Smith v. Jefferson Cnty. Bd. of Sch. Comm'rs, 13–5957.

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Citation: 788 F.3d 580
• Docket Number: No. 13–5957.,13–5957.
• Parties: Steve B. SMITH, Plaintiff, David Kucera; Vickie F. Forgety, Plaintiffs–Appellees, v. JEFFERSON COUNTY BOARD OF SCHOOL COMMISSIONERS, Defendant–Appellant.
• Decision Date: 11 June 2015

788 F.3d 580

Steve B. SMITH, Plaintiff
David Kucera; Vickie F. Forgety, Plaintiffs–Appellees
v.
JEFFERSON COUNTY BOARD OF SCHOOL COMMISSIONERS, Defendant–Appellant.

No. 13–5957.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 7, 2014.
Decided and Filed: June 11, 2015.
Rehearing En Banc Denied July 30, 2015.

788 F.3d 582

ARGUED:Jonathan Swann Taylor, Taylor & Knight, GP, Knoxville, Tennessee, for Appellant. Eric J. Morrison, Stone & Hinds, P.C., Knoxville, Tennessee, for Appellees. ON BRIEF:Jonathan Swann Taylor, Taylor & Knight, GP, Knoxville, Tennessee, for Appellant. Eric J. Morrison, M. Todd Ridley, George F. Legg, Stone & Hinds, P.C., Knoxville, Tennessee, for Appellees. Jeremy D. Tedesco, Alliance Defending Freedom, Scottsdale, Arizona, David A. Cortman, Rory T. Gray, Alliance Defending Freedom, Lawrenceville, Georgia, Jay Alan Sekulow, American Center For Law & Justice, Washington, D.C., Thomas H. Castelli, American Civil Liberties Union Foundation of Tennessee, Nashville, Tennessee, for Amici Curiae.

Before: BATCHELDER, GILMAN, and GIBBONS, Circuit Judges.

GIBBONS, J., delivered the opinion of the court in which GILMAN, J., joined, and BATCHELDER, J., joined in part. BATCHELDER, J. (pp. 590–605), delivered a separate opinion concurring in parts I–III and in the result.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

A county school board, facing a budget shortfall, abolished its alternative school and contracted for its students to be educated in the secular, alternative-school program at a private, Christian school. David Kucera and Vickie Forgety, teachers who lost their jobs in the abolition of the original alternative school, sued the school board, asserting an Establishment Clause violation. The district court held that the School Board's action violated the Establishment Clause and awarded damages and an injunction. For the following reasons, we reverse.

I.

A.

At some time in the 2002–2003 school year, Doug Moody—Director of the Board of School Commissioners in Jefferson County, Tennessee—started anticipating budget problems. He learned that the Board would receive only ten cents of the property tax rate, less than a quarter of the funds the Board had requested. Consequently, Moody and his colleagues began considering “big ticket” items that could

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be cut from the budget. At that time, the Board operated its own alternative school. Board employees staffed the alternative school, including plaintiffs Vickie Forgety and David Kucera, both teachers. In July 2003, the Board voted to eliminate the alternative school for the upcoming school year and to contract with Kingswood School, Inc., to provide alternative-school services. Tennessee law requires each local school board to provide alternative-school services for students in the seventh through twelfth grades. Tenn.Code Ann. § 49–6–3402. Kingswood is a 501(c)(3) non-profit entity and is licensed by the Tennessee Department of Mental Health and Developmental Disabilities. Moody calculated that the move would save the Board over $170,000 per school year. According to the parties' stipulation, the Board's “sole motivation” for this measure was “to reconcile the Board's budget with the Commission's fund allotment.”

Moody wrote to inform Forgety and Kucera that their positions would no longer exist due to the school's closing. Moody told them that the Board would make “every effort” to place them in an area of their certification for the coming year. Forgety rejected the two teaching positions that she was offered and asked that she be placed on the “preferred re-employment list” for administrative or principal positions. She was unemployed for seven months before accepting the principal position at a Jefferson County school. Kucera was unemployed for two months and, having received no teaching offers, he instead returned to a former job at a youth center.

