RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Rusk v. Crestview Local No. 02-3991 ELECTRONIC CITATION: 2004 FED App. 0267P (6th Cir.) School District, et al. File Name: 04a0267p.06 _________________ UNITED STATES COURT OF APPEALS COUNSEL FOR THE SIXTH CIRCUIT ARGUED: Scott C. Peters, BRITTON, SMITH, PETERS & _________________ KALAIL, Cleveland, Ohio, for Appellants. Scott T. Greenwood, AMERICAN CIVIL LIBERTIES UNION OF STEVE RUSK , Individually and X OHIO FOUNDATION, Cleveland, Ohio, for Appellee. as the Father, Natural - ON BRIEF: David A. Rose, David Kane Smith, BRITTON, Guardian and Next Friend of - SMITH, PETERS & KALAIL, Cleveland, Ohio, for - No. 02-3991 Appellants. Jillian S. Davis, Raymond Vasvari, AMERICAN Daniel and David Rusk, - CIVIL LIBERTIES UNION OF OHIO FOUNDATION, Minors, > Cleveland, Ohio, for Appellee. Nathan A. Adams IV, , Plaintiff-Appellee, - CENTER FOR LAW AND RELIGIOUS FREEDOM, - Annandale, Virginia, Walter M. Weber, Jay A. Sekulow, v. - AMERICAN CENTER FOR LAW AND JUSTICE, - Washington, D.C., for Amici Curiae. CRESTVIEW LOCAL SCHOOL - _________________ - DISTRICT, et al., - OPINION Defendants-Appellants. - _________________ N Appeal from the United States District Court COOK, Circuit Judge. Defendant-Appellant Crestview for the Northern District of Ohio at Toledo Elementary School appeals the district court’s grant of partial No. 01-07239—James G. Carr, District Judge. summary judgment in favor of Plaintiff-Appellee Steve Rusk on Rusk’s action challenging Crestview’s practice of placing Argued: February 4, 2004 flyers from community organizations advertising religious activities in students’ school mailboxes. The district court, Decided and Filed: August 12, 2004 ruling that Crestview’s practice violated the Establishment Clause of the First Amendment, issued a permanent Before: BATCHELDER, GIBBONS, and COOK, Circuit injunction barring Crestview from distributing flyers Judges. advertising religious activities. We conclude that Crestview’s practice does not violate the Establishment Clause, and therefore we reverse the district court’s ruling and grant summary judgment in favor of Crestview.

1 No. 02-3991 Rusk v. Crestview Local 3 4 Rusk v. Crestview Local No. 02-3991 School District, et al. School District, et al.

I “[a]dvertisements promoting a food drive sponsored by a local church or temple to benefit the poor of the community, As a service to community organizations, Crestview or even a youth sports league.” Slip Op. at 12. The court occasionally distributes flyers advertising activities sponsored based its conclusion that Crestview violated the by such various groups as the American Red Cross, the 4-H Establishment Clause solely on the possibility that Club, sports leagues, and local churches. Some of the flyers “impressionable” elementary school students would describe religious activities; for example, one flyer advertises misperceive the school’s distributing flyers advertising “games, Bible stories, crafts and songs that celebrate God’s religious activities as promoting religion. love,” while another notes that a program is “Rated Religious.” Crestview appeals the partial grant of Rusk’s summary judgment motion and the denial of its own motion, arguing Although the school does not have a written policy that (1) Crestview’s practice does not violate the governing the distribution of flyers, according to Crestview’s Establishment Clause, and (2) the Free Speech Clause unwritten policy organizations first submit their flyers to the requires Crestview to distribute flyers advertising religious principal, who reviews them to ensure that (1) the sponsoring activities. organization is a non-profit group serving children in the community, and (2) the flyer does not “advocate the benefits II of a particular religion” and was not “created for use as a recruiting tool.” (Aff. of Principal.) If the principal approves A. The Establishment Clause a flyer, copies (that the organization supplies) are given to teachers, who place them in students’ mailboxes. Crestview In Lemon v. Kurtzman, the Supreme Court set forth the also uses these mailboxes for distributing official school basic test for determining whether a state action violates the papers. While teachers require students to remove the flyers Establishment Clause. 403 U.S. 602, 612-13 (1971). Under from the mailboxes, teachers do not discuss the flyers either Lemon, the government has violated the Establishment Clause informally or as part of formal classroom instruction. if: (1) the purpose of the state action is to aid or promote religion; (2) the primary effect of the action is to aid or Rusk is a parent of two children attending Crestview. Rusk promote religion; or (3) the result is excessive entanglement contends that the school’s distribution of flyers advertising with religion. Id. In this appeal, Rusk does not contend that religious activities violates the Establishment Clause of the Crestview’s practice is intended to promote religion or results First Amendment. His complaint sought a declaratory in excessive entanglement with religion. Instead, Rusk argues judgment and an injunction prohibiting Crestview from that because the practice in effect endorses religion, it is “engaging in acts of proselytization.” Both parties moved for unconstitutional either under the Lemon test’s second element summary judgment. The district court granted Rusk’s motion or under other Supreme Court precedents. in part, enjoining the school from “distributing flyers or similar notices that advertise religious activities.” The district Whether a particular state action endorses religion depends court’s opinion specified that while Crestview cannot upon how a reasonable observer would interpret the action. “advertis[e] activities at which proselytization will occur,” the See Capitol Square Review & Advisory Bd. v. Pinette, 515 injunction does not bar the school from distributing U.S. 753, 779-80 (1995) (O’Connor, J., concurring); see also No. 02-3991 Rusk v. Crestview Local 5 6 Rusk v. Crestview Local No. 02-3991 School District, et al. School District, et al.

Zelman v. Simmons-Harris, 536 U.S. 639, 655 (2002) (“[N]o Second, even if the Crestview students were the relevant reasonable observer would think a neutral program of private audience, their youth would not alter the outcome of our choice . . . carries with it the imprimatur of government reasonable observer analysis. The Supreme Court has, as endorsement.”); Lynch v. Donnelly, 465 U.S. 668, 686 (1984) Rusk points out, expressed general “heightened concerns” (holding that a reasonable observer would interpret the about the impressionability of elementary school students. inclusion of a nativity scene in a public holiday display to be E.g., Edwards v. Aguillard, 482 U.S. 578, 583-84 (