Jonathan Clayton, a minor, by Connie Clayton, his next friend v. Richard M. Place and Purdy R-2 School District

884 F.2d 376

September 1, 1989, Filed

Fagg, Judge

Rule 502.29 of the Purdy R-2 School District provides in part: "School dances are not authorized, and school premises shall not be used for purposes of conducting a dance." Although the record does not indicate when the rule was enacted, the parties agree it has been in place for a long time. A group of students, parents, and taxpayers (collectively plaintiffs) brought this action against the Purdy R-2 School District, its Superintendent, and members of the District's Board of Education (collectively the District), seeking to set aside the no-dancing rule. Among other theories, plaintiffs asserted the rule violates the establishment clause of the first amendment because it advances the views of residents in the Purdy District who oppose dancing on religious grounds.  The district court agreed and invalidated the rule on that basis. See Clayton v. Place, 690 F. Supp. 850, 854-57 (W.D.Mo. 1988). The District now appeals, and we reverse.

Purdy is a small, primarily rural community in southwestern Missouri. The record indicates religion is an important force in Purdy, and particular churches are staunchly opposed to social dancing. A tenet of one denomination in Purdy specifically requires "a separation from worldliness, including dancing,"  and another teaches "social dancing is sinful." Over the years, various groups have unsuccessfully sought permission for school dances and have proposed changing the District's no-dancing rule. Despite their lack of success, however, Purdy students are not prohibited from holding dances away from school property, and they have regularly done so.

In February 1988, a group seeking reconsideration of rule 502.29 to enable a newly formed student organization to sponsor a dance at the high school appeared before the Board of Education (the Board). A local minister who opposed changing the rule attended the meeting and requested a place on the Board's March agenda to make a presentation on the subject. Following discussion, the Board deferred action on the issue until the March meeting.

In the interim, it is fair to say the Purdy religious community actively discussed the dancing issue. A group of local ministers met to plan how to express their support for the rule. Ministers of several local churches, including some to which Board members belong, spoke out during church services against changing the rule and encouraged members of their congregations to attend the March Board meeting and show their opposition as well.

A large crowd gathered for the March Board meeting. Although "no direct mention was made of religion per se at the meeting,"  the minister who had attended the February meeting spoke against changing the rule and read a letter from the ministerial group to the same effect. When the minister finished his presentation, he took the opportunity to ask those in the audience who opposed changing the no-dancing rule to stand. Of the estimated 250-400 people in attendance, an "overwhelming majority of people stood in opposition to changing the rule."

The Board later went into closed session to discuss the students' reconsideration request. Although no formal vote was taken, the Board agreed unanimously to "leave the rule intact." Plaintiffs then brought this action, contending the rule violated: (1) the freedom of association clause of the first amendment; (2) the freedom of speech clause of the first amendment; (3) the establishment clause of the first amendment; and (4) article I, section 7 of the Missouri Constitution. The court rejected plaintiffs' freedom of association and speech challenges, but held that the rule violated the establishment clause of the federal constitution.

In considering the district court's ruling that the Purdy no-dancing rule is invalid under Lemon, we review the court's findings of fact under the clearly erroneous standard. The ultimate conclusion of the rule's constitutionality, however, is a mixed question of law and fact.  Although the record contains no indication of when or for what express purpose the rule was originally passed, that circumstance is no barrier to evaluating the rule's compliance with the establishment clause. The district court's opinion does not rest on any adverse factual findings bearing directly on the content of rule 502.29 or on the circumstances surrounding its original passage. Nevertheless, the plaintiffs have framed their action as one to set aside the rule, and we thus turn to examine the rule itself.

The Supreme Court has consistently followed the three-part Lemon test for determining whether a challenged governmental rule offends the establishment clause, and the parties agree the Lemon analysis applies in this case. Under the Lemon framework, a rule is permissible if it has a secular purpose; if it neither advances nor inhibits religion in its principal or primary effect; and if it does not foster an excessive entanglement with religion.  The challenged rule is valid only if it meets all three tests. The district court determined the Purdy no-dancing rule violated each of these three requirements and was thus invalid. We disagree as to each.

First, plaintiffs conceded at oral argument (and the district court acknowledged) that extracurricular dancing is a wholly secular activity. ("Condemnation of dancing is not firmly rooted in Judeo-Christian moral or ethical standards."). Further, the rule carries within its text absolutely no religious component, and there is no record evidence of any actual religious purpose connected with the rule's enactment or its textual requirements. In our view, the rule on its face thus satisfies the first prong of the Lemon analysis.

