Florey v. Sioux Falls School Dist. 49-5

• Decision Date: 20 May 1980
• Docket Number: No. 79-1277,79-1277
• Citation: 619 F.2d 1311
• Parties: Roger R. FLOREY, on his own behalf and on behalf of his minor son, Justin B. Florey; David R. Groethe; Marilyn Day; Evelyn Griesse; and Marilyn Fusfield, Appellants, v. SIOUX FALLS SCHOOL DISTRICT 49-5; Richard L. Bohy, President of the Board of Education; Doris Larson, David Brandt, Pam Nelson and John Simko, Jr., Members of the Board of Education and Dr. John W. Harris, Superintendent of Schools and their agents, employees and successors, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1311

619 F.2d 1311

Roger R. FLOREY, on his own behalf and on behalf of his minor son, Justin B. Florey; David R. Groethe Marilyn Day; Evelyn Griesse; and Marilyn Fusfield, Appellants, v. SIOUX FALLS SCHOOL DISTRICT 49-5; Richard L. Bohy, President of the Board of Education; Doris Larson, David Brandt, Pam Nelson and John Simko, Jr., Members of the Board of Education and Dr. John W. Harris, Superintendent of Schools and their agents, employees and successors, Appellees.

No. 79-1277.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 11, 1979.

Decided April 22, 1980.

Rehearing and Rehearing En Banc Denied May 20, 1980.

Stephen L. Pevar, Regional Counsel, American Civil Liberties Union, Denver, Colo., for appellants.

Deming Smith and Robert E. Hayes, Davenport, Evans, Hurwitz & Smith, Sioux Falls, S. D., for appellees; Michael F. Pieplow, Sioux Falls, S. D., on brief.

Gaylen J. Byker, George Wilson McKeag and Gregory M. Harvey, Philadelphia, Pa., on brief, for amicus, United Presbyterian Church.

Robert Senghas, Executive Vice President, Unitarian Universalist Association, Boston, Mass., on brief, for amicus, Unitarian Universalist Association.

Martin B. Cowan, Jeffrey P. Sinensky and Richard A. Weisz, New York City, on

brief, for amicus, National Jewish Commission, et al.

Marc D. Stern, American Jewish Congress, New York City, on brief, for amicus, American Jewish Congress.

Before HEANEY, ROSS and McMILLIAN, Circuit Judges.

HEANEY, Circuit Judge.

I.

In response to complaints that public school Christmas assemblies in 1977 and prior years constituted religious exercises, the School Board of Sioux Falls, South Dakota, set up a citizens' committee to study the relationship between church and state as applied to school functions. ¹ The committee's deliberations, which lasted for several months, culminated in the formulation of a policy statement and set of rules outlining the bounds of permissible school activity. After a public hearing, the School Board adopted the policy statement and rules recommended by the committee. ²

The appellants brought suit for declaratory and injunctive relief, alleging that the policy statement and the rules adopted by the School Board violate the Establishment and Free Exercise Clauses of the First Amendment to the United States Constitution. The district court reviewed the practices of the Sioux Falls School District and found that the 1977 Christmas program that was the subject of the initial complaints "exceeded the boundaries of what is constitutionally permissible under the Establishment Clause." The court also found, however, that programs similar to the 1977 Christmas program would not be permitted under the new School Board guidelines and concluded that the new rules, if properly administered and narrowly construed, would not run afoul of the First Amendment. Florey v. Sioux Falls Sch. Dist. 49-5, 464 F.Supp. 911 (D.S.D.1979).

The appellants' claim is that the School Board policy and rules are unconstitutional both on their face and as applied. At the time of the district court proceeding, however, no holiday season had passed with the rules in effect. Consequently, little evidence was presented on the actual implementation of the rules, and the district court made no findings in that regard. The record does contain some evidence of the interpretation given the rules by school administrators with respect to the Christmas holiday. We may consider that evidence, as well as the district court's observations on the 1977 Christmas program, in discerning the meaning of the rules, but because of the absence of district court findings on their application, we limit our review to the constitutionality of the rules on their face.

II.

