Opposition Brief — Clayton v. Place

(a

No. 89-1348 ¢

In The

Supreme Court of the Unit

October Term, 1989

— oO -

[(ONATHAN CLAYTON, a minor, by CONNI!

TON. his next friend; Steve Blakley, a minor, by Ires

Blakley. his next friend; David Mareth, a minor, Dy

lene Mareth, his next friend; Mark Flumm

—_ | : 1 7 Ty

Carolyn Flummerfelt, his next friend; Michael Bea

—

4 minor, bv James Beagle, his next friend; George Fox

minor, by loan Fox, his next friend: Amy Dianne Wo!

minor, by Frances Ann Wolf, her next friend

Svetlecic, a minor, by Vickie Sveti her next fri

nnie Clavton, Tressia Blakley; Vickie Svetle ‘

Welch; Sherry Welch Robert Maret! Marlene Mare

Michael Flummerfelt: Carolyn Flummerfelt; Frances A

‘ | | ; - ri ’ ara x Vi

’ ‘ is T 7

LICHARD PLACE; Glen Garre

| . | | ’ ;

en Ace ne; At Negre; acc t »

, ry icery Wi

~ I

+

RESPONDENTS’ BRIEF IN OPPOSITION

rO PETITION FOR WRIT OF CERTIORARI!

rO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

+

pigs Tk ae

. 4 o

ATW Tek

-, *,

é

>

i”

QUESTIONS PRESENTED

1. Because all of the student-Petitioners have gradu-

ated or are no longer enrolled in the School District, is

this case now moot and the Court without jurisdiction?

2. Was the Eighth Circuit correct in holding that

when a law merely coincides with the principles or de-

sires of a particular religious group, such evidence is not

probative on the question of legislative purpose?

3. Was the Eighth Circuit correct in holding that

evidence of activities by local citizens, including minis-

ters, in support of a school policy was not probative on

the question of legislative purpose because:

(a) the focus should be on the School Board,

which realistically cannot be accountable for the motives

of its multifarious constituents; and

(b) in any event, these activities of speech and

political participation are themselves protected by the

First Amendment?

4. Was the Eighth Circuit correct in holding that

evidence of the individual religious background and per-

sonal beliefs of an elected public official cannot be proba-

tive on the question of legislative purpose because:

(a) to make legislation assailable on this basis

would destabilize governmental action that is otherwise

neutral” (A-25); and

(b) elected government officials are not “re-

quired to check at the door whatever religious back-

ground (or lack of it) they carry with them before they act

on rules that are otherwise unobjectionable”? (A-25)

QUESTIONS PRESENTED —- Continued

5. Was the Eighth Circuit correct in holding that a

school policy has no principal or primary effect that

:

advances or endorses religion because

a the text of the policy is facially neutral;

r ++ " thio , . ++ , + "

) ne suodier Matter j ©e p cy ncerns a

‘ 5 liar act t

, :

there was no evidence in the legislative his

+ . +, ; aal: ¥ ,i* . ta is —esceree 7h vy Pee if A by « religi ym

i > ii. Y vy Aigvbsiaiiy '?' -§'VaLttuU Vy Cilz_ it

mania

/ tho lice oO to +} , vo ” }

Liit [ iit ¥Y perates in tne negative, in tnat

‘ j nm , | ‘ +, 5 qd ) -

ioes ft expose students to unwanted exercises or

e them to assume special burdens to avoid its reach

t nits e a ty from among the school’s

‘ yrs ae. | r ’? r

ili

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED i

TABLE OF AUTHORITIES IV

PROCEEDINGS IN THE COURTS BELOW

OBJECTION TO JURISDICTION 2

STATEMENT OF THE CASE... 4

SUMMARY OF THE ARGUMENT 9

ARGUMENT 12

|. The first prong of the Lemon test presently

requires that a legislature may not have as its

preeminent purpose the imposition of a beliet

Or practice that is inherently religious

A. When Law and Religion Coincide

B. Relevant Decision Maker: The School

Board

C. Inhibiting Speech and Political Participa-

tion eK ;

D. The Deferential Motive Analysis

The second prong of the Lemon test is an objec

tive measurement requiring evidence, empiri

cal or otherwise, that in its operation, a law has

the primary effect of advancing or endorsing

religion

A. “Principal” or “Primary” Effect

B. Objective Observer

C. Secular Nature of Social Dancing

CONCLUSION

TABLE OF AUTHORITIES

Page

= LEME Co

Abington School District v. Schempp, 374 U.S. 203

(1963) 3, 2Y

Arlington Heights v. Metropolitan Housing Develop-

ment Corp., 429 U.S. 252 (1977) ........... ee

Bethel School District v. Fraser, 478 U.S. 675 (1986) 13

Bowen v. Kendrick, 487 U.S. __, 108 S. Ct. 2562

(1988) Pane t's ea ila pb died’ hb kek oa we Oe i

Corporation of Presiding Bishop v. Amos, 483 U.S

327 (1987) | em 7 16, 17, 25, 26

County of Allégheny v. American Civil Liberties

Union, U.S. , 109 S. Ct. 3086 (1989) 25, 26

DeFunis v. Odegaard, 416 U.S. 312 (1974) (per cur- |

SEED So ah binteia"be sd Bb Alal en a a eat alota aia eae ; |

Doremus v. Board of Education, 342 U.S. 429 (1952).. 2, 3. 4

Edwards v. Ayuillard, 482 U.S. 578 (1987) ae eee

Engel v. Vitale, 370 U.S. 421 (1962)