Second, the record does not fairly demonstrate that any religious doctrine is principally or primarily advanced by the Board's enforcement of the no-dancing rule.  No student is prohibited from engaging in or refraining from extracurricular dancing should they choose to do so. Any arguably religious effect of the rule is indirect, remote, and incidental.  To the extent plaintiffs contend the rule impermissibly endorses or conveys a message of governmental preference for a particular religious viewpoint concerning social dancing,  we find nothing in the rule to suggest the District has "take[n] a position on questions of religious belief or * * * 'ma[de] adherence to a religion relevant in any way to a person's standing in the political community.'"

Finally, there is no showing the rule fosters excessive government entanglement in religious affairs. If anything, the rule promotes less, rather than more, school involvement in what plaintiffs contend is a religiously significant activity.  The district court based this portion of its decision on the conclusion that the dancing debate was deeply divisive in the Purdy community.  Political divisiveness along religious lines, however, is not a proper consideration except in cases involving financial aid to parochial schools.  For these reasons, we conclude the District's no-dancing rule on its face satisfies the controlling Lemon standards. We turn now to the core of plaintiffs' additional argument challenging the rule.

Plaintiffs contend Board members acted in accordance with the religious beliefs of a majority of patrons attending the March Board meeting and in conformity with their own faiths when they acted to retain the no-dancing rule. Based on this premise, plaintiffs argue the Board's action was religiously motivated and, consequently, should result in nullification of the rule as a violation of the establishment clause. We reject this argument.

Although the record does not indicate the religious affiliation of patrons who stood in support of the rule at the March meeting, the district court held the Board had "adopted the reasoning of the 'majority' of townspeople, including the[ir] strongly held religious views." . The court then determined "the rule prohibiting dancing [was] inherently religious to the [Board]," and "there [was] no valid secular purpose to having rule 502.29."  For this reason, the court concluded the Board's action violated Lemon'spurpose requirement because the Board "in keeping the rule abandoned neutrality with the intent to promote a particular view in religious matters."  Utilizing what amounts to the same rationale, the district court also held the rule ran afoul of Lemon's effect standard because it had "the primary effect of * * * endors[ing] the tenets of that particular religious group in Purdy who believe[s] that social dancing is sinful."

Initially, we observe the district court found a number of the Board members had at some time expressed the view that their individual religious backgrounds favored the rule.  In addition, the court found that to the extent Board members testified moral, educational, or fiscal concerns, and not religion, influenced their decisions, their testimony was not credible.  While we have no occasion to disagree with these findings, we believe plaintiffs' and the district court's reliance on them in this case is misplaced.

We readily acknowledge that under the record in this case, the no-dancing rule may be characterized as compatible with the sincerely held religious beliefs of a vocal segment of the Purdy community. The mere fact a governmental body takes action that coincides with the principles or desires of a particular religious group, however, does not transform the action into an impermissible establishment of religion.

We also find no support for the proposition that a rule, which otherwise conforms with Lemon, becomes unconstitutional due only to its harmony with the religious preferences of constituents or with the personal preferences of the officials taking action. To make government action assailable solely on the grounds plaintiffs suggest would destabilize governmental action that is otherwise neutral. Indeed, the focus of Lemon is to avoid a haphazard approach "for determining whether a government practice violates the establishment clause."

We simply do not believe elected government officials are required to check at the door whatever religious background (or lack of it) they carry with them before they act on rules that are otherwise unobjectionable under the controlling Lemon standards. In addition to its unrealistic nature, this approach to constitutional analysis would have the effect of disenfranchising religious groups when they succeed in influencing secular decisions. In this case, the district court recognized "religious groups * * * have an absolute right to make their views known and to participate in public discussion of issues." Nevertheless, the court held "those views may not prevail," even though these groups have long been legitimate participants in secular community debate.

At bottom, the proper remedy for plaintiffs' disenchantment with a Board that refused to change a rule that is compatible with Lemon is found at the ballot box and not in the Constitution. Having carefully studied the applicable authorities, the record, and the parties' arguments, we hold the District's no-dancing rule is not an unconstitutional establishment of religion under the first amendment.  

Dissent from the decision of the Eighth Circuit to deny rehearing en banc

889 F.2d 192

November 17, 1989, Filed

The suggestion for rehearing en banc has been considered by the court and is denied by reason of the lack of majority of active judges voting to rehear the case en banc. Chief Judge Lay, Judges McMillian, Arnold and John R. Gibson dissent from the denial of the suggestion for rehearing en banc.

JOHN R. GIBSON, Circuit Judge, with whom LAY, Chief Judge, McMILLIAN and ARNOLD, Circuit Judges, join, dissenting.

