Roark v. South Iron R-1 School Dist.

573 F.3d 556

Lonney ROARK, et al., Plaintiffs-Appellees, v. SOUTH IRON R-1 SCHOOL DISTRICT, et al., Defendants-Appellants Foundation for Moral Law, Amicus on Behalf of Appellants, American Jewish Congress; Americans United for Separation of Church and State, Amici on Behalf of Appellees.

No. 08-1847.

United States Court of Appeals, Eighth Circuit.

Submitted: December 11, 2008.

Filed: July 16, 2009.

Mathew D. Staver, argued, Maitland, FL, (Stephen M. Crampton, Mary Elizabeth McAlister, Lynchburg, VA, Anita Staver, Maitland, FL, on the brief), for Appellants.

Roy S. Moore, Bemjamin D. DuPre', Gregory M. Jones, Mongamery, AL, on the brief, for Amicus Curiae on Behalf of Appellants.

Leonard J. Frankel, argued, St. Loius, MO, (Anthony E. Rothert, St. Loius, MO, on the brief) for Appellee.

Marc D. Stern, Charles G. Moerdler, Christopher Fletcher, David Khane, New York, NY, Ayehsa N. Khan, Alexander Joseph Luchenitser, Washington, DC, Kristina Silja Bernard, Seattle, WA, on the brief, for Amicus Curiae on Behalf of Appellees.

Before LOKEN, Chief Judge, BEAM, Circuit Judge, and KYLE,^* District Judge.

LOKEN, Chief Judge.

For some thirty years, school officials at South Iron Elementary School in Iron County, Missouri, permitted representatives of Gideons International to distribute Bibles to fifth grade students in the classroom, during the school day, in the presence of a teacher or school administrator. In February 2006, parents of several elementary school students commenced this action against the School District, members of the Board of Education, and school officials (referred to collectively as "the District"), alleging that this practice violated the Establishment Clause of the First Amendment. Ten days before a hearing on plaintiffs' motion for a preliminary injunction, the Board passed a new policy on literature distribution prepared by counsel recently retained to represent the District in the lawsuit.

The district court granted a preliminary injunction enjoining the District from "allowing distribution of Bibles to elementary school children on school property at any time during the school day." Doe v. S. Iron R-1 Sch. Dist., 453 F.Supp.2d 1093, 1104 (E.D.Mo.2006). We affirmed the preliminary injunction, declining to address the constitutionality of the new policy. Doe v. S. Iron R-1 Sch. Dist., 498 F.3d 878, 882-84 (8th Cir.2007). The case returned to the district court, where plaintiffs amended their complaint to allege that the new policy violates the Establishment Clause because it allows distribution of Bibles to elementary school students during the school day. The district court granted plaintiffs summary judgment. Roark v. S. Iron R-1 Sch. Dist., 540 F.Supp.2d 1047, 1056-65 (E.D.Mo.2008). The court entered a permanent injunction identical to the preliminary injunction we upheld in Doe, 498 F.3d at 884. It also granted a declaratory judgment "on plaintiffs' complaint." The District appeals, arguing that the new policy is constitutional and the permanent injunction should be modified to allow Bible distribution under that policy. Reviewing First Amendment rulings de novo, we affirm the permanent injunction but reverse the declaratory judgment. United States v. Corum, 362 F.3d 489, 495 (8th Cir.2004), cert. denied, 543 U.S. 1056, 125 S.Ct. 865, 160 L.Ed.2d 781 (2005) (standard of review).

I. Background

In February 2005, District Superintendent Homer Lewis informed the Board that several attorneys, including the District's attorney and its insurer's attorney, had advised the District to discontinue its practice of allowing the Gideons to distribute Bibles to fifth grade students. Lewis suggested the Board adopt an "open forum" policy if it wished to allow distribution of Bibles. The Board voted "to pretend this meeting never happened, and to continue to allow the Gideons to distribute Bibles as we have done in the past." At its March meeting, the Board voted "to delay the Gideon's distribution of Bibles" pending further advice from the District's attorney.

