Steve B. Smith v. Jefferson Cnty. Bd. of School Comm'rs

court’s resolution that the state onstrated claims was misconduct prosecutorial his federal application unreasonable Moreover, recog- this has

law.... curative instruc- the effectiveness

nized similar prejudice under mitigating

tions Bell, 303 Hutchison v.

circumstances.” (6th Cir.2002). Jerry is not 720, 751

F.3d habeas relief.

entitled

AFFIRMED. Plaintiff, SMITH, B.

Steve Forgety, Kucera; F. Vickie

David

Plaintiffs-Appellees, OF BOARD COUNTY

JEFFERSON COMMISSIONERS,

SCHOOL

Defendant-Appellant.

No. 13-5957. Appeals, Court of States

United Circuit.

Sixth 7, 2014.

Argued: Oct. 11, 2015. and Filed: June

Decided July En Banc Denied

Rehearing Castelli, D.C., H. Thomas

Washington, Founda- Union American Liberties Civil Tennessee, Tennessee, Nashville, tion of for Amici Curiae. BATCHELDER, GILMAN,

Before: GIBBONS, Judges. Circuit and GIBBONS, J., opinion the delivered GILMAN, J., joined, court in which the BATCHELDER, J., joined part. and 590-605), BATCHELDER, (pp. J. concurring in opinion separate delivered result. I—III and the parts OPINION GIBBONS, Circuit SMITH JULIA Judge. board, facing budget county

A school shortfall, alternative school abolished to be edu- for its students and contracted secular, pro- alternative-school cated in the David school. private, at a gram Christian who Forgety, teachers Kucera and Vickie origi- abolition jobs their lost school, sued school nal alternative board, Clause asserting Establishment an court held The district violation. violated Estab- Board’s action School damages and awarded lishment reasons, following For the injunction. we reverse. Taylor, Swann Jonathan ARGUED: Knoxville, GP, Tennes- Knight, Taylor & I. Morrison, see, Eric J. Appellant. for Tennessee, Knoxville, Hinds, P.C., Stone & A. BRIEF: Jonathan ON Appellees. for the 2002-2003 school GP, At time in some Knight, Taylor, Taylor & Swann the Board Moody year, Doug Knoxville, Tennessee, Eric Appellant. for —Director in Jefferson of School Commissioners Morrison, Ridley, George F. M. Todd J. anticipating Knoxville, Hinds, P.C., County, Tennessee —started Ten- & Legg, Stone He learned budget problems. Jeremy D. Tedes- nessee, Appellees. only ten cents of the Freedom, receive Board would Scotts- co, Defending Alliance rate, quarter than a Cortman,. tax less Rory property Arizona, A. T. dale, David requested. had Con- Freedom, funds the Law- Board Defending Alliance Gray, colleagues began Sekulow, Moody his sequently, Alan renceville, Jay Georgia, “big items could Justice, considering ticket” & Law Center For American time, budget. cut from the At that be the 2009-2010 year, high-school school stu- operated Board its own alternative school. dents from County Jefferson remained at employees Board Kingswood, the alternative staffed while middle-school students school, plaintiffs including Forgety Vickie returned to Kingswood schools. Kucera, In July and David both teachers. responsible for all facets of the Coun- 2003, the Board voted to eliminate ty’s program: alternative-school hiring, school for upcoming firing, alternative school evaluating, staff; supervising year finances; and to contract with managing running day- School, Inc., provide to-day operations; alternative-school communicating with services. Tennessee law requires parents; cards; each 'lo- providing report and de- provide cal school board to termining alternative- the term of some students’ sus- school services for students in the pensions seventh regular from their schools. At through grades. twelfth Ann. TenmCode various during times Kings- life of 501(c)(3) § Kingswood 49-6-3402. is a wood’s contract with County, Jefferson non-profit entity by and is Kingswood licensed also worked with four other Department Tennessee of Mental Health Tennessee counties in capacities. various Developmental and Moody Disabilities. This included an arrangement with Clai- calculated that the move would save the borne County to educate all of its alterna- $170,000per Board over year. school Ac- years tive students for several in the early cording parties’ to the stipulation, 2000s. Board’s “sole motivation” for this measure Kingswood had separate programs two “to budget reconcile the Board’s day the time: program and the the Commission’s fund allotment.” program. residential The residential pro-

Moody wrote Forgety to inform gram troubled, and neglected, served —which positions Kucera that their long- would no and abused children—maintained a reli- er exist due to the closing. gious school’s character and included deliberate re- Moody told them that ligious the Board would instruction. The Jefferson County “every make place effort” to them in an exclusively students were day within the however, area of their certification coming program, for the which did not feature year. Forgety rejected teaching the two religious deliberate day instruction. The positions that she was program offered and asked recognized by has been the Ten- that placed she be on the “preferred re- nessee Senate as one of the model alterna- employment list” for administrative- or programs tive-school for the state’s school principal positions. She was unemployed systems.

for seven months before accepting the Day students attended taught by classes principal position County at a Jefferson teachers, state-licensed who were employ- school. unemployed Kucera was for two ees of Kingswood. The students reg- also and, months having received no teaching ularly professional met with licensed coun- offers, job he instead returned to a former public-school selors. When the students youth at a center. Kingswood, first arrived at Reverend Beginning in the year 2003-2004 school Kingswood’s campus Steve minis- Walker — continuing and until performed middle-school their intake sessions. Reli- ter — high-school gion students the Jefferson any part did not form of those ses- County public system school attended Day sions. students attended assemblies they if had suspended Kingswood’s been or on-campus chapel on some expelled ordinary occasions, from their schools. For although strictly attendance was of Jesus saving grace chapel assurance Unsurprisingly,

voluntary. plan,” improvement The “school is no Christ.” imagery. There religious contained County Jefferson completed in- .the however, before evidence, that the assemblies afterward, stat- and still effect contract All classes took content. religious cluded for provide must the belief schools building, ed separate school place in order to serve growth” sym- “spiritual any religious include did not which “ “whole’student.” suggestion There is no messages. bols or pray, required day students were also contained Kingswood website silence,” engage or “moment of observe a claimed, It references.1 religious some activity. spiritual religious other or in- has survived “Kingswood example, in faith to remaining true dependently by Nonetheless, par- their day students education of a Christian principles from all entirely insulated were not ents the doctrine of a being bound to without environ- signs Kingswood’s or sect’s control.” denomination particular required submit ment. Students were of a the school will take care It states that signed weekly family-feedback form— life,” al- “spiritual child’s order to advance within parents their —in compel a student though it will not That form contained day program. religious doctrine. any particular adopt Gospel of following from the quote as a Kingswood refers to The website said, little chil- ... Suffer Luke: “Jesus charity,” éxplains “Christian me, them unto and forbid to come dren says beginnings.” It “Methodist-rooted kingdom of God.” is the not: for of such a the school “has observed Christian that required sign report Parents were also inter-faithed that has remained approach Biblical cards, contained the same which particular a Christian unaffiliated with Kingswood’s director testified text. denomination.” Gospel of Luke— scripture —from an invitation into interpreted could be ap- But none of these communications passage The same kingdom God. targeted specifically have been pear to crosses, on the accompanied by appeared, County students. Communi- the Jefferson The letter Easter 2006 letter. school’s part appeared of this nature be cations unique is be- “Kingswood School claimed: Kingswood community of the fabric of the a envi- we offer children Christian and, cause part, for the most were use before encouragement.... ronment of love and County students arrived. the Jefferson places few addition, one of the Kingswood remains there is no indication Notably, in a get help can County par- children in need student or any where Jefferson a non- are complained Kingswood Christian environment. We or the School ent ministry....” any Kingswood’s religious faith profit based Board about references. Annual out the 2005 sought Those who seven-year of the of the ar- picture that it contains the course Report saw Over paid Kings- rangement, receive the School Board says that each child will chapel $1,702,368. mon- The training, and that em- total sum wood Christian general ey deposited Kingswood’s “instilling in each placed upon phasis account, God, leaving Kingswood operating and the faith personal child just high-school were students website and. 1. The record demonstrates away leaving. no There is evi- Febru- months from references in contained these existed—or contained County dence that website ary the Jefferson which time language here—at earlier time. Kingswood cited had left students middle-school (E.D.Tenn. 2, 2006). expenditure discretion over the Nov. After a Sixth money from money. panel the School Circuit initially case, ruled on the (6th Kingswood Board enabled to hire addition- Cir.2008), 549 F.3d 641 the court hand, al Kings- teachers. On the other granted rehearing en banc. The en banc oper- wood’s financial records show that it court held that the standing, teachers had every year ated at a loss that the Board in their capacity as municipal taxpayers contracted for alternative-school only, services. to raise the Establishment Clause claim. Smith v. Cnty. Bd. Jefferson County The Jefferson alternative stu- Comm’rs, Sch. 206-16 dents of middle-school age stopped attend- Cir.2011) (en banc).2 The court affirmed ing Kingswood at the end of the 2008-2009 grant summary judgment against year school and returned to Jefferson procedural teachers on their and sub County public high-school- schools. The due-process stantive claims. Id. at 216-17. aged students remained at Kingswood for It also held that the individual Board year, one more before arrangement members were entitled to legislative im altogether ended in 2009-2010. Since munity. Id. at 217-19. But this court then, County Jefferson has used federal remanded the case to the district court to grant money new, funds and to establish a consider the claims under the Establish “model” alternative school. no ment Clauses both the United States longer offers alternative-school services of Constitution and the state constitution. any kind. Id. at 219. The district court denied the Board’s motion summary judgment. It B. also denied the Board’s preclude motion to Plaintiffs brought an action in the East- plaintiffs from presenting evidence in sup ern District of against Tennessee port of their state-law damages claims. School Board and various individual Board A bench trial took place May 2013. claim, members. The based on 42 U.S.C. July In the district court issued its § alleged violations of plaintiffs’ findings law, of fact and conclusions of procedural and due process rights under holding that the Board had violated the Amendment, the Fourteenth rights their Establishment Clause. The court perma- under the Establishment Clause nently enjoined the Board “from contract- Amendment, First and similar rights un- ing with Kingswood or another religious der the Tennessee Constitution. The law- entity operation for the of its alternative alleged suit also statutory various state school.” It also plaintiffs damages awarded sought violations. Plaintiffs declaratory for wages during lost the 2003-2004 school relief, injunctive plus monetary dam- year. The timely appealed. Board ages for their lost wages. The district court dismissed the action II. summary on judgment holding that standing. teachers lacked No. Following trial, a bench we re 30:03-CV-593, 2006 WL 3196919 view the findings district court’s factual initially plaintiff, 2. The Georgia case featured a third longer paid moved to and no taxes in previous Steve appeal, Smith. In the the en County. Jefferson Id. at 209. He therefore plaintiffs banc court held that the did not ''[tjhere standing lacked danger because is no individuals, Smith, standing have as 641 F.3d being spent of Smith's tax dollars in violation municipal taxpayers, but of the Constitution.” Id. time, By id. at 209-19. that Smith had 586 argument second fails The Board’s Polymers v. M & G Tackett

