Stark v. Independent School District, No. 640

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________

No. 96-3250
___________

Matthew Stark, Marcia Neely, *
*
Plaintiffs/Appellees, *
*
v. *
*
Independent School District, *
No. 640, and the members of *
its Board of Directors, *
*
Defendant/Appellant, * Appeal from the United States
* District Court for the
Leon Plaetz, Curtis Trost, * District of Minnesota.
Scott Frederickson, Tom Franta, *
Barb Beranek, Alois Guetter, *
*
Defendants. *
*
_________________ *
*
Jeff Paskewitz, Mavis *
Paskewitz, Stuart Paskewitz, *
Ben Paskewitz, Ron Paskewitz, *
Naomi Paskewitz, Carrie *
Paskewitz, Joe Paskewitz, *
Gordon Barber, Twyla Barber, *
Peter Barber, Cindy Logan, *
Sheldon Logan, Joanna Logan, *
Clayton Paskewitz, Linda *
Paskewitz, Trisha Paskewitz, *
Minnesota Education Association, *
Minnesota Federation of *
Teachers, *
*
Amicus Curiae. *

___________

Submitted: November 20, 1996

Filed: August 21, 1997
___________

Before WOLLMAN, BEAM, and MURPHY, Circuit Judges.
___________

WOLLMAN, Circuit Judge.

This is an appeal from an injunction enjoining the operation of a public school.
We reverse and remand with directions to dismiss the complaint.

Factual Background

Independent School District No. 640 (the district) is a rural school district
located in southwestern Minnesota. It covers approximately 225 square miles of
agricultural land, including the towns of Wabasso and Vesta. The district operated
elementary schools in both Wabasso and Vesta until the 1983-84 school year. It closed
the Vesta elementary school and sold the building in May 1984. Thereafter, the Vesta
children attended the Wabasso school, which is approximately fourteen miles from
Vesta.

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 Lloyd Paskewitz bought the old Vesta elementary school building in 1991.
Paskewitz and several other Vesta families are members of a religious group known as
the Brethren, a group that originated in Dublin, Ireland, in the late 1820s.1 See Bryan
Ronald Wilson, “The Brethren” A Recent Sociological Study (1981). (Appellees’ App.
Ex. W.) It is undisputed that the Brethren have a sincerely held religious belief in
avoiding the use of technology, including televisions, radios, videos, films, and
computers.

In August 1992, Paskewitz, on behalf of several of the Vesta Brethren families,
wrote to Dr. George Bates, the district’s superintendent, about the possibility of
reopening the Vesta elementary school in the form of a multi-age classroom. Paskewitz
offered to lease space in the old school to the district in consideration of the district’s
providing a teacher and supplies. Paskewitz’s letter stated, “[w]e would have no
objection to it being a public school,” but requested that “the charter of the school in
Vesta” contain a clause stating “[t]hat no T.V., Radios, Videos, and Computers be
used.” Paskewitz stated that there were approximately twenty-one Brethren children
that would be interested in attending and that the group had heard that other, non-
Brethren children might be interested in attending the Vesta school. Paskewitz’s letter
also noted that the Brethren children would not require transportation or school
lunches, as the children could walk to school and would go home for lunch in
accordance with their religious beliefs.

Dr. Bates attested that he considered the feasibility of opening a multi-age
classroom in Vesta. He stated that the primary benefits of such a classroom included
the reduction in the number of students being bussed to Wabasso, the availability of an
additional multi-age classroom, the reduction in class sizes in grade-specific
classrooms, and the alleviation of space shortage in the Wabasso building. He noted

1
Paskewitz estimated that approximately 115 of the 300 people living in Vesta
are members of the Brethren.

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that the relative costs of the proposed classroom were minimal. After holding public
meetings, the school board unanimously approved the proposal. Members of the
school board attested that they approved the opening of the Vesta school for several
reasons, most of which were financial. Opening the Vesta school would prevent the
Brethren children from possibly being home-schooled, which would have meant a loss
in state aid of roughly $3,200 for each student withdrawn from school. A Vesta school
eliminated the need to bus Vesta students to Wabasso, and it was more economical to
send one teacher to Vesta than to bus Vesta children to Wabasso. Additionally,
opening a multi-age classroom in Vesta would provide educational benefits for those
students who otherwise might have been home-schooled. Dr. Bates and the school
board members attested that during the approval process they did not discuss the
religious backgrounds of the parents or students who might attend the Vesta school, nor
were those religious backgrounds relevant to their decision.

A three-year lease was signed on October 12, 1993, by the district, Paskewitz,
and the Brethren.2 The lease provided that the Vesta school would be operated by the
district in the form of a multi-age classroom and would be “a public school for any
resident student in the School District.” The district would provide teachers and
administrative services, establish the curriculum “in compliance with state laws and
rules,” and provide classroom materials for instruction. The parents of the Brethren
children would “have the right to comment on and provide input regarding” classroom
materials “to the same extent as other parents in the School District,” but the district
retained “the sole discretion” regarding “final approval” of textbooks and instructional
materials. The lease provided that “[t]he School District shall, to the extent permitted
under applicable law and rules and regulations . . . limit the use of technology such as

2
Although the “Brethern” [sic] was an additional party to the lease, the person
who signed the lease allegedly on the Brethren’s behalf has attested that he had no
authority to do so. Furthermore, there is no evidence in the record that the Brethren
had any ownership interest in the Vesta school building. Thus, we find little
significance in the fact that they are a party to the lease.

