Petition for Writ of Certiorari — Clayton v. Place

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In The \ Fe MA

Supreme Court of the Unitep[States. |

CLERK _

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1990

October Term, 1989

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JOHNATHAN CLAYTON, a minor, by CONNIE CLAY-

TON, his next friend; Steve Blakley, a minor by Tressia

Blakley, his next friend; David Mareth, a minor, by Mar-

lene Mareth, his next friend; Mark Flummerfelt, a minor,

by Carolyn Flummerfelt, his next friend; Michael Beagle, a

minor, by James M. Beagle, his next friend; George Fox, a

minor, by Joan Fox, his next friend; Amy Dianne Wolf, a

minor, by Frances Ann Wolf, her next friend; Anna

Svetlecic, a minor, by Vickie Svetlecic, her next friend;

Connie Clayton; Tressia Blakley, Vickie Svetlecic; Walter

Welch; Sherry Welch; Robert Mareth; Marlene Mareth;

Michael Flummerfelt; Carolyn Flummerfelt; Frances Ann

Wolf; Joan Fox; Howard Fox, Jr.; and James M. Beagle,

a--

Petitioners,

VS.

RICHARD M. PLACE; Glen Garrett; Rex Henderson; Allen

Keeling; Art Negre; Jacqueline L. Stephens; Jim Terry; All

in their individual and official capacities and Purdy R-2

School District,

Respondents.

»

a4

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

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WILLIAM J. FLEISCHAKER - Larry M. SCHUMAKER*

ROBERTS, FLEISCHAKER & Davip J. WAxsE

Scott SHooK, Harpy & BACON

P.O. Box 996 1200 Main Street

Joplin, MO 64802 Kansas City, MO 64105

(417) 623-2865 (816) 474-6550

*Counsel of Record

Counsel for Petitioners

February 14, 1990

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

The fundamentalist churches in Purdy, Missouri

preach and believe that dancing is a forbidden sin. As a

direct result of pressure exerted by these churches, and

for no discernible secular reason, the Purdy School Board

has maintained Rule 502.29 of the Purdy R-2 School Dis-

trict which prohibits dancing on school premises. While

this no-dancing rule does not refer to religion on its face,

the Purdy School Board enforced and maintained the rule

in 1986 for the actual purpose and with the primary effect

of promoting the religious beliefs of the locally dominant

fundamentalist churches. The question presented is:

Whether a public school rule, which is neutral on its

face, but which is maintained and enforced for the actual

purpose and with the primary effect of promoting the

religious tenets of particular religious groups, violates the

Establishment Clause of the First Amendment of the

United States Constitution.

ii

li LIST OF PARTIES

The caption of the case contains the names of all

parties, with the following modifications: pursuant to a

stipulation by the parties, the district court dismissed

David Mareth as a party-plaintiff, and substituted new

school board member Launce Bunnell and new school

superintendent Sheldon Buxton for former board member

Jacqueline Stephens and former superintendent Richard

Place, respectively, as party-defendants.

ili

TABLE OF CONTENTS

Page

SURPMPE PED WORMED ow ce cee e ees nncee i

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CONSTITUTIONAL AND STATUTORY PROVI-

SAR re a 3

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B. Proceedings in the Lower Courts ............ 9

REASONS FOR GRANTING THE PETITION....... 11

A. The Panel Decision Below Conflicts With the

a a 12

B. This Case Presents a Critical Challenge to This

Court’s Establishment Clause Jurisprudence.. 16

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iv

TABLE OF AUTHORITIES

Page

Bowen v. Kendrick, 478 U.S. 589, 101 L. Ed. 2d 520,

gs eae. 2 | re errr Se 11

County of Allegheny v. ACLU, 109 S. Ct. 3086, 106 L.

i ee | eee 11, 13, 14, 15, 16

Edwards v. Aguillard, 482 U.S. 578, 96 L. Ed. 2d 510,

ee ed eae 1, 12, 16

Engel v. Vitale, 370 U.S. 421, 8 L. Ed. 2d 601, 82 S.

pe PEO OERS SC Lere aC bh chee cea eCnan are Ghee 18

Epperson v. Arkansas, 393 U.S. 97, 21 L. Ed. 2d 228,

2 ee Lk | ar eer ee ees ee 1, 52, 38

Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 86 L.

a. Sen Sor, We o. Ch. Z0iS CUES .. cok ices 15

Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 74 L. Ed.

me er, Vee a GR Dee CU on isan Cad Sew eee ewes 15

Lynch v. Donnelly, 465 U.S. 668, 79 L. Ed. 2d 604,

ee FURIE Uk os es vacates 12, 35, 1%

School Dist. of Abington Township v. Schempp, 374

U.S. 203, 10 L. Ed. 2d 844, 83 S. Ct. 1560 (1963) .

Stone v. Graham, 449 U.S. 39, 66 L. Ed. 2d 199, 101

Ge SE SEU ss tk Ve Line cent eeu cbesersnee xn 18

Wallace v. Jaffree, 472 U.S. 38, 86 L. Ed. 2d 29, 105 S.

ae OR Ch st ky ey ree rere ae emacs 11, 12, 18

No.

,

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In The

Supreme Court of the United States

October Term, 1989

”N

ad

JOHNATHAN CLAYTON, a minor, by CONNIE CLAY-

TON, his next friend; Steve Blakley, a minor by Tressia

Blakley, his next friend; David Mareth, a minor, by Mar-

lene Mareth, his next friend; Mark Flummerfelt, a minor,

by Carolyn Flummerfelt, his next friend; Michael Beagle,

a minor, by James M. Beagle, his next friend; George Fox,

a minor, by Joan Fox, his next friend; Amy Dianne Wolf, a

minor, by Frances Ann Wolf, her next friend; Anna

Svetlecic, a minor, by Vickie Svetlecic, her next friend;

Connie Clayton; Tressia Blakley, Vickie Svetlecic; Walter

Welch; Sherry Welch; Robert Mareth; Marlene Mareth;

Michael Flummerfelt; Carolyn Flummerfelt; Frances Ann

Wolf; Joan Fox; Howard Fox, Jr.; and James M. Beagle,

Petitioners,

VS.

RICHARD M. PLACE; Glen Garrett; Rex Henderson;

Allen Keeling; Art Negre; Jacqueline L. Stephens; Jim

Terry; All in their individual and official capacities and

Purdy R-2 School District,

Respondents.

a

bi

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

a —

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The petitioners herein, by and through counsel,

respectfully pray that a writ of certiorari issue to review

the judgment and opinion of the United States Court of

Appeals for the Eighth Circuit in this case entered on

September 1, 1989.

a

A

OPINIONS BELOW

The opinion of the district court, which ruled in favor

of petitioners, is reported at 690 F. Supp. 850 (W.D. Mo.

1988), and is reprinted in the Appendix, infra, A-1 - A-16.

The panel decision of the United States Court of Appeals

for the Eighth Circuit, which reversed the district court’s

ruling, is reported at 884 F.2d 376 (8th Cir. 1989), and is”

reprinted in the Appendix, infra, A-17 - A-27. By a 5-4

vote, the full United States Court of Appeals for the

Eighth Circuit declined to rehear this case en banc. The

opinions of the four circuit judges who dissented from

the denial of rehearing, and would have reversed the

panel opinion and reinstated the district court’s decision,

are reported at 889 F.2d 192 (8th Cir. 1989), and are

reprinted in the Appendix, infra, A-28 - A-39.

a

—_

JURISDICTION

The United States District Court for the Western Dis-

trict of Missouri issued its decision on August 1, 1988,

holding that respondents’ main.enance and enforcement

of the Purdy School District’s no-dancing rule violated

the Establishment Clause of the First Amendment to the

United States Constitution. On September 1, 1989, a panel

of the United States Court of Appeals for the Eighth

Circuit reversed the trial court’s decision. Thereafter, on

November 17, 1989, a bare majority of the full United

States Court of Appeals for the Eighth Circuit denied a

timely petition for rehearing en banc by a 5-4 vote. The

jurisdiction of this Court is invoked pursuant to 28 U.S.C.

§ 1254.

a

Ld

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

AMENDMENT I

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 assemble, and to petition

the Government for a redress of grievances.

AMENDMENT XIV, SECTION 1

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of 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, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.

42 U.S.C. § 1983

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or Terri-

tory or the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitu-

tion and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding

for redress.

STATEMENT

A. Factual Background

Purdy, Missouri, is a small community in Southwest

Missouri. Petitioners are a group of parents, children and

taxpayers in the Purdy R-2 School District. Respondents

are the Superintendent of the Purdy R-2 School District

and members of the Purdy R-2 Schoo! Board. The domi-

nant religious affiliation in the community is fundamen-

talist Christianity. There is a long and continuing history

of religious activities in the public school system, includ-

ing school prayer and Bible songs which continued into

the late 1970's. :

The fundamentalist churches in the Purdy commu-

nity share the religious belief that social dancing contra-

venes the tenets of their religion and is sinful. Several of

the preachers in the Purdy Ministerial Alliance have

preached against dancing and have given religious coun-

seling to congregants who dance. Rev. Ted Davis, the

chief spokesman for the opponents of school dancing,

testified that he opposed dancing because it is “scrip-

turally prohibited” and because the music associated

with dancing is “satanic.” The two Purdy Free Will Bap-

tist Churches adhere to the doctrine that dancing is a sin.

The First Assemblies of God Church of Purdy forbids

dancing by members upon penalty of ex-communication.

Members of the First Baptist Church of Purdy prayed for

the souls of pro-dance advocates. ;

The focus of this case involved the Purdy School

Board’s maintenance and enforcement of its no-dancing

rule. Rule 502.29 provides in relevant part:

School dances are not authorized and school

premises shall not be used for purposes of con-

ducting a dance.

It was widely believed among Purdy residents that the

rule was a direct embodiment of fundamentalist church

doctrine. Because the rule is commonly viewed as a con-

scious endorsement of this religious tenet, the parents

and students of minority faiths (Catholics, Mormons, and

Lutherans) are made to feel that the school district con-

siders their religious beliefs to be inferior to those of the

majority.

Throughout the years, the school dancing issue has

been the most controversial and divisive topic in ‘the

Purdy community. In 1978, a Purdy Student Council peti-

tion for a dance was voted down by the school board, 4-2.

One of the two board members who voted for the dance,

Jim Terry, admitted to catching a lot of “flak” from local

ministers and was voted out of office in the next election.

Steve Ciafullo, the faculty sponsor for the Student Coun-

cil in 1978, was terminated after the ‘78-79 school year

because of complaints from people in the religious com-

munity over his support for dancing.

