Opinion
Cause No. IP00-1859-C-M/S
February 7, 2001
ORDER ON MOTION FOR PRELIMINARY INJUNCTION
This matter is before the Court on plaintiff Diane Marger Moore's ("Moore") motion for preliminary injunctive relief against defendant Metropolitan School District of Perry Township's ("Perry Township") practices with respect to its release time program. Moore claims that Perry Township's administration of its release time program violates the Establishment Clause of the First Amendment to the United States Constitution. After considering the parties' briefs and oral arguments, the Court GRANTS Moore's motion.
I. FACTUAL BACKGROUND
Perry Township has nine elementary schools in its system. Douglas Williams Dep. at 8. For approximately 29 years there has been an elementary fourth and fifth grade release time program — currently known as the Perry Township Religious Education Program ("PTREP") — where students are able on a voluntary basis to attend religious instruction at various locations. Id. at 6-7. The program lasts for approximately 30 minutes per week. Id. at 7.
The PTREP is operated by the Perry Township Religious Education Association (the "Association"), which is a non-denominational, Christian-based association. Id. at 8-9. The goal of the PTREP is "To help each child become aware of God as revealed through Jesus Christ, grow in understanding of God, and respond to Him in faith, love, and service to others." The Association's Board includes two principals and one assistant principal of elementary schools within Perry Township. Id. at 10. The PTREP is the only formal religious release time program within the school system. Id. at 9. Currently, approximately 70 percent of the fourth and fifth graders within the school system participate in the PTREP. Id. at 26.
At the beginning of the school year, a number of organizations, including the Boy Scouts, the Girl Scouts, 4-H, and the Association are allowed to make available to the schools pamphlets and brochures describing their programs. Id. at 12. Although the practice may have differed in the past, Perry Township has indicated that its future practice with respect to the distribution of this material will involve informing students about the Association at the beginning of the school year during a lunch-hour presentation. It will also allow pamphlets to be distributed during this presentation. Id. at 13.
Parents must consent to having their children participate in the PTREP. In the past, parents were required to check a form that stated either "I do permit" or "I do not permit" with respect to allowing their children to participate in the program. Id. at 14. Perry Township felt this was inappropriate, however, because it may have caused parents some discomfort thinking that if they checked that they did not permit their child to participate, the teacher might perceive them as being non-religious people. Id. at 15.
Accordingly, as of the fall of 2001 the form will simply read "I permit" so that the parents have to overtly sign up their children for participation. Id. at 14.
At four elementary schools, the students attend the PTREP at nearby churches. Id. at 16. At the other five elementary schools — including Clinton Young, Winchester Village, Mary Bryan, Glenns Valley, and Abraham Lincoln — the Association brings a trailer onto the school premises for purposes of conducting the PTREP. Id. at 15. Perry Township allows the trailers on its premises because there are no churches in close proximity and it is more convenient. Id. at 17, 42. Perry Township acknowledges that it is still legally responsible for the children while they are in the trailers on its property. Id. at 37. Perry Township has paid the electric bill for the trailers at some of the elementary schools, but it apparently has ceased that practice and will now bill the Association for the electricity used in conjunction with the program. Perry Township's superintendent has instructed the Association that the PTREP should not be offensive, should be as nondenominational as possible, and should not express extreme views. Id. at 29.
The superintendent had to intercede once when one of the religion teachers made a comment about whether it was appropriate to teach yoga in physical education classes. Id. at 27. The comment offended a Perry Township teacher, so the superintendent had to meet with both teachers, the principal, and two ministers in trying to resolve the conflict. Id. at 28.
When students leave for the PTREP, the other students remain at the school with a teacher. Id. at 32. The teacher does not teach the children who remain behind. Instead, those students are required to silently read books from home or the library, and are not allowed to play or do homework. Id. at 33. Perry Township will not allow the children who remain at the school to play because it does not want to discourage participation in the PTREP. Id. at 34. It also will not allow them to do schoolwork because it fears that parents of children who would otherwise send their kids to the PTREP would be concerned that their children were getting behind in their schoolwork. Id. at 34, 49. The same rule applies when students go on a field trip — the students who do not participate remain at the school and are not allowed to do homework. Id. If a child wants to go to confirmation class, bar mitzvah class, or another religious event, however, regular schoolwork will go on in that child's absence. Id. at 35-36. The silent reading program is a recognized educational tool and Perry Township believes it is a productive use of the students' time. Id. at 44. Perry Township believes that the silent reading program promotes reading and communication skills. Id.