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television, radio, audio and/or video recordings, computers and movies in the
classrooms at the school.” The district would provide special education, certain
federally funded educational services, and counseling services, as well as instruction
in health, physical education, and music at the Wabasso School to any Vesta students
needing them.3 The lease stated that “[a]ll policies adopted by the [School District] . . .
shall apply at the [Vesta] school.” Paskewitz and the Brethren agreed to pay all
utilities, provide custodial services, repair and maintain the building and grounds, pay
property taxes, provide property and liability insurance related to the building, and
remove snow.

The district planned to operate three multi-age classrooms during the 1993-94
school year, two in Wabasso and one in Vesta. The district solicited students for these
classrooms, and fifty-four students signed up and were allowed to request which school
they wished to attend. Thirty-five chose the Wabasso school, and the remaining
nineteen chose the Vesta school. Eleven parents of twenty-nine current or former
Vesta students attested that they preferred sending their children to the Vesta school
rather than the Wabasso school because they liked the convenience of having their
children attend a school within walking distance and having their children come home
for lunch. They also preferred the multi-age Vesta classroom to a grade-specific one
in Wabasso.4 Although the Vesta school is open to any student in the district who
wishes to attend there, apparently only Brethren children have attended the Vesta
school since it opened.

3
The lease stated that hot lunch would also be provided at the Wabasso school,
but the district has said that it would cater hot lunches to students at the Vesta school
if needed.
4
The multi-age classrooms in Wabasso were open only for the 1993-94 school
year.

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 Dr. Bates and the two Vesta teachers attested that the same elementary
curriculum is taught at the Vesta school as is taught at the Wabasso school.
Technology, in the form of computer instruction, is a standard part of that curriculum
for each grade level. The teachers testified that when the Vesta school first opened,
students wishing computer instruction would have been bussed to the Wabasso school
to receive it. Both attested that the district now provides computer and audio/visual
equipment to them at the Vesta school upon request. Although technology is available
to all students, both teachers testified that they do not regularly use technology in their
classroom instruction.

Minnesota law requires school districts to establish a procedure that allows
parents to review the content of instructional materials provided to a minor child. If the
parent objects to that content, the district must make reasonable arrangements for
alternative instruction. See Minn. Stat. Ann. § 126.699 (West 1994). The district’s
policy allows students with religious objections to be excused from objectionable
classes or activities. If the class or activity is a required one, “suitable alternative
activities shall be provided.” Dr. Bates attested that the district has received numerous
objections to various activities, including the use of computer technology, drug
education, self-esteem training, certain books and audio and visual presentations, and
sex education; that the district does not inquire into the motivations for a parent’s
objections; and that the district provides alternative instruction.

All of the Brethren parents have objected to the use of computers at the Vesta
school and have asked for alternative instruction for their children, which has been
provided. Accordingly, the educational curriculum at the Vesta school does not include
the use of computers, videos, films, or audio presentations. While the Brethren children
were attending the Wabasso school prior to the reopening of the Vesta school, the
district accommodated their religious objections and allowed them to avoid

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participating in the use of technology.5 It is undisputed that, in light of the
accommodations the district would make at the Wabasso school for the Brethren
children, the Brethren children have received exactly the same education at the Vesta
school that they would have received if they had continued to attend the Wabasso
school. It is also undisputed that no religious instruction has taken place at the Vesta
school and that no religious artifacts are present.

Procedural History

Matthew Stark and Marcia Neely are Minnesota citizens utilizing taxpayer
standing who filed suit against the district6 seeking a declaratory judgment that the
creation and operation of the Vesta school violates the Establishment Clause of the
First Amendment to the United States Constitution and article 1 section 16 of the
Minnesota Constitution. They also sought an injunction prohibiting the district from
operating the Vesta school in conformance with Brethren beliefs, a judgment requiring
the district to refund to the State of Minnesota all state aid the district received for
children attending the Vesta school, and an award of attorney fees.

The case was submitted to the district court on cross-motions for summary
judgment. The court concluded that “the facts presented by this case provide a clear
example of state sponsorship, or the advancement of a religion which violates the
mandates of the First Amendment.” The court concluded that the district had modified
the Vesta school’s curriculum “based solely on the request of a religious group.”

5
The district also supplied the Brethren children with a separate lunch table at the
Wabasso school.
6
The plaintiffs also sued members of the school board, Paskewitz, and the
Brethren. These defendants were dismissed at various times, and their dismissals are
not raised on appeal.

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 The district court further concluded that the primary effect of the opening of the
Vesta school was that of promoting religion; that “the opening, and the manner of
operation of, the Vesta school lacks a secular purpose and was done to conform to the
religious beliefs of the Brethren”; and that the district had thus created “an
impermissible identification of its powers and duties with the religious beliefs of the
Brethren.” The court entered an injunction permanently enjoining the district “from
operating the Vesta School or any other school in conformance with the Brethren’s
religious objections to the use of computers and other technology and media.” The
court did not rule on the refunding of state aid money or on the matter of attorney fees.

Following the district court’s denial of the district’s motion for a stay pending
appeal, we entered an order staying the district court’s injunction. Stark and Neely
have moved to dissolve the stay. Stark and Neely have dismissed their refund claim,
and their claim for attorney fees has been stayed pending the outcome of this appeal.