In 1984, three highly regarded high school seniors

approached the school district superintendent, Dr. Place,

about permitting a school sponsored dance. Dr. Place

thought that scheol dances would be a positive experi-

ence for the students and agreed that it was time to

change the rule. Dr. Place took the proposal to the presi-

dent of the school board, Glen Garrett, who also agreed

that it was time to change the rule but warned Dr. Place:

“If it gets out in the community, there will be a lot of

people [coming] out of the woodwork.” The proposal

died after board members Henderson, Keeling, and

Negre opposed changing the rule.

In January of 1986, a group of parents approached Dr.

Place about permitting a school-sponsored dance so the

students would not have to drive long distances on unfa-

miliar roads to attend “unofficial” school dances. Because

he felt that a school-sponsored dance was in the best

interests of the children, Dr. Place could not justify the

no-dancing rule other than by stating that Purdy was a

conservative, religious community. When asked if the

rule was in effect because the Baptists opposed dancing,

Dr. Place smiled and answered: “Let’s just say the

Protestants.”

In January and February of 1986, school board mem-

bers were informally polled about a change in the no-

dancing rule. Schooi Board President Glen Garrett stated

that the rule was in place because dancing was against

the religious convictions of a majority of the community.

Board member Allen Keeling told one of the parents that

he could not vote for school dancing because it was

against the teachings of his church. Board member Jim

Terry told another parent that he had voted for school

dancing in the past and caught so much flak from the

ministers that he did not want to go through that again.

Board member Rex Henderson told a fellow member of

the Macedonia Free Will Baptist Church that he would

not vote to change the rule because dancing was “against

our religion.” Board member Art Negre told yet another

parent that his church preached against dancing.

At the February 10, 1986, school board meeting, peti-

tioners presented their proposal for a school-sponsored

dance. No one on the board disputed the information

showing different alternatives for funding and supervis-

ing school dances. Instead, the board simply said that the

“majority” of people in Purdy did not support dancing.

Rev. Davis was present and began to speak about his

Opposition to dancing but before he could continue

School Board President Garrett cut him off and said he

did not have to give any reasons for his opposition. When

asked about the separation of church and state, Mr. Gar-

rett shot back: “You better hope there’s never a separation

of God and school.” The board then tabled further discus-

sion of the issue until its March meeting.

After the February board meeting, Rev. Davis con-

tacted his fellow ministers in the Purdy Ministerial Alli-

ance regarding a “problem” that had arisen. The Purdy

Ministerial Alliance consisted of the ministers of the fun-

damentalist Protestant churches in the Purdy community.

Although the group had never spoken out on any public

issue before, the ministers felt very strongly about the

school dance issue and they agreed to persuade their

members to fight against any change in the no-dancing

rule at the March school board meeting.

On Sunday, March 9, 1986, the ministers followed

through on their agreement and told their congregants to

attend the upcoming school board meeting. During the

Sunday School session at the Macedonia Free Will Baptist

Church, board member Henderson assured his congrega-

tion that there would be no school dancing as long as he

was on the school board. Gary “Gabe” Pennell, who had

moved to Purdy because of the community’s strong reli-

gious beliefs as reflected in the no-dancing rule, also told

the congregation to attend the March board meeting in ©

opposition to school dancing. Rev. Winfrey of the First

Baptist Church of Purdy exhorted his congregation to

attend the board meeting to oppose school dancing. Rev.

Dement of the First Assembly of God Church also

reminded his congregation of the Church’s opposition to

dancing and encouraged them to attend the board

meeting.

In response to the campaign of the Ministerial Alli-

ance, between 250 and 400 people - easily the largest

turnout in school board history - attended the school

board meeting on March 10, 1986. Rev. Davis presented a

copy of the Ministerial Alliance position statement to

each member of the school board and read the document

verbatim. At the end of his presentation, Rev. Davis asked

for a standing show of force, at which time the vast

majority of people in attendance rose in unison.

The board retired to a closed session and reached a

unanimous consensus that the no-dancing rule would

remain intact. None of the defendants acknowledged any

discussion regarding the reasons behind the public dis-

play of anti-dance sentiment. As the district court found,

however, it is doubtful “that it heard the complete story

concerning the board members’ deliberations of the rule

and the religious significance of the opposition to danc-

ing in Purdy.” A-12.

On April 18, 1986, plaintiffs filed an application pur-

suant to the school district’s rental policy for a parent-

supervised dance. Rev. Winfrey testified that he opposes

even the rental of school property for a dance. Although

Dr. Place ordinarily handled such requests by himself, he

referred this matter to the entire school board. The board

met in a special closed session and summarily suspended

the rental policy in its entirety. At a later meeting, the

board purported to adopt a “no rental” policy. Since then,

however, school premises have been used for non-school

softball leagues, pick-up basketball games, and an exhibi-

tion donkey basketball game.

B. Proceedings in the Lower Courts

Throughout the latter half of 1986, plaintiffs commu-

nicated by letter with the Purdy School Board regarding

its maintenance and enforcement of the no-dancing rule.

In particular, plaintiffs objected to the religious nature of

the board’s actions. The board did not dispute this fact,

but simply responded that they were doing what the

“majority” wanted. After exhausting this informal ave-

nue, plaintiffs brought suit under 42 U.S.C. § 1983 in the

10

United States District Court for the Western District of

Missouri, Southwestern Division, seeking nominal dam-

ages and declaratory and injunctive relief.

After a four-day bench trial in June of 1988, at which

each of the school board members defendants testified,

the district court found that the board’s after-the-fact

efforts to justify their actions on secular grounds were not

credible. Based on the overwhelming weight of the evi-

dence, the district court found that the no-dancing rule

was inherently religions to the Purdy R-2 School Board,

and ruled that the board’s maintenance and enforcement

of the rule was motivated by impermissible religious

purposes. The district court also ruled that the rule vio-

lated the “primary effect” prong of the Establishment

Clause test, explaining that the rule placed an impermiss-

ible imprimatur of official approval on one particular

religious belief.

On September 1, 1989, a panel of the United States

Court of Appeals for the Eighth Circuit reversed the

district court’s decision. The panel decision focused on

the fact that dancing is a secular activity and that the no-

dancing rule was neutral on its face. A timely petition for

rehearing was denied by the full United States Court of

Appeals for the Eighth Circuit by a 5-4 vote. The four

judges who dissented from the denial of rehearing made

it clear that they believed the panel opinion should be

vacated and that the district court opinion should be

affirmed.

>

11

REASONS FOR GRANTING THE PETITION

This Court has repeatedly stated that the Establish-

ment Clause prohibits the government “from conveying

or attempting to convey a message that... a particular

religious belief is favored or preferred.” County of Allegheny

v. ACLU, 109 S. Ct. 3086, 106 L. Ed. 2d 472, 494 (1989)

(emphasis in original) (citation omitted).! In upholding

the actions of the Purdy School Board, however, the panel

decision in this case essentially holds that public school

boards may endorse and promote the religious beliefs of

a locally dominant religious sect as official school policy

so long as the school policy is “facially neutral.” This

ruling directly conflicts with the precedents of this Court

and extends an invitation to governmental bodies across

the Nation to actively promote the religious beliefs of the

locally dominant sect as officially sanctioned govern-

mental policy. The panel opinion merits immediate and

careful review.

' See also Bowen v. Kendrick, 478 U.S. 589, __, 101 L. Ed. 2d

520, 550, 108 S. Ct. 2562 (1988) (O’Connor, J.) (governmental

endorsement of “religious doctrines” violates Establishment

Clause); Edwards v. Aguillard, 482 U.S. 578, 593, 96 L. Ed. 2d

510, 525, 107 S. Ct. 2573 (1987) (invalidating statute designed to

advance a “particular religious belief”); Wallace v. Jaffree, 472

U.S. 38, 70, 86 L. Ed. 2d 29, 52, 105 S. Ct. 2479 (1985) (O’Con-

nor, J., concurring) (Establishment Clause prohibits govern-

ment from conveying a message that particular religious

beliefs are “favored or preferred”); Epperson v. Arkansas, 393

U.S. 97, 106, 21 L. Ed. 2d 228, 235, 89 S. Ct. 266 (1968) (public

school policy may not be “tailored to the principles of prohibi-

tion of any religious sect or dogma”).

12

A. The Panel Decision Below Conflicts With the Deci-

sions of This Court

The panel opinion plainly misplaces reliance on the

fact that dancing is a “secular” activity. While this is true,

it completely misses the point that the opposition to danc-

ing in Purdy and the resulting decision to retain the no-

dancing rule was intended to promote certain religious

beliefs. In this respect, the instant case is indistinguish-

able from Epperson v. Arkansas, 393 U.S. 97, 21 L. Ed. 2d

228, 89 S. Ct. 266 (1968). Although the teaching of evolu-

tion is a “secular” activity, this Court ruled in Epperson

that the Arkansas law prohibiting the teaching of evolu-

tion was unconstitutional because the opposition to evolu-

tion was based on the religious views of the electorate. Id.

at 107-08, 21 L. Ed. 2d at 236 (“fundamentalist sectarian

conviction was and is the law’s reason for existence”).

Similarly, the maintenance of the no-dancing rule cannot

withstand constitutional scrutiny because it was moti-

vated by a desire to promote the religious beliefs of

certain board members and locally dominant religious

groups.

The panel opinion also conflicts with the decisions of

this Court by resting on the “facial neutrality” of the no-

dancing rule without considering the underlying pur-

poses of the School Board. Under the “sham purpose”

doctrine, this Court has repeatedly held that the proper

inquiry must extend beyond the “facial neutrality” of the

challenged governmental action. See Edwards v. Aguillard,

482 U.S. 578, 96 L. Ed. 2d 510, 107 S. Ct. 2573 (1987);

Wallace v. Jaffree, 472 U.S. 38, 86 L. Ed. 2d 29, 105 S. Ct.

2497 (1985); see also Lynch v. Donnelly, 465 U.S. 668, 694, 79

L. Ed. 2d 604, 623, 104 S. Ct. 1355 (1984) (O’Connor, J.,

13

concurring) (“every governmental practice must be

judged in its unique circumstances to determine whether

it constitutes an endorsement or disapproval of reli-

gion”). As the trial court found, everybody in Purdy

(including the members of the School Board) was keenly

aware that the maintenance of the no-dancing rule was

motivated by a desire to endorse and promote fundamen-

talist religious beliefs as official school policy. The “facial

neutrality” of the no-dancing rule cannot overcome the

fact that the no-dancing rule was inherently religious to

the Purdy School Board. See A-11.

