Petition — Roberts v. Madigan

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MAR 15 1991

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

KENNETH ROBBRRTS,

" Petitioner,

KATHLEEN MADIGAN and ADAMS COUNTY

ScHOOL District No. 50,

Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

JORDAN W. LORENCE JAY ALAN SEKULOW

CIMRON CAMPBELL (Counsel of Record)

MARK N. TROOBNICK JAMES M. HENDERSON, SR.

370 L’Entant Promenade 1000 Thomas Jefferson St., N.W.

Suite 800 Suite 520

Washington, D.C. 20024 Washington, D.C. 20007

(202) 488-7000 (202) 337-2273

ROGER WESTLUND THOMAS PATRICK MONAGHAN

12000 N. Washington St. WALTER M. WEBER

Suite 207 6375 New Hope Road

Thornton, CO 80241 New Hope, KY 40052

(303) 450-0833 (502) 549-5454

Attorneys for Petitioner

WILSON - Eras Printixa Co . Inc. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Does the Establishment Clause require a_ public

school to censor a fifth-grade classroom library by ban-

ning, from among some 240 volumes, the two books The

Bible in Pictures and The Story of Jesus?

2. Does the Establishment Clause require a_ public

school to censor the personal reading selections of a fifth-

grade teacher by forbidding him to read the Bible dis-

creetly and silently to himself during a 15-minute silent

reading period in the classroom?

3. Does the Establishment Clause require a fifth-grade

public school teacher to hide the Bible in his desk during

school hours instead of leaving the Bible among other

volumes on his cluttered desk top?

4. Tid the public school principal and school district

violate the neutrality requirement of the Establishment

Clause by ordering a fifth-grade teacher to: a) remove

two allegedly Christian books from his classroom library

of some 240 volumes; b) stop reading the Bible discreetly

and silently to himself during a silent reading period;

and, c) hide the Bible in his desk during school hours?

5. Did the public school principal and school district

violate the rights of a fifth-grade teacher to free speech

and academic freedom under the First Amendment by

ordering him to: a) remove two allegedly Christian

books from his classroom library of some 240 volumes;

b) stop reading the Bible discreetly and silently to him-

self during a silent reading period; and, c) hid the

Bible in his desk during school hours?

(i)

PARTIES

In addition to petitioner Kenneth Roberts, the follow-

ing individuals were also appellants in the court of ap-

peals and plaintiffs in the district court: Mare and Zay

Nelson and their daughters Kelly and Amy Nelson;

Debra Jean White and her daughter Kelly White.

TABLE OF CONTENTS

QUESTIONS PRESENTED ......0oon..........cseeeeeceeceeeseeee

Tatil ip aeknannnticncstanieandssensscanninerateneannannsen

Tames OF AUTHORITIBG .....................ccccccccoscecsccesses

DECISIONS BELOW ....................c..ccc.ccc.scec0s i sPOP AERO

STATEMENT OF THE CASE ....... kA ste Re

a sc nanunennpsnauusneccanscesasen

1. Censorship of the classroom library ..............

2. Censorship of Ken Roberts’s personal reading

a, aipbnkinuaibedaiehankasbiasiddanioniines

3. Censorship of the Bible from the school

led IRD se Deere seen

ee PI I EI occ onenceencansccscoavsnnennsannases

REASONS FOR GRANTING THE WRIT _..........

EH.

THIS CASE RAISES THE IMPORTANT AND

UNSETTLED QUESTION WHETHER THE

ESTABLISHMENT CLAUSE REQUIRES AF-

FIRMATIVE CENSORSHIP OF OPTIONAL

READING MATERIAL IN A_ PUBLIC

SCHOOL CLASSROOM LIBRARY ...............

THIS CASE RAISES THE IMPORTANT AND

JINSETTLED QUESTION WHETHER THE

ESTABLISHMENT CLAUSE REQUIRES AF-

FIRMATIVE CENSORSHIP OF THE PER-

SONAL READING MATERIALS OF A PUB-

eg Ae yf |G |. nn

(iii)

TABLE OF CONTENTS—Continued

Page

Ill. THIS CASE RAISES THE IMPORTANT AND

UNSETTLED QUESTIONS WHETHER, AND

TO WHAT EXTENT, THE DECISION IN

TINKER v. DES MOINES INDEPENDENT

COMMUNITY SCHOOL DISTRICT APPLIES

TO PUBLIC SCHOOL TEACHERS ................. 20

IV. THIS CASE RAISES THE IMPORTANT AND

UNSETTLED QUESTION WHETHER ExX-

CESSIVE AND UNJUSTIFIABLE EFFORTS

TO ELIMINATE RELIGIOUS MATERIALS

FROM THE PUBLIC SCHOOL VIOLATE

THE NEUTRALITY REQUIREMENT OF

THE ESTABLISHMENT CLAUSE ................. 22

ce ERI RIN ES Lea aE et oh AB aS AE een oo om 25

APPENDICES:

A. Opinion, U.S. Court ef Appeals for the Tenth

ie RE, ES avn la

B. Memorandum Opinion and Order, U.S. District

Court for the District of Colorado (Jan. 5,

ATO OE a RR SS eee ath ke Se eiia. 36a

C. Judgment, U.S. District Court for the District of

Colorado (Jam. 6, 1900) .................................. Ga

D. Plaintiffs’ Exhibit 12: Memorandum from

Kathy Madigan, Principal, to Ke: Roberts

(Sept. 24, 1987) ..... PA AR Ros OE Seer eae 65a

E. Plaintiffs’ Exhibit 16: Memorandum from Kath-

leen A. Madigan to Ken Roberts (Feb. 3,

| arctan lodsshddil iatanh baa ciacnessOipediciaciaelnadliite 67a

F. List of books in classroom library as of Sept. 10,

SE shcictnecetcieesadceseettacshincanicinbnebsodietabinnscaupdinta olan 68a

TABLE OF AUTHORITIES

Cases Page

Board of Educ. v. Pico, 457 U.S. 8583 (1982). 15

Board of Educ. of Westside Community Schools v.

Mergens, 110 L.Ed.2d 191 (1990) _... iene 19

Edwards v. Aguiliard, 482 U.S. 578 (1987) _.14, 18, 23

Epperson v. Arkansas, 393 U.S. 97 (1968) ___ 13, 18, 20

Lemon v. Kurtzman, 403 U.S. 602 (1971) 8, 12, 22, 23

Lynch v. Donnelly, 465 U.S. 668 (1984) ___16, 18, 19, 22

McCollum v. Board of Educ., 333 U.S. 203 (1948). 14, 15,

McDaniel v. Paty, 435 U.S. 618 (1978)... 22, 23

Roberts v. Madigan, 702 F. Supp. 1505 (D. Colo.

I coccacccschcmeanaeienteeaem On a a a ie passim

Roberts v. Madigan, 92i F.2d 1047 (10th Cir.

a REET EE OTITIS PE EN ia passim

School Dist. of Abington Township v. Schempp,

374 U.S. 202 (1963) ......... LR RO NR eal EEO A WHO 3S passim

Stone v. Graham, 449 U.S. 39 (1980) - ........48, 18, 24

Tinker v. Des Moines Indep. Community School

Dist., 393 U.S. 503 (1969)... 11, 12, 20, 21

Wallace v. Jaffree, 472 U.S. 38 (1985) . ss, «18, 22

Widmar v. Vincent, 454 U.S. 263 (1981) 21

Constitutional and Statutory Provisions

U.S. Const. amend. I iebadbstinuiibatlicdickee tact ... passim

U.S. Const. amend. XIV _...... renee

28 U.S.C. § 1254(1) Benn eR ren hentsganeioecaeecete 1

Ff Ree CRANE eat 2

28 U.S.C. § 1843 (3), (4) ......... 5 cakesnibamsaneeanats 2

ee het cna Z he 7 2.7

‘y

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No.

KENNETH ROBERTS,

- Petitioner,

KATHLEEN MADIGAN and ADAMS CoUNTY

SCHOOL District No. 50,

Respondents,

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

DECISIONS BELOW

The decision of the district court is reported as Rob-

erts v, Madigan, 702 F. Supp. 1505 (D. Colo. 1989),

The decision of the court of appeals is reported as Rob-

erts v. Madigan, 921 F.2d 1047 (10th Cir. 1990).

JURISDICTION

The judgment of the United States Court of Appeals

for the Tenth Circuit was entered on December 17, 1990.

This Court has jurisdiction, under 28 U.S.C. § 1254/1),

to review the judgment of the court of appeals.

CONSTITUTIONAL PROVISIONS

The first amendment to the United States Constitution

provides as follows:

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of

the press; or the right of the people peaceably to as-

semble, and to petition the Government for a redress

of grievances.

U.S. Const. amend. I.

The first section of the fourteenth amendment to the

United States Constitution provides as follows:

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens

cf the United States and of the State wherein they

reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, with-

out due process of law; nor deny to any person

within its jurisdiction the equal protection of the

laws.

U.S. Const. amend. XIV, § 1.

STATEMENT OF THE CASE

The underlying action in this case is a civil rights suit

for damages and for declaratory and injunctive relief,

brought under 42 U.S.C. § 1983. Federal jurisdiction in

the district court was based on 28 U.S.C. $§ 1331, 1348

(3) and (4),

Petitioner Kenneth Roberts—plaintiff in the district

court '—was at all relevant times a fifth-grade teacher

at the Berkeley Gardens Elementary School. Respondent

Kathleen Madigan—defendant in the district court—was

at all relevant times the principal of Berkeley Gardens

' Additional plaintiffs in the district court were Mare and Zay

Nelson and their daughters Kelly and Amy Nelson, and Debra Jean

White and her daughter Kelly White. These plaintiffs were appel-

lants before the court of appeals but are not parties before this

Court.

Klementary School. Respondent Adams County School

District No. 50—also a defendant in the district court—

is a public school district in Westminster, Colorado and

Was at all relevant times petitioner Roberts’s employer.

At issue in the present case is the constitutional pro-

priety of certain censorship actions taken by the respond-

ent school principal and school district allegedly to fulfill

the mandates of the Establishment Clause.

A. Statement of Facts

At the time this litigation began, petitioner Ken Rob-

erts was teaching fifth grade students at the Berkeley

Gardens Elementary School, a public school in Adams

County School District No. 50. Roberts had already been

a public school! teacher for over 18 years.”

1. Censorship of the classroom library

Among the subjects Ken Roberts taught to his fifth

grade students was reading. Tr. 21. Roberts spent about

one hour and forty-five minutes ech day on this subject,

Tr, 22, beginning with fifteen minutes of silent reading,

id, During this silent reading period, students would

read books of their own choosing. Tr. 24. Students

could bring books from home to read, or they could choose

books from the school library, or they could choose from

the collection of books Roberts maintained in his class-

room, Tr, 23. (Like many other teachers at Berkciey

Gardens Elementary School, Roberts had a “classroom

library.” Tr. 26.)

The school library contained, among several thousand

volumes, Tr. 84, some twenty-five or thirty religious

books, Tr. 85, 95. In particular, the school library con-

* Roberts is now in his twenty-first vear as a public school teacher.

He currently teaches the second grade at a diiferent elementary

school in the same school district.

tained a Bible, Tr. 80, and a children’s Bible, Tr. 84,

131. The library in Ken Roberts’s classroom contained

some 240 volumes, Tr. 25, including a wide variety of

fiction, nonfiction, science, biography, and history books,

Tr. 25. ‘A complete list of the titles is found in the

Appendix. See App. 68a.) Among these books were

classics such as Tom Sawyer, The Wizard of Oz, and

Charlotte’s Web, as well as less familiar books such as

Our mazing World of Nature and The Mystery of the

Whispering Mummy. Also in the classroom library were

two books that contained discussions of Indian religions,

a book on Greek mythology, and The Bible in Pictures

and The Story of Jesus. Tr, 51.

On the evening of September 10, 1987, the Berkeley

Gardens Elementary School held an open house for par-

ents. Tr. 27-28. One parent, after visiting Ken Roberts’s

classroom and examining the contents of the classroom

library, complained to the school principal about two

books in the collection: The Bible in Pictures and The

Story of Jesus. Tr. 28, 117-19.

The principal, respondent Kathleen Madigan, con-

fronted Roberts about these books that same evening. Tr.

28. Madigan examined the books briefly, but did not ask

Roberts how the books were used in the classroom. Tr.

29-39. Instead, Madigan simply ordered Roberts to re-

move these two books from the collection “because of sep-

aration of church and state.” Tr. 28, 30, 118-20. Rob-

erts immediately complied with this order, placing the

two books in a box out of sight and out of the reach of

the students. Tr. 29.*

* Madigan simultaneously ordered Roberts to remove a_ poster

from the classroom wall. Tr. 30, 118-19. This poster depicted a

nature scene—Colorado mountains and a lake—and stated at the

bottom, “You only have to open your eyes to see the hand of God.”

ze Se

2. Censorship of Ken Roberts’s personal reading material

Like other teachers at Berkeley Gardens Elementary

School, Ken Roberts kept various books and papers on his

desk, including some “personal non-curriculum related

books.” Tr. 32, 34, 65-66. Among the books on Roberts’s

desk were Where the Sidewalk Ends, Events that Shook

the World, and a couple of books about the definitions of

children’s names. Tr. 34, 54, 65.

Roberts also kept on his desk a Bible, which he had

signed out of the Tennyson Knolls Elementary School

library. Tr. 32, 52. This Bible was not prominently dis-

played, and in fact was often buried among other books

and papers. Tr. 66. Roberts read from the Bible during

free time and lunch breaks. Tr. 33.

During the silent classroom reading period, Roberts

would sometimes read silently to himself in order to model

reading for the students. Tr. 33. Roberts has read vari-

ous books during this silent reading period, including My

Side of the Mountain and Eating Fried Worms. Tr. 34.

He has also read from a book about the life of Buddha.

Tr. 34, from books about Indians that include discussions

of the religion of the Indians, id., and from the Bible he

kept on his desk, Tr. 33.

Roberts never read from the Bible to his students. Tr.

32. Nor did Roberts ever announce to the students that

he was reading from the Bible. Tr. 33. Roberts remained

at his desk when reading the Bible, Tr. 33; when so

seated, students sitting at their own desks could not see

what particular book Roberts was reading. Tr. 151-52.

Roberts further testified that it would be “unethical” for

a public school teacher to teach the Bible with a view to

converting the students. Tr. 41. Said Roberts: “I have

never done it, and I don’t intend to start it.” TJd.

On the same evening that the school principal, Kathleen

Madigan, ordered Roberts to remove the two books from

the classroom library, she also ordered Roberts to hide

the Bible in his desk during class hours. Tr. 32, 120. As

with the two classroom library books, Madigan did not

ask Roberts how he used the Bible or whether he read

aloud from it. Tr. 36. Madigan had never ordered

Roberts to keep any other book off his desk top. Tr. 65.

Nor has Madigan ever told Roberts that he could only

read certain books during the silent reading period. Tr.

68.4

Principal Madigan subsequently confirmed, in a written

memorandum dated September 24, 1987, her orders to

toberts to remove The Bible in Pictures and The Story

of Jesus from the classroom and to keep the Bible con-

cealed in his desk during schoo] hours (8:00 a.m.-3:30

p.m.). App. 65a. This memorandum concluded as fol-

lows:

The law is clear that religion may not be taught in

a public school. To avoid the appearance of teach-

ing religion, I have given you this directive. Failure

to comply with this directive will be considered in-

subordination and could result in disciplinary action.

Id.

53. Censorship of the Bible from the school library

During the same month that the school principal or-

dered Ken Roberts to remove The Story of Jesus and

The Bible in Pictures from his classroom library and also

ordered Roberts to conceal in his desk the Bible he used

for personal reading, the principal went to the school

library in search of the copy of the Bible kept there. Tr.

72, 74, 81, 129.

4 Principal Madigan claims that on two prior occasions she had

directed Roberts not to read the Bible during class time and to keep

the Bible inside his desk. Tr. 115-17. Roberts recalled no such

order, and testified that had Madigan given such a directive, he

would have complied. Tr. 35, 121. It is undisputed, however, that

Madigan ordered the Bible, and only the Bible, to be kept off

Roberts’s desk top during class hours. Tr. 65.

The librarian handed Madigan the reference copy of

the Bible, and Madigan walked cut of the library. Tr. 74,

82. A music teacher present at the time testified that

Madigan told the librarian, “hand that to me right now,

you can’t have that on the shelf.” Tr. 74. The music

teacher further testified that Madigan took the Bible out

of the library. Tr. 74-75. The school librarian testified

that Madigan did not give the Bible back and that the

Bible remained missing at the time of trial. Tr. &2.

(Madigan denied that she took the Bible from the library

that day. Tr. 130. The district court, however, ordered _,

respondents to replace the missing Bible and enjoined re-

spondents from removing the Bible in the future. Roberts

v Madigan, 702 F. Supp. 1505, 1519 (D. Colo. 1989).

(App. 60a.) )

The record does not reveal what religion, if any, Ken

toberts professes. There have never been any allegations

or complaints that Roberts was teaching religion to, or

proselytizing, his students. Tr. 40.

Bb. Course of Proceedings

Kenneth Roberts filed suit in the United States Dis-

trict Court for the District of Colorade, naming respond-

ents Madigan and Adams County School Dist. No. 50 as

defendants. Roberts sought damages, an injunction, and

a declaration that by banning the two books The Story of

Jesus and The Bible in Pictures from Roberts’s classroom

library, by forbidding Roberts to read the Bible silently

to himself, by ordering Roberts to hide the Bible in his

desk during the school day, and by removing the refer-

ence copy of the Bible in the school library, the principal

and school district had violated the Free Speech and Es-

tablishment Clauses of the First Amendments, the Equal

Protection Clause of the Fourteenth Amendment, and the

rights secured to Roberts under 42 U.S.C. § 1983.

