Gerald H. Fleischfresser v. Directors of School District 200, a Body Politic and Corporate

because it knew that sued Glenn the Union FLEISCHFRESSER, factual assertions

that several of Glenn’s et Gerald H. cases, in the other al., Plaintiffs-Appellants, were in fact false whereas might been allegations not have the factual easily not ascertainable false or at least short, it the Union knew had

false. DIRECTORS OF SCHOOL DISTRICT against strong for its libel suit factual basis 200, Body Corporate, Politic and Glenn, privilege law of elimi- though the even Defendant-Appellee. legal basis. nated the suit’s No. 92-3674. Furthermore, while it is well established money employer’s request for that a union or Appeals, United Court of States employee may support damages against an Circuit. Seventh the lawsuit was filed for an inference that retaliatory purposes, in each case cited Argued Sept. 1993. independent evidence of retaliato- the Board Decided Feb. ry apart from the union or motive existed money damages.4 employer’s request

Moreover, the Board did not address the request

ALJ’s determination that Union’s suggest punitive damages did not an ille- punitive damages reg-

gal motive because are

ularly asked for and awarded under Illinois has committed a

law where the defendant finally, tort. the ALJ also found

willful And

that filed numerous discrimination Glenn

charges, all of which were found be merit-

less, that himself admitted to the Glenn statements;

falsity of some of his sworn find- Thus, reject.

ings which the Board did not

given dishonesty Glenn’s and the Union’s concerns,

legitimate reputational not we do upon inferences which the

believe support

Board a find- relied sufficient

ing retaliatory part intent on the

Union.

III. above, petition

For the reasons Board’s

for enforcement of its order is DeNied. Inc., trials), e.g. conducting

4. See Summitville Tiles 300 N.L.R.B. sham sub nom. enforced (employer retaliatory Lodge No. 9 admitted NLRB v. Aeronautical Indus. Dist. No. motive, (2d Cir.1991); asserting Newspa- it had filed its lawsuit 934 F.2d 1288 Phoenix Inc., (1989) (evidence against employees target pers in order to com- 294 N.L.R.B. No. 3 union); (United plaining Lodge hearing demonstrating employ- Machinists adduced at (1990) (hear- Technologies), solely 298 N.L.R.B. No. 47 ees were named in the lawsuit because evidencing they adduced numerous acts union’s were union officials and had written to member, hostility including filing employees concerning practices they towards base- unfair labor committed). charges against employer less internal union the member believed the had Gildo, IL, Wheaton, plaintiff-

Robert V. appellant. Weiner, Scariano, Anthony

Lawrence J. G. Petrarca, Dalton, Justino D. John D. Lisa A. Scariano, Kula, Himes, Rapaez, Ellch & Chi- IL, Scariano, cago, (argued), M. John Izzo Kula, Himes, IL, Chicago Heights, Ellch & defendant-appellee. BAUER, EASTERBROOK, Before RIPPLE, Judges. Circuit 6 BAUER, Then, Judge. complaint. leave to file an amended Circuit the directors moved the district court to dis- grades Kin- Parents of students enrolled complaint pursuant miss the amended dergarten through Five Lowell Elementa- 12(b)(6). Fed.R.Civ.P. Because the Wheaton, 200 in ry of School District School only appended excerpts had of the series to Illinois, enjoin brought this action to complaint, their amended the district court from continu- directors of the school district provide series, complete asked them to Reading Impressions Series as to use they Finally, reviewing which did. after supplemental reading program for the main par- the district court dismissed the grades. parents claim the use of these ents’ action. this series violates the Establishment and of the First Amend- Free Exercise Clauses Standing The directors filed a motion to dis- II.