Nor can the absence of evidence establishing the

purpose of the rule when it was enacted a century ago

justify its present day maintenance and enforcement. As

Justice O’Connor has pointed out, the “history and ubiq-

uity” of a challenged practice does not provide an artifi-

cial exception to Establishment Clause scrutiny; instead,

it is relevant only because “it provides part of the context

in which a reasonable observer evaluates whether a chal-

lenged governmental practice conveys a message of

endorsement of religion.” County of Allegheny v. ACLU,

106 L. Ed. 2d 472, 519, 109 S. Ct. 1086 (O’Connor, J.,

concurring) (emphasis added).

This case focused on the actions of the Purdy School

Board in 1986 when it not only denied a request for a

school-sponsored dance but also blocked the otherwise

permissible rental of school facilities for a parent-chap-

eroned dance. The board’s actions were directly contrary

to the professional judgment of the school district super-

intendent, Dr. Richard Place, and the views of at

14

least three board members that the rule should be res-

cinded because school dances are an appropriate extra-

curricular activity for teenagers. As a matter of

overwhelming proof, those secular views were ignored

and the rule was retained and enforced in a conscious

effort to endorse and promote the fundamentalist reli-

gious belief that social dancing is sinful. In light of this

evidence, and the trial court’s undisturbed credibility

findings, the maintenance of the rule did not “merely

coincide” with local religious beliefs; rather, the mainte-

nance of the rule was a direct and purposeful endorse-

ment of those religious beliefs.

It also is beyond dispute that the Purdy School

Board’s maintenance of the no-dancing rule was widely

perceived as a powerful endorsement by the public

school system of fundamentalist religious beliefs. Under

these circumstances, the panel’s unanalyzed conclusion

that the no-dancing rule did not have the “primary

effect” of advancing religion must be reexamined. As the

district court noted, “[t]he public stamp of approval can-

not be placed on one faith — even if it is the majority in a

particular school system.” A-14, A-15. Simply put, the

board’s actions ran afoul of the Establishment Clause

which, “at the very least, prohibits government from

appearing to take a position on questions of religious belief

or from ‘making adherence to a religion relevant in any

way to a person's standing in the political community.’ ”

County of Allegheny v. ACLU, 109 S. Ct. 3086, 3101, 106 L.

15

Ed. 2d 472, 495 (1989) (citation omitted) (emphasis

added).?

The inescapable fact remains that, within the Purdy

community, the School Board’s maintenance of the no-

dancing rule is widely viewed as a symbol of official

governmental endorsement for fundamentalist religious

beliefs. Although there is no physical manifestation of the

rule, such as a creche or a cross, the effect on the commu-

nity is no less powerful. Compare County of Allegheny v.

ACLU, 109 S. Ct. 3086, 106 L. Ed. 2d 472 (1989) (creche

display violated Establishment Clause because it con-

veyed message of governmental endorsement for Chris-

tianity), with Estate of Thornton v. Caldor, Inc., 472 U.S. 703,

86 L. Ed. 2d 557, 105 S. Ct. 2914 (1985) (“primary effect”

violation where legislation conveyed message of endors?-

ment of a particular religious belief); Larkin v. Grendel's

Den, Inc., 459 U.S. 116, 74 L. Ed. 2d 297, 103 S. Ct. 505

(1982) (“primary effect” violation where legislation cre-

ated appearance of delegation of governmental power to

churches). Chief Judge Lay instantly recognized this in

his opinion dissenting from the denial of rehearing:

2 It should be noted that the Court’s language in County of

Allegheny emphasizes the prohibition against governmental

action which creates an “appearance” of taking a position on

religious beliefs without any corresponding secular justifica-

tion. The panel’s modified quotation from County of Allegheny,

which speaks only of whether government has “take[n] a posi-

tion,” plainly overlooks the importance of “appearances” in

“primary effect” analysis. See A-23. Indeed, the “appearance”

of promoting religion is the very focus of this prong of the

Lemon test. See Lynch v. Donnelly, 465 U.S. 668, 690, 79 L. Ed. 2d

604, 621, 104 S. Ct. 1355 (1984) (O’Connor, J., concurring).

16

As a symbol of religious endorsement, the rule

is no less obvious than a monument anchored to

the schoolhouse lawn pronouncing: “THIS

SCHOOL ADHERES TO THE BASIC TENETS

OF THE MINISTERIAL ALLIANCE

CHURCHES.” A-36, A-37.

The panel’s blunt ruling that the religious effect of

the rule is “indirect, remote and incidental” directly con-

flicts with the factual findings of the district court and

with this Court’s admonition that the religious effect of a

challenged governmental practice must be judged in its

unique factual context. County of Allegheny, 106 L. Ed. 2d

at 496, 109 S. Ct. at 3103; Wallace, 472 U.S. at 74, 86 L. Ed.

2d at 54-55 (O’Connor, J., concurring); Lynch, 465 U.S. at

694, 79 L. Ed. 2d at 623 (O’Connor, J., concurring). Judge

Clark, who heard the evidence over four days of trial and

who lives in the strongly fundamentalist Southwest Mis-

souri area, was fully aware of the symbolic importance of

the no-dancing rule and its impact on members of minor-

ity faiths. Giving proper deference to the district court’s

factual findings, particularly his credibility findings, it is

plainly evident that the actual purpose and primary effect

of the no-dancing rule - indeed, the sole purpose and

effect of the rule - is the promotion of religious dogma as

official governmental policy. The panel opinion’s

unanalyzed conclusions to the contrary are squarely in

conflict with the decisions of this Court.

B. This Case Presents a Critical Challenge to This

Court’s Establishment Clause Jurisprudence

If the panel opinion stands unreviewed, the prece-

dent thereby created will carry grave constitutional

17

implications for the Nation as a whole. As Chief Judge

Lay wrote in his dissent from the denial of rehearing:

I dissent from the denial of the suggestion for

rehearing en banc. I do so not only because the

panel’s decision is wrong; I do so because of the

unwarranted precedent created in this circuit

and throughout the nation providing a devious

springboard for further destruction of the wall

separating church and state. A-39.

Contrary to the Establishment Clause precedents handed

down by this Court, the panel decision cavalierly disre-

gards the “sham purpose” doctrine and refuses to con-

sider the factual context of the challenged practice. Even

more dangerous is the panel’s identification of “facial

neutrality” as a concept which immunizes otherwise

objectionable governmental conduct. Under the panel’s

analysis, this Court’s decisions in Edwards, Wallace, and

Epperson would be stripped of their precedential

importance.

The Establishment Clause stands as our country’s

most important means of preventing religious tyranny

and guaranteeing individual freedom of belief. The con-

stitutional separation of church and state is particularly

important in the public school setting, a venue which this

Court historically has guarded with special vigilance:

The public school is at once the symbol of our

democracy and the most pervasive means for

promoting our common destiny. In no activity of

the State is it more vital to keep out divisive

forces than in its schools.

18

Edwards v. Aguillard, 482 U.S. 578, 584, 96 L. Ed. 2d 510,

519, 107 S. Ct. 2573 (1987).3 This case challenges this

Court to indicate whether it will reaffirm or retreat from

the vigilance promised in Edwards, Wallace, and Epperson.

The stakes must not be underestimated, for nothing less

is involved than the freedom of thought and belief of the

students and parents of the Purdy R-2 School District. As

Judge John Gibson succinctly put it in his dissent from

the denial of rehearing:

This is a case about religious tyranny. .. .In the

overall scheme of things, a dance at Purdy high

school, with an enrollment of 519, may not be of

earth-shattering significance. Yet, our Constitu-

tion protects all citizens, including the students

at Purdy high school, from religious, as well as

political, oppression by a majority. The first

amendment rights of those students sound a call

that this court should not ignore. A-35.

Because the panel decision conflicts with settled Estab-

lishment Clause jurisprudence and threatens the

3 In view of this special vigilance, it comes as no surprise

that every public school case decided by this Court in the last

thirty years has resulted in a ruling that the challenged govern-

mental action violated the Establishment Clause. See Edwards >.

Aguillard, 482 U.S. 578, 96 L. Ed. 2d 510, 107 S. Ct. 2573 (1987);

Wallace v. Jaffree, 472 U.S. 38, 86 L. Ed. 2d 29, 105 S. Ct. 2479

(1985); Stone v. Graham, 449 U.S. 39, 66 L. Ed. 2d 199, 101 S. Ct.

192 (1980); Epperson v. Arkansas, 393 U.S. 97, 21 L. Ed. 2d 228,

89 S. Ct. 266 (1968); School Dist. of Abington Township v.

Schempp, 374 U.S. 203, 10 L. Ed. 2d 844, 83 S. Ct. 1560 (1963);

Engel v. Vitale, 370 U.S. 421, 8 L. Ed. 2d 601, 82 S. Ct. 1261

(1962). Significantly, the panel opinion does not mention and

fails to apply this special vigilance.

19

foundation of the separation of church and state, cer-

tiorari should be granted.

ons a

a4

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Larry M. ScHUMAKER*

Davip M. Waxse

SHooK, Harpy & Bacon

One Kansas City Place

1200 Main Street

Kansas City, Missouri 64105

(816) 474-6550

WILLIAM J. FLEISCHAKER

Roperts, FLeiscHAKER & Scott

P.O. Box 996

Joplin, Missouri 64802

(417) 623-2865

* Counsel of Record

Counsel for Petitioners

Februa ry 14, 199)

A-1

Jonathan CLAYTON, a minor by Connie CLAY-

TON his next friend; Steve Blakley, a minoc by

Tressia Blakley his next friend; David Mareth,

a minor by Marilyn Mareth his next friend;

Mark Flummerfelt, a minor by Carolyn Flum-

merfelt his next friend; Michael Beagle, a

minor by James M. Beagle his next friend;

George Fox, a minor by Joan Fox his next

friend; Amy Dianne Wolf, a minor by Frances

Ann Wolf her next friend, Anna Svetlecic, a

minor by Vicki Svetlecic her next friend, Con-

nie Clayton, Tressia Blakley, Vicki Svetlecic,

Walter Welch, Sherry Welch, Robert Mareth,

Marilyn Mareth, Michael Flummerfelt, Car-

olyn Flummerfelt, Frances Ann Wolf, Joan Fox,

Howard Fox, Jr. and James M. Beagle,

Plaintiffs.

Vv.

Richard M. PLACE, Glen Garrett, Rex Hender-

son, Allen Keeling, Art Negre, Jacqueline Step-

hens, and Jim Terry, all in their individual and

official capacities, and Purdy R-II School Dis-

trict, Defendants.