clear error. (6th The district court described LLC, the merits. F.3d 595-96 Cir. USA ‘religious self-proclaimed on other as “a 2013), Kingswood and remanded vacated ” — U.S. -, finding Id. at 849. This is 190 institution.’ grounds, (2015). clearly points The Board findings “Factual are not erroneous. if, showing Kingswood that had based on the entire to evidence clearly erroneous and, day at least in the record, the definite and elements are left with secular we religious not involve activi program, that a mistake has been did firm conviction cannot deem ‘the factfin- Ins. Co. N. ties. But “[w]e Frazier committed.” Life Cir.2013) (6th (in Am., permissible choice’ between two F.3d der’s clearly alteration of the evidence erroneous.” quotation marks and views ternal Justice, omitted). Dep’t review de novo district Beaven v. U.S. We Cir.2010) Tackett, (quoting Harlamert determinations. legal court’s Foods, Inc., F.3d Finer at 596. v. World F.3d (6th Cir.2007)). the evidence From case, III. certainly permissible it would be this it Kingswood to conclude that described Board’s begin by addressing the We As one ex self as a institution. court’s challenges to two of the district 2006 letter ex ample, the school’s Easter First, argues the Board findings. factual “Kingswood unique that School is plained finding court erred that the district envi because we offer children a Christian pro- Kingswood’s day and residential encouragement.” ronment of love and meaningfully distinct. grams were that “the properly court found district Second, alleges the Board error Kingswood is facts do not establish that Kings- characterization of district court’s Kucera, entity.” solely religious institu- self-proclaimed wood as a time, At it F.Supp.2d the same tion. was permissible to find that the school argument, first the Board mis- self-proclaimed religious institution. opinion. district court’s The dis- reads the Thus, clearly erroneous. finding is not “that acknowledgment trict court stated its the facts do not establish IV. entity, solely religious nor do facts Kingswood’s residential and establish A. dis- day programs meaningfully are not governmental To decide whether a Cnty. Kucera v. Bd. tinct.” Jefferson Clause, Comm’rs, 842, 850 action violates the Establishment F.Supp.2d Sch. 956 (E.D.Tenn.2013). juris main together we must weave three The sentence is some- threads. first thread is the prudential its use of a double confusing given what test,” named after the negative, there can be no doubt about “Lemon but Kurtzman, decision in Lemon v. meaning: programs the two are mean- Court’s 2105, 602, L.Ed.2d 745 distinct, 403 91 S.Ct. 29 ingfully or at least the evidence U.S. (1971). test, the action com In other Under suggest does not otherwise. words, the Establishment Clause ports court found in the the district First, fact, prongs. if it satisfies three distinct particular Board’s favor on this but activity legisla must “have a secular program “neverthe- still held that the 612, Id. at 91 S.Ct. 2105. objec- purpose.” There is no true tive less violated.” Id. Second, primary or effect principal “its tion here.

587 689, then, must be one that neither advances nor 104 however, S.Ct. 1355. Since Third, religion.” it inhibits Id. “must not the Court has “recast Lemon’s entangle- ‘an government entangle- foster excessive inquiry ment [in school context] ” 613, religion.’ ment with Id. 91 S.Ct. as simply one criterion relevant to deter- Comm’n, (quoting 2105 v.Walz Tax 397 mining a statute’s effect.” Mitchell v. 664, 674, 1409, U.S. 90 S.Ct. 25 L.Ed.2d Helms, 793, 808, 530 2530, U.S. 120 S.Ct. (1970)). (2000) 147 L.Ed.2d 660 (plurality opinion) Felton, (citing Agostini v. 203, 521 U.S. The next thread is an “endorse 1997, 117 S.Ct. 138 L.Ed.2d 391 analysis, ment” first discussed Justice (1997)). Lynch O’Connor in Donnelly, 465 U.S. 668, (1984). 1355, 79 L.Ed.2d 604 jurisprudential The final thread —most intended, As Justice O’Connor Lynch, 465 recently seen Town Greece v. Gall , — 688, (O’Connor, J., U.S. 104 S.Ct. 1355 -, oway 1811, concurring), the Sixth Circuit “has treated (2014), L.Ed.2d 835 but relevant since the endorsement test as a refinement or Chambers, Marsh v. 463 U.S. clarification of the Lemon test.” Granzei (1983 ) S.Ct. 77 L.Ed.2d 1019 —in Middleton, (6th er v. 173 F.3d approach. volves a historical It takes the Cir.1999); also, e.g., see Satawa v. Ma view that “it is not necessary to define the Comm’n, Cnty. comb Rd. 689 F.3d 526 precise boundary of the Establishment (6th Cir.2012) (explaining the Sixth Cir history Clause where shows the spe application test); cuit’s of the Lemon Am. cific practice permitted. is Any test the Civil Liberties Grayson Cnty., Union v. adopts must acknowledge practice Cir.2010) 844-45 (using that was accepted by the Framers and has Lynch guidance discussion as in apply scrutiny withstood the critical of time and test). ing the Lemon Justice O’Connor Greece, political change.” Town explained that prong, Lemon’s first which S.Ct. at 1819. government’s focuses on the purpose, real We must be mindful of both the ly asks government’s “whether actual [the] context of government action and the purpose is to disapprove endorse or specific circumstances surrounding it. See religion.” Lynch, 465 U.S. at 677, 700, Van v. Perry, Orden 545 U.S. (O’Connor, J., S.Ct. 1355 concurring). (Brey While the first Lemon prong subjective, er, J., (em concurring judgment) objective. “whether, the second is It asks phasizing that the Establishment Clause irrespective government’s pur actual inquiry “must take account of context and pose, practice under review in fact Weisman, consequences”); Lee v. conveys message of endorsement or dis 120 L.Ed.2d 467 approval.” If purpose Id. either the or (1992) (“Our juris Establishment Clause effect of the activity is to en prudence remains delicate and fact-sensi disapprove dorse or religion, activity one.”). tive is unconstitutional. Id. entanglement case, Excessive present In the parties the —Lemon’s prong third relevant. stipulate Under Jus- that the School Board’s “sole mo —remains test, tice O’Connor’s such entanglement tivation” for contracting out its alternative- would grounds striking still be for down school services to was “to rec activity, the if even there is no hint of budget oncile the Board’s with the Com endorsement or disapproval. See id. at mission’s fund allotment.” There is no

