Rusk v. Crestview Local Schools

• Decision Date: 07 August 2002
• Docket Number: No. 3:01 CV 7239.,3:01 CV 7239.
• Citation: 220 F.Supp.2d 854
• Parties: Steve RUSK, et al., Plaintiffs, v. CRESTVIEW LOCAL SCHOOLS, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

220 F.Supp.2d 854

Steve RUSK, et al., Plaintiffs, v. CRESTVIEW LOCAL SCHOOLS, et al., Defendants.

No. 3:01 CV 7239.

United States District Court, N.D. Ohio, Western Division.

August 7, 2002.

Jillian S. Davis, American Civil Liberties Union of Ohio, Cleveland, OH, Raymond V. Vasvari, Jr., American Civil Liberties Union of Ohio, Cleveland, OH, for plaintiffs.

David K. Smith, Britton McGown Smith Peters & Kalail, Cleveland, OH, for defendants.

David R. Langdon, Cincinnati, OH, for Character Training Institute, movant.

ORDER

CARR, District Judge.

Plaintiff Steve Rusk and his sons, plaintiffs Daniel and David Rusk ("Danny" and "David"), bring this action claiming a violation of the Establishment Clause of the First Amendment to the United States Constitution as incorporated against the states by the Fourteenth Amendment to the Constitution. This court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. Pending are cross motions for summary judgment For the following reasons, plaintiffs' motion for summary judgment shall be granted in part, and defendants' motion shall be denied.

BACKGROUND

Defendants Crestview School District and its Board have a policy permitting non-profit community groups that service children to submit flyers to Crestview Elementary School for teachers subsequently to distribute to the students. Organizations advertising in this way include Little League, the 4-H club, the American Red Cross, and the YMCA. Religious groups may submit flyers on the premise that those leaflets, like the advertisements from other community organizations, publicize specific community activities and do not promote the benefits of their religion. The school principal, Kathy Mollenkopf, scrutinizes all flyers to ensure that they come from non-profit groups and that they do not overtly advocate or entice support for any religious organization.

After Ms. Mollenkopf reviews the flyers, she makes them available to the teachers, who place them in the students' homeroom mailboxes. The children retrieve material from their mailboxes at the end of the school day. While defendants assert that the students may discard the flyers immediately if they wish, neither party makes clear whether the children receive other documents in their mailboxes, such as grade cards or notices for parent-teacher conferences, that they are expected to take home or otherwise keep.

Danny Rusk has attended Crestview Elementary School since the 1997-98 school year when he was in the third grade. Danny was in the seventh grade during the most recent school year. His younger brother David, a first-grader last school-year, currently attends elementary school. The record does not specify the exact grade levels which comprise the elementary facility, however, it is likely that the children attending the school, and therefore receiving flyers pursuant to Crestview's policy, are between the ages of five and twelve.

When Danny was at Crestview Elementary, he occasionally brought home flyers sponsored by religious organizations and publicizing religious activities. David continues to bring home similar advertisements. Their father, plaintiff Steve Rusk believes that the distribution of material containing religious content unconstitutionally facilitates the indoctrination of religion in his children's public elementary school. The record contains two examples of flyers which Rusk finds inappropriate. Neither uses proselytizing language, yet both advertise events at Christian churches that feature religious activities such as Christian fellowship, Bible stories, and "songs that celebrate God's love." Doc. 30 Ex. A at Ex. 2 -3.

In their motion for summary judgment, plaintiffs ask that the school be precluded from issuing "religious material" to elementary school students through the school staff. Doc. 33 at 12. Defendants contend that they have a right to distribute flyers from non-profit community groups, including those that are "religiously-oriented," to elementary school students. In their motion for summary judgment, they ask to be permitted to do so. Doc. 28 at 9.

STANDARD OF REVIEW

The district court must enter summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that U.S. party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Once the burden of production shifts, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is insufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324, 106 S.Ct. 2548.

In deciding the motion for summary judgment, the court will assume the truth of the evidence of the non-moving party, resolve all doubts against the moving party, construe all evidence in the light most favorable to the non-moving party, and draw all reasonable inferences in the non-moving party's favor. Eastman Kodak Co. v. Technical Servs. Inc., 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R.Civ.P. 56(c).

DISCUSSION

Historically, the three-prong test articulated in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) has been a starting point for analyzing the validity of a challenge to governmental activity under the Establishment Clause. The Lemon test asks whether a statute, practice, or policy (1) has a legitimate secular purpose; (2) has a primary effect of advancing or inhibiting religion; and (3) fosters an excessive entanglement between government and religion. Id. at 612-613, 91 S.Ct. 2105.

The Lemon test has attracted criticism due to the lack of explicit language and confusion in applying it to specific scenarios. See, e.g., Board of Educ. v. Grumet, 512 U.S. 687, 719, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994) (noting that "[a]ny test that must deal with widely disparate situations risks being so vague as to be useless," and that "Lemon has, with some justification, been criticized on this score"). Despite this criticism and proposals that a new test replace it, however, Lemon endures. See Doe by Doe v. Beaumont Indep. Sch. Dist., 173 F.3d 274, 302 (5th Cir.1999) (citations omitted).

In response to the questions raised about Lemon, the Supreme Court has, and Justices O'Connor and Kennedy in particular have, proposed two methods of Establishment Clause analysis that "sharpen the focus that Lemon mandates": the endorsement and coercion tests. Smith v. Lindstrom, 699 F.Supp. 549, 554 (W.D.Va.1988) (referring specifically to the endorsement test). Justice Kennedy formulated the coercion test in Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992), and Justice O'Connor articulated the endorsement test in her concurrence in Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). Support exists for both alternatives. Doe, 173 F.3d at 302. Therefore, particularly in the context of public education, courts rely on one or more of each of the three tests. See Tangipahoa Parish Bd. of Educ. v. Freiler, 530 U.S. 1251, 1252, 120 S.Ct. 2706, 147 L.Ed.2d 974 (2000) (dissenting opinion).

Dissatisfaction with the "formulaic abstractions that ... conflict with ... our long-accepted constitutional traditions" in Lemon led to the coercion test. Lee, 505 U.S. at 644, 112 S.Ct. 2649 (dissenting opinion). In Lee, the Supreme Court specifically declined to reconsider the decision in Lemon. Id. at 587, 112 S.Ct. 2649. However, the Court consciously departed from Lemon, and in doing so, expressed concern about the profound effect that Establishment Clause violations may have upon school-age children. Id. at 592, 112 S.Ct. 2649. The Court found that, due to the young age and impressionability of elementary and high school students, even subtle pressure either to participate, or maintain a respectful silence, as opposed to remaining apart while others participate in a religious activity, has a coercive effect, and thus violates the Constitution. Id. Writing for the Court, Justice Kennedy expressed this view:

We do not address whether that choice is acceptable if the affected citizens are mature adults, but we think the State may not, consistent with the Establishment Clause, place primary and secondary school children in this position. Research in psychology supports the common assumption that adolescents are often susceptible to pressure from their peers towards conformity, and that the influence is strongest in matters of social convention.... To recognize that the choice imposed by the State constitutes an unacceptable constraint only acknowledges that the government may no more use social pressure to enforce orthodoxy than it may use more direct means.

505 U.S. at 593-594, 112 S.Ct. 2649 (citations omitted).

Defining the endorsement test, Justice O'Connor further developed the second and third prongs of ...