Doe v. South Iron R-1 School Dist.

• Decision Date: 21 August 2007
• Docket Number: No. 06-3373.,06-3373.
• Citation: 498 F.3d 878
• Parties: Jane DOE, et al., Plaintiffs-Appellees, v. SOUTH IRON R-1 SCHOOL DISTRICT, et al., Defendants-Appellants. Americans United For Separation of Church and State, Amicus on Behalf of Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

498 F.3d 878

Jane DOE, et al., Plaintiffs-Appellees, v. SOUTH IRON R-1 SCHOOL DISTRICT, et al., Defendants-Appellants Americans United For Separation of Church and State, Amicus on Behalf of Appellees.

No. 06-3373.

United States Court of Appeals, Eighth Circuit.

Submitted: April 12, 2007.

Filed: August 21, 2007.

Erik W. Stanley, argued, Lynchburg, VA, Mary M. McAliser, Lynchburg, VA, and Mathew D. Staver and Anita L. Staver, Maitland, FL, on the brief, for appellant.

Leonard J. Frankel, argued, Anthony E. Rothert, on the brief, American Civil Liberties Union of Eastern Missouri, St. Louis, MO, for appellee.

Before LOKEN, Chief Judge, BYE and RILEY, Circuit Judges.

LOKEN, Chief Judge.

In this First Amendment Establishment Clause case, the South Iron R-1 School District, the members of its Board of Education, and certain school officials (collectively, the District) appeal the district court's¹ grant of a preliminary injunction barring the District from "allowing distribution of Bibles to elementary school children on school property at any time during the school day." Though our appellate jurisdiction is normally limited to reviewing final orders, we may review interlocutory orders "granting, continuing, modifying, refusing or dissolving injunctions." 28 U.S.C. § 1292(a)(1). On appeal, the parties urge us to take up issues going to the merits of the dispute that go far beyond the preliminary injunction under review. We decline to do so. We review the grant of a preliminary injunction for abuse of discretion, giving "deference to the discretion of the District Court." Purcell v. Gonzalez, ___ U.S. ___, 127 S.Ct. 5, 7, 166 L.Ed.2d 1 (2006); see McCreary County v. ACLU, 545 U.S. 844, 867, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005); Heartland Acad. Cmty. Church v. Waddle, 335 F.3d 684, 690 (8th Cir.2003). We conclude that the district court did not abuse its discretion in granting the preliminary injunction. Accordingly, we affirm.

I. Background

The preliminary injunction was issued after an expedited briefing and hearing schedule. The agreed record consists of plaintiffs' verified complaint, the minutes of various school board meetings, and the District's written policy entitled "Distribution of Materials and Literature to Students" which it adopted ten days before the preliminary injunction hearing. The full text of that policy is reproduced in Appendix A to this opinion.

In early 2005, District Superintendent M. Homer Lewis decided to discontinue the District's practice of allowing representatives of Gideons International to distribute Bibles to fifth grade students of the South Iron Elementary School in their classrooms during instructional time. Members of the Ministerial Alliance asked the Board of Education to reconsider this decision. At the Board's February 2005 meeting, Superintendent Lewis told the Board members that "four legal sources" including the school's attorney advised that the practice be discontinued. Lewis stated that if the Board wanted to allow the distribution of Bibles at school, an "open forum" policy could be adopted. The Board voted 4-3 "to pretend this meeting never happened, and to continue to allow the Gideons to distribute Bibles as we have done in the past." However, when the ACLU wrote protesting this decision, the Board voted at its March meeting "to delay the Gideons distribution of Bibles" until the school attorney "gives us his determinations."

At the September Board meeting, a representative of the Gideons and two local ministers asked whether the Board would allow the distribution of Gideons Bibles. Superintendent Lewis read letters from the school attorney, the District's insurer, and the ACLU warning that the practice was illegal and could jeopardize the District's insurance coverage. A minister asked whether the Gideons could give Bibles to the children for them to distribute. The Gideons representative advised that Gideons Bibles could not be distributed unless members of the Gideons were present. The Board then voted 4-3 "to allow the Gideons to come in and distribute Bibles to the 5th graders." The school attorney wrote the Board urging it to reconsider this decision. Superintendent Lewis resigned later that month, citing this issue. The Board nonetheless declined to reconsider the issue at its October 3, 2005, meeting. On the afternoon of October 4, a school day, two representatives of the Gideons came to the elementary school and distributed Gideons Bibles to fifth graders. The school principal accompanied the Gideons to the two fifth grade classrooms and observed the distribution.