First Amendment
We begin by noting that the decision by the district to open a school and to
accommodate parental requests for exemption from aspects of the district’s chosen
curriculum falls within the heartland of the “comprehensive powers and substantial
discretion” that are generally afforded to school districts in “discharg[ing] the important
tasks entrusted to them.” Pratt v. Independent Sch. Dist. No. 831, 670 F.2d 771, 775
(8th Cir. 1982). See Wisconsin v. Yoder, 406 U.S. 205, 235 (1972) (“[C]ourts are not
school boards or legislatures, and are ill-equipped to determine the ‘necessity’ of
discrete aspects of a State’s program of compulsory education.”). Despite this
considerable discretion, courts have recognized that school boards must exercise their
powers “‘in a manner that comports with the transcendent imperatives of the First
Amendment,’” and courts “have been particularly vigilant in monitoring compliance
with the Establishment Clause in elementary and secondary schools.” Edwards v.

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Aguillard, 482 U.S. 578, 583-84 (1987) (quoting Board of Educ., Island Trees Union
Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 864 (1982)).

As the Supreme Court has stated, courts “do not . . . intervene in the resolution
of conflicts which arise in the daily operation of school systems and which do not
directly and sharply implicate basic constitutional values.” Epperson v. Arkansas, 393
U.S. 97, 104 (1968). Cf. Capitol Square Review and Advisory Bd. v. Pinette, 115 S.
Ct. 2440, 2448 (1995) (plurality opinion) (“[O]utsiders or individual members of the
community uninformed about the school’s practice. . . . might leap to the erroneous
conclusion of state endorsement.”).

A.

The applicable test for evaluating whether state action has violated the
Establishment Clause is that established by Lemon v. Kurtzman, 403 U.S. 602, 612-13
(1971). See Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384,
389 n.7 (1993) (“Lemon, however frightening it may be to some, has not been
overruled.”). “In order to satisfy the Lemon test, a challenged governmental action
must (1) have a secular purpose, (2) not have the primary or principal effect of
advancing religion, and (3) not foster an excessive entanglement with religion.” Good
News/Good Sports Club v. School Dist. of Ladue, 28 F.3d 1501, 1508 (8th Cir. 1994)
(footnote omitted) (citing Lemon, 403 U.S. at 612-13). See also Agostini v. Felton,
Nos. 96-552 & 96-553, 1997 WL 338583, at *19 (U.S. June 23, 1997) (“Thus, it is
simplest to recognize why entanglement is significant and treat it . . . as an aspect of
the inquiry into a statute’s effect.”).

The decision to open a school in Vesta furthers the valid secular purpose of
educating the district’s children. See Mueller v. Allen, 463 U.S. 388, 395 (1983) (state
has “secular purpose of ensuring that the State’s citizenry is well educated”); Wolman
v. Walter, 433 U.S. 229, 240 (1977) (“There is no question that the State has a

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substantial and legitimate interest in insuring that its youth receive an adequate secular
education.”); Everson v. Board of Educ. of Ewing Tp., 330 U.S. 1, 7 (1947) (“It is
much too late to argue that legislation intended to facilitate the opportunity of children
to get a secular education serves no public purpose.”). The district’s decision to open
the school in Vesta was based upon the secular reasons of space efficiency, savings in
transportation costs, and the addition of a multi-age classroom and corresponding
reduction in class sizes. Further, the decision forestalled the plans of certain parents
to home-school their children and thus prevented a reduction in the amount of state aid
flowing to the district, funding that benefits all students within the district.

Relying primarily on School Dist. of Grand Rapids v. Ball, 473 U.S. 373 (1985),
and Parents Ass’n of P.S. 16 v. Quinones, 803 F.2d 1235 (2d Cir. 1986), the district
court concluded that the primary effect of the district’s decision to open the school at
Vesta was to promote religion. The court noted that the Vesta school is perceived as
a Brethren school and that the district had thus “create[d] an impermissible
identification of its powers and duties with the religious beliefs of the Brethren.”

Quinones involved a plan to educate Hasidic Jewish girls at a public school by
physically separating a group of classrooms from the rest of the school and dedicating
them for their use, and providing only female public school teachers who would teach
primarily in Yiddish, with English taught as a second language. See Quinones, 803
F.2d at 1237. The Second Circuit concluded that this plan created “a symbolic link
between the state and the Hasidic sect” which appeared to endorse the separatist
religious views of the Hasidic Jews and that the plan thus failed the primary effect test.
See id. at 1241-42.

This case is distinguishable because the Vesta school does not involve the
complete segregation and dedication of part or all of a public facility to a group of
students for religious reasons as in Quinones. That portion of Grand Rapids on which

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the district court relied has now been overruled. See Agostini, 1997 WL 338583, at
**16, 21.

The Vesta school is a public school open to all, and there is no evidence that any
students wishing to attend there have been turned away. Further, that the school
board’s decision to open the Vesta school coincided with certain parents’ desire to see
a public school opened in Vesta does not compel a finding that the primary effect of the
decision was to advance religion or that the district was sending a message of approval
or disapproval of individual religious choices. See Clayton by Clayton v. Place, 884
F.2d 376, 380 (8th Cir. 1989) (“The mere fact a governmental body takes action that
coincides with the . . . desires of a particular religious group . . . does not transform the
action into an impermissible establishment of religion.”). Any incidental benefits to the
Brethren’s religious beliefs are secondary to the primary effect of providing an
additional school for the secular education of Vesta children. Cf. Good News/Good
Sports Club, 28 F.3d at 1508 (incidental benefits to religion from policy of allowing
group access to school property were secondary to primary effect of providing neutral
forum for exchange of ideas).