The district court consolidated the hearing on prelimi-

nary injunctive relief with the trial on the merits.

Roberts v. Madigan, 702 F. Supp. 1505, 1508 (D. Colo.

1989) (App. 37a.) After hearing evidence and argu-

ments, the district court ordered respondents to replace

the missing Bible in the school library; the court also

permanently enjoined respondents from removing that

Bible in the future. 7d. (App. 60a.)* The district court

dismissed Roberts’s claims regarding the censorship of the

classroom library and the prohibition of his personal,

silent reading of the Bible. 7d. The district court also

rejected Roberts’s challenge to the principal’s order re-

quiring him to conceal the Bible in his desk during school

hours. Id,

The district court ruled that the censorious actions of

the school district did not violate the Establishment

Clause. 7d. at 1514-16. (App. 49a-52a.) Applying the

first two “prongs” of the three-part Lemon test,® the dis-

trict court held that the censorship had a secular purpose

and a permissible primary effect. The court held that

school district’s “purpose in the removal of the books

[from Roberts’s classroom library] was to promote reli-

gious neutrality according to the mandates of the Estab-

lishment Clause.” Jd. at 1515. (App. 50a.) The purpose

of requiring Roberts to conceal the Bible in his desk,

meanwhile, was to “insulatie] the students from undue

exposure to Roberts’ religious beliefs.” Jd. (App. 51a.)

The court further ruled that the “primary effect’ of the

censorship actions “was neither to advance nor inhibit

religion,” id., but rather was “to insulate students from

®» Respondents did not appeal from this ruling, and the issue is

not before this Court.

®*Under Lemon v. Kurtzman, 403 U.S. 602 (1971), government

action must have a “secular purpose,” id. at 612, must have a “prin-

cipal or primary effect” that “neither advances nor inhibits reli-

gion,” id., and must not foster “excessive government entanglement

with religion,” id. at 613. Petitioner Roberts had not argued that

the actions of the school officials violated the “entanglement” prong

of the Lemon test. Hence, the court did not address this question.

undue exposure to Roberts’ religion,” id. at 1516. (App.

52a.)

The district court went on to hold that it was Ken

Roberts, and not the school officials, who had violated the

Establishment Clause. Declaring that there was “nothing

lin the record] to suggest that Roberts had a_non-

religious purpose in placing the |contested] books in the

classroom library, or in reading the Bible during class-

room hours,” the court “conclude|d] that there was an

improper religious purpose behind Roberts’ use of the

Bible and the presence of the religious books in his class-

room library.” Jd. at 1515. (App. 51a.)

The district court acknowledged that a public school

could, consistent with the Establishment Clause, maintain

a Bible in the school library. Id. at 1512-13 ‘App. 45a-

46a.) “In this age of enlightenment, it is inconceivable

that the Bible should be excluded from a school library.”

Id, at 1513. (App. 45a.) The court also held that “|t|he

Establishment Clause does not require that religious books

be removed from the shelves of school libraries.” Jd.

(App. 46a) (emphasis added) (citing School Dist. of

Abington Township v. Schempp, 374 U.S. 203, 225

(1963) ).7

The district court reached the opposite conclusion, how-

ever, regarding the two books censored from Roberts’s

classroom library. 702 F. Supp. at 1513-14. (App. 46a-

48a.) The court relied upon three asserted distinctions.

Id. First, said {he court, neither The Bible in Pictures

nor The Story of Jesus was a “major uistorical and

literary work” or ‘source of reference” like the Bible.

Id, at 1513. (App. 46a.) Second, the court said, the school

library collection was segregated according to subject

matter and contained books on various religions, while

*On the basis of these holdings, the court ordered the principal

and the school district to replace the missing Bible in the schoo]

library. 702 F. Supp. at 1509, 1519. (App. 37a, 60a.)

the classroom library had no arrangement by subject and

supposedly contained only two “religiously oriented”’

books.” Jd, at 1513. (App. 47a.) Third, classroom attend-

ance was compulsory and subject to close supervision by

teacher and by peers, while students in the school library

could select books at will and in privacy. /d. at 1513-14.

(App. 47a.)

Regarding Roberts’s personal Bible reading, the dis-

trict court was “not persuaded that a teacher’s discre|et],

inconspicuous, and silent reading of the Bible in the class-

room would necessarily expose students to undue religious

influence,’ id. at 1516 ‘App. 58a); consequently,

“Roberts’ silent reading of the Bible thus presents a

closer question and more difficult balance of First Amend-

ment rights,” id. The court nevertheless upheld the prin-

cipal’s decision to forbid Roberts’s silent, personal Bible

reading, holding that school officials have the authority to

decide for themselves “whether a teacher’s use of the

Bible . . . constitutes undue religious influence.” Jd. at

1517. (App. 55a.) In response to Roberts’s objection that

the school officials discriminatorily permitted him to teach

about American Indian religion, the district court held

that such teaching was “teaching about religion,” while

toberts’s silent, personal Bible reading, and the presence

of The Story of Jesus and The Bible in Pictures in the

classroom library, was “teaching religion,” id. (App. 55a-

56a) (emphasis in original). The court declared that

“exposure to the tenets of a little known religion, such as

those followed in American Indian culture, is far less in-

fluential on young students than exposure to a modern

<In light of the undisputed fact that the classroom library con-

tained a book on mythology and two books describing Indian reli-

gion, Tr. 51, 64, the district court finding on this point must be

regarded as clearly erroneous. Compare 921 F.2d at 1055 (App.

15a) (court of appeals opinion noting “‘the presence of books deal-

ing with Greek gods and goddesses and American Indian religions”

in the classroom library).

day, widely observed religion which is a recognizable part

of our society.” Jd. (App. 56a.)

Addressing Ken Roberts’s asserted rights to free

speech and academie freedom, the district court acknowl-

edged that it is “beyond question that teachers are en-

titled to First Amendment freedoms in the public schools.”

Id. at 1518 (App. 56a) (citing Tinker v. Des Moines

Indep. Community School Dist., 393 U.S. 503, 506

(1969) ). The court held, however, that “the right of stu-

dents and their parents to be free of religious influence in

the classroom outweighs Roberts’ right to free speech/

academic freedom.” 702 F. Supp. at 1518. (App. 58a.)

A divided court of appeals affirmed. Roberts v.

Madigan, 921 F.2d 1047 (10th Cir. 1990). (App. la.)

While acknowledging that it is “neither wise nor neces-

sary to require school officials to sterilize their classrooms

and libraries of any materials with religious references,”

id. at 1055 (App. 16a', the court of appeals nevertheless

found no Establishment Clause violation in the actions of

the school officials, id. at 1054-56. (App. 14a-17a.) In

particular, the court held that the school officials acted

with the legitimate secular purpose of avoiding a viola-

tion of the Establishment Clause, id. at 1054 (App. 14a),

and that the “primary effect” of the school officials’ ac-

tions was ‘‘not to disapprove of Christianity,” but to “dis-

approv|e! of the teaching of Christianity in the public

schools,” id, at 1055 (App. 16a-17a) (emphasis added).

Regarding Roberts’s assertion of a right to free speech

and academic freedom, the court of appeals held that “Mr.

Roberts’ right of expression” had to vield to “the need of

public school officials to censor classroom materials for

the sule purpose of eliminating a possible constitutional

violation.” Jd. at 1056. (App. 18a.) The court ruled that

there was an “improper religious purpose behind Mr.

Roberts’ use of the Bible and the presence of the religious

books in his classroom library,” and that Roberts’s actions

“had the primary effect of communicating a message of

endorsement of a religion” to his students. /d. at 1057.

(App. 20a.)

Senior Circuit Judge Barrett, dissenting, argued that

the respondents’ censorious actions “were acts of intoler-

ance, lack of accommodation and hostility toward the

Christian religion.” Jd. at 1059 (App. 25a) (footnote

omitted). Pointing out that Roberts’s actions were “pas-

sive and de minimis,” id. at 1061 (App. 28a), and that

there was no evidence of proselytization or indoctrination

in Roberts’s class, id. at 1060, 1063 (App. 27a, 32a-33a),

Judge Barrett found “no basis” other than “speculation”

to find any constitutional violation on Roberts’s part, id.

at 1060. (App. 27a.) Judge Barrett observed that the

respondent principal took her censorship actions pursuant

to an “absolute” view on “separation of church and

state,” id. (App. 26a), a view that “insisted on the

obliteration of all Christian books from the school prem-

ises,” 7d. at 1063 (App. 32a) (emphasis in original).

This “extreme stance” would convert the “effect” prong

of the Lemon test “into governmental disapproval, dis-

paragement and hostility toward the Christian religion.”

Id. (App. 32a.)°

Applying the Tinker test, Judge Barrett found “not a

scintilla of evidence ... that any of Mr. Roberts’ prac-

tices materially and substantially interfered with the ap-

propriate operation of the school.” 921 F.2d at 1061.

(App. 20a.) Judge Barrett therefore voted, to reverse the

judgment of the district court. /d. at 1064. (App. 35a.)

* Judge Barrett pointed out that the Free Exercise Clause itself

“would necessarily fall” under such a strict application of the first

two prongs of the Lemon test. Jd. at 1063-64. (App. 34a.)

13 |

REASONS FOR GRANTING THE WRIT

I. THIS CASE RAISES THE IMPORTANT AND UN-

SETTLED QUESTION WHETHER THE ESTAB-

LISHMENT CLAUSE REQUIRES AFFIRMATIVE

CENSORSHIP OF OPTIONAL READING MATE-

RIAL IN A’ PUBLIC SCHOOL CLASSROOM

LIBRARY.

Respondent Madigan, the school principal, ordered

petitioner Roberts, a fifth grade teacher, to remove The

bible in Pictures and The Story of Jesus from a collec-

tion of some 240 books maintained in Roberts’s classroom

library. Madigan based this order on her understanding

that the Establishment Clause required the censorship of

these materials from the classroom. The court of appeals

upheld her action on the same basis.

This Court has never held, however, that the Estab-

lishment Clause requires the affirmative censorship of

classroom library materials that are available for volun-

tary, personal selection and private reading by students.

This Court should grant the present petition for certio-

rari in order to review this significant extension, by the

court of appeals, of the scope of the [Establishment

Clause.

This Court has repeatedly affirmed that the Bible and

religion are appropriate subjects for study in a public

school setting:

It certainly may be said that the Bible is worthy of

study for its literary and historic qualities. Nothing

we have said . . . indicates that such study of the

Bible or religion, when presented objectively as part

of a secular program of education, may not be ef-

fected consistently with the First Amendment,

School Dist. of Abington Township v. Schempp, 374 U.S.

203, 225 (1963). Accord Epperson v. Arkansas, 393 U.S.

97, 106 (196%) ; Stone v. Graham, 449 U.S. 39, 42 (1980)

(per curiam) (“the Bible may constitutionally be used

in an appropriate study of history, civilization, ethics,

comparative religion, or the like’) (citation omitted).

Indeed, a study of religion and religious themes is

essential to a well-rounded education. As Justice Jack-

son observed,

I think it remains to be demonstrated whether it is

possible, even if desirable, . . . completely to isolate

and east out of secular education all that some peo-

ple may reasonably regard as religious instruction.

|For example,| it would not seem practical to

teach either practice or appreciation of the arts if

we are to forbid exposure of youth to any religious

influences. . . . 1] should suppose it is a proper, if

not an indispensable, part of preparation for a

worldly life to know the roles that religion and re-

ligions have played in the tragic story of mankind.

The fact is that, for good or for ill, nearly every-

thing in our culture worth transmitting, everything

which gives meaning to life, is saturated with re-

ligious influences, derived from paganism, Judaism,

Christianity—both Catholic and _ Protestant—and

other faiths accepted by a large part of the world’s

peoples. One can hardly respect the system of edu-

cation that would leave the student wholly ignorant

of the currents of religious thought that move the

world society for a part in which he is being pre-

pared.

: ad

- McCollum v. Board of Education, 333 U.S. 203, 235-36

(1948) (concurring opinion) (emphasis added). See also

Abington, 374 U.S. at 300 (Brennan, J., concurring)

(“it would be impossible to teach meaningfully many

subjects in the social sciences or the humanities without

some mention of religion”); Edwards v. Aguillard, 482

U.S. 578, 607-08 (1987) (Powell, J., joined by O’Connor,

J., concurring) (‘a familiarity with the nature of religi-

ous beliefs is necessary to understand many historical as

well as contemporary events. ... [T]he Establishment

Clause does not prohibit per se the educational use of

religious documents in public school education”) (footnote

omitted). Cf. Board of Educ. v. Pico, 457 U.S. 853, 868

(1982) (plurality) (“access te ideas ... prepares stu-

dents for active and effective participation in the plural-

istic, often contentious society in which they will soon be

adult members’’).

All that Ken Roberts did in the present case was to

make this “necessary” and “worthy” information avail-

able, in a classroom library, for optional, personal read-

ing by the students. As Justice Jackson suggested in

McCollum, one, could hardly respect an educational sys-

tem that did not make such material available to stu-

dents. See 333 U.S. at 235-36 (concurring opinion).

The facts of the present case illustrate the absurdity

of any claim of a constitutional need to censor The Story

of Jesus and The Bible in Pictures ovt of a multi-volume

classroom library. Students in Ken Roberts’s class could

choose from three sources in selecting books for the silent

reading period: their own home, the schoe! library, and

the classroom library. Obviously, a book brought from

home could be a prayer book, a catechism, or a Bible, in-

cluding a “children’s Bible.” The selection available in

the school library also contained, in addition to numerous

secular volumes, over two dozen religious books, including

a Bible, Tr. 80, and also including a children’s Bible,

Tr. 84, 131. The collection of some 240 books in Ken

Roberts’s classroom library likewise included, in ad-

dition to umerous secular volumes, several religious

books, including The Story of Jesus and a children’s

Bible, The Bible in Pictures. All of these books were

available for student use on a purely voluntary, personal

basis.

The [Establishment Clause certainly does not require

public school officials to treat religious books like contra-

band when they are brought from the home, whether for

personal reading by the student or for lending out to

other students. Nor, as the district court correctly ob-

served, is it unconstitutional to have religious books in

the school library available for student use. 702 F. Supp.

at 1512-13. (App. 45a-46a.) How, then, could the Es-

tablishment Clause require the censorship of a compar-

able multi-volume collection in a classroom library,

particularly when that collection represents only a small

portion of the thousands of books (whether secular or re-

ligious) available for student selection?

As Judge Barrett noted in dissent in the court of ap-

peals, this is not a case in which the teacher has urged

or even suggested that students select certain religious

books to read. 921 F.2d at 1063 (App. 32a-33a.) Such

teacher involvement would be constitutionally problematic

regardless of whether the chosen volume came from the

nome, the school library, or the classroom library. In the

present case, by contrast, the censorship of the books The

Story of Jesus and The Bible in Pictures can only be de-

fended by asserting an absolute constitutional bar to the

presence of these books in the classroom. The Establish-

ment Clause imposes no such command.

This Court “consistently has declined to take a rigid,

absolutist view of the Establishment Clause.” Lynch v.

Donnelly, 465 U.S. 668, 678 (1984). As in Lynch, the

“focus of our inquiry” must be on the presence of the

challenged books in the relevant “context,” id. at 679—

here, hundreds of volumes available for voluntary stu-

dent selection in a classroom library, with additional

thousands of alternative books available in the school

library, and still more books available from each stu-

dent’s home.

The court of appeals therefore erred by singling out

for scrutiny the two books The Bible in Pictures and The

Life of Jesus. “Focus exclusively on the religious com-

ponent of any activity would inevitably lead to its invali-

dation under the Establishment Clause.” Lynch, 465

U.S. at 680.

The question presented in the case at bar is whether a

public school is required to preclude, in advance, the vol-

untary, personal selection by students of the books The

Story of Jesus and The Bible in Pictures, by removing

these volumes from a classroom library collection. The

court of appeals held such censorship to be constitution-

ally mandatory. This Court should grant review to ad-

dress this highly questionable reading of the Establish-

ment Clause.

Il. THIS CASE RAISES THE IMPORTANT AND UN-

SETTLED QUESTION WHETHER THE ESTAB-

LISHMENT CLAUSE REQUIRES AFFIRMATIVE

CENSORSHIP OF THE PERSONAL READING

MATERIALS OF A PUBLIC SCHOOL TEACHER.

Respondent Madigan, the school principal, ordered

teacher Ken Roberts to conceal in his desk a Bible from

which Roberts sometimes read during breaks and during

a silent reading period in class. Madigan claimed that

the Establishment Clause required censorship of this

book, and the court of appeals agreed.

This Court has held that the Establishment Clause

prevents a public school teacher from reciting Bible pas-

sages aloud for purposes of devotion or indoctrination.

School Dist. of Abington Township v. Schempp, 374 U.S.

203 (1963). The Court has never held, however, that a

public school teacher’s silent, discreet, personal reading

of the Bible during a silent reading period in the class-

room violates the Constitution. Nor has the Court ever

suggested that the mere unobtrusive presence of a Bible

on a public school teacher’s desk offends constitutional

norms. This Court should grant the present petition for

certiorari to review the drastic extension, by the court of

appeals, of the prohibitory reach of the Establishment

Clause.