Plaintiff Diane Marger Moore lives within the Perry Township school system boundaries. Moore Aff. ¶ 1. One of her children is a fifth grader at Glenns Valley Elementary School in Perry Township. Id. ¶ 4. Moore is Jewish, and her children attend Jewish religious school on the weekends. Id. ¶ 7. Moore's child does not participate in the PTREP. Id. Moore's daughter has complained to her about not being allowed to do school work when the other students are at the PTREP. Id. ¶ 10. Moore objects to the expenditure of any public funds to facilitate or assist the Association or any other church or religious organization. Id. ¶ 12.
II. STANDARDS A. PRELIMINARY INJUNCTION STANDARD
In assessing whether a preliminary injunction is warranted, a court must consider whether the party seeking the injunction has demonstrated that: (1) it has a reasonable likelihood of success on the merits of the underlying claim; (2) no adequate remedy at law exists; (3) it will suffer irreparable harm if the preliminary injunction is denied; (4) the irreparable harm the party will suffer without injunctive relief is greater than the harm the opposing party will suffer if the preliminary injunction is granted; and (5) the preliminary injunction will not harm the public interest. Kiel v. City of Kenosha, 2000 WL 1800972, *1 (7th Cir. December 8, 2000).
B. ESTABLISHMENT CLAUSE STANDARDS
The First Amendment's mandate that "Congress shall make no law respecting an establishment of religion . . ." applies to the states through the Fourteenth Amendment. Berger v. Rensselaer Central School Corp., 982 F.2d 1160, 1168 (7th Cir.), cert. denied, 508 U.S. 911 (1993). Under the Establishment Clause, the government may not aid one religion, aid all religions, or favor one religion over another. Id. at 1168-1169. Although the Supreme Court has consistently criticized it, the test first enunciated by the Court in Lemon v. Kurtzman, 403 U.S. 602 (1971) remains the prevailing analytical tool for the analysis of Establishment Clause claims. Books v. City of Elkhart, Indiana, 235 F.3d 292, 301 (7th Cir. 2000). Under Lemon, the Court considers (1) whether the government activity in question has a secular purpose; (2) whether the activity's primary effect advances or inhibits religion; and (3) whether the government activity fosters an excessive entanglement with religion. Id. Government action violates the Establishment Clause if it violates any of these prongs. Id.
In addition, government action violates the Establishment Clause if it has the effect of advancing religion. Following the Supreme Court's formal acceptance in County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 595 (1989), the effect prong of this test has been analyzed under the "perception of endorsement" test developed in Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O'Connor, J., concurring). Freedom From Religion Foundation, Inc. v. City of Marshfield, 203 F.3d 487, 493 (7th Cir. 2000). Under this test, "[t]he effect prong asks whether, irrespective of government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval." Id. When a reasonable person could perceive that a government action conveys the message that religion or a particular religious belief is favored or preferred, the Establishment Clause has been violated. Id.
III. DISCUSSION
Moore is a taxpayer within the Perry Township school district. Because Perry Township has not contested her standing in this matter, and because it otherwise appears that Moore has standing, the Court will not address the issue.
There is no dispute that Indiana law provides for release time programs. See INDIANA CODE § 20-8.1-3-22. In addition, Moore does not claim that such programs are unconstitutional per se. Instead, Moore challenges the manner in which Perry Township administers its particular program. First, Moore claims that Perry Township has violated Indiana law and the Establishment Clause by allowing the religious program to take place in trailers on school property and by paying the electric bills for at least some of the trailers. Indiana law specifically prohibits a school for religious instruction to be supported, in whole or in part, by public funds. INDIANA CODE 20-8.1-3-22. Perry Township has agreed to move the trailers off school property by March 1, 2001, and has already ceased paying the electric bills. Because the situation is ongoing for at least another month, however, the issue is not moot. Moore's second challenge involves Perry Township's practice of forbidding students who do not participate in the PTREP from doing any school-related work during the release time. According to Moore, this amounts to a separate violation of the Establishment Clause.
The Supreme Court has taken various approaches to analyzing cases under the Establishment Clause. Because both parties have analyzed this case, at least in part, under the standards set out in Lemon, the Court will not analyze each possible test. Again, under Lemon the Court considers (1) whether the government activity in question has a secular purpose; (2) whether the activity's primary effect advances or inhibits religion; and (3) whether the government activity fosters an excessive entanglement with religion. The effect prong of this test "asks whether, irrespective of government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval." When a reasonable person could perceive that a government action conveys the message that religion or a particular religious belief is favored or preferred, the Establishment Clause has been violated. City of Marshfield, 203 F.3d at 493.