588 long has levels, too, prayer legislative local had a secu- then, that the Board

question, long-estab- the Given accepted. Id. been prong and as Lemon’s first purpose, lar it unnec- deemed practice, the Court require. lished subjective test O’Connor’s Justice to deter- 2105; any specific test 612, essary apply Lemon, U.S. 403 See Establishment with the 690, compliance mine 104 S.Ct. 1355 U.S. Lynch, 465 Instead, con- interpreted the it Clause. (O’Connor, concurring). embracing the his- of the Clause tours then, be threefold. should inquiry, Our prac- town’s id. The practice. torical indicate First, practice does historical sectarian legislative prayer tice of —even constitutionally was action the Board’s it did because constitutional prayer —was any specific test? of compliant, regardless Court [the] the not “fall outside tradition Kings- Second, relationship with the did Id. at 1824. recognized.” has advancing of reli- effect wood have the case, pure the instant histori words, But the objectively did it in other gion or,— utility. “The is of limited approach cal religious endorse- message of convey education public that free simple truth is Third, it an excessive did foster ment? late in the 18th virtually nonexistent religion? was of entanglement unlikely that it is the century ... [so] First Amend B. drafted the who persons ment, who ratified legislators state or the not view, does Town Greece In our of interaction it, problems of anticipated to the case before us. our impact approach in the schools.” of church and state Greece, In Town of 80, 105 Jaffree, v. 472 U.S. Wallace opening practice that the town’s held (O’Con (1985) 29 86 L.Ed.2d S.Ct. meetings prayer was monthly board (inter nor, J., judgment) concurring Clause. the Establishment consistent with omitted); Abing Dist. nal Sch. citation heavily Relying 134 S.Ct. at 203, 238-39, Twp. Schempp, 374 U.S. ton v. Chambers, v. 103 Marsh (1963) 10 L.Ed.2d pri L.Ed.2d S.Ct. —a that, (Brennan, J., concurring) (explaining legislative prayer upholding or case Eighteenth in the late because schools Town Greece legislature state —the predominantly private and Century were that “the Establishment explained sectarian, hardly signifi ... be would “[i]t interpreted reference must be nearly univer if fact was that cant understand practices and to historical the schools of exercises in sal devotional Greece, S.Ct. at 1819 ings.” Town of criti provoke did young Republic omitted). (internal marks quotation cism”); Aguillard, see also Edwards Estab interpreted the Justices therefore n. to the fact by reference lishment Clause (1987) (finding the historical accepted legislative prayer was public- Marsh approach unhelpful Amendment time the First practice context). practices, school Historical id. at and ratified. See being debated therefore, question little to answer do Congress pro the First 1818-19. “That us. before chaplains appointment vided for the be this that cannot In like one cases language only days approving after prac- by resorting historical resolved demonstrates First Amendment tices, that Town we do not believe legislative prayer a Framers considered depart pre- from our requires us to Greece religion’s role benign acknowledgment of ways, many jurisprudence. existing the state and society.” at 1819. At Id. Supreme Court’s recent decision was sim tice O’Connor—whether the action con- ply application an of decision three veyed objective message that gov- decades earlier in Marsh. Justice Kenne ernment was endorsing religion, Lynch, dy his majority opinion described own in 690, 465 U.S. at (O’Connor, S.Ct. 1355 Town Greece as “consistent with the J., concurring). opinion Court’s in Marsh Chambers.” The Supreme Court has made clear at 1815. upheld prac Marsh the state religion endorses when it

tice of opening sessions of the Nebraska participation coerces in religious activity. legislature prayer. 795, with a 463 U.S. at only Coercion not includes securing partic 103 S.Ct. 3330. The Court reached this ipation through rules and threats of pun because, light decision “[i]n the unam ishments but also imposing includes public biguous and history unbroken of more pressure, peer pressure, or on individuals. years, than 200 there can be no doubt that Doe, See Santa Fe Indep. Sch. Dist. v. practice of opening legislative sessions 290, 2266, 120 S.Ct. 147 L.Ed.2d 295 with prayer part has become of the fabric (2000) (holding that a policy school’s society.” our Id. at 103 S.Ct. 3330. student-initiated, permitting non-sectarian The apply Court did not Lemon any or prayer public before high-school test; football history other alone was conclusive. games violated the Clause); Establishment yet, applied And Lemon—and Lee, 505 U.S. at 112 S.Ct. 2649 (ruling Justice O’Connor’s clarification of Le prayers inclusion of Marsh, in many mon—in opinions after never graduation schools’ ceremonies holding that violates the approach historical had Clause). Establishment relevant, become the or even domi nant, See, mode of analysis. e.g., Here, suggestion there is no McCreary Cnty. v. Am. Civil Liberties Board’s Kingswood association with Union, 844, 859, 545 U.S. 125 S.Ct. coerced partake students to in religious (2005); 162 L.Ed.2d 729 Agostini v. Fel kind, activity any directly either or ton, 203, 232, 521 U.S. 138 through peer pressure. Although the stu- (1997); Kendrick, L.Ed.2d 391 Bowen v. dents met pastor with a for intake meet- 101 ings, there is no indication that the meet- (1988); Lynch, 465 U.S. at ings touched on religion any way. And Likewise, 104 S.Ct. 1355. Town of although the students used the chapel for gives Greece no indication that the Court assemblies, the record does not indicate to completely displace intended the en that the required assemblies participation dorsement test. opinion does not ad spiritual or practice. general validity dress the of the endorse Classroom activities did not include reli- all; ment test at it simply explains why a instruction, gious prayers, or moments historical view was appropriate more facts, reflective light silence. of these the case at apply hand. We therefore the we find the district court’s conclusion that analysis endorsement here. atmosphere was coercive to clearly be erroneous.

C. We must next But consider whether the rela- the absence of coercion does tionship between the School not end the if inquiry. govern Board and Even primary had the compel effect of ad- ment does not to actually citizens Lemon, vancing religion, observances, see participate U.S. at or—as clarified Jus- may religion, endorse 590 elementary school as in an Constitution, ligious activities in other

thus offend Graham, religion). 449 See, U.S. an endorsement e.g., ways. Stone 39, 42-43, Here, observer would a reasonable (1980) curiam) (striking a Ken- down (per relationship Board’s the School interpret of the posting tucky required law en- Kingswood governmental as a with classrooms). in Ten Commandments and stu- religion. Parents dorsement of en violates the only de dents, encountered example, observer if a reasonable dorsement test Kings- in religious references minimis a activity govern think that would evidence indi- day program. The wood’s Capitol religion. mental endorsement day program in the cates that students Advisory Bd. v. Pi and Square Review instruc- exposed any religious were not 2440, 132 nette, 753, 780, 115 S.Ct. 515 U.S. religion at tion, any mentions of prayer, or (O’Connor, concur L.Ed.2d building was devoid all. Their school judg in the concurring and ring part in imagery. Their assemblies any religious Granzeier, ment); at 573. “[T]he 173 F.3d day as close as the chapel were deemed ... must be observer reasonable religious exposure, and came to students history context of the and aware completely secu- yet those assemblies were in as the context community,” as well lar activities. activity challenged government which the refer- the most overt Perhaps Pinette, place. took quotes on the re- were the Biblical ences (O’Connor, J., concurring in cards, forms and—for family-feedback port Al judgment). concurring and part annual sought them out—the those who par “been though the'Supreme Court has plan.3 But school-improvement report compliance ticularly vigilant monitoring all of observer would view a reasonable in elemen the Establishment Clause ar- specific context of the schools,” these secondary Grayson tary and Kingswood had with Jef- rangement (quoting n. 5 Van Cnty., 591 F.3d forced County. budgetary A crisis Orden, 2854 ferson (internal school Board to close its alternative quotation opinion)) (plurality and, the alterna- needing to accommodate omitted), not mean that marks this does notice, on short tive-school students duty apply the reason we abandon our high-performing, state- fact-spe Board selected rigorous, test able observer This allowed See, certified alternative school. e.g., v. Crestview cific manner. Rusk Dist., legal obligation fulfill its the Board to Local Sch. move Cir.2004). an alternative school. The closely provide at the must look We money en- taxpayer significant and saved circumstances of the case particular re- the alternative students how, sured a reasonable observer— consider course education over the ceived sound background the relevant aware of —would By the seven-year arrangement. the ease. of the specific circumstances of view the County Jefferson arrangement, of that (concluding that a reasonable ob end id. alternative its own model of had established not view the distribution server would nonre- school. including both leaflets County's had middle-school students may Jefferson Though the website also have contrib- impression, high-school record the overall and the students uted to left any religious on the away following content does not show from suit. were mere months prior spring when website to the context, in it Kingswood always