Although a district may not modify its curriculum to conform to a set of sectarian
beliefs, see Edwards v. Aguillard, 482 U.S. at 593; Epperson v. Arkansas, 393 U.S.
at 106; Pratt, 670 F.2d at 776-79 (removal of film from curriculum), nothing of the sort
has happened here. As evidenced by the material submitted to the district court, the
district’s curriculum has not been altered in any way at the Vesta school, and the same
curriculum is taught at Vesta as at the Wabasso school. While technology was not
initially provided at the Vesta school, and students not exempted from it would have
been bussed to Wabasso to receive it, the record shows that technology is now
available at the Vesta school. Thus, contrary to the district court’s finding, technology
has never been unavailable to students at the Vesta school. In sum, the curriculum--
whether the substantive curriculum or the availability of technology--has not been

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modified or changed in any way at the Vesta school from what is taught at the Wabasso
school.

The district granted the parental requests for exemption from technology
pursuant to Minn. Stat. Ann. § 126.699 and district policy. Granting the parental
requests made pursuant to the statute and the policy served the secular purpose of
facilitating the secular education of children at the Vesta school. Even if the district’s
decision to honor the requests for exemption was motivated by a desire to
accommodate the Brethren parents’ religious beliefs, such accommodation constitutes
a legitimate secular purpose so long as “the relevant governmental decisionmaker . . .
[does not] abandon[] neutrality and act[] with the intent of promoting a particular point
of view in religious matters.” See Corporation of the Presiding Bishop of the Church
of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 334-35 (1987); see also
Lynch, 465 U.S. at 673 (“Nor does the Constitution require complete separation of
church and state; it affirmatively mandates accommodation, not merely tolerance, of all
religions, and forbids hostility toward any.”). The record shows that the district honors
all parental exemption requests, regardless of motivation.

The district’s actions in granting the parental requests for exemption did not have
the primary effect of advancing religion. “A law is not unconstitutional simply because
it allows churches to advance religion . . . . For a law to have forbidden “effects” under
Lemon, it must be fair to say that the government itself has advanced religion through
its own activities and influence.” Amos, 483 U.S. at 337. Although the religious
beliefs of the Brethren parents were accommodated by the granting of their requests
for exemptions, the district itself did not advance religion by honoring those requests.
See id. at 336-37 (any advancement of religion as a result of exemption for religious
groups in Civil Rights Act of 1964 could not be “fairly attributed” to the government).
We conclude that the district’s application of state law and district policy to
grant parental requests for exemption will not result in any excessive entanglement.

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Because the record shows that the district grants all parental exemption requests and
routinely provides alternative instruction, its policy actually “promotes less, rather than
more,” involvement with religion because the district avoids considering parents’
motivations--including religious motivations--for requesting exemptions. See Clayton,
884 F.2d at 379; Good News/Good Sports Club, 28 F.3d at 1510 (no excessive
entanglement where, in applying open-access school use policy, school would not have
to distinguish among types of groups wanting to use school). The teachers have altered
their teaching methods only to the extent necessary to accommodate the parental
exemption requests, as they would any exemption request. See Agostini, 1997 WL
338583, at *20 (“Entanglement must be ‘excessive’ before it runs afoul of the
Establishment Clause.”); Wolman, 433 U.S. at 248 (“It can hardly be said that the
supervision of public employees performing public functions on public property creates
an excessive entanglement between church and state.”); cf. Mueller, 463 U.S. at 403
(no excessive entanglement from requirement that state officials examine textbooks to
determine if they qualify for tax deduction so that deductions for sectarian books could
be disallowed).

In conclusion, neither the decision to open the Vesta school nor the district’s
application of the exemption policies violates the Lemon test. Both actions had a
secular purpose and did not have the primary effect of advancing religion or endorsing
the Brethren’s religious beliefs. Cf. Agostini, 1997 WL 338583, at *21.

B.

Stark and Neely argue that the present case involves a situation that is
indistinguishable from that in Board of Educ. of Kiryas Joel Village Sch. Dist. v.
Grumet, 512 U.S. 687 (1994). In that case, the Supreme Court held unconstitutional
a special state statute which created a school district for a village defined exclusively
along religious lines. See id., 512 U.S. at 693. The “fundamental source of
constitutional concern” in Kiryas Joel was that the legislature had not exercised its

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power in a manner neutral to religion. See id. at 703. The Court was concerned that
“[b]ecause the religious community of Kiryas Joel did not receive its new governmental
authority simply as one of many communities eligible for equal treatment under a
general law, we have no assurance that the next similarly situated group seeking a
school district of its own will receive one.” Id. (footnote omitted). This lack of
neutrality forced the Court to conclude that the creation of the school district violated
the Establishment Clause. See id. at 704-05. Further, the legislation could not be
saved by viewing it as an accommodation of religion because the “proposed
accommodation singles out a particular religious sect for special treatment,” violating
the principle of “neutrality as among religions.” Id. at 706-07.

This case is not Kiryas Joel. As we discussed earlier, the record does not
support Stark’s and Neely’s contention that the district has taken special actions to
wrongly benefit the Brethren, and the fact that the district’s actions coincide with the
desires of certain parents does not mean that the Establishment Clause has been
violated. See Clayton by Clayton, 884 F.2d at 380.7 The district here decided, for
secular reasons, to open a public school in a building in which a public school had
previously been located, a school that is open to all students regardless of religious
affiliation. The district grants the requests of all parents for exemptions regardless of
religious affiliation.

The extension of a benefit through the neutral application of state law and the
district’s policy to allow parental requests for exemption from curriculum--even if those
requests are motivated by the religious reasons of the parents and the honoring of the
requests accommodates those religious beliefs--does not violate the Establishment
Clause. The Supreme Court has said:

7
There has been no delegation of political power to the Brethren community in
this case. Cf. Kiryas Joel, 512 U.S. at 697-702 (plurality opinion) (delegation of
political power to group chosen by religious criteria).

