Opposition Brief — Stark v. Independent School District No. 640

. FILED

N }

CY 1. MAR 3S 9998

Kohala *

No. 97-1381

In The =

- Supreme Court of the Huited States

October Term, 1997

MATTHEW STARK and MARCIA NEELY,

Petitioners,

VS.

INDEPENDENT SCHOOL DISTRICT NO. 640,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

ERICK G. KAARDAL PAT A. CIPOLLONE

TRIMBLE & ASSOCIATES Counsel of Record

11700 Wayzata Blvd. One Columbus Plaza

Minnetonka, MN 55305 New Haven, CT 06510-3326

(612) 797-7477 (203) 772-2130

C. HUNTER WIGGINS

KIRKLAND & ELLIS

655 15th Street, N.W.

Washington, D.C. 20005

(202) 879-5000

Attorneys for Respondent

145518 (800) 274-3321 * (800) 359-6859

A DIVISION OF COUNSEL PRESS

i

QUESTIONS PRESENTED

1. Whether the operation of a public school, operated

exclusively by a public school district, offering the same secular

public school curriculum as is offered throughout the district

and open to all students is consistent with the Establishment

Clause?

2. Whether a public school district’s neutral policy, now

mandated by Minnesota law, Minn. Stat. Ann. § 126.699, of

accommodating all reasonable parental requests for curriculum

exemptions and alternative instruction for their children,

regardless of motivation, is consistent with the Establishment

Clause?

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TABLE OF CONTENTS

Page

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Fable Of AWG 5os knw cndeconestiones esse. iv

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A. The Petition Misrepresents The Central Facts of

FUR GR. occ vickcutacaeureieel ceases 3

1. The Vesta School Is A Public School In All

AP Pr ee ert eee 3

2. ISD 640 Offers The Same Secular

Curriculum — Including Technology

Instruction — At The Vesta And Wabasso

SURGE, 5 .0.c5cdnkc hee etse kes 7

3. ISD 640’s Neutral Policy Of

Accommodating Parental Exemption

Requests, Mandated By Minn. Stat. Ann.

§ 126.699, Operates In The Same Way At

Both The Vesta and Wabasso Schools. ... 8

DD. PROCHUUIRIE TINNY bi kn bene e eter eee bean 10

Reasons for Denying the Writ .................... 12

I. The Eighth Circuit Court’s Opinion Is Consistent

With Epperson And Edwards. .............. 13

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Contents

Page

II. The Eighth Circuit’s Opinion Is Consistent With

A EE ay a ee ae ee re 18

III. The School District’s Actions In This Case

Exemplify The Ideals Of The First

SIRES An Oe eg 21

ee ee ee ya 24

iv

TABLE OF AUTHORITIES

Page

Cases Cited:

Agostini v. Felton, 117 S. Ct. 1997 (1997) ..... m ta, 33,15

Bauchman v. West High School, 900 F. Supp. 254 (D.

UE DOOR Pac ahh csadUCbs eed e Cre ee eeaER 17

Battles v. Anne Arundel County Board of Education, 904

es SV Ge es SOD. oe car vaevednkeweees 16

Board of Educ. of Kiryas Joel Village School Dist. v.

Goomenal, SEE Wi. Ges CIP) ns cwcsdcceescens 18, 19, 20

Bollenbach v. Board of Education, 659 F. Supp. 1450

CMR SUES ib 0k wc ceaeckabekeey (eee ween 16

Bowen v. Kendrick, 487 U.S. 589 (1988) ........... 10, 22

Capital Square Review and Advisory Board v. Pinette,

Sad We TOR AEOED 8 oie ck cadeaes Ce Reaaeenen 20, 21

Clayton by Clayton v. Place, 884 F.2d 376 (8th Cir.

pn OEE. CEA E REE EE LER EAE Ee Ee eee 10

Edwards v. Aguillard, 482 U.S. 578 (1986) ......... 13, 14

Epperson v. Arkansas, 393 U.S. 97 (1968) ......... 13, 14

Everson v. Bd. of Educ., 330 U.S. 1 (1947) ......... 4

HSU y. Roslyn Union Free School Dist., 85 F.3d 839 (2d

| Br ee ere per en eee ae 15

Authorities

Page

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

Mozert v. Hawkins County Board of Education, 827 F.2d

1058 (6th Cir. 1987), cert. denied, 484 U.S. 66

9 | Brae i ra pe he hr ta go gcrmaa tye ee 16, 17

Mueller v. Allen, 463 U.S. 388 (1983) ............. 13, 22

Parents Ass'n of P.S. 16 v. Quinones, 803 F.2d 1235 (2nd

Ck CHE Wiese chu eealeten ees eae 15, 16

Rosenburger v. Rector & Visitors of the Univ. of Virginia,

Dae Sh Ee CPOE Shee caves edesee erie 1S, 18, 22, 23

School District of Grand Rapids v. Ball, 473 U.S. 373

Co) Apert Serannpemnanepeney arin Mob Way Gr here 12

Spence v. Bailey, 465 F.2d 797 (6th Cir. 1972) ...... 15

Swanson v. Guthrie Independent School District No. I-

ee Fe ft: fk Rea ae 16

Widmar v. Vincent, 454 U.S. 263 (1981) ........... 22

Wisconsin v. Yoder, 406 U.S. 205 (1972) ........... 15

Witters v. Washington Dep’t of Servs. For the Blind, 474

kOe Re irre ry te ee eee 22

Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1

CPP) a6 denne aOR serene eeeesekseuees 13, 18, 22

Zorach v. Clausen, 343 U.S. 306 (1952) ........... 15

vi

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3

Authorities

Page

Statute Cited:

Minn. Stat. AMM: § LAGGI cc cceecidvvesceen i, 2, 8, 11, 23

United States Constitution Cited:

Picnt Amma 6 5.65 oki oes skit te 21

Rule Cited:

United States Supreme Court Rule 10 .............. 3

-

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APPENDIX

Appendix A — Excerpts Of Transcript Of Proceedings

SRE SUOVOUNEEE Be EOD etc ccccecsccccccsccee

Appendix B — Excerpts Of Plaintiffs’ Memorandum In

Support Of Plaintiffs’ Motion For Summary Judgment

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Appendix C — Excerpts From Transcript Of Proceedings

Se UE Ca ce thaenk Wied andeaabod os

Page

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STATEMENT OF THE CASE

This case involves a public school district employing public

school teachers to teach the school district’s standard public school

curriculum in a public school. It also involves the operation of a

state-mandated neutral policy of accommodating all parental

curriculum objections. Petitioners, however, misrepresent the central

facts of this case, the applicable law, and the sound decision of the

United States Court of Appeals for the Eighth Circuit in Stark v.