ment. complaint, miss the which the district court parents, by The not the students their summary judgment, motion treated as a parents, brought have this suit. the district court dismissed the action. matter, as a threshold we must determine We affirm. parents standing whether the have to raise claims; parents standing these if the lack History I. Facts and Procedural suit, bring jurisdiction this we do not have The school district has included the Im- 737, Wright, consider it. Allen v. 468 U.S. pressions Reading in its curriculum Series 3315, (1984); 104 S.Ct. 82 L.Ed.2d 556 Har February parents since 1988. The claim that Cir.1991), (7th Zion, City ris v. 927 F.2d 1401 Elementary the Lowell has used this School — denied, U.S. -, rt. ce “supplemental reading program” series as a (1992). 3025, satisfy 120 L.Ed.2d 897 To “teach, and will continue to instruct and oth- standing requirements, constitutional the educate the students” with this erwise series. parents allege “personal injury fairly must allege parents The that the series “fosters a challenged traceable to the [directors’] con religious superior belief the existence of likely by duct and to be redressed the re beings exercising power beings over human Allen, 751, quested relief.” 468 U.S. at 104 conduct, by prom- imposing rules of with the case, at 3324. In S.Ct. we must be sure punish- threat of future ise and rewards and parents raising rights personal are ments,” supernatural beings and focuses on rights to them and not the of their children. “wizards, sorcerers, including giants and un- specified supernatural pow- creatures with parents standing The have to chal 1 parents ers.” The also claim that use of the lenge alleged violations of the Establishment series “indoctrinates children in values di- they if Clause the First Amendment rectly opposed by to their Christian beliefs action, directly government affected the tricks, deceit, teaching despair, parental dis- here, the use of the series. Courts have respect by denigrating sym- Christian recognized standing parents that have as a holidays.” They allega- bols and cast these right religious result of their to direct the tions the form of violations of the Estab- training of their children. See Wisconsin lishment and Free Exercise Clauses of the Yoder, 205, 1526, 406 92 32 U.S. S.Ct. First Amendment. (1972); Abington L.Ed.2d 15 Sch. Dist. v. 203, 9, parents Schempp,

The filed this action in 374 224 n. the Circuit 9, Illinois, 1560, (1963); DuPage County, n. Court the Educ., 203, directors it removed to the district court. McCollum v. Board 461, granted (1948); The district court the directors’ first 92 L.Ed. 649 Mozert v. S.Ct. (6th Bd., granted parents County motion to dismiss and 827 F.2d 1058 Hawkins court; quotes paragraph 1. These two are taken from of the series in their Brief to this unfortu- parents, complaint. nately allegations nine of the amended This is for the allegation complaint the most concrete of the establishment amended stage. are all that matter at this discuss, religion complaint. specificity of a in the amended As we will this lack of describing evaluating parents' job do a much better causes us some trouble in religion they through believe is the use claims. endorsed denied, treating motion to dismiss the directors’ Cir.1987), 108 was cert. Further, (1988); summary judgment. Grove v. one for L.Ed.2d 993 S.Ct. court, opinion, 753 F.2d abbreviated did Dist. No. district Mead Sch. denied, (9th Cir.), summary cert. as one for not label its decision (1985). consider, Consistent L.Ed.2d court did judgment. The district cases, we hold however, these other plead- to the material extraneous standing to their claim raise parents have From our ings entire series. —the of the Establishment alleging a violation can see that the district vantage point, we impermissible establish Clause because did, fact, the motion as one for court treat right might inhibit their ment of summary judgment, and our task is to deter- religious training of their children. direct preju- mine have been whether diced this treatment. alleged violation With Clause, Exercise of the Free 12(b) if a district Rule commands they infringement standing only if claim not included court considers material religious personal freedom. McGow of their court must treat pleadings, in the the district 420, 429, 81 Maryland, 366 U.S. an v. summary the motion to dismiss as one for aspect One 6 L.Ed.2d judgment.2 parents The do not claim that parents is the religious freedom of of the com- part series was a of their amended the right religious upbringing the and to control Moreover, parties agreed, both plaint. training their minor children. See Wis of arguments to the district court and to both Yoder, 205, 1526, 92 S.Ct. consin v. court, of the entire this that the evaluation Grove, (1972); 753 F.2d at 32 L.Ed.2d 15 critical to the resolution to the series was ease, direct, a parents In this have 1531. So, parents’ claims. while the district court personal right to direct their children’s reli explicitly parties inform the of its did not Grove, 1531; gious training. See 753 F.2d as obligation to treat the motion to dismiss Dist., 644 v. Sch. Collins Chandler Unified summary parties judgment, both had one for (9th denied, 759, Cir.), F.2d 764 n. cert. every that mate- reason to know extraneous 863, 322, 70 L.Ed.2d being considered and are held to rial was (1981). Therefore, standing 12(b)(6) compelled know that Rule the dis- bring claim to as well. trict court to consider the motion to dismiss summary judgment. parents, one for The as 12(b)(6) and 56 III. Rules then, surprise. cannot claim parents’ turn claim We now addition, to the district court’s failure improperly court converted that the district explicit is not fatal to its deci provide notice to a motion the directors’ motion to dismiss in this case. See Farries v. Stana sion summary judgment. As we have- dis (7th Div., 374, dyne/Chicago 832 F.2d cussed, responded court’s order the district Cir.1987); Physicians, Malak v. Associated pursuant to the directors’ motion to dismiss Inc., (7th Cir.1986); 12(b)(6). 277, 280-81 court 784 F.2d to Fed.R.Civ.P. The district notify Typographical that Union No. 23 v. explicitly parties did it Milwaukee not 12(b)(6) 12(b) may provides extraneous material not be con- 2. that: Rule it, If, sidered if the court excludes but that if the asserting on a motion the defense numbered pleading does not exclude such material the mo- to dismiss for failure court of upon granted, summary state a claim which relief can be be as a tion shall treated motion pleading presented matters outside the disposed provided judgment in Rule court, by and not excluded the motion shall that if a motion 56. It will also be observed summary judgment one for be treated as 12(b)(6) into a under Rule is thus converted 56, provided disposed and all of as in Rule motion, summary judgment the amendment parties given opportunity shall be reasonable parties given both shall be a rea- insures that pertinent present all material made to such opportunity sonable to submit affidavits by a motion Rule party by proofs taking extraneous to avoid a 12(b) Advisory The Committee Notes on Rule surprise through the conversion of the motion amplify the text of the rule: summary judgment. into a motion for (b) addition at the end of subdivision under Rule makes it clear that on motion