Beginning in the 2003–2004 school year and continuing until 2009, middle-school and high-school students in the Jefferson County public school system attended Kingswood if they had been suspended or expelled from their ordinary schools. For the 2009–2010 school year, high-school students from Jefferson County remained at Kingswood, while middle-school students returned to public schools. Kingswood was responsible for all facets of the County's alternative-school program: hiring, firing, evaluating, and supervising staff; managing the finances; running the day-to-day operations; communicating with parents; providing report cards; and determining the term of some students' suspensions from their regular schools. At various times during the life of Kingswood's contract with Jefferson County, Kingswood also worked with four other Tennessee counties in various capacities. This included an arrangement with Claiborne County to educate all of its alternative students for several years in the early 2000s.

Kingswood had two separate programs at the time: the day program and the residential program. The residential program—which served troubled, neglected, and abused children—maintained a religious character and included deliberate religious instruction. The Jefferson County students were exclusively within the day program, however, which did not feature deliberate religious instruction. The day program has been recognized by the Tennessee Senate as one of the model alternative-school programs for the state's school systems.

Day students attended classes taught by state-licensed teachers, who were employees of Kingswood. The students also regularly met with licensed professional counselors. When the public-school students first arrived at Kingswood, Reverend Steve Walker—Kingswood's campus minister—performed their intake sessions. Religion did not form any part of those sessions. Day students attended assemblies in Kingswood's on-campus chapel on some occasions, although attendance was strictly

788 F.3d 584

voluntary. Unsurprisingly, the chapel contained religious imagery. There is no evidence, however, that the assemblies included religious content. All classes took place in the separate school building, which did not include any religious symbols or messages. There is no suggestion that day students were required to pray, observe a “moment of silence,” or engage in any other religious or spiritual activity.

Nonetheless, day students and their parents were not entirely insulated from all signs of Kingswood's religious environment. Students were required to submit a weekly family-feedback form—signed by their parents—in order to advance within the day program. That form contained the following quote from the Gospel of Luke: “Jesus ... said, Suffer little children to come unto me, and forbid them not: for of such is the kingdom of God.” Parents were also required to sign report cards, which contained the same Biblical text. Kingswood's director testified that the scripture—from the Gospel of Luke—could be interpreted as an invitation into the kingdom of God. The same passage appeared, accompanied by crosses, on the school's Easter 2006 letter. The letter claimed: “Kingswood School is unique because we offer children a Christian environment of love and encouragement.... Kingswood remains one of the few places where children in need can get help in a Christian environment. We are a non-profit faith based ministry....”

Those who sought out the 2005 Annual Report saw that it contains a picture of the chapel and says that each child will receive Christian religious training, and that emphasis is placed upon “instilling in each child a personal faith in God, and the assurance of the saving grace of Jesus Christ.” The “school improvement plan,” completed before the Jefferson County contract and still in effect afterward, stated the belief that schools must provide for “spiritual growth” in order to serve the “ ‘whole’ student.”

The Kingswood website also contained some religious references.¹ It claimed, for example, that “Kingswood has survived independently by remaining true in faith to the principles of a Christian education without being bound to the doctrine of a particular denomination or sect's control.” It states that the school will take care of a child's “spiritual and religious life,” although it will not compel a student to adopt any particular religious doctrine. The website refers to Kingswood as a “Christian charity,” and explains its “Methodist-rooted beginnings.” It says that the school “has observed a Christian approach that has remained inter-faithed and unaffiliated with a particular Christian denomination.”

But none of these communications appear to have been targeted specifically at the Jefferson County students. Communications of this nature appeared to be part of the fabric of the Kingswood community and, for the most part, were in use before the Jefferson County students arrived. Notably, in addition, there is no indication that any Jefferson County student or parent complained to Kingswood or the School Board about any of Kingswood's religious references.

Over the course of the seven-year arrangement, the School Board paid Kingswood a total sum of $1,702,368. The money was deposited in Kingswood's general operating account, leaving Kingswood with

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