No. 86-5184-CV-SW-4.

United States District Court,

W.D. Missouri.

Southwestern Division.

Aug. 1, 1988.

ORDER

RUSSELL G. CLARK, District Judge.

Plaintiffs, school children, parents and taxpayers of

the Purdy R-II School District bring this action against the

defendants, the school board and school superintendent

of Purdy R-II School District alleging a violation of the

First Amendment of the United States Constitution. The

A-2

plaintiffs allege that Policy Rule 502.29 of the Purdy R-II

School District endorses or advances the “no dance” reli-

gious beliefs of the Purdy community and thus violates

the Establishment Clause of the First Amendment. Defen-

dants deny that Rule 502.29 has any religious signifi-

cance, but rather argue that it is merely a reflection of the

Purdy community's “cultural conservatism.” This case

was tried to the Court without a jury from June 27, 1988

through June 30, 1988.

The issue before this Court is not (as defendants

contend) whether the Purdy School District must sponsor

social dances, nor is it the responsibility or perogative of

this Court (as plaintiffs contend) to mandate how many, if

any, or when school dances are to be held. The issue is

simply whether the rule which prohibits school dances in

the Purdy school system is an impermissible establish-

ment of religion. For the following reasons, the Court

finds that Rule 502.29 of the Purdy R-II School District

violates the United States Constitution, specifically, the

Establishment Clause of the First Amendment.

Pursuant to Rule 52, Fed.R.Civ.P., the Court makes

the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. Plaintiffs Jonathan Clayton, Michael Beagle,

George Fox and Amy Diane Wolf are 1988 graduates of

Purdy R-I] High School.

2. Plaintiffs Steve Blakley, Mark Flummerfelt and

Anna Svetlecic are currently enrolled in Purdy R-II High

Schoo]

A-3

3. Plaintiffs Connie Clayton, Tressia Blakley, Vickie

Svetlecic, Walter Welch, Sherri Welch, Robert Mareth,

Marlene Mareth, Michael Flummerfelt, Carolyn Flummer-

felt, Francis Ann Wolf, Joan Fox, Howard Fox, Jr., and

james M. Beagle are parents of children who have

attended, are attending, or in the near future will attend

Purdy R-II High School. Each of these plaintiffs also is a

taxpayer in the Purdy R-II School District.

4. Defendant Richard M. Place is the former super-

intendent of the Purdy R-II School District.

5. Defendant Sheldon Buxton is the present superin-

tendent of the Purdy R-II School District.

6. Defendants Glen Garrett, Rex Henderson, Allen

Keeling, Art Negre, and Jim Terry currently are and, since

at least 1985, have been members of the Board of Educa-

tion of the Purdy R-II School District.

7. Defendant Launce Bunnell currently is a member

of the Purdy R-II Board of Education.

8. Defendant Jacqueline Stephens was a member ot

the Board of Education of the Purdy R-II] School District

during 1986, but is not currently on the Board.

9. Each of the plaintiffs in this case are residents o!

the Purdy R-II Schoo] District, Barry County, Missouri,

within the Southwestern Division of the United States

District Court for the Western District of Missouri

10. Defendant Purdy R-II School District is a duly

constituted school district under the laws of the State of

Missouri, and is located in the County of Barry, State of

Missouri. Defendant Schoo] District offers education to

children in grade levels kindergarten through twelve at

A-4

facilities located within the corporate limits of the City of

Purdy, Missouri.

11. Each of the individual defendants were resi-

dents of Barry County, Missouri at the time of the filing

of this lawsuit.

12. Defendant School District’s Policy 502.29 states:

Secret Organizations — School Dances. No fra-

ternities, sororities, secret societies, or organiza-

tions shall be permitted, nor shall any student

organization be permitted to elect its [sic] own

membership. School dances are not authorized

and school premises shall not be used for pur-

poses of conducting a dance.

13. At the January 9, 1978 school board meeting,

student council representatives and class representatives

requested permission to allow school dances to be held at

school. The School Board voted the request down by 4-2.

14. Board member Jim Terry voted to allow dancing.

Jim Terry was defeated in the next school board election.

15. In October 1984, Purdy students Ed Mareth,

Kevin Keeling and Eddie Ray contacted Superintendent

Place to request permission to have a homecoming school

dance. Superintendent Place, who was and is in favor of

the school dances, contacted the board members to get

their views.

16. Board president Garrett thought it might be time

to try it, but stated that the last time the dance issue was

brought up it generated a lot of heat. Board member

Terry said he would favor changing the rule unless the

change generated a lot of controversy. Board member

Stevens was in favor of changing the rule.

A-5

17. Board member Keeling opposed changing the

rule stating that he may be considered a hypocrite for

allowing his children to dance, but he sincerely believed

that most people did not want the rule changed. Board

member Henderson’s views were similar to Keeling’s

views. Board member Negre was also concerned about

community support and possible school chaperoning. No

formal request was made to the school board at that time

and the board took no action.

18. During the 1985-86 school year, another group

of students and parents sought to change Rule 502.29. At

a January meeting with Superintendent Place, when ques-

tioned by the parents about the reasons for the prohibi-

tion, Superintendent Place stated words to the effect

“why should this surprise you, this is a conservative,

religious community.” When asked if it were the Baptists

that opposed dancing, Superintendent Place stated, “Let’s

just say protestants.”

19. Prior to the February meeting, Board member

Keeling told Caroline Plummerfelt that he opposed

changing the rule because his church preached that it was

wrong and immoral to dance.

20. At the February 10, 1986 school board meeting,

plaintiffs Connie Clayton, Tressia Blakley, Marlene Mar-

eth, Carolyn Flummerfelt, James Beagle, Joan Fox, Robert

Mareth and Michael Flummerfelt appeared to request a

reconsideration of Rule 502.29 in order to sponsor dance

by the newly formed SADD (Students Against Drunk

Driving) chapter. At the meeting the school board mem-

bers discussed all of the telephone calls they had been

receiving concerning the dance issue. The board members

A-6

now state the callers gave no reasons for maintaining the

rule. Reverend Ted Davis and his wife were present at the

meeting to state their opposition to a change in the rule.

When Reverend Davis was asked for his reasons, board

president Garrett stated that he did not have to tell any-

one his reasons. Garrett stated “you'd better hope there’s

never separation of God and school” in response to a

question about the separation of church and state. Rev.

Davis then asked for time to respond to the rule change at

the next school board meeting.

21. When school board member Terry was contacted

by plaintiff Fox, he stated that he had voted for dance in

the past but caught so much “flak” from the ministers

that he would vote against it this time. School board

member Keeling stated to Fox that he did not believe in

dancing because he was taught it was wrong.

22. Board member Keeling told plaintiff Marlene

Mareth that his background disfavored dancing; board

member Negre stated his church is opposed to dancing.

23. After the February meeting the Ministerial Alli-

ance met to plan the opposition to changing the rule. The

group consists of ministers from the First Baptist, the

First Christian, the First Free Will Baptist, the First

Assembly of God, and the Macedonia Baptist Churches.

There are no Catholic, Lutheran, Presbyterian, Methodist,

Jewish or Mormon members in the Ministerial Alliance.

The members agreed to “get” their church members to

attend the March school board meeting to oppose a

change in the rule.

24. The First Baptist Church minister, Rev. Winfrey,

spoke to his congregation about the upcoming dance

A-7

issue at the school board. He encouraged the congrega-

tion to attend the meeting and oppose the change in the

rule to allow dancing. The church congregation has

prayed for member Blakley’s soul for trying to change the

rule in the school.

25. To become a member of the First Assembly of

God, a person must agree to be separate from worldliness

- which includes dancing. The minister of that congrega-

tion, Rev. Dement testified that if a member of his congre-

gation engaged in social dancing he would have no

choice but to refer him/her to the Presbyters for counsel-

ing. He encouraged his congregation to attend the March

meeting and made known his views against dancing.

26. Prior to the March meeting, the minister of the

Free Will Baptist Church, Ted Davis, contacted every

school board member except Stephens to voice his oppo-

sition to school dancing. Davis informed his church that

there was a petition to be signed concerning dancing as

they left the service the Sunday before the March meet-

ing; he believes and preaches that social dancing is sinful,

scripturally prohibited, and possibly satanic. He has dis-

cussed this view with church members, has preached

against dancing from the pulpit and would have a private

counseling session with a member of his congregation

who engaged in social dancing.

27. The topic at Sunday school on the Sunday

before the Board meeting at the Macedonia Free Will

Baptist Church, was the change in the rule. Board mem-

ber Henderson was present and stated that there would

be no dancing as long as he was on the school board and

encouraged everyone to go to the meeting to show their

A-8

opposition to any change in the rule. Later at the church

service, Gary Pinnell rose and asked everyone to show

their support for the rule. Rev. Neal, a member of the

Ministerial Alliance, believes social dancing is inap-

propriate behavior, has discussed his beliefs with board

members Henderson and Negre, and has “mentioned” his

belief in church services.

28. The largest crowd ever attended the March 19,

1986 board meeting. At the meeting on the dance issue, a

presentation was made by Joan Fox, Rev. Davis and Gary

Pinnell. No direct mention was made of religion per se at

the meeting; however, the letter from the Ministerial Alli-

ance was read in its entirety. At the end of Rev. Davis’

talk, he asked the 250-400 people in attendance to stand

in opposition to changing the rule. The overwhelming

majority of people stood in opposition to changing the

rule. Later in closed session, the Board did not take a

formal vote, but left the rule intact.

29. Prior to April 1986, the school premises were

rented for various nonschool functions except on

Wednesday and Sunday evenings. Wednesday and Sun-

day are traditional church nights. On April 18, 1986,

plaintiff Carolyn Flummerfelt completed an application

for the rental of the Purdy Elementary School for an end

of the year dance. Superintendent Place referred the

request to the school board. The board called a meeting

on April 29, 1986 and with counsel present went into

executive closed session. The board suspended their

rental policy at that meeting. At a later meeting the board

decided not to rent to any outside group - that the school

buildings would be used for school purposes only. Since

that time, the building and grounds have been used for

A-9

nonschool softball leagues, pick-up basketball games and

an exhibition donkey basketball game.

30. In the past twelve years a “banquet” has been

held for juniors and seniors with teachers and chap-

erones. The place of the banquet has varied, but has often

been held on school property. The “prom” is then held off

the school grounds (often in neighboring towns) without

teacher participation or school funding. A breakfast is

often held around 1:00 or 2:00 a.m. at the school. If the

“banquet” is held off-campus, teachers chaperone off-

campus; the banquet has been held several times in

Springfield, which is approximately 60 miles from Purdy.

