Peck v. Upshur County Bd. of Educ.

• Decision Date: 14 August 1998
• Docket Number: No. 96-2544,96-2544
• Citation: 155 F.3d 274
• Parties: 129 Ed. Law Rep. 77 Mary Pat PECK; Jeannie O'Halloran; Thomas Lynch, Plaintiffs-Appellants, Grace Glaser Lynch; James Lockhart, Plaintiffs, v. UPSHUR COUNTY BOARD OF EDUCATION; Richard G. Hoover, in his official capacity as superintendent of Upshur County Schools, Defendants-Appellees. Americans United for Separation of Church and State; the American Jewish Congress; Texas Justice Foundation, Amici Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 274

155 F.3d 274

129 Ed. Law Rep. 77

Mary Pat PECK; Jeannie O'Halloran; Thomas Lynch, Plaintiffs-Appellants, Grace Glaser Lynch; James Lockhart, Plaintiffs, v. UPSHUR COUNTY BOARD OF EDUCATION; Richard G. Hoover, in his

official capacity as superintendent of Upshur

County Schools, Defendants-Appellees.

Americans United for Separation of Church and State; the

American Jewish Congress; Texas Justice

Foundation, Amici Curiae.

No. 96-2544.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 2, 1997.

Decided Aug. 14, 1998.

ARGUED: Robert Milton Bastress, Jr., Morgantown, West Virginia, for Appellants. James Jeffrey Knicely, Knicely & Cotorceanu, P.C., Williamsburg, Virginia, for Appellees. ON BRIEF: Allan N. Karlin, Allan N. Karlin & Associates, Morgantown, West Virginia, for Appellants. Professor Gary C. Leedes, T.C. Williams School of Law, University of Richmond, Richmond, Virginia; Michael D. Lorensen, Bowles, Rice, McDavid, Graff & Love, Martinsburg, West Virginia, for Appellees. Steven K. Green, Julie A. Segal, Americans United For Separation of Church and State, Washington, DC, for Amicus Curiae Americans United. Marc D. Stern, American Jewish Congress, New York City, for Amicus Curiae Congress. Eric Bohnet, Midland, Texas; Gregory S. Coleman, Shelton M. Vaughan, Robert W. Higgason, Weil, Gotshal & Manges, L.L.P., Houston, Texas, for Amicus Curiae Foundation.

Before LUTTIG and MOTZ, Circuit Judges, and MICHAEL, Senior United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed in part and reversed in part by published opinion. Judge LUTTIG wrote the opinion, in which Senior Judge MICHAEL joined. Judge DIANA GRIBBON MOTZ wrote an opinion concurring in part and dissenting in part.

OPINION

LUTTIG, Circuit Judge:

The Upshur County West Virginia School Board has, for some years now, allowed non-student, private groups such as Little League, Boy Scouts, Girl Scouts, 4-H, and the Women's Christian Temperance Union to distribute literature in the Upshur County public schools. In accordance with written policy, however, the Board has denied groups wishing to distribute religious or political materials the same access to the County's schools. Three years ago, in response to a request by a local religious group, and in an attempt to blunt the Board's discrimination against private religious and political speech, the Board interpreted its written policy so as to allow the passive distribution of religious (and political) material in the schools. Pursuant to this new policy, the Board thereafter designated a single day during the year on which private religious groups can make Bibles or other religious material available on tables set up in accessible locations, such as halls or libraries, in the Upshur County schools. The table displays are set up and stocked entirely by private citizens who are not affiliated in any way with the schools, and the tables bear signs informing students only that they should feel free to take the Bibles or other material offered. Pursuant to district court injunction, the tables also bear a disclaimer, renouncing any sponsorship or endorsement by the school. No one is allowed to enter classrooms to announce the availability of the religious or political material, or to stand at the tables to encourage or pressure students to take the material. No school announcement or assembly is allowed to mark the availability of the Bibles or any other religious or political material. School principals are charged with ensuring strict compliance with these guidelines.

Upon challenge by appellants, the district court held that the School Board could, for one day during the year, permit the table displays without violating the Establishment Clause because the Board has a neutral policy of allowing religious and nonreligious groups alike to set up such displays in the schools, and because the displays do not constitute an impermissible endorsement of religion. Except as to one aspect of the district court's judgment discussed below, we affirm.

I.

A.

