Deerfield Hutterian Ass'n v. Ipswich Bd. of Ed., Civ. No. 76-1022.

• Decision Date: 17 April 1979
• Docket Number: Civ. No. 76-1022.
• Citation: 468 F. Supp. 1219
• Parties: DEERFIELD HUTTERIAN ASSOCIATION, an unincorporated association, and Sam Waldner, representing himself and other members of the class similarly stated, Plaintiffs, v. IPSWICH BOARD OF EDUCATION, Ipswich Independent School, District 22-3, Thomas Halvorson, individually and as Superintendent of Ipswich Public Schools, and Lyle Palmer, Henrietta Gauer, James Davis, Everett Omland, and Myron Fillbach, individually and as members of the Ipswich Board of Education, Defendants.
• Court: U.S. District Court — District of South Dakota

468 F. Supp. 1219

DEERFIELD HUTTERIAN ASSOCIATION, an unincorporated association, and Sam Waldner, representing himself and other members of the class similarly stated, Plaintiffs, v. IPSWICH BOARD OF EDUCATION, Ipswich Independent School, District 22-3, Thomas Halvorson, individually and as Superintendent of Ipswich Public Schools, and Lyle Palmer, Henrietta Gauer, James Davis, Everett Omland, and Myron Fillbach, individually and as members of the Ipswich Board of Education, Defendants.

Civ. No. 76-1022.

United States District Court, D. South Dakota, N. D.

April 17, 1979.

COPYRIGHT MATERIAL OMITTED

Harvey C. Jewett of Siegel, Barnett, Schutz, O'Keefe, Jewett & King, Aberdeen, S. D., for plaintiffs.

Anthony N. Buckmeier, Mobridge, S. D., and James A. Wyly of Richardson, Groseclose, Kornmann & Wyly, Aberdeen, S. D., for defendants.

MEMORANDUM DECISION

NICHOL, Chief Judge.

The plaintiffs, Deerfield Hutterian Association, et al., have petitioned this Court to enjoin the defendants, Ipswich Board of Education, et al., from carrying on and perpetrating religious and national origin discrimination against the plaintiffs. The plaintiffs have also requested that this Court order the defendants to establish and organize a school at or near the Deerfield Hutterite Colony. While the plaintiffs' arguments are interesting and appealing, the arguments fall short of the mark. The relief which the plaintiffs seek is, therefore, denied.

The plaintiffs, pursuant to S.D.C.L. 13-23-9 (1975)¹, have requested the Ipswich Board of Education to provide funds to establish a school and a teacher at or near the Deerfield Hutterite Colony. The Board of Education, however, has refused to establish such a school for numerous reasons. The plaintiffs are claiming that, after the facade has been cleared away, the real reason for the Ipswich Board of Education's refusal to establish the requested school is discrimination based on the Hutterites' religious beliefs and national origin.

The plaintiffs have proceeded under four legal theories. The first three theories allege discrimination in violation of 42 U.S.C. Section 1983 (1976)², 42 U.S.C. Section 2000d (1976)³ and 20 U.S.C. Section 1703 (1976)⁴. The fourth legal theory offered by the plaintiffs arises under state law⁵ and it is alleged that the Court may hear this part of the plaintiffs' case under the doctrine of pendent jurisdiction.

This case was tried to the Court in a week-long trial beginning May 1, 1978. At the conclusion of the trial a briefing schedule was set up and it was agreed that counsel would submit written arguments. Both plaintiffs' counsel and defendants' counsel have written extensive and enlightening briefs. Issues have been amply framed and discussed and an abundance of legal authority has been supplied.

HISTORY⁶

Hutterite history had its birth during the 16th Century. It is a history often marred by tragedy. The Hutterites can trace their religious roots to the Anabaptist movement which occurred during the Reformation. Anabaptists were considered radicals whose most conspicuous characteristic was their repudiation of infant baptism. The Hutterites were only one of several groups who made up the Anabaptist movement.

The Hutterites came together during the reign of Charles V, Holy Roman emperor and king of Spain. (It was Charles V who, as Holy Roman emperor, was responsible for the protection of the Roman Catholic Church.) In 1529 an imperial law decreed that those who did not desist from Anabaptism would be given the death penalty. Charles V's brother, Ferdinand, ruler of Austria, decreed that the Anabaptists were to be exterminated by fire and sword.