6 Inc., (7th 386, Newspapers, lege required 639 F.2d pre- students are “to Cir.), denied, cert. pare spells cast chants and prac- and to (1981); Chicago-Mid 70 L.Ed.2d 119 being tice witches.”3 The directors contend Evanston, City west Meat Assoc. allege fail to at all that the (7th Cir.1978), denied, F.2d 281-82 cert. passages students even read the in the series parents. deemed offensive We think (1979). “Although certainly a district court that, in reviewing the drawing record and all give parties should notice to the when the in favor parents, inferences the stu- 12(b)(6) court converts motion into a mo occasionally dents are assigned summary judgment, tion for the failure to do series, from the may may which or not be a necessarily so does not mandate reversal story might be considered offensive nothing where else could have been raised to parents, and even occasionally, more entry summary judgment.” alter the Ma teachers lead a class discussion on an offen- lak, Further, potentially 784 F.2d at 281. “a reading. sive disputed material issue of fact must exist to properly The district court determined justify judge’s reversal of a trial decision to solely base their claims on the summary convert a motion to dismiss into a such, series itself. As a review of the entire judgment give parties where he fails to desire, parties which both is sufficient notice of his intention to convert the motion.” claims, parents’ to resolve the and no further Farries, (citing 832 F.2d at 377 Milwaukee required evidence is parents’ evaluate the Therefore, Typographical). if the district claims. genuine there is no issue grant summary judgment court’s decision to material fact. must We now evaluate correct, for the directors is its decision to substance claims to deter- 12(b)(6) treat the Rule motion as one for mine whether the directors are entitled to summary judgment giving par without judgment as a matter of law. explicit ties improper. notice was not grant We review de novo a district court’s IV. The Establishment Clause summary judgment. Allied-Signal Doe v. The First Amendment states that Inc., (7th Cir.1991). 925 F.2d Our “Congress shall make respecting no law an task is to determine whether the record re religion, prohibiting establishment of or genuine any veals that is no there issue as to free exercise thereof-” U.S. Const. material fact moving party and that I, amend. cl. 1. The Establishment Clause judgment entitled to a as a matter of law. requires government neutrality 56(c); Fed.R.Civ.P. see Adickes v. S.H. Kress Dist., religion. Abington Sch. 374 at U.S. Co., 144, 159, 1598, 1609, & 398 U.S. 90 S.Ct. 215, 83 S.Ct. at 1567. It was intended to (1970). Further, 26 142 L.Ed.2d we “must protect against “sponsorship, sup- financial view the record and all inferences drawn port, sovereign and active involvement of the light in from it most favorable to the Kurtzman, religious activity.” Lemon v. party opposing the motion.” v. Griffin 602, 612, 2105, 2111, 403 U.S. 91 29 S.Ct. Thomas, (7th Cir.1991) 1210, 929 F.2d 1212 (1971) (quoting L.Ed.2d 745 v.Walz Tax (citations omitted). Comm’n, 664, 668, 1409, 397 U.S. 90 S.Ct. court, filings their the district 1411, (1970)). parents claim that the series is used as a “supplemental reading program” Supreme generally, and that Court has “teach, the series will exclusively, analyzed alleged continue to be used to but not viola instruct and otherwise educate the students.” tions of Establishment in the Clause brief, however, In their three-part also al- framework of the forth in test set argued argument quirement participate 3. The “pagan” at oral rituals is "teach, phrase instruct and otherwise educate” sufficiently allegation using different from an encompasses disagree. these other We “teach, activities. "supplemental reading series” to instruct While we understand that our federal rules are sepa- and otherwise educate” that it should be designed encourage to accommodate and notice rately specifically pled. pleading, allegation we believe that an of a re- 686 peer pressure”). 602, susceptibility to Kurtzman, children’s 91 S.Ct. v.