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-15-
 A central lesson of our decisions is that a significant factor in upholding
governmental programs in the face of Establishment Clause attack is their
neutrality towards religion. . . . We have held that the guarantee of
neutrality is respected, not offended, when the government, following
neutral criteria and evenhanded policies, extends benefits to recipients
whose idealogies and viewpoints, including religious ones, are broad and
diverse.

Rosenberger v. Rector and Visitors of the Univ. of Virginia, 115 S. Ct. 2510, 2521
(1995); see also Agostini, 1997 WL 338583, at *18 (“[W]here the aid is allocated on
the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made
available to religious and secular beneficiaries on a nondiscriminatory basis . . . the aid
is less likely to have the effect of advancing religion.”).

The state action in this case is well within the boundaries set by cases in which
the Supreme Court has upheld “government programs that neutrally provide benefits
to a broad class of citizens defined without reference to religion.” Zobrest v. Catalina
Foothills Sch. Dist., 509 U.S. 1, 8 (1993). See, e.g., Rosenberger, 115 S. Ct. at 2521-
25 (neutral program paying for printing of student publications); Zobrest, 509 U.S. at
10-14 (sign-language interpreter for deaf student at Catholic high school); Witters v.
Washington Dep’t of Servs. for the Blind, 474 U.S. 481, 486-89 (1986) (vocational
assistance for blind person studying for religious vocation at Christian college);
Mueller, 463 U.S. at 396-99 (tax deduction for educational expenses); Widmar v.
Vincent, 454 U.S. 263, 273-75 (1981) (open access to university facilities); Wolman,
433 U.S. at 237-48 (textbooks, testing, diagnostic and therapeutic services); Board of
Educ. of Central Sch. Dist. No. 1 v. Allen, 392 U.S. 236, 243-44 (1968) (textbooks);
Everson, 330 U.S. at 17 (bussing reimbursement). Indeed, by granting exemptions
without regard to parental motivations, the district has adhered to the principle that “[a]
proper respect for both the Free Exercise and the Establishment Clauses compels the
State to pursue a course of neutrality toward religion, favoring neither one religion

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over others nor religious adherents collectively over nonadherents.” Kiryas Joel, 512
U.S. at 696 (quotation omitted).

To the extent that the district’s application of the state law and district policy to
grant the parental requests for exemption can be viewed as accommodating religion by
removing a burden from the Brethren families (forcing their children to use technology),
such action does not offend the Establishment Clause. “[T]he Constitution [does not]
require complete separation of church and state; it affirmatively mandates
accommodation.” Lynch, 465 U.S. at 673. The Establishment Clause is not violated
when the government accommodates religious beliefs “by relieving people from
generally applicable rules that interfere with their religious callings.” Lee v. Weisman,
505 U.S. 577, 627 (1992) (Souter, J., concurring); id. at 628 (“accommodating religion
reveals nothing beyond a recognition that general rules can unnecessarily offend the
religious conscience when they offend the conscience of secular society not at all”);
Amos, 483 U.S. at 334 (“This Court has long recognized that the government may (and
sometimes must) accommodate religious practices and that it may do so without
violating the Establishment Clause.” (quoted case omitted)). The district’s actions in
this case follow our best traditions of the accommodation of religious beliefs in the
school context. See, e.g., Yoder, 406 U.S. at 234; Zorach v. Clauson, 343 U.S. 306,
312-15 (1952); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642
(1943).

C.

Finally, we examine the district’s actions under the “endorsement test.” See
Kiryas Joel, 512 U.S. at 720 (“Experience proves that the Establishment Clause . . .
cannot easily be reduced to a single test.”) (O’Connor, J., concurring in part and
concurring in the judgment). The Supreme Court has “paid particularly close attention
to whether the challenged governmental practice either has the purpose or effect of
‘endorsing’ religion, a concern that has long had a place in our Establishment Clause

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jurisprudence.” County of Allegheny v. American Civil Liberties Union Greater
Pittsburgh Chapter, 492 U.S. 573, 592 (1989). The endorsement test has been thus
explained:

[T]he Establishment Clause “prohibits government from making
adherence to a religion relevant in any way to a person’s standing in the
political community.” The government violates this prohibition if it
endorses or disapproves of religion. “Endorsement sends a message to
nonadherents 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.”

Id. at 625 (O’Connor, concurring in part and concurring in the judgment) (quoting
Lynch, 465 U.S. at 687-88 (O’Connor, J., concurring)).

As we have discussed, the district has acted neutrally in this case towards the
citizens of the district regarding the decision to open the school in Vesta and in
applying the exemption policy. Thus, the district has not made anyone’s adherence to
religion relevant to their standing in the community and consequently has not endorsed
religion or a set of religious beliefs.

In sum, the district’s actions in this case have not violated the Establishment
Clause.

Minnesota Constitution

We must also consider how the district’s actions fare under the Minnesota
Constitution, for the “limitations contained in the Minnesota Constitution are
substantially more restrictive than those imposed by U.S. Const. Amend. I.”
Americans United Inc. v. Independent Sch. Dist. No. 622, 179 N.W.2d 146, 155
(Minn. 1970). The district court did not separately analyze the state constitutional

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issue, but declared that because the district’s actions violated the federal constitution
they also violated the state constitution. The issue was briefed on appeal, however, and
we exercise our discretion to resolve it because it can be decided as a matter of law.
See Hutchins v. Champion Int’l Corp., 110 F.3d 1341, 1345 (8th Cir. 1997) (citing
Talley v. United States Postal Serv., 720 F.2d 505, 508 (8th Cir. 1983)).