Epperson v. Arkansas, 393 U.S. 97 (1968) »Y

Harris v. McRae, 448 U.S. 297 (1980) 17, 2¢

Hazelwood School District v. Kuhlmeter, 484 U.S. 260

(1988) 13

Heitmuller v. Stokes, 256 U.S. 359 (1921) t

Larson v. Valente, 456 U.S. 228 (1982) 18

4 Kurtzmap? 4 3 [ S. 602 7 4

TABLE OF AUTHORITIES - Continued

Page

Lynch v. Donnelly, 465 U.S. 668 (1984)............ 15, 26

Marsh v. Chambers, 463 U.S. 783-(1983).............. 26

McCollum v. Board of Education, 333 U.S. 203 (1948) .... 13

McDaniel v. Paty, 435 U.S. 618 (1978)............. 19, 24

McGowan v. Maryland, 366 U.S. 420 (1961)....16, 23, 26

Mueller v. Allen, 463 U.S. 388 (1983)...... = Ei, 20

NLRB v. Catholic Bishop of Chicago, 440 U.S. 490

(1979) Ete 24

Palmer v Thompson, 403 U.S. 217 (1971) 21

Schlesinger v. Reservists Committee to Stop the War

4i6 U3. 206 (1976)... ooiiveeevec ee 4

Serbian Eastern Orthodox v. Milivojevich, 426 US.

GPG: CIS7O? ss ivctircsdcn Ole 24

Stone v. Graham, 449 U.S. 39 (1980)...............15, 28

Thomas v. Review Board, 450 U.S. 707 (1981) .. 24

Torcaso v. Watkins, 367 U.S. 488 (1961) 24

United States v. Ballard, 322 U.S. 78 (1944) 24

United States v. Morgan, 313 U.S. 409 (1941) 23

United States v. O’Brien, 391 U.S. 367 (1968) 21

Valley Forge Christian College v. Americans United

for Separation of Church and State, 454 U.S. 464

(1982) 3, 4

Wallace v. Jaffree, 472 U.S. 38 (1985) assim

vl

TABLE OF AUTHORITIES - Continued

Walz v. Tax Commission of the City of New York, 397

U.S. 664 (1970)..... 7 7 mac 16

Washington Market Co. v. District of Columbia, 137

U.S. 62 (1890) (per curiam) .. | 4

Widmar v. Vincent, 454 U.S. 263 (1981) 25, 20

Witters v. Washington Department of Services for the

Blind, 474 U.S. 481 (1986)... 26

Wood v. Strickland, 420 U.S. 308 (1975) 12

y Y Yr i] r? AA j ¥ y QO? > aA 148

4 i 44ilkAa sid l4 4 mL ?

MF L y + 7 4 + —y a \ 5

tn ©] Pate ] ] yg € SHY mY

r ’

» } ‘ \

4 IN ra } VOT ‘ A

~y a | ~* ~ >)

+ r

2U ak .. \ 78 &

Ba y + ;

Ariv4 4

‘5 4

y q r ‘

d S4hH L¢ Z + ~*~» ]

4 > \ ~ iM

’ ¥ d Te) 7 >

4

> , , ~

4 4 4 ? _

~ | . »*7 4

bon >

‘ » ~y ‘

4 + ‘Fv. 7 +

Vil

TABLE OF AUTHORITIES - Continued

Page

OTHER:

Rules of the Supreme Court of the United States,

Rule 21.1(a)

[ribe, Laurence, American Constitutional Law (2d

ed. 1988) 20, 25,

5 *>

L oe

PROCEEDINGS IN THE COURTS BELOW

In December 1986, Plaintiffs-Petitioners sued the Pur-

dy R-2 School District and Board of Education members

complaining of School District Policy 502.29. While Peti-

tioners now convey the impression that their cause has

been solely about religion, that was not initially the case

| In addition to alleging that the Policy violated the Estab-

lishment Clause (Count I) and Article I, Sections 6 and 7

of the Missouri Constitution (Count IV), Plaintiffs further

alleged a denial of the Free Speech Clause (Count III) and

the right to Freedom of Association (Count II).

The case was tried on June 27-30, 1988, on all four

counts. On August 1, 1988, the trial court issued an

interlocutory Order wherein it concluded that the Policy

constituted an establishment of religion. On August 30,

1988, in response to the School District’s motion request-

ing a ruling on the remaining counts, the trial court

issued a second interlocutory Order, which held that the

School District had not violated Plaintiffs’ free speech

and association rights. However, without making any

new findings, the court held that the School District had

violated Article I, Section 7 of the Missouri Constitution

On September 8, 1988, in response to a second motion

by the School District, the trial court issued a third inter-

locutory Order. This Order sought to clarify previous

Orders concerning whether the School District was re-

quired to add to its extracurricular program school-spon-

sored dancing, or merely to allow persons not connected

with the school to use its buildings for dances. Final

Judgment was also entered on September 8, 1988. On

September 9, 1988, the trial court issued an “Addendum”

to its third interlocutory Order, correcting a math error in

the attorney fees awarded Plaintiffs

l

2

The School District filed a timely appeal to the Final

Judgment on Counts I and IV. Plaintiffs did not cross-

appeal the Judgment against them on Counts II and III

Oral argument was held in the United States Court of

Appeals for the Eighth Circuit on April 10, 1989 On

September 1, 1989, the Panel unanimously reversed the

trial court. On November 17, 1989, the full United States

Court of Appeals for the Eighth Circuit, by a division of

5-4, declined to rehear this case en banc.