Lemon “vigilant in monitor- must be 2105, Our recent L.Ed.2d 745 29 cases ac compliance Clause with the Establishment in Establishment decisions vitality to the any elementary doubt as ... Sher- knowledge that schools.” Clause Edwards, test was ex man, of the Lemon applicability (quoting 482 at 1164 8 F.3d in Lamb’s' Supreme 2577). Court tinguished 583-84, 107 at at U.S. —Dist., Moriches Sch. Chapel v. Center 2141, 124 L.Ed.2d 352 U.S. -, 113 S.Ct. however, mindful, are also We Community (1993). See, v. e.g., Sherman concern is balanced to a heightened (7th 21, 1160 Cir. 8 F.3d Sch. Dist. Consol. of a degree the broad discretion great Plaines, 1993); City 8 F.3d Des Cohen v. public its school curric board to select (7th Cir.1993); v. North Town Gonzales 484 Arkansas, See, e.g., Epperson v. ulum. Cir.1993). (7th According ship, 4 F.3d 266, 270, 21 L.Ed.2d 89 S.Ct. U.S. test, challenged state for a Lemon (1968). Further, inject this court is to muster, it must: pass action to constitutional daily controversy regarding itself (2) (1) pri have a purpose, secular only if system basic operation of this school nor inhi mary advances effect neither “directly sharp values are constitutional (3) religion, and not foster excessive bits 104-05, ly implicate[d].” Id. at 89 S.Ct. religion. 403 entanglement with state Educ., 270-71; Trees Board Island see 612-13, at 2111. Governmental Pico, Dist. No. 26 v. Union Free Sch. if it Clause action violates the Establishment 2806-07, these three criteria. to meet fails (“[T]he of the L.Ed.2d 435 discretion 39, 40-41, Graham, v. Stone school boards in matters of and local States (1981), 193-194, 66 L.Ed.2d be exercised in a manner education must Corp., 982 Berger Rensselaer Central Sch. imperatives comports with the transcendent Harris, (7th Cir.1993); F.2d Amendment.”). Thus, First we will of the F.2d at strike down the use test, we apply the Lemon Before we clearly only if use in this instance violates preliminary are several believe that there the First Amendment. As an initial discussion. issues that merit In the context of this balance between matter, alleged mindful that violations we are discretion, rights directors’ parents’ and the elementary in Clause of the Establishment a of activities to be courts have held number heightened concerns settings “present school the Establishment Clause. violations Sherman, at 1164. The for courts.” 8 F.3d 1) inviting clergy to offer include: These in its Supreme has made this clear Court prayers at formal invocation and benediction Rap cases. In Grand treatment of similar high for schools and graduation ceremonies Ball, 373, 390, 105 Dist. v. 473 U.S. ids Sch. — Weisman, schools, Lee v. U.S. middle (1985), 3216, 3226, S.Ct. 2) 2649; -, daily readings from symbolism of a union Court stated: “The Dist., 203, Bible, Abington 374 Sch. U.S. likely is most church and state between 3) 1560; daily recitation of the years, whose ex influence children of tender 4) id.; distributing Prayer, Gideon Lord’s conse perience is limited and whose beliefs students, grade public fifth school Bibles to quently the function of environment are 5) 1160; posting Berger, 982 F.2d the Ten voluntary choice.” See also much as free and — classroom, every Stone Commandments Weisman, -, -, 112 Lee v. 6) 192; Graham, re 449 U.S. S.Ct. (1992) (not 2649, 2658, 120 L.Ed.2d 467 S.Ct. quiring teaching of evolution science with coercive ing heightened concerns of “subtle all, Edwards, 482 creation science or not at schools”); elementary public pressure 7) 2573; beginning 107 578, 584, 107 U.S. S.Ct. Aguillard, Edwards v. Collins, (1987) (stat prayer, 644 F2d assemblies with 2573, 2578, 96 L.Ed.2d 510 8) 759; teaching Transcendental Medi a power ing that the sources of this coercive ceremony in attendance, includes a ... tation course “mandatory students’ are Yogi models, offerings deity, a Malnak v. volving of teachers as role and the emulation