Implicit in the decisions of this Court is a consistent

recognition that a public school teacher who studies the

Bible, or who discreetly and silently reads the Bible to

himself, does not tpso facto violate the Establishment

Clause. “It certainly may be said that the Bible is

worthy of study for its literary and historic qualities.”

Abington, 374 U.S. at 225. If a teacher may constitu-

tionally use the Bible in a course of public school instruc-

tion, as this Court has repeatedly affirmed, see Epperson

v. Arkansas, 383 U.S. 97, 106 (1968) ; Stone v. Graham,

449 U.S. 39, 42 (1980) (per curiam); McCollum v.

Board of Educ., 333 U.S. 203, 235-36 (1948) (Jackson,

J., concurring) ; Edwards v. Aguillard, 482 U.S. 578, 606-

08 (1987) (Powell, J., joined by O’Connor, J., concur-

ring); Lynch v. Donnelly, 465 U.S. 668, 679 (1984) ; and

if, moreover, a familiarity with the Bible is an essential]

component of cultural literacy, see supra pp. 14-15 (citing

vases); and if, finally, the Bible may be made available

for voluntary student use, see 702 F, Supp. at 1513 (App.

45a) (“it is inconceivable that the Bible should be ex-

cluded from a school library”); then, it is simply incon-

ceivable that a teacher should be absolutely forbidden to

study or to peruse this fundamentally important work.

In the present case, Ken Roberts did not read aloud

from the Bible. He only read it silently to himself, and

in a discreet fashion. The book he read was not identi-

fiable to students seated in his classroom, Tr. 151-52,

and the Bible was only one of various books and papers

cluttering his desk, Tr. 32, 34, 66. “Given the types of

subjects youthful minds are primarily concerned with,”

Wallace v. Jaffree, 472 U.S. 38, 66 n.9 (1985) (Powell,

J., concurring) (student use of moment of silence), it is

very unlikely that the religious or nonreligious content

of Roberts’s reading would be a major point of interest

for his students. “There are too many other subjects on

the mind of the typical child.” Jd.’°

1” There is also no evidence that Roberts read from the Bible for

personal religious purposes. The record does not even reveal the

religious beliefs, if any, of petitioner Roberts. Whether Roberts

studied the Bible for the good of his mind, the good of his sou, or

both, is, however, simply irrelevant. Indeed, to scrutinize the sub-

jective intentions of a teacher in a search for religious motivations

The holding of the court of appeals in this case, there-

fore, amounts to a per se rule forbidding any public

school teacher from silently studying the Bible—and also,

presumably, the Koran, the Torah, the Book of Mormon,

the life of Buddha, and so forth—in a public school class-

room. Such an extreme holding is completely at odds not

only with common sense but with the repeated admoni-

tions of this Court that religious materials can be and

are fit subjects of academic pursuit.

Under the circumstances of this case, the principal’s or-

der banishing the Bible from Roberts’s desk top amounted

to “a stilted overreaction contrary to our history and

our holdings.” Lynch, 465 U.S. at 686. The principal

imposed an absolute rule against the mere presence of

the Bible in a public school classroom, and the court of

appeals endorsed this per se rule by holding that the Es-

tablishment Clause compelled this censorship. This Court

should grant review to address the question whether the

Establishment Clause forbids the mere presence of the

Bible on the desk of, or the silent, discreet reading of the

Bible by, a public school teacher.

would represent a blatant invasion of “the inviolable citadel of the

individual heart and mind,” Abington, 374 U.S. at 226, and a clear

example of excessive government entanglement with religious mat-

ters, cf. Board of Educ. of Westside Community Schools v. Mergens,

110 L.Ed.2d 191, 217-18 (1990) (plurality) (discriminatory exclu-

sion of religious speech “might well create greater entanglement

problems in the form of invasive monitoring” of the content of

speech). Indeed, it would be bizarre to hold that the Bible may be

studied only by those teachers who do not attach religious signifi-

cance to that book.

Ill. THIS CASE RAISES THE IMPORTANT AND UN-

SETTLED QUESTIONS WHETHER, AND TO WIIAT

EXTENT, THE DECISION IN TINKER v. DES

MOINES INDEPENDENT COMMUNITY SCHOOL

DISTRICT APPLIES TO PUBLIC SCHOOL

TEACHERS.

“First Amendment rights, applied in light of the spe-

cial characteristics of the school environment, are avail-

able to teachers... .” Tinker v. Des Moines Indep. Com-

munity School Dist., 393 U.S. 503, 506 (1969). As this

Court declared in Epperson v. Arkansas, “It is much too

late to argue that the State may impose upon the teach-

ers in its schools any conditions that it chooses, however

restrictive they may be of constitutional guarantees.”

393 U.S. 97, 107 (1968) (citation omitted). The present

case involves the application of these basic principles in

two contexts: the academic freedom of a teacher to se-

lect books for a classroom library, and the right of a

teacher personally to select materials for his own silent,

discreet reading during breaks and quiet reading pe-

riods."!

The books Roberts collected in his classroom library

were simply materials made available for optional, per-

sonal, and voluntary selection by students. So long as

the contents of books are not harmful to students—

aS would be the case, for example, with inappropriate

sexual education materials or matters otherwise destruc-

tive of student morals—the teacher retains the academic

freedom to maintain a collection of supplemental reading

materials free from attempts to censor out books deemed

“unwelcome” because of religious content. ‘‘Any attempt

to impose rigid limits upon the mention of God or refer-

ences to the Bible in the classroom would be fraught with

Tinker involved public expression in the form of a symbolic

black armband. The present case, by contrast, did not involve an

effort by Roberts to make a public statement. Hence, Roberts’»

actions triggered no countervailing concerns about potential disrup-

tion of the academic environment.

dangers.” School Dist. of Abington Township v. Schempp,

374 U.S. 203, 301 (1968) (Brennan, J., concurring).

Telling Ken Roberts that he could, while in the class-

room, read and keep on his desk top any book except the

sible, moreover, clearly represented content-based dis-

crimination against religious speech. This Court con-

demned precisely such content-based discrimination in

Widmar v. Vincent, 454 U.S. 263, 276 (1981), in which

college officials sought to deny equal access to religious

student groups. The Court held that the college’s as-

serted interest “in achieving greater separation of church

and State” was not sufficiently “compelling” to justify

content-based discrimination avainst religious speech, /d.

And in Tinker, this Court held that, absent a need to

avoid disruption of the school environment, the “prohibi-

tion of expression of one particular opinion” in a public

school setting “is not constitutionally permissible.” 393

U.S. at 511. In the present case, the official discrimina-

tion was especially obnoxious because it forbade the mere

silent, unobtrusive reading of a particular book on the

basis of its religious content. While the Establishment

Clause may justify restrictions on proselytization or os-

tentatious religious displays by public school teachers,

the suppression of personal religious reading material

constitutes a flagrant transgression of the freedom of

thought and conscience protected under the first amend-

ment.’

The district court and the court of appeals each rec-

ognized that Roberts had asserted important rights se-

12 Petitioner makes no claim of a right to read the Bible or any

other book when he is levitimately required to be envayed in other

pedagogical activities. Bul when a teacher is otherwise allowed to

leave books on his desk and discreetly read from them during

breaks or silent reading periods, the school administration may not

constitutionally censor out specific books purely because of their

religious content.

ae ee - e

cured under the first and fourteenth amendments. Each

court concluded, however, that the right of students to

be free from improper religious influence extended so far

as to apply to, and outweigh, Roberis’s academic freedom

and liberty to pursue personal reading choices. This

Court should grant :eview to address this serious under-

valuation of the first amendment rights of public school

teachers.

IV. THIS CASE RAISES THE IMPORTANT AND UN-

SETTLED QUESTION WHETHER EXCESSIVE

AND UNJUSTIFIABLE EFFORTS TO ELIMINATE

RELIGIOUS MATERIALS FROM THE PUBLIC

SCHOOL VIOLATE THE NEUTRALITY REQUIRE-

MENT OF THE ESTABLISHMENT CLAUSE.

The respondent principal in the present case undertook

zealously to eliminate all mention of God or references to

the Bible in the classroom. This Court has repeatedly

counseled, however, that the Establishment Clause re-

quires neutrality, not hostility, toward religion. The pres-

ent case therefore raises the important question whether

such “separationist zeal” violates the neutrality require-

ment of the Establishment Clause.

The Lemon test provides that government action vio-

lates the Establishment Clause if “the principal or pri-

mary effect” of that action “inhibits religion.” Lemon v.

Kurtzman, 403 U.S. at 602, 612 (1971) (citation

omitted). Elaborating upon this constitutional require-

ment, the Court has explained that the Establishment

Clause “affirmatively mandates accommodation, not

merely tolerance, of all religions, and forbids hostility

toward any.” Lynch, 465 U.S. at 673 (and cases cited) ;

Wallace v. Jaffree, 472 U.S. 38, 60 (1985) (“the govern-

ment must pursue a course of complete neutrality toward

religion”) ‘and cases cited:. As Justice Brennan wrote

in McDaniel v. Paty, 435 U.S. 618 (1978), “The Estab-

lishment Clause, properly understood, is a shield against

any attempt by government to inhibit religion,” id. at

641 (Brennan, J., concurring in judgment). “It may not

be use] as a sword to justify repression of religion or its

adherents from any aspect of public life.” /d. (footnote

omitted).

In the present case, respondents have indulged an ex-

aggerated interpretation of the Establishment Clause

and, in the process, crossed the line into unconstitutional

disparagement of religion."

The principal ordered Roberts to remove, from a class-

room library of some 240 books, the only two volumes

that provided interested students a familiarity with “the

world’s all-time best seller’—the Bible. HLdwards +.

Agquillard, 482 U.S. 578%, 608 (1987) (Powell, J., joined

by O’Connor, J., concurring) (internal quotations marks

and footnote omitted). She also ordered Roberts to con-

ceal the Bible in his desk, thereby exhibiting an unwar-

ranted opposition to the mere passive presence of “the

300k,” despite its “undoubted literary and historic value,”

id. Going still further, the principal ordered Roberts to

take down a poster depicting a nature scene, simply be-

cause the caption of the poster generically referred to

“the hand of God.”

The Establishment Clause, however, does not “impose

rigid limits upon’”—much less forbid absolutely—‘‘the

mention of God or references to the Bible in the class-

room,” School Dist. of Abington Township vo Schempp,

374 U.S. 203, 301 (1963) (Brennan, J., concurring). As

Chief Justice (then-Associate Justice) Rehnquist wrote

1 Under the test formulated in Lemon v. Kurtzman, 4023 U.S. 602

(1971), government actors need not be swhyjectively hostile toward

religion in order to violate the Establishment Clause. All that is

necessary for a constitutional violation is objective disparayement

of religion -i.e., that the yovernment action have a “principal or

primary effect” that “inhibits religion,” id. at 612.

in dissent in Stone v. Graham, 449 U.S. 39, 45-46

(1980). “The Establishment Clause does not require

that the public sector be insulated from all things which

may have a religious significance or origin.”

Justice Goldberg warned of precisely such overzealous

separationism in his concurring opinion in the Abington

case:

It is said, and I agree, that the attitude of govern-

ment toward religion must be one of neutrality. But

untutored devotion to the concept of neutrality can

lead to invocation or approval of results which par-

take not simply of that noninterference and nonin-

volvement with the religious which the Constitution

commands, but of a brooding and pervasive devotion

to the secular and a passive, or even active, hostility

to the religious. Such results are not only not com-

pelled by the Constitution but, it seems to me, are

prohibited by tt.

374 US. at 306 (Goldberg, J., concurring) (emphasis

added).

As Judge Barrett wrote in dissent in the ccurt below,

the censorship actions of respondents “were acts of in-

tolerance, lack of accommodation and hostility toward

the Christian religion.” 921 F.2d at 1059 (App. 25a)

(footnote omitted). This Court should grant review to

answer the question whether such “hostility to the re-

ligious” violates the neutrality requirement of the Estab-

lishment Clause.

CONCLUSION

For all of the foregoing reasons, therefore, this Court

should grant the petition for certiorari to review the

judgment of the United States Court of Appeals for the

Tenth Circuit in the case at bar.

JORDAN W. LORENCE

CIMRON CAMPBELL

MARK N. TROOBNICK

370 L’Enfant Promenade

Suite 800

Washington, D.C. 20024

(202) 488-7000

ROGER WESTLUND

12000 N. Washington St.

Suite 207

Thornton, CO 80241

(303) 450-0833

Respectfully submitted,

JAY ALAN SEKULOW

(Counsel of Record)

JAMES M. HENDERSON, SR.

1000 Thomas Jefferson St., N.W.

Suite 520

Washington, D.C. 20007

(202) 337-2273

THOMAS PATRICK MONAGHAN

WALTER M. WEBER

6375 New Hope Road

New Hope, KY 40052

(502) 549-5454

Attorneys for Petitioner

March 15, 1991

APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 89-1014

KENNETH ROBERTS, MARC NELSON, and ZAY NELSON,

Parents and Next Friends of Kelly Nelson and Amy

Nelson, and DEBRA J. WHITE, Parent and Next Friend

of Kelly White,

Plaintiffs-Appellants,

KATHLEEN MADIGAN and ADAMS COUNTY

SCHOOL District No. 50,

Defendants-A ppellees,

ANTI-DEFAMATION LEAGUE OF B’NAI B’RITH, AMERICAN

CIVIL LIBERTIES UNION FOUNDATION OF COLORADO,

INC., and AMERICAN JEWISH CONGRESS,

Amici Curiae.

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 88-F-1908)

[Filed Dee. 17, 1996]

Jordan W. Lorence of Concerned Women for America

Lega! Foundation, Washington, D.C. (Cimron Campbell

and Mark N. Troobnick of Concerned Women for Amer-

ica Legal Foundation, Washington, D.C.; Wendell R.

Bird, Atlanta, Georgia; and Roger Westlund, Thornton,

Colorado, with him on the briefs), for Plaintiffs-

Appellants.

Martin Semple (Franklin A. Nachman with him on the

brief), Semple & Jackson, P.C., Denver, Colorado, for

Defendants-A ppellees.

(Phillip S. Figa and Candace C. Figa of Burns & Figa,

P.C., Denver, Colorado; Bradley A. Levin of Breit, Best,

Richman & Bosch, P.C., Denver, Colorado, Attorneys for

Amicus Curiae; and Jeffrey P. Sinensky, Steven M. Free-

man, Richard E. Shevitz, and Meyer Eisenberg of Anti-

Defamation League of B’nai B’rith, New York, New

York; and Professor Ruti Teitel, New York Law School,

New York, New York, Of Counsel, on the brief for

Amicus Curiae Anti-Defamation League of B’Nai B'rith.)

(John Preston Baker of Coghill & Goodspeed P.C., Den-

ver, Colorado; Robert W. Thompson, Jr., Denver, Colo-

rado; and David Miller, Legal Director, American Civil

Liberties Union of Colorado, Denver, Coijorado, on the

brief for Amicus Curiae American Civil Liberties Union

of Colorado.)

(Mare D. Stern, Lois C. Waldman, Amy Adelson, and

Jeremy S. Garber, American Jewish Congress, New York,

New York, on the brief for Amicus Curiae American

Jewish Congress. )

Before MCKAY and BARRETT, Circuit Judges, and

O’CONNOR,' Chief District Judge.

McKAY, Circuit Judge.

This is an appeal from a judgment by the district

court denying plaintiffs’ claims for damages and all but

' Honorable Earl E. O’Connor, Chief United States District

Judge for the District of Kansas, sitting by designation.

one claim for injunctive relief against defendants Kath-

leen Madigan and the Adams County School District

No. 50.

I. Facts

Plaintiff Kenneth Roberts is a fifth-grade school teacher

at the Berkeley Gardens Elementary School in Denver,

which is part of the Adams County School District No.

50. Kelly Nelson, Amy Nelson, and Kelly White are or

were students at Berkeley Gardens Elementary. Plain-

tiffs Mare and Zay Nelson are the parents of plaintiffs

Kelly and Amy Nelson. Plaintiff Debra Jean White is

the parent of plaintiff Kelly White. None of the plaintiff

students were enrolled in Mr. Roberts’ class at the time

this suit was filed, although Kelly Nelson was previously

in Mr. Reberts’ class. Defendant Kathleen Madigan is

the principal at Berkeley Gardens.

As part of his classroom curriculum, Mr. Roberts spent

a significant amount of time teaching reading skills to his

fifth graders. One method he used to teach the value of

reading was to devote fifteen minutes each day to a

“silent reading period.” During this silent reading period,

students were allowed to choose their own reading mate-

rials; they could have been brought from the students’

homes, chosen from the school library, or selected from

Mr. Roberts’ classroom library. The classroom library

was a collection of about 239 books of varying content

that Mr. Roberts had compiled over his nineteen years of

teaching. In order to set an example for the students,

Mr. Roberts silently read his own materials during the

silent reading time.

Frequently, the book Mr. Roberts chose to read silently

was the Bible, which he kept on his desk throughout the

school day. Mr. Roberts never read from the Bible aloud

nor overtly proselytized about his faith to his students.

Mr. Roberts also displaved a poster in his classroom that

read, “You have only to open your eves to see the hand

of God.” The trial court found that, in context, Mr.

Roberts’ Bible reading, the poster, and the presence of

two Christian books in Mr. Roberts’ classroom library

created the appearance that Mr. Roberts was seeking to

advance his religious views.

