Smith v. Jefferson Cnty. Bd. of Comm’rs, No. 13-5957 (6th Cir. Jun. 11, 2015)
Abstract: A U.S. Court of Appeals for the Sixth Circuit three-judge panel has ruled that a Tennessee school district’s decision to outsource its alternative school program to a private Christian school did not violate the First Amendment’s Establishment Clause. The panel concluded that the school district’s action of contracting with the Christian school to provide an alternative school program passed constitutional muster because, as the three-prong test established in Lemon v. Kurtzman, 403 U.S. 602 (1971) requires: (1) there was a secular purpose for the district’s action; (2) the relationship between the school district and the Christian school did not amount to government endorsement of religion; and (3) the relationship did not foster excessive entanglement between church and state.
Although all three judges agreed that the school district had not violated the Establishment Clause, one judge wrote a separate opinion concurring in part and in the result, but offering different reasoning for that result than that set out in panel’s opinion.
Facts/Issues: Facing budgetary constraints for the upcoming 2003-04 school year, the Jefferson County Board of School Commissioners (JCBSC) voted to eliminate the alternative school and the positions of two teachers. After deciding to close the alternative school, JCBSC voted to outsource alternative school services for Jefferson County students to Kingswood School (KS). The board’s officially stated reason for the closure and outsourcing was financial considerations due to budget cuts. KS is a religious school that specializes in providing treatment programs for students with behavioral and emotional problems. The two teachers filed suit in federal district court against JCBSC and its members in their official and individual capacities.
The suit alleged that the defendants’ actions had violated the teachers’ rights under the First Amendment’s Establishment Clause, the Fourteenth Amendment’s Due Process Clause, and state establishment clause. The plaintiffs filed a motion for partial summary judgment on the establishment and due process claims. Defendants responded with a motion for summary judgment. The district court denied the plaintiffs’ motion, in part for lack of standing, but granted the defendants’ motion.
The Sixth Circuit, sitting en banc (all active judges participating in considering and deciding the case), ruled that the teachers, who lost their positions when the school board decided to close the school in favor of outsourcing services to a private religious school, had municipal taxpayer standing to file suit claiming the board’s decision violated the federal and state constitutions’ Establishment Clauses. It rejected, however, the teachers’ procedural and substantive due process claims, and held that the individual board members enjoyed legislative immunity from the suit.
The Sixth Circuit remanded the case to the district court to consider the claims under the Establishment Clause.
The district court subsequently denied JCBSC’s motion for summary judgment. A bench trial took place in May 2013. In July 2013, the district court issued its findings of fact and conclusions of law, holding that JCBSC had violated the Establishment Clause. The court permanently enjoined JCBSC “from contracting with Kingswood or another religious entity for the operation of its alternative school.” It also awarded plaintiffs damages for lost wages during the 2003–2004 school year.
Ruling/Rationale: The Sixth Circuit panel reversed the district court’s decision, vacating the judgment, vacating the injunction against JCBSC, vacating the award of damages and vacating the order granting attorney’s fees.
It began by addressing two objections by JCBSC to the district court’s factual findings. In regard to JCBSC’s assertion that the district court erred in finding that KS’s day and residential programs were not meaningfully distinct, the panel concluded that JCBSC had misread the district court’s opinion. While acknowledging the district court’s use of a double negative was somewhat confusing, it stated “there can be no doubt about its meaning: the two programs are meaningfully distinct, or at least the evidence does not suggest otherwise.” As to JCBSC’s second objection that the district court erred in characterizing KS “as a self-proclaimed religious institution,” the panel concluded JCBSC’s argument failed on the merits because “[f]rom the evidence in this case, it would certainly be permissible to conclude that Kingswood described itself as a religious institution.”
The panel then took up the issue of whether JCBSC’s outsourcing of its alternative school program to KS, a private religious school, ran afoul of the First Amendment’s Establishment Clause. It began its analysis utilizing the three-prong Lemon test. Under that the test, government action passes constitutional muster only if it satisfies all three prongs.
In addition to the Lemon test, the panel utilized the “endorsement” analysis set out by Justice O’Connor in Lynch v. Donnelly, 465 U.S. 668 (1984). It pointed out that unlike Lemon’s first prong which is subjective, the Lynch “endorsement” analysis, focuses on the objective question of whether a reasonable observer would think that the activity is a governmental endorsement of religion. Finally, the panel addressed the historical approach used in Town of Greece v. Galloway, 134 S. Ct. 1811 (2014).
Addressing Lemon’s first prong, the panel found there was no question JCBSC had a secular purpose because its “sole motivation” for contracting out its alternative-school services to KS was “to reconcile the Board’s budget with the Commission’s fund allotment.” However, it dismissed the relevance of Town of Greece because the decision “does not impact our approach to the case before us.” It stated that in the words of Wallace v. Jaffree, 472 U.S. 38, 80 (1985) : “The simple truth is that free public education was virtually nonexistent in the late 18th century . . . [so] it is unlikely that the persons who drafted the First Amendment, or the state legislators who ratified it, anticipated the problems of interaction of church and state in the public schools.”
Finding that Town of Greece gave no indication that the Supreme Court intended to abandon the endorsement test or for that matter Lemon, the panel next examined whether the relationship between JCBSC and KS had the primary effect of advancing religion. It pointed out that Supreme Court Establishment Clause jurisprudence made it clear that state endorsement of religion occurs “when it coerces participation in a religious activity.” It found nothing to suggest that JCBSC’s “association with Kingswood coerced students to partake in religious activity of any kind, either directly or through peer pressure.”
