Eighth Circuit Gets it Right in Establishment Clause Case

This case follows that all-too-familiar “A lie in the service of Jesus is no lie at all” pattern. A fundy school district in Missouri had a policy allowing members of the Gideon Society to enter public school classrooms during instructional time and distribute Bibles to students. The apparently sane Superintendent of Schools discontinued the policy, and the good Christian folk within the district went apeshit. At a February 2005 meeting of the School Board, the Superintendent advised that he made his decision based on multiple “legal sources,” including the advice of the school district’s attorney, that the Bible distribution practice was unlawful.

The School Board voted 4-3 “to pretend this meeting never happened, and to continue to allow the Gideons to distribute Bibles as we have done in the past.” The ACLU protested.

At a September 2005 meeting the Superintendent read letters from the ACLU, the school district’s lawyer and the district’s insurance company advising that the practice was illegal. Undeterred, the same 4-3 majority voted to keep distributing Bibles.

The Superintendent resigned over the issue, and the district’s attorney begged the Board to reconsider its ruling. The Board’s response: “Go fuck your momma.”

In February 2006 a group of parents filed suit in federal court alleging an Establishment Clause violation and requesting an injunction prohibiting further Bible distributions. The Board again refused to rescind the practice despite being advised that the district’s insurance company would not defend the lawsuit because the Board was committing “an intentional violation of the Establishment Clause and the Missouri Constitution.”

After some procedural machinations, the trial judge set an August 17, 2006 hearing date for the preliminary injunction request. Ten days before the hearing, the Board adopted a written, putatively neutral, distribution-of-materials policy that its attorney argued rendered injunctive relief unnecessary and/or moot.

The trial court issued an injunction barring “Defendants and any persons acting in concert with them . . . from distributing or allowing distribution of Bibles to elementary school children on school property at any time during the school day.”

In a decision issued yesterday, the U.S. Court of Appeals for the Eighth Circuit affirmed. In response to the Board’s “argument” that the injunction was improper because it was content-based, the court of appeals essentially said, “Well, no shit. That’s pretty much the whole idea”:

The [Supreme] Court’s Establishment Clause decisions prohibiting, for example, school prayer or posting the Ten Commandments in public schools are inherently based upon content-based distinctions; “apart from its content, a prayer is indistinguishable from a biology lesson.”

As for the Board’s roaring disingenuous eleventh-hour adoption of a written distribution policy and its contention that the new policy mandated dismissal of the case, the court held:

The district court noted that the District’s “last-minute change in policy, coupled with the lack of any significant factual record, confuses the issues.” The court then carefully considered “whether the new policy moots the need for an injunction.” The court concluded that the need for injunctive relief was not moot because it is “highly likely” that the Gideons or the Ministerial Alliance will request permission to distribute Bibles to elementary children during the school day, and the Board members have stated their intention to grant that request with or without the new policy. We agree with this conclusion.

How any lawyer could argue for the Board’s mootness contention with a straight face escapes me.

The case is Doe v. South Iron R-1 Sch. Dist (PDF, 10 pages).

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