The events leading to this litigation took place during

the 1987-88 school year. On September 10, 1987, a

parent/teacher open house was held, at which time a

parent complained to Principal Madigan about the pres-

ence of two Christian religicus books on the shelves of

Mr. Roberts’ classroom library. The two books are titled

The Bible in Pictures and The Life of Jesus.°- That same

evening, Ms. Madigan entered Mr. Roberts’ classroom,

perused the two books, and directed Mr. Roberts to re-

move them from the classroom library. Ms. Madigan did

not ask Mr. Roberts how the books were being used before

she ordered their removal. She explained to Mr. Roberts

that “separation of church and state” required that the

books be removed. Ms. Madigan also noticed the Bible

that Mr. Roberts kept on his desk and requested that he

keep it out of sight during classroom hours. Mr. Roberts

immediately complied with the directive.

Ms. Madigan testified that she had spoken to Mr.

Roberts on two previous occasions concerning the Bible

on his desk. In September of 1986, Ms. Madigan made

a routine visit to Mr. Roberts’ classroom and observed

him reading his Bible silently. Ms. Madigan told him

2The Bible in Pictures is a 320-page volume with over one

thousand illustrations. The illustrations are designed to provide

both children and adults with a better understanding of the Bible.

In the book’s preface, the author states: “I pray that this book

may bring a fresh vision of Christ, and God’s purpose in Him, to

you who now read it in the midst of the heartache and frustration

of our modern world.”

The Story of Jesus is a 128-page volume that depicts through

illustrations and text the birth, life, and resurrection of Jesus

Christ. The book concentrates on the teachings of Jesus of Naza-

reth with the underlying premise that he is the Son of God.

at that time that she expected him to keep the Bible off

his desk between 8:00 a.m. and 3:30 p.m. Later, in

November 1986, Ms. Madigan again visited Mr. Roberts’

classroom and found him reading his Bible. She repeated

her earlier admonition that he should keep his Bible in

his desk during school hours.

On September 14, 1987, a few days after Ms. Madigan

ordered Mr. Roberts to remove the two books from his

classroom, Mr. Roberts discussed the matter with Prin-

cipal Madigan. Mr. Roberts questioned the propriety of

Ms. Madigan’s directive and asked her for any written

school district guidelines or policies that he had violated

or that would enlighten him as to what types of ma-

terials he could keep in his classroom. Ms. Madigan de-

nied his request and simply stated that common sense

and her previous remarks were sufficient.

On September 18, 1987, Mr. Roberts gave Ms. Madigan

a written memorandum asking her to reconsider her di-

rective. In the memorandum, Mr. Roberts again asked

Ms. Madigan for any written guidelines the school dis-

trict had pertaining to censorship of books and placement

of items on teachers’ desks. Ms. Madigan discussed the

matter with various school officials but did not change

her position. On September 24, 1987, Mr. Roberts met

with Principal Madigan, Michael Bassett, the head of

personnel for the school district, and Anita Ratliff, the

other fifth-grade teacher at Berkeley Gardens Elemen-

tary. At the meeting, Ms. Madigan and Mr. Bassett

gave Mr. Roberts a written directive reaffirming Ms.

Madigan’s earlier instructions stating: “The law is clear

that religion may not be taught in a public school. To

avoid the appearance of teaching religion, I have given

you this directive. Failure to comply with this directive

will be considered insubordination and could result in

disciplinary action.” Record, vol. 1, doc. 1, at 14. Mr.

Roberts later appealed to the district superintendent, Mr.

Masarotti, but Mr. Masarotti did not override the direc-

tive handed down by Ms. Madigan.

In addition to the action taken in Mr. Roberts’ class-

room, plaintiffs alleged that sometime in September 1987,

Ms. Madigan visited the school library at Berkeley Gar-

dens Elementary and removed a Bible from the library

shelves. Defendants contended the Bible was not re-

moved by Ms. Madigan. They stipulated at trial, how-

ever, that the Bible would be replaced and not removed

again.

Mr. Roberts, along with the plaintiff students and their

parents, brought this action seeking damages and _in-

junctive relief against Ms. Madigan and the school dis-

trict. Plaintiffs based their claim on the theory that the

school district, by ordering the two books off Mr. Rob-

erts’ shelf, by directing him to keep his Bible out of

sight during school hours, and by removing the Bible

from the school library, violated the plaintiffs’ first

amendment rights of free speech, academic freedom, and

access to information. Plaintiffs also asserted that the

district’s actions violated the Establishment Clause by

treating Christianity in a non-neutral, disparaging

manner.

After a trial before the district court, the court or-

dered the school district to return the Bible to the Berke-

ley Gardens school library. Concerning Ms. Madigan’s

actions in Mr. Roberts’ classroom, however, the court

concluded not only that the school district acted properly

but that the Establishment Clause required such action.

See Roberts v. Madigan, 702 F. Supp. 1505, 1514-17 (D.

Colo. 1989). Accordingly, the court went on to conclude

that the district did not violate the principle of gov-

ernment neutrality toward religion, but that it simply

acted appropriately in its effort to prevent Mr. Roberts

from teaching religion. See id. As for the plaintiffs’

free speech claims, the court held that in the balance

between Mr. Roberts’ rights to freedom of expression and

academic freedom on the one hand, and the students’

rights to be free from religious indoctrination on the

other, the students’ interests must prevail. Consequently,

the court rejected Mr. Roberts’ free speech arguments

and denied the relief he sought. Finally, the Court dis-

missed the student plaintiffs’ claims and the claims of

their parents for lack of standing. The court noted that

none of the student plaintiffs were in Mr. Roberts’ class

at the time their suit was filed.

Il. Standing of Parents and Students

The district court dismissed the parents’ and students’

claims for lack of standing. Plaintiffs now argue that

the district court erred in its assessment of the students’

and parents’ standing to assert claims for both injunctive

relief and damages.

At the outset, we note that in order to satisfy the

Article III “case or controversy” requirement, the stu-

dents and parents must allege that they have “such a

personal stake in the outcome of the controversy as to

assure that concrete adverseness which sharpens the pre-

sentation of issues.” Baker v. Carr, 369 U.S. 186, 204

(1962). Thus, standing has been held to exist only if

the aggrieved party makes a two-fold showing. First,

the plaintiffs must show that they have suffered a “dis-

tinct and palpable injury.” Duke Power Co. v. Carolina

Envtl. Study Group, Inc., 438 U.S. 59, 72 (1978). See-

ond, the plaintiffs must demonstrate a causal link be-

tween the claimed injury and the challenged conduct.

Id. This second prong may be satisfied by showing that

there is a substantial] likelihood that the relief sought will

address the claimed injury. See id. at 75 n.20; Simon

v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26,

43 (1975).

In this case, the district court dismissed the parents’

and students’ claims because none of the students were

in Mr. Roberts’ class at the time this law suit was filed.

We now address separately the standing issues with re-

spect to injunctive relief and damages.

A. Injunctive Relief

Plaintiffs argue that the school district’s removal of

the two books and its order requiring Mr. Roberts to

cease his silent Bible reading give the students and par-

ents standing to seek injunctive relief. Plaintiffs claim

that because all the students involved are or have been

enrolled at Berkeley Gardens, they all have standing to

challenge state action that touches Mr. Roberts’ class-

room. In support of this argument, plaintiffs cite a

number of cases in which students and their parents

were found to have standing to challenge alleged first

amendment violations in the public schools. See Wallace

v. Jaffree, 472 U.S. 38 (1985) (Alabama statute au-

thorized one-minute period of silence for prayer or medi-

tation each day in all public schools) ; School District of

Abington Township v. Schempp, 374 U.S. 203 (1963)

(Pennsylvania law required ten verses of Bible to be

read at beginning of each school day in each class) ;

McCollum v. Board of Educ., 333 U.S. 203 (1948) (re-

ligious instruction carried out in all classrooms for a

certain period each week); Bell v. Little Axe Indep.

School Dist. No. 76, 766 F.2d 1391 (10th Cir. 1985)

(weekly religious meetings held on school premises, su-

pervised by teachers, and advertised on school premises

by posters and in school publications). We agree that

each case cited by plaintiffs supports the notion that stu-

dents and their parents may challenge unconstitutional

actions in the public schools that directly affect the stu-

dents. The cases cited, however, are distinguishable from

the present case because each involved religious activities

from the present case because each involved religious

activities occurring school wide or within the plaintiffs’

own classrooms. Because none of the students involved

in this suit were in Mr. Roberts’ class at the time this

suit was filed, none of the students, and therefore none of

their parents, were directly affected by the district’s ac-

tions in Mr. Roberts’ classroom.* We thus conclude that

none of the students or parents satisfy the two-prong

standing requirement set forth above.

Kelly White and Amy Nelson were both too young to

be in Mr. Roberts’ class at the time of this suit. There

is no more than a speculative likelihood that either of

these students will be in his class in the future. Accord-

ingly, we conclude that Kelly White and Amy Nelson fail

to satisfy the first prong of the standing requirement

because they can demonstrate no “distinct and palpable

injury” caused by the district’s directive to Mr. Roberts.

In this regard, we find persuasive the district court’s

observation that the students “cannot claim First Amend-

ment violations for the removal of books to which they

did not have access, nor for actions against a teacher in

whose class they were not enrolled.” Roberts v. Madigan,

702 F. Supp. 1505, 1519 (D. Colo. 1989).

Kelly Nelson, who was in Mr. Roberts’ class at the

time of the school district’s directive, presents a closer

standing question. She nevertheless fails to show stand-

ing. Because Kelly Nelson had graduated from Mr. Rob-

erts’ class before this suit was filed,’ she fails to satisfy

3 Plaintiffs argue that the students and parents were directly

affected by, and thus have standing to challenge, Ms. Madigan’'s

alleged removal of the Bible from the school library. Following

the trial, the district court ordered the district to replace the

Bible in the library and to refrain from removing it again. Neither

party challenges this part of the district court’s order. Accordingly,

plaintiffs’ standing on that issue is not before us on appeal. In

addition, standing to challenge the removal of the Bible does not

create standing for plaintiffs to challenve the other actions taken

by the school district.

4The record indicates that Kelly Nelson was enrolled in Mr.

Roberts’ class during the 1987-88 school vear, which ended in June

1988. See Record, vol. 2, at 98-100. This suit was not filed, how-

ever, until November 22, 1988.

10a

the second of the two standing requirements.® Although

Kelly Nelson would have had access to the two Christian

books were it not for the actions of the school district,

she nevertheless lacks standing because injunctive relief

cannot redress her injury now that she is no longer in

Mr. Roberts’ class.

B. Damages Claims

Plaintiffs argue that the district court erroneously ig-

nored the existence of their damages claims when it

dismissed them for lack of standing. We recognize that

standing may exist where a claim for damages is still

alive despite mootness or lack of standing for injunctive

relief. Cf. Ellis v. Brotherhood of Ry., Airline & Steam-

ship Clerks, Freight Handlers, Express & Station Em-

ployees, 466 U.S. 485, 441-43 (1984); Powell v. McCor-

mack, 395 U.S. 486, 495-500 (1969); Bell v. Little Axe

Indep. School Dist. No. 70, 766 F.2d 1391, 1398-99 (10th

Cir. 1985). Because the students and parents sought

damages as well as injunctive relief, Kelly Nelson would

appear to have standing to challenge the district’s actions

in Mr. Roberts’ classroom. We note, however, that plain-

tiffs failed to preserve their damages claims at the trial

level.

The district court, pursuant to plaintiffs’ motion for

preliminary injunction, held a consolidated hearing for

both preliminary and permanent injunction. At tne close

of those proceedings, the court requested post-hearing

briefs on a number of issues. See Record, vol. 2, at 198-

200. Included among those issues was the issue of the

students’ and parents’ standing. After considering the

evidence adduced at the hearing and the briefs submitted,

the district court dismissed all the students’ and parents’

claims for lack of standing.

5 We acknowledge that Kelly Nelson’s claim for damages would

satisfy the “causal link’? requirement. It is necessary to note,

therefore, that our conclusion here applies only to Kelly Nelson’s

standing to seek injunctive relief.

lia

We have examined the post-hearing briefs submitted to

the district court. There is no discussion in the plaintiffs’

brief concerning their damages claims and how the exist-

ence of those claims affected standing. In order to review

an issue on appeal, we require the specific issue to be

raised before the district court. “It is well established in

this circuit that ‘a party may not sit idly by, watching

error being committed, and then raise the claimed error

on appeal without having accorded the trial court the op-

portunity to correct its action.’” Chevron, U.S.A., Inc. v.

Hand, 763 F.2d 1184, 1186 (10th Cir. 1985) quoting

Gundy v. United States, 728 F.2d 484, 488 (10th Cir.

1984)). In Gundy we stated that “failure to raise the

issue with the trial court precludes any review except for

the most manifest error.” Gundy, 728 F.2d at 488. Sce

also Burak v. General American Life Ins. Co., 836 F.2d

1287, 1291 (10th Cir.-1988) ; United States v. Troutman,

814 F.2d 1428, 1444 (10th Cir. 1987); United States v.

Diaz-Albertini, 772 F.2d 654, 657 (10th Cir. 1985).

Plaintiffs did not raise the issue of standing based on

their damages claims at the hearing or in their post-

hearing briefs. Moreover, when the district court dis-

missed all the parents’ and students’ claims, plaintiffs

made no post-judgment motion suggesting that their dam-

ages claims preserved the parents’ and students’ standing.

Accordingly, the students’ and parents’ damages claims

cannot now form the basis for urging standing. We do

not find the district court’s finding that plaintiffs lacked

standing on this issue to be manifest error.

For the reasons set forth above, we hold that the dis-

trict court properly dismissed the students’ and parents’

claims for lack of standing. Nevertheless, we address the

merits of Mr. Roberts’ claims, which are largely equiva-

lent to the claims asserted by the students and parents.

12a

III. Establishment Clause

Mr. Roberts claims that the school district violated the

Establishment Clause by: (1) removing The Bible in

Pictures and The Story of Jesus from the classroom

library, (2! ordering Mr. Roberts not to read his Bible

in the classroom during school hours, (3) ordering Mr.

toberts to keep his Bible off his desk during school hours,

and (4) removing the Bible from the school library."

The district court examined each of the challenged ac-

tions and concluded that, with the exception of the Bible

in the school library, the school district had not violated

the Establishment Clause.

The proper relationship between religion and the state

under the Establishment Clause‘ is difficult to determine.

Clearly, religion is a pervasive force in our society.

“This is not to say, however, that religion has been so

identified with our history and government that religious

freedom is not likewise as strongly imbedded in our pub-

lie and private life.” School District of Abington Town-

ship v. Schempp, 374 U.S. 203, 214 (1963). Here, we

face the difficulty of determining the proper balance be-

tween the freedom from religious coercion created by

state-sponsored religion and the inescapable reality that

our culture is permeated by religious symbols and rituals.

Nowhere has the proper line of demarcation been more

difficult to define than in our nation’s public schools.

Over the years, the Supreme Court has developed a

three-part test for determining the propriety of state

®We note that, contrary to the argument of defendants, the

Bible in the school library was an issue in this case. The parties

agreed at the hearing that the Bible should be in the library.

However, the issue was not removed from the case until defendants

stipulated to remedial steps. This explains the trial court’s injunc-

tion requiring defendants to replace the Bible and not remove it

in the future. Thus, the Bible was in issue, and plaintiffs pre-

vailed on that part of the case.

7 Under the first amendment, “Congress shall make no law re-

specting an establishment of religion ....” U.S. Const. amend. I.

13a

action under the Establishment Clause as it applies to

the states through the fourteenth amendment.* First,

state action must have a secular purpose. Second, the

primary effect of any state action must be one that

neither advances nor inhibits religion. Finally, state ac-

tion must not foster excessive government entanglement

with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13

(1971). The first two criteria thus require that govern-

mental action be neutral with respect to religion, both in

purpose and primary effect. This requirement of govern-

ment neutrality prohibits governmental action whose pur-

pose or effect is to suppress religion as well as action

that advances it. See Wallace v. Jaffree, 472 U.S. 38, 56,

n.42 (1985). Against this background, we now consider

the constitutionality of the school district’s conduct in

the case at bar.

A. The School District’s Purpose

At trial, Mr. Roberts claimed that the school district

acted against him in order to disapprove of Christianity.

The district court, however, found that the school district

had a secular purpose in taking the challenged actions.

Having examined the record, we do not hold the district

court’s finding clearly erroneous.

The only evidence relating to the school district’s mo-

tives indicates that the district simply wanted to prevent

Mr. Roberts from violating the Establishment Clause.

When asked whether Ms. Madigan gave any reason for

her directive of September 10, 1987, Mr. Roberts testified

that Ms. Madigan told him it was necessary “hecause of

separation of church and state.” Record, vol. 2, at 28.

Further, when Mr. Roberts asked Ms. Madigan for writ-

ten guidelines and policies that he had violated, Ms.

SIt is well-settled that the first amendment prohibitions on

congressional action now apply to state action by virtue of the

fourteenth amendment due process clause. See Cantwell v. Con-

necticut, 310 U.S. 296, 303 (1940).

l4a

Madigan responded with a brief written directive. The

directive stated her sole purpose as follows: “The law is

clear that religion may not be taught in a public school.

To avoid the appearance of teaching religion, I have given

you this directive.”’ Record, vol. 1, doc. 1, at 14. We find

no evidence in the record that suggests a purpose for the

district’s action other than that stated in the written

directive. We therefore affirm the district court’s finding

that the school district had a secular purpose for its

actions, namely, to assure that none of Mr. Roberts’.

classroom materials or conduct violated the Establishment

Clause.” The Supreme Court has held that the state is

corstitutionally required to see that state-supported ac-

tivity is not used for religious indoctrination. See Levitt

v. Committee for Public Education & Religious Liberty,

413 U.S. 472, 480 (1973); Lemon, 403 U.S. at 619. See

also Breen v. Runkel, 614 F. Supp. 355, 358 (W.D. Mich.