I respectfully dissent from the decision of a bare majority of this court to deny rehearing en banc in this case. The district court's findings of fact demonstrate overwhelmingly that the religious views of five churches in Purdy, Missouri, caused the school board to refuse to change its rule prohibiting social dancing. These findings compel the conclusion that the test of Lemon v. Kurtzman has not been satisfied.

The opinion of the panel, Clayton v. Place, 884 F.2d 376 (8th Cir. 1989), properly recognizes that the district court's findings of fact are reviewed under the clearly erroneous standard, but the ultimate question of the rule's constitutionality is a mixed one of law and fact. There is no claim that any finding of fact is clearly erroneous.

It is true, as the panel opinion states, that the rule is facially secular; the text of the rule does not explicitly state that dancing is prohibited for religious reasons. While the origins of the rule are not described, the issues before us deal with the enforcement of the rule and the board's refusal to change it. The Lemon test cannot be circumvented by merely omitting from a rule any explicit statement of religious purpose. Rather, the first part of the Lemon test depends upon the government's "actual purpose" in making a decision.  Moreover, while courts are "normally deferential to a State's articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham."  In this case, as in Aguillard, the board has "identified no clear secular purpose" for continuing to enforce its rule.  In contrast, the findings of the district court make abundantly clear that adherence to the rule does have a clear religious purpose. The panel's conclusions in applying the Lemon test fail to give proper consideration to the findings of the district court, which must be set out in some detail.

During 1985-86, the parents and students involved in this litigation sought to change the "no dance" policy. The parents first asked Richard Place, the Superintendent of Schools, why dances were prohibited. Place answered that it was because Purdy was a conservative, religious community. They then asked if the rule was in effect because the Baptists opposed dancing, and Place answered, "Let's just say protestants." Prior to the school board meeting at which the proposal to permit dances was discussed, board member Keeling stated that he opposed changing the rule because his church preached that it was wrong and immoral to dance. Board member Terry told one of the plaintiffs that he had voted to permit dances in the past but caught so much "flak" from the ministers that he would vote against it this time. Board member Negre also declared that his church was opposed to dancing. At the February 10, 1986, meeting when the request to permit dances was initially made, Reverend Davis of the Free Will Baptist Church and his wife were present to state their opposition to a change in the rule. After Reverend Davis spoke, someone asked board president Garrett about the separation of church and state. Garrett responded that, "you'd better hope there's never separation of God and school."

After the meeting, the Ministerial Alliance, composed of ministers from the First Baptist, the First Assembly of God, the First Free Will Baptist, the Macedonia Free Will Baptist, and the First Christian Churches, met to plan the opposition to changing the rule. The ministers agreed to persuade their members to attend the March meeting to fight the proposed change in the rule.

The minister of the First Baptist Church spoke to his congregation about the dance issue, and encouraged them to attend the meeting and fight the proposed change. In addition, his congregation prayed for board member Blakely's soul because he tried to change the rule.

The minister of the First Assembly of God Church testified that he would refer any member of his congregation who engaged in dancing to the Presbyters of the church for counseling. He also encouraged the congregation to attend the March meeting and reminded them of the church's position on dancing. To become a member of the First Assembly of God Church, a person must agree to be separate from worldliness, which includes dancing.

The minister of the Free Will Baptist Church believes and preaches that dancing is sinful, prohibited by scripture, and possibly satanic. He has preached against dancing from the pulpit and has had a private counseling session with any member of his congregation who engaged in dancing. Before the board met to consider the proposed change, he contacted all but one of the members to voice his opposition to school dancing. He also informed his church members that there would be a petition for them to sign to indicate their opposition to the proposed change.

The Sunday before the board meeting, the congregation of Macedonia Free Will Baptist Church discussed the rule and board member Henderson was present at the discussion. Henderson promised that there would be no dancing at the schools as long as he was on the school board, and he encouraged everyone to go to the meeting to show their opposition to any change in the rule. The minister of the church, who has said during church services that he believes dancing is inappropriate behavior, also discussed his beliefs with board members Henderson and Negre.

There were 250 to 400 people in attendance at the March 10, 1986 board meeting. When the ban on dances was discussed, no direct mention of religion was made, but a letter from the Ministerial Alliance was read in its entirety. Reverend Davis of the Free Will Baptist Church argued that the "no dance" rule should not be changed. As he concluded, he asked the people in the crowd to signify their opposition to changing the rule by standing. The overwhelming majority of people stood in opposition to the proposed change in the rule. The board later held a closed session. While the board did not take a formal vote, it left the rule intact.

On April 18, 1986, one of the parents requested permission to rent the elementary school building for a school dance. Prior to that date, the school premises had been rented for various nonschool functions. At the April 29th meeting, however, the board voted in favor of suspending its rental policy.