6 (3d Cir.1979). skepticism, 592 F.2d 197 Courts have not we hold that even if allega- to find a been inclined violation the First tion suffices to a raise colorable claim of an Amendment, however, respect with to the Establishment Clause violation respect with public use of certain books in a school curric- religion requirement, to the the directors are novels, ulum. These eases deal with text- judgment entitled to as a matter of law. We books, reading including the Im- address, though, will aspects that trouble pressions Reading Series at issue in in- way us with in which the Grove, (involv- stant ease. See 753 F.2d 1528 parents’ claims are framed. assigned grade English a novel in a tenth class); Comm’rs, Smith v. Board Sch. prohibits The First Amendment (11th Cir.1987) (concerning F.2d 684 the use religion establishment of but does not define elementary secondary school text- religion. There seems to be an unresolved studies, history, books the areas of social issue as to whether the definition of economics); Mozert, and home 827 F.2d 1058 should be the same the Establishment (involving reading grades a series used in Clause as it is for the Free Exercise Clause. through eight); one Brown v. Woodland one While view believes that one definition Dist., S-91-0032, Joint Sch. No. Unified suffice, will only another view sees one defi (E.D.Cal. 1992) April WL absolutely nition as Compare unworkable. (deciding involving very case of Educ., Everson v. Board case). issue the instant More (Rutledge, L.Ed. 711 over, may even the Bible itself used in be (“ dissenting) ‘Religion’ only J. appears once public literary schools to teach and historical in the [First] Amendment. But the word lessons, Dist., Abington Sch. governs prohibitions two governs them may long S.Ct. at 1573. It have been the It meanings, alike. does not have two one against party alleging odds the Establish narrow to ‘an forbid establishment’ and an ment regarding Clause violation the use of other, broader, much securing ‘the free in public par books schools that caused the brings exercise thereof.’ ‘Thereof down ‘re allegations ents to reframe their in their ligion’ content, with entire and exact no they appear align brief so that with the less....”); Grove, more and no “religious activities” eases mentioned earlier. (“While (Canby, concurring) F.2d at 1537 J. But, above, as we noted we do not consider (and generous idiosyncratic) functional even allegations in the brief that the students values, definition best serves free exercise witches; required practice being expansiveness interpreting the same only allegations consider the in the simply establishment clause is untenable in pleadings below. age pervasive governmental an of such activi Finally, ap- before the Lemon test can be ty”). plied, we must first determine whether there problem This is not much of a when refer- is even an religion. issue of establishment of ring to the of Prayer, recitation the Lord’s Gonzales, 4 See F.3d at 1417. While the Bible, readings from the and the distribution parents may sincerely and their children be Bibles, of Gideon i.e. when “traditional reli- by passages reading offended some in the gions” problem are at issue. The is evident series, they only raise constitutional claim a. where, here, “religion” alleged- that is if religion. the use of the series a establishes ly being widespread established is much less parents reading The insist that series or cohesive. a district court presents religious Where has be- concepts, pagan- found in (more satanism; likely) fore it one who or ism and branches of witchcraft swears af- and hardly sincerely truthfully this sounds like the establishment of a firms that he holds religion.4 Notwithstanding gener- coherent our comport certain beliefs which with the case, parents attempt requirement 4. The even to include in these in this we cannot abide the "religions” parents "pa- argument a tenet of what the call that the inclusion of "humorous sto- disrespect.” give parent” rental Even as we lati- wide ries” in which "a child outwits a serves construing religion religions. tude to the to establish these creativity? that off of With velop their sense are comfortable religion,5 we al definition of chest, dispose of the properly can now “religion.”6 In our we represent his those beliefs the structure of the however, had and claim within case, district court this claiming that the Lemon test. party before us we have stories, very few of collection of use of a purpose prong of the Lemon “The held some with beliefs