+

OBJECTION TO JURISDICTION

There are no student-Petitioners currently enrolled in

the School District. Accordingly, this case requesting eq-

uitable and declaratory relief is now moot and should be

dismissed for lack of jurisdiction in this Court. Doremus v.

Board of Education, 342 US. 429, 432-33 (1952). See also

DeFunis v. Odegaard, 416 US. 312 (1974) (per curiam).

Petitioners Jonathan Clayton, Michael Beagle, George

Fox, and Amy Dianne Wolf graduated from the School

District in May 1988. Similarly, Steve Blakley and Mark

Flummerfelt graduated in May 1989, and David Mareth

graduated in May 1987. Finally, Anna Svetlecic moved

out of the Schoo! District and officially transferred her

registration to a different school in December 1989. The

balance of the parties are parents of these former stu-

dents, thus their standing to maintain equitable claims for

alleged constitutional injury is dependent on the contin-

ued enrollment of the student-Petitioners in the Schoo!

District.’

' Should parent-Petitioners allege standing in their own

right as parents of schoolage children other than the

‘Continucd on following page)

4

Nor are claims of “citizen standing” cognizable. Id. 342

U.S. at 431, 433.2

The Complaint, in addition to requesting injunctive

and declaratory relief, sought nominal damages. The trial

court awarded nominal damages of $1.00 against the

School District in favor of each of the twenty-one Plain-

tiffs. When a claim for injunctive and declaratory relief

has become moot, nominal damages will not save the

cause from mootness.* The holding of these cases is the

only workable rule, otherwise a claim for a mere $1.00

would become the routine artifice for circumventing the

long-established rule of Doremus.

Because the student-Petitioners are no longer en-

rolled in the School District, we ask that the writ be

denied because the case is moot.

> —

STATEMENT OF THE CASE

Petitioners have stated events in a dramatic way so

as to capture this Court's attention. In so doing, they

bring about two distortions: (a) findings concerning the

speech and activities of local citizens, including ministers,

* See also Schlesinger v. Reservists Committee to Stop the War

415 US. 208, 216-27 (1974) (U.S. citizenship insufficient); Valley

Forge, 454 US. at 477-78, 482-83 (same)

* Geraci v. Trewchtlinger, 487 F2d 590, 592 (2d Cir 1973)

nominal damages); Hernardez v European Auto Collision. Inc .

487 F 2d 378, 387 (2d Cir. 1973) (nominal damages); Kerrigan v

Boucher, 450 F.2d 487, 489-90 (2d Cir. 1971) (nominal damages):

Duffy 0 Quattroccht, 576 F. Supp. 336, 342 (D.R.1. 1983) (nomi-

nal damages). See also Hetimuller v Stokes, 256 US. 359, %42

1921) (court costs); Washington Market Cov. District of Colum

hia, 137 US. 62 (1890) (per curiam) (court costs)

———————<< SS hLlLLl

5

are blurred with the purpose of the Schoo! Board; and (b)

findings concerning the religious background and _ per-

sonal beliefs of School Board members are blurred with

the membe"s’ purposes in retaining the Policy. Because

the Eighth Circuit's opinion hinged on maintaining these

distinctions, we are restating the facts.

Policy 502.29 states in pertinent part

School dances are not authorized and school

premises shall not be used for purposes of con-

ducting a dance

There was no evidence concerning when or for what

purpose the Policy was originally promulgated. The Poli-

cy was already in force when all of the School Board

members took office (T.729-730)

The evidence is undisputed that all of the Schoo!

Board members’ children regularly attended socia!

dances in the community without being punished by

their parents (1.756-757,816-817,851-852, 939-940 962

995-996). Indeed, four of the six School Board members

engaged in social dancing (T 569-570,816,850

994), and some have even sponsored or chaperoned stu

dent dances (T.757,852,940,962-963)

In the spring of 1985, after receiving a student re

quest for an extracurricular school dance, Superintendent

Richard Place informally polled the School Board Th:

poll revealed that the School Board was split (3

ing changing the Policy (1.579.733

2

In February 1986, Plaintiffs requested to appear

the agenda of the regular School Board meeting, ostens:

bly for the purpose of organizing a school chapter of

Students Against Driving Drunk (SADD). Also in atten

dance was Ted Davis, a local minister. wh ame to the

a

7

activity, the School Board would change the Policy

(T 639-640,807-808).

The School Board proceeded to the gymnasium and

called the meeting to order The crowd was estimated at

250 to 450 persons (T.641,811). Three Plaintiffs made pre-

sentations favoring a change in the Policy. The crowd’s

response was very cool (1.643), which was the first indi-

cation to the School Board that many in the crowd were

not there to support a change in the Policy (7.644). Mr.

Davis then made a presentation, which included reading

a letter from the local Ministerial Alliance setting forth

the reasons why the Policy should not be changed. The

letter stated, in pertinent part:

|. First, the matter of duplication. Dancing is

already available to those who wish to Partici-

pate at the community center within our com-

munity. Why duplicate the same activity for no

real purpose?

2. Secondly, the matter of responsibility. The

School System should not have to be responsible

tor the conduct of the students participating in

dancing and subsequent activities surrounding

dancing. There would have to be monitors at

any of these dances. Why should school teach-

ers, administrators, et al. be required to attend

any more functions then [sic] are already re-

quired?