The district court, in applying the Lemon test to these facts, found unpersuasive the testimony of the board members that they had opposed dancing in the schools for secular reasons, that there was no religious pressure to keep the rule, and that the rental policy was changed in response to problems with the liability of the school. The district court then found that the rule prohibiting dancing was "inherently religious to the [Purdy] School Board."  It singled out the elimination of the rental policy and found that the board's purported reasons for the action were a mere pretext for the real religious justification.

The findings of the district court, eloquent in their simplicity, compel its conclusion, and support mine, that the school board was motivated by religious purposes. Strictly speaking, this conclusion renders unnecessary a consideration of the second and third components of the Lemon test.  These findings, however, also convincingly demonstrate that the principal, or primary, effect of the board's actions was to advance the religious views of some members of the community, and that the retention and enforcement of the rule constituted excessive government entanglement with these religious views. Therefore, I conclude that the second and third components of the Lemon test are also not satisfied.

This is a case about religious tyranny. The members of five churches who have strong views on the religious significance of dancing successfully exerted pressure on the board to prohibit school dances. In the overall scheme of things, a dance at Purdy high school, with an enrollment of 519, may not be of earth-shattering significance. Yet, our Constitution protects all citizens, including   the students at Purdy high school, from religious, as well as political, oppression by a majority. The first amendment rights of those students sound a call that this court should not ignore. Our denial of the petition for rehearing en banc turns a deaf ear to the pleas of those students.

LAY, Chief Judge, with whom McMILLIAN and ARNOLD, Circuit Judges, join, dissenting.

Judge John R. Gibson's illuminating dissent should leave little doubt that the record demonstrates the Purdy school board's action focuses upon religion. The trial court's findings should be upheld under the clearly erroneous rule. I write separately to underscore my disagreement with the panel decision, and to elaborate on the no-dancing rule's failure to pass scrutiny under the "effects" component of the framework enunciated in Lemon v. Kurtzman.

The second prong of the Lemon test considers whether "the challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by nonadherents as a disapproval, of their individual religious choices."  "The prohibition against governmental endorsement of religion 'preclude[s] government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred.'"

The question, therefore, is "what viewers may fairly understand to be the purpose" of the no-dancing rule. To the residents of Purdy -- especially the students of Purdy R-II High School -- the rule's message is unmistakably clear: the school district promotes the tenets of the local religious community. As a symbol of religious endorsement, the rule is no less obvious than a monument anchored to the schoolhouse lawn pronouncing: "THIS SCHOOL ADHERES TO THE BASIC TENETS OF THE MINISTERIAL ALLIANCE CHURCHES."

The message is not diluted, as the panel opinion suggests, by the fact that the school does not coerce students into refraining from dance away from school grounds. The Supreme Court has clearly held that proof of coercion is not a necessary element of any claim under the Establishment Clause.  Indeed, the Court's recent decisions invalidating government action on Establishment Clause grounds have involved no direct coercion.  It is enough that the government clearly endorses religion or particular religious beliefs, for endorsement itself "sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." This message is particularly potent in the educational context. "The government's activities in this area can have a magnified impact on impressionable young minds, * * *."

Perhaps the no-dancing rule's symbolic effect would be less potent if the rule could be explained, at least in part, by some plausible secular purpose. Although it is clear that identification of a secular purpose will not immunize governmental action from scrutiny under Lemon's effects test,  it might at least help mask the appearance that the action is crafted as a religious endorsement. If, for instance, the District maintained the no-dancing rule in order to avoid such problems as noise, building destruction, or shortage of supervisory personnel, the community members and students might well see it in a somewhat different light. Yet, as Judge Gibson aptly points out, no nonreligious purpose can be discerned here.

In Purdy, Missouri, the no-dancing rule differs little from a school's posting of the Ten Commandments on its classroom walls.  In both cases the school makes it abundantly clear to the students that it embraces the tenets of a particular religion. The panel implies that a difference lies in the fact the Ten Commandments are religious on their face whereas the no-dancing rule is facially nonreligious. This distinction, however, fails to give due regard to the religious environment that provides the no-dancing rule its lifeblood: a small town in which five churches wielding political influence teach that social dancing is sinful. Only in this context can the effect of the rule be judged.

If the Establishment Clause carries any significant meaning, it is that government cannot maintain a practice that has as its sole purpose and primary effect the advancement of a tenet unique to particular religious groups. I dissent from the denial of the suggestion for rehearing en banc. I do so not only because the panel's decision is wrong; I do so because of the unwarranted precedent created in this circuit and throughout the nation providing a devious springboard for further destruction of the wall separating church and state.

Exploring Constitutional Conflicts