Elbe v. Yankton Independent School Dist. No. 1, 1

• Decision Date: 18 August 1983
• Docket Number: No. 32-2,No. 49-5,No. 82-2094,No. 1,1,49-5,32-2,82-2094
• Citation: 714 F.2d 848
• Parties: 13 Ed. Law Rep. 27 Oswald F. ELBE, Elmo Christensen, James L. Cope, James A. Fravel, Jr., Laird P. Gillem, William H. Harris, Howard Hermanson, C.R. Kratz, John W. Mitchell, Fletcher C. Nelson, Don Rasmussen, Lloyd K. Salisbury, Marvin J. Scott, J. Howard Snyder, John Sprecher, and Robert C. Swanson, Appellants, v. YANKTON INDEPENDENT SCHOOL DISTRICT NO. 1; Arvin Burkhardt, Don Bierle, Rev. Harold Hiemstra, Mary Alice Halverson and Robert Weverstad as members of the School Board of the Yankton Independent School District; Sioux Falls Independent School District; Richard Bohy, Doris Larson, David Brandt, Pam Nelson and John Simko, Jr. as members of the School Board of the Sioux Falls Independent School District; Pierre School District; Patricia Adam, Peggy Cruse, Howard Hutchings, Richard Schoessler and Gary Snow, as members of the School Board of the Pierre School Dist., and Dan Naughton; Barbara Naughton; James W. Fitzgibbons and Rose Clare Fitzgibbons, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 848

714 F.2d 848

13 Ed. Law Rep. 27

Oswald F. ELBE, Elmo Christensen, James L. Cope, James A Fravel, Jr., Laird P. Gillem, William H. Harris, Howard Hermanson, C.R. Kratz, John W. Mitchell, Fletcher C. Nelson Don Rasmussen, Lloyd K. Salisbury, Marvin J. Scott, J Howard Snyder, John Sprecher, and Robert C. Swanson, Appellants, v. YANKTON INDEPENDENT SCHOOL DISTRICT NO. 1; Arvin Burkhardt Don Bierle, Rev. Harold Hiemstra, Mary Alice Halverson and Robert Weverstad as members of the School Board of the Yankton Independent School District No. 1; Sioux Falls Independent School District No. 49-5; Richard Bohy, Doris Larson, David Brandt, Pam Nelson and John Simko, Jr. as members of the School Board of the Sioux Falls Independent School District No. 49-5; Pierre School District No. 32-2; Patricia Adam, Peggy Cruse, Howard Hutchings, Richard Schoessler and Gary Snow, as members of the School Board of the Pierre School Dist. No. 32-2, and Dan Naughton; Barbara Naughton; James W. Fitzgibbons and Rose Clare Fitzgibbons, Appellees.

No. 82-2094.

United States Court of Appeals, Eighth Circuit.

Submitted May 19, 1983.

Decided Aug. 18, 1983.

Gerald L. Reade, Brady, Kabeiseman, Reade, Abbott & Johnson, Yankton, S.D., for appellee Yankton Ind. School Dist. No. 1. et al.

Robert D. Hofer, Riter, Mayer, Hofer & Riter, Pierre, S.D., for appellee Pierre School Dist. No. 32-2.

Jeremiah D. Murphy, Boyce, Murphy, McDowell & Greenfield, Sioux Falls, S.D., for intervenor-defendants-appellees.

Lee Boothby, Berrien Springs, Mich., Marvin Bailin, Christopherson, Bailin & Anderson, Sioux Falls, S.D., for appellants.

Deming Smith, Charles D. Gullickson, Regina M. Shields, Davenport, Evans, Hurwitz & Smith, Sioux Falls, S.D., for appellee Sioux Falls School Dist. No. 49-5.

Before ROSS, ARNOLD and JOHN R. GIBSON, Circuit Judges.

ROSS, Circuit Judge.

In 1980 plaintiffs-appellants brought an action challenging the constitutionality of the South Dakota textbook loan statutes on the grounds that the statutes on their face and as applied by the defendant-appellee school districts violated the Establishment Clause of the First Amendment to the United States Constitution and the South Dakota Constitution. On August 13, 1982, after various briefs, affidavits, admissions, and answers to interrogatories were filed by the parties, the district court ¹ granted defendants' motion for summary judgment under Fed.R.Civ.P. 56, and dismissed appellants' pendent state law claims. Appellants argue that the district court erred in (1) finding the statutes constitutional on their face, (2) failing to adequately consider the federal constitutional challenge to the statutes as applied or administered, and (3) dismissing the appellants' pendent claims.

I.