which resonate pur actual government’s test asks whether somewhere, religion, has es- of some people, religion.” disapprove of pose is to endorse or public in a school. religion tablished this Edwards, at 107 S.Ct. at 2578 amorphous allegation of some This Donnelly, Lynch v. (quoting as to what speculation much becomes so 79 L.Ed.2d amorphous This might believe. people some (1984) (O’Connor, concurring)). J. It is to reconcile it difficult for us character makes analysis recognize phase of our that we this purpose of the parents’ claim with the vested the school the broad discretion Establishment Clause. curriculum. public school board to select allegedly addition, “religion” that is In this improper action is where there Government world like being seems for all the established it, support but to purpose is no secular in “make-believe” a collection of exercises purpose, no secular that there is determine encourage of develop and the use designed to action was “motivated we must find that the reading in children imagination and skills Lynch, wholly by religious considerations.” public ele- staple of traditional that are the at 1362. U,S. purpose The of mentary school education. publisher pro- case, alleged stated In have not series, is that purpose using materials about the the series is exclu- motional variety had, they of stories serves if sively religious. the inclusion of But even there senses, imagination, intel- purpose. a child’s noted stimulate a clear secular As we emotions; lect, according publish- above, traditionally public school curricula er, reading way to skills. rely fantasy this is the best build “make-believe” to hold a on reading includes works of C.S. develop This series skills student’s attention Seuss, Lewis, Milne, Ray Bradbury, imagi- Dr. creativity A.A. and to instill a sense Baum, Maurice and other particular L. Frank Sendak That this series relies on nation. Further, these goblins noted authors of fiction. in a stories to devel- witches and few works, many part of others that are and so minds fits the norm.8 As a op the children’s elementary experience7 result, classroom hold that the directors’ use common; important purpose. characteristic one has a secular they fantasy and make-believe to a all involve leg of With to the second

significant degree. would have test, proper government action is of these works in the Lemon us that the inclusion believe advance nor represents primary if its effect is neither to elementary curriculum an religion. government order for pagan re- inhibit impermissible establishment all, ad impermissible to constitute an ligion. agree. After what action We do not education, religion, must elementary pub- that action vancement would become religion. an endorsement of such as these amount private, lic or without works Lynch, 465 104 S.Ct. at 1363. of others that serve to and scores and scores concerned, course, young of with the effect expand minds of children de- We the suggested argument, at other general working 7. As was oral 5. A definition of purposes might is set of beliefs ad- Free Exercise the works of J.R.R. Tolkien works include occupy- dressing "ultimate concern” matters of regarding, for exam- Lewis Carroll and tales " by ing ‘place parallel that filled ... God' in to Fairy. ple, the Tooth traditionally religious persons.” Welsh v. United 1792, 1796, States, 333, 340, S.Ct. 26 398 U.S. Many involving witches are se- of the stories (1970). L.Ed.2d 308 emphasize quenced a Halloween theme. The celebrating eve tradition of the of All respect American might typical scenario with 6. This be a certainly Day one. secular Exercise violation. Saints' a claim of a Free allegation elementary using publisher reading students of of the the on Further, Readings religious organization Impressions Series.9 series is a or that the the evaluating primary of the use of way dealing the effect directors are in some with a particular focus on the entire ser- religious organization. Nothing, the we must ies, then, simply passages parents the find supports not a claim that the use of this “[fjocus exclusively reading on entangle- offensive because to series constitutes excessive religious component any activity of religion. would ment with inevitably invalidation.” Id. at lead