Viewed this is clear that had operated as an Board, parents, taxpayers, the School institution. background Imbued with this all benefited from the relationship students knowledge of which was a secret —a —none Kingswood. between the Board and While reasonable observer would not have conferred, being parents this benefit was viewed the arrangement governmen- as a only slight exposure and children received religion. tal endorsement of Such an ob- religious exposure to The they content.4 server interpreted would have instead the Kingswood’s did receive stemmed from arrangement of the School Board doing as pre-existing unapologetically status as an could, the best it in unexpected the face of Christian institution. The mere status of budgetary constraints, to fulfill legal religious organization as a does obligation provide to an alternative-school give not itself to rise endorsement. “The system give and to the alternative students First Amendment does not demand a wall the best available education. separation of between church and state.” This case is unlike Washegesic v. Bloom Am. Civil Liberties v. Union Mercer Schools, ingdale Public (6th Cir.2005). 33 F.3d 679 Cnty., Cir.1994), on which Furthermore, Forgety Kucera and communica- rely. Washegesic, In this court held that targeted specifically tions were not at the students, day it was unconstitutional much less the Jefferson for a. school County particular, display portrait students but were to in hallway. Jesus Graham, way disseminated accordance with the That was consistent with Stone v. State, parents’ 4. Even if we viewed Separation and chil- United Church & for exposure dren’s to content as more 70 L.Ed.2d 700 (1982)). slight, peculiar Judge explained: rely than it would be for us As Sutton to exposure municipal-taxpayer-standing The on that to find an Establishment doctrine case, pays paid, heed to the taxes not to the violation this in which no Here, nature of the constitutional parent complained claim. Kings- student or about result, permitted so, doctrine has teach- religiosity. doing wood’s we would be witnessed, anything remotely ers who never (who allowing aggrieved employees former creating an Establishment Clause violation exposed any religious have not been to refer- law, challenge though ... even ences) step into the shoes of those who seemingly satisfy claimants could not exposed: parents have been the students and prudential standing limitations. case, complain. in this who did not wish to Judge Id. at 222. As Sutton further ex- stems, course, peculiarity This 'of from the plained, peculiarity compounded this is peculiar municipal-taxpayer doctrine where—as in this case—the activities do not standing. The last time this case was before deplete coffers but in fact us, correctly we held—in accordance with government money. save the See id. at 223. Supreme precedent Court Kucera and —that Forgety complain Kucera and thus of the re- Smith, Forgety proceed could on that basis. money mote and ethereal notion their tax 641 F.3d at 215-16. being used for unconstitutional ends. But But we share the several concerns that course, though “there is much to be said Judge Sutton raised that occasion. Mu- reconsidering municipal-taxpayer- nicipal taxpayers rely are able to on what doctrine, standing ... at or least for recalib- generalized it,” would otherwise be labeled a rating Supreme it is for the Court to do (Sutton, grievance. concurring) Id. at 222 222-23; Atheists, so. See id. at see also Am. Lujan (citing Wildlife, Auth., 504 U.S. City Inc. v. Detroit Downtown Dev. Defenders of 555, 574, 576-77, (raising F.3d 284-87 similar con- (1992)). The doctrine also al- municipal-taxpayer standing cerns about but litigant sidestep holding, lows the the “zone Supreme precedent, of inter- based on apply municipal-taxpayer est" test that courts standing other instances. existed in case). (citing Valley Forge Id. Christian Coll. v. Ams. Tables and stations of the church. 66 L.Ed.2d 199 side litera- “evangelical lobby held in the carried (1980), in which children ture, the Ten Com- which addresses display of much of that a classroom integrated cer- mandments, During were not one which and teens.” Id. study, violated the Es- passed out this emony, into course church members Washegesic gradua- Clause. attending tablishment to those literature “a portrait the had that explained court that an majority decided tion. Id. The effect,” affirming and would proselytizing, reasonably that conclude observer “could governmental “a state- appear to some only choose would District [School] religious group and favoring one ment aimed environment proselytizing such F.3d Washegesic, downplaying others.” religious despite the spreading at faith — why a reasonable easy to see at 684. It is children, importance presence as endors- portrait view the observer could and, im- ceremony most graduation displayed religion. prominently It was ing suitable the existence of other portantly, building, princi- outside the in the school approved the District graduation sites—if gymnasium, id. at office and the pal’s message.” Id. at 854. of the Church’s school placed by there and was- that the use of majority The also held presence apparent served no itself. Its coercive, though the church was even contrast, in purpose. By educational activity, be- religious there was no actual case, non-governmental entity— present ceremony in the reli- attending cause responsible for the few Kingswood—was truly not volun- gious environment was conveyed to that were religious references Lee, (citing tary. id. at 854-55 See references occurred be- observers. Those Fe, 2649; at Santa U.S. Kingswood already operated, cause 2266). Under at But aspects, as a Christian school. some circumstances, the court held that purpose arrangement ... had the unfortunate practice “the educational, and the Kingswood purely was very fostering divisive- side effect A religious merely references incidental. that the Establishment Clause ness rightly would view the reasonable observer prevent.” Id. at 856. designed to very references in this case dif- religious Washegesic. ferently portrait from the differences be- significant There are and the case before us tween Elmbrook appellees and the district court that to the difference the outcome. lead rely heavily also on a recent decision the limita- (emphasizing id. at 843-44 Circuit, Doe from the Seventh Doe ex rel. holding and the need tions of the court’s District, F.3d D.Elmbrook School First, although fact-specific inquiry). for a (7th Cir.2012) (en banc). Although we day Kingswood attended students case, are not bound that our decision containing chapel in a some assemblies today opinion and the Seventh Circuit’s does not religious imagery, the evidence comfortably in Elmbrook can co-exist. the kind of suggest chapel had Elmbrook involved a school district the Elm- proselytizing atmosphere high-school graduation ceremo held its There is no evi- brook court described. sanctuary main of a local nies in the dence, religious literature example, for The church had an church. Id. addition, as we have being distributed. “emphatically atmosphere, Christian” id. noted, already nothing about it “conditions of extensive had Elmbrook, there As in were Religious im was coercive. proselytization,” id. at 843. And al- activities involved. the inside and out- no agery was all around may have been inconvenient for An though important it difference be assemblies, many tween this case and child to withdraw from the other Establish that, ment Clause cases is although money required and the as- attendance was changed' government hands between the carry anything did not like the semblies institution, a religious the School importance life that makes at- monumental paid money Board under a contract for a graduation at a close high-school tendance specific, words, essential service. In other mandatory. The Elmbrook court re- this case does not government involve aid. peatedly emphasized that the school dis- involved, Where aid is courts trict had other venue choices besides the scrutinize given whether it was in a neu see, church, e.g., id. at and ac- tral manner between and non analysis knowledged that the would have So, religious institutions. example, it is been different if it had been the ven- constitutionally permissible govern for a available, id. at 844. The record in the ue grants ment to issue vocational that allow not tell case bar does us whether the vocations, instruction in religious Witters arrangement Kingswood with was the Dep’t Wash. State Servs. the of for School Board’s choice. But it is clear Blind, 481, 748, 474 U.S. 106 S.Ct. options tightly that the Board’s were con- (1986); or funding to allow for crisis, budget legal strained the the a sign-language interpreter in a Catholic obligation provide an education for al- school, Zobrest v. Catalina Foothills Sch. students, ternative-school desire to Dist., 1, 2462, 509 U.S. 113 S.Ct. effective, make that education and time (1993); public-school L.Ed.2d or to send pressures. parochial teachers into schools give re specific The circumstances of the case at instruction, 203, Agostini, medial 521 U.S. bar convince us that the School Board’s 1997; 117 S.Ct. or to religious include Kingswood with relationship did not schools within equipment-lending governmental scheme, Mitchell, amount to a endorsement of 793, 530 U.S. 120 S.Ct. religion. constitutionally 2530. It is even permissi grant

ble to may aid that be used for indoctrination, religious provided that aid D. range groups “is offered to a broad of of persons regard religion.” without to their Nor does this ease involve exces Mitchell, See 530 U.S. at 120 S.Ct. entanglement sive between church and relationship state. between the Board Kingswood does not resemble the Here, government providing was not relationships that give

kinds rise to Kingswood aid. The fact that received entanglement problems. determining In money arguably under the contract con entanglement, whether there is excessive ferred a on it that it have benefit could “ purposes we consider ‘the character and religious purposes. po used for But this benefited, of the institutions that are benefit, more, tential without is never suf provides, nature of the aid that the State ficient to establish an Establishment resulting relationship and the between the Clause violation. Johnson v. Econ. ” government authority.’ Dev. Corp., F.3d Cir. 2001) Works, Steele v. Indus. Dev. Bd. Metro. (citing Gov’t Roemer Pub. v. Bd. Nashville, (6th Cir.2002) 426 U.S. (1976)). (quoting Agostini, especially 521 U.S. at 117 L.Ed.2d 179 This is so 1997). present case because setting in Board loss, in the school leav- lem arose day at a program operated Village Kiryas Joel money that Education no excess ing Grumet, 512 U.S. religious purposes. District v. for School could be used (1994). 2481, 129 L.Ed.2d 546 required to examine if were Even we There, giv struck down law neutrality, it would payments Board’s community con religiously, defined ing Kings- that the contract significant be Id. at a local trol over school board. alternative students— all wood benefited Nothing approach 114 S.Ct. 2481. religious background their no matter —in delegation occurred ing this level of the needs of the School serving addition Board County. The School Jefferson' Nothing taxpayer. about and the Board essential, specialist as contracted out one Kings- arrangement with contractual successful, functions to a pect of its any religious preference indicates wood Larkin institution. Unlike state-licensed of the Board. part Joel, po where there was the Kiryas cases, has arisen entanglement prior (and arguably purpose) even tential relationship re- the nature of when governmental decisions to be allowing discriminating, and quires “comprehensive, reasons, there no made for to ensure continuing state surveillance” present case because such risk being used for that state funds were out its service in a Kingswood carried Lemon, improper purposes. manner. secular basis, 2105. On this Pennsylvania’s policy of struck down suggests case Nothing about this for teach- reimbursing non-public schools from the entanglement resulted excessive subjects, supplies for secular id. ing and Kings- Board and relationship between the and Rhode Island’s into a contract wood. The Board entered teacher supplementing private-school Kings- service from to obtain essential salaries, monitoring No such was re- id. wood, the state nor the reli- but neither place took in the case at bar. quired or entangled in the af- gious entity became of the contract- Kingswood’s performance other. fairs of the service, alternative- ed the education of the students, significant require school did not E. place it took monitoring because of an established and structured context sum, leg- In case involves a secular this that, as dis- day program program —a a give does not rise to purpose, islative cussed, in a consistently run secular was and religion, endorsement of governmental manner. entanglement does not entail an excessive religion. government between the