3. Thirdly, the matter of time. Students Partici-

pating in dances would be adding just one more

activity to take them away from their studies.

There are already enough extra-curricular activ-

ities for the students to be involved in with the

emphasis on sports competition

4 Fourthly, the matter of social involvement

There is no merit in trying to justify dancing as

a socially-edifying activity. There are more prof-

itable ways for students to interact on a social

Oasis

—"

9

could not be granted by the School Board unless the

Policy was changed, for the request ran counter to the

language “ . . . school premises shall not be used for

purposes of conducting a dance.” (T.125,663). While the

School Board did not formally act upon Plaintiffs’ rental

application, it was understood by all that the request was

denied because the Policy would not be reconsidered

Later that fall, Plaintiffs’ counsel wrote the School

Board again requesting a change in Policy 502.29. The

School Board declined to reconsider the March 10th deci-

sion, and reiterated the belief that a vast majority of the

citizens in the School District did not wish to change the

school’s extracurricular program. The School Board fur-

ther stated the hope that the controversy could ve kept

outside the schoolhouse walls because reopening the

dance issue would disrupt the educational environment

of the school. The letter also stated, “It should be pointed

out that, in this Board’s opinion, whether or not this

district expends funds to sponsor dances is a community

issue, not a religious issue.”> Petitioners filed suit in

December, 1986

-*

wr

SUMMARY OF THE ARGUMENT

Three times Petitioners accuse the Eighth Cir

doing only a “facial neutrality

policy. (Petition, pp.11,12,17) This is not true! Similar t

this Court's approach in Bowen v. Kendrick, 487 US

108 S. Ct. 2562, 2569-70 (1988), the Eighth Circuit first

4 rd ng [ tit ners ; Tri nm part 4

Petition, that the Schoo! Board did n sp nNarges tha

aActTiIONs were 4 3 relic: us nature

_

13

The School Board mernbers testified at trial that they

decided to continue the Policy for moral, educational,

and fiscal concerns, and that an apparent majority in this

socially conservative community did not wish it changed.

In so far as the Policy has a basis in morality, the objec-

tion was not to dancing qua dancing. Rather, the concern

arises out of the view that a dance event is too often

accompanied by such behavior as alcohol and drug

abuse, fighting, and too much attention on teenage sexu-

ality. Many of us, including perhaps those on the Court,

may disagree that there is such a cause and effect rela-

tionship. But such disagreement does not make the Policy

unconstitutional.

If it had been allowed to stand, the trial court's

mandate would have called into question public schoo!

rules and decisions which have their basis in traditional!

morality. Rules against students swearing and using vul-

garity, dress codes barring revealing or provocative attire,

or punishing the possession of sexually explicit maga-

zines are familiar school policies'® and cannot be justified

without falling back on a community’s moral standards

As with Policy 502.29, Petitioners must concede that such

school rules are not inherently religious, and it neces

sarily follows that such rules are not an establishment of

religion.

Justice Jackson, concurring in McCollum v. Board of

Education, 333 U.S. 203, 237-38 (1948),_while fully

"© Cf. Hazelwood School District v. Kuhlmeier, 484 US. 260

(1988) (high school newspaper with articles on teenage sexu

ality); Bethel School District v. Fraser, 478 U.S. 675 (1986) (stu-

dent assembly speech using explicit sexual metaphors)

,

15

197

14971), Establishment Clause doctrine has evolved in this

o~

uurt’s case law since 1971. To survive Establishment

lause analysis, the first requirement in Lemon is that a

statute must have a secular legislative purpose.” The

thrust of that original formulation has now been, in sig-

nificant respects, refocused. Presently, this Court has in-

validated legislation under Lemon’s first prong “only if it

> motivated wholly by an impermissible purpose,”!! or

‘nly when it can be said that the law’s “pre-eminent

purpose is plainly religious in nature.”!? Conversely,

his Court has said that “a statute that is motivated in

part by a religious purpose” does not violate the purpose

? Ty

ng Thus, when government acts either out of rea

ry th t re y bh} soir) rwitht ' ve , 1] r Bare:

sons that are arguably secular, or with mixed secular and

religious purposes the first prong of Lemon is not

ited.'4 Nor has the Court required that a “law’s purpose

ist be unrelated to religion,” for that would requir:

. TM ON -+) . . “oO slat ’

vernment to “show a callous indifference to religious

Bowen v. Kendrick, 487 U.S. at 108 S. Ct. at 257

Lynch v. Donnelly, 465 U.S. 668, 680 (1984

Stone v Graham. 449 US 39 41 (1980) per curiam

Edwards v. Aguillard, 482 U.S. 578, 590 (1987) (“preen

, I) > + "ge sd 5S {‘intya ’ ’ "“o tay h ho a YI

vious purpose )> 14. O1 interference with the decis!

school board] authorities is warranted only when the purp

r : - . ‘+ ’ » , 1] r er, a

r their decisions is clearly religious”) (Powell, J., concu

| Ila . 2 7 2 7. oe 2 : c

Wallace v. Jaffree, 472 U.S. 38, 56 (1985

* See Carter v. Broadlawns Medical Center, 857 F.2d 448, 454

. Cir. 1988) (upholding employme t < r

:,

1 n as chaplain at ty hospital t

it ind relat > t nd x

purr

16

groups.”'> Accordingly, as reformulated in cases since

Lemon, the inquiry is whether the preeminent purpose

behind legislation is to impose a belief or practice that is

plainly religious in nature.