Independent School District No. 640, 123 F.3d 1068 (1997). As a

result, the purported question that Petitioners present to this Court

is founded solely on these factual distortions, and bears no

resemblance to the real issues in this case.

Specifically, Petitioners contend that this case involves the

opening of a religious school by a public school district, which is

operated exclusively for the benefit of one sect, where strict religious

separatism is enforced by the school district, and where the district

has purposely and materially altered the curriculum in order to

conform to a particular religious dogma. These fantastic suggestions

are, of course, all falsehoods. Petitioners’ contentions have no

support in the record and are contrary to the real facts of this case

which are clearly recited in the Eighth Circuit Court’s decision.

The petition, therefore, is founded on little more than the assertions

of factual error, and presents no cause for this Court’s review.

The true facts of this case do not give rise to any violation of

the Establishment Clause. This case concerns a public school

operated by Independent School District No. 640 in Vesta,

Minnesota (“the School District” or “ISD 640”). The Vesta school

is a public school in all respects, open to any student who wishes

to attend. It is under the complete control of the public school

district, and offers the same secular curriculum as the other public

school operated by the School Disirict (the Wabasso school). The

School District alone has full authority over the Vesta school and

is responsible for hiring and supervising teachers, providing the

curriculum, and selecting all books and instructional materials.

2

Since 1985, the School District has had a neutral policy —

now mandated by Minnesota state law, Minn. Stat. Ann. § 126.699

— of accommodating parental requests for exemption from aspects

of the public school curriculum that violate the consciences of

parents and/or their children. ISD 640 has implemented its neutral

policy on numerous occasions in the past, granting various requests

of other parents for exemption. In this case, the parents of individual

students attending the Vesta public school requested exemptions

from computer and technology education. These individual

requests were granted — as they had been at the Wabasso school!

— and alternative education was provided.

The Eighth Circuit Court’s decision correctly held that

operating a public school and implementing a state-mandated

neutral accommodation policy do not violate the Establishment

Clause. The court’s decision properly reversed an unprecedented

district court opinion permanently closing down a Minnesota public

school and enjoining the operation of ISD 640’s longstanding

neutral policy, now mandated by Minnesota law, of granting

conscience-based parental requests for exemption of their children

from aspects of public school curriculum. The Eighth Circuit

Court’s decision is founded solidly on the well-established case

law of this Court, and is consistent with the law of all other federal

courts.

1. In their brief, Petitioners state that ISD 640’s neutral policy

operates throughout the district and that these particular exemption

requests had also been accomodated at the Wabasso school. Petition

for Certisrari at 3. However, Petitioners never explain why the same

exact policy that is constitutional when employed at the Wabasso

school, somehow becomes unconstitutional 14 miles away at the Vesta

school. In truth, whether the students are accommodated at the Vesta

school or Wabasso School is of no constitutional moment. Most recently,

this Court recognized in Agostini v. Feiton, 117 S. Ct. 1997 (1997) that

it is neither “sensible” nor “sound” to propound a legal doctrine in

which “the only difference between a constitutional program and an

unconstitutional one is the location of the classroom ....” Jd. at 2012.

Ay hee 8 8

3

A. The Petition Misrepresents The Central Facts of This

Case.

Petitioners misrepresent the most basic facts of this case. As

outlined below, even more telling than the facts Petitioners attempt

to distort are those they fail to reveal to this Court. Indeed,

Petitioners’ brief amounts to little more than a claim of factual

error. This Court’s Rules, however, are clear: “A petition for a writ

of certiorari is rarely granted when the asserted error consists of

erroneous factual findings or the misapplication of a properly stated

rule of law.” United States Supreme Court Rule 10. Petitioners’

eleventh-hour attempt to reargue the facts of this case — which

Petitioners themselves recognized as undisputed below? — is far

too late and certainly does not merit Supreme Court review. A

petition for certiorari should not be granted based on claims of

alleged factual errors, especially when those claims have absolutely

no support in the record.

1. The Vesta School Is A Public School In All Respects.

Independent School District No. 640 is a public school district

located in rural southwestern Minnesota and covers approximately

2. Petitioners’ application for a writ of certiorari is founded on an

alleged factual dispute. However, in every other brief filed by the

Petitioners in this case, including all of their briefs on appeal, they

stipulated that the facts of this case are undisputed and repeatedly stated

so. Indeed, Petitioners filed their own motion for summary judgment in

the district court. Petitioners never objected to any of the record

evidence or testimony, including any affidavits. Further, during oral

argument On cross summary judgment motions in the district court, after

the close of discovery and in light of all record evidence, counsel for

the Petitioners expressly stated that “one of the few things the parties

agree on is that the facts are undisputed, and I think the core nucleus

of facts is relatively small.” Transcript of Summary Judgment Argument

at 3 (Appendix C). If a Petition for Certiorari is not to be based on alleged

factual errors, then a fortiori it cannot be the appropriate vehicle for

factual disputes that were never raised during the entire proceeding in

the district court, nor ever suggested during the appeal of this case.

4

225 square miles of sparsely populated, primarily agricultural land,

which includes the towns of Vesta and Wabasso. School District

enrollment in the elementary grades is approximately 200 students

per year. The School District operates two public schools, one in

Wabasso and one in Vesta.’

The Vesta school is a public school in all respects. Stark v.

ISD 640, 123 F.3d 1068, 1073-74 (8th Cir. 1997). As the Eighth

Circuit Court correctly found, the Vesta school is open to any

student who wishes to attend. Jd. The uncontradicted record

establishes that ISD 640 has given all students in the district their

choice of either school; no one has ever been turned away from

either Vesta or Wabasso.*

3. For several years prior to 1984, ISD 640 operated a public

elementary school in Vesta. In May, 1984, however, the School District

was forced to close the school for economic reasons. Stark v. ISD 640,

123 F.3d at 1070. During the 1992-93 school year, a group of Vesta

parents approached School Superintendent George Bates about the

possibility of reopening a public elementary school in Vesta. The

undisputed facts establish that each of these individual parents had

particular secular reasons for requesting the reopening of a public schooi

in Vesta and, ultimately, for deciding to send their children to the Vesta

school. Jd. at 1071. The School Board discussed the proposal to reopen

a public school in Vesta and held several public meetings regarding the

proposal. /d. at 1071. The Board ultimately decided to reopen the Vesta

public school using a multi-age classroom. There were also multi-age

classrooms at Wabasso. The uncontraverted record establishes that the

School District decided to reopen the Vesta school for purely secular

reasons including numerous educational and financial reasons. This

Court made clear forty years ago that “[ijt is much too late to argue that

legislation intended to facilitate the opportunity of children to get a

secular education serves no public purpose.” Everson v. Bd. of Educ.,

330 U.S. 1, 7 (1947).

4. The record is undisputed on this point: every student in the

School District has been able to attend the public elementary school of

(Cont'd)

—————————E———EOE—ee—Ooo

5

Like the Wabasso school, the School District alone has sole

and complete authority over all aspects of the Vesta public school

including, but not limited to, operating the school; hiring,

supervising, and evaluating teachers and teachers’ aides;> setting

the curriculum and selecting all books and other instructional

materials used at the school. Jd. at 1071. Therefore, Petitioners’

false claim that the Vesta public school is some sort of “joint

venture” between ISD 640 and a religious group is utterly without

factual support.® Indeed, it is flatly contradicted by the

overwhelming and — up until now — undisputed record evidence.

