R.J.J. by Johnson v. Shineman, WD

• Decision Date: 20 September 1983
• Docket Number: No. WD,WD
• Parties: 14 Ed. Law Rep. 398 R.J.J., an Infant B/N/F and Natural Father, Ross E. JOHNSON, Ross E. Johnson, Appellants, v. Gerald SHINEMAN, Max Greever, Larry Rathbun and Laurie Rathbun, Respondents. 34046.
• Court: Missouri Court of Appeals

Page 910

658 S.W.2d 910

14 Ed. Law Rep. 398

R.J.J., an Infant B/N/F and Natural Father, Ross E. JOHNSON, Ross E. Johnson, Appellants, v. Gerald SHINEMAN, Max Greever, Larry Rathbun and Laurie

Rathbun, Respondents.

No. WD 34046.

Missouri Court of Appeals,

Western District.

Sept. 20, 1983.

Theodore M. Kranitz, Kranitz & Kranitz, St. Joseph, for appellants.

Wendell E. Koerner, Jr., Brown, Douglas & Brown, St. Joseph, for respondents.

Before CLARK, P.J., and PRITCHARD and LOWENSTEIN, JJ.

CLARK, Judge.

Appellant Johnson, a high school student, brought suit to correct an allegedly erroneous failing grade assessed for one quarter in music studies, and for damages. In a bench trial, the court found for defendants and Johnson appeals. Affirmed.

Certain relevant facts were not in dispute. Johnson was a senior at Stanberry High School during the academic year 1980 to 1981. He was enrolled in music courses of band and chorus, the former being taught by respondent Larry Rathbun and the latter by respondent Laurie Rathbun. Respondent Shineman is the superintendent of schools and respondent Greever is the principal of the junior-senior high school.

Among the activities related to the courses in music instruction, the Rathbuns had scheduled a performance by the school choir at a local Stanberry church the evening of December 17, 1980 and a Christmas program by the band and chorus for the school December 18, 1980. On the first day of the school term, students had been informed by the Rathbuns that no one would be excused from a performance unless by reason of a death in the immediate family or by means of a request made to the Rathbuns before the concert or performance. Attendance at performances was a requirement for completing the course of study.

In August, 1980, Johnson and his family were invited to spend Christmas with relatives in Hawaii and airline tickets were purchased and reservations were made in August for departure December 17, 1980. Johnson attended his classes, including band and chorus, through December 16 but he left on the Hawaii trip the following day. He did not appear or participate in the church program by the chorus December 17 nor the school program December 18. By reason of unexcused absence, Johnson was assessed an F grade for the second half-semester in band and chorus.

The evidence was disputed as to whether or not Johnson informed either of the Rathbuns in advance of his expected trip to Hawaii and the fact that he would not attend the performances of the chorus and band. The trial court concluded he did not. Johnson makes no claim the record lacks evidentiary support for this finding which turns on the credibility of the witnesses. We are therefore bound by the express finding by the trial court that Johnson's absence was without advance notice and without excuse given for the absence by either of the Rathbuns.

The primary basis urged by Johnson in his petition for equitable relief to correct the grade in music and his consequent class standing was the contention that compulsory attendance by chorus and band members at programs oriented to the Christmas season amounts to a religious ceremony violative of provisions in the United States and Missouri Constitutions concerning separation of church and state. The first point advanced by Johnson on this appeal related to the adverse decision by the trial court on this issue and reads as follows:

"The trial court erred in its finding that the Christmas concert was secular in nature and did not serve to advance or inhibit religion in violation of constitutional provisions, because the evidence established the unguided religious nature of the program, and the trial court should have sustained plaintiffs' position on this matter and entered a decree in their favor on Count One of the petition."

This purported statement of the point does not comply with Rule 84.04(d) because it does not indicate wherein and why the decision by the trial court is claimed to be erroneous. The most which can be extracted from the statement of the point of alleged error is a claim that the evidence lacks substance to support or is contrary to the finding by the court that the Christmas concert was secular and therefore advanced no religious objective. In the argument which follows, however, appellants make no effort to demonstrate why the court's finding purportedly errs in deciding the fact questions. Instead, appellants assume the religious content and objective of the music program and then advance a constitutional claim that the error of the trial court lay in approving "the giving of a failing grade because of non-appearance of a student at a religious function." The point fails because the record contains substantial evidence to support the conclusion by the trial court that the programs in question were secular and without religious impact, objective or interplay.

Quite apparently, appellants' original complaint and the answer by defendants brought before the trial court the threshold question of whether Christmas programs by the school were secular or religious and, if the latter, whether they did or did not advance some doctrine of faith. The issue was one essentially of fact turning on evidence as to the content of the programs and the circumstances of performance. The evidence fully supports the finding by the trial court that the programs were secular. The concerts consisted entirely of music and, in the case of the school band, some numbers were without vocal renditions. There were no prayers, no pageantry and no clergy participated. The selections did include Christmas carols associated with the season, but these were interspersed with other seasonal numbers such as Jingle Bells.

Apparently, respondents base their assumption that the programs were religious solely on the fact that Christmas carols are oriented in content to Christian belief. Appellants cite no case, and independent research has disclosed none, which condemn a public school music program as a religious observance violative of the establishment clause of the Constitution merely because music having a religious theme is included in the selections performed. Respondents cite Florey v. Sioux Falls School Dist. 49-5, 619 F.2d 1311 (8th Cir.1980), cert. denied 449 U.S. 987, 101 S.Ct. 409, 66 L.Ed.2d 251 (1980), a case which reviewed guidelines adopted by the school district to delineate the extent which programs observing holidays of religious and secular significance could include material with religious content. The court there held that the mere fact a program of secular music education included religious music did not alone brand the activity as violative of the constitutional directive for separation of church and state. That case expressly dealt with programs of Christmas carols, among other subjects.

We conclude that appellants' assumption as to the religious character of the December 17 and 18 programs is without basis and that the trial court's finding as to the secular nature of the activities was correct. Although this determination of the fact question is sufficient to rule the first point as set out in appellants' statement of the point, the divergence between that statement...