A. When Law and Religion Coincide

The Eighth Circuit held (A-25):

The mere fact a governmental body takes action

that coincides with the principles or desires of a

particular religious group, however, does not

transform the action into an impermissible es-

tablishment of religion.

This Court has repeatedly stated that parallelism be-

tween the beliefs of a particular religion and legislation

does not ipso facto make the law religious for purposes of

the Establishment Clause.'© Rules of conduct consistent

with religious tenets include laws against so-called vic-

timless crimes such as gambling, alcoholism, prostitution,

obscenity, homosexuality, and adultery. As Justice O’Con-

nor stated in her concurring opinion in Wallace v. Jaffree,

472 U.S. at 70:

Chaos would ensue if every such statute were

invalidated under the Establishment Clause. For

example, the State could not criminalize murder

for fear that it would thereby promote the Bibli-

cal command against killing. The task for the

Court is to sort out those statutes and govern-

ment practices whose purpose and effect go

15 Corporation of Presiding Bishop v. Amos, 483 U.S. 327, 335

(1987). See also Walz v. Tax Commission of the City of New York,

397 U.S. 664 (1970); Zorach v. Clauson, 343 U.S. 306, 314 (1952);

Forest Hills Early Learning Center v. Grace Baptist Church, 846

F.2d 260, 263 (4th Cir. 1988), cert. denied, 109 S. Ct. 837 (1989).

16 See, e.g., Bowen v. Kendrick, 487 U.S. at __, 108 S. Ct. at

2571 n.8; McGowan v. Maryland, 366 U.S. 420, 442 (1961).

17

against the grain of religious liberty protected

by the First Amendment.

Likewise, in Harris v. McRae, 448 U.S. 297 (1980), uphold-

ing the Hyde Amendment notwithstanding its vigorous

support by the Roman Catholic Church and the bill’s

chief sponsor being of that denomination,’” the Court

said: “That the Judaeo-Christian religions oppose stealing

does not mean that a State or the Federal Government

may not, consistent with the Establishment Clause, enact

Jaws prohibiting larceny.” Id. at 319.

B. Relevant Decision Maker: The School Board

As stated in Amos, 483 U.S. at 335, the purpose test of

Lemon “aims at preventing the relevant governmental

decision maker . . . from abandoning neutrality and act-

ing with the intent of promoting a particular point of

view in religious matters.” In Amos, the relevant govern-

mental decision maker was Congress, not church lobby-

ists, clerics, and others who supported the amendment

expanding the religious exemption in the Civil Rights Act

of 1964.

In this case, in determining the purpose of the March

1986 decision to retain Policy 502.29, the Eighth Circuit

was correct to look only at the purpose of the School

Board, and not to the supposed “hidden motives” of local

citizens, ministers, and others attending public meetings

of the School Board. See Edwards v. Aguillard, 482 U.S. at

588, 591 (Louisiana legislature as relevant decision

maker); Wallace v. Jaffree, 472 U.S. at 59-60 (Alabama

'7 See Brief of Appellees, pp.173-177, filed in Harris v.

McRae, 448 U.S. 297 (1980).

18

legislature); Larson v. Valente, 456 U.S. 228 (1982) (Minne-

sota legislature).

Petitioners have argued throughout this cause that

because certain citizens in the School District who op-

posed changing the Policy were ministers or “religious”

persons, the School Board’s refusal to repeal the Policy

was thereby freighted with a religious purpose. However,

for the School Board to have taken into account that the

desire of many citizens was to retain the Policy, does not

thereby taint the purposes of the School Board members

with the supposed ratio decidendi of their constituents. An

elected public official may vote in accord with a constitu-

ent’s will without being held to have adopted vicariously

the constituent’s motive, even assuming that hundreds of

School District citizens had only one preeminent motive,

which is manifestly unlikely. One may vote the same way

as others, but not share their underlying motives.

C. Inhibiting Speech and Political Participation

All citizens are allowed to participate equally in pub-

lic policy formulation. To exclude those who are informed

in their moral vision by an underlying religious faith

would deny them freedom of speech and their right to

engage in the political process. Moreover, such a state of

affairs would leave the domain of public policy formula-

tion to none but the non-religious, and to those who

would conceal the true origins of their moral values.

Rather, it would seem that the interplay between the Free

Speech and Establishment Clauses is designed so that all

have space to speak, publicly and with candor.

The Eighth Circuit fully recognized the trial court’s

handling of the testimony of local citizens, including

ministers, was tantamount to violating their free speech

19

and political rights, thus obviously a misapplication of

the Establishment Clause (A-25 to A-26):

[T]his approach to constitutional analysis would

have the effect of disenfranchising religious

groups when they succeed in influencing secu-

lar decisions. In this case, the district court rec-

ognized “[rjeligious groups * * * have an

absolute right to make their views known and to

participate in public discussion of issues,”... .

Nevertheless, the court held “those views may

not prevail,” ... even though these groups have

long been legitimate participants in secular com-

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

Justice Brennan, concurring in McDaniel v. Paty, 435

U.S. 618, 640-41 (1978), provided a clear statement of the

Supreme Court's attitude in this regard:

That public debate of religious ideas, like any

other, may arouse emotion, may incite, may fo-

ment religious divisiveness and strife does not

rob it of constitutional protection. The mere fact

that a purpose of the Establishment Clause is to

reduce or eliminate religious divisiveness or

strife, does not place religious discussion, asso-

ciation, or political participation in a status less

preferred than rights of discussion, association,

and political participation generally. “Adherents

of particular faiths and individual churches fre-

quently take strong positions on public issues

including . . . vigorous advocacy of legal or

constitutional positions. Of course, churches as

much as secular bodies and private citizens

have that right.”