(Cont’d)

his or her choice. No student has ever been denied the opportunity to

attend the Vesta school. Indeed, contrary to Petitioners’ unsupported

assertions, in May 1993 the School District solicited students from

throughout the district for its multi-age classrooms for the 1993-94

school year, including for the multi-age classroom at the Vesta school.

This was made clear in the testimony of the school superintendent. The

opening of the Vesta public school had also been repeatedly announced

to the public at several open hearings conducted by the School Board.

Fifty-four students registered for multi-aged classrooms for the 1993-

94 school year. Thirty-five students applied for the Wabasso multi-age

classrooms; nineteen applied for the Vesta multi-age classroom. The

School District was able to honor the requests of all students regarding

their choice of schools.

5. The two teachers at the Vesta school were, of course, hired

without regard to religion. Ironically, it is only Petitioners themselves

who have ever been interested in the religious beliefs of everyone

affiliated with the Vesta school, including School Board members,

teachers, students, and parents. During discovery in the case, Petitioners

questioned both teachers about their personal religious beliefs and

established for the record that neither of them subscribes to the

“Brethren” belief system. (Both are Lutherans.) Further, the School

District does not collect information, nor does the record contain

information, concerning the religious beliefs of the students at either

the Vesta or Wabasso schools.

6. In fact, Petitioners’ suggestion that the Vesta school is some

(Cont'd)

6

ISD 640 exercises precisely the same rights and authority at

the Vesta school as it does at the Wabasso school. The parents of

the students at the Vesta school are accorded the same rights as the

parents of students at the Wabasso school — no more, no less.

Any student in the district who wishes to attend either the Vesta

school or the Wabasso school may do so.

(Cont'd)

sort of a “joint enterprise” with a religious sect is belied not only by the

entire factual record, but also by the only piece of evidence that

Petitioners claim somehow supports this contention. Specifically, the

Lease that Petitioners attempt to rely on, even to the extent it is relevant,

expressly provides that: (1) the Vesta school shall be operated

exclusively by the School District and shall be “a public school for any

resident student” in the district (Art. I, § 1); (2) the School District is

solely responsible for hiring and supervising teachers and teaching staff

(Art. I, § 2); (3) the School District alone establishes the curriculum

and rules for the Vesta school, “in compliance with state laws and rules”

(Art. I, § 4); (4) the School District alone is responsible for selecting

and providing “such classroom materials as it deems necessary for the

instruction of students” (Art. I, § 5); (5) the School District retains the

“sole discretion” regarding approval of any textbooks or instructional

materials (Art. I, § 5); (6) “All policies adopted by the School Board of

the School District ... shall apply” at the Vesta school (Art. I,

§ 11); (7) no religious symbols or artifacts would be displayed at the

school and no religious instruction would take place (Art. II,

§ 9); and (8) any requested exemption from computer education at the

school would be granted only “to the extent permitted under applicable

law and rules and regulations adopted by the School Board of the School

District” (Art. I, § 6). See also Stark v. ISD 640, 123 F.3d at 1071. The

document cited by Petitioners, therefore, only confirms the other

voluminous and uncontradicted record evidence proving that the Vesta

school is a public school in all respects, and that the School District’s

neutral exemption policy operates in the same manner at the Vesta

school as it does at Wabasso. Further, in granting the lessor’s Motion to

Dismiss early in the case, even the district court found that the Lease,

on its face, did not violate any constitutional provisions.

7

2. ISD 640 Offers The Same Secular Curriculum —

Including Technology Instruction — At The Vesta And

Wabasso Schools.

The academic curriculum offered by ISD 640 at the Vesta

school is the same secular curriculum the district offers at Wabasso

and “has not been altered in any way.” Stark v. ISD 640, 123 F.3d

at 1074. This includes computer and audio/visual instruction which,

as the Eighth Circuit Court affirmed, are available as part of the

curriculum offered at the Vesta school.’ Jd. In fact, computers, a

copy machine, a fax machine, and other electronic equipment are

physically present and used in the Vesta school. Religion plays no

role at the Vesta or Wabasso schools: no religious instruction takes

place and no religious symbols or artifacts are present at either

school. Jd. at 1072.

In addition to employing the same secular curriculum, all

School District policies apply equally at the Wabasso and Vesta

schools. In short, computer education — the only aspect of the

Vesta curriculum that Petitioners have placed at issue in this case

— is offered as part of the curriculum at the Vesta school. Indeed,

contrary to Petitioners’ contention, not all current students at the

7. Contrary to the undisputed testimony in the record from

numerous witnesses, including the school superintendent and the two

teachers employed at the Vesta school, petitioners now make the

unsupported claim that technology is not available at the Vesta school.

In addition to the voluminous and uncontradicted record evidence

establishing that computer, technology, and audio/visual education is

available at the Vesta school, an amicus brief submitted below on the

School District’s behalf by unanimous vote of the Wabasso Education

Association (“WEA”) (the local teachers’ union) included photographs

of the computer equipment, fax machine, and other technological

equipment available to students in the classroom at the Vesta school.

All 29 local teachers who belong to the WEA and teach in ISD 640

voted to file their amicus brief because they were “appalled at the factual

misrepresentations present” in the Petitioners’ briefs below and now in

this Court, which “do not describe what exists in Vesta, Minnesota.”

8

Vesta school have requested an exemption from the computer

curriculum and the computer equipment available at Vesta is being

used.

3. ISD 640’s Neutral Policy Of Accommodating Parental

Exemption Requests, Mandated By Minn. Stat. Ann.

§ 126.699, Operates In The Same Way At Both The Vesta

and Wabasso Schools.

Since 1985, the School District has had a policy of

accommodating parental requests for exemption from aspects of

the curriculum that violate the consciences of parents and/or their

children. Minnesota state law now requires all school districts to

establish such a neutral procedure to accommodate conscience-

based parental requests for exemption from public school

curriculum and instructional materials. Minn. Stat. Ann. § 126.699.

It is undisputed that, over the years, ISD 640 has received numerous

objections to aspects of the curriculum from various parents and

students and, consequently, many requests for exemptions and

alternative instruction. Examples include requests for exemptions

from drug education, self-esteem training, computer use, certain

books, certain audio and visual presentations, and sex education.