At a September Board meeting, Lewis read letters from the ACLU, the District's attorney, and the District's insurer opining that the Bible distribution practice was unconstitutional. A Gideons representative attended the meeting. When asked if the prior practice could be modified to allow school children to distribute the Bibles he responded that Gideon Bibles may not be distributed unless Gideons are present. The Board then passed a motion to allow the Gideons to distribute Bibles to fifth graders. The District's attorney urged the Board to rescind this action. The Board declined to do so. Superintendent Lewis resigned. On October 4, 2005, after meeting with two Board members, the elementary school principal accompanied two Gideons to the fifth grade classrooms and observed as the Gideons passed out Bibles. This lawsuit followed.

The new policy passed on the eve of the preliminary injunction hearing is set out in Appendix A to our opinion in Doe, 498 F.3d at 884-85.¹ It provides that an organization wishing to distribute "any printed material" must submit the material to the Superintendent for approval in advance. All requests "shall be approved" unless the material is libelous, obscene, or unlawful; advertises products or services for sale; endorses a candidate for public office; promotes alcohol, tobacco, drugs, or other illegal activity; or is likely to cause substantial disruption at the school. If approved, the material may be distributed either in front of the administrative offices or at a table in a corner of the cafeteria "either before or after the school day, before or after classes or during lunch time." If a request is denied, the organization may appeal to the Board, which "shall hold a hearing" at its next regular meeting.

In granting plaintiffs summary judgment, the district court applied the test first articulated in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), and concluded that the new policy violates the Establishment Clause because its purpose is "the promotion of Christianity" and its primary effect is "advancing religion by conveying a message of endorsement to elementary school children." 540 F.Supp.2d at 1060, 1064.

II. The Permanent Injunction

The district court permanently enjoined the District from "allowing distribution of Bibles to elementary school children on school property at any time during the school day." Like the preliminary injunction, this decree does not address the District's new policy or prescribe how the District may distribute other materials and literature to students. In the district court, the District argued that plaintiffs are not entitled to a permanent injunction because adoption of the new policy made the challenge to the past practice of Bible distribution moot. The district court properly rejected that contention, 540 F.Supp.2d at 1055-56, and the District does not raise that issue on appeal. Nor does the District challenge the court's decision that the prior practice of distributing Bibles in fifth grade classrooms should be permanently enjoined as violative of the Establishment Clause, a ruling consistent with our discussion of the merits of this issue in Doe, 498 F.3d at 882-83.

The District argues on appeal that the permanent injunction "impermissibly mandates a content-based restriction on speech in the limited public forum created by the content-neutral [new] policy," a contention we rejected in Doe. Id. at 882-83. Assuming without deciding that the issue is not foreclosed by Doe because of the difference between permanent and preliminary injunctions, we again conclude the contention is without merit.

The First Amendment limits the government's authority to impose content-related restrictions on private speakers in a public forum. See Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106-07, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001). "However, there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." Wigg v. Sioux Falls Sch. Dist. 49-5, 382 F.3d 807, 813 (8th Cir.2004) (quotation omitted). The permanent injunction is based on a judicial determination that the District has for decades impermissibly endorsed a particular religion by allowing the distribution of Bibles in fifth grade classrooms. The injunction imposes a somewhat broader prohibition—"distribution of Bibles to elementary school children on school property at any time during the school day"—but its scope is facially reasonable and is not challenged on appeal.² The injunction does not address, and therefore does not categorically prohibit, other ways in which the District might, in a neutral manner, facilitate Bible distribution by private parties, such as the distribution of flyers advertising off-campus or after-school distributions. Cf. Child Evangelism Fellowship of N.J. Inc. v. Stafford Twp. Sch. Dist., 386 F.3d 514, 530-35 (3d Cir.2004), and cases cited.

The Supreme Court "ha[s] never held the mere creation of a public forum shields the government entity from scrutiny under the Establishment Clause." Santa Fe Ind. Sch. Dist. v. Doe, 530 U.S. 290, 303 n. 13, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000). The Board did not repeal its prior actions allowing Bible distribution, and the new policy does not address the distribution of religious materials. But the policy provides that requests "shall be approved" unless the materials fall within limited exceptions that do not apply to Bibles, creating a strong inference that any request by the Gideons to distribute Bibles on school property during the school day will be approved. In these circumstances, the new policy provides no defense to entry of the reasonable permanent injunction at issue. The injunction is affirmed.³

III. The Declaratory Judgment

The district court's final...