CONCLUSIONS OF LAW

Initially, the Court notes the allegation by defendants

that the claims of the Purdy R-II High School graduates

are moot is without merit. Those students have a claim

for nominal damages, attorney’s fees and costs which

may proceed. Defendants’ motion to dismiss Jonathan

Clayton, Michael Beagle, George Fox, and Amy Dianne

Wolf will be denied. Defendants’ motion for partial sum-

mary judgment (on Counts II and III) will be denied. It is

not necessary to rule on the summary judgment motion

in view of the finding in plaintiff’s favor on Count I. The

Court finds that Robert Mareth, Marlene Mareth and

James Beagle do have citizen standing to challenge an

establishment clause claim. Furthermore, whether any

particular plaintiff has standing does not affect the out-

come of this decision.

A-10

The Supreme Court has consistently used a three-part

test in analyzing whether there is a violation of the estab-

lishment clause of the First Amendment to the United

States Constitution. Lemon v. Kurtzman, 403 U.S. 602, 91

S.Ct. 2105, 29 L.Ed.2d 745 (1971). First, the statute must

have a secular legislative purpose; second, its principal or

primary effect must be one that neither advances nor

inhibits religion, and third the statute must not foster

excessive governmental entanglement with religion. Id. at

612-13, 91 S.Ct. at 2111. Excessive entanglement has been

further defined as either excessive administrative entan-

glement or excessive political divisiveness. Lynch v. Don-

nelly, 465 U.S. 668, 104 S.Ct. 1355, 1365, 79 L.Ed.2d 604

(1984). The Supreme Court has not held excessive politi-

cal divisiveness alone to invalidate otherwise permissible

conduct. Id.

Lemon's purpose requirement aims at preventing the

relevant governmental decisionmaker from abandoning

neutrality and acting with the intent of promoting a par-

ticular point of view in religious matters. Corporation of

the Presiding Bishop of the Church of Jesus Christ of Latter-

Day Saints v. Amos, __ U.S. __, 107 S.Ct. 2862, 2868, 97

L.Ed.2d 273 (1987). Defendants argue that dancing in this

case is not a religious issue. That assertion has no basis in

the evidence presented to this Court.

The Court regards the following statements of the

board members as unpersuasive; that no one has ever

stated to them that they oppose dancing in the schools for

religious reasons; that they have no idea why the commu-

nity is opposed to dancing in the school; that there was

no religious pressure to keep the rule; and that the rental

policy was changed in response to problems with liability

A-11

of the schools. Particularly incredible are board member

Henderson’s courtroom statements that his vote did not

reflect his personal religious feeling nor religious beliefs

of the community and his statement that there was no

religious significance to the entire hour discussion at

Sunday school on the dance issue prior to the March

meeting. Likewise, board member Terry’s denial of any

pressure for church members or ministers and his court-

room statements about no church influence is not believ-

able in view of the contradictory testimony of the

subpoenaed Sell, plaintiffs Flummerfelt and Fox, and

defendant Place. Board member Negre’s denial of ever

hearing religious reasons espoused for not changing the

rule is contradicted by his own minister’s statement.

While it is true that a secular approach may coincide with

an approach taken by certain religions and not be inher-

ently religious, the Court finds that the rule prohibiting

dancing is inherently religious to the Purdy R-II School

Board.

The entire board candidly admits that they followed

the will of the majority; but they were not candid in their

opinions on the religious reasoning of the majority . The

board members were not particularly credible, either in

demeanor or in the substance of their testimony. As

stated above, it is inconceivable that no one in the Purdy

area has ever expressed the view, within the board mem-

bers’ hearing, that dancing is either immoral, sinful or

against any religion. It is inconceivable that certain board

members were totally unaware that dancing was against

the tenets of some Purdy residents’ religion. It is equally

unbelievable that the board placed no religious signifi-

cance to a statement given by the ministerial alliance, a

A-12

group of ministers whose combined ministry included

some of the board members. This Court is skeptical that it

heard the complete story concerning the board members’

deliberations of the rule and the religious significance of

the opposition to dancing in Purdy. The school board

adopted the reasoning of the “majority” of townspeople,

including the strongly-held religious views.

Furthermore, the board’s courtroom statements that

they accepted the minister’s statements at face value dety

reality. It is unbelievable that 300-400 people came to the

school board meeting to protest the added expense of | or

2 dances or the increased responsibility to teachers. The

teachers already must chaperone the banquet but leave

when the dancing begins. It is particularly significant that

no facts were requested of the opponents of the rule to

ascertain whether there would be any increased costs or

responsibilities. The record is devoid of any indication

that the board investigated the reasons propounded by

the opponents, despite the fact that the school’s superin-

tendent favored rescinding the rule and stated that he

could handle any chaperoning problems.

Condemnation of dancing is not firmly rooted in

Judeo-Christian moral or ethical standards. Allowing stu-

dents to engage in dancing within the school building

does not conflict with our historical traditions. See,

Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92

L.Ed.2d 140 (1986); Marsh v. Chambers, 463 U.S. 783, 103

S.Ct. 3330, 77 L.Ed.2d 1019 (1983); Florew v. Sioux Falls

School District 49-5, 619 F.2d 1311 (8th Cir.1980), cert.

denied 449 U.S. 987, 101 S.Ct. 409, 66 L.Ed.2d 251 (1981).

Although the intent of the decisionmakers who promul-

gated the rule cannot be ascertained, the school board in

A-13-

keeping the rule abandoned neutrality with the intent to

promote a particular view in religious matters.

Particularly significant to this Court is the fact that in

April a group of pzrents wanted to rent the school facili-

ties for a school dance. There would be no added cost tc

the school, no supervision by teachers and no classroom

time attributed to extracurricular activities. Yet the school

board called an emergency meeting to do away with the

entire rental policy rather than allow dancing in the

school. It is one thing to be opposed to the school itself

sponsoring and paying for an extracurricular activity and

quite another te prohibit social dancing on school prop-

erty. It is clear to the Court that the reasons propounded

by the majority were a mere pretext for the real religious

reasoning. Thus, there is no valid secular purpose to

having Rule 502.29.

Even if the defendants could show a valid secular

purpose, the primary effect of this rule is to endorse the

tenets of that particular religious group in Purdy who

believe that social dancing is sinful. “Endorsement sends

a message to nonadherents that they are outsiders, not

full members of the political community, and an accom-

panying message to adherents that they are insiders,

favored members of the political community.” Lynch, 104

S.Ct. at 1367 (O’Connor J., concurring). “What is crucial is

that a government practice not have the effect of commu-

nicating a message of government endorsement or disap-

proval of religion. It is only practices having that effect,

whether intentionally or unintentionally, that make reli-

gion relevant, in reality or public perception, to status in

the political community.” Lynch at 1369 (O’Connor, J.,

concurring). In the present matter, the school board is

A-14

placing the state’s imprimatur on one particular religious

belief. The testimony at trial was that a tenet of the Purdy

Assembly of God religion is a separation from worldli-

ness, including dancing. The evidence was that a tenet of

the Purdy Free Will Baptist Church is that social dancing

is sinful by prohibiting dancing in the Purdy School, the

school board has assumed the role of monitoring adher-

ence to that particular tenet. The religion of every man

must be left to his convictions and conscience and it is the

right of every man to exercise his religion as his convic-

tions and conscience may dictate. Wallace v. Jaffree, 472

U.S. 38, 105 S.Ct. 2479, 2488 n.38, 86 L.Ed.2d 29 (1985).

Church members or non-church members can no longer

follow their own convictions and conscience; this reli-

gious decision has been made for them.

The inquiry into this kind of effect must be con-

ducted with particular care when many of the citizens

perceiving the governmental message are children of for-

mative years. School District of City of Grand Rapids v. Ball,

473 U.S. 373, 105 S.Ct. 3216, 3226, 87 L.Ed.2d 267 (1985).

That a child is offered an alternative may reduce the

constraint; it does not eliminate the operation of influence

by the school in matters sacred to conscience and outside

the school’s domain. Wallace, 105 S.Ct. at 2492 n. 51

[quoting Illinois, ex rel. McCollum v. Bd. of Education, 333

U.S. 203, 227, 68 S.Ct. 461, 473, 92 L.Ed. 649 (1948) (Frank-

furter, J., concurring)]. The right to dance may not be a

tenet of the Methodist, Catholic, Lutheran or Mormon

Church, but the children of these faiths cannot be made to

feel that their religions are inferior because their churches

do not prohibit (and in some cases, actually sponsor)

dances. The public stamp of approval cannot be placed

A-15

on one faith — even if it is the majority in that particular

school system. It is no defense to urge that the religious

practices here may be relatively minor encroachments on

the First Amendment (citations omitted). Stone v. Graham,

449 U.S. 39, 42, 101 S.Ct. 192, 194, 66 L.Ed.2d 199 (1980).

The administration of religious training is properly in the

domain of the family and church. Florey, supra at 1318.

The First Amendment prohibits public schools from serv-

ing that function. The primary effect of Rule 502.29 is to

advance the religious beliefs of a particular religion.

The third prong set out in Lynch is whether there is

excessive administrative or political entanglement. There

is no question that the dance issue is deepiy divisive in

the Purdy area, nor is there any question that it has been

a divisive issue for many years. The elaborate steps the

school system took to ensure that dancing would not

occur included having a junior/senior banquet at the

school with teacher chaperones, adjourning to separate

facilities for dancers and non-dancers, and then a parent-

sponsored breakfast at 1:00 or 2:00 a.m. Special steps

were taken so that banquet decorations would not be

used as dance decorations. Money raised by having a

dance could not be used by the Purdy High School classes

for the class trip. The excessive caution surrounding any-

thing connected with dancing undermines any assertion

of a secular purpose, but it also suggests the extreme

divisiveness of this issue. Religious groups of course have

an absolute right to make their views known and to

participate in public discussion of issues. The ministers

who participated in this public debate can in no way be

criticized by the state for that participation; however,

those views may not prevail if they conflict with the

A-16

constitutional mandate forbidding the establishment of a

religion. Rule 502.29 of the Purdy R-II School District

violates the Establishment Clause of the First Amend-

ment to the Untied States Constitution because the prohi-

bition against dancing in a public school has no secular

purpose, advances the tenets of one group of religion,

and is politically divisive.