Stark v. ISD 640, 123 F.3d at 1074.

When parents make a reasonable request for exemption from

an aspect of the public school curriculum, the School District —

as it must under state law — routinely grants the exemption and

arranges for alternative education. There is no evidence that the

School District has ever denied such a request. To the contrary, the

record establishes that ISD 640 has implemented its neutral policy

on numerous occasions in the past, granting the various exemption

requests of other parents, regardless of motivation. Stark v. ISD

640 at 1074. From the School District’s perspective, the parental

motivation for particular exemption requests — religious or

otherwise — is immaterial, because Minnesota state law requires

school districts to accommodate all reasonable parental requests

————

9

for exemption. The School District simply takes such requests at

face value, assumes the good faith of local parents, and attempts to

accommodate them. /d. at 1074 (“The record shows that the district

honors all parental exemption requests, regardless of motivation.”).

Further, the record reflects — and current Minnesota state law

requires — that ISD 640 will continue to implement its neutral

policy to accommodate future reasonable parental exemption

requests.

Faced with a record replete with evidence supporting the

Eighth Circuit’s decision, Petitioners attempt to conjure up an

argument by focusing on portions of one letter written by a private

citizen.* However, they ignore the testimony of the members of

the School Board who made the decision to open the Vesta public

school after several public hearings and in full compliance with

the law. The only actions that are relevant here — as in any case

alleging a constitutional violation — are those of the state actor,

8. Petitioners rely almost exclusively on a letter written by Lloyd

Paskewitz, a private citizen and the lessor of the classroom space that

houses the Vesta school. Even on its face, however, this letter does not

support Petitioners’ misrepresentations. To the contrary, the letter shows

that Mr. Paskewitz, along with everyone else, understood from the

beginning that the Vesta school would be a public school with a secular

curriculum, run exclusively by ISD 640, and open to all children. It

states that “[w]e have no objection to it being a public school,” and that

“[w]e have also heard that there might be others besides the Brethren

that would want their children enrolled at Vesta.” However, the real

point is that this letter is irrelevant to the only issue in this case: whether

a state actor — the School District — has taken actions that somehow

violate the Establishment Clause. No private citizen’s actions — neither

those of Mr. Paskewitz nor of anyone else — are at issue. Indeed, early

in this litigation the district court itself dismissed Petitioners’ claims

against Mr. Paskewitz. In doing so, the district court found that on its

face the Lease between Mr. Paskewitz and the School District did not

violate the Constitution. Petitioners never appealed this ruling.

10

ISD 640. Private citizens cannot violate the Establishment Clause.?

Petitioners can cite absolutely no evidence of any improper

motivation or action on the part of ISD 640. The Eighth Circuit’s

opinion is well-founded on uncontraverted record evidence,

including numerous relevant documents, discovery responses, and

the testimony of over twenty witnesses, among them two successive

school superintendents, members of the School Board, both Vesta

teachers, a number of area parents, and even experts. Petitioners

ignore this record, and do not provide a single record cite in support

of their false version of the facts. Consequently their petition

presents this Court with a new-found and unsupported factual

dispute.

B. Proceedings Below

Petitioners — who live nearly 100 miles away from the Vesta

school and have no children in the school system — commenced

this suit nearly three years ago seeking to have the Vesta public

school closed by court order and to prevent ISD 640 from

implementing its neutral accommodation policy that is mandated

by state law. They filed suit in a court far away from ISD 640, and

9. As the Eighth Circuit Court correctly determined, the fact that

the School District’s actions “coincide with the desires of certain parents

does not mean that the Establishment Clause has been violated.” Stark

v. ISD 640 at 1075 (8th Cir. 1997). See also Bowen v. Kendrick, 487 U.S.

589, 603, n.8 (1988) (statute does not violate the Establishment Clause

“simply because some of the goals of the statute coincide with the beliefs

of certain religious organizations”); Clayton by Clayton v. Place, 884

F.2d 376, 380 (8th Cir. 1989) (finding “no support” for the proposition

that government action “becomes unconstitutional due only to its

harmony with the religious preferences of constituents”). Nor, as

Petitioners seem to suggest, do citizens lose their fundamental right to

petition the government simply by virtue of their religious beliefs, or

because they have a personal religious motivation for doing so. See

Clayton, 884 F.2d at 380 (religious groups “have an absolute right to

make their views known and to participate in public issues”).

Ne ee ee

1]

sued not only the School District, but also each member of the

School Board and several Vesta parents. They even seemingly

attempted to sue the adherents of an entire religion (although they

apparently never attempted proper service). During this case,

Petitioners conducted extensive discovery, including several

depositions, numerous affidavits, requests for voluminous

documents, and numerous interrogatories (none of which Petitioners

even reference in their brief). Defense of the case has required

hundreds of pages of briefs in each of at least six separate briefings

in three Courts. The public school system in ISD 640 has been

disrupted. The energies and resources of school administrators,

teachers, parents and students have been drained.

ISD 640 was the only defendant remaining in the case by the

time cross-motions for summary judgment were filed in the district

court. On August 22, 1996, the district court — in an unprecedented

holding — granted summary judgment to the Petitioners and

issued a vague and sweeping injunction closing the Vesta public

school and preventing the School District from implementing its

neutral policy of granting parental exemption requests. Because

this neutral accommodation policy is now mandated by Minn.

Stat. Ann. § 126.699, the district court’s ruling called into question

the constitutionality of that law. Im addition, the broad injunction

prevented the operation of this policy at “any school,” threatening

not only the other public schoo! in the district at Wabasso, but also

implicitly calling into question the constitutional legitimacy of all

other public schools in Minnesota where the law is implemented.

Moreover, in holding expressly that the operation of a public

school by a public school district “lacks a secular purpose,” the

district court’s ruling stood virtually alone in the entire history of

Establishment Clause jurisprudence, and contradicted the

overwhelming weight of Supreme Court and Eighth Circuit

precedent. Indeed, as the Eighth Circuit Court recognized, the

district court’s decision was errant in many respects, not the least

12

of which was that it relied primarily on the portion of School

District of Grand Rapids v. Ball, 473 U.S. 373 (1985), that was

explicitly overruled by Agostini v. Felton, 117 S. Ct. 1997, 2006-

2017 (1997), subsequent to the district court’s decision.

The district court ordered the closing of the Vesta public school

just days before the school was scheduled to reopen for fall classes.

ISD 640 requested a stay of the ruling on the logical grounds that

the immediate closing of one of only two public schools in ISD

640 on such short notice would have caused substantial disruption

for the district and its students. Nevertheless, ISD 640’s request

for a stay was summarily denied by the district court.

On emergency motion by ISD 640, the Eighth Circuit Court

issued a stay pending appeal. Ultimately, the Eighth Circuit

reversed the unprecedented district court holding and properly

decided the case applying the well-settled Establishment Clause

law of this Court. Petitioners’ request for en banc rehearing of the

case was denied.