1985). Cf. Board of Educ. v. Mergens, 110 8. Ct. 2356,

2371 (1990); Corporation of the Presiding Bishop of the

Church of Jesus Christ of Latter-Day Saints v. Amos,

483 U.S. 327, 335-56 (1987); Gillette v. United States,

401 U.S. 437, 453 (1971).

B. Primary Effect

Mr. Roberts further challenges the school district’s

actions arguing that regardless of the district’s motives,

the actual effect of Ms. Madigan’s directive was a dis-

paragement of Christianity. As we examine the school

district’s conduct under the “effect” prong of the Lemon

test, we again point out that public school officials “must

®The appropriate standard of review we should apply to the

district court’s findings under the Lemon test is not clear. See

Friedman v. Board of County Comm’rs of Bernalillo, 781 F.2d 777,

779 n.2 (10th Cir. 1985), cert. denied, 476 U.S. 1169 (1986).

Whether it is appropriate to apply a clearly erroneous standard,

Lynch v. Donnelly, 465 U.S. 668, 681 (1984), or a de novo standard,

id. at 693-94 (O’Connor, J., concurring), however, is of no conse-

quence here. We would affirm under either standard.

15a

be certain, given the Religion Clauses, that subsidized

teachers do not inculcate religion.”” Lemon, 403 U.S. at

619. As Mr. Roberts correctly notes, however, school offi-

cials must carry out this duty in a way that neither

endorses nor disparages a particular religion or religion

in general. Indeed, the Supreme Court has repeatedly

stated that the effect prong is not satisfied if official

action, regardless of its purpose, “conveys a message of

endorsement or disapproval” of religion. Wallace v. Jaf-

free, 472 U.S. 38, 56 n.42 (1985); School District of

Grand Rapids v. Ball, 473 U.S. 373, 389 (1985); Lynch

v. Donnelly, 465 U.S. 668, 690 (1984).

Mr. Roberts contends that the district, by removing

the two Christian books and the Bible from the class-

room, necessarily conveyed a message of disapproval to-

ward Christianity. He notes that the school district re-

moved only the two, Christian books and disallowed Mr.

Roberts’ reading of only the Bible in class. At trial, tes-

timony showed that while the school district removed

The Bible in Pictures and The Story of Jesus from the

classroom library, the district ignored the presence of

books dealing with Greek gods and goddesses and Ameri-

can Indian religions. The evidence also indicates that the

school district did not allow Mr. Roberts to read his

Bible or keep it on his desk, but nevertheless allowed him

to teach activity about Navajo Indian religion. Mr.

Roberts was also allowed to read silently a book dealing

with the life of Buddha and keep it on his desk for

some period.

Because the school district allegedly treated the Chris-

tian materials differently than any other materials, Mr.

Roberts concludes that the primary effect of the district’s

action must have been a disparagement of Christianity.

Mr. Roberts infers that “|t]he school’s actions do not

convey a message of obeying the Establishment Clause,

* because then the school district would have removed all

religious books, and prohibited teachers from silently

reading any religious book.” Brief of Appellants at 23.

l6a

Mr. Roberts’ argument sweeps much too broadly. Were

we to accept his characterization of the school district’s

actions, any official removal of specific religious materials

from public schools would necessarily be considered non-

neutral toward religion. The fallacy of this position is

exposed when we recognize that all corrective actions

taken to assure that individual teachers do not teach

religion must be aimed at the specific religions or value

systems being taught. The removal of materials from

the classroom is acceptable when it is determined that

the materials are being used in a manner that violates

Establishment Clause guarantees. Thus, the Establish-

ment Clause focuses on the manner of use to which ma-

terials are put; it does not focus on the content of the

materials per se. For example, the books about American

Indian religion could be used in violation of the Estab-

lishment Clause if they were taught in a proselytizing

manner. Because they were not so used, however, those

books do not violate the Establishment Clause by the very

existence of their content. It is neither wise nor neces-

sary to require school officials to sterilize their class-

rooms and libraries of any materials with religious ref-

erences in order to prevent teachers from inculeating

specific religious values. Instead, school officials must be

allowed, within certain bounds, to exercise discretion in

determining what materials or classroom practices are

being used appropriately. ‘“|T]he Court has repeatedly

emphasized the need for affirming the comprehensive au-

thority of the States and of school officials, consistent

with fundamental constitutional safeguards, to prescribe

and control conduct in the schools.” Tinker v. Des Moines

Indep. Community School Dist., 393 U.S. 503, 507

(1969).

Considering the evidence, we affirm the district court’s

finding that the primary effect of the school’s actions

was not to disapprove of Christianity. The mere fact

that the actions were aimed exclusively at Christian re-

ligious materials does not automatically mean the ac-

17a

tions’ primary effect was to send a disapproving mesage

regarding Christianity. If we must draw any message

from the actions, that message must be that the school

district disapproves of the teaching of Christianity in

the public schools. Here, we are particularly mindful

as was the district court, that there is a “difference be-

tween teaching about religion, which is acceptable, and

teaching religion, which is not.” Roberts v. Madigan, 702

F. Supp. 1505, 1517 (Db. Colo. 1989). Mr. Roberts’

avowed purpose for reading his Bible in class was to

model reading for the students. Because Mr. Roberts

chose to keep his Bible on his desk continuously and read

it frequently, Ms. Madigan feared that Mr. Roberts was

setting a Christian tone in his classroom. Having formed

that impression, Ms. Madigan had a duty to take correc-

tive steps, and to de so in a religiously neutral manner.

Ms. Madigan’s only stated reasons were that the Chris-

tian books and the Bible might violate “separation of

church and state” and that “religion may not be taught

in a public school.” We discern no anti-Christian mes-

sage here. The school district’s conduct thus satisfies the

“primary effect” test as well as the “purpose” test under

Lemon.

None of the parties suggest that the school district’s

activities involved any excessive entanglement of the

state with religion. Accordingly, we hold that the entire

Lemon test was fulfilled and the schooi district did not

violate the Establishment Clause by issuing the chal-

lenged directive.

IV. Free Speech and Academic Freedom

Mr. Roberts claims that the schocl district violated his

first amendment rights of free speech and academic free-

dom by removing the two Christian books from the class-

room and ordering him to stop reading his Bible in class.

According to Mr. Roberts, his Bible reading and the

presence of the two Christian books were expressive ac-

18a

tivities that were protected from content-based censor-

ship under the first amendment.

Plaintiffs argue that the school district’s conduct vio-

lated the student plaintiffs’ free speech rights by denying

the students access to the two books and the opportunity

to observe Mr. Roberts reading of his Bible silently in

class. We recognize the similarity between the facts of

this case and those involved in Board of Educ. v. Pico,

457 U.S. 853 (1982). In Pico, a plurality of the Su-

preme Court recognized a free speech “right to receive”

information and held unconstitutional a school board’s

censorship of several books from a school library. See

Pico, 457 U.S. at 866-67. Because the student plain-

tiffs lack standing to challenge the removal of the Chris-

tion books, however, we express no opinion regarding the

impact of the district’s directive on the students’ as-

serted rights to receive ideas. Our holding is therefore

limited to the issues regarding Mr. Roberts’ rights to

self-expression and academic freedom in the classroom.

We begin our discussion by noting that “[njeither

students [n]or teachers shed their constitutional rights

to freedom of speech or expression at the schoolhouse

gate.” Tinker v. Des Moines Indep. Community School

Dist., 392 U.S. 503, 506 (1969). Nevertheless, the Su-

preme Court has repeatedly emphasized that the rights

of students and teachers in the public schools “are not

automatically coextensive with the rights of adults in

other settings.” Bethel School Dist. No. 403 v. Fraser,

478 U.S. 675, 682 (1986); see Hazelwood School Disi.

v. Kuhlmeier, 484 U.S. 260, 266 (1988). We are thus

faced with the tension between Mr. Roberts’ right of

expression and the need of public school officials to censor

classroom materials for the sole purpose of eliminating

a possible constitutional violation.

We apply the “substantial interference” or “balanc-

ing” standard enunciated in Tinker to the competing in-

terests of Mr. Roberts and the school officials. There,

19a

the Court concluded that “students may express their

opinions at school, even on controversial subjects, so

long as they do so without materially disrupting class-

work, creating substantial disorder, or invading the rights

of others.” '° Tinker, 393 U.S. at 513. We find no rea-

son here to draw a distinction between teachers and

students where classroom expression is concerned. Thus,

if the speech involved is not fairly considered part of

the school curriculum or school-sponsored activities, then

it may only be regulated if it would “materially and sub-

stantially interfere with the requirements of appropriate

discipline in the operation of the school.” Tinker, 393

U.S. at 509. If, on the other hand, the conduct endorses

a particular religion and is an activity “that students,

parents, and members of the public might reasonably

perceive to bear the imprimatur of the school,” Kuhl-

meier, 484 U.S. at 271, creating the requisite state ac-

tion, then the activity infringes on the rights of others

and must be prohibited.

We return to the factors set forth in Lemon, 403 U.S.

at 612-13, then, to determine whether Mr. Roberts’ ac-

tions violated the Establishment Clause. The district

In Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (i988),

the Supreme Court granted school officials broad discretion when

the decision involved “school-sponsored publications, theatrical pro-

ductions, and other expressive activities that students, parents,

and members of the public might reasonably perceive to bear

the imprimatur of the school.” Jd. at 271. The Court held that

“educators do not offend the First Amendment by exercising edi-

torial control over the style and content of student speech in

school-sponsored expressive activities so long as their actions are

reasonably related to legitimate pedagogical concerns.” Jd. at 273.

The school district here, however, claims that the books were

removed to avoid an Establishment Clause violation rather than

for educational or pedagogical reasons. Because the school district

asserts a constitutional justification, a claim that this body is

well-equipped to evaluate, we do not accord it the same deference

as in other cases involving issues that school officials are uniquely

qualified to handle.

20a

court, after reviewing the testimony and evidence, cor-

rectly found that there was an improper religious pur-

pose behind Mr. Roberts’ use of the Bible and the pres-

ence of the religious books in his classroom library. Upon

analyzing Mr. Roberts’ actions within the classroom en-

vironment at the time the dispute arose, including the

poster on the classroom wall requesting readers to open

their eyes to see the hand of God, we agree that the

evidence sufficiently demonstrated that Mr. Roberts’ ac-

tions were prompted by a religious purpose. Although

Mr. Roberts testified that he was acting as a role model

for his students when he read the Bible, his underlying

purpose for reading the Bible was, at best, ambiguous.

As the district court noted, Mr. Roberts offered nothing

to suggest that his actions were non-religious."

We believe that the district court also properly con-

cluded that Mr. Roberts’ actions, when viewed in their

entirety, had the primary effect of communicating a

message of endorsement of a religion to the impression-

able ten-, eleven-, and twelve-year-old children in his

class.

“The meaning of a statement to his audience de-

pends both on the intention of the speaker and on

the ‘objective’ meaning of the statement in the com-

munity. ... If the audience is large, as it always

is when government ‘speaks’ by word or deed, some

portion of the audience will inevitably receive a

message determined by the ‘objective’ content of the

statement, and some portion will inevitably receive

the intended message. Examination of both the sub-

——_——

11 We note the conflict in the record concerning Ms. Madigan’s

purpose in prohibiting Mr. Roberts from reading the Bible in

class. There is some indication that she did not want him reading

anything during class so that he could “be actively involved in teach-

ing children.’’ Record at 117. To the extent that this was her pur-

pose, we uphold her decision as “reasonably related to legitimate

pedagogical concerns.” Kuhimeier, 484 U.S. at 260.

21a

jective and the objective components of the message

communicated by a government action is therefore

necessary to determine whether the action carries

a forbidden meaning.”

Lynch, 465 U.S. at 690 (O’Connor, J., concurring). Here,

it is reasonable to conclude that not all cf Mr. Roberts’

students would receive a purportedly secular message.

Mr. Roberts left his personal Bible on his desk in his

fifth-grade classroom at all times and read it during

class time. Like his Bible, the two other contested books

were Mr. Roberts’ personal property and were not used

as part of the class curriculum. Further, the three books

were the only books in the classroom that were demon-

strated to contain religious themes, all three pertained to

Christianity. Considering these factors in light of the

environment of a fifth-grade classroom, the district court

properly concluded that the books had the primary effect

of advancing religion. See Edwards v. Aquillard, 482

U.S. 578, 584 (1987) (noting that elementary school-

children “are impressionable and their attendance is in-

voluntary”). When viewed from the eyes of the children

in Mr. Roberts’ class, the placement of the two books in

the class library, the placement of Mr. Roberts’ Bible on

his desk, and Mr. Roberts’ reading of the Bible during

the reading period provided “a crucial symbolic link be-

tween government and religion.” Grand Rapids School

Dist. v. Ball, 473 U.S. 373, 385 (1985).

Under both the purpose and the effect prongs of the

Lemon test, the district court properly determined that

the censored actions, when viewed in the.r entirety, vio-

lated the Establishment Clause of the first amendment.

The censored conduct therefore substantially infringed on

the rights of Mr. Roberts’ students.'* Because ‘“|t]he

2JIn Engel v. Vitale, 370 U.S. 421, 431 (1962), the Supreme

Court recognized that “[w]hen the power, prestige and financial

support of government is placed behind a particular religious be-

lief, the indirect coercive pressure upon religious minorities to con-

22a

State must be certain, given the Religion Clauses, that

subsidized teachers do not inculcate religion,” Lemon, 403

U.S. at 619, we conclude that the school district’s ac-

tions were not constitutionally infirm.

V. Costs

As a final matter, plaintiffs complain that the district

court erred when it awarded defendants their entire

costs. Plaintiffs note that the district court ordered de-

fendants to return the copy of the Bible to the school

library and enjoined them from removing it in the fu-

ture. Thus, plaintiffs argue that the defendants were

not “prevailing parties” on all issues within the meaning

of Rule 54(d) of the Federal Rules of Civil Procedure.

Under Rule 54(d), “‘costs shall be allowed as of course

to the prevailing party unless the court otherwise di-

rects.” Fed. R. Civ. P. 54(d). We acknowledge that

defendants in this case are not “prevailing parties’ on

the issue relating to the Bible in the school library.

Thus, this case presents a situation where both parties

have “prevailed” on at least one claim.

In reviewing the district court’s decision to impose

costs, we reverse only for an abuse of discretion. Sce

Howell Petroleum Corp. v. Samson Resources Co., 903

F.2d 778, 783 (10th Cir. 1990). In this case, we con-

clude that the district court’s decision to award costs

to the party that prevailed on the vast majority of is-

sues and on the issues truly contested at trial was not an

abuse of discretion.

We first note that the dismissal of most of plaintiffs’

claims makes defendants the prevailing party on those

issues. 10 C. Wright, A. Miller & M. Kane, Federal

Practice and Procedure § 2667 (2d ed. 1983). We re-

form to the prevailing officially approved religion is plain.” Such

coercive pressure is surely at its peak when the religious minorities

are impressionable children who look to their teacher as a role

model.

23a

cently held that it was not an abuse of discretion for a

district court to refuse to award costs to a party that

was only partially successful. See Howell, 903 F.2d at

783. We now hold that the district court in this case

did not abuse its discretion when it awarded full costs

to the party prevailing on the majority of claims and the

central claims at issue. Other circuits have upheld

awards of full costs to a party prevailing in only part

of a case. See United States v. Mitchell, 580 F.2d 789,

793 (5th Cir. 1978); K-2 Ski Co. v. Head Ski Co., Inc.,

506 F.2d 471, 477 (9th Cir. 1974). Our holding is based

on the broad discretion of the district court. As Profes-

sor Moore has noted, under Rule 54 the district court

has discretion to award costs to a nonprevailing party.

J. Moore, W. Taggart & J. Wicker, Moore’s Federa!

Practice § 54.70[4] (2d ed. 1988). “[W]here the court

exercises its discretion the identification of the prevailing

party may become so unimportant a; to be almost im-

material.” Jd. Accordingly, we affirm the district court’s

exercise of its discretion in awarding costs to defendants.

VI. Conclusion

Mr. Roberts’ Establishment Clause claims fail because

the school district acted for the valid purpose of pre-

venting him from promoting Christianity in a public

school. Moreover, the primary effect of the school dis-

trict’s actions was not to send a message of disapproval

of Christanity. If we must draw any message from the

district’s actions, then that message must be that the

district properly disapproves of classroom activity that

appears to promote a particular set of religious concepts.

As for Mr. Roberts’ free speech and academic freedom

arguments, we conclude that the district’s removal of two

Christian books from the classroom shelves and its direc-

tive ordering Mr. Roberts to cease his silent Bible read-

ing in the classroom did not violate the first amendment.

Mr. Roberts’ conduct, in the context of a fifth-grade class

24a

full of impressionable children, had the purpose and ef-

fect of communicating a message of endorsement of re-

ligion in a manner that might reasonably be perceived

to bear the imprimatur of the school.

We conclude further that the district court correctly

dismissed the claims of the student and parent plain-

tiffs for lack of standing. None of the students were in

Mr. Roberts’ class at the time this suit was filed. Thus,

none of the students had standing for purposes of in-

junctive relief. Although the students and parents also

asserted claims for damages, plaintiffs failed to preserve

those claims for appeal. We thus affirm the district

coult’s dismissal of all the student and parent plaintiffs’

claims.

Finally, we conclude that the district court did not

abuse its discretion when it awarded the defendants their

costs.

