Doe v. South Iron R-1 School Dist.

• Decision Date: 05 September 2006
• Docket Number: No. 4:06CV392 CDP.,4:06CV392 CDP.
• Citation: 453 F.Supp.2d 1093
• Parties: Jane DOE, et al., Plaintiffs, v. SOUTH IRON R-1 SCHOOL DISTRICT, et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

Page 1093

453 F.Supp.2d 1093

Jane DOE, et al., Plaintiffs, v. SOUTH IRON R-1 SCHOOL DISTRICT, et al., Defendants.

No. 4:06CV392 CDP.

United States District Court, E.D. Missouri, Eastern Division.

September 5, 2006.

Anthony E. Rothert, American Civil Liberties Union of Eastern Missouri, St. Louis, MO, Leonard J. Frankel, Frankel and Rubin, Clayton, MO, for Plaintiffs.

David M. Corry, Erik W. Stanley, Liberty Counsel, Lynchburg, VA, for Defendants.

MEMORANDUM AND ORDER

PERRY, District Judge.

The South Iron R-1 School District has allowed the Gideons to pass out Bibles to the fifth grade, during class time and on school property, for several years. After a dispute over the practice arose in 2005, the District was advised by several sources that allowing the Bible distribution during school hours was unconstitutional. It rejected that advice, overruled the decision of its superintendent, and voted to allow the distribution. Bibles were again distributed in October of 2005. Plaintiffs are parents who object to the distribution.

A week before the hearing scheduled on plaintiffs' request for preliminary injunction, the School District considered the issue again and adopted a new policy that would allow outside groups to distribute literature, including Bibles, on school property. The new policy is similar to one that the District had rejected a year before. Plaintiffs argue that the new policy continues the School District's improper establishment of religion, in violation of the First Amendment. The District argues that any restrictions on the Gideons' or other groups' distribution of Bibles to students would require it to engage in viewpoint discrimination in violation of the First Amendment.

It is highly likely that plaintiffs will prevail on their claim that the new policy was introduced for the purpose of promoting Christianity. Defendants cannot rely on qualified immunity where they knew their past actions were unconstitutional. I will issue the preliminary injunction requested by plaintiffs, and I will deny defendants' motion to dismiss. Additionally, I will set this case for a scheduling conference so that a trial on the merits can be held promptly.

Background

Plaintiffs Jane Doe and Lesa Alcorn, parents of children who attend South Iron Elementary School, brought this action to challenge the South Iron R-1 School District's decision to allow members of Gideons International to distribute Bibles to fifth graders during the school day. Alcorn is the mother of two children who attended the School and who received Bibles from the Gideons. Doe is the mother of two children who attend the School but have yet to reach the fifth grade. Plaintiffs allege violations of the First Amendment and the Missouri Constitution, and request declaratory and injunctive relief as well as nominal damages.

The District has for some time allowed members of Gideons International, a self-described "missionary arm of the [Christian] church," to come into the School and distribute Christian Bibles to fifth graders during class time. In early 2005, Homer Lewis, then-superintendent of the District, decided to stop this practice because he believed it violated the Establishment Clause. At the District's Board of Education meeting on February 7, 2005, a representative of the local Ministerial Alliance asked the Board to reconsider Lewis' decision. Lewis explained, to the Board that he believed the distribution of Bibles was illegal based on information he had learned during meetings over the previous summer and on advice he had received from the District's attorney and the District's insurance company. He further stated that if the Board wanted to allow the distribution of Bibles at school, it should adopt an "open forum" policy that would not allow discrimination against any organization. The Board did not approve the suggested open forum policy, but instead voted to "pretend this meeting never happened, and to continue to allow the Gideons to distribute Bibles as we have done in the past."

The Bible distribution was again discussed by the Board at a September 6, 2005 meeting. The Board discussed alternative arrangements, such as letting the students distribute the Bibles. The Gideons, however, insisted that they be present to distribute the Bibles. The Board then voted to allow the Gideons to come into the school that fall and distribute Bibles. Shortly after this meeting, Superintendent Lewis submitted his letter of resignation, effective at the end of the school year, indicating that he felt the Board was "headed down a path that is both illegal and costly" to the District.