REASONS FOR DENYING THE WRIT

Petitioners’ legal arguments are founded solely on their baseless

claims of factual error and do not warrant Supreme Court review.

The Eighth Circuit Court’s opinion is based solidly on — and

indeed compelled by — the settled and sound precedent of both

the Eighth Circuit and this Court.'° Petitioners’ contortion of the

10. The Eighth Circuit correctly held that ISD 640’s neutral

actions fully comply with the requirements of the Lemon test. Stark v.

ISD 640 at 1073-1075, citing Lemon v. Kurtzman, 403 U.S. 602, 612-13

(1971). The Court found that ISD 640’s actions had a number of valid

secular purposes, did not have the primary effect of advancing or

endorsing religious beliefs, and did not result in “excessive

entanglement,” but instead promoted “less, rather than more involvement

(Cont'd)

13

facts to bolster their strained legal arguments is a tacit but telling

admission that they have no constitutional argument under the

real facts of this case. Indeed, Petitioners fail to cite any of the

record in this case. Petitioners nevertheless cite three reasons they

claim support their application for a writ — each of which is already

directly addressed and properly refuted in the Eighth Circuit Court’s

opinion. They are considered in turn below.

I. THE EIGHTH CIRCUIT COURT’S OPINION IS

CONSISTENT WITH EPPERSON AND EDWARDS.

This is not a Creationism case. Petitioners nevertheless make

the misguided argument that the Eighth Circuit’s decision here

conflicts with Edwards v. Aguillard, 482 U.S. 578 (1986), and

Epperson v. Arkansas, 393 U.S. 97 (1968). The Epperson Court

struck down an Arkansas statute criminalizing the teaching of the

theory of evolution to any student in any public school or university

in the state. In Edwards, the Court invalidated the Louisiana

Creationism Act, which required creationism to be taught to all

students in public elementary and secondary schools where

evolution was taught. Both Epperson and Edwards, then, involved

the state-mandated alteration of the substantive curriculum of every

public school for all students in those schools. As the Eighth Circuit

(Cont'd)

with religion.” Jd. As the Court stated, the School District’s actions fall

“well within the boundaries” of Supreme Court cases interpreting the

Establishment Clause. /d. at 1075. See, e.g., Zobrest v. Catalina Foothills

Sch. Dist., 509 U.S. 1, 8 (1983) (providing sign language interpreter to

deaf student at Catholic high school upheld); Mueller v. Allen, 463 U.S.

388 (1983) (Minnesota’s neutral tax deduction for educational purposes

did not violate the Establishment Clause even though parents could

deduct parochial school expenses). Further, the most recent Supreme

Court decision analyzing the Establishment Clause, Agostini v. Felton,

117 S. Ct. 1997, which the Eighth Circuit cites in its opinion, clearly

teaches that ISD 640’s neutral actions in this case fall well within

constitutional boundaries.

14

properly held, “nothing of the sort has happened here.” Stark v.

ISD 640, 123 F.3d at 1074.

In this case “the district’s curriculum has not been altered in

any way at the Vesta school, and the same curriculum is taught at

Vesta as at the Wabasso school.” Jd. The Eighth Circuit Court,

therefore, correctly found Epperson and Edwards to be completely

inapplicable here because:

the curriculum — whether the substantive curriculum

or the availability of technology — has not been

modified or changed in any way at the Vesta school

from what is taught at the Wabasso school.

Stark v. ISD 640 at 1074 (8th Cir.). Accordingly, because

Epperson and Edwards dealt specifically with a blanket alteration

of the curriculum of all public schools for all students, they are

inapposite. Petitioners’ central argument, therefore, founded

entirely on a fundamental factual dispute, falls under its own

weight given the true facts of this case. Epperson and Edwards

are not even implicated here, much less offended.

Moreover, Petitioners’ argument is based neither in law nor in

logic — but solely on an awkward and transparent semantic trick.

Petitioners contend that the very act of accommodating reasonable

individual exemption requests pursuant to a neutral policy —

standing alone — somehow ipso facto constitutes a broad based

curriculum alteration for all students. According to Petitioners, the

exemption of any individual student from any aspect of the

curriculum pursuant to a state-mandated neutral accommodation

policy per se constitutes a universal alteration of the public school

curriculum of the kind struck down in Epperson and Edwards.

But to state this argument is to refute it. In this case, individual

parents at the Vesta school have requested a conscience-based

“f Ps oe ee

ee Eee ——— alt ae ain id

15

exemption from an aspect of the curriculum offered at the school.

Accommodating these parental requests pursuant to a state’s neutral

policy does not affect either the substance of the curriculum that

continues to be offered at the Vesta school or the content of any

other student’s education. Nor do private individual choices made

pursuant to a neutral policy somehow constitute state action.

Indeed, if Petitioners’ flawed reasoning were accepted, then

accommodating any student at any public school would per se

constitute an unconstitutional “curriculum alteration” as wrongly

understood by Petitioners. This would not only invalidate ISD

640’s policy and Minnesota’s statute, but any attempt anywhere to

accommodate on a neutral basis the consciences of individual

parents and students. Fortunately, this is not supported, much less

compelled, by existing law."'

Petitioners also wrongly assert that the court’s decision in this

case somehow “conflicts” with certain decisions of other federal

courts. However, none of the few cases Petitioners cite remotely

support their contention. For example, Petitioners point to Parents

Ass'n of P.S. 16 v. Quinones, 803 F.2d 1235 (2nd Cir. 1986),

which, on its facts, is manifestly inapposite.'* Quinones involved

the closing off of an entire section of a public school and allowing

11. This Court has long held that government may — and sometimes

must — accommodate religious practice and may do so without

offending the Establishment Clause. See, e.g. Wisconsin v. Yoder, 406

U.S. 205 (1972); Zorach v. Clausen, 343 U.S. 306, 312-14 (1952); See

also HSU v. Roslyn Union Free School Dist., 85 F.3d 839, 864-67 (2d

Cir. 1996); Spence v. Bailey, 465 F.2d 797 (6th Cir. 1972). In fact, the

court has held — contrary to what Petitioners urge here — that religious

individuals may not be excluded from neutrally available benefits simply

because of their religious beliefs. See, e.g. Rosenburger v. Rector &

Visitors of the Univ. of Virginia, 515 U.S. 819 (1995).

12. The actions at issue in Quinones were an effort to comply with

the requirements of Aguilar v. Felton, which, as discussed, was overruled

in Agostini.