Alternatively, relationships be of the Establishment There is no violation in tween the Clause, judg- and we therefore reverse may result in excessive entan stitution court. ment of the district governmental glement when essential enti delegated functions are example,

ties. For V. religious enti giving down a law struck In the of an Establishment for li absence power applications ties veto over violation, Den, Forgety are Kucera and v. quor licenses. Larkin Grendel’s any remedies. We there- Inc., not entitled to (1982). injunction against vacate the prob- A fore 74 L.Ed.2d 297 similar School Board and also vacate the damages This court’s reversal of summary judg- ment the federal award. claims not have would cured the novelty or complexity of the damages While are clearly unavailable claims under Tennessee As a statute. re- § they under U.S.C. are also un- sult, the statutory state claims were no available state law. plaintiffs under longer part of the case after the district sought under damages Tenn.Code Ann. court them. They dismissed were not 49-2-203, §§ 49-5-501 et seq., and 49-6- properly before the district court when it 3402, and the § district court cited 49-5- entered judgment plaintiffs and could However, provide 511 in calculating damages. no basis for an award of com- pensatory damages. plaintiffs state statutory cause of action Because proper- were not entitled to damages, we re- ly before the court. verse the district court’s entire damages In November court district award. granted the School Board’s motion for Finally, and Forgety Kucera are not summary order, judgment. the same entitled to recover their attorney’s fees. dismissed, the court prejudice, without The district court ordered they could plaintiffs’ claims under Tennessee statute. recover their attorney’s fees an amount The dismissal of the statutory claims was to be determined later. But that decision 1367(c)(1) (3). § under 28 U.S.C. turned on Kucera’s and Forgety’s status as Plaintiffs did not appeal the dismissal of “prevailing parties]” in suit. 42 these claims. Because they were dis- § 1988(b); U.S.C. see also DiLaura v. missed prejudice, without plain- this left Arbor, Twp. Ann (2006) (“ tiffs the option to re-file the claims. If the ‘The touchstone of prevailing party inquiry district court had must be the dismissed the state material altera- tion of the legal relationship claims par- § under 1367(c)(3), 28 U.S.C. ” ties.’ (quoting Farrar Hobby, plaintiffs have could re-filed those claims 121 L.Ed.2d 494 after this court reversed the district (1992))). decision, on our plaintiffs Based grant court’s summary of on judgment prevailed have in aspect of the suit 1367(c)(3) federal § claims. See 28 U.S.C. thus and are not entitled to collect attor- (“The district may courts decline to raise ney’s fees. supplemental jurisdiction over claim if ... the district court has all dismissed VI. claims over which it original jurisdic- has For reasons, the above we reverse the tion.”); Smith, 641 F.3d at (reinstating district court’s decision on the Establish- claim, Establishment Clause and issue, ment Clause judgment, vacate the providing therefore a basis which injunction vacate the against the School district court could have supple- exercised Board, damages, vacate the award of and jurisdiction mental over the statutory state vacate the granting attorney’s order fees. claims). However, to do so would have futile, been because the district court also BATCHELDER, M. ALICE Circuit dismissed state claims under Judge, in concurring part and concurring 1367(c)(1). § provision This allows dis- in the result. missal of a supplemental claim on the basis IN CONCURRING PART

that “the claim raises a complex novel or issue of State law.” 28 U.S.C. agree I County the Jefferson Board 1367(c)(1). § of School Commissioners’ to con- decision quo ante of the status description ion’s not violate does

tract with prior jurisprudence II, Clause I, Establishment join parts Clause Establishment in a Greece, engage and would to Town but I write opinion, III of the court’s reaching in analysis different differs somewhat my reasoning because separately government’s local that the in IV. conclusion part opinion lead from that here is constitutional. action I. A. matter, I concede while

As a threshold of the First Clause Establishment The by our en banc decision bound that we are “Congress commands standing Amendment have Plaintiffs these holding that an establish respecting make no law Estab- shall bring this taxpayers municipal as I, cl. amend. hence, religion.” U.S. Const. ment of we claim—and lishment Clause extended this Court has case—I The of this merits decide the must political and their to the States prohibition is not that decision to believe continue the Fourteenth through subdivisions Cnty. Bd. v. Smith correct. See Jefferson Ever Due Process Clause. Comm’rs, Amendment F.3d 223-26 Sch. Educ., 1, 15, 67 banc) (Batchelder, C.J., Bd. Cir.2011) (en con- son v. (1947). more For 91 L.Ed. 711 S.Ct. dissenting part). curring part decades, struggled courts have four dispute than employment-contract an is This Clause Establishment how to decide an Clause as Establishment masquerading has cases, framework governing of this of the true nature proof case. times. As several changed profoundly that the fact found partly case is tongue-in-cheek, perhaps Justice monetary damages. Judi- seek Plaintiffs Scalia— in his accurately absolutely case but Clause in an Establishment cial relief —observed Perry, in Van Orden nature, the form of concurrence taking equitable 162 L.Ed.2d govern- U.S. undoes injunction be (2005), opinion] See, join [principal “I e.g., religion. establishment ment’s our accurately reflects I think it Vitale, cause Engel v. jurispru current Establishment (prohibiting 8 L.Ed.2d the Establishment least leading stu- dence—or from officials public-school currently apply we jurisprudence do not Clause prayer). We dents in classroom 692, 125 the time.” Id. some of monetary damages for violations grant This confu (Scalia, concurring). Clause. the Establishment opine that led our court sion has to “Establishment is confined judiciary II. v. Mercer ACLU purgatory.” Clause here, but applies test The endorsement Cir.2005). (6th 624, Cnty., 432 F.3d 636 follow only we are constrained because years ago “[u]nder held three We Supreme The time. present it at Kurtzman, 403 U.S. today’s Lemon [v. a watershed recently handed down Court (1) (1971) test, we ask: 602, 2105 ] S.Ct. Galloway, 91 v. Greece decision Town of — predominant government’s 1811, L.Ed.2d whether U.S. —, 188 S.Ct. 134 secular; (2) the gov- whether (2014). opin purpose disagree I with lead 835 or effect of purpose has action as ernment of Town Greece ion’s characterization (3) whether endorsing religion, and only of Establishment to a subset applying entanglement an excessive action fosters legislative-prayer as claims such Cnty. v. Macomb Satawa religion.” opin- disagree with the But I cases. also 597 Comm’n, 506, Rd. 526 Cir. lescent Family Life 602-18, Act. See id. at 2012) (citation, footnote, quo and internal 91 S.Ct. 2105. omitted).

tation marks But as an inferior Occasionally the Court decides cases on court, apply we must articulation grounds other than Lemon. For example, in a manner that fully consistent with Chambers, in Marsh v. 783, 463 U.S. 103 Supreme each of the many Court’s deci 3330, S.Ct. (1983), L.Ed.2d 1019 sions this area of difficult law. Lemon, Court eschewed instead examining history to conclude that conducting pray Lemon, held ers at the outset of policymaking-body ses a touching state action upon religion vio- sions is constitutional. 786-92, See id. at lates Establishment Clause unless it 103 S.Ct. 3330. Marsh declared the test (1) (2) primarily has a purpose, secular has to be that a legislative-prayer practice is an effect that neither advances nor inhibits long constitutional so as it does not “prose religion, and excessively does not en- lytize or any one, advance or disparage [ ] tangle government Lemon, with religion. other, faith or 794-95, belief.” at Id. 612-13, 403 U.S. at 91 S.Ct. Al- 2105. 103 S.Ct. 3330.1 The following year, the though the Court soon de- thereafter Lemon applied uphold publicly a scribed the Lemon test’s prongs three (i.e., owned creche nativity Christian merely factors that “are no more than scene) land, private but looked to histo helpful McNair, signposts,” Hunt v. ry to inform judgment that the Christ 734, 741, U.S. 37 L.Ed.2d mas display had a secular purpose, did not (1973), it has never renounced them. religion, advance and did entangle gov application Court’s ernment with religion. Lemon has Lynch See v. Don example, Graham, nelly, varied. For 678-85, Stone v. 465 U.S. (1984).