679-80, 104 at 1362. S.Ct. V. The Free Exercise Clause parents The stories which the con Having disposed parents’ of the relatively are a mi tend are offensive small claim, Establishment Clause we now turn to nority compared with the series as a when their claim that the use of the series inter Further, comprised the series is also whole. religion. feres with the free exercise of their stories, minority, of some also a small recognizes The Free Exercise Clause presumably which are consistent with the right every person among types of to choose beliefs, in parents’ Catholic and Protestant religious training observance, free Ever,” cluding Pageant “The Best Christmas Dist., compulsion. Abington state Sch. Christmas,” “How Six Found and “The Further, at 83 S.Ct. at 1571. this But, Days Twelve of Christmas.” it is not right right parents includes the to control enough that certain stories the series religious upbringing training of their parents reflecting religions strike the Yoder, 230-31, minor children. at Witchcraft, Neo-Paganism or or reference S.Ct. at 1540-41. The claim that holidays. Christian The Establishment prevents use the series them from government Clause is not violated because meeting religious obligation their to teach “happens action to coincide or harmonize specific values to their children. religions.” with the tenets of some or all McRae, 297, 319, 100 Harris v. 448 U.S. S.Ct. analyze We this claim balanc 2671, 2689, (citing 65 L.Ed.2d 784 upon the burden the exercise of the 420, 422, Maryland, McGowan v. 366 U.S. 81 parents’ religion government’s and the inter (1961)). 1101, 1113, 6 S.Ct. L.Ed.2d 393 using elementary est in the series educate case, primary principal or effect of 1532; school students. Id. at S.Ct. reading the use of the not to issue is Assoc., High Menora v. Illinois Sch. religions, simply endorse these but to edu (7th Cir.1982), denied, F.2d cert. improving cate the children their develop imagination skills and to and creativ inquiry “The free exercise asks ity. Any religious secondary, references are government placed whether has a substantial if not trivial. the use of the series burden on the of a central reli observation scrutiny prong withstands under this and, so, gious practice or if whether a belief test. justifies compelling governmental interest Commissioner, also claim that because the burden.” Hernandez v. 2136, 2148, a curriculum review committee reviewed the (1989); Yoder, purchased, series before it was the directors L.Ed.2d 766 406 U.S. at entangled religion. (describing required became with This claim 92 at 1533 government highest is without merit. boards interest as one “of the School have broad order”). determining on the discretion curricula their With burden Surely, parents’ religion, of this must schools. the mere exercise show discretion cannot constitute excessive entan use of the series has a coercive directors’ Further, glement religion. operates against there is no effect parents urge adopt "impres- previous we that our discussion 9. While the us to an are satisfied heightened regarding the sionable child” standard with to this of our concerns ele- test, adequately component mentary of the we decline to do so. The school context more than standard, Supreme adopted part analysis. Court has frames this of our never critically impeded by accommodation of the religion. Abington Sch. practice of their wishes, that this inter- parents’ and we hold Dist., at 1572. 374 U.S. at the the burden on est is sufficient to override in this to The burden religion. their parents’ free exercise of most, is, The directors minimal. case at meeting from precluding not VI. Conclusion obligation to instruct their religious their use of the series does the children. Nor any genuine no issue of This case involves to do or re or children compel fact and the directors are entitled material religious anything of a na doing frain from Therefore, the judgment as a matter of law. exists, par and the Thus, no coercion ture. the mo- court’s decisions to convert district religion not their is of ents’ free exercise summary judgment tion to dismiss to one substantially burdened. summary judgment were grant of and the those ex- proper. For these reasons and find that if were to Even we body opinion, pressed in the of this the deci- rights were somehow parents’ free exercise sion of the district court is burdened, substantially we would find outweighed such a interest government AFFIRMED. Providing public school education burden. [govern apex of the function “is at the RIPPLE, concurring. Judge, Circuit Yoder, ment].” join judgment of the court in the I Impres 1532. have discussed We thoughtful opinion of comprehensive and to build and Reading is used sions Series separately empha- I Judge Bauer. write develop students’ skills enhance today any in does not size that our decision creativity. imagination and their senses of of the way protections dilute the of either to children of These skills are fundamental religion for those individuals —and clauses the directors age, and it is critical that many society adhere there are our —who available to them to the best tools select might characterize as to a creed some this, they Having these skills. done teach nontraditional. government’s properly performed the public providing quality school function of drafted, we When the clauses were education.10 were, religious practices, of our terms Although little churches. say that we doubt the sincer- nation of white This is not to religious bigotry and discrimination were ity religious beliefs or that of the considerable, pas- range religious beliefs genuinely they are not offended however, practices among population found agree, with Justice sages. We do certainly “If to elim- can be described as “traditional.” statement that: we are Jackson’s objectionable any Today, people a far diverse everything we are more inate that is religious practices, of our beliefs and [religious group] or inconsistent with terms doctrines, important keep in mind public and it is for us we will leave schools their protections reli- that the constitutional Nothing but educational confusion shreds. vigor system gion protect equal those discrediting public clauses and a practices that do subjecting law who adhere to beliefs and from it to constant can result Educ., comfortably not fit into the traditional “little v. Board suits.” McCollum Indeed, 461, 477, usually it adher- 203, 235, white church.” 92 L.Ed. 649 (1948) (Jackson, religions concurring). ents of these “non-mainstream” who J. protec- government’s are in most need of the Amendment’s find that interest education would be tion. providing a well-rounded addition, any religious political divergent To the extent that there is "tolerance of religious taking message passages, while into account views” the use of the in the offensive among the values sensitivities of others” is "the simply helps the directors meet their obli- public to instill in its students. education seeks gation to teach the value of tolerance as well as Fraser, Sch. Dist. 403 v. Bethel No. previously mentioned. build the skills L.Ed.2d 549 cogently demonstrates, Judge

