# Petition — Roberts v. Madigan

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1992
- **Citation:** 505 U.S. 1218

## Text

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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)

ii
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 _..........

i.

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)

13

13

iv

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

Vv

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,

18
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

=

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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:

2

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.

3

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.

4

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

5

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

6

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.

7

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.

8

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.

9

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.)

10

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).

11

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

ad

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

12

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

a

14

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

15

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

Pe

16

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-

17

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

18

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

19

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.

20

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.

21

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

22

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-

23

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.

24

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.

25

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

la
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,

V.

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.

2a

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.

3a

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

-

ee

4a

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.

5a

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.

6a

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

7a

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.

8a

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-

9a

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.

a

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

al

ova
Constitution. The hearing on the preliminary injunction

was merged with the trial to the court pursuant to F.R.
Civ.P.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1803%3A1. Public record. Not legal advice.