449 U.S. L.Ed.2d 604 S.Ct. L.Ed.2d 199 (1980) (per curiam), the Court invalidated

a Kentucky requiring statute posting of the Ten Commandments in public-school later, Five years majority narrow classrooms because the statute lacked a the Supreme Court revised Lemon’s sec- purpose secular and therefore “violates the prong, ond prong,” “effects to hold that part first the [Lemon test.” ] Id. the test is “whether the challenged govern- 101 S.Ct. 192. The Court did not consider mental practice has the purpose or effect whether the also statute had the effect of of ‘endorsing’ religion.” Cnty. Alleghe- (or advancing endorsing) religion, ACLU, en ny or v. Greater Pittsburgh Chapter, tangled government with religion. id. 492 (1989). S.Ct. 192. But in Bowen L.Ed.2d 472 requires test This

Kendrick, 589, 108 2562, 101 court to determine whether a “reasonable (1988), after examining all observer” would conclude that the state three Lemon prongs, action upheld is an endorsement of religion. Id. grants private organizations, including 109 S.Ct. 3086 (plurality opinion of religious organizations, J.). for premarital-sex Blackmun, The five-Justice majority pregnancy counseling under the Ado- based this revision on Justice O’Connor’s test, minorities, Town Greece damnation, restated Marsh 's hold- or threaten ing given practice that a might be Greece, coercive— preach or conversion.” Town 134 and thus prayers, unconstitutional —if the aas S.Ct. at 1823. time,” pattern "denigrate “over nonbelievers

598 (2005) 2722, 162 that 125 S.Ct. Lynch, positing in opinion

separate religion, to favor (“By showing purpose gov- “prohibits Clause the Establishment message ... government sends position take a to appearing from ernment outsid- they are to ... nonadherents from or religious belief questions political ers, full members not in religion relevant to a ‘making adherence mes- accompanying community, and an standing in the person’s way to ” insiders, they are sage to adherents 594, at 109 S.Ct. community.’ Id. political ” (internal quotation members.... favored Lynch, (quoting opinion) (majority 3086 883, omitted)); at 125 S.Ct. id. marks (O’Connor, 687, 104 S.Ct. 1355 465 U.S. at (“The J., (O’Connor, concurring) 2722 dissented Four Justices J., concurring)). display is counties’ purpose behind test, argu- the endorsement adopting from an unmistak- conveys it because relevant look should instead ing that to the rea- of endorsement message able being is anyone to whether history and observer.”).3 McCreary, it After sonable participate action to state by the coerced can still be unclear whether Lemon is 109 S.Ct. id. religion. in See test. from the endorsement distinguished J., judg- in concurring (Kennedy, 3086 the endorse occasionally sets The Court part). in dissenting part inment Establishment to decide ment aside test in test the endorsement adopting Since test, or claims under different modify 1989, has continued to the Court invali The Court multiple tests. applies governing Clause’s the Establishment public- prayers dated benedictional framework, revising the sometimes they en graduations because school 1997, the Court test. endorsement because, majority religion, but dorse (entangle prong third relegated Lemon’s school-age chil held, prayers coerce such ment) merely a factor deter being exercise, in a participate dren to has vio mining whether choice but meaningful they have no since (effects), prong second Lemon’s lated Lee v. Weis graduation. their to attend govern when is violated turn which 599, 577, 592, 594, 112 man, U.S. 505 v. religion. Agostini ment endorses (1992). The Court 2649, 467 L.Ed.2d 203, 232-33, Felton, 117 S.Ct. high- prayers before invalidated later (1997).2 Then 138 L.Ed.2d under the en games, both school football prong that the first test, held separately and then dorsement when a is violated test. San (purpose) under Lee’s distinctly of Lemon coercion Doe, 530 U.S. gov conclude Dist. Indep. would Fe Sch. v. reasonable observer ta 290, 309-12, 147 L.Ed.2d McCreary endorsing religion. ernment (2000).4 Ky., 545 U.S. Cnty. ACLU of impermissible effect government aid has dis majority subsequently 2.A changed.”). had collapsed into a Agostini Lemon cussed how Helms, 530 inquiry. Mitchell v. two-pronged initial with the Court’s is consistent 3. This 793, 807-08, test, which of the endorsement articulation (af opinion) (plurality L.Ed.2d "pur- had the the state action asked whether Agostini “we therefore recast firming that in Alleghe- ’endorsing’religion,” pose effect of or simply entanglement inquiry one Lemon’s (emphasis S.Ct. 3086 ny, U.S. at determining a statute’s relevant criterion added), Lem- implicating two of thus the first effect”); also id. see prongs. on 's three judgment) (O’Connor, concurring in the attempted to con- (“We Agostini ... three Justices once 4. While also concluded tests, see and coercion join endorsement whether to determine specific used criteria plurality four-Justiee upheld a Ten Com mandments display outside the Texas entirely Often it is not precisely clear Capitol by State looking to the role of the what applies, test or how the Ten Commandments —and religion in gen approach Court’s should be characterized. throughout American history. Van Scalia, This line of cases led joined Justice eral — Orden, 125 S.Ct. 2854 by Thomas, Justice in opine a case C.J.). (opinion of Rehnquist, plurality upholding viewing the of religious movies concluded: on school property outside of school hours:

As to the Court’s invocation of the Whatever may be the fate of Lem- Lemon test: ghoul Like some in a late- on test in larger scheme Estab- night horror movie that repeatedly sits lishment Clause jurisprudence, we think up in grave abroad, and shuffles after it not useful in dealing with the sort of being repeatedly buried, killed and Lem- passive monument that Texas has erect- on stalks our Establishment ju- ed on its Capitol grounds. Instead, our risprudence again, frightening the little analysis is by driven both the nature of children and school attorneys of Center monument and our Nation’s his- Moriches Union Free School District. tory. burial, Its Term, most recent last Id. 125 S.Ct. 2854. Breyer Justice was, sure, to be not fully feet six under: supplied the fifth vote to hold that Lemon Our decision conspicuously [Lee ] (and test) thus the endorsement did not supposed avoided the “test” but also de- apply, but separately wrote to assert that clined the invitation repudiate it. history, instead of in such “borderline however, Over years, no fewer than cases” courts can devise “no test-related five of the currently sitting Justices substitute for the legal exercise of judg have, in opinions, their own personally ment.” Id. at (Breyer, pencils driven through the creature’s concurring the judgment). While heart ... joined and a sixth has subsequent to Van Orden this court still opinion doing so. applied the endorsement test to a Ten Chapel

Lamb’s v. Ctr. Moriches Union Mercer, display, Commandments 432 F.3d Dist., 384, 398, Free Sch. 636, it noting bears Supreme (Scalia, held Van Orden there is a J., concurring judgment) (collecting new, undefined class of cases which cases). Lemon apply.5 test /endorsement does More recently, the Court looked has to This left Justice Thomas lamenting the history, as it did Marsh. fact that Court’s “jurispru- Lee, (Black 505 U.S. at "legal judgment” displaced standard has mun, J., concurring) (asserting See, test in endorsement those contexts. coercion "is an obvious that the indication e.g., Plattsmouth, City ACLUNeb. Found. v. endorsing religion), ... (8th Cir.2005) (en banc) 419 F.3d 777-78 always Court has instead maintained them as (Ten Commandments); Myers v. Loudoun Indeed, strictly distinct tests. reasons Schs., Cnty. (4th Pub. 418 F.3d Cir. explained infra, always these tests must be 2005) (Pledge Allegiance). Yet another cir separate they because are irreconcilable. applied cuit City tests. both See Trunk v. Diego, San 1117-18 5. Some of our consequently courts have sister Cir.2011) (federal war memorial with a Chris applied Breyer’s "legal judgment” Justice test cross). tian types for certain of Establishment Clause cases, indicating those courts have concluded