In short, government may not as a goal promote

“safe thinking” with respect to religion and

fence out from political participation those, such

as ministers, whom it regards as over involved

in religion. Religionists no less than members of

20

any other group enjoy the full measure of pro-

tection afforded speech, association, and politi-

cal activity generally. The Establishment Clause,

properly understood, is a shield against any

attempt by government to inhibit religion as it

has done here. It may not be used as a sword to

justify repression of religion or its adherents

from any aspect of public life (footnotes and

citations omitted).

It appears that one of the means by which this Court

has sought to avoid inhibiting freedom of speech and

political participation of citizens is to insist that evidence

of unconstitutional purpose focus on the “relevant gov-

ernmental decision maker.” The Eighth Circuit was cor-

rect to disregard evidence of citizens informing elected

School Board members of their public policy views. Had

the trial court’s conclusions been allowed to stand, such a

result would bé anti-democratic because it would work a

de jure discrimination adverse to the traditional moral

views of “religious” citizens in the relevant political com-

munity. 18

For Petitioners to suppose that government can ig-

nore the moral dimensions of public policy-making is

both naive and an error of law. It is naive, because it

mistakenly confines notions of morality to purely private

matters. That we live in a world of teenage pregnancy,

racism, and drug abuse, would seem more than sufficient

to explode the fallacy that any government, whether na-

tional, state, or local, can safely operate without being

informed, indeed, guided, by a community’s morality. It

is an error of law, because the purpose of the separation

18 See L. Tribe, American Constitutional Law, 1275-84 (2d ed.

1988).

a

21

of church and state in American society is not designed to

exclude the voice of religious-based morality from the

public policy debate. Yet, a considerable part of Peti-

tioners’ evidence that Policy 502.29 was “religious” was

the speech and political activity of local citizens who

happened also to be identified with a religion.

D. The Deferential Motive Analysis

Because of the difficulty in determining the true mo-

tives of a group of lawmakers - as distinguished from

their objective purpose!’ for enacting a statute or pro-

mulgating a particular policy, the Court has avoided

making motive-analysis part of the legal doctrine in most

areas Of constitutional law.2° With the Establishment

Clause. while not abandoning motive-analysis altogether,

the Court has adopted a highly deferential inquiry. When

no religious purpose appears either on the face of the

challenged statute, or in its official legislative history, this

Court has been inclined summarily to announce the first

element of Lemon satisfied and move quickly on to the

“effect” and “entanglement” prongs.?! This Court has, in

19 Justice Scalia distinguished “purpose” from “motive” in

Edwards v. Aguillard, 482 U.S. at 636 (Scalia, J., dissenting).

20 See, e.g., Palmer v. Thompson, 403 U.S. 217, 224-25 (1971)

(“{I]t is extremely difficult for a court to ascertain the motiva-

tion, or collection of different motivations, that lie behind a

legislative enactment.”); United States v. O’Brien, 391 U.S. 367,

383 (1968) (“Inquiries into congressional motives or purpose

are a hazardous matter”).

21 See Mueller v. Allen, 463 U.S. 388, 394-95 (1983), where,

concerning the deferential application of the purpose prong in

Lemon, the Court said: “This reflects, at least in part, our

reluctance to attribute unconstitutional motives to the States,

particularly when a plausible secular purpose for the State’s

program may be discerned from the face of the statute.”

22

most cases, easily found a permissible purpose in a stat-

ute’s language simply by exercising common sense.

Justice O’Connor’s discussion in Wallace v. Jaffree, 472

U.S. at 75, explains the methodology for courts to follow

in deferring to a legislative act that is arguably secular.

Justice O’Connor stated:

Since there is arguably a secular pedagogical

value to a moment of silence in public schools,

courts should find an imprope. purpose behind

such a statute only if the statute on its face, in its

official legislative history, or in its interpretation

by a responsible administrative agency suggests

it has the primary purpose of endorsing prayer.

The Eighth Circuit here proceeded in the very man-

ner suggested (A-22):

[P]laintiffs conceded at oral argument .. . that

extracurricular dancing is a wholly secular ac-

tivity. ... 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.

The Eighth Circuit’s analysis did not stop here, however.

It was Plaintiffs’ “core” argument (A-23) that the School

Board’s actions in leaving the Policy unchanged in March

1986 were “tainted” with wholly religious motives. How-

ever, the trial court’s findings in that regard did not

support, as a matter of law, the inference that the School

Board acted with an unconstitutional purpose. Indeed, if

the trial court’s inference was permitted to stand, it

would raise serious constitutional questions concerning

the rights of elected legislative officials. In the words of

the Eighth Circuit (A-25):

We... find no support for the proposition that a

rule... becomes unconstitutional due only to its

harmony . . . with the personal preferences of

23

the officials taking action. . . . To make govern-

ment action assailable solely on the grounds

plaintiffs suggest would destabilize govern-

mental action that is otherwise neutral... .

We simply do not believe elected government

officials are required to check at the door what-

ever religious background (or lack of it) they

carry with them before they act on rules that are

otherwise unobjectionable under the controlling

Lemon standards.