16

access only to Hasidic girls and no other students. The Hasidic

girls were given a separate entrance to the school building so as to

avoid all contact with other students. Only female teachers were

allowed to instruct the girls and they were taught in Yiddish. Jd. at

1237, 1241. Thus non-Hasidic children (indeed, even Hasidic

boys) were physically excluded from an entire section of the public

school, as were male teachers, because of the tenets of the Hasidic

faith. Jd. at 1241."

Obviously, Quinones is not pertinent here because “the Vesta

school does not involve the complete segregation and dedication

of part or all of a public facility to a group of students for religious

reasons as in Quinones.” Stark v. ISD 640, 123 F.3d at 1074. No

one is excluded from attending the Vesta School because of religion

or gender. No one is excluded from teaching at Vesta because of

religion or gender. In short, Quinones does not apply.

The only other cases cited by Petitioners involved

interpretations of the Free Exercise Clause, not the Establishment

Clause. Swanson v. Guthrie Independent School District No. I-L,

135 F.3d 694 (10th Cir.) (school district’s refusal to allow part-

time class attendance and part-time home schooling did not violate

student’s free exercise rights); Battles v. Anne Arundel County Board

of Education, 904 F. Supp. 471 (D. Md. 1995) (free exercise clause

was not offended by Maryland’s system of limited state monitoring

of home schooling); Mozert v. Hawkins County Board of

Education, 827 F.2d 1058, 1064 (6th Cir. 1987), cert. denied,

13. Similarly, in Bollenbach v. Board of Education, 659 F. Supp.

1450 (S.D.N.Y. 1987), also cited by Petitioners, a district court found

unconstitutional a school district’s decision to assign only male bus

drivers with less seniority on routes encompassing a Hasidic

community in order to accommodate Hasidic beliefs requiring

separation of the sexes. 659 F. Supp. at 1464. The case, brought by

female bus drivers, turned on the rights of bus drivers to be free of sex-

based discrimination. On its own terms, the case is inapplicable.

17

484 U.S. 66 (1988) (free exercise clause does not require a school

district to exempt students from being exposed to ideas expressed

in a particular set of readers).'* As one might generally expect, it is

somewhat difficult for cases involving interpretations of different

constitutional provisions to “conflict” as petitioners claim. Again,

all of these cases involved claims by individuals to compel school

districts to take actions because of the Free Exercise Clause; they

did not involve Establishment Clause challenges to neutral school

district action. Further, each case affirms the broad discretion of

local School Boards. Petitioners’ reliance on them proves nothing

except their own misunderstanding of this case.

In essence, the issue presented by this case is not whether ISD

640 or the state of Minnesota must grant conscience-based parental

exemption requests, but whether the School District and the state

may in their discretion decide to do so pursuant to a neutral statute

or policy. This is not a case about what is required by the Free

Exercise Clause, but what is permitted by the Establishment Clause.

Here, ISD 640’s actions not only fully comply with the

requirements of the Establishment Clause, but, as the Eighth Circuit

Court found, exemplify the concern for neutrality that is at the

heart of this Court’s Establishment Clause jurisprudence.'5 Because

14. Petitioners also inexplicably cite Bauchman v. West High

School, 900 F. Supp. 254 (D. Utah 1995), which involved both Free

Exercise and Establishment Clause claims brought by a student in a

public high school choir because of the music teacher’s choice of certain

explicitly Christian religious music and Christian religious sites for

performances of the school’s a’cappella choir. The court held that there

was no Establishment Clause violation. Further, the court found no Free

Exercise violation precisely because the school in that case

accommodated the student’s objections by excusing her from

participation in activities she or her parents found objectionable.

15. This Court has stated that “[{a] central lesson of our decisions

is that a significant factor in upholding government programs in the

(Cont’d)

18

this case is about what a School District may do, not what it must

do, the Free Exercise cases cited by Petitioners are not even on

point and certainly not in conflict with the Eighth Circuit’s decision.

Il. THE EIGHTH CIRCUIT’S OPINION IS

CONSISTENT WITH KIRYAS JOEL.

ee Sy ae

Petitioners’ assertion that this case is contrary to Board of Educ.

of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687 (1994), |

misconstrues both Kiryas Joel and this case. “This case is not Kiryas |

Joel.” Stark v. ISD 640 at 1075 (8th Cir. 1997). And despite the |

claims in their recent brief, at oral argument before the Eighth |

Circuit Court, counsel for Petitioners took a much different view |

of Kiryas Joel and its application to this case:

Judge Wollman: “... Where in this case is the

delegation of state authority to a religious group that

existed in Kiryas Joel? Does it exist here?”

Mr. Bruno: “Not the delegation, no.”’®

(Cont'd)

face of Establishment Clause attacks is their neutrality toward religion.”

Rosenberger v. Rector and Visitors of the Univ. of Virginia, 515 U.S.

819, 839 (1995). The Court has “frequently relied explicitly on the

general availability of any benefit provided religious groups or

individuals in turning aside Establishment Clause challenges.” /d.

quoting Kiryas Joel, 512 U.S. at 703 (Souter, J.). ISD 640’s actions are

“well within the boundaries set by cases in which the Supreme Court

has upheld government programs that neutrally provide benefits to a

broad class of citizens defined without reference to religion.” Stark v.

ISD 640, 123 F.3d at 1076, quoting Zobrest v. Catalina Foothills Sch.

Dist., 509 U.S. 1, 8 (1993).

16. As Petitioners themselves established through discovery, no

individuals subscribing to what Petitioners describe as the “Brethren”

_ belief system has any authority whatsoever over the operation of the

(Cont’d)

:

——————

19

Judge Wollman: “Where in this case is the drawing

of a district line to exclude others than the Brethren.”

Mr. Bruno: “We don’t think that a political line has

been drawn.”

Judge Wollman: “Weren’t both of those considerations

powerful incentives to the Court’s decision in Kiryas

Joel?”

Mr. Bruno: “Those were some of the considerations.

I think there were other considerations in Kiryas Joel.

But I don’t think Kiryas Joel is our strongest case

here.”

Transcript of Oral Argument at 20 (emphasis added) (Appendix

A).!7

As was recognized by Petitioners’ own counsel at oral

argument, Kiryas Joel is inapposite. “[T]he record does not support

(Cont’d)

Vesta public school. It is undisputed that no member of the School Board

subscribes to religious beliefs of the Brethren, and no member of the

Brethren ever has or ever will serve on the School Board, because it is

against their beliefs to participate in any political activities, including

voting. Therefore, adherents of this belief system have absolutely no

authority over ISD 640 or the operation of the Vesta public school.

Certainly, there has been no “delegation” of state authority to a religious

group of the sort at issue in Kiryas Joel.

17. Indeed, in a brief filed recently by counsel for Petitioners in

another Establishment Clause case, counsel for Petitioners describes

the Stark case as one involving application of a neutral state policy

“because the benefits of the statute under consideration were generally

available.” See Brief in Support of Motion for Summary Judgment,

Children’s Health Care is a Legal Duty, Inc. v. DeParle, at p. 25

(Appendix B).