600 funding public evaluated by preme Court basis principled provides no

dence the Lemon version of under the first discern whether cases could lower court which a 605-09, test, 108 Bowen, /endorsement, other 487 U.S. E.g., or some test. Lemon has decid Clause Court in Establishment 2562. The apply S.Ct. should v. Patrol Ass’n Clause three Establishment Highway Utah ed at least cases.” — —, Inc., Atheists, 132 funding U.S. since concerning school Am. cases 12, 14, L.Ed.2d 379 181 endorsement narrowly adopted S.Ct. denial of (Thomas, J., dissenting from the Allegheny, in ago quarter-century test certiorari). to encouraged the Court He ap cases the Court and in each of those squarely in a case “which grant certiorari the Lemo version of plied some n/endorse application and viability implicates v. Simmons-Har ment test. See Zelman at 22. test.” Id. the Lemon 2460, 652-55, /endorsement ris, 122 S.Ct. 536 U.S. in exacerbated confusion was This Mitchell, (2002); 153 L.Ed.2d 604 history looked Supreme Court when the 835-36, opin (plurality 2530 120 S.Ct. unanimously that the Estab to conclude 234-35, 117 ion); Agostini, 521 U.S. Free Exercise Clauses and lishment Moreover, years two before S.Ct. 1997. a “ministerial require Amendment First with the en revised Lemon for reli employment laws exception” test, a foot added dorsement they the ministers gious organizations history not consult that courts should note Evangelical Lu Hosanna-Tabor employ. involving cases for Establishment Clause — EEOC, v. U.S. & theran Church Sch. 482 Aguillard, v. schools. Edwards public 694, 702-03, 181 -, 96 n. U.S. (2012).6 The Court decided L.Ed.2d 650 (1987) (“Such ap a historical L.Ed.2d case without Clause that Establishment determining proach is not useful frame- any use of Lemon /endorsement public church and state roles of proper thereafter, Justice Alito work. Soon schools, education was since free Establishment Court’s agreed “[t]his at the time the Con virtually nonexistent undoubtedly in is jurisprudence bar adopted.”).7 Edwards’s stitution was Mem’l Ass’n clarity.” Soledad need of Mt. the Lemon accordingly element — -, Trunk, v. a case involves test when /endorsement (2012) (concurring public schools. certiorari). denial of does It is true that Town Greece B. Allegheny is explicitly declare either entirely has or that the Court from overruled Notwithstanding these statements test. But Jus jettisoned the fact that the endorsement Justices, and the individual have done so. See tices Scalia and Thomas ap different recently taken Court has — U.S. -, Doe, Dist. v. contexts, Elmbrook Sch. this is a school- in other proaches 189 L.Ed.2d case, required court is this funding so (2014) (Scalia, J., the deni dissenting from to the Lemon to adhere /endorsement certiorari) (“Town aban- Greece al of Allegheny, Su- Prior to framework. Court, joined by on the 7. Several Justices upon this ministerial recently 6. We elaborated authorities, appear reject scholarly analysis fo various that likewise exception, with an in Ed- proposition in this footnote InterVarsity found history. Conlon See cused accompany- 832- wards. footnote Fellowship/USA, 777 F.3d Christian infra Cir.2015). ing text. test,’ antiquated doned the ‘endorsement wards footnote prohibition 4’s on examin- which formed the basis for the decision ing history for public-school Solely cases. below.”). In the short time since Town reason, for this the endorsement test con- of decided, Greece was one of our sister cir trols this case. correctly, my cuits in view—conclud has— Application of that test here leads inex abrogated ed Town Greece Alleghe of orably to the conclusion that the decision ny. Tearpock-Martini Borough of the Jefferson County Board of School (3d Shickshinny, 756 F.3d Cir. Commissioners permissible under the 2014). Establishment Clause. The fully facts are Supreme But the full Court has not done set forth in the opinion, lead and as that yet. “If precedent so a Supreme] [the opinion explains, under the endorsement case, application Court has direct in a yet test we must view those facts from the appears to rejected rest on reasons in perspective observer,” “reasonable decisions, some other line of the Court of hypothetical party third who is not an Appeals should follow the case which di actual participant litigation. This controls, rectly leaving Supreme] to [the observer is a person fictional who is “more prerogative Court the of overruling its own informed than the casual passerby,” Capi Rodriguez Quijas decisions.” de v. Shear tol Square Advisory Review & Bd. v. Pi Inc., Express, 490 U.S. son/Am. nette, 753, 779, 115 2440, 132 S.Ct. (1989). 104 L.Ed.2d 526 L.Ed.2d (O’Connor, J., concur subsequently Court reaffirmed this ring in part and concurring in judg case, rule in an Establishment Clause ment), one who is “deemed aware of the indeed, specifically a school-funding case. history and context of the community and Agostini, 521 U.S. at forum in which display ap (quoting Rodriguez Quijas, de 780, 115 pears,” id. at 1917). agree S.Ct. 2440.8 I U.S. at Therefore opinion with the lead that no notwithstanding such reason Town Greece’s broad able observer language regarding would look at properly the test that these facts and governs conclude Clause, government endorsing Establishment dis infra, cussed religion. unless and until The extent Supreme in explicitly Court holds that it volvement the facts of goes has aban this case no test, doned the Lemon further than the involvement already vali /endorsement lower by Zelman, courts are bound to apply Supreme continue dated Court in ing Mitchell, that test in contexts where the Agostini. If previously it, has employed including Ed- found no there, endorsement of religion sharpest 8. Some of the singularly criticisms of the en- place dard is out of in the Estab- against dorsement test are directed its "rea- lishment Clause context. observer,” "objective sonable observer” or Pinette, 515 U.S. at 800 n. 115 S.Ct. 2440 even supported Justices who the Court’s (Stevens, dissenting). Leading scholars— adoption example, of the test. For Justice including judge a former Tenth Circuit who Stevens wrote: support does not the endorsement test —con- legal [The] reasonable observer ais fiction See, McConnell, e.g., cur. W. Michael Reli- ... The ideal human Justice O’Connor de- Crossroads, gious Freedom at a 59 U. Chi. scribes knows understands much more (1992); L.Rev. 148-51 also Laurence cf. eye. than meets the per- Her "reasonable Tribe, Equal H. Constitutional Calculus: Jus- son” jurist, comes off as a well-schooled Efficiency?, tice or Economic 98 Harv. L.Rev. being finer than the tort-law model. With respect, I think this enhanced tort-law stan- (1985). (quoting Al opinion) (plurality Id. at 1825 us to find warrant for there is no then 659, 109 at. legheny, 492 U.S. here. endorsement J.)).10 (Kennedy, When C. change constitution signals a sea law, lightly that we can I not believe opin lead al do agree with the I cannot But the same year’s implicating in a case last set it dismissing as irrelevant aside ion’s Therefore, while provision. Greece. opinion Town constitutional Supreme Court There, challenge of a Lemon apply in the context we must still /endorse Supreme Court ad test, the should inform legislative prayer, Town Greece ment of an governs of the issue what test dressed analysis our here. govern challenge Clause Establishment apparently Greece is