A. REASONABLE LIKELIHOOD OF SUCCESS ON THE MERITS 1. Perry Township's Allowing The PTREP To Take Place On School Property And Paying the PTREP's Electric BillsMoore first must establish some likelihood of success on the merits of her challenge under the Establishment Clause to Perry Township's practice of allowing the PTREP to take place in trailers housed on school property and paying the electric bills of the PTREP. In arguing that the PTREP is constitutional, Perry Township refers the Court to the Supreme Court's pre-Lemon decision in Zorach v. Clauson, 343 U.S. 306 (1952). In Zorach, the Supreme Court upheld a New York statute that allowed public school students to leave school to attend religious classes. Significantly, however, the students left the school buildings and school grounds to go to religious centers for religious instruction or devotional exercises. Id. at 308. This is different from the PTREP, which allows religious instruction to occur on Perry Township school property. Again, Moore does not contend that release time programs in general are unconstitutional, or even that programs that allow students to leave school grounds for religious instruction suffer from any constitutional infirmities. Instead, her complaint is with Perry Township's allowance of religious teaching on school property.
The PTREP more closely resembles the program at issue in McCollum v. Board of Educ. of School Dist. No. 71, 333 U.S. 203 (1948). In McCollum, schools in Champaign, Illinois, allowed religious groups to offer classes in religious instruction to public school students in fourth through ninth grades. The classes consisted of students whose parents had signed printed cards requesting that their children be allowed to attend. The classes were conducted in the regular classrooms of the school building. Id. at 207-208. The Court found the facts established the "use of tax-supported property for religious instruction and the close cooperation between the school authorities and the religious council in promoting religious education . . . This is beyond all question a utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith." Id. at 209-210. In addition, the Court noted that "[h]ere not only are the state's tax supported public school buildings used for the dissemination of religious doctrines. The State also affords sectarian groups an invaluable aid in that it helps to provide pupils for their religious classes through the use of the state's compulsory school machinery. This is not separation of Church and State." Id. at 212.
Here, Perry Township similarly provides a particular religious association with tax-supported school property upon which to teach its religious classes; provides pupils for the classes; and has paid the electric bills associated with the classes. This set-up, which allows a tax-supported public school system to aid a particular religious group in spreading its faith, violates the First Amendment.
The PTREP similarly fails under the Lemon test. Even assuming Perry Township has a secular purpose for allowing the trailers onto school property, the "effect prong asks whether, irrespective of government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval." City of Marshfield, 203 F.3d at 493. When a reasonable person could perceive that a government action conveys the message that religion or a particular religious belief is favored or preferred, the Establishment Clause has been violated. Id. A reasonable person could easily conclude that Perry Township is endorsing religion. It allows a particular religious association access to the students at the beginning of the school year to promote its religious program; it allows that same association to bring trailers onto school property to conduct its religious education classes; and it has paid the electric bills associated with the religious instruction. In addition, Perry Township's superintendent actually instructed the Association with respect to the acceptable content of the PTREP. Specifically, he instructed that the program should not be offensive, should be as nondenominational as possible, and should not express extreme views. When a teacher from the PTREP made a comment that offended a Perry Township teacher, Perry Township's superintendent interceded in the matter and met with both teachers, the principal, and two ministers in attempting to resolve the conflict. Under these facts, a reasonable person could view Perry Township's practices as endorsing religion. Moore has established at least a likelihood of success on her challenge to the program under the "effects" prong of the Lemon test. As a result, the Court need not consider the third prong of the Lemon test — whether there is excessive entanglement between the school system and the religious association.
The Court notes that the superintendent's instructions with respect to the proper tone and/or content of the PTREP classes and his intervention into its affairs would likely be excessive entanglement between the school and the PTREP, which would also violate the third prong of the Lemon test.
2. Perry Township's Policy Of Prohibiting Non-Participating Students From Completing School Work Or Homework During Release Time
Moore also claims that with Perry Township's policy of prohibiting students who do not participate in the PTREP from doing school-related work, including homework, during the release time is unconstitutional. During the release time, the students who remain at the school are required to do "silent reading," which involves reading a non-assigned book from home or from the library. Perry Township argues that it has a right to determine its curriculum, and that the silent reading program promotes reading and communication skills. While Perry Township certainly must retain discretion to devise its curriculum as it sees fit, it is questionable whether the "silent reading" program is really "curriculum" in light of Perry Township's admission that the program is essentially run as a study hall; that students do not get academic credit for the program; that students do not receive grades for the program; and that no teaching is accomplished. In any event, Moore agrees that with approximately 70 percent of the class participating in the PTREP, Perry Township may indeed have a secular purpose for not continuing the normal curriculum during the release time period. She sees no secular purpose, however, for prohibiting the students who do not participate in the PTREP from doing their schoolwork or homework during the release time.Perry Township's asserted purpose for requiring the silent reading is that it is afraid that parents who may otherwise send their children to the PTREP may not do so if the non-participating students were allowed to do homework or school work during the release time. Williams Dep. at 49. Perry Township is afraid those same parents would be concerned that their children would be falling behind the other children in terms of schoolwork. Id.
