Washegesic v. Bloomingdale Public Schools

• Decision Date: 18 November 1994
• Docket Number: No. 93-1248,93-1248
• Citation: 33 F.3d 679
• Parties: , 94 Ed. Law Rep. 32 Dott WASHEGESIC, as next friend of Eric Pensinger; Eric Pensinger, with Dott Washegesic as next friend of, Plaintiffs-Appellees, v. BLOOMINGDALE PUBLIC SCHOOLS, a Michigan Corporation; Bloomingdale Public School Board, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 679

33 F.3d 679

63 USLW 2178, 94 Ed. Law Rep. 32

Dott WASHEGESIC, as next friend of Eric Pensinger; Eric Pensinger, with Dott Washegesic as next friend of Plaintiffs-Appellees, v. BLOOMINGDALE PUBLIC SCHOOLS, a Michigan Corporation Bloomingdale Public School Board, Defendants-Appellants.

No. 93-1248.

United States Court of Appeals Sixth Circuit.

Argued June 6, 1994.

Decided Sept. 6, 1994.

Rehearing and Suggestion for

Rehearing En Banc Denied Nov. 18, 1994.

Laurie L. Wightman, Susan M. Fall (briefed), Gemrich, Moser, Bowser, Fette & Lohrmann, Kalamazoo, MI, Paul Denenfeld (argued), Detroit, MI, for plaintiffs-appellees.

David R. Melton (argued and briefed), Grandville, MI, for defendants-appellants.

Before: MERRITT, Chief Judge; NORRIS, Circuit Judge; and GUY, ^* Senior Circuit Judge.

MERRITT, Chief Judge, delivered the opinion of the court. RALPH B. GUY, Jr., Senior Circuit Judge (pp. 684-85), delivered a separate concurring opinion. NORRIS, Circuit Judge, concurred in both the opinion of the court and the separate concurrence.

MERRITT, Chief Judge.

The defendants appeal an injunction from the district court requiring them to remove a portrait of Jesus Christ that has been hanging alone in the hallway of the Bloomingdale Secondary School for the last thirty years. Plaintiff, a student at the school, filed suit alleging that the display of the portrait violated the Establishment Clause of the First Amendment. After the district court's decision, plaintiff graduated. The issues presented are whether the appeal should be dismissed as moot and whether the display of the portrait violates the Establishment Clause.

The facts of the case are undisputed. Eric Pensinger, then a senior, brought suit to remove a copy of Warner Sallman's famous portrait, "Head of Christ," from being displayed in a hallway outside the gymnasium and the principal's office of the Bloomingdale Secondary School. Bloomingdale is a small rural community near Kalamazoo, Michigan. The portrait, originally donated to the school, is not part of a group of paintings nor is it used in conjunction with any class or educational program. Nearby in the same hallway are trophy cases, a painting of the school mascot and a bulletin board, but as Judge Gibson noted, "these seem to have no relation to the picture and do not add to or detract from the impression it makes." Washegesic v. Bloomingdale Pub. Sch., 813 F.Supp. 559, 560 n. 3 (W.D. Mich.1993). The judge held that the portrait violated the Establishment Clause; and in order to avoid damage to the portrait which is bolted to the wall, he allowed the picture to be covered with a cloth pending the outcome of this appeal.

The Mootness Claim

Eric Pensinger graduated on June 3, 1993. The defendants argue that there is no longer a case or controversy because plaintiff has no stake in the outcome of the case. Defendants cite cases that a plaintiff's graduation can moot a claim against a school, Board of School Comm'rs of Indianapolis v. Jacobs, 420 U.S. 128, 129, 95 S.Ct. 848, 849-50, 43 L.Ed.2d 74 (1975) and Ahmed v. University of Toledo, 822 F.2d 26 (6th Cir.1987); but these cases are not on point. In Jacobs, plaintiffs challenged the constitutionality of school rules which regulated the student newspaper. The rules no longer applied to the plaintiffs after graduation. The Supreme Court dismissed the appeal when it learned at oral argument that all the plaintiffs had graduated. Jacobs, 420 U.S. at 129, 95 S.Ct. at 849-50. In Ahmed, foreign students challenged the constitutionality of a university policy requiring them to carry health insurance. By the time the case reached the appellate level, the plaintiffs had graduated or dropped out of school permanently and the court dismissed the case as moot. Ahmed, 822 F.2d at 28.