ment action. Town of 1. the Es regarding shift major a doctrinal First, historical-inqui Greece’s Town of Clause, declaring a two- tablishment “ we must be line draw ry ‘[T]he test. Establishment Clause test for pronged the impermissi the and permissible tween cases, ap the upon a test based historical history with and one which accords ble is Marsh, had followed in proach understanding of the faithfully reflects the Hosanna-Tabor, Orden, and add and Van ” Greece, 134 Founding Fathers.’ Town of it in Lee principle coercion followed ing the Dist. (quoting at 1819 Sch. S.Ct. of First, Establishment “[t]he Santa Fe.9 and Abington 203, 294, Twp. Schempp, 374 U.S. ‘by reference interpreted must be 1560, 10 L.Ed.2d 844 and understand practices to historical (brackets J., (Brennan, in the concurring)) adopts must Any ... test the Court ings’ that in original). recognizes This test our practice accepted a that acknowledge was terpretation of the Establishment Clause and has the by Framers withstood the history with what reveals “comport[ ] must political scrutiny of time and critical contemporaneous understanding was the Greece, change.” Town of Lynch, 465 U.S. guarantees.” of its Allegheny, 492 U.S. (quoting case, the 1355. this J., S.Ct. in (Kennedy, concurring 109 S.Ct. 3086 be the Framers question would in part dissenting in and judgment whether Kingswood contract as regard the Second, would First part)). is elemental “[i]t religion. Although of an establishment principle government Amendment opinion Brennan’s footnote of Justice support its citizens or may not coerce ‘to ” claims that histor- any religion or exercise.’ the Court in Edwards participate 10. majority, Sca- in the Justices part Greece's test— Two Justices of Town The first Thomas, history majority opinion join of the Court. part did not this lia and —is part three-Justice The second writing separately Kennedy’s opinion, Justice —coercion—is controlling lower plurality, but may any agree not coerce courts, accompany it is narrower than participate religion, but that such one to concurring opinion. See ing two-Justice legal coercion is "actual unconstitutional States, v. United Marks law and threat coercion” “force (1977) ("When a penalty," "was a hallmark of which historical fragmented decides a and no sin case religion,” therefore establishments explaining enjoys the gle rationale the result by historical-inquiry already test barred Justices, holding of five assent majority opinion. adopted Town of may position be viewed as that taken Greece, (Thomas, S.Ct. at 1837 concur judg in the Members who concurred those concurring ring part judgment). (internal grounds.” the narrowest ments on omitted)). editing quotation and marks inquiry (citations ical ques omitted). would resolve this ring) We would need tion, dissenting three Justices in to determine if the Framers object would McCreary apparently disagree, noting taxpayer money’s paying for secular ed- that the same Congress First that drafted ucation in a building with no im- agery, Establishment Clause in merely 1789 also re corporate because the enti- ty enacted as a federal statute a that owns measure of the building happens to have Congress religious mission, explicitly or Continental because some de publicly supported linked minimis symbol schools with the or sentence is found on teaching organization’s of both religion non-classroom, morality. non-instructional McCreary, documents. 545 U.S. at (Scalia, J., (“The dissenting) [First] If the Board’s contract would be histori- n Congress also reenacted the Northwest cally acceptable to Framers, we would Territory Ordinance of 1 Stat. then be required to also passes ask if it Article III provided: ‘Religion, which muster under the coercion prong of Town morality, and knowledge, being necessary Greece. “The inquiry remains a fact- of good government and the happiness of sensitive one that considers both the set- mankind, and the audience_” schools means of edu ting ... and the Id. at 1825 ”).11 cation shall forever be encouraged.’ (plurality Here, opinion).12 only the activi- Supreme] “[The Court has often noted required ties by the school contained not that actions by taken the Congress First even a scintilla of content or im- presumptively are consistent the Bill agery, only and the building where the Rights, of and this principle has special students could observe religious ob- force when it comes to the interpretation ject though again, while attending a — of the Establishment Clause.” Town optional purely lecture that pure- would be of Greece, 134 at (Alito, 1834 ly concur- secular—could be only visited if the Many scholarly 11. appear authorities (1992). likewise DePaul L.Rev. 253 Such a contention sharply disagree with Justice Brennan’s especially problematic given only that the claim that rarity Edwards footnote the that application of the Establishment Clause to the public during of Founding the schools era through Amendment, States is the Fourteenth history means an examination of does not Everson, 15, 330 U.S. at which whether, ubiquity illuminate with the of reli adopted was in 1868 when schools gious content settings, in educational the were and common instruction was Framers would govern concluded have pervasive curriculum, typical Kyle see support mental would render such education Duncan, Secularism’s Laws: State Blaine See, programs al e.g., unconstitutional. Co Persecution, Religious Amendments and 72 Lain, God, Virtue, rinna Barrett Civic and the (2003). Fordham L.Rev. 502-06 Howev Way: American Engel, Reconstructing er, since no question court inferior can the (2015) (col Stan. L.Rev. 486 nn. 30-31 Supreme pronouncement Court’s on the mat treatises); lecting scholarly see also Steven D. ter, only Supreme the Court can revisit the Smith, Constitutional Divide: The Transfor accuracy factual of footnote in Edwards. Significance mative Prayer the School Deci of sions, Pepp. L.Rev. 967 & nn. 140-41 plurality’s 12. The inquiry, "fact-intensive” Feldman, (citing Noah Divided God Greece, Town 134 S.Ct. at only refers (2005)); Viteritti, Joseph Choosing Equali P. of plaintiff to whether the in a faced Religious lawsuit ty: Oppor Freedom Educational sort of tunity Federalism, plurality that the coercion said Under would Constitutional transgress Pol’y Yale L. & constitutional line. There is no Rev. 119-20 & n. fact-specific (citing inquiry Bailyn, as to Bernard which test a Education in court is Forming (1960)); apply; Society histoiy-and-coercion American Ger test is set of Bradley, Protecting ard V. Liberty: Religious govern forth as a test that should . all Estab- and Legislative Responsibilities, Judicial lishment claims. Speaker Hinrichs grounds, other the student’s do so and chose to student F.3d 598-600 Reps., 506 House possi- other consented. parents Cir.2007). certiorari petition for Greece’s an innocu- would be of coercion sources ble impli- the issue before framed weekly feedback on a reference ous biblical of the en- validity and reach cating the an Easter cross on or a Christian form Petition Writ test. See dorsement from evaluate it not would And we letter. 9-13, 18-21, i, Town at Certiorari student, parent or point of vantage 12-696). (No. Greece, At 134 S. Ct. 1811 employees who lost instead of former but Court, ac- petitioner offending sta- never saw but paycheck, could decide its knowledged that former em- were tionery. Plaintiffs here Br. for by reaffirming Marsh. simply case or chapel never who attended ployees, Greece, 16-27, at Pet’r Town of consequence of. as a any letters received 12-696). (No. But the town went Kings- contract with Board’s the School further, that the Court arguing length wood. ap- history-and-coercion adopt a should test. jettison the endorsement proach 27-50, 54-57. Various amicus See id. gave sev Greece Town The Court exclusively that the argued briefs almost displace it intends to eral indications repudiate the endorsement Court should test, foremost of which the endorsement Texas, Indiana, See, e.g., Br. of test. opinion for the Kennedy’s that Justice Amici States as Twenty-One Additional adopt his beyond Marsh to went Town of Pet’r Supp. Curiae four-justice Allegheny. from dissent 12-696). (No. Greece, The 134 S. Ct. 1811 adopted the en Supreme Court When rep- States of the United Solicitor General general Allegheny as testin dorsement Administration resented the Obama Clause, Establishment rule for the case, oppo- to do the urged and ip upheld that Marsh dictum Court added site, should arguing that the Court reverse prayer- because sole legislative prayer Circuit, on base its decision the Second but Palmer, had re Reverend Robert giver, Br. for the U.S. as Marsh alone. See Christ, thus to Jesus all references moved Greece, 9-30, 134 at Town Amicus Curiae of prayers would that sectarian suggesting 12-696). (No. The endorse- S. Ct. 1811 See Al Establishment Clause. violate the at issue in thus prominently ment test was 603, 492 U.S. at legheny, Town Greece. of at Greece’s town many prayers Because by opinion revers- began The Court ref meetings explicitly contained Christian Marsh, on Town ing the lower court based erences, held that Alle Circuit the Second 1815-19, Greece, explic- at and Marsh, invalidat and had modified gheny dic- nonsectarian itly rejected Allegheny’s practice as legislative-prayer ed the town’s tum, then the Court went id. at 1821. But Galloway Christianity. endorsement of an further, holding that the Court explicitly 27, Greece, 80-83 F.3d v. Town id. exception,” at did not out “carv[e] Cir.2012). (2d doing, the Second In so leg- to the Establishment the Fourth Circuit agreed with Circuit to some anomalous prayer islative due that, test Allegheny, the endorsement after foundation,” “Any at 1819. id. “historical legislative- governing of the rule part acknowledge adopts must test the Court Forsyth Joyner v. accepted by cases. See the Framers prayer practice that was (4th Cir.2011); scrutiny critical has withstood the Cnty., 653 F.3d and Bosma, change.” (emphasis Id. political v. time accord Hinrichs added). aim at then took (7th Cir.2006), sub nom. vacated endorsement test. dissenting “Four Jus- ment test favor of the historically disputed tices that endorsement could be grounded test, coercion lower courts are test, proper it likely would condemn bound to follow Court cases in- a host of practices that recog- traditional voking the endorsement test until the Jus- nize the role religion plays in our society.” tices explicitly overrule Allegheny and its Id. at (discussing Allegheny, 492 U.S. progeny. Therefore school-funding cases (majority 109 S.Ct. 3086 opinion); must be examined under the endorsement 670-71, id. (Kennedy, S.Ct. 3086 test. Applying here, that test agree I J.)). Town Greece beyond went Marsh no reasonable observer regard would to hold that Establishment Clause test School Board’s action as an endorsement recognize must historically accepted prac- of religion. Because there is no Establish- tices, see id. at Alleghe- cited ment Clause violation, Plaintiffs are not dissent, ny ’s specifically the part rejecting entitled to damages or attorneys’ fees. newly minted endorsement test on the I therefore concur in parts I—III and ground that many historically accepted ac- concur in the result. (such land) tions as a creche on test, would not survive that id. at 1819

(citing Allegheny, 492 U.S. at J.)). (Kennedy,

S.Ct. 3086 This is followed plurality’s adoption of the coercion

test, id. at 1824-28 (plurality opinion of J.), Kennedy, where Town Greece ex- UNITED STATES of America ex rel. plicitly adopts the remainder of the Alle- David F. ANTOON and Linda R. dissent, gheny see id. at 1825 (quoting Antoon, Relators-Appellants, Allegheny, 492 U.S. at 109 S.Ct. 3086 J.)); (Kennedy, id. at 1827 (quoting Alle- gheny, 109 S.Ct. 3086 CLEVELAND CLINIC FOUNDATION J.)). (Kennedy, The Court’s reasoning in Surgical, Inc., al., Intuitive et Town Greece cannot be reconciled with Defendants-Appellees.

the endorsement already noted, test. As No. 13-4348. one of our sister courts already has held Supreme United States Court of abrogated Appeals, Alle- gheny in Town Greece. Tearpock- Circuit. Sixth Martini, 756 F.3d at 238.13 Argued: Aug. 2014.

III. Decided and Filed: June conclusion, although appears it Supreme Court rejected has the endorse-

13. For the opinion explores, reasons lead prevail here should still because Elmbrook our readily case here distinguishable wrongly from decided. For the reasons ex- the Seventh Circuit’s recent plained case of Doe v. principal dissent for three District, Elmbrook School judges, 687 F.3d 840 precedent did not re- - Cir.2012) (en banc), denied, cert. quire invalidation Elmbrook School Dis- -, graduation program, trict's instead (2014). arising facts from that opinion en banc expan- was an unwarranted graduation school’s ceremony are far re sion of Lee and Santa Fe. See id. at 861-69 moved from Easterbrook, facts of this (Ripple, joined C.J., case. See id. at However, 845-47. Posner, J., Moreover, even if this case could not dissenting). Elmbrook Elmbrook, distinguished be from Defendant was decided before Town Greece.

Case Details

Case Name: Steve B. Smith v. Jefferson Cnty. Bd. of School Comm'rs

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jun 11, 2015

Citation: 788 F.3d 580

Docket Number: 13-5957

Court Abbreviation: 6th Cir.