It would be inappropriate for this Court to order the

district to sponsor school dances; however, a district rule

prohibiting students from holding dances on school prop-

erty infringes on the First Amendment rights of the stu-

dents and must be invalidated. Accordingly, it is

ORDERED that School Board Policy Rule 502.29 of

the Purdy R-II School District is unconstitutional; and it is

further

ORDERED that the School Board is enjoined from

enforcing Rule 502.29; and it is further

ORDERED that plaintiffs are awarded nominal dam-

ages in the amount of $1.00 to each of them plus reason-

able attorney’s fees; and it is further

ORDERED that the Clerk shall refrain from entering

final judgment until a hearing can be held on attorney's

fees; and it is further

ORDERED that a hearing on the attorney's fees issue

is set for Friday, September 2, 1988 at 9:00 a.m.

A-17

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 88-2493

Jonathan Clayton, a minor, by

Connie Clayton, his next

friend; Steve Blakley, a

minor, by Tressia Blakley, his

next friend; David Mareth, a

minor, by Marlene Mareth, his

next friend; Mark Flummerfelt,

a minor, by Carolyn

Flummerfelt, his next friend;

Michael Beagle, a minor, by

James M. Beagle, his next

friend; George Fox, a minor,

by Joan Fox, his next friend;

Amy Dianne Wolf, a minor, by

Frances Ann Wolf, her next

friend Anna Svetlecic, a

minor, by Vickie Svetlecic,

her next friend; Connie

Clayton; Tressia Blakley;

Vickie Svetlecic; Walter

Weich; Sherry Welch; Robert

Mareth; Marlene Mareth;

Michael Flummerfelt; Carolyn

Flummerfelt; Frances Ann Wolf;

Joan Fox; Howard Fox, Jr; and

James M. Beagle,

Appellees,

ee S23 £ eS Se. 62 RS we See ee COS SR SA SLES Se Se

Appeal from the

United States

District Court

for the Western

District of

Missouri.

A-18

Richard M. Place; Glen

Garrett; Rex Henderson; Allen .

Keeling, Art Negre, :

jacqueline L. Stephens, ;

lim Terry, All in .

their individual and official m

Capacities and Purdy R-2

School District, 7

Appeilants. *

submitted: April 10, 1989

Siled: September !, 1989

Betore FAGG, Circuit Judge, FLOYD R. GIBSON, and

‘ivBEKRS,” Senior Circuit Judges.

rFAGG, Circuit judge.

Rule 902.29 of the Purdy R-2 Schooi District provides

in part. “School dances are not authorzed{,] and school

premises shall not be used tor purposes of conducting a

dance. Although the record does not indicate when the

rule was enacted, the parties agree it has been in place tor

a long time. A group of students, parents, and taxpayers

(collectively piaintilfs) brought this action against the

Purdy R-2 School District, its Superintendeni, and mem-

bers of the Districts Board of Education (collectively the

District), seeking to set aside the no-dancing ruie. Among

other theories, plaintiffs asserted the rule violates ihe

establishment clause of the first amendment because it

*The HONORABLE WILLIAM H. TIMBERS, Senior United

States Circuit Judge for the United States Court of Appeals tor

the Second Circuit, sitting by designation.

A-19

advances the views of residents in the Purdy District who

oppose dancing on religious grounds. See Lemon v. Kurtz

man, 403 U.S. 602, 612-13 (1971). The district court agreed

and invalidated the rule on that basis. See Clayton v. Place,

690 F Supp. 850, 854-57 (WD. Mo. 1988). The District

now appeals, and we reverse.

Purdy is a small, primarily rural community in

southwestern Missouri. The record indicates religion is

an important force in Purdy, and particular churches are

staunchly opposed to social dancing. A tenet of one

denomination in Purdy specifically requires “a separation

from worldliness, including dancing,” id. at 856, and

another teaches “social dancing is sinful,” id. Over the

years, various groups have unsuccessfully sought permis-

sion for school dances and have proposed changing the

District’s no-dancing rule. Despite their lack of success,

however, Purdy students are not prohibited from holding

dances away from school property, and they have regu-

larly done so.

In February 1988, a group seeking reconsideration of

rule 502.29 to enable a newly formed student organiza-

tion to sponsor a dance at the high school appeared

before the Board of Education (the Board). A local minis-

ter who opposed changing the rule attended the meeting

and requested a place on the Board’s March agenda to

make a presentation on the subject. Following discussion,

the Board deferred action on the issue until the March

meeting.

In the interim, it is fair to say the Purdy religious

community actively discussed the dancing issue. A group

A-20

of local ministers met to plan how to express their sup-

port for the rule. Ministers of several local churches,

including some to which Board members belong, spoke

out during church services against changing the rule and

encouraged members of their congregations to attend the

March Board meeting and show their opposition as well.

A large crowd gathered for the March Board meeting.

Although “[nJo direct mention was made of religion per

se at the meeting,” id. at 853, the minister who had

attended the February meeting spoke against changing

the rule and read a letter from the ministerial group to

the same effect. When the minister finished his presenta-

tion, he took the opportunity to ask those in the audience

who opposed changing the no-dancing rule to stand. Of

the estimated 250-400 people in attendance, an “over-

whelming majority of people stood in opposition to

changing the rule.” Id.

The Board later went into closed session to discuss

the students’ reconsideration request. Although no for-

mal vote was taken, the Board agreed unanimously to

“le[ave] the rule intact.” Id. Plaintiffs then brought this

action, contending the rule violated: (1) the freedom of

association clause of the first amendment; (2) the freedom

of speech clause of the first amendment; (3) the establish-

ment clause of the first amendment; and (4) article I,

section 7 of the Missouri Constitution. The court rejected

plaintiffs’ freedom of association and speech challenges,

but held that the rule violated the establishment clause of

the federal constitution. In addition, the court held that

for the same factual reasons given in connection with its

establishment clause ruling, the District’s no-dancing rule

violated the Missouri Constitution. See Clayton v. Place,

A-21

No. 86-5184-CV-SW-4, slip op. at 1-2 (Aug. 30, 1988)

(unpublished order); 690 F. Supp. at 851, 856. On appeal,

the District challenges only the court’s rulings pertaining

to the establishment clause and to the Missouri

Constitution.

In considering the district court’s ruling that the

Purdy no-dancing rule is invalid under Lemon, we review

the court’s findings of fact under the clearly erroneous

standard. See Carter v. Broadlawns Medical Center, 857 F.2d

448, 453 (8th Cir. 1988), cert. denied, 109 S. Ct. 1569 (1989).

The ultimate conclusion of the rule’s constitutionality,

however, is a mixed question of law and fact. See id.

Although the record contains no indication of when or for

what express purpose the rule was originally passed, that

circumstance is no barrier to evaluating the rule’s compli-

ance with the establishment clause. See Mueller v. Allen,

463 U.S. 388, 395 n.4 (1983). The district court’s opinion

does not rest on any adverse factual findings bearing

directly on the content of rule 502.29 or on the circum-

stances surrounding its original passage. Nevertheless,

the plaintiffs have framed their action as one to set aside

the rule, and we thus turn to examine the rule itself.

The Supreme Court has consistently followed the

three-part Lemon test for determining whether a chal-

lenged governmental rule offends the establishment

clause, and the parties agree the Lemon analysis applies in

this case. Under the Lemon framework, a rule is permiss-

ible if it has a secular purpose; if it neither advances nor

inhibits religion in its principal or primary effect; and if it

does not foster an excessive entanglement with religion.

County of Allegheny v. ACLU, 109 S. Ct. 3086, 3100 (1989).

The challenged rule is valid only of it meets all three

a

A-22

tests. See Edwards v. Aguillard, 482 U.S. 578, 583 (1987).

The district court determined the Purdy no-dancing rule

violated each of these three requirements and was thus

invalid. We disagree as to each.

First, plaintiffs conceded at oral argument (and the

district court acknowledged) that extracurricular dancing

is a wholly secular activity. See 690 F. Supp. at 855 (“Con-

demnation of dancing is not firmly rooted in Judeo-Chris-

tian moral or ethical standards.”). Further, the rule carries

within its text absolutely no religious component, and

there is no record evidence of any actual religious pur-

pose connected with the rule’s enactment or its textual

requirements. Compare Wallace v. Jaffree, 472 U.S. 38, 56-57

(1985). In our view, the rule on its face thus satisfies the

first prong of the Lemon analysis. See Bowen v. Kendrick,

108 S. Ct. 2562, 2570-71 (1988); Mueller, 463 U.S. at 394-95;

see also Florey v. Sioux Falls School Dist., 619 F.2d 1311,

1314-15 (8th Cir.), cert. denied, 449 U.S. 987 (1980).

Second, the record does not fairly demonstrate that

any religious doctrine is principally or primarily

advanced by the Board’s enforcement of the no-dancing

rule. See Corporation of the Presiding Bishop of the Church of

Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 337

(1987) (Amos). No student is prohibited from engaging in

or refraining from extracurricular dancing should they

choose to do so. Any arguably religious effect of the rule

is indirect, remote, and incidental. Lynch v. Donnelly, 465

U.S. 668, 683 (1984); see also Bowen, 108 S. Ct. at 2573. To

the extent plaintiffs contend the rule impermissibly

endorses or conveys a message of governmental prefer-

ence for a particular religious viewpoint concerning

social dancing, see County of Allegheny, 109 S. Ct. at 3101;

A-23

Bowen, 108 S. Ct. at 1571, we find nothing in the rule to

suggest the District has “take[n] a position on questions

of religious belief or * * * ‘ma[de] adherence to a religion

relevant in any way to a person’s standing in the political

community.’ ” County of Allegheny, 109 S. Ct. at 3101

(quoted citation omitted).

Finally, there is no showing the rule fosters excessive

government entanglement in religious affairs. If any-

thing, the rule promotes less, rather than more, school

involvement in what plaintiffs contend is a religiously

significant activity. See Amos, 483 U.S. at 339. The district

court based this portion of its decision on the conclusion

that the dancing debate was deeply divisive in the Purdy

community. See 690 F. Supp. at 856. Political divisiveness

along religious lines, however, is not a proper consider-

ation except in cases involving financial aid to parochial

schools. See Bowen, 108 S. Ct. at 2578 & n.14; Mueller, 463

U.S. at 403 n.11; Carter, 857 F.2d at 456; Florey, 619 F.2d at

1318. For these reasons, we conclude the District’s no-

dancing rule on its face satisfies the controlling Lemon

standards. We turn now to the core of plaintiffs’ addi-

tional argument challenging the rule.