20

Stark’s and Neely’s contention that the district has taken special

actions to wrongly benefit the Brethren... .” Stark v. ISD 640,

123 F.3d at 1075 (8th Cir.). Here, ISD 640’s actions are entirely

neutral and only provide benefits that are generally available to

any parent. Any parent can send a child to the Vesta public school,

and any parent can object to elements of a child’s curriculum and

receive alternative instruction for a child.

Further, unlike Kiryas Joel, the record in this case establishes

that ISD 640’s policy of accommodation has been implemented

by ISD 640 many times in the past for other parents requesting a

variety of exemptions. Jd. at 1072. As noted in Kiryas Joel itself,

512 U.S. at 687, 703, the Court “has frequently relied explicitly

on the general availability of any benefit provided religious groups

or individuals in turning aside Establishment Clause challenges.”

As the Eighth Circuit Court has already correctly determined, the

factual record in this case is nothing like Kiryas Joel.

Finally, Petitioners also vaguely raise the specter of

“endorsement.” However, the suggestion that ISD 640’s actions in

this case somehow constitute an endorsement of anyone’s religious

beliefs ignores the factual record and mistakes the true nature of

“endorsement analysis.” Indeed, Petitioners do not even attempt

to cite any record evidence to support their “endorsement” claim.

The Eighth Circuit Court correctly held that “the district has acted

neutrally in this case towards the citizens of the district regarding

the decision to open the School in Vesta and in applying the

exemption policy. Thus, the district has not made anyone’s

adherence to religion relevant to their standing in the community

and consequently has not endorsed religion or a set of religious

beliefs.” Stark v. ISD 640, 123 F.3d at 1077. Petitioners’ attempt

to apply the “endorsement test” to a false version of the facts

conflicts with this Court’s description of that test. See, e.g., Capital

Square Review and Advisory Board v. Pinette, 515 U.S. 753, 772-

80 (1995) (O. Connor, J., concurring) (“the endorsement test

21

necessarily focuses on the perception of a reasonable, informed

observer” not a “casual passerby” who is mistaken about the facts).

In short, under the endorsement test, “erroneous conclusions do

not count.” Jd. at 764-66.'* More to the point, this Court has stated

that “as a matter of Establishment Clause jurisprudence, we have

consistently held that it is no violation for government to enact

neutral policies that happen to benefit religion.” Jd. at 764. ISD

640’s neutral actions do not come close to endorsement.

III. THE SCHOOL DISTRICT’S ACTIONS IN THIS

CASE EXEMPLIFY THE IDEALS OF THE FIRST

AMENDMENT.

The last argument Petitioners present is the unsupported

suggestion that the Eighth Circuit’s decision somehow approves

“the balkanization of the public schools along religious lines” and

undermines “cohesion” in the public schools. Like their other two

arguments, this one is based exclusively on Petitioners’ factual

dispute with the Court below. Despite Petitioners’ contentions, the

School District’s neutral actions in this case actually promote

18. No one in the ISD 640 community has ever perceived the

School District’s neutral actions in this case to be an endorsement of

anyone’s religious beliefs. Indeed, all of the teachers in the local chapter

of the state teachers union voted unanimously te support the School

District in this case. Contemporaneous newspaper accounts, even to

the extent they are relevant, made clear that the Vesta school is a public

school that is open to any who wish to attend classes there. No local

citizen has ever objected to the Vesta public school or the School

District’s neutral accommodation policy. In fact, many local parents

have taken advantage of the policy. Only Petitioners — who live over

100 miles away from the Vesta public school — have ever objected to

ISD 640’s actions. With respect to “endorsement,” this Court has stated

that “we refer only to what would be thought by ‘the community’ —

not by outsiders or by individual members of the community uninformed

about the school’s practice.” Capitol Square Review and Advisory Bd.

v. Pinette, 515 U.S. 753, 764-66 (1995) (plurality opinion).

22

cohesion in the public schools and avoid any “divisive” disputes

among parents, teachers, administrators and students.

ISD 640’s accommodation of parental exemption requests at

both the Vesta and Wabasso schools is conducted pursuant to a

neutral, state-mandated policy, without regard to parental

motivations. Thus, as a policy matter, the Minnesota legislature

and ISD 640 have determined that the best approach in these matters

is to respect the concerns of parents regarding the education of

their children; to assume that the parents’ conscience-based requests

are made in good faith; to avoid searching inquiries by

administrators into parental motivations for such requests; and to

avoid discriminating among requests based on the substance of

parental motivations. These neutral actions are well within the

boundaries set by cases in which this Court has upheld “government

programs that neutrally provide benefits to a broad class of citizens

defined without reference to religion.” Stark v. ISD 640, 123 F.3d

at 1075."° The “district’s actions in this case follow our best

19. See, e.g., Rosenberger, 515 U.S. at 837-45 (neutral program

for paying for printing of student publications) (“The guarantee of

neutrality is respected, not offended, when the government, following

neutral criteria and evenhanded policies, extends benefits to recipients

whose ideologies and viewpoints, including religious ones, are broad

and diverse.”); Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 8

(1993)(sign language interpreter for deaf student at Catholic high

school); Bowen v. Kendrick, 487 U.S. 589, 608 (1988) (Adolescent Family

Life Act did not violate the Establishment Clause despite the fact that

religious organizations received funding pursuant to its neutral

provisions); Witters v. Washington Dep’t of Servs. For the Blind, 474

U.S. 481, 487 (1986) (vocational assistance to individual studying at

Christian college did not violate the Establishment Clause); Mueller v.

Allen, 463 U.S. 388, 398-99 (1983) (Minnesota’s neutral tax deduction

for educational expenses did not violate the Establishment Clause

despite fact that parents could deduct parochial school expenses);

Widmar v. Vincent, 454 U.S. 263, 274-75 (1981) (open access to

university facilities).

23

traditions of accommodation of religious beliefs in the school

context.” Jd. at 1076.

Ironically, only Petitioners’ view would promote significant

religious divisiveness and “balkanization,” as they refer to it, in

the public schools. In essence, Petitioners adopt the untenable

position that a neutral statute like Minn. Stat. Ann. § 126.699 may

operate in all cases, except where parental requests for exemption

are founded on religious beliefs. This position not only conflicts

with the settled legal principle that neutral statutes do not offend

the Establishment Clause, but would itself destroy the neutrality

~ Of the existing statute, and in effect mandate discrimination based

on religious beliefs and viewpoints. If Petitioners’ views prevailed,

and Minnesota school districts were forced to reject only those

conscience-based parental requests for exemption based on religious

beliefs, then administrators would have to conduct a searching

inquiry into parental motivations as part of considering each

requested exemption to determine if religious beliefs played any

role, however minor, in a particular request. Apart from being

impractical and divisive, this would require government to limit

access to a general statutory policy based solely on the particular

viewpoint of the citizen requesting an exemption, and would itself _

violate the Constitution. See, e.g., Rosenberger, 115 S. Ct. 2510

(individuals may not be excluded from neutrally available benefits

simply because of their religious beliefs).