The Minnesota constitutional provisions preventing the establishment of religion
provide in relevant part that “nor shall any money be drawn from the treasury for the
benefit of any religious societies or religious or theological seminaries,” Minn. Const.
Art. I, § 16, and that “[i]n no case shall any public money or property be appropriated
or used for the support of schools wherein the distinctive doctrines, creeds or tenets of
any particular Christian or other religious sect are promulgated or taught.” Minn.
Const. Art. XIII, § 2. The “fundamental concept” is “that the state may neither
advance nor inhibit religion, which . . . defines permissible limits of legislation under
state . . . law.” Americans United, 179 N.W.2d at 157. The “establishment clauses
prohibit both ‘benefits’ and ‘support’ to schools teaching distinctive religious
doctrines.” Minnesota Fed’n of Teachers v. Mammenga, 500 N.W.2d 136, 138 (Minn.
Ct. App. 1993).

As shown above, no religious instruction takes place at the Vesta school, and
there is no expenditure of public funds in support of the teaching or promulgating of
religious beliefs. Accordingly, we conclude that no violation of the state constitution
has occurred.

Conclusion

The injunction is vacated, and the case is remanded to the district court with
directions to dismiss the complaint.

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MURPHY, Circuit Judge, dissenting.

Because I believe that the establishment by the public school district of this
special school in Vesta for children of the Brethren goes beyond what is permitted by
the first amendment to the United States Constitution, I respectfully dissent.

The district entered into a contractual arrangement with the religious group
known as the Brethren to operate a special public school in Vesta tailored to meet the
group's religious concerns. Before 1984 the district operated two elementary schools:
one in Wabasso and one fourteen miles away in Vesta. After the school in Vesta was
closed for economic reasons, children of the Brethren either attended the regular public
elementary school in Wabasso or were homeschooled. Various accommodations were
made at Wabasso to respect the religious beliefs of the Brethren, such as providing
separate tables for their children at lunch and excusing them from activities that
involved technological devices. Their opposition to the use of technology includes any
use of television, radio, audio and video recordings, computers, or movies.

During 1992-93, the Brethren proposed a joint venture with the school district
to reopen the elementary school in Vesta and this proposal was approved at a meeting
of the school board in February 1993. The minutes of the meeting and
contemporaneous newspaper accounts indicate that the school was identified with the
Brethren. One such news story stated in part:

The Wabasso Board of Education has reached an agreement with
the Vesta Brethren to proceed with plans for a K-6 elementary school at
Vesta this fall.

....

If it is legally possible to establish this school, it would be operated
without the assistance of modern technology such as computers, and

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 video and audio equipment. The reasoning behind this is that the
Brethren’s religious beliefs prohibit them from using such items, and this
has created a conflict in trying to send their children to the public school
in Wabasso, which uses such teaching tools and methods.

To eliminate the need to remove these children from the public
school environment and teach them at home, the Brethren made the
proposal for a second school in Vesta last year.

Vicki L. Gerdes, "Agreement is Reached on Proposed School in Vesta," Redwood
Gazette, June 17, 1993.

On October 12, 1993, the Brethren, the school district, and Lloyd Paskewitz
entered into a formal written agreement to operate a public elementary school in Vesta.8
Paskewitz had previously purchased the Vesta school building, and the building was
made available under the agreement for the district to use free of charge. Paskewitz
and the Brethren also agreed to be responsible for all maintenance, security, taxes, and
insurance. In return the district would provide a teacher and educational materials and
limit the use of technology. Section 6 of the Agreement provides:

The School District shall, to the extent permitted under applicable law and
rules and regulations adopted by the School Board of the School District,
limit the use of technology such as television, radio, audio and/or video
recordings, computers and movies in the classrooms at the school
provided for herein.

Sections 8 and 9 indicate that the district envisioned a different set of academic
offerings at the Vesta school than at the public school in Wabasso. These sections

8
The majority finds "little significance" in the fact that the Brethren were party
to the lease, but the group's inclusion is significant in light of the district's claim that it
did not take into account the religious background or beliefs of those who requested
exemptions from the standard curricula.

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reserve to the district the right to provide special education, health, music, physical
education classes, and hot lunches at the Wabasso elementary school for any students
at Vesta who might want to participate in these normally available programs which
would not be offered at Vesta because of the preferences of the Brethren.

The Brethren were actively involved in other ways in the reopening of the Vesta
school. Lloyd Paskewitz and several other members of the Brethren participated in the
interviews conducted to select a teacher for the new school. It is undisputed that it was
unprecedented to have non-district employees present at such interviews. On June 1,
1993, Lloyd Paskewitz provided Superintendent Bates with a list of 19 children who
planned to attend the school in Vesta, and only these children eventually enrolled in the
school.

There are significant differences between the curricula offered at Vesta and
Wabasso. Although the official curricula adopted for the Vesta school calls for at least
one half hour of computer lab each week and district officials claim computer
technology is available at Vesta, computer training has never been offered. Other
forms of technology to which the Brethren object, such as television, video players, and
films, have not been used at Vesta, although they are regularly used at Wabasso. The
health offerings at Vesta are also not the same as those offered at Wabasso. The drug
awareness education programs used in the Wabasso school for kindergarten through
sixth grade are not available at Vesta. Although the official curricula at Vesta requires
one half hour of physical education each day “with specialists,” it is presented in an
unstructured manner by a parent volunteer who has no formal training in physical
education. At Wabasso it is taught in a structured manner by a physical education
teacher. The Vesta curricula officially requires at least an hour of musical instruction
each week, but the record does not indicate that music is actually offered. If a child at
the Vesta school wants such standard curricula offerings, he or she must make a special
request and then commute thirty miles in the middle of the school day to Wabasso for
health, physical education, or music classes.

