Davis v. Page

• Decision Date: 27 November 1974
• Docket Number: Civ. A. No. 74-51.
• Citation: 385 F. Supp. 395
• Parties: Liisa M. DAVIS, a minor, et al. v. William C. PAGE, Individually and as Superintendent of Schools for New Hampshire Supervisory Union Number 47, et al.
• Court: U.S. District Court — District of New Hampshire

385 F. Supp. 395

Liisa M. DAVIS, a minor, et al. v. William C. PAGE, Individually and as Superintendent of Schools for New Hampshire Supervisory Union Number 47, et al.

Civ. A. No. 74-51.

United States District Court, D. New Hampshire.

November 27, 1974.

Charles G. Douglas, III, Perkins, Douglas & Brock, Concord, N. H., for plaintiffs.

Maurice M. Blodgett, Blodgett & Makechnie, Peterborough, N. H., for defendants.

OPINION

BOWNES, District Judge.

This is a civil rights action brought pursuant to 28 U.S.C. § 1343 and 42 U. S.C. § 1983. It is not a class action.

Plaintiffs Liisa M. Davis and Eric L. Davis are brother and sister. The action is brought on their behalf by their father, Harold Gene Davis. Judy Davis, mother of the children, was the chief witness. The children and their parents will be treated as plaintiffs for reasons explained later. The defendants are William C. Page, Superintendent of Schools for New Hampshire Supervisory Union Number 47; Richard Sawyer, Principal of Jaffrey-Rindge Middle School; John Cornellia, Principal of Rindge Memorial School; and the members of the Jaffrey-Rindge School Board. All parties are citizens of New Hampshire.

Plaintiffs are members of the Apostolic Lutheran faith. They allege that the School Board's policy, which requires that students remain in the same classroom where religiously offensive activities are taking place as part of the school program, violates their rights guaranteed by the First Amendment and the parents' inherent right to control the moral and religious development of their children.

THE FACTS

The Apostolic Lutherans comprise a sizeable minority of the student population in the Jaffrey-Rindge School District. Superintendent Page testified that twenty percent of the Jaffrey-Rindge students are members of the Apostolic Lutheran faith. At trial, plaintiffs introduced evidence which demonstrated deep and pervasive religious objections to the manner and mode in which the educational process is conducted within the Rindge School District. Plaintiffs have introduced evidence that the dogma of their faith makes it sinful for them to: watch movies, watch television, view audio-visual projections, listen to the radio, engage in play acting, sing or dance to wordly music,¹ study evolution, study "humanist" philosophy,² partake in sexually oriented teaching programs, openly discuss personal and family matters, and receive the advice of secular guidance counselors.

Up until the school year ending in June, 1971, Rindge School Board policy allowed any student who voiced religious objections to classroom activities to leave the room. Due to the sizeable number of students who objected and its attendant disciplinary problems, after numerous public meetings, the School Board adopted a different policy in August of 1971. Under the newly promulgated policy, students are not allowed to leave the classroom if the activities offend their religious beliefs. Despite their religious objections, students are now required to remain in the classroom with the option of placing their heads on the desk, turning their chairs away, or standing in the back of the classroom. Since the Apostolic Lutherans object to the sound, as well as the picture, projected by audio-visual devices, plaintiffs found the alternatives to be unacceptable.

After adoption of the new policy, tension increased between plaintiffs and the School Board. Plaintiff Eric Davis testified that, on one occasion, he was physically forced to watch a film. The irremedial breakdown between the parties occurred when Eric left the classroom in which a movie was being shown, without either the knowledge or permission of the teacher, and returned home. His father, noting his early arrival home, asked why he was not in school. When Eric informed him that he had been forced to watch a movie, Mr. Davis went to the school and became engaged in a heated discussion with the Principal of the School, Mr. Bramblett. In June of 1973, the Davises withdrew their children from the Rindge Memorial School and sought private tutors.³

The Davises specifically object to the following School Board policies: (1) refusing to allow their children to withdraw from classrooms where audio-visual equipment is being used; (2) mandatory attendance that is to be required for a prospective course entitled "Health and Education"; and (3) requiring children to attend music classes.