As Bauer jeopardy considerations are not in

these us,1 case. On the record before it is dealing religion,

clear that are not with a broadly is defined

even when term

encompass practic- nontraditional beliefs and may good The here

es. cause question professional judgments

educators who decided use the literature tool,

at issue as an instructional it but is not material,

reasonable to characterize the record, presented

least as it is on this

religious in nature. WEBER, Petitioner-Appellant,

John R. MURPHY, Respondent- P.

James

Appellee.

No. 93-1191. Appeals,

United States Court of

Seventh Circuit. (argued), B. Charles Vetzner Office of the Argued Sept. 1993. Defender, Madison, WI, peti- State Public for Feb. Decided tioner-appellant. Becker, Atty. (argued),

David J. Asst. Gen. Gen., Atty. Dept, Office of the Wisconsin Justice, Madison, AVI, respondent-appel- lee. EASTERBROOK, FLAUM,

Before KANNE, Judges. Circuit KANNE, Judge. Circuit Weber, petitioner, induced John his wife, Weber, Emily him in to take ride with that, countryside, telling the Wisconsin her he “surprise” had After a short her.1 out, Judge points 1. As Bauer we do not have 1. Most of the relevant facts set forth here in part before us an effort on the of the educators to introduction are taken from the Wisconsin Su- require participate Weber, the students to in ritual exer- preme opinion. Court’s See State v. religious Yogi, cises of a nature. Malnak v. Cf. Wis.2d 471 N.W.2d 187 (3d Cir.1979) (holding 592 F.2d 197 unconstitu- teaching tional the of transcendental meditation ceremony in a course that included in which offerings deity). the students made to a

Case Details

Case Name: Gerald H. Fleischfresser v. Directors of School District 200, a Body Politic and Corporate

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Feb 2, 1994

Citation: 15 F.3d 680

Docket Number: 92-3674

Court Abbreviation: 7th Cir.