The Upshur County School Board has historically allowed nonstudent, private groups, such as Little League, Boy Scouts, Girl Scouts, 4-H, and the Women's Christian Temperance Union, to distribute literature in the schools, although there has been no formal, written policy to this effect. Superintendent Lynn E. Westfall or school activity personnel "review materials before they are made available to be distributed to students," J.A. at 96, 104, 136, to ensure that the materials are age "appropriate" and not "harmful to children" and that the materials will not cause a "[m]ajor disruption" of the school environment. J.A. at 117-18, 123, 136, 160-61, 163-64, 195. In response to an incident in which members of the Gideons "went into the classroom, talked to the students, and then handed Bibles to the students," J.A. at 122-23, 102, however, the School Board adopted a policy in 1989 prohibiting the "distribution" of religious or political advocacy materials to students in the County's schools. The 1989 Policy states in relevant part:

Since the public schools must remain neutral concerning matters of particular religious and political beliefs, the Upshur County Board of Education hereby affirms that the following types of materials shall not be distributed to students in the Upshur County Schools:

1. Materials advocating a particular religion, denomination, or the beliefs thereof;

2. Materials advocating for views of a particular political party or candidate for any elective office.

J.A. at 330.

During the summer of 1994, two state senators, a local businessman, and Ed McDaniels, a local teacher and minister, approached Superintendent Westfall to ask whether the Board could legally allow religious groups to set up "a table in a predetermined location [in an Upshur County school] with religious material upon it [accessible] to students, where students [could] freely come by and pick up" the materials. J.A. at 182. McDaniels and his supporters believed that then-recent Supreme Court decisions, including Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993); Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990); and Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981), confirmed that, pursuant to a neutral practice of allowing the distribution of literature in the schools, the Board could allow McDaniels' group to make Bibles and other religious material available to students without violating the Establishment Clause and that, in fact, to deny the group the opportunity to do so would affirmatively discriminate against religious speech.

In response to the group's request, Westfall sought legal counsel and was advised that there might be Establishment Clause concerns if the Board were to allow personal distribution of Bibles and other religious materials, but that "[t]here was neither statutory nor case law specifically prohibiting" the Board from allowing religious groups to passively make Bibles or other religious material available in the manner proposed. J.A. at 102-03, 224, 243, 302. Westfall informed the other members of the Upshur County School Board of this advice, J.A. at 302, and also of the fact that some of McDaniels' supporters were considering pursuing in court their claim that the Board's policy of forbidding private religious speech impermissibly discriminated against such speech. J.A. at 296.

At its December 6, 1994, meeting, the School Board considered McDaniels' request that religious groups be allowed to make Bibles available to Upshur County students one day during the year at predetermined locations in the schools, framing its inquiry as whether McDaniels' request could be accommodated under the language of the existing 1989 Policy. J.A. at 240, 243, 251-52, 268-69. After hearing testimony in support of McDaniels' request, the Board interpreted "distribute" in its 1989 Policy to mean "to hand to, to pass out," J.A. at 21, and distinguished such distribution from passively making materials available for students to pick up if they wished. Thus, the Board determined that the 1989 Policy did not prohibit private groups from making Bibles and other religious material available to students on tables located in the schools. Accordingly, the Board "instructed the Superintendent to meet with Mr. McDaniels to arrange a day for making Bibles available to students of Upshur County schools." J.A. at 330.

Superintendent Westfall met with McDaniels on February 14, 1995, to select the day on which McDaniels would be allowed to make Bibles available and to establish the guidelines that McDaniels and his group were to follow. Because the Board was sensitive to possible Establishment Clause concerns, Westfall imposed a number of restrictions on the manner in which the Bibles could be made available. The private groups making the Bibles available were to be responsible for setting up the tables on which the Bibles would be displayed. J.A. at 24. Bibles not picked up by students during the day were to be removed at the end of that day by the groups responsible for the display. J.A. at 24. No teacher or other school employee was to participate in these or any other custodial activity relating to the Bible displays. J.A. at 108. The tables were to be placed in a location in each school (such as a library or hall) that was accessible to students, J.A. at 108, 374, "where students normally congregate and would not feel they were being watched or pressured into taking a Bible," J.A. at 374 (district court op.); there was to be a sign on each table that read "Please feel free to take one," J.A. at 24, 94; and the source of the Bibles was not to be identified, J.A. at 95. No one was to be allowed to stand at the table to encourage or pressure students to take Bibles,...