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 The facts of this case show an abandonment of the principle of state neutrality
in religious matters which underlies establishment clause jurisprudence. See Board of
Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 114 S. Ct. 2481, 2487 (1994). The
first amendment prohibits the state from favoring one religion over another or from
favoring religious adherents collectively over non-adherents. Id. (citing Epperson v.
Arkansas, 393 U.S. 97, 104 (1968)). Religious neutrality is particularly important in
the context of elementary and secondary schools, where the students are impressionable
and attendance is involuntary. Edwards v. Aguillard, 482 U.S. 578, 583-84 (1987).
While the Supreme Court "has long recognized that the government may (and
sometimes must) accommodate religious practices and that it may do so without
violating the Establishment Clause,” Corporation of the Presiding Bishop of the
Church of Jesus Christ of Latter Day Saints v. Amos, 483 U.S. 327, 334 (1987)
(citations and quotations omitted), “accommodation is not a principle without limits,”
and at some point accommodation may devolve into an unlawful fostering of religion.
Kiryas Joel, 114 S. Ct. at 2492; Amos, 483 U.S. at 334. An asserted motivation of
religious accommodation, even if justified by reference to a state statute, cannot shield
governmental actions that otherwise violate the principle of neutrality embedded in the
establishment clause. See Kiryas Joel, 114 S. Ct. at 2493.9

Here the school district has done far more than grant individual exemptions to
aspects of the public school curricula under state law, for it has entered into a
contractual relationship with members of a religious group to tailor a school to their
preferences. The district has agreed to limit the use of technology not for pedagogical
reasons, but to match the tenets of a single religious group. It also modified the health,
music, physical education, and computer curricula normally offered. The district has
acted to create a school where a student interested in participating in the standard

9
The district's decision to reopen the school by entering into a special written
agreement with a religious group could not have been motivated by statutory duties
because the district approved the proposal from the Brethren to reopen the school in
February 1993 and Minn. Stat. § 126.699 (1996) was not passed until May 1993.

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health, physical education, music, or computer offerings must make a special request
and/or commute almost thirty miles during the school day to obtain such regular
educational services at Wabasso. It is not surprising that non-Brethren children have
not enrolled at Vesta.

This case is similar to Kiryas Joel where the Supreme Court found that the
creation of a school district based on the religious affiliation of the community members
was unconstitutional because it impermissibly singled out a particular religious group
for special treatment. 114 S. Ct. at 2491. The village of Kiryas Joel had been
established as an enclave for a particular sect of Hasidic Jews called the Satmars who,
like the Brethren, eschewed much of the modern world and maintained a very isolated
community. The Satmar children were normally educated in private religious schools
in the village, but these parochial schools did not provide services for handicapped
students as required by state law. The New York legislature created a special school
district that conformed to the boundaries of the village so that services for handicapped
children could be provided in a way acceptable to the Satmars. Since the community
of Kiryas Joel did not receive its benefit "simply as one of many communities eligible
for equal treatment under a general law," there was no guarantee that the next religious
community desiring its own school district would be given one and the arrangement
was unconstitutional. Id.

Like the legislature in Kiryas Joel, the school district has singled out a particular
religious group for benefits by setting up a school the Brethren find acceptable in order
to retain their participation in the public school system. There is no guarantee that the
next religious group in the district (or elsewhere in the state) could obtain a special
school for its members supported with a publicly funded teacher teaching a modified
curricula in accordance with their religious beliefs. The establishment of the school in
Vesta thus violates the principle of neutrality and "crosses the line from permissible
accommodation to impermissible establishment." Id.

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 The district argues it reopened the Vesta school to provide a better public
education by transporting fewer students from Vesta to Wabasso, reducing the class
size in Wabasso, and by lessening a space shortage there as well, but these purposes
could have been carried out by reopening the Vesta school as it had operated before
without a special signed agreement with the Brethren. The only reason the Brethren
are involved is that the district presumably could not afford to reopen the Vesta school
without the financial assistance they provided directly in the agreement and indirectly
by enrolling their children in the public school system. Even if the district was
motivated by improving the overall quality of education in its area, it established a
school in which the curricula conformed to the religious objections of the Brethren in
exchange for financial assistance. This is not an acceptable secular purpose. See
Epperson, 393 U.S. at 106 (“There is and can be no doubt that the First Amendment
does not permit the State to require that teaching and learning must be tailored to the
principles or prohibitions of any religious sect or dogma.”); Edwards, 482 U.S. at 593
(striking down Louisiana’s Creationism act because the “purpose of the . . . Act was
to restructure the science curriculum to conform with a particular religious viewpoint”);
Pratt v. Independent Sch. Dist. No. 831, 670 F.2d 771 (8th Cir. 1982) (removing a film
from a school curriculum based on religious objections violated the Establishment
Clause).

An impermissible effect of governmental action is one that endorses or promotes
religion. County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 592-
601 (1989); Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 17 (1989). Whether the
primary effect is the impermissible endorsement of religion can be measured by what
reasonable observers, including non-adherents, would conclude. Allegheny, 492 U.S.
at 595, 627-32 (plurality opinion). As the district court pointed out, the way in which
the school was reopened and operated created a perception in the community that the
school was really just for the children of the Brethren even though it was theoretically
open to all students. The effect of establishing the school was thus an endorsement of
the Brethren’s beliefs.