While Perry Township's characterization of the purpose of its policy is entitled to some deference, it is undisputed that other than a situation where students leave for a field trip, Perry Township only uses this "silent reading" program when students leave to participate in the PTREP. If students are absent due to illness, the regular school program continues in their absence. Similarly, the regular school curriculum continues if Catholic students go to confirmation classes or if Jewish students go to bar mitzvah classes. While the Court does not dispute the sincerity of Perry Township's concern that it not penalize those students who want to participate in the PTREP, it is reasonable to infer that — whether intentionally or not — Perry Township's suspension of the regular school curriculum during this release time was motivated by a desire to encourage participation in the PTREP. Because this is not a permissible purpose, the program violates the first prong of the Lemon test.
In addition, field trips are the only other activities that require the normal curriculum in Perry Township schools to grind to a halt. While it makes sense that Perry Township would want to encourage participation in school-sponsored field trips, it is unconstitutional for Perry Township to encourage participation in the PTREP. Because a reasonable person could perceive Perry Township's insistence on the silent reading program as an endorsement of the PTREP, it violates the second prong of the Lemon test, also. As a result, Moore has established at least some likelihood of success on the merits of her claim that Perry Township's refusal to allow students who choose not to participate in the PTREP to do school work or homework during the release time violates the Establishment Clause.
The Court notes that the Supreme Court has in certain cases focused on the impressionability of students in elementary and secondary schools and the pressure they feel from teachers, administrators, and peers. The Court is concerned that Perry Township's practice of prohibiting non-participating students from even doing their homework during the release time may have a coercive effect upon those fourth and fifth graders. In other words, Perry Township's practice may send a message to those students "that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." Sante Fe Ind. School Dist., 120 S.Ct. at 2279.
B. INADEQUATE REMEDY AT LAW AND IRREPARABLE HARM
After concluding that Moore has established a reasonable likelihood of success on the merits of her claim, the Court must now consider the remaining factors in determining whether to enter a preliminary injunction. The second factor is whether Moore has an adequate remedy at law. Perry Township concedes that she does not, so further discussion of this factor is unwarranted. In addition, the Court also finds that Moore will suffer an irreparable harm if the Court does not grant the injunction. "A First Amendment violation, even for `minimal periods of time,' is `unquestionably. . . . irreparable injury.'" Kimbley v. Lawrence County, Indiana, 119 F. Supp.2d 856, 873-874 (S.D. Ind. 2000), citing Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality). Accordingly, these two predicates for injunctive relief are present.C. BALANCE OF HARMS TO THE PARTIES AND THE PUBLIC INTEREST
Perry Township contends that it will be harmed by an injunction because it will be unable to control its curriculum, students will no longer be able to attend the PTREP in the trailers on school property, and PTREP teachers will become unemployed. It is unclear why Perry Township should be concerned at all with the employment status of private religious teachers. In addition, to the extent students are inconvenienced by having to attend the PTREP at a location off school property, that harm is minimal.
Finally, there is no intrusion upon Perry Township's right to control its curriculum. An injunction would merely require that it allow students to work on school work or homework during the release time. Compared to the effects of a possible First Amendment violation that would result if the Court failed to enter an injunction, Perry Township's harm is inconsequential. The Court considers this result to be in the public's interest, as well.
IV. CONCLUSION
The Court has concluded that Moore has established a reasonable likelihood of success on the merits of her First Amendment challenge. The Court also finds that she has no adequate remedy at law and would suffer irreparable harm if the Court were to deny her the preliminary relief. Finally, the Court finds that the balance of harms favors Moore and that the public interest is in line with granting the requested relief. Accordingly, the Court GRANTS Moore's motion for a preliminary injunction. Pending resolution of the merits of this case or until further order from the Court, the Court ORDERS Perry Township to remove from school property any and all trailers used for the PTREP. Perry Township shall have five business days from the date of the entry of this Order within which to effect the removal of all trailers. The Court further ORDERS that Perry Township immediately cease payment of any electric bills on behalf of the PTREP.
Finally, the Court ORDERS Perry Township to immediately cease its practice of prohibiting students who do not participate in the PTREP from working on school work or homework during the time that other students are released for the PTREP.