Plaintiffs do not seek to enjoin the teaching of these courses nor enjoin the classroom use of any audio-visual equipment. The gravamen of the complaint is that the School Board's policy of requiring the children to be physically present in a classroom where religiously offensive activities are taking place violates their constitutional guarantees. The Davises seek an order from this court which will require school officials to excuse their children from a classroom whenever nonsectarian activities conflict with their religious tenets.

The interests of the children are not co-terminous with that of their parents. The children have conflicting interests. There is no doubt that, as children, they have constitutionally protected rights. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Tinker v. Des Moines School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L.Ed.2d 527 (1967); Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948).

The Davis children, unlike the children in Wisconsin v. Yoder, 406 U.S. 205, 207, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), and Tinker, supra, 393 U.S. at 504, 89 S.Ct. 733, are elementary school students. Based on the demeanor and testimony of Eric Davis, I find it difficult to believe that he understands the ramifications of his religious beliefs. His sister did not testify. It would be naive for this court not to recognize that the children's asserted freedom of exercise of religion is, in essence, that of their parents. In fact, the freedom asserted is the right of the parents to inculcate and mold their children's religious beliefs to conform to their own without the children being subjected to school programs and materials which the parents deem offensive and subversive of these beliefs. Galanter, Religious Freedoms in the United States: A Turning Point?, 1966 Wisc.L.Rev. 217, 285. The children's rights and interests are not limited to those which their parents assert — their rights and interests also cut the other way. As Justice Douglas has stated:

If a parent keeps his child out of school beyond the grade school, then the child will be forever barred from entry into the new and amazing world of diversity that we have today. The child may decide that that is the preferred course, or he may rebel. It is the student's judgment, not his parents', that is essential if we are to give full meaning to what we have said about the Bill of Rights and of the right of students to be masters of their own destiny. If he is harnessed to the Amish way of life by those in authority over him and if his education is truncated, his entire life may be stunted and deformed. Yoder, supra, 406 U.S. at 245-246, 92 S.Ct. at 1548 (Douglas, J., dissenting).

The real party in interest here is the parents. Both the children and the parents claim that the School Board's policy violates their First Amendment guarantee to the free exercise of their religion. Although I treat both the parents' and children's First Amendment claims together, this does not mean that the interests of the children are synonymous with their parents'.

The basic issue is whether elementary students must be excused from a classroom where nonsectarian educational exercises are taking place whenever it is alleged that such exercises violate their parents' religious beliefs.

THE LAW

The Davises allege that the School Board's policy violates two constitutional guarantees: the First Amendment guarantee of freedom of religion and their fundamental right to control the upbringing of their children.

They claim that the tenets of their religion make them responsible for the moral and spiritual development of their children and that the spiritual neglect of the children will result in the parents' eternal damnation. Exhibit 4. Closely interlinked with this First Amendment claim is the allegation that the School Board's policy infringes upon the parents' inherent right to control the religious upbringing of their children. Yoder, supra, 406 U.S. at 214, 92 S.Ct. 1526; Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); State v. Jackson, 71 N.H. 552, 556, 53 A. 1021 (1902). Justice White stated in Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L. Ed. 551 (1972):

The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one's children have been deemed "essential," Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), "basic civil rights of man," Skinner v. Oklahoma, 316 U.S. 535, 541 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), and "rights far more precious . . . than property rights," May v. Anderson, 345 U.S. 528, 533 73 S. Ct. 840, 97 L.Ed. 1221 (1953). "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Prince v. Massachusetts, 321 U.S. 158, 166 64 S.Ct. 438, 88 L.Ed. 645 (1944).

Although the two rights are separate and distinct, they invoke the same standard of review and will be viewed conjunctively. Although the language of many cases indicates that the appropriate standard of review is the compelling state interest test,⁴ the Supreme Court has signaled a departure from its application in cases of this type. In Yoder, supra, 406 U.S. at 214, 92 S.Ct. at 1532, the Court stated:

a State's interest in universal education, however highly we rank

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