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 The majority relies on Clayton by Clayton v. Place, 884 F.2d 376 (8th Cir.
1989), for the idea that state action which coincidentally mirrors certain religious
beliefs does not have the effect of promoting religion. Clayton upheld a rule prohibiting
dances at public schools where there was no evidence in the record to indicate why the
rule had been passed. Id. at 378, 380. In contrast, the actions of the district regarding
the school in Vesta did not simply coincide with the beliefs of the Brethren. The record
reflects direct involvement of the Brethren in organizing and financing the school. Mr.
Paskewitz’s letter, the meetings of the school board, and the formal written agreement
between the district and the Brethren, all indicate that but for the religious concerns and
financial support of the Brethren, the school in Vesta would never have been reopened
or operated in the current manner. Here there is far more than mere coincidence
between the modifications of the Vesta school program and the beliefs of the Brethren.
The district contends the Vesta school does not advance religion because it is
open to all students and the same curricula available at Wabasso is available to Vesta
students willing to bus to Wabasso for specific classes, but it is appropriate to look
beyond the theory to examine the practical reality of the situation. See Kiryas Joel, 114
S. Ct. at 2488-89 (looking at effect of statute, not its form); Lee v. Weisman, 505 U.S.
577, 593, 595 (1992) ("subtle and indirect" pressure to participate in religious
ceremony can be as real as overt compulsion; "law reaches past formalism"); Edwards,
482 U.S. at 586-87 (“While the Court is normally deferential to a State’s articulation
of a secular purpose, it is required that the statement of such purpose be sincere and not
a sham.”). The contemporaneous newspaper accounts indicate the Vesta school is
considered by both Brethren and non-Brethren citizens to be a school for the Brethren
children. The Vesta school creates the perception that the state has singled out the
Brethren for special, preferential treatment by modifying the standard curricula to fit
their religious objections. Such treatment has the primary effect of creating a state
endorsement of the religious views of the Brethren, Edwards, 482 U.S. at 593
(“preference” for particular religious beliefs constitutes an endorsement of religion),
and cannot be reconciled with the establishment clause cases which require the

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government to adopt a neutral position toward religion. See, e.g., Kiryas Joel, 114 S.
Ct. at 2487; Wallace v. Jaffee, 472 U.S. 38, 52-54; Epperson, 393 U.S. at 104.

Three primary criteria are helpful in considering whether state action has the
effect of advancing religion: whether it results in government indoctrination of religious
beliefs, whether it defines the aid recipients by reference to religion, and whether it
creates an excessive entanglement between the state and religion. Agostini v. Felton,
Nos. 96-552, 96-553, 1997 WL 338583 (U.S. June 23, 1997) at *21. Applying these
factors to the facts of this case, the actions of the district have the impermissible effect
of advancing religion.

Aid that furthers the educational function of religious schools is no longer
presumed to be invalid per se, Agostini, 1997 WL 338583, at *15, but state action may
impermissibly indoctrinate religious beliefs when it provides direct aid to religious
institutions or when it relieves sectarian institutions of costs they otherwise would bear.
Id. at *17; see also Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 12 (1993).
Although the Vesta school is theoretically open to the public, the district's actions are
suspect because they relieve the Brethren of costs they would have otherwise borne in
homeschooling or establishing their own school. If this arrangement were upheld, it
would no longer be necessary for Catholic, Lutheran, Jewish, or Muslim communities
to expend the resources required to establish separate parochial schools. They could
also offer a district free rent in a building they own in exchange for a teacher and
teaching materials and obtain a religiously homogeneous school with basic educational
instruction to their liking. This is the type of direct subsidization that has the effect of
advancing religion. Agostini, 1997 WL 338583, at *17; Meek v. Pittenger, 421 U.S.
349, 365-66 (1975) (lending instructional materials and equipment to sectarian schools
has the effect of advancing religion).

Aid provided to all eligible children on the basis of neutral, secular criteria
regardless of where they attend school is permissible because it does not define

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recipients on the basis of religion and does not provide incentives for recipients to
modify there religious beliefs. Agostini, 1997 WL 338583, at *18-19; see also Widmar
v. Vincent, 454 U.S. 263, 274 (1981) . In contrast, the effect of the Vesta operation
is to provide a benefit for the Brethren which it does not provide for non-Brethren. The
Brethren children can now obtain a publicly financed education in Vesta that conforms
with their particular religious beliefs, while non-Brethren children, either with or
without the reopened Vesta school, must still commute to Wabasso if they want to
receive all of the curricula regularly offered by the district. The actions of the district
violate the establishment clause because they have the effect of singling out the
Brethren for a special benefit.

State aid or action will also advance religion if it leads to an excessive
entanglement between church and state.10 The test for an impermissible entanglement
examines the character and purposes of the institutions benefitted, the nature of the aid
provided, and the resulting relationship between the government and the religious
authority. Agostini, 1997 WL 338583, at *19 (quoting Lemon v. Kurtzman, 403 U.S.
602, 615 (1971)). Here, the district has entered into a contractual relationship with a
religious group for mutual benefit, essentially forming a partnership between the
Brethren and the district to open and operate the Vesta school with a curricula
acceptable to the religious group.

There are many competing values in our richly diverse society, and the religion
clauses of the first amendment protect the rights of all to practice the religion of their
choice and also prevent the government from preferential advancement of any one
religious group. Because the school district's establishment of the special school at
Vesta crosses over the line permitted under the Constitution, I dissent.

10
Agostini states that previous cases have essentially collapsed the "effect" and
"entanglement" prongs of the Lemon test. Id. at *19.

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A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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