The judgment of the district court is therefore AF-

“IRMED.

25a

BARRETT, Senior Circuit Judge, dissenting:

I respectfully dissent.

The First Amendment provides, in part, that “Congress

shall make no law respecting an establishment of religion

or prohibiting the free exercise thereof... .’’ The Found-

ing Fathers were specially concerned that these United

States would not labor under a state sponsored church or

religion. The United States Supreme Court has made it

abundantly clear that the Constitution does not require

complete separation of church and state and that it

“lalffirmatively mandates accommodation, not merely tol-

erance, of all religions, and forbids hostility toward any.

See, e¢.g., Zovach v. Clauson, 343 U.S. 306-314, 315

(1952); Illinois ex rel. McCollum v. Board of Education,

333 U.S. 203, 211 (1948).”) Lynch v. Donnelly, 465 U.S.

668, 673 (1984). I believe that those mandates were vio-

lated by Principal Madigan and the School District in

this case. Their actions forbidding Mr. Roberts from

reading his Bible during his fifth grade class’ 15-minute

silent reading period and ordering the removal of the two

challenged books from his classroom library were acts of

intolerance, lack of accommodation and hostility toward

the Christian religion.

There is no assertion by Mr. Roberts that his reading

the Bible during the class silent reading period was an

exercise compelled by his religious beliefs. See Sherbert

1 Principal Madigan also requested that Mr. Roberts remove a

poster depicting a mountain scene with the inscription: “You have

only to open your eyes to see the hand of God.” Mr. Roberts com-

plied with the request and, at trial, did not challenge the poster’s

removal. Thus, the poster should not be considered when deter-

mining whether the defendants violated the Establishment Clause

by prohibiting Mr. Roberts’ other practices. Even if the poster

were to be considered, I believe that its nonsectarian reference

to “God” is, at best, only minimally relevant to the issue of whether

Mr. Roberts was unconstitutionaily promoting Christianity in the

classroom.

26a

v. Verner, 374 U.S. 398 (1963). By the same token,

this is not a case involving a religious practice in viola-

tion of a state statute. Employment Div., Oregon Dept. of

Human Resources v. Smith, USS. , 58 U.S.L.W.

4433 (April 19, 1990) (claimed religious use of peyote

cannot prevail under the Free Exercise Clause in light of

Oregon’s statute declaring it a felony to knowingly pos-

sess the drug); Reynolds v. United States, 98 U.S. 145

(1879) (religious belief in polygamy cannot prevail over

state criminal statute outlawing the practice). Thus,

in the instant case, none of Mr. Roberts’ practices con-

stituted any per se violation of any Colorado law, custom

or policy. Accordingly, the district court should have

judged the case with a view to accommodate Mr. Roberts’

practices. The burden was cast on the school district to

demonstrate, as the majority opinion now agrees, that

Mr. Roberts’ challenged practices materially and substan-

tially interfered with the operation of the school. This

burden is analogous to the “compelling governmental

interest”? test announced in Wisconsin v. Yoder, 406 U.S.

205 (1972), which requires that religious liberty under

the Free Exercise Clause of the First Amendment can-

not be interfered with or encroached upon, directly or in-

directly, unless required by clear and compelling govern-

mental interests “of the highest order.” Yoder, 406 U.S.

at 215.

It is a far ery from tolerance and accommodation

toward Christianity to interpret the practices in Mr.

Roberts’ classroom as “teaching” or “endorsement” of

Christianity in violation of the Establishment Clause.

I observe that such findings by the district court, which

the majority here upholds under either the clearly er-

roneous standard or the de novo standard, have no basis

in any aggrieved testimony of fifth grade students or

their parents, past or present. The only “live” complain-

ant in this case was Principal Madigan, whose views on

separtion of church and state are absolute. She applied

a “bright line” approach. The district court’s “findings”

27a

are really legal conclusions. There is no basis, other than

speculation, for implying, as does the majority opinion,

that the practices in Mr. Roberts’ classroom constituted

religious indoctrination. (Slip Opinion, pp. 17-19). Pre-

sumably, such would not have been the case had Mr.

Roberts’ classroom constituted religious indoctrination.

(Slip Opinion, pp. 17-19). Presumably, such would not

have been the case had Mr. Roberts read the books on

juddhism or Indian religions. Principal Madigan did

not object to them. Thus, it seems that any concern that

elementary children are “vastly more impressionable than

high school or university students,” (Appellee’s Briefs,

p. 32), cannot be a serious defense. In this case, it was

Principal Madigan and the School District who violated

the Establishment Clause.

In the following Supreme Court opinions interpretive

of the Establishment Clause in the context of the public

schools, it is important to note that the condemned ac-

tivity was openly pursued or actively—rather than pas-

sively—sponsored: Stone v. Grahamn, 449 U.S. 39, reh.

denied, 449 U.S. 1104 (1980) ‘held that the posting of a

copy of the Ten Commandments on the wall of each public

school room violated the Establishment Clause because no

secular purpose had been demonstrated) ; Engel v. Vitale,

370 U.S. 421 (1962) (formulated prayers which were

required to be repeated by students in public schools

violated Establishment Clause); McCollum v. Board of

Education, 333 U.S. 203 (1948) (released time arrange-

ment whereby students who wished could attend religious

instruction classes during regular school hours in public

school buildings, held to be violative of Establishment

Clause by virtue of use of tax-supported property to pro-

mote religion). .

In those cases where a religious exception has not been

allowed from a state statute or reguiation, the Supreme

Court has east the burden on the government to rely on

more than mere speculation about potential harms; the

28a

government has been required to present evidentiary sup-

port for a refusal to allow a religious exception. United

States v. Lee, 455 U.S. 252, 257-258 (1982) (The gov-

ernment must demonstrate that unbending application

of its regulation to a religious objector is essential to

accomplish an overriding governmental interest) ; Thomas

v. Review Board of Indiana Employment Security Div.,

450 U.S. 707, 719 (1981), (rejected the state’s reasons

for refusing to grant a religious exemption for failure to

demonstrate that the means employed were the least

restrictive means of achieving a compelling state interest

because no evidence in the record supported the state’s

reasons).

Cases involving the challenges presented here must

necessarily be decided on a case-by-case basis. A person

in Mr. Roberts’ position as an elementary school class-

room teacher must be alert to the possibility that actions

on his part could constitute government actions violative

of the Establishment Clause without further evidence.

For example, in a less discreet classroom scenario than

that presented in the case at bar, a violation could be

found to exist. However, unlike Stone, Engel, and

McCollum, the activities here were passive and de mini-

mis. If the condemned activities in this case could, by

simple inference, be held to be violative of the principle

of separation of church and state, reliance would neces-

sarily have to weigh almost entirely on the proposition

that Mr. Roberts’ fifth graders were ages 10 or 11 and

thus easily proselytized. The problem is simply that there

is no evidence to support such a bald conclusion. No

students or parents testified in support of Principal Madi-

gan or the School District. No witness protested that

Mr. Roberts’ practice of reeding from his Bible or the

maintenance in his classroom library of the two con-

demned books were motivated by Mr. Roberts’ intention

to promote belief in Christianity. Under these circum-

stances and on the record made, I would hold that the

activities did not amount to an intrusion on the separa-

tion of church and state principle.

29a

Where disputes arise over government restrictions on

a person’s exercise of a religious practice (here, Mr.

Roberts’ desire to read from his Bible during the silent

15-minute class reading period), the court must deter-

mine whether the government has demonstrated a com-

pelling interest in enforcing its policy (here, Principal

Madigan’s separation of church and state principle) and

whether the policy represents the least restrictive means

of fulfilling the governmental interest. Wisconsin v.

Yoder, supra; Sherbert v. Verner, supra. Although he

does not specifically so argue, Mr. Roberts’ practice of

reading his Bible during the class 15-minutes silent read-

ing period was a minimal, discreet exercise of the Free

Exercise Clause of the First Amendment. As such, Prin-

cipal Madigan and the School District unduly burdened

Mr. Roberts’ rights. See Hernandez v. Commissioner, 490

USS. (1989) ; Wisconsin v. Yoder, supra, at p. 220.

The majority has come to agree that the “substantial

interference” standard of review set forth in Tinker v.

Des Moines Indep. Community School Dist., 393 U.S. 503

(1969), applies here. In Tinker, three public school

pupils were suspended from school for violating a school

policy, of which they were aware, by wearing black

armbands in protest of the government’s policy in Viet-

nam. The students were quiet and passive, just as was

Mr. Roberts, and they did not impinge upon the rights of

others. There is no evidence that Mr. Roberts’ actions

impinged upon the rights of others.

The Tinker court observed that the armband display

“does not concern aggressive, disruptive action or even

group demonstrations” and that there was no evidence

that the armband display interfered with school work or

collided with the rights of other students to be let alone.

Id. at 508. By the same standard, there is no evidence

that Mr. Roberts’ actions interfered with school work or

collided with the rights of the students. Tinker required

evidence demonstrating that “/e|ngaging in the forbid-

30a

den conduct would ‘materially and substantially interfere

with the requirements of appropriate discipline in the

operation of the school ....’” /d. at 509. There is not

a scintilla of evidence in the case at bar demonstrating

that any of Mr. Roberts’ practices materially and sub-

stantially interfered with the appropriate operation of

the school. Thus, I submit that, under the strict Tinker

standard, the defendants-appellants failed to carry their

burden of proof. This is a ease in which to promote

tolerance. In my view, under the strict standard of

Tinker, the defendants failed to prove that Mr. Roberts’

behavior “materially and substantially interfere[d] with

.. . the operation of the school.” Tinker, 393 U.S. at 509.

The maintenance of the two challenged books in Mr.

Roberts’ classroom library was entirely passive in char-

acter, just as was Mr. Roberts’ practice of reading his

Bible during the class’ 15-minute silent reading period.

These books were not assigned to the students and there

is no evidence that Roberts ever referred the students to

* The majority relies on Hazelwood School Dist. v. Kuhlmeier,

484 U.S. 260 (1988) to bolster its position that school officials have

broad discretion in controlling school activities (Footnote 10, p. 23

of Majority Slip Opinion). The problem is that Kuh/meir differ-

entiated between “personal expression that happens to occur on the

school premises” protected under Tinker (which governs Mr.

Roberts’ practices) and school activities “|t]hat students, parents,

and members of the public might reasonably perceive to bear the

imprimatur of the school.” Kuhlmeir, 484 U.E. at 271. The Tinker

standard, it is agreed, controls in this case. The “substantial inter-

ference” standard applied in Tinker is far less deferential than the

“greater control” standard applied in Kuhlmeir. It is to be noted

that Kuhimeir involved the constitutional right to the high school

principal to censor certain articles submitted for publication in the

student newspaper. It was in that context that the Supreme Court

upheld the principal’s actions as being “[rjeasonably related to

legitimate pedagogical concerns.” 484 U.S. at 273. In the instant

case, Principal Madigan’s actions did not involve educational con-

cerns calling for the expertise of school officials; on the contrary,

she exercised a judgment involving a conflict relating to basic

constitutional values.

3la

them. Furthermore, Roberts’ practice of reading his

Bible while seated at his desk during the class 15-minute

silent reading period was carefully exercised. Under

these circumstances, the School District did not prove

that there was a compelling governmental interest justi-

fying its command that Mr. Roberts refrain from reading

his Bible during the 15-minute silent reading period, and

remove the two books from the classroom library. “First

Amendment rights must always be applied in light of the

special characteristics of the . . . environment in the

particular case.” Tinker, 393 U.S. at 506.

In Lynch v. Donnelly, supra, the Supreme Court ma-

jority observed:

The Court has invalidated legislation or govern-

mental action on the ground that a secular purpose

was lacking, but only when it has concluded that

there was no question that the statute or activity

was motivated wholly by religious considerations,

See, e.g., Stone v. Graham, supra, at 41; Epperson v.

Arkansas, 393 U.S. 97, 107-09 (1968); Abington

School District v. Schempp, supra, at 223-224; En-

gel v. Vitale, 370 U.S. 421, 424-425 (1962). Even

where the benefits to religion were substantial, as in

Everson v. Board of Education, 330 U.S. 1 (1947);

Board of Education v. Allen, 392 U.S. 236 (1968) ;

Walz, supra; and Telton, supra, we saw a secular

purpose and no conflict with the Establishment

Clause. Cf. Larkin v. Grendel’s Den, Inc., 459 U.S.

116 (1982).

465 U.S. at 680.

In my view, the Lemon v. Kurtzman, 403 U.S. 662

(1971) test is inapplicable in the instant case, simply

because the actions condemned here are not of the type

or character sufficient to implicate government entangle-

ment with religion. In reality, out of concern for a

“bright line” demand for separation of church and state,

32a

the defendants effectively denied Mr. Roberts that degree

of tolerance to which he is entitled. At the evidentiary

hearing conducted by the district -ourt on the injunction

issue, two witnesses, the school’s librarian and music

teacher, testified that Principal Madigan removed the

Bible from the main school library in keeping with her

concept of separation of church and state. While the

district court did not agree with Principal Madigan’s ac-

tion in removing the Bible from the main school library

(the district court enjoined Principal Madigan and the

School District from removing the Bible from the school

library), the court did uphold her actions, approved by

the School District, in ordering Mr. Roberts to remove

his Bible from his desk, not to read from his Bible during

the 15-minute silent reading period and to remove “The

Bible in Pictures’ and “The Story of Jesus” from his

239-book classroom library. I would hold that Principal

Madigan’s actions were constitutionally unwarranted and

that the district court was clearly erroneous. Principal

Madigan insisted on the obliteration of all Christian books

from the school premises. Her extreme stance would con-

vert the “primary effect” prong of the Establishment

Clause into governmental disapproval, disparagement and

hostility toward the Christian religion.

There is nothing in the record demonstrating, in fact,

that Mr. Roberts’ placement of his personal Bible on his

desk, his habit of reading the Bible during the class’ 15-

minute silent reading period or the placement of the

above-referred to books in the classroom library had a

coercive effect on or that it tended to proselytize Mr.

Roberts’ fifth grade students. Any concerns voiced in re-

gard to the Establishment Clause impact are entirely

speculative.

There is no evidence that Mr. Roberts at any time

ever spoke to his students concerning his possession of

a Bible or his preference in reading from it. Thus, there

is no evidence of any “‘coercive” effect. Furthermore,

33a

there is no evidence that Mr. Roberts ever assigned any

members of his fifth grade class to read any of the books

in his classroom library, including a book on Buddhism

and a book on American Indian religions.

In my view, the district court erred in drawing any

distinction between the maintenance of the Bible in the

schoo! library while denying the simple maintennace of

“The Bible in Pictures” and “The Story of Jesus” in the

classroom library. Not one word was spoken by Mr.

Roberts concerning the Bible, his reading of the Bible,

or of the two condemned books in his classroom library

which could involve any successful application of the

Lemon test in favor of the state out of concern for vio-

lation of the Establishment Clause of the First Amend-

ment.

In Marsh v. Chambers, 463 U.S. 783, 792 (1983), the

Supreme Court majority held that the practice of open-

ing each daily session of the Nebraska legislature with

a prayer by a chaplain paid by the State did not violate

the Establishment Clause of the First Amendment be-

cause the practice had become historically accepted as

“(plart of the fabric of our society.” Mr. Justice Bren-

nan, joined by Mr. Justice Marshall, dissented. They

would hold the legislative prayer practice violative of the

Establishment Clause. No one ean logically argue that

the daily prayer practice in Marsh could meet the test

of the first prong of the Lemon v. Kurtzman test, i.e.,

the statute (or practice) must have a secular legisla-

tive purpose. And no justice on the Supreme Court in

Marsh raised the contention addressed in Engel v. Vitale,

supra, that the legislature’s daily prayer imposed an im-

permissible endorsement of prayer in publie facilities or

that it had a coercive effect upon non-religious minori-

ties to conform.

The 15-minute silent reading period was not a religious

exercise. Just as a moment of silence does not endorse

prayer over other alternative, in my view, the fact that

34a

Mr. Roberts sometimes used the 15-minute silent read-

ing period reading from his Bible does not, ipso facto,

convey a message to his students that they should follow

suit.

The Free Exercise Clause of the First Amendment

mandates that the government not prohibit or interfere

with the free exercise of religion. The clause imposes a

burden on the zovernment to facilitate the free exercise

of religion. In that sense, the government is promoting

a religious purpose and if the first and second prongs

of the Lemon test were to apply, the Free Exercise

Clause would necessarily fall because the government

would not be pursuing a secular purpose, and the primary

effect would be to advance religion.

In Wallace v. Jaffree, 472 U.S. 38 (1985), the Supreme

Court struck down an Alabama statute authorizing a 1-

minute period of silence in all public schools for “medi-

tation or volutntary prayer” because the majority held

that the established purpose was to endorse religion, and

the enactment was not motivated by any clearly secular

purpose. The Court majority applied to Lemon test.

Then-Chief Justice Warren Burger, in his dissent in

Wallace v. Jaffrec, made the following pertinent observa-

tions with which I agree and which I believe to be fully

consistent with the majority opinion in Lynch v. Don-

nelly, supra, and applicable here:

|T|he Court’s extended treatment of the ‘test’ of

Lemon v. Kurtzman, 403 U.S. 602 (1971) suggests

a naive pre-occupation with an easy, bright-line ap-

proach for addressing constitutional issues. We have

repeatedly cautioned that Lemon did not establish

a rigid caliper capable of resolving every Estab-

lishment Clause issue, but that it sought only to pro-

vide ‘signposts... .’ [O]ur responsibility is not to

apply tidy formulas by rote; our duty is to deter-

35a

mine whether the statute or practice at issue is a

step toward establishing a state religion.