The panel stressed, however, that even in absence of coercion, “government violates the endorsement test if a reasonable observer would think that the activity is a governmental endorsement of religion.” Applying the reasonable observer test to the facts in the present case, it determined that “a reasonable observer would not interpret the School Board’s relationship with Kingswood as a governmental endorsement of religion.” The panel found that “[t]he evidence indicates that students in the day program were not exposed to any religious instruction, prayer, or any mentions of religion at all.”
The panel concluded:
Viewed in this context, it is clear that the taxpayers, School Board, parents, and students all benefited from the relationship between the Board and Kingswood. While this benefit was being conferred, parents and children received only slight exposure to religious content.
The panel rejected the plaintiffs’ reliance on Washegesic v. Bloomingdale Public Schools, 33 F.3d 679 (6th Cir. 1994), in which the Sixth Circuit held that it was unconstitutional for a public school to display a portrait of Jesus in a hallway. It found “the purpose of the arrangement with Kingswood was purely educational, and the religious references merely incidental,” concluding that a “reasonable observer would rightly view the religious references in this case very differently from the portrait in Washegesic.”
The panel also found the plaintiffs’ reliance on Doe ex rel. Doe v. Elmbrook School District, 687 F.3d 840 (7th Cir. 2012) (en banc), unpersuasive because “[t]here are significant differences between Elmbrook and the case before us that lead to the difference in the outcome.” Finally, it found no excessive entanglement between church and state under Lemon’s third prong. It emphasized that JCBSC was not providing KS with government aid, rather it was paying under a contract for services rendered. It noted, “Kingswood’s performance of the contracted service, the education of the alternative-school students, did not require significant monitoring because it took place in the context of an established and structured day program—a program that, as discussed, was consistently run in a secular manner.” Lastly, the panel concluded there was no danger of excessive entanglement from the delegation of essential governmental functions to religious entities because KS “carried out its service in a secular manner.”
The concurring opinion argued that it was a canard to grant the plaintiffs standing as taxpayers, contending the suit was an “employment-contract dispute masquerading as an Establishment Clause case.” It also stressed that courts “do not grant monetary damages for violations of the Establishment Clause.”
Turning to the reasoning in the panel’s opinion, the concurrence conceded that “unless and until the Supreme Court explicitly holds that it has abandoned the Lemon endorsement test, the lower courts are bound to continue applying that test in contexts where the Court has previously employed it.” Nonetheless, it took issue with the “lead opinion’s dismissing as irrelevant last year’s Supreme Court opinion in Town of Greece.” It noted, “There, in the context of a challenge to legislative prayer, the Supreme Court addressed the issue of what test governs an Establishment Clause challenge to government action.” The concurrence argued: “Town of Greece is apparently a major doctrinal shift regarding the Establishment Clause, declaring a two-pronged test for Establishment Clause cases, a test based upon the historical approach the Court had followed in Marsh, Van Orden, and Hosanna-Tabor, and adding the coercion principle it followed in Lee and Santa Fe.”
Regarding application of Town of Greece’s historical-inquiry test in the present case, the concurrence stated “the question would be whether the Framers would regard the Kingswood contract as an establishment of religion.” It posited that if JCBSC’s “contract would be historically acceptable to the Framers, we would then be required to also ask if it passes muster under the coercion prong of Town of Greece.”
In the concurring judge’s view, the U.S. Supreme in Town of Greece “gave several indications that it intends to displace the endorsement test, foremost of which was that Justice Kennedy’s opinion for the Court went beyond Marsh to adopt his four-Justice dissent from Allegheny.” While it believed that the “Supreme Court has rejected the endorsement test in favor of the historically grounded coercion test,” it concluded “lower courts are bound to follow Supreme Court cases invoking the endorsement test until the Justices explicitly overrule Allegheny and its progeny.” As a result, the concurrence ultimately conceded “school-funding cases must be examined under the endorsement test,” and applying that test in the present case led to the conclusion “that no reasonable observer would regard the School Board’s action as an endorsement of religion.”
Smith v. Jefferson Cnty. Bd. of Comm’rs, No. 13-5957 (6th Cir. Jun. 11, 2015)
[Editor’s Note: In May 2014, Legal Clips summarized an article in The New York Times reporting that a five justice majority, led by Justice Kennedy, in Town of Greece v. Galloway held that a New York State town’s practice of beginning public town board meetings with a prayer from a “chaplain of the month” passes constitutional muster. Kennedy wrote, “[C]eremonial prayer is but a recognition that, since this nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond that authority of government to alter or define.”
In August 2012, Legal Clips summarized the Seventh Circuit’s en banc decision in Doe v. Elm Brook S.D. holding that a Wisconsin school district violated students’ rights under the Establishment Clause when it held graduation ceremonies for two of its high schools at a local Christian church. After analyzing the facts under the test established in Lemon v. Kurtzman, 403 U.S. 602 (1971), and the endorsement and coercion tests, the majority concluded that the sheer religiosity of the church ran afoul of the “primary effect” prong of Lemon, in that it created a likelihood that high school students would perceive a link between church and state, conveying a message of religious endorsement. The majority stressed that its ruling was of limited scope, and should not be read as constitutionally condemning any government use of church-owned facilities, nor “as critical of the cases permitting governmental use, in the proper context, of certain church-owned facilities.”]