In any event, such a troubling policy is certainly not, as

Petitioners contend, required by the Establishment Clause. In sum,

ISD 640’s neutral accommodation policy is not only constitutional,

it works.

24

CONCLUSION

The Eighth Circuit Court’s decision, founded squarely on the

clear and substantial factual record in this case, rests solidly on

Eighth Circuit and Supreme Court precedent. It should not be

disturbed. Petitioners’ assertions of factual error do not counsel

Supreme Court review. This Court should not spend its scarce

resources rehearing a case that has already been closely considered

and properly decided, nor should it cause further expenditure of

the scarce resources of a small rural school district. Clearly, such

review is not justified based on Petitioners’ new-found dispute

with the factual record. For the reasons given, Petitioners’

application for a writ of certiorari should be denied.

Respectfully submitted,

PAT A. CIPOLLONE

Counsel of Record

One Columbus Plaza

New Haven, CT 06510-3326

(203) 772-2130

ERICK G. KAARDAL

TRIMBLE & ASSOCIATES

11700 Wayzata Blvd.

Minnetonka, MN 55305

(612) 797-7477

C. HUNTER WIGGINS

KIRKLAND & ELLIS

655 15th Street, N.W.

Washington, D.C. 20005

(202) 879-5000

Attorneys for Respondent

APPENDIX

IIN.g

\

wy

la

APPENDIX A — EXCERPTS OF TRANSCRIPT OF

PROCEEDINGS DATED NOVEMBER 20, 1996

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 96-3250 MNST

St. Paul, Minnesota

November 20, 1996

2:00 o’clock p.m.

Matthew Stark, Marcia Neely,

Plaintiffs/A ppellees,

VS.

Independent School District, No. 640, and the members of its

Board of Directors,

Defendant/Appellant,

Leon Plaetz, Curtis Trost, Scott Frederickson, Tom Franta, Barb

Beranek, Alois Guetter,

Defendants.

TRANSCRIPT OF PROCEEDINGS

(ORAL ARGUMENT)

BEFORE THE HONORABLE ROGER L. WOLLMAN,

C. ARLEN BEAM, AND DIANA E. MURPHY

UNITED STATES COURT OF APPEALS

2a

Appendix A

* * *

JUDGE WOLLMAN: That would be my next question.

Where in this case is the delegation of state authority to a

religious group that existed in Kiryas Joel? Does it exist here?

MR. BRUNO: Not the delegation, no.

JUDGE WOLLMAN: Where in this case is the drawing

of a district line to exclude others than the Brethren?

MR. BRUNO: We don’t think that a political line has been

drawn.

JUDGE WOLLMAN: Weren’t both of those considerations

powerful incentives to the Court’s decision in Kiryas Joel?

MR. BRUNO: Those were some of the considerations. I

think there were other considerations in Kiryas Joel. But I

don’t think Kiryas Joel is our strongest case here.

* * *

3a

APPENDIX B — EXCERPTS OF PLAINTIFFS’

MEMORANDUM IN SUPPORT OF PLAINTIFFS’

MOTION FOR SUMMARY JUDGMENT

DATED FEBRUARY 13, 1998

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Civ. 97-1794

Judge Ann Day Montgomery

CHILDREN’S HEALTHCARE IS A LEGAL DUTY,

INCORPORATED, et al.

Plaintiffs

VS.

NANCY-ANN MIN DePARLE, et al..

Defendants

and

FIRST CHURCH OF CHRIST, SCIENTIST,

Defendant-Intervenor

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

AND IN OPPOSITION TO THE MOTIONS FOR

SUMMARY JUDGMENT OF DEFENDANTS AND

DEFENDANT-INTERVENOR

(ORAL ARGUMENT IS REQUESTED)

4a

Appendix B

Dated: February 13, 1998. Robert J. Bruno (#12415)

Attorney for Plaintiffs

ROBERT J. BRUNO, LTD.

1601 E. Hwy. 13, #107

Burnsville, MN 55337

612/890-9171

* * *

There is recognition in the Conference Agreement and the

briefs of the responding parties and their allied amicus curiae in

this case that the RNHCI nursing services are not generally

available. They are referred to as “comparable” in the Conference

Agreement, Pl. Attachment 6, at 79, as they were described in

the Conference Report in 1965. Defendants refer to them as

“some benefit,” Def. Mem., at 7, “limited health care benefits,”

id., at 19, “needed health care services,” id., at 21, “nonmedical

components of inpatient hospital care,”"® id., “alternative

nonmedical benefit in lieu of benefits otherwise available for

traditional medical care.” Jd., at 23, n. 13.

* * *

16. Defendants refer in footnote 11 to the unbundling of the

nonmedical components of inpatient hospital services without

explaining what they mean by these nonmedical components.

Plaintiffs have submitted an affidavit that there are no such

nonmedical components of hospital services in the medical setting.

If Defendants are referring to the custodial care services described

in the Robyn Filbert Affidavit filed by the Church, such unbundling

is a benefit to which no one else is entitled and which would be

highly prized by the residents of thousands of “board and care”

facilities. In this respect this case is distinguishable from Stark v.

Independent School Dist. No. 640, 123 F.3d 1068, cited in Defendants’

Memorandum, note 13, because the benefits of the statute under

consideration were generally available.

Sa

APPENDIX C — EXCERPTS FROM TRANSCRIPT OF

PROCEEDINGS DATED JUNE 7, 1996

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

THIRD DIVISION

Civil 3-94-1597

St. Paul, Minnesota

June 7, 1996

9:00 o’clock a.m.

Matthew Stark and Marcia Neely,

Plaintiff,

-y-

Independent School District No. 640

Defendant.

TRANSCRIPT OF PROCEEDINGS

(MOTION)

BEFORE THE HONORABLE MICHAEL J. DAVIS

UNITED STATES DISTRICT COURT JUDGE

APPEARANCES:

ON BEHALF OF PLAINTIFFS:

TIMOTHY BRANSON, ESQ.

ROBERT BRUNO, ESQ.

6a

Appendix C

ON BEHALF OF DEFENDANT:

PAT A. CIPPOLLONE, ESQ.

ERICK KAARDAL, ESQ.

C. HUNTER WIGGINS, ESQ.

* * *

MR. BRANSON:

[3] * * *

What exactly they did, I think the facts, Your Honor, one

of the few things the parties agree on is that the facts are

undisputed, and I think the core nucleus of facts is relatively

small.