Plaintiffs, parents of children who attended or will attend fifth grade in the District, filed this suit in February 2006 alleging a violation of the Establishment Clause and seeking declaratory and injunctive relief preventing the District "from further endorsement of religion." At the March 2006 Board meeting, the Board's President announced, "there was not one board member who is opposed to Bibles being placed in the school." At the April 2006 meeting, the Board defeated, by a 3-3-1 vote, a motion "to rescind the motion allowing the Gideons to distribute Bibles and adopt a new policy to allow the students to distribute the Bibles." At the May meeting, the attorney for the District's insurer advised the Board that the insurer would not defend the lawsuit because allowing the Gideons to distribute Bibles "during instructional time" is an intentional violation of the Establishment Clause and the Missouri Constitution.

On June 28, 2006, with all defendants in default in the lawsuit, plaintiffs moved for an expedited hearing and a preliminary injunction. The next day, present counsel for the District moved for leave to appear pro hac vice. The district court granted the motion, scheduled a preliminary injunction hearing for July 27, and warned that the hearing "may be converted into a hearing for a default judgment and permanent injunction." On July 11 and 12, the District filed motions to dismiss and to continue the preliminary injunction hearing, and plaintiffs filed a motion for default judgment. The district court continued the hearing to August 17. Two days before that hearing, the District submitted a reply brief arguing that the preliminary injunction should be denied because the District had adopted the written policy on August 7, which obviated the need for injunctive relief.

Following the hearing, the district court denied the District's motion to dismiss and plaintiffs' motion for a default judgment and granted the requested preliminary injunction in a lengthy and thorough Memorandum and Order. Doe v. South Iron R-1 Sch. Dist., 453 F.Supp.2d 1093 (E.D.Mo. 2006). The injunction does not address the District's new policy or prescribe how the District may distribute other "Materials and Literature" to students. Rather, the injunction provides:

Defendants and any persons acting in concert with them are enjoined from distributing or allowing distribution of Bibles to elementary school children on school property at any time during the school day. This injunction shall remain in effect until trial on the merits of the case, or until otherwise ordered by the Court.

In granting the injunction, the district court properly applied the familiar four-factor test in Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109, 114 (8th Cir.1981) (en banc). The court concluded: (1) plaintiffs have shown a substantial likelihood of success on the merits of their claim that the past practice of allowing Gideons representatives to distribute Gideons Bibles to fifth grade students in the classroom, during the school day and with the visible support of school officials, violates the Establishment Clause as construed in Berger v. Rensselaer Cent. Sch. Corp., 982 F.2d 1160 (7th Cir.1993), and other cases; (2) the new policy does not moot the need for injunctive relief because District officials have stated their intention to allow distribution of Bibles to elementary school children during the school day, a practice no Establishment Clause case has upheld, and the policy does not include safeguards guaranteeing government neutrality that were present in cases such as Peck v. Upshur County Bd. of Educ., 155 F.3d 274, 277, 282, (4th Cir.1998), on which the District relied; (3) the District's stated intention to distribute Bibles to all elementary children threatens irreparable harm; (4) the District will not be harmed by a limited preliminary injunction; and (5) the public interest supports an injunction to prevent Establishment Clause violations.

II. Discussion

A. The Injunction Against Past Practices. As the District's new policy was adopted ten days before the preliminary injunction hearing and had never been applied, the district court quite properly focused primarily on the District's prior practice of allowing the Gideons to distribute Gideons Bibles to fifth graders in classrooms during the school day. The court concluded, after a thorough analysis of prior case law, that the practice very likely violated the Establishment Clause. It issued a preliminary injunction limited to prohibiting that practice pending trial on the merits. On appeal, the District raises only a single argument challenging this aspect of the district court's decision. The District argues that, because the injunction compels it to forbid the distribution of Bibles, the injunction "mandates a content-based restriction on speech and is thus invalid." This contention is without merit. As the Seventh Circuit said in rejecting a similar argument in Berger, 982 F.2d at 1165, "it distorts the facts and misconstrues the law."

When government maintains a traditional public forum or creates a limited public forum for debate and expressive activity, any content-based censorship must survive strict judicial scrutiny. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45-46, 103 S.Ct. 948, 74 L.Ed.2d 794 (198...