Garnett ex rel. Smith v. Renton School District No. 403

874 F.2d 608, 1989 WL 49304
Court of Appeals for the Ninth Circuit·Decided January 17, 1989·No. No. 88-3552·Published·Cited by 1 cases

Opinion

FARRIS, Circuit Judge:

Richard Garnett and other Lindbergh High School students sought a district court order requiring the Renton School District to allow their student religious group to meet in a high school classroom prior to the start of the school day. The students appeal the district court’s orders denying their motion for a preliminary injunction and entering judgment for the school district on the merits. The students claim: 1) the First Amendment requires that the school district permit their group to meet; and 2) the Equal Access Act requires that the school district permit their group’s meetings.

FACTS

Lindbergh High School is a public secondary school in the Renton School District. The district makes classrooms available during noninstructional time for use by students participating in approved “co-curricular” activities. The district’s board of directors and superintendent determine whether to approve an activity based on District Policy 6470 which provides:

[t]he criteria to be used for approving co-curricular activities should include but not be limited to:
1. the purposes and/or objectives shall be an extension of a specific program or course offering,
2. the activity shall be acceptable to the community,
3. the activity should have carry-over values for lifetime activities,
4. the group shall be supervised by a qualified employee,
5. the cost of the activity must not be prohibitive to student or District,
6. the activity must comply with Title IX requirements,
7. the activity must take place on school premises unless approved in advance by the school principal, and
8. the activity must not be secretive in nature.

Policy 6470 also states that the district “does not offer a limited open forum.”

Garnett and others asked Lindbergh's principal and the school district for permission to use a Lindbergh classroom for weekday morning meetings of their non-denominational Christian student group. The group wished to discuss religious and moral issues, read the Bible, and pray. The principal and the district denied the group’s [610]*610requests because the club was not curriculum related and because allowing the proposed meetings would violate the Establishment Clause.

Members of the Christian group brought suit in U.S. District Court and moved for a preliminary injunction requiring the district to allow them to use a classroom for meetings. The district court denied the students’ motion for a preliminary injunction and entered judgment in favor of the school district.

STANDARD OF REVIEW

This appeal involves questions of law which are reviewed de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). Application of the Equal Access Act involves a “mixed question” of application of law to facts. The district court’s application of the Act is not the sort of “essentially factual” inquiry which warrants application of the deferential clearly erroneous standard to a “mixed question.” Id. at 1202 (citing Pullman-Standard v. Swint, 456 U.S. 273, 288, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982). Rather, application of the Act requires “the consideration of legal principles,” id. at 1204, of statutory interpretation and constitutional law, and is therefore subject to the general rule that “mixed questions will be reviewed independently.” Id. The district court’s findings concerning underlying historical facts, however, are reviewed for clear error. See Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 106 S.Ct. 1527, 89 L.Ed.2d 739 (1986).

I. THE FIRST AMENDMENT

A. The Establishment Clause

The Establishment Clause of the First Amendment, applied to the states through the Fourteenth Amendment, Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), prohibits state action “respecting an establishment of religion.” U.S. Const, amend. I. The Supreme Court has applied the three-part “Lemon test” to determine whether state action comports with the Establishment Clause. First, the action must have a secular purpose. Second, the action’s primary effect must be one that neither advances nor inhibits religion. Third, the action must not result in excessive entanglement of government with religion. Edwards v. Aguillard, 482 U.S. 578, 107 S.Ct. 2573, 2577, 96 L.Ed.2d 510 (1987) (citing Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971)).

1. Secular Purpose

Allowing the requested meeting of this particular student religious group in a public high school classroom at a time closely associated with the school day would violate the Establishment Clause. We recognize that such an action might arguably have the secular purpose of allowing equal access to school facilities. See Brandon v. Board of Educ. of Guilderland Central School Dist., 635 F.2d 971, 978-79 (2d Cir.1980). But it would also violate the Establishment Clause under both the second and third parts of the Lemon test. It would have the primary effect of advancing religion, and it would foster government entanglement with religion.

2. Primary Effect of Advancing or Inhibiting Religion

The second part of the Lemon test evaluates whether state action merely neutrally accommodates religion or unconstitutionally sponsors religion. Government may accommodate religious practices to avoid impinging on the right to freely exercise religious beliefs. Brandon, 635 F.2d at 975 (2d Cir.1980). Thus, government need not withhold generally available benefits from a religious organization simply because the organization is religious. Roemer v. Board of Public Works, 426 U.S. 736, 746-47, 96 S.Ct. 2337, 2344-45, 49 L.Ed.2d 179 (1976).

Government may not, however, take actions which even appear to sponsor religion. Thus, even insignificant amounts of direct aid to religious groups violate the Establishment Clause. In Everson v. [611]*611Board of Educ., 330 U.S. 1, 16, 67 S.Ct. 504, 511, 91 L.Ed.

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Garnett ex rel. Smith v. Renton School District No. 403, 874 F.2d 608, 1989 WL 49304 (9th Cir. 1989).

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