In Jacobs and Ahmed the plaintiffs ceased to have any interest in the challenged policy and could not be affected by it after they were no longer students. The rules could no longer harm them. Here, conversely, the portrait of Jesus affects students and non-students alike. Status as a student is not necessary for standing in such cases. Pensinger still visits the school and will confront the portrait whenever he is in the hall. His girlfriend is a student, and he attends sporting events, dances and other social functions in the gym and at the school. Thus, plaintiff claims that this case is not moot because he continues to suffer actual injury. ¹ Mootness is "the doctrine of standing set in a time frame." United States Parole Comm'n v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 1209, 63 L.Ed.2d 479 (1980) (citation omitted). The issue is whether plaintiff has standing to continue this appeal. To demonstrate standing a plaintiff must show an "actual injury" caused by defendant's conduct which can be remedied by a court. City Communications, Inc. v. Detroit, 888 F.2d 1081 (6th Cir.1989). As in many First Amendment cases, the injury can be non-economic. Hawley v. City of Cleveland, 773 F.2d 736 (6th Cir.1985), cert. denied, 475 U.S. 1047, 106 S.Ct. 1266, 89 L.Ed.2d 575 (1986). The use of governmental authority to encourage a sectarian religious view is a sufficient injury if directed toward the plaintiff.

In Hawley, citizens challenging the lease of space for a chapel at the Cleveland airport were denied taxpayer standing but were granted standing for their actual injury when they used the airport. Id. at 740. The injury which conferred standing was the "impairment of their beneficial use of a public facility which they frequently use." Id. In this case, similarly, the portrait affects in some measure Pensinger's use of the school. His graduation does not end the case because the portrait does not affect students only--it potentially affects any member of the public who attends an event at the school. A member of the PTA or a member of the public would have standing if she attended events in the gymnasium and took the portrait as a serious insult to her religious sensibilities. Cf. Jager v. Douglas County School District, 862 F.2d 824, 826 n. 1 (11th Cir.) (graduated student and father (individually) challenging prayer at high school football games permitted to "continue this suit ... as people who attend the football games"), cert. denied, 490 U.S. 1090, 109 S.Ct. 2431, 104 L.Ed.2d 988 (1989). The relevant inquiry in this case is similar to that in any "public-facility" case: whether the individual plaintiff uses the facility and suffers actual injury. Hawley, 773 F.2d at 740 (discussing ACLU v. Rabun County, 698 F.2d 1098, 1108 (11th Cir.1983) (plaintiffs granted standing to challenge cross displayed in Georgia state park because use was "conditioned upon the acceptance of unwanted religious symbolism")).

The cases are in some conflict and the doctrine is somewhat confused. Although it may be true that psychological harm alone is not always a sufficient injury for standing purposes when contact is indirect, Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 485, 102 S.Ct. 752, 765, 70 L.Ed.2d 700 (1982), " 'unwelcome' direct contact with the offensive object is enough." Harvey v. Cobb County, 811 F.Supp. 669, 674 (N.D.Ga.) (lawyer had standing based on regular contact with Ten Commandments posted in courthouse), aff'd without opinion, 15 F.3d 1097 (11th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 2138, 128 L.Ed.2d 867 (1994); see also Murray v. Austin, 947 F.2d 147, 151 (5th Cir.1991) (citizen had standing based on "exposure" to city insignia which contained cross), cert. denied, --- U.S. ----, 112 S.Ct. 3028, 120 L.Ed.2d 899 (1992). Here, Pensinger's contact with the school and the portrait is direct.

Defendants rely heavily on the language in Valley Forge that the "psychological consequence presumably produced by observation of conduct with which one disagrees" is not sufficient to confer standing. Valley Forge, 454 U.S. at 485, 102 S.Ct. at 765. The court in Rabun County discussed the distinction between this broad language in Valley Forge and the other Establishment Clause cases in which contact with the offensive object did constitute a sufficient injury. Rabun County, 698 F.2d at 1104-09. The outcome depends on the directness of the harm. Valley Forge was a citizen's suit. Plaintiffs were members of an organization challenging a government action they learned about through a news release. Their grievance had a vicarious quality. They objected in a general way as citizens. They had no direct contact with the dispute, and their minor "psychological injury" from being offended did not give them standing. Id. (discussing Valley Forge ). Here, as in Rabun County Harvey and Murray, plaintiff has continuing direct contact with the object at issue. His grievance is not remote, vicarious or generalized as in Valley Forge. In ACLU v. St. Charles, the court brought up another factor to distinguish generalized from specific harm: "Maybe it ought to make a difference if (as here) a plaintiff is complaining about the unlawful establishment of a religion by the city, town, or state in which he lives, rather than about such an establishment elsewhere." 794 F.2d 265, 268 (7th Cir.), cert. denied, 479 U.S. 961, 107 S.Ct. 458, 93 L.Ed.2d 403 (1986). The practices of our own community may create a larger psychological wound than someplace we are just passing through.

In Jacobs and Ahmed, the policies affected certain students because and only because they were students. Upon leaving school, the alleged injury ceased to exist. Here, any parent, employee or former student who uses the school facilities and suffers actual injury would have standing to sue. This case is not moot.

The Merits

In a well-reasoned decision, Judge Gibson held that the school's display of the portrait violated the Establishment Clause. To satisfy the requirements of the Establishment Clause, the district court applied the test set forth in ...