The Eighth Circuit’s conclusions are supported by the

cases decided in this Court. It is necessary to confine the

probative evidence on legislative motive by reference to

the defined authority of the judicial branch. This was

stated pointedly by Justice O’Connor in Wallace v. Jaffree,

472 U.S. at 74, where she said that inquiry into imper-

missible purpose must be “deferential and limited,” be-

cause “a court has no license to psychoanalyze the

legislators.”22 It would be unseemly for courts to engage

in the business of conducting a virtual Testimonial Inqui-

sition - summoning to the witness stand and probing in

open court the personal religious tenets, backgrounds,

and church affiliations of the relevant lawmakers.2? As

22 A line of cases in this Court holds that judges are

especially to avoid placing lawmakers on the witness stand to

be interrogated as to their motivations back at the time a

statute or rule was debated and adopted. See, e.g., Arlington

Heights v. Metropolitan Housing Development Corp., 429 U.S. 252,

268 n.18 (1977); McGowan v. Maryland, 366 U.S. at 469 (Frank-

furter, J., concurring); United States v. Morgan, 313 U.S. 409, 422

(1941). See also Discount Records, Inc. v. City of North Little Rock,

671 F.2d 1220, 1222 (8th Cir. 1982) (survey of legislators voting

for Sunday closing law not probative of religious purpose).

23 A line cf cases in this Court requires avoidance of

inquiries into the significance of personal religious beliefs to

(Continued on following page)

24

Justice Brennan stated in his concurring opinion in

McDaniel v. Paty, 435 U.S. at 641:

Government may not inquire into the religious

beliefs and motivations of officeholders — it may

not remove them from office merely for making

public statements regarding religion, or ques-

tion whether their legislative actions stem from

religious conviction (citation omitted).

A contrary rule would be tantamount to imposing a

religious test for holding public office, i.e., officials in-

formed by their religious background and faith are disen-

franchised, while officials ultimately moved by non-

religious world views proceed unhindered. See Torcaso v.

Watkins, 367 U.S. 488 (1961) (test oath violative of reli-

gious freedom).

The Eighth Circuit was also correct in holding erro-

neous the trial court’s inferences from personal beliefs of

some School Board members. America has a long and rich

history of religious involvement in progressive move-

ments from abolition in the 19th century to opposition to

the arms race and for famine relief in the late 20th centu-

ry. As the Eighth Circuit said, it is “unrealistic” (A-25) for

Petitioners to suppose lawmakers cannot hold such faith

(Continued from previous page)

either individuals or their denominations, including, presuma-

bly, those of relevant lawmakers. See, e.g., Thomas v. Review

Board, 450 U.S. 707, 716 (1981) (“Courts are not arbiters of

scriptural interpretation.”); NLRB v. Catholic Bishop of Chicago,

440 U.S. 490 (1979) (inappropriate to have NLRB second guess-

ing whether religious reasons given by religious authorities are

pretext); Serbian Eastern Orthodox v. Milivojevich, 426 U.S. 696

(1976) (no judicial review of dispute concerning meaning of

church rules and doctrine); United States v. Ballard, 322 U.S. 78

(1944) (courts cannot challenge the truth or falsity of a reli-

gious claim, only assess its sincerity).

25

beliefs and retain their positions as elected public sur-

vants. See L. Tribe, American Constitutional Law 1277, 1280

(2d ed. 1988).

Il.

The second prong of the Lemon test is an objective

measurement requiring evidence, empirical or other-

wise, that in its operation, a law has the primary effect

of advancing or endorsing religion.

In applying the second prong of Lemon, this Court

asks whether the principal or primary effect of the legis-

lation is to “advance,” “endorse,” “inhibit” or “disap-

prove” religion. County of Allegheny v. American Civil

Liberties Union, __ U.S. __, 109 S. Ct. 3086, 3100-01

(1989); Lemon, 403 U.S. at 612. One challenging a law

must produce some empirical or other palpable evidence

of religious impact. Widmar v. Vincent, 454 U.S. 263,

273-75 (1981); Amos, 483 U.S. at 337.

A. “Principal” or “Primary” Effect

The Eighth Circuit correctly held (A-22 to A-23):

[T]he record does not fairly demonstrate that

any religious doctrine is principally or primarily

advanced by the Board’s enforcement of the no-

dancing rule. No student is prohibited from en-

gaging in or refraining from extracurricular

dancing should they choose to do so. Any ar-

guably religious effect of the rule is indirect,

remote, and incidental. To the extent plaintiffs

contend the rule impermissibly endorses or con-

veys a message of governmental preference for a

particular religious viewpoint concerning social

dancing, 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

26

religion relevant in any way to a person’s stand-

ing in the political community (citations omit-

ted).’ ”

On numerous occasions, this Court has found that an

incidental or de minimis effect on religion is not violative

of the Constitution.?4

B. Objective Observer

With respect to the “endorsement” aspect of the re-

view, Justice O’Connor has said that whether or not gov-

ernmental action endorses or disapproves religion must

be considered from the viewpoint of a “reasonable ob-

server” or “objective observer.” County of Allegheny, __

U.S. at __, 109 S. Ct. at 3121 (O’Connor, J., concurring);

Witters v. Washington Dept. of Services for the Blind, 474

U.S. at 493, (O’Connor, J., concurring in part and concur-

ring in judgment); Wallace v. Jaffree, 472 U.S. at 76 (O’Con-

nor, J., concurring).