Plaintiffs contend Board members acted in accor-

dance with the religious beliefs of a majority of patrons

attending the March Board meeting and in conformity

with their own faiths when they acted to retain the no-

dancing rule. Based on this premise, plaintiffs argue the

Board’s action was religiously motivated and, conse-

quently, should result in nullification of the rule as a

violation of the establishment clause. We reject this

argument.

A-24

Although the record does not indicate the religious

affiliation of patrons who stood in support of the rule at

the March meeting, the district court held the Board had

“adopted the reasoning of the ‘majority’ of townspeople,

including thefir] strongly-held religious views,” 690 F.

Supp. at 855. The court then determined “the rule prohib-

iting dancing [was] inherently religious to the [Board],”

and “there [was] no valid secular purpose to having

[r]ule 502.29,” id. For this reason, the court concluded the

Board’s action violated Lemon’s purpose requirement

because the Board “in keeping the rule abandoned neu-

trality with the intent to promote a particular view in

religious matters,” /d. Utilizing what amounts to the same

rationale, the district court also held the rule ran afoul of

Lemon's effect standard because it has “the primary effect

of * * * endors[ing] the tenets of that particular religious

group in Purdy who believe[s] that social dancing is

sinful,” id.; see also id. at 855-56.

Initially, we observe the district court found a

number of the Board members had at some time

expressed the view that their individual religious back-

grounds favored the rule. See id. at 852-53. In addition,

the court found that to the extent Board members testi-

fied moral, educational, or fiscal concerns, and not reli-

gion, influenced their decisions, their testimony was not

credible. See id. at 854-55. While we have no occasion to

disagree with these findings, we believe plaintiffs’ and

the district court’s reliance on them in this case is

misplaced.

We readily acknowledge that under the record in this

case, the no-dancing rule may be characterized as com-

patible with the sincerely held religious beliefs of a vocal

A-25

segment of the Purdy community. The mere fact a gov-

ernmental body takes action that coincides with the

principles or desires of a particular religious group, how-

ever, does not transform the action into an impermissible

establishment of religion. See Bowen, 108 S. Ct. at 2571 n.8;

Lynch, 465 U.S. at 682; Harris v. McRae, 448 U.S 297, 319-20

(1980); see also Webster v. Reproductive Health Servs., 109

S.Ct. 3040, 3082 (1989) (Stevens, J., concurring and

dissenting).

We also find no support for the proposition that a

rule, which otherwise conforms with Lemon, becomes

unconstitutional due only to its harmony with the reli-

gious preferences of constituents or with the personal

preferences of the officials taking action. Cf. Washington v.

Davis, 426 U.S. 229, 253 (1976) (Stevens, J., concurring)

“It is unrealistic * * * to invalidate otherwise legitimate

action simply because an improper motive affected the

deliberation of a participant in the decisional process.”).

To make government action assailable solely on the

grounds plaintiffs suggest would destabilize govern-

mental action that is otherwise neutral. Indeed, the focus

of Lemon is to avoid a haphazard approach “for determin-

ing whether a government practice violates the [e]sta-

lishment [c]lause.” County of Allegheny, 109 S. Ct. at

3100.

We simply do not believe elected government offi-

cials are required to check at the door whatever religious

background (or lack of it) they carry with them before

they act on rules that are otherwise unobjectionable

under the controlling Le#son standards. In addition to its

unrealistic nature, this approach to constitutional analysis

would have the effect of disenfranchising religious

A-26

groups when they succeed in influencing secular deci-

sions. In this case, the district court recognized “[r]eli-

gious groups * * * have an absolute right to make their

views known and to participate in public discussion of

issues,” 690 F. Supp. at 856. Nevertheless, the court held

“those views may not prevail,” id., even though these

groups have long been legitimate participants in secular

community debate, see Bowen, 108 S Ct. at 2573.

At bottom, the proper remedy for plaintiffs’ disen-

chantment with a Board that refused to change a rule that

is compatible with Lemon is found at the ballot box and

not in the Constitution. Having carefully studied the

applicable authorities, the record, and the parties’ argu-

ments, we hold the District’s no-dancing rule is not an

unconstitutional establishment of religion under the first

amendment.

We now turn to plaintiffs’ argument that the rule

violates article I, section 7 of the Missouri Constitution.

The district court treated the relevant state constitutional

provision as coextensive with the federal establishment

clause for purposes of plaintiffs’ action, and we adopt

that construction as well. See Goodwin v. Circuit Court, 741

F.2d 1087, 1089 (8th Cir.), cert. denied, 469 U.S. 1216 (1984)

(“We normaliy defer to the district courts on questions of

the law of their own states, and this principle applies to

state constitutions * * *.”). In view of our decision on the

federal constitutional principles, we necessarily conclude

the District’s rule does not infringe the state constitu-

tional section challenged here. Accordingly, we reverse

the district court’s ruling on this issue.

A-27

In sum, we reverse the district court’s challenged

rulings and remand the case for proceedings consistent

with this opinion, including reconsideration of the court’s

order awarding attorneys fees and expenses.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

A-28

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 88-2493

Jonathan Clayton, a minor,

by Connie Clayton,

his next friend; Steve

Blakley, a minor, by Tressia

Blakley, his next

friend; David Mareth, a minor,

by Marlene Mareth, his

next friend; Mark Flummerfelt,

a minor, by Carolyn

Flummerfelt, his next

friend; Michael Beagle, a

minor, by James M. Beagle,

his next friend; George Fox,

a minor, by Joan Fox, his

next friend; Amy Dianne Wolf,

a minor, by Frances Ann

Wolf, her next friend; Anna

Svetlecic, a minor, by Vickie

Svetlecic, her next

friend; Connie Clayton;

Tressia Blakley; Vickie

Svetlecic; Walter Welch;

Sherry Welch; Robert Mareth,;

Marlene Mareth; Michael

Flummerfelt; Carolyn

Flummerfelt; Frances Ann

Wolf; Joan Fox; Howard Fox,

Jr; and James M. Beagle,

Appellees, bs

»* * * . . * . * ee Fa te be ES ae ok. eo @ & ye = 8 >» * * . . . .

Order Denying

Petition for

Rehearing and

Suggestion for

Rehearing En Banc.

A-29

Richard M. Place; Glen Garrett;

Rex Henderson; Allen

— Art Negre;

Jacqueline L. Stephens;

Jim Terry; All in their

individual and official

3 pry and Purdy R-2

School District,

>’. ae Se Se ee ee: ee ee ee

Appellants.

Filed: November 17, 1989

Before LAY, Chief Judge, MCMILLIAN, ARNOLD, JOHN

R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL

and BEAM, Circuit Judges.

The suggestion for rehearing en banc has been con-

sidered by the court and is denied by reason of the lack of

majority of active judges voting to rehear the case en

banc. Chief Judge Lay, Judges McMiilian, Arnold and

John R. Gibson dissent from the denial of the suggestion

for rehearing en banc.

The petition for rehearing is also denied.

JOHN R. GIBSON, Circuit Judge, with whom LAY, Chief

Judge, McMILLIAN and ARNOLD, Circuit Judges, join,

dissenting.

I respectfully dissent from the decision of a bare

majority of this court to deny rehearing en banc in this

case. The district court’s findings of fact, Clayton v. Place,

690 F. Supp. 850, 851-56 (W.D. Mo. 1988), demonstrate

overwhelmingly that the religious views of five churches

in Purdy, Missouri, caused the school board to refuse to

A-30

change its rule prohibiting social dancing.’ These find-

ings compel the conclusion that the test of Lemon v.

Kurtzman, 403 U.S. 602 (1971), has not been satisfied.

The opinion of the panel, Clayton v. Place, 884 F.2d

376 (8th Cir. 1989), properly recognizes that the district

court’s findings of fact are reviewed under the clearly

erroneous standard, but the ultimate question of the

rule’s constitutionality is a mixed one of law and fact.

There is no claim that any finding of fact is clearly

erroneous.

It is true, as the panel opinion states, that the rule is

facially secular; the text of the rule does not explicitly

state that dancing is prohibited for religious reasons.

While the origins of the rule are not described, the issues

before us deal with the enforcement of the rule and the

board’s refusal to change it. The Lemon test cannot be

circumvented by merely omitting from a rule any explicit

statement of religious purpose. Rather, the first part of

the Lemon test depends upon the government's “actual

purpose” in making a decision. Edwards v. Aguillard, 482

U.S. 578, 585 (1987). Moreover, while courts are “nor-

mally deferential to a State’s articulation of a secular

purpose, it is required that the statement of such purpose

be sincere and not a sham.” Id. at 586-87. In this case, as

in Aguillard, the board has “identified no clear secular

purpose” for continuing to enforce its rule. Id. at 585.2 In

1 The Purdy School District’s Policy 502.29 states: “School

dances are not authorized and school premises shall not be

used for purposes of conducting a dance.”

2 The panel opinion states that the extracurricular dancing

in this case is wholly secular. The true issue in the case,

however, is whether the “no dance” rule has a secular purpose.

A-31

contrast, the findings of the district court make abun-

dantly clear that adherence to the rule does have a clear

religious purpose. Cf. id. at 587-93 (examining the legisla-

tive history of an act to determine whether it was moti-

vated by a religious purpose); id. at 597-602 (Powell, J.,

and O’Connor, J., concurring) (same); Wallace v. Jaffree,

472 U.S. 38, 56-57 (1985) (same). The panel’s conclusions

in applying the Lemon test fail to give proper consider-

ation to the findings of the district court, which must be

set out in some detail.

During 1985-86, the parents and students involved in

this litigation sought to change the “no dance” policy.

The parents first asked Richard Place, the Superintendent

of Schools, why dances were prohibited. Place answered

that it was because Purdy was a conservative, religious

community. They then asked if the rule was in effect

because the Baptists opposed dancing, and Place

answered, “Let’s just say protestants.” Prior to the school

board meeting at which the proposal to permit dances

was discussed, board member Keeling stated that he

opposed changing the rule because his church preached

that it was wrong and immoral to dance. Board member

Terry told one of the plaintiffs that he had voted to

permit dances in the past but caught so much “flak” from

the ministers that he would vote against it this time.

Board member Negre also declared that his church was

opposed to dancing. At the February 10, 1986, meeting

when the request to permit dances was initially made,

Reverend Davis of the Free Will Baptist Church and his

wife were present to state their opposition to a change in

the rule. After Reverend Davis spoke, someone asked

board president Garrett about the separation of church

A-32

and state. Garrett responded that, “you’d better hope

there’s never separation of God and school.” Clayton, 690

F. Supp. at 852.

After the meeting, the Ministerial Alliance, composed

of ministers from the First Baptist, ihe First Assembly of

God, the First Free Will Baptist, the Macedonia Free Will

Baptist, and the First Christian Churches,? met to plan the

opposition to changing the rule. The ministers agreed to

persuade their members to attend the March meeting to

fight the proposed change in the rule.