On October 4, 2005, the principal of South Iron Elementary School, Shirley Beisner, accompanied two members of the Gideons Association to the fifth grade classrooms, where the Gideons made a presentation and then distributed the Bibles to the students. The distribution took place at 2:30 p.m. during a school day, and attendance was mandatory.

This action was filed on February 28, 2006. The lawsuit was discussed at Board meetings the next two months. At the April 3, 2006 meeting, the president of the Board, Jim Skaggs, moved to rescind the motion allowing the Gideons to distribute Bibles. This motion failed. At the May 1, 2006 meeting the District's attorney reported on the refusal of the District's insurer to represent the District in the lawsuit, and he again advised the Board that allowing the Bible distribution during instructional time violated the federal and state constitutions. The Board took no action to change the policy.

As reflected in my earlier orders, defendants did not respond to this lawsuit in a timely manner, but eventually they retained new counsel and filed a motion to dismiss. After defendants entered the case, I set plaintiffs' motion for preliminary injunction for hearing on August 17, 2006, which was the first day of the new school year. Two days before the hearing defendants filed a reply brief related to their pending motion to dismiss, and in that brief they indicated that on August 7 2006, the District had adopted a new policy. Defendants argue that the need for injunctive relief is now moot. Plaintiffs urge' that injunctive relief is still necessary.

The new policy allows outside groups to distribute printed material to students, subject to certain conditions. The policy requires any group wishing to distribute materials to provide the materials to the Superintendent 48 hours before the requested time of distribution; if the Superintendent does not respond within 48 hours then the materials may be distributed. Distribution will be either directly in front of the administrative offices or in the cafeteria, and the literature may be distributed either before or after the school day, before or after classes, or during lunch time. All requests will be approved unless the material is libelous or violates law, is obscene, advertises products or services for sale, endorses a candidate for public office, promotes alcohol, tobacco, drugs or other illegal activity, or is likely to cause substantial disruption to the school.

The policy provides for appeals to be submitted in writing to the Board of Education, for appeals to be heard at the next regularly scheduled Board meeting, and for the Board to provide its decision within five days of that hearing.

The policy also provides that "No student may in any way be compelled or coerced to accept any materials being distributed by any person distributing such materials or by any school official." It also provides that it does not apply to students who may wish to distribute printed materials to fellow students.

Discussion

At the hearing plaintiffs' counsel argued that injunctive relief is still necessary, and asked the court to enjoin defendants from distributing Bibles or allowing others to do so on school property during the school day to elementary school students. Defendants argued that the new policy is constitutional, and urged that injunctive relief of any sort is now moot. The last-minute change in policy, coupled with the lack of any significant factual record, confuses the issues in this case. Except for the briefs filed just before the hearing, all the briefs focus on the past practice and not on the new policy. Additionally, neither party presented evidence other than the minutes of the School Board meetings. Both parties have relied on the School Board minutes, and both sides agree that it is appropriate for me to consider the issues in light of the factual background revealed in the minutes. They also agree that the issues before me are largely legal issues. The issues presented by the motion for preliminary injunction and the motion to dismiss are, of course, intertwined, and so I will discuss them together.

The Board's Past Actions

Defendants seek dismissal based on qualified immunity, and argue that their past actions do not violate any clearly established constitutional rights of the plaintiffs. Qualified immunity protects government officials from suit unless their conduct violates a clearly established constitutional right of which a reasonable person in the defendant's position would have known. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The purpose of the doctrine is to "allow public officers to carry out their duties as they believe are correct and consistent with good public policy." Anderson v. Larson, 327 F.3d 762, 769 (8th Cir.2003)(quoting Sparr v. Ward, 306 F.3d 589, 593 (8th Cir.2002)).

The Establishment Clause of the First Amendment "mandates governmental neutrality between religion and religion and between religion and nonreligion." McCreary County v. American Civil Liberties Union, 545 U.S. 844, 125 S.Ct. 2722, 2733, 162 L.Ed.2d 729 (2005). Numerous cases have held that distribution of Gideon Bibles to elementary school students on school property and during school hours violates the Establishment Clause. See ...