* * * *

[T]he statute does not remotely threaten religious

liberty; it affirmatively furthers the values of re-

ligious freedom and tolerance that the Establish-

ment Clause was designed to protect. Without pres-

suring those who do not wish to pray, the statute

simply creates an opportunity to think, to plan, or to

pray if one wishes—as Congress does by providing

chaplains and chapels. It accommodates the purely

private, voluntary religious choices of the individual

pupils who wish to pray while at the same time cre-

ating a time for non-religious reflection for those

who do not choose to-pray. The statute also provides

a meaningful opportunity for school children to ap-

preciate the absolute constitutional right of each in-

dividual to worship and believe as the individual

wishes. The statute ‘endorses’ only the view that the

religious observances of others should be tolerated

and, where possible, accommodated. If the govern-

ment may not accommodate religious needs when it

does so in a wholly neutral and non-coercive manner,

the ‘benevolent neutrality’ that we have long con-

sidered the correct constitutional standard will

quickly translate into the ‘callous indifference’ that

the Court has consistently held the Establishment

Clause does not require. (Emphasis supplied).

472 U.S. at pp. 89-90.

I would reverse the judgment of the district court and

hold, on the record before us, that plaintiff Roberts has

demonstrated that the defendants violated the Estab-

lishment Clause by requiring the removal of the two

books from his classroom library and by barring him

from reading or displaying his Bible during the class’

15-minute silent reading period.

36a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Case No. 88-F-1908

KENNETH ROBERTS; MARC NELSON and ZAY NELSON,

parents and next friends of KELLY NELSON and AMY

NELSON; DEBRA JEAN WHITE, parent and next friend

of KELLY WHITE, -

Plaintiffs,

vs.

KATHLEEN MADIGAN, in her official capacity as principal

of Berkeley Gardens Elementary School, and ADAMS

COUNTY SCHOOL DIsTRICT No. 50,

Defendants.

MEMORANDUM OPINION AND ORDER

[Filed Jan. 5, 1989]

Chief Judge Sherman G. Finesilver

Plaintiff Kenneth Roberts, a fifth grade teacher, is

joined by parents of several children in his school in

seeking injunctive and declaratory relief against officials

of School District No. 50. Plaintiffs challenge defendants’

removal of two religiously oriented books in Roberts’

classroom library. Plaintiffs seek further relief from

defendants’ directive that Roberts keep his Bible out of

sight, and refrain from silently reading it, during class-

room hours.

Jurisdiction is invoked pursuant to 28 U.S.C. §§ 1131,

1343, and the First and Fourteenth Amendments to the

ova

Constitution. The hearing on the preliminary injunction

was merged with the trial to the court pursuant to F.R.

Civ.P. 65(a) (2).

Plaintiffs assert that defendants have abridged their

First Amendment rights of Free Speech, Academic Free-

dom, and Access to Information. Plaintiffs further allege

that defendants have violated the Establishment Clause

of the First Amendment.!

The parties in this litigation are as follows:

Plaintiffs Kenneth Roberts, a fifth grade teacher

at Berkeley Gardens Elementary School in Adams

County School District No. 50, Westminster, Colo-

rado.

Plaintiffs Mare and Zay Nelson, the parents of

Plaintiffs Kelly and Amy Nelson, neither of whom is

in Roberts’ class. Kelly Nelson was a student in

Roberts’ class during the 1987-88 school term.

Plaintiff Debra Jean White, the parent of Plain-

tiff Kelly White, who is not in Roberts’ class.

Defendant Kathleen Madigan, in her official ca-

pacity as principal of Berkeley Gardens Elementary

School.

Defendant Adams County School District No. 50.

(“the District”).

By this Order, we hold that Roberts’ request for in-

junctive relief is denied. We direct that the Bible be re-

turned to the school library at Berkeley Gardens Ele-

mentary School, Adams County, Colorado. We further

1The Establishment and Free Exercise Clauses refer to the

following provision of the First Amendment: “Congress shall

make no law respecting an establishment of religion, or prohibiting

the free exercise thereof... .”

The Free Speech clause refers to the following First Amendment

provision: “Congress shall make no law... abridging the freedom

of speech, or of the press... .”

38a

hold that parents whose children are not presently in

Roberts’ class have no standing to challenge the defend-

ants’ actions as to Roberts.

Accordingly, the court enters the following findings

of fact and conclusions of law.

I. Facts

Events giving rise to this litigation transpired during

the school term from September of 1987 to June of

1988.

Roberts’ testimony at trial revealed the following

facts. During a parent/teacher open house in September

of 1987, Madigan received a complaint from a parent

regarding the presence of two books, The Bible in Pic-

tures (Plaintiffs’ Exhibit 5), and The Life of Jesus

(Plaintiffs’ Exhibit 6), in Roberts’ classroom library.

These books are not part of the District’s approved cur-

riculum for fifth grade students.’

Madigan quickly perused the books and directed Rob-

erts to remove them from the classroom library. She

also ordered that he take down a poster which was promi-

nently displayed in the classroom. (Plaintiffs’ Exhibit

7(a)).* Roberts complied with this directive immediately

and without argument.

*The Bible in Pictures is a 319-page volume with over one

thousand illustrations. The illustrations are designed to provide

both children and adults with a better understanding of the Bible.

In the book’s preface, the author states “I pray that this book may

bring a fresh vision of Christ, and God’s purpose in Him, to you

who now read it in the midst of the heartache and frustration of

the modern world.”

The Story of Jesus is a 128-page volume which depicts through

illustrations and text the birth, life, and resurrection of Jesus

Christ. The book concentrates on the teachings of Jesus of Nazareth

with the underlying premise that he is the Son of God.

4 The poster depicts a mountain scene with the inscription:

“You have only to open your eyes to see the hand of God”. The

removal of the poster is not contested in this case.

39a

Madigan asked no questions regarding the books’ use

before ordering their removal. Her explanation to Rob-

erts at the time was that “separation of church and

state” required that the books be removed. Madigan then

noticed the Bible which Roberts kept on his desk and

requested that he keep it out of sight during classroom

hours.*

Madigan had spoken to Roberts about the Bible on his

desk on previous occasions. During a routine visit to

Roberts’ classroom, Madigan observed that Roberts was

silently reading the Bible during a class session. Feeling

that Roberts should have been actively teaching the class

instead of silently reading, she directed him to keep the

Bible in his desk between the hours of 8:00 and 3:30.

Roberts claims that his reading was part of the lesson

plan which he submitted to Madigan and which she ap-

proved. (Plaintiffs’ Exhibit 0). However, the lesson plan

does not specifically provide that Roberts is to read dur-

ing this period, nor that Madigan in any way approved

his doing so.

Madigan saw Roberts reading the Bible in front of

the students a second time and again directed him to

keep the Bible out of sight during school hours. It was

at this time that Madigan received the parents’ complaint

at the open house.

Roberts later questioned Madigan whether he should

be required to “hide” the Bible, comparing his use of the

Bible and the religious materials in his classroom to the

pledge of allegiance, which contains the phrase “one

nation under God”. Madigan conferred with school offi-

cials after this discussion, and they affirmed her deci-

sion. Roberts asked for written guidelines as to what

types of material he could keep in his classroom. Madi-

gan denied this request, stating that common sense and

her previous remarks were sufficient.

4 The Bible in question is the King James version published in

1968 by the National Publishing Company.

40a

Roberts made a written request for the guidelines.

(Plaintiffs’ Exhibit 10). He subsequently met with other

officials in the District, but to no avail. In response to

the written request, Madigan again conferred with higher

officials and legal counsel for the District. As a result

of that meeting the following directive was issued to

Roberts:

The law is clear that religion may not be taught in

a public school. To avoid the appearance of teaching

religion, I have given you this directive. Failure to

comply with this directive will be considered insub-

ordination and could result in disciplinary action.

(Plaintiffs’ Exhibit 12).

Roberts’ classroom library contains approximately 237

books of varying content, including A Tale of Two Cities,

Tom Sawyer, and The Prince and the Pauper. (Plain-

tiffs’ Exhibit 1). The books are made available to stu-

dents for a daily fifteen-minute independent reading

period. Students are free to choose the books which they

reading during this time and may bring books from

home or other libraries.

Roberts reads his own books during the independent

reading time, in order to “set an example to the students

of an adult reading”. (Complaint, paragraph 11). Fre-

quently, the book he reads in front of the students is the

Bible, which is left on his desk throughout the school

day. Roberts testified that he never reads aloud from

the Bible, nor proselytizes about his faith to the stu-

dents. There are no allegations of personal hostility on

the part of defendants toward plaintiffs’ religious views.

The parties dispute whether Madigan removed the

Bible from the Berkeley Gardens «chool library. Defend-

ants do not seriously contest the replactment of the Bible

in the school library; however, the Bible has yet to be

replaced.

Specifically, the court confronts the following issues

in this litigation: (1) Whether Roberts’ actions consti-

4la

tute a violation of the Establishment Clause; (2) Whether

the District’s actions constitute a violation of Roberts’

right to free speech and academic freedom; and (3)

Whether the student plaintiffs and their parents have

standing to challenge the District’s actions toward

Roberts.

Il. The First Amendment

At controversy in this case is the complex relationship

between religion, public education, and the First Amend-

ment.° When we speak of government in the context of

this case, we include public education within its meaning.

The term “secular” is used by its common definition.®

The First Amendment sets forth fundamental princi-

ples governing the reaches of government and religion,

stating that “Congress shall make no law respecting an

Establishment of religion, or prohibiting the free exer-

cise thereof... .” (Emphasis added). There are thus

two distinct provisions restricting and controlling gov-

ernment authority over religion: the Establishment

Clause and the Free Exercise Clause. The Fourteenth

Amendment, as interpreted by the Supreme Court, ex-

tends these limits on governmental power to state and

local governments, including school districts, their offi-

cials, and employees.’

5 For an overview of the often turbulent relationship between

religion and public education, see Leo Pfeffer, God, Caesar and the

Constitution (1975); Leo Pfeffer, Church, State, and Freedom (re-

vised ed.) (1967); John H. Laubach, School Prayers (1969); Rod-

ney K. Smith, Public Prayer and the Constitution (1984); William

D. Valente, Education Law, Pubic and Private (1985); Kern Alex-

ander and M. David Alexander, American Public School Law (2nd

ed. 1985).

® Webster’s New International Dictionary (2d Ed. 1950) defines

secular as “not religious in character nor devoted to religious ends

or uses’”’.

?Sehool Dist. of Abington Township v. Schempp, 374 U.S. 203,

215-16, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963); Cantwell v. Con-

necticut, 310 U.S. 296, 303 (1940). (“The fundamental concept

of liberties embodied in the [Fourteenth] Amendment embraces the

42a

Constitutional debates over the role of religion in pub-

lic education often involve a complex interplay between

the Free Exercise and the Establishment Clauses.* Each

clause serves a different purpose: the goal of the Free

Exercise Clause is to keep religious faith voluntary—free

from government coercion—while the goal of the Estab-

lishment Clause is to prevent excessive government in-

volvement in religion.

The Free Exercise Clause prevents government from

impairing the liberty of individuals to exercise their

religious faith. The clause governs conflicts between re-

ligious faith and government actions that through coer-

cion make it more difficult to hold the beliefs and engage

in the practices of such faith. Wisconsin v. Yoder, 406

U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). It pro-

vides absolute protection for freedom to hold religious

beliefs but only qualified protection for freedom to engage

in religious activities.

liberties guaranteed by the First Amendment. The First Amend-

ment declares that Congress shall make no law respecting an estab-

lishment of religion or prohibiting the free exercise thereof. The

Fourteenth Amendment has rendered the legislatures of the states

as incompetent as Congress to enact such laws.”

8 The relationship of the Establishment and Free Exercise Clauses

was first discussed in Cantwell v. Connecticut, 310 U.S. 296 (1940).

The Court stated that the

“inhibition of legislation on the subject of religion has a

double aspect. On the one hand, it forestalls compulsion by law

of the acceptance of any creed or the practice of any form of

worship. Freedom of conscience and freedom to adhere to

such religious organization or form of worship as the individual

may choose cannot be restricted by law. On the other hand,

it safeguards the free exercise of the chosen form of religion.

Thus the Amendment embraces two concepts,—the freedom to

believe and freedom to act. The first is absolute but, in the

nature of things, the second cannot be.”

The distinction between the two clauses is apparent—a violation

of the Free Exercise Clause is predicated on coercion while the

Establishment Clause violation need not be so attended. Abington

School Dist. v. Schempp, 374 U.S. 203, 223 (1963).

43a

To resolve disputes over government interferences with

religious faith, courts weigh the strength of a person’s

interest in exercising the beliefs and practices in ques-

tion, against the government’s interest in a policy which

limits the exercise of faith, and the degree of burden im-

posed by the limitation. Wisconsin v. Yoder, 406 U.S.

205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). If a govern-

mental policy interferes with the person’s freedom to

exercise his faith, the government agency must show that

its interest in enforcing the policy is sufficiently com-

pelling to override the person’s religious rights and that

the policy represents the least restrictive way of ful-

filling the government’s interest. Sherbert v. Verner, 374

U.S. 398, 407, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1962).

The Establishment Clause mandates government neu-

trality concerning religion while unequivocally separat-

ing the reaches of church and state. The clause prohib-

its state or federal support of religion and defines the

parameters of the relation between government and

religion:

Government in our democracy, state and national,

must be neutral in matters of religious theory, doc-

trine, and practice. It may not be hostile to any

religion or to the advocacy of non-religion; and it

may not aid, foster, or promote one religion or

religious theory against another or even against the

militant opposite. The First Amendment mandates

governmental neutrality between religion and _ re-

ligion, and between religion and non-religion.

Epperson v. Arkansas, 393 U.S. 97, 103-4, 89 S.Ct. 266,

21 L.Ed. 228 (1968).

State activity in religious matters must pass a three-

part test in order to comport with the Establishment

Clause. The activity must:

(1) reflect a clearly secular purpose; (2) have a

primary, as opposed to incidental, effect which

44a

neither promotes nor inhibits religion; (3) not foster

excessive government entanglement with religion.

If the activity fails any one of the three parts, then a

constitutional violation has taken place. Lemon v. Kurtz-

man, 403 U.S. 602, 91 S. Ct. 2105, 29 L.Ed.2d 745

(1971). At times it may appear that the above test

results in uncertainty and ambiguous answers. However,

it provides a workable analytic framework by which to

review religious activities in public education.

toberts does not bring his action under the Free Exer-

cise Clause, but rather, bases it upon the Free Speech

Clause. We consider Roberts’ cause of action under both

Clauses. Under the facts of this case, Roberts’ choice of

Clauses does not alter the results of an Establishment

Clause analysis. The Supreme Court has stated that the

various Clauses of the First Amendment are unified and

interwoven together by the individual’s right to freedom

of conscience.” Both the Free Speech and Free Exercise

Clauses protect the freedom to express religious views,

yet both are subject to the strictures of the Establish-

ment Clause."

In public education, an individual’s right to free speech

is not absolute. It may be limited if exercise of that right.

*“'T]t may be doubted that any of the great liberties insured

by the First Amendment can be given a higher place than the others.

All have preferred position in our basic scheme. Schneider v. State,

308 U.S. 147 (1939) ; Cantwell v. Connecticut, 310 U.S. 296 (1939).

All are interwoven together. Differences there are, in them and

in the modes appropriate for their exercise. But they have unity

in the charter’s prime place because they have unity in their hu-

man sources and functionings.” Wallace v. Jaffree, 472 U.S. 38, 50

n.3d, 105 S.Ct. 2479, 86 L.Ed.2d 645 (1984) (citing Prince v.

Massachusetts, 321 U.S. 158, 164, 64 S.C’. 438, 88 L.Ed. 645 (1944).

1° The Free Speech-Clause clearly protects the rights of indi-

viduals to speak on religious topics. Widmar v. Vincent, 454 U.S.

263, 268-69, n.6, 102 S.Ct. 273-74, n.6, 70 L.Ed.2d 440 (1981).

However, those rights may be limited by the Establishment Clause.

Breen v. Runkle, 614 F.Supp. 355 (D. Mich. 1985), citing Widmar,

454 U.S. at 276. The Breen case provides a discussion on some of

the issues in this case.

45a

materially and substantially interferes with the rights of

others. Tinker v. Des Moines Independent Community

School District, 393 U.S. 503, 513, 89 S.Ct. 733, 740, 21

L.Ed.2¢ 731 (1969). When such interference occurs, a

constitutional conflict of the highest order is presented.

Breen v. Runkel, 614 F.Supp. 355 (D. Mich. 1985).

Ill. The Bible in the School Library

Of particular importance in this litigation is the legal

propriety of keeping the Bible in a school library. The

Supreme Court has described the library as ‘a mighty

resource in the marketplace of ideas”. Abrams v. United

States, 250 U.S. 616 (1919) (Holmes, J. dissenting). A

school library “is a place dedicated to quiet, to knowledge,

and to beauty.” Board of Education v. Pico, 457 US,

53, 868 (1981) (citing Brown v. Louisiana, 383 U.S.

131, 142 (1966). it is a place where “students must

always remain free to inquire, to study and to evaluate,

to gain maturity and understanding.” Board of Educa-

tion v. Pico, 457 U.S. 853, 868-69 (1981) (citing Keyish-

tan v. Board of Regents, 385 U.S. 589 (1967).