The close relationship between religion and American history and culture has frequently been recognized by the Supreme Court of the United States. ³ Nevertheless, the First Amendment to the Constitution explicitly prescribes the relationship between religion and government: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof * * *." ⁴ This apparently straightforward prohibition can rarely be applied to a given situation with ease, however. As the Supreme Court has noted, "total separation (between church and state) is not possible in an absolute sense." Lemon v. Kurtzman, 403 U.S. 602, 614, 91 S.Ct. 2105, 2112, 29 L.Ed.2d 745 (1971). As a result, the Court has developed a three-part test for determining when certain governmental activity falls within the constitutional boundaries:

First, the (activity) must have a secular * * * purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, * * * finally, the (activity) must not foster "an excessive governmental entanglement with religion."

Id. at 612-613, 91 S.Ct. at 2111 (quoting Walz v. Tax Commission, 397 U.S. 664, 674, 90 S.Ct. 1409, 1414, 25 L.Ed.2d 697 (1970)).

A. Purpose.

The appellants' contention that the School Board's adoption of the policy and rules was motivated by religious considerations is unsupportable. The record shows that the citizens' committee was formed and the rules drawn up in response to complaints that Christmas observances in some of the schools in the district contained religious exercises. The motivation behind the rules, therefore, was simply to ensure that no religious exercise was a part of officially sanctioned school activities. This conclusion is supported by the opening words of the policy statement: "It is accepted that no religious belief or non-belief should be promoted by the school district or its employees, and none should be disparaged." The statement goes on to affirmatively declare the purpose behind the rules:

The Sioux Falls School District recognizes that one of its educational goals is to advance the students' knowledge and appreciation of the role that our religious heritage has played in the social, cultural and historical development of civilization.

The express language of the rules also leads to the conclusion that they were not promulgated with the intent to serve a religious purpose. Rule 1 limits observation of holidays to those that have both a religious and a secular basis. Solely religious holidays may not be observed. Rule 3 provides that music, art, literature and drama having a religious theme or basis may be included in the school curriculum only if "presented in a prudent and objective manner and as a traditional part of the cultural and religious heritage of the particular holiday." Similarly, Rule 4 permits the use of religious symbols only as "a teaching aid or resource" and only if "such symbols are displayed as an example of the cultural and religious heritage of the holiday and are temporary in nature." We view the thrust of these rules to be the advancement of the students' knowledge of society's cultural and religious heritage, as well as the provision of an opportunity for students to perform a full range of music, poetry and drama that is likely to be of interest to the students and their audience.

This purpose is quite different from the express and implied intent of the states of New York, Pennsylvania and Maryland in the Supreme Court "School Prayer Cases." First, we emphasize the different character of the activities involved in those cases. The challenged law in Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962), provided for the recitation of a state-authored prayer at the start of each school day. The Supreme Court had no difficulty characterizing this practice as a religious activity:

There can, of course, be no doubt that New York's program of daily classroom invocation of God's blessings as prescribed in the Regents' prayer is a religious activity. It is a solemn avowal of divine faith and supplication for the blessings of the Almighty. The nature of such a prayer has always been religious * * *.

Id. at 424-425, 82 S.Ct. at 1264.

Since prayer, by its very nature, is undeniably a religious exercise, the conclusion is inescapable that the advancement of religious goals was the purpose sought by the school officials in Engel. Indeed, the state officials published the prayer in a document entitled "Statement on Moral and Spiritual Training in the Schools." There can be little doubt that their intent was to promote "spiritual" ends.

Similarly, in Abington School Dist. v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), the Supreme Court emphasized the "pervading religious character of the ceremony" involving daily Bible reading in the schools. Id. at 224, 83 S.Ct. at 1572. Again, when a state intentionally sets up a system that by its essential nature serves a religious function, one can only conclude that the advancement of religion is the desired goal. As explained more fully in the next section of this opinion, however, the programs permitted under the Sioux Falls rules are not unquestionably religious in nature. Thus, we are not required to infer that the Sioux Falls School Board intended to advance religion.

Moreover, in the Supreme Court prayer cases, compulsory religious exercises were imposed on all schools by state law. The Sioux Falls rules, by contrast, do not require the individual schools to have holiday activities; they merely permit the inclusion of certain programs in the curriculum in the event that classroom teachers feel that such programs would enhance their overall instructional plan. The rules are an attempt to delineate the scope of permissible activity within the district, not to mandate a statewide program of religious inculcation.

The appellants argue that the "legislative" history of Rule 1 compels the conclusion that the rule was designed to advance religion. The basis for this argument is a proposed amendment to Rule 1 introduced before both the citizens' committee and the School Board. The proposed amendment would have...