Missouri school board slapped down yet again

Back in August 2007 this blog discussed Doe v. South Iron R-1 School District, a case in which parents with children attending a Missouri public school challenged on Establishment Clause grounds a school board policy allowing members of the Gideon Society to enter classrooms during instructional time and hand out Bibles to fifth graders. To recap briefly, the parents sued the school district in federal court, seeking among other things a preliminary injunction preventing the board from enforcing the policy.

Ten days before the preliminary injunction hearing, the board adopted a new, supposedly religion-neutral policy. At the hearing the board’s attorney contended that the new policy rendered the entire case moot. The trial judge granted the preliminary injunction anyway, and the U.S. Court of Appeals for the Eighth Circuit affirmed.

Back then I wondered “[h]ow any lawyer could argue for the Board’s mootness contention with a straight face . . . .” Well, now we know.

Earlier this week the trial judge granted the parents’ motion for summary judgment on their federal constitutional claims. Roark v. South Iron R-1 Sch. Dist. (pdf, 42 pages). In her latest opinion the judge informs us that the board’s attorneys were none other than Dissemblin’ Mat Staver and his merry band of theocratic zealots collectively known as Liberty Counsel. Dissemblin’ Mat & Co., no doubt painfully aware that the old policy stood no chance of surviving Establishment Clause scrutiny, drafted the policy adopted shortly before the preliminary injunction hearing.

Anyhoo, after the Eighth Circuit affirmed the preliminary injunction last August, the case proceeded along the normal lines in the trial court. Both sides filed motions for summary judgment on the federal constitutional claims. After those motions were fully briefed, the board amended its policy again.

The parents filed a motion to strike the district superintendent’s affidavit, which was the board’s sole evidence regarding the content of the new policy.  The judge noted the obvious, namely that “defendants’ repeated behavior of making changes to their policy at the last minute and then arguing that such changes radically alter the constitutionality of their actions is frustrating and appears intended to evade final review.” Even so, the judge left the late-filed affidavit in the record because the statements therein “do not alter my decision . . . .”

On the merits, the judge ruled that the old policy was unconstitutional and that the amended policy  didn’t obviate the need for declaratory or injunctive relief:

Based on the timing and the character of the defendants’ past actions, I cannot conclude that the defendants had bona fide motives and were passing the new policy with a genuine intent to comply with the law.

The judge also held that the “[t]he new policy is a mere continuation of the past unconstitutional behavior.” Although courts will usually defer to a legislative body’s declaration of the purpose underlying its actions, the board made no such declaration in connection with the new policy:

The silence of the School Board when passing the new policy not only leaves this Court with no statement of governmental purpose, it also indicates no repudiation or change of heart on the part of the School Board members. This silence, in combination with the history and evolution of the new policy, including the timing of its passage, would lead a reasonable observer to believe that the Board’s purpose has not changed.

The purpose behind the old policy was patently religious in nature, and the board’s efforts at polishing a turd failed.

The court granted the parents’ motion for summary judgment on the federal constitutional claims. Still remaining for adjudication are the parents’ claims that the board’s past and present policies violate the Missouri Constitution. The judge says that once those claims are resolved, she will enter a final judgment in the plaintiffs’ favor declaring all the boards’ policies violative of the Establishment Clause and permanently enjoining their enforcement. Until then, the preliminary injunction remains in effect.

Chalk one up for the good guys, but it ain’t over yet. The board plans another appeal.  We can only wonder how many additional disingenuous changes the policy will undergo between now and the time the Eighth Circuit rules again.

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