Appellate review of a grant of summary judgment under Rule 56 is governed by the same standard as that applied by the district court. That is, we must view the facts (i.e., the pleadings, affidavits, admissions, answers to interrogatories, and depositions) in the light most favorable to the party against whom the motion is made, giving that party the benefit of all inferences that may be reasonably drawn therefrom, to determine if the moving party has clearly shown that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Snell v. United States, 680 F.2d 545, 547 (8th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 344, 74 L.Ed.2d 384 (1982); Diebold v. Civil Service Comm'n, 611 F.2d 697, 699-700 (8th Cir.1979); Fed.R.Civ.P. 56(c). Allegations in a complaint, which are not contested by the moving party by affidavit or other evidentiary materials, are assumed true. Kelsey v. Ewing, 652 F.2d 4, 5 (8th Cir.1981). Rule 56(e), which provides, in part, that when a motion for summary judgment is supported by affidavit or otherwise under this rule the opposing party may not rest on his pleadings, does not alter these basic principles or the movant's burden of proof. Stifel, Nicolaus & Co. v. Dain, Kalman & Quail, 578 F.2d 1256, 1263 (8th Cir.1978). What is intended by the Rule is merely that if the moving party submits evidentiary material which convincingly shows that there is no genuine issue of material fact, the opposing party must come forward with specific facts that demonstrate a genuine issue for trial. See Beckers v. International Snowmobile Industry Ass'n, 581 F.2d 1308, 1311 (8th Cir.1978), cert. denied, 440 U.S. 986, 99 S.Ct. 1801, 60 L.Ed.2d 248 (1979); Stifel, Nicolaus & Co., supra, 578 F.2d at 1263.

II.

As most recently stated by the Supreme Court in Mueller v. Allen, --- U.S. ----, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983), review of Establishment Clause challenges are generally guided by a three-part test: " 'First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion * * *; finally, the statute must not foster "an excessive government entanglement with religion." ' " Id. at ----, 103 S.Ct. at 3066 (quoting Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971)).

The statutes challenged in the present case provide as follows:

It is declared to be the policy of this state that the common good and general welfare of the state are promoted by an educated and enlightened citizenry and, to assist in achieving those goals and in accord with the child benefit doctrine, there shall be loaned without charge to all persons ages five through nineteen such nonsectarian textbooks and tax-related workbooks designed for individual use as are normally furnished by the school boards of the several public school districts of this state to the students enrolled in the public schools of such respective districts. It is further declared to be the policy of this state that, in the loaning of such materials to such persons, the state shall be neutral to and between all such persons.

S.D. Codified Laws Ann. § 13-34-16.2 (1982).

To implement § 13-34-16.2, each public school board shall loan without charge to all persons ages five through nineteen who are either enrolled in a public school, or in a school supervised in accord with chapter 13-4, or who are engaged in a course of instruction pursuant to § 13-27-3, within the school district under such board's jurisdiction, or who are residing in such district but are not enrolled in any such school or engaged in any such course of instruction, such nonsectarian textbooks and text-related workbooks designed for individual use as are normally furnished by such school board to individual students enrolled in the public schools of the district under such board's jurisdiction. All such textbooks and text-related workbooks shall be approved by the respective school boards.

Id. at § 13-34-16.3.

Appellants do not seriously contend that the textbook loan statutes lack a legitimate secular purpose. Instead appellants generally maintain that on its face, the statute has the primary effect of advancing religion by providing public aid to church-related schools and that it fosters excessive involvement between the state and church in religious matters. Based on the Supreme Court's decisions in Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975) and Board of Educ. v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), upholding the constitutionality of similar textbook loan statutes, the district court granted summary judgment to appellees on the facial challenge to the South Dakota textbook loan statutes. We agree that Meek and Allen are largely controlling and that appellees are entitled to a summary judgment on their facial challenge as a matter of law.

Appellants would distinguish these decisions and the related decision in Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977) (upholding Ohio textbook loan statute in part) on the grounds that unlike the statutes in those cases: (1) the South Dakota statutes refer to "nonsectarian" books rather than "secular" books; (2) the South Dakota statutes do not require the same textbooks as those used in public schools; and (3) the South Dakota statute does not restrict text-related workbooks to those which are reusable. The appellants also allege that excessive entanglement between the sectarian schools and the state results from the statutory requirement that school districts approve materials to be loaned.

The use of the term "nonsectarian" textbooks rather than "secular" textbooks in the South Dakota textbook loan statutes is somewhat disturbing and indicates apparent semantic carelessness by the South Dakota Legislature. However, we do not believe that the use of this term is fatal to the constitutionality of the statutes under the Supreme Court's decisions in Board of Educ. v. Allen, supra, and Meek v. Pittenger, supra. It should be noted that neither the New York statute in Allen nor the Pennsylvania statute in Meek employed the term "secular" textbooks. Instead, it would appear that the crucial limitation on the nature of textbooks which could be loaned under the statutes was that books loaned were "textbooks which are designated for use in any public elementary or secondary schools of the state or are approved by any boards of education." Board of Educ. v. Allen, supra, 392 U.S. at 239, 88 S.Ct. at 1924, or textbooks "which are acceptable for use in any public, elementary, or secondary school of the Commonwealth." Meek v. Pittenger, supra, 421 U.S. at 354, 95 S.Ct. at 1757. In the absence of evidence in the record to the contrary, the Court assumed based on a literal reading of the statute "that the books loaned to students are books that are not unsuitable for use in the public schools because of religious content." Board of Educ. v. Allen, supra, 392 U.S. at 245, 88 S.Ct. at 1927. See Meek v. Pittenger, supra, 421 U.S. at 361-62, 95 S.Ct. at 1761 (plurality opinion). As the Court subsequently...