The minister of the First Baptist Church spoke to his

congregation about the dance issue, and encouraged

them to attend the meeting and fight the proposed

change. In addition, his congregation prayed for board

member Blakely’s soul because he tried to change the

rule. Id. at 853.

The minister of the First Assembly of God Church

testified that he would refer any member of his congrega-

tion who engaged in dancing to the Presbyters of the

church for counseling. He also encouraged the congrega-

tion to attend the March meeting and reminded them of

the church’s position on dancing. To become a member of

the First Assembly of God Church, a person must agree to

be separate from worldliness, which includes dancing

The minister of the Free Will Baptist Church believes

and preaches that dancing is sinful, prohibited by scrip-

ture, and possibly satanic. He has preached against danc-

ing from the pulpit and has had a private counseling

3 The district court noted that there were no Catholic,

Lutheran, Presbyterian, Methodist, Jewish or Mormon mem-

bers in the Ministerial Alliance. Clayton, 690 F. Supp. at 853.

A-33

session with any member of his congregation who

engaged in dancing. Before the board met to consider the

proposed change, he contacted all but one of the mem-

bers to voice his opposition to school dancing. He also

informed his church members that there would be a

petition for them to sign to indicate their opposition to

the proposed change.

The Sunday before the board meeting, the congrega-

tion of Macedonia Free Will Baptist Church discussed the

rule and board member Henderson was present at the

discussion. Henderson promised that there would be no

dancing at the schools as long as he was on the school

board, and he encouraged everyone to go to the meeting

to show their opposition to any change in the rule. The

minister of the church, who has said during church ser-

vices that he believes dancing is inappropriate behavior,

also discussed his beliefs with board members Henderson

and Negre.

There were 250 to 400 people in attendance at the

March 10, 1986 board meeting. When the ban on dances

was discussed, no direct mention of religion was made,

but a letter from the Ministerial Alliance was read in its

entirety. Reverend Davis of the Free Will Baptist Church

argued that the “1.0 dance” rule should not be changed.

As he concluded, he asked the people in the crowd to

signify their opposition to changing the rule by standing.

The overwhelming majority of people stood in opposition

to the proposed change in the rule. The board later held a

closed session. While the board did not take a formal

vote, it left the rule intact.

A-34

On April 18, 1986, one of the parents requested per-

mission to rent the elementary school building for a

school dance. Prior to that date, the school premises had

been rented for various nonschool functions. At the April

29th meeting, however, the board voted in favor of sus-

pending its rental policy.*

The district court, in applying the Lemon test to these

facts,» found unpersuasive the testimony of the board

members that they had opposed dancing in the schools

for secular reasons, that there was no religious pressure

to keep the rule, and that the rental policy was changed

in response to problems with the liability of the school.©

The district court then found that the rule prohibiting

dancing was “inherently religious to the [Purdy] School

Board.” Clayton, 690 F. Supp. at 855. It singled out the

elimination of the rental policy and found that the

board’s purported reasons for the action were a mere

pretext for the real religious justification.

* At a later meeting, the board adopted a policy of not

renting to any outside group and not using school buildings

for other than school purposes. Since that time, however, the

building and grounds have been used for nonschool softball

leagues, pick-up basketball games, and an exhibition donkey

basketball game.

> The district court’s conclusions of law discuss not only

legal issues but also contain an assessment of the credibility of

board members’ statements which are, | think, findings of fact,

and they will be treated as such. Clayton, 690 F. Supp. at 854-55.

© The record does not reveal why dancing poses greater

liability problems than does donkey basketball. See supra note

4.

A-35

The findings of the district court, eloquent in their

simplicity, compel its conclusion, and support mine, that

the school board was motivated by religious purposes.

Strictly speaking, this conclusion renders unnecessary a

consideration of the second and third components of the

Lemon test. Aguillard, 482 U.S. at 585; Wallace, 472 U.S. at

56. These findings, however, also convincingly demon-

strate that the principal, or primary, effect of the board’s

actions was to advance the religious views of some mem-

bers of the community, and that the retention and

enforcement of the rule constituted excessive government

entanglement with these religious views. Therefore, |

conclude that the second and third components of the

Lemon test are also not satisfied.

This is a case about religious tyranny. The members

of five churches who have strong views on the religious

significance of dancing successfully exerted pressure on

the board to prohibit school dances. In the overall scheme

of things, a dance at Purdy high school, with an enroll-

ment of 519,7 may not be of earth-shattering significance.

Yet, our Constitution protects all citizens, including the

students at Purdy high school, from religious, as well as

political, oppression by a majority. The first amendment

rights of those students sound a call that this court

should not ignore. Our denial of the petition for rehear-

ing en banc turns a deaf ear to the pleas of those students.

LAY, Chief Judge, with whom McMILLIAN and

ARNOLD, Circuit Judges, join, dissenting.

7 137th Report of the Public Schools of Missourt 103 (1986)

A-36

Judge John R. Gibson’s illuminating dissent should

leave little doubt that the record demonstrates the Purdy

school board’s action focuses upon religion. The trial

court’s findings should be upheld under the clearly erro-

neous rule. I write separately to underscore my disagree-

ment with the panel decision, and to elaborate on the no-

dancing rule’s failure to pass scrutiny under the “effects”

component of the framework enunciated in Lemon v.

Kurtzman, 403 U.S. 602 (1971).

The second prong of the Lemon test considers

whether “the challenged governmental action is suffi-

ciently likely to be perceived by adherents of the control-

ling denominations as an endorsement, and by

nonadherents as a disapproval, of their individual reli-

gious choices.” County of Allegheny v. ACLU, 109 S. Ct.

3086, 3103 (1989) (quoting School Dist. of Grand Rapids v.

Ball, 473 U.S. 373, 390 (1985)). “[T]he prohibition against

governmental endorsement of religion ‘preclude[s] gov-

ernment from conveying or attempting to convey a mes-

sage that religion or a particular religious belief is favored

or preferred.’” 109 S. Ct. at 3101 (quoting Wallace v. Jaffree,

472 US. 38, 70 (1985) (O’Connor, J., concurring in judg-

ment)) (emphasis in original).

The question, therefore, is “what viewers may fairly

understand to be the purpose” of the no-dancing rule.

Lynch v. Donnelly, 465 U.S. 668, 692 (1984) (O’Connor, J.,

concurring). To the residents of Purdy - especially the

students of Purdy R-II High School - the rule’s message is

unmistakably clear: the school district promotes the

tenets of the local religious community. As a symbol of

religious endorsement, the rule is no less obvious than a

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monument anchored to the schoolhouse lawn pronounc-

ing: “THIS SCHOOL ADHERES TO THE BASIC TENETS

OF THE MINISTERIAL ALLIANCE CHURCHES.”

The message is not diluted, as the panel opinion

suggests, by the fact that the school does not coerce

students into refraining from dance away from school

grounds. The Supreme Court has clearly held that proof

of coercion is not a necessary element of any claim under

the Establishment Clause. County of Allegheny, 109 S. Ct.

at 3103 n.47; Committee for Pub. Educ. v. Nyguist, 413 U.S.

756, 2786 (1973). Indeed, the Court’s recent decisions

invalidating government action on Establishment Clause

grounds have involved no direct coercion. See, e.g.,

County of Allegheny, 109 S. Ct. at 3086 (nativity display);

Texas Monthly, Inc. v. Bullock, 109 S. Ct. 890 (1989) (sales

tax exemption for religious periodicals); Edwards v.

Aguillard, 482 U.S. 578 (1987) (rule limiting teaching evo-

lution in school); Ball, 473 U.S. at 373 (state-sponsored

educational programs at nonpublic schools); Wallace, 472

U.S. at 38 (moment of silence); Stone v. Granam, 449 U.S.

39 (1980) (posting Ten Commandments on classroom

walls); Nyguist, 413 U.S. at 756 (tuition reimbursement to

parochial school parents). It is enough that the govern-

ment clearly endorses religion or particular religious

beliefs, for endorsement itself “sends a message to non-

adherents that they are outsiders, not full members of the

political community, and an accompanying message to

adherents that they are insiders, favored members of the

political community.” Lynch, 465 U.S. at 688 (O’Connor, J.,

concurring); see also County of Allegheny, 109 S. Ct. at 3101.

This message is particularly potent in the educational

context. “The government's activities in this area can

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have a magnified impact on impressionable young

minds,* * *.” Ball, 473 U.S. at 383; see also Clayton v. Place,

690 F.Supp. 850, 856 (W.D. Mo. 1988).

Perhaps the no-dancing rule’s symbolic effect would

be less potent if the rule could be explained, at least in

part, by some plausible secular purpose. Although it is

clear that identification of a secular purpose will not

immunize governmental action from scrutiny under

Lemon's effects test, see, e.g., Nyguist, 413 U.S. at 774, it

might at least help mask the appearance that the action is

crafted as a religious endorsement. If, for instance, the

District maintained the no-dancing rule in order to avoid

such problems as noise, building destruction, or shortage

of supervisory personnel, the community members and

students might well see it in a somewhat different light.

Yet, as Judge Gibson aptly points out, no nonreligious

purpose can be discerned here.

In Purdy, Missouri, the no-dancing rule differs little

from a school’s posting of the Ten Commandments on its

classroom walls. See Stone, 449 U.S. at 39. In both cases

the school makes it abundantly clear to the students that

it embraces the tenets of a particular religion. The panel

implies that a difference lies in the fact the Ten Com-

mandments are religious on their face whereas the no-

dancing rule is facially nonreligious. See Clayton v. Place,

884 F.2d 376, 379 (8th Cir. 1989). This distinction, how-

ever, fails to give due regard to the religious environment

that provides the no-dancing rule its lifeblood: a small

town in which five churches wielding political influence

teach that social dancing is sinful. Only in this context

can the effect of the rule be judged. See, e.g., County of

Allegheny, 109 S. Ct. at 3103.

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If the Establishment Clause carries any significant

meaning, it is that government cannot maintain a practice

that has as its sole purpose and primary effect the advan-

cement of a tenet unique to particular religious groups. |

dissent from the denial of the suggestion for rehearing en

banc. I do so not only because the panel’s decision is

wrong; I do so because of the unwarranted precedent

created in this circuit and throughout the nation provid-

ing a devious springboard for further destruction of the

wall separating church and state.

A true copy.

Attest: /s/ Robert D. St. Vrain

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.