The Anabaptist group which evolved into the Hutterites originated in the area known as Tyrol located on what is now the Austrian-Italian border. Events soon persuaded the Hutterites that they would be better off practicing their religious beliefs in another region. Because of religious persecution, many followers of the Anabaptist movement left Tyrol for a safer refuge, Moravia. Even there the Hutterites were not free from persecution. Eventually, Jacob Hutter, leader of the Hutterites, and many of his followers were put to death for their beliefs. Hutter suffered a particularly painful death. After being whipped severely, brandy was poured over his lacerated flesh and set aflame.

Religious persecution forced the Hutterites to move many more times over the next two centuries. Finally, they moved to the United States in the 1870's.

The first colony organized in this country was in Dakota Territory in Bon Homme County just west of Yankton. This is a "mother colony" from which many of the other colonies have sprung.

There are now well over 100 Hutterite colonies in existence in the upper great plains region. The location of these colonies is widespread. Colonies exist in North and South Dakota, Minnesota, Montana and Canada. There are presently 35 Hutterite colonies in South Dakota. Located east of Ipswich, South Dakota, Deerfield Colony was recently established. It was founded in 1971.

LANGUAGE AND CUSTOMS

The Hutterites speak Tyrolean German because their roots are found in Tyrol where they originated. The language was carried with them through their many moves in Europe and eventually to this country.

Hutterite Tyrolean German has undergone some changes since the early days of the 16th Century. The language has become Anglicized since the 1870's when the Hutterites moved here. For example, instead of using the German equivalent for airplane, the Tyrolean language has incorporated the actual word used by the English-speaking people. This is true for numerous other words that have entered the language since the Hutterite move to this country.

The uniqueness of the Hutterites' language is, according to plaintiffs' counsel, the pivotal aspect of the plaintiffs' lawsuit. The Hutterites are the only people in the world presently speaking Tyrolean German as their primary language. The difficulties which result are enormous. Obviously, in the context of this case, that fact is significant, particularly when translations are considered. There are few, if any, persons who are not Hutterites who speak Tyrolean German. For all practical purposes the only people available to translate Tyrolean German are the Hutterites. Dr. Cook, a German instructor from Northern State College, testified that he was fluent in numerous dialects of the German language yet was unable to understand most of the conversations which took place in Tyrolean German.

Tyrolean German is the language used by the Hutterites to converse with each other. It is the everyday language of the colony. The use of the English language is not encouraged in the colony, and Tyrolean German is maintained for religious reasons, for reasons of cultural tradition, and to foster a separate sense of identity. As a result the children growing up on the colony speak only Tyrolean German. It is not until they reach the 1st grade level that they have any exposure to the English language.

The Hutterites, like the Amish, rarely continue their education beyond the 8th grade. They have several reasons for not going beyond the 8th grade. Of course, one of the primary reasons is their religious objection to the "advanced" education received in the upper grades. Collaterally, they feel that the constant exposure to worldly goods and ideas is harmful both religiously and in terms of the temptation it offers for people to leave the colonies. The net result is that there are only a few Hutterites who have graduated from college. Levi Tschetter, Sr., who testified at trial is the only Hutterite in the United States who is a qualified schoolteacher.

When the Hutterite children start attending school for the first time, the teacher is unable to communicate directly with them, unless of course they are in Mr. Tschetter's class. In order to overcome the language barriers, the teachers are forced to use the older children in the classroom (students from the 7th or 8th grades) to act as translators. This "system" is utilized in most, if not all, of the Hutterite schools in South Dakota. It is only at the 7th or 8th grade level that the Hutterite students' command of English can be termed proficient and even then the thought process almost always occurs in Tyrolean German.

Tyrolean German is an oral language. It does not exist in a written form. The problems with Tyrolean German are thus multiplied. Not only are the Hutterites the only group to speak Tyrolean German, they are unable to write in their native and dominant language because a written form of the language is non-existent.

The Hutterites' link with the past, their history and sermons, is preserved in High German. Furthermore, the Hutterites conduct their religious services in that language. The Hutterites do not use High German on a regular basis other than in their religious services. They do not use it as a means of written communication. The Hutterites can read and understand the familiar passages of sermons written in High German but few, if any, other than their preachers, have the ability to use it for everyday purposes.

The Hutterites have incorporated into their lifestyle many other traditions and practices which are unique to American culture. One of the basic tenets of their religion is communal living. The Hutterites believe that Christians can gain eternal salvation only if they live their lives on earth sharing everything with their brethren. Thus, it is paramount that an individual live at the colony because it is only through the lifestyle practiced by colony members that eternal salvation may be gained. Worldly goods are to be shunned. Simplicity and living with the bare essentials is applauded. This is one of the reasons that the Hutterites refuse to allow their children to attend town school. In town they are constantly exposed to worldly goods and temptations. The temptations offer a dual...