Petitioners have clearly disregarded the “objective

observer” portion of the endorsement test, relying rather

upon subjective feelings and appearances. The only evi-

dence at trial of the Policy’s impact was the testimony of

the Petitioners. It would indeed be remarkable if Peti-

tioners, having filed a lawsuit, did not now assert that

they “felt” offended by the Policy. But if that alone made

24 See, e.g., Bowen v. Kendrick, 487 U.S. __, 108 S. Ct. 2562

(1988); Corporation of Presiding Bishop v. Amos, 483 U.S. 327

(1987); Witters v. Washington Department of Services for the Blind,

474 U.S. 481 (1986); Lynch v. Donnelly, 46> U.S. 668; Marsh v.

Chambers, 463 U.S. 783 (1983); Mueller v. Allen, 463 U.S. 388

(1983); Widmar v. Vincent, 454 U.S. 263 (1981); Harris v. McRae,

448 U.S. 297 (1980); McGowan v. Maryland, 366 U.S. 420 (1961);

Zorach v. Clauson, 343 U.S. 306 (1952).

$e ae tneetnnnes em

27

out a violation of the “effect” test, every Establishment

Clause case would be won by the plaintiffs.

Policy 502.29 operates in the “negative,” in that it

does not require any student to do anything. The Policy

does not prohibit any student from engaging in or re-

fraining from social dancing should he or she choose to

do so. Indeed, the uncontradicted testimony was that

student social dances have routinely been held each year

off school premises; no student has been disciplined by

the school for such activity; students have engaged in

social dancing on school-sponsored trips; a student was

allowed to study dancing in a nearby city for credit; and

dancing has been accepted in activities such as school

plays, athletic events, and musical productions

(" 307,679-684). Further, there was no testimony concern-

ing harassment of one student by another as a result of

the Policy, and no evidence of peer pressure to conform

to a no-dancing view.

C. Secular Nature of Social Dancing

Petitioners admit in their Petition (p.12) that social

dancing is a wholly secular activity. This fact was also

acknowledged by the trial court, admitted by Petitioners

during oral argument before the Eighth Circuit, and

found by the Eighth Circuit.

What appears in this Court’s analysis, when applying

the Lemon test, is that the rigor of the purpose and effect

prongs are made more strict or relaxed, as the case may

be, depending on whether the challenged statute is or is

not “inherently religious.” For example, in Bowen v. Ken-

drick, 487 U.S. at __, 108 S. Ct. at 2572, the Court stated:

The services to be provided under the AFLA are

not religious in character. . . . [I]t is clear that the

28

AFLA takes a particular approach toward deal-

ing with adolescent sexuality and pregnancy -

for example, two of its stated purposes are to

“promote self-discipline and other prudent ap-

proaches to the problem of adolescent premari-

tal sexual relations. . . .” [B]ut again, that

approach is not inherently religious, although it

may coincide with the approach taken by certain

religions (emphasis added).

The Court further stated, 108 S. Ct. at 2576:

The facially neutral projects authorized by the

AFLA - including pregnancy testing, adoption

counseling and referral services, prenatal and

postnatal care . . . are not themselves “specifically

religious activities,” and they are not converted

into such activities by the fact that they are

carried out by organizations with religious affil-

iations (emphasis added).

Likewise, in Stone v. Graham, 449 U.S. at 41-42, this

Court stated:

The pre-eminent purpose of posting the Ten

Commandments on schoolroom walls is plainly

religious in nature. The Ten Commandments are

undeniably a sacred text in the Jewish and Chris-

tian faiths, and no legislative recitation of a

supposed secular purpose can blind us to that

fact. The Commandments do not confine them-

selves to arguably secular matters, such as honor-

ing one’s parents, killing or murder, adultery,

stealing, false witness, and covetousness (em-

phasis added).

The measure of a “law respecting an establishment of

religion,” from the objective observer’s viewpoint, is

necessarily affected by whether the law or policy in ques-

” 4a“a st

tion is “inherently religious,” “clearly religious,” “plainly

mes

oe

LAE

29

’

religious,” or not “arguably secular,”25 i.e., “religious” in

the conventional sense of that which is widely regarded

as devotional, spiritual, liturgical, or as involving wor-

ship, a confession, a creed, or veneration of a deity. By

way of example, Professor Laurence Tribe suggests:

[NJo plausible establishment clause challenge

could be made against the use of the eagles as

an official symbol, despite its religious signifi-

cance to some people; but a decisive challenge

could be launched against use of a cross, whose

religious significance is clear to nearly all.

L. Tribe, American Constitutional Law 1187 (2d ed. 1988).

Policy 502.29 is facially neutral and involves an ad-

mittedly secular activity. Because the Policy is not “inher-

ently religious,” it thereby cannot have the primary effect

of advancing or endorsing religion.

a

vr

°° See also Wallace v. Jaffree, 472 U.S. at 58 (“wholly reli-

gious character”); Epperson v. Arkansas, 393 U.S. 97, 108 (1968)

(“sectarian conviction”); Abingion School District v. Schempp,

374 U.S. at 224 ("pervading religious character”); Engel v. Vi-

tale, 370 U.S. 421, 424-25 (1962) (“very religious”).

30

CONCLUSION

In light of the foregoing authorities and arguments,

the School District requests that the Petition for Writ of

Certiorari be denied.

Respectfully submitted,

Ransom A E us, III*

Ransom A. ELLs, Jr.

Rick E. Tempe

E.uts, Kina, E wis

& BLack

901 St. Louis St., Ste. 600

Springfield, MO 65806

417/866-5091

Cart H. Esseck

218 School of Law

Columbia, MO 65211

‘ 314/882-3035

*Counsel of Record

March 15, 1990