and superintendent no guidance on how to exercise this discretion other than the general reminder to act in students' best interests. It does not tell school officials whether they may favor certain speakers because some messages are more appropriate for children than others. Nor does the policy tell the superintendent or principal whether presentations and distributions by non-school personnel may be made during times ordinarily reserved for instruction. The policy does not say, for example, whether school officials could allow a local clothes merchant into the classroom one afternoon to peddle this or that brand of jeans in place of the usual algebra lesson--or whether the principal's cousin could come in and hand out leaflets pitching his candidacy for mayor. ²

By all accounts, such difficult cases did not arise in Rensselaer except for the distribution of Gideon Bibles, and there were no disputes under the policy until Mr. Berger protested to the Corporation that he did not think it appropriate for his children and other students to receive religious material in the public schools. ³ In 1985, when Joshua was in the first grade, he and the other youngsters were given a publication called My Favorite Book that was published by the "Jesus' Love Foundation" in conjunction with several local shopkeepers. In the elder Berger's opinion, the book was nondenominational but religious in its treatment of citizenship and lifestyle. Though he expressed disbelief to his wife that such materials would be distributed in public schools, Mr. Berger did not protest to the Corporation. In 1989, however, Mr. Berger learned of the Rensselaer school policy permitting the Gideons to distribute Bibles (Berger dep. at 8-16, plaintiffs' app. at 323-331). On October 27, 1989, he sent a letter to Superintendent Roberta Dinsmore requesting an end to the practice. Mr. Berger, who is a professor of anthropology, said that the relationship between public schools and the Gideons "is in clear violation of constitutional principles mandating a separation of church and state" (plaintiffs' app. at 375). The letter was discussed at a meeting of the school board on December 19, 1989. The president of that body, in raising the issue for the first time, also pronounced its resolution by declaring that the board had decided not to alter its policy regarding the Gideons. According to the minutes of the meeting, the president said:

"Around November 1, the Board of Education received a letter questioning the legality of allowing the Gideons to pass out Bibles to the 5th grade students. Since that time a great deal of research has gone into the subject. The Board has had contact with a number of organizations across the United States and has, through this contact, come to a conclusion. I will briefly mention some of the information which we received. First, there have been very few actual cases involving the Gideons['] distribution of Bibles in the Public Schools. * * * At this time it is illegal to pass out Bibles in New Jersey and the eastern part of Arkansas. The Supreme Court has heard none of these cases. An important fact is that none of these cases have any jurisdiction in our own State which is in the 7th Judicial Circuit. Therefore, our policy concerning distribution, display or exhibition of materials on schools premises remains unchanged."

(plaintiffs' app. at 531). The audience was then invited to speak; all but one person voicing an opinion supported the existing policy. Id. Nothing said by the citizen commentators prompted the school board to change its mind, and the president's remarks reprinted above represent the school board's only public discussion of this issue.

Though Mr. Berger's letter did not sway the school board, it did scare off the Gideons. According to a representative of the organization, its policy is to sidestep litigation by avoiding schools where it meets strong opposition (Kooy dep. at 8, plaintiffs' app. at 728). Thus the Gideons withdrew their offer to supply Bibles during the 1989-1990 school year, at least temporarily ending a practice that extended back thirty-five years or more. As a result, neither Joshua nor Moriah Berger actually received a Bible from the Gideons. ⁴

When the Gideons did distribute Bibles, they sent two representatives who came once a year after clearing a date with the principal. There was no set method of...