Berger By Berger v. Rensselaer Cent. School Corp.
| Decision Date | 07 May 1991 |
| Docket Number | Civ. No. L 90-19. |
| Citation | 766 F. Supp. 696 |
| Parties | Joshua H. BERGER, Moriah H. Berger, by Next Friend Allen H. BERGER, Plaintiffs, v. RENSSELAER CENTRAL SCHOOL CORPORATION, Defendant. |
| Court | U.S. District Court — Northern District of Indiana |
COPYRIGHT MATERIAL OMITTED
Franklin A. Morse, II, Barnes & Thornburg, South Bend, Ind., and Richard A. Waples, Indiana Civ. Liberties Union, Indianapolis, Ind., for plaintiffs.
John R. Price, Indianapolis, Ind., for defendant.
Order on Cross Motions for Summary Judgment
In this action the plaintiffs charge the defendant school corporation with the unconstitutional distribution and dissemination of religious material in violation of the first and fourteenth amendments to the Constitution of the United States. The plaintiffs are elementary school students enrolled in the Rensselaer Central School Corporation, a municipal corporation organized and existing under the laws of the State of Indiana. Pursuant to Fed.R.Civ.P. 17(c), the plaintiffs, by their next friend (their natural father, Allen H. Berger), seek a declaratory judgment and preliminary and permanent injunctive relief. Jurisdiction is premised upon 28 U.S.C. §§ 1331 and 1343, and venue is proper pursuant to 28 U.S.C. §§ 94(a)(3) and 1391.
Both parties have moved for summary judgment under Fed.R.Civ.P. 56. The standards a court employs in reviewing a motion for summary judgment are well-established. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists if there is "sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); See also La Preferida, Inc. v. Cerveceria Modelo, S.A. de C.V., 914 F.2d 900, 905 (7th Cir.1990). The movant bears the burden of establishing that there is no genuine issue of material fact, and that it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Becker v. Tenenbaum-Hill Associates, Inc., 914 F.2d 107, 110 (7th Cir.1990). The movant may meet its burden by showing that "there is an absence of evidence to support the nonmoving party's case." Id., quoting Celotex, 477 U.S. at 325, 106 S.Ct. at 2554. Any doubt regarding the existence of a genuine issue of material fact must be resolved in favor of the nonmovant. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513-14.
If the moving party meets its burden, the nonmovant then must present specific facts showing that there is a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). The nonmovant cannot rest on mere allegations without significant probative evidence in support of his claim. Accordingly, the nonmovant is required to go beyond the pleadings, affidavits, depositions, answers to interrogatories and admissions on file to designate specific facts showing a genuine issue for trial. Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553. For the following reasons, the court hereby GRANTS defendant's motion for summary judgment.
When the amended complaint was filed in May 1990, the plaintiff Joshua H. Berger ("Joshua") was ten years of age and enrolled as a student in the fifth grade at the Rensselaer Central Middle School, a school owned and operated by the defendant school corporation (Complaint at ¶ 4). The other plaintiff, Moriah H. Berger ("Moriah"), was seven years old and a first grader in the Monnett Elementary School, also within the defendant school district (Id.). Their complaint challenges a duly adopted policy of the school corporation concerning the distribution, display and exhibition of materials on school premises. In pertinent part, that policy provides:
The plaintiffs allege that the school corporation, acting pursuant to this policy, routinely and unconstitutionally grants permission to religious organizations (especially, the Gideon Society) to distribute religious literature in its elementary and middle schools (Complaint at ¶ 7).1 Among the religious materials allegedly disbursed were a book entitled "Young People of the Bible" and the Gideon Bible, which is an excerpted compilation from the King James Version of the Christian Holy Bible containing the New Testament and the Old Testament books of Psalms and Proverbs. The school corporation readily acknowledges that representatives of the Gideon organization have annually distributed their Bibles to Rensselaer's fifth grade classrooms "for so many decades that no one can remember when the practice commenced" (Defendant's Memorandum of Law on the Substantive First Amendment Questions at 2).
The undisputed evidence shows that the Gideons would make one visit per school year to the fifth grade students in the Rensselaer school system. Although the location of the distribution would vary, sometimes occurring in the classroom, at other times in the gymnasium or in the hallway, the Gideons' routine remained largely the same from year to year. Two Gideon representatives (both men) would come to the school during regular school hours and speak to the students for no longer than a couple of minutes, indicating that Bibles would be made available to students wishing to take a copy. As part of their brief spiel, the representatives would explain who they were, what their organization stood for, and indicate that they had Bibles to distribute free of charge. They would tell a pun that the Bibles were red-colored because they were meant to be read. Then the students would form a queue and file by the two representatives who would hand each student a Bible. Throughout this demonstration, the classroom teacher remained present, although observing silently from another part of the room. At no time would the teacher say anything, or participate in the handing out of Bibles.
At one time, the Gideons would advise students to take the Bibles home to their parents, and if the parents objected, to return the Bibles to their teachers at school. Since then, there had been a school policy of first obtaining parental permission from each child who was to receive a Bible. In recent years, however, permission slips were not used, and there was apparently no other mechanism used to seek parental permission before students received the Bibles.
According to the complaint, Allen H. Berger first learned of the school's policy regarding the annual distribution of Gideon Bibles in October 1989 (Complaint at ¶ 9). On October 27, 1989, anticipating the impending Bible distribution scheduled for November 2, Berger wrote to the Superintendent of the School Corporation questioning the constitutionality of the school's practice and requesting that it cease. The superintendent replied on November 17, 1989, that the distribution of Bibles would temporarily be postponed pending the December 1989 meeting of the Board of School Trustees.
At the December meeting the school board voted to reaffirm the earlier practice, the superintendent announcing that "`our policy concerning distribution, display or exhibition of religious materials on school premises remains unchanged,' and that requests for permission to do so would be granted in the same manner as in the past" (Complaint at ¶ 10). Again, in February 1990, during an in-service conference of teachers, the superintendent confirmed that "it was the policy of the School Corporation, upon receipt of a proper request, to permit the distribution of religious literature and other material by any organization, with the sole exception of `Satanists'" (Complaint at ¶ 11).
Notwithstanding the defendant's steadfastness in retaining its prior policy, the Gideons never did distribute their Bibles to the classrooms in which Joshua and his contemporaries were fifth grade students at Rensselaer. The school corporation says that Allen H. Berger's frequent objections to the distribution policy resulted in that year's cancellation, with the result that no Gideon Bibles were made available to fifth graders (including Joshua) in the school system during the 1989-90 school year. Because Joshua and his classmates are now sixth graders (to whom the Gideons have never previously distributed their literature in Rensselaer) and because Moriah is only a second grader (at least three years away from receiving a Gideon Bible), the defendants claim that...
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