The school library is a mirror of the human race, a

repository of the works of scientists, leaders, and philos-

ophers. It is the locus where the past meets tomorrow,

embellished by the present. The school library offers the

student a range of knowledge, from the world’s great

novels and plays to books on hobbies and how-to-do-it

projects. The importance of the school library is summed

up by the inscription above the entry to the University

of Colorado’s Norlin library: “Who knows only his own

generation remains always a child.”

In this age of enlightenment, it is inconceivable that

the Bible should be excluded from a school library. The

Bible is regarded by many to be a major work of litera-

ture, history, ethics, theology, and philosophy.'' It has a

1! See, e.g., John H. Laubach, School Prayers, pp. 150-54 (1969),

46a

legitimate, if not necessary, place in the American pub-

lie school library. In this central location, it is available

for voluntary perusal and study by young students pos-

sessing inquisitive minds. Youth is the time for students

to explore great works of history and literature. To de-

prive a publie school library’s collection of the Bible

would, in the language of Justice Robert Jackson, render

the educational process “eccentric” and incomplete. Mc-

Collum v. Board of Education, 333 U.S. 203, 235, 67 S.Ct.

461, 92 L.Ed. 649 (1949).

The Establishment Clause does not require that religious

books be removed from the shelves of school libraries.

Abinaton School District v. Schempp, 374 U.S. 203, 225,

83 $.Ct. 1560, 10 L.Ed.2d 844 (1963). Public school

libraries may include Bibles and other religiously oriented

books provided that no one sect is favored in the library

and their inclusion in the library’s collection does not

show any preference for religious works in general.

Evans v. Selma Union H.S. Dist., 193 Cal. 54, 222 P.

801 (1924). We find that the Berkeley Gardens library

does not show any preference for a particular religion,

or religion in general. The Bible has a legitimate place

in its collection.

IV. Religious Books in the Classroom Library

The Bible must be distinguished from secondary re-

ligious books such as those in Roberts’ classroom library.

Whereas the Bible is considered a major historical and

literary work, The Bible in Pictures and The Story of

Jesus are specifically written to provide children with a

better religious understanding of the Christian interpre-

tation of the Bible. As further discussed below, the Bible

hes many secular uses as a primary work and a source

of reference. The books in question do not possess the

same secular qualities.

Similarly, the school library must be distinguished

from the classroom library. Joyce Bennett, the librarian

47a

at Berkeley Gardens, testified that the books in the school

library are arranged according to subject, with the reli-

gious book section containing many volumes on various

religions. (Defendants’ Exhibit I).’* In comparison,

Roberts’ classroom library has no arrangement by sub-

ject, with only the two books in question being religiously

oriented. ( Plaintiffs’ Exhibit 1). This distinction man-

dates different constitutional results.

In the school library, a student may go directly to the

religious section where he or she will find an assortment

of books on various religions. The student selects books

according to personal curiosity, out of the glare of teacher

supervision and peer pressure. The voluntary nature of

choice, combined with the variety and number of books,

provides the student with protections against undue reli-

gious indoctrination. Roberts’ classroom library does not

afford the student the same protection and opportunity

for individuality.

Attendance is compulsory in the classroom.’* The

teacher stands in a position of power as disciplinarian,

role model, and educator. Students are constantly in the

presence of their peers, who may observe their every

action. The students are, in a real sense, a captive aud-

ience vulnerable to even silent forms of religious indoc-

trination.

12 The collection contains books on the Muslim, Jewish, Sikh,

Hindu, and Buddhist faiths as well as several books on ancient

Greek and European mythology. (Defendants’ Exhibit I).

13 The potential for undue influence is far less significant with

regard to college students who voluntarily enroli in courses. “This

distinction warrants a difference in constitutional results.” Abing-

ton School Dist. v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d

844 (1963). The Court has not questioned the authority of state

colleges or universities to offer courses on theology or religion.

See Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 273, 70 L.Ed.2d

440 (1981).

48a

This compulsion Of Circumstances in the classroom has

been recognized by the Supreme Court and other courts."

The danger of indoctrinating students with, or unduly

exposing them to, religious beliefs is much greater in the

classroom than in the library. See, Edwards v. Aquillard,

US. , 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987).

An Establishment Clause analysis must consider this

heightened danger in order to “prevent as far as possi-

ble, the intrusion of either [the church or the state] into

the precincts of the other.” Lynen v. Donnelly, 465 U.S.

668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984).

V. Religious Books in the Classroom/

Standards for Injunctive Relief

In order for this court to grant preliminary injunctive

relief, the moving party must establish the following:

1. Substantial likelihood that the movant will even-

tually prevail on the merits;

2. Showing that the movant will suffer irreparable

harm unless the injunction issues;

3. Proof that the threatened injury to the movant

outweighs whatever damage the proposed injunction

may cause the opposing party; and

4. Showing that the injunction, if issued, would not

be adverse to the public interest.

Hartford House Ltd. v. Hallmark Cards, Inc., 846 F.2d

1268 (10th Cir.) cert. denied, US. , 109 S.Ct.

260, 102 L.Ed.2d 248 (1988); Lundygrin v. Claytor, 619

F.2d 61, 63 (10th Cir. 1980).

The standard for permanent injunctive relief is essen-

tially the same with the exception that the movant must

14 See, e.g., Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d

601 (1962); People ex rel. Ring v. Board of Education, 245 Ill. 834,

92 N.E. 251 (1910); State ex rel. Weiss v. District Board, 76 Wisc.

177, 44 N.W. 967 (1890).

49a

demonstrate actual success on the merits. Amoco Pro-

duction Company, et al. v. Village of Gambell, Alaska,

et al., 480 U.S. 531, 107 S.Ct. 1396, 94 L.Ed.2d 542

(1987). Permanent injunctions are examined under less

demanding standards than are preliminary injunctions.

Henson v. Hoth, 258 F.Supp. 33 (D. Colo. 1966).

toberts’ case for injunctive relief fails because he can-

not demonstrate success on the merits. Roberts contends

that defendants have violated the Establishment Clause

by removing the books from his classroom library and

barring him from reading or displaying the Bible. In

determining whether there has been a violation of the

kistablishment Clause, the court must apply the three-

part test outlined above. Lemon v. Kurtzman, 403 US.

602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). First Amend-

ment issues are decided by the particular facts of a case.

Trial courts must establish factually complete records be-

fore deciding such issues. Breen v. Runkel, 614 F.Supp.

355, 357 (D. Mich. 1985).

Roberts argues that defendants based their actions on

an erroneous interpretation of the Establishment Clause,

and thus have no legitimaie reason for their actions.

School officials are charged with a difficult task in exer-

cising their broad discretion in the management of school

affairs.'* They must balance the First Amendment rights

of teachers to freely exercise and express their religious

preferences with the First Amendment rights of students

to be free of religious indoctrination in the classroom.

School officials have an affirmative duty to ensure that

individual teachers are not violating the Establishment

Clause, see, Grand Rapids School District v. Ball, 473

U.S. 373, 105 S.Ct. 3216, 3224, 87 L.Ed.2d 267 (1973),

but in carrying out this duty, they must remain within

the “transcendent imperatives of the First Amendment”.

15 Bpperson v. Arkansas, 3923 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d

228 (1968); Meyer v. Nebraska, 262 U.S. 290 (1923).

50a

Board of Education v. Pico, 457 U.S. 853, 102 S.Ct.

2799, 73 L.Ed.2d 435 (1982).

There are no certain guidelines for school officials to

follow in such cases, Supreme Court rulings are inquiries

based on specific facts, and the majority of the cases are

by divided courts and lack unanimity. See, e.g., Abing-

ton School Dist. v. Schempp, 374 U.S. 208, 83 S.Ct. 1560,

10 L.Ed.2d 844 (1963); Engel v. Vitale, 370 U.S. 421,

82 S.Ct. 1261, 8 L.Ed.2d 601 (1962); West Virginia

Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct.

1178, 87 L.Ed. 1628 (1943).

Roberts alleges that the District’s purpose in removing

the two religious books from his classroom library was

to “disapprove religious books in that school.” The rec-

ord reflects, however, that the District’s action was

prompted by a secular, non-religious purpose. Madigan

testified at trial that she directed the removal of the

bowks only after parents complained to her at an open

house.- (Defendants’ Exhibit A). The final decision to

remove the books was made after consultation with school

officials and legal counsel for the District as to Establish-

ment Clause implications. We are persuaded that the

District’s purpose in the removal of the books was to pro-

mote religious neutrality according to the mandates of

the Establishment Clause.

The record shows that the District’s actions as to Rob-

erts’ reading of the Bible and his leaving it in open view

on his desk were motivated by a secular purpose. De- ~-

fendants were not seeking to advance other religions over

Roberts’, but were merely performing their “affirmative

duty to ensure that individual teachers are not, through

their classroom conduct, violating the guidelines of the

Establishment Clause.” Levitt v. Committee for Public

Education, 413 U.S. 472, 93 S.Ct. 2814, 37 L.Ed.2d 736

(1973).

Madigan, as principal of Berkeley Gardens and Rob-

erts’ direct superior, is empowered to regulate Roberts’

———

5la

classroom conduct.’* We do not find an improper, non- —

secular purpose behind her decision that Roberts should

have been teaching instead of reading during the inde-

pendent reading period. As to her order that he keep

the Bible out of the view of the students during the day,

there is nothing in the record to suggest that her purpose

went beyond that of insulating the students from undue

exposure to Roberts’ religious beliefs.

In light of the record, it is Roberts’ conduct which ap-

pears to be motivated by religious purposes. As _ noted,

the religious books in his classroom library were not re-

lated to the approved curriculum for fifth graders. Rob-

erts never used the books for the study of any secular

course of study, such as history, civilization, ethics or

comparative religion. Roberts never claimed that his per-

sonal use of the Bible was non-religious. The record con-

tains nothing to suggest that Roberts had a non-religious

purpose in placing the books in the classroom library, or

in reading the Bible during classroom hours. In light of

these circumstances, we conclude that there was an im-

proper religious purpose behind Roberts’ use of the Bible

and the presence of the religious books in his classroom

library.

The primary effect of the District’s actions was neither

to advance nor inhibit religion. Roberts claims that the

District’s actions are a showing of hostility toward re-

ligion which, in effect, is a furtherance of the “religion

of secularism”. See, Zorach v. Clauson, 343 U.S. at 314,

16 The Supreme Court has noted:

Judicial interposition in the operation of the public school

system of the Nation raises problems requiring care and re-

straint. ... By and large, public education in our Nation is

committed to the control of state and local authorities. Courts

do not and cannot intervene in the resolution of conflicts which

arise in the daily operation of school systems and which do

not directly and sharply implicate constitutional values.

Epperson v. Arkansas, 293 U.S. 97, 104-05, 89 S.Ct. 266, 270, 21

L.Ed.2d 228 (1968).

52a

72 S.Ct. 679, 96 L.Ed. 954 (1952). This argument is not

persuasive.'* The District made no attempt to replace

Roberts’ books with other religious books. The District

made no statements to students regarding the removal of

the books. The District refrained from any action which

could be interpreted as an endorsement of religion or non-

religion. Roberts’ reading of the Bible was restricted only

in the classroom setting. The primary effect of the Dis-

trict’s actions was not to further the interests of those

who believe in no religion, but to insulate students from

undue exposure to Roberts’ religion.

Roberts testified that he was not proselytizing or teach-

ing religion in his classroom, but was merely providing an

open reading forum where students are free to read books

of their own choice. We have considered this testimony

in the totality of the circumstances, and find that Rob-

erts underestimates the potential effect of his actions on

impressionable fifth grade students,

The fact that state action with respect to religion is

denominationally neutral, or the fact that its observance

is purely voluntary, does not serve to free the action

from the limitations of the Establishment Clause. Engel

v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601

(1962). Roberts cannot expect elementary school chil-

dren to discern the nuances, if any, which would indicate

that there is a true neutrality in his reading of the

Bible or in his selection of reading material for his class

17 Leo Pfeifer states: “A secular state requires a secular state

school; but the secularization of the state does not mean seculari-

zation of- society. Only by accepting a totalitarian philosophy,

either in religion or politics or both, can the state be equated with

society. We are a religious people even though our government

is secular. Our democratic state must be secular, for it does not

purport or seek to pre-empt all of societal life. Similarly the public

school need not and should not be the totality of the education

process.” (as cited in Alexander and Alexander, American Public

School Law (2d ed. 1985) ).

53a

library. Bell v. Little Axe Independent School Dist. No.

70, 766 F.2d 1391 (10th Cir. 1985).

Roberts argues that he is not actively engaged in

teaching the Bible during the indeperident reading pe-

riod. However, in our view, a teacher can be actively

engaged in teaching students regardless of whether ver-

bal interaction takes place. Roberts testified that he was

reading to set an example for the children of an adult

reading. We find that Roberts’ choice of reading ma-

terial is no less an example than his act of reading.

When reading religious material in the classroom, the

teacher must exercise great care so as not to advance

a religious view. Taken in their totality, Roberts’ read-

ing of the Bible and the religious books and poster in his

classroom present the appearance that Roberts is seek-

ing to advance his religious views.

We are not persuaded that a teacher’s discrete, incon-

spicuous, and silent reading of the Bible in the classroom

would necessarily expose students to undue religious in-

fluence. We do not assume the anomalous position of

prohibiting in the classroom the inconspicuous reading

of a book which is available in the school library. Rob-

erts’ silent reading of the Bible thus presents a closer

question and a more difficult balance of First Amend-

ment rights. When a teacher’s silent reading of the

Bible provokes students’ curiosity about the Bible’s re-

ligious teachings, prompts questions from students of a

religious nature, or is a subterfuge or a vehicle for ad-

vancing a particular religious view, that balance falls

definitely in favor of the students and renders the pres-

ence of the Bible constitutionally impermissible.

A teacher’s silent reading of the Bible does not in

every instance result in a constitutional violation. Where

the Bible serves as a secular educational reference, is

related to an approved curriculum, or is read in such

a manner that students are insulated from undue re-

54a

ligious influence or indoctrination, then school officials

may not prohibit its use or presence in the classroom.

When part of a secular course of study, use of the

Bible withstands constitutional scrutiny. Edwards v.

Aguillard, U.S. , 107 S.Ct. 25738, 96 L.Ed.2d

510 (1987).'* A study of American history would be

incomplete without reference to the Bible. The American

revolution and the founding of our country cannot be

taught without a discussion of religious freedom and oc-

casional reference to the Bible.’® Likewise, it would be

impossible to understand the civil rights movement of the

1960’s without reference to religious groups and their

beliefs in Christianity and the Bible.

The study of literary works, such as Shakespeare,

Milton, and Dante, is greatly enhanced by reference to

the Bible. A study of the evolution of agricultural prac-

tices finds that Biblical law prescribed giving the land a

rest every seventh year, (Exodus 23), an accepted prac-

tice in today’s agricultural science. An inquiry into the

roots of our modern day privilege against self-incrimina-

tion would be incomplete without reference to the Bible.*”

1’ The distinctions to be drawn between secular and religious

uses of Biblical materials are illustrated in Wiley v. Franklin, 497

F.Supp. 390 (D. Tenn. 1980). The court upheld the study of the

parables of Jesus regarding the uses of fables and parables as a

method of teaching, and of the Biblical narrative on the establish-

ment of the ancient Kingdom of Israel, in order to compare that

saga with the problems of establishing the modern day state of

Israel. The court disapproved the study of the prophecies of

Daniel; of God’s anger over Israel’s idolatry of the golden calf;

and the story of Sodom and Gomorrah as carrying an unconsti-

tutional religious message.

1? For example, the Liberty Bell is inscribed with the following

Biblical verse: “Proclaim Liberty Throughout All The Land Unto

All The Inhabitants Thereof.” (Leviticus XXV-X).

“° See Miranda v. Arizona, 384 U.S. 436, n. 27 (1965), where

the Supreme Court traced the self-incrimination privilege back to

Biblical times: “To sum up the matter, the principle that no man

55a

The Bible’s Song of Solomon may be as fruitfully stud-

ied for its poetic qualities as its religious precepts. Such

a broad range of secular uses is not to be found in the

two religious books in question. This distinction must be

considered in an Establishment Clause analysis.

- It is within the sound discretion of school officials to

make an objective determination of whether a teacher’s

use of a Bible is consistent with a secular purpose or

constitutes undue religious influence. Our ruling does

not limit the power of school officials to prescribe rules

of classroom conduct for their teachers. For example,

Roberts does not have a constitutional right to read the

Bible when the District’s rules require him to be en-

gaged in teaching his students.

Roberts argues that because he is allowed to teach

American Indian religion, (Plaintiffs’ Exhibits 18-20),

he should be allowed to resume his reading of the Bible

and replace his books in the classroom library. Roberts’

argument underscores the difference between teaching

about religion, which is acceptable, and teaching religion,

which is not. Florey v. Sioux Falls, 619 F.2d 1311 (&th

Cir.), cert. denied 449 U.S. 987 (1980). Roberts’ teach-

ing of American Indian religion is teaching about re-

ligion. It is but a part of a secular, historical course of

“study approved by the District as part of the curriculum

for fifth grade students.*! The students’ exposure to

Roberts’ religious books and Bible cannot be deemed

teaching about religion in the same way. We find that

is to be declared guilty on his own admission is a divine decree.”

Maimonides, Mishneh Torah (Code of Jewish Law), Book of Judges,

Laws of the Sanhedrin, ch. 18, $6, III Yale Judaica Series 52-53.

See also, Lamm, The Fifth Amendment and its equivalent in the

Halakhah, 5 Judaism 53 (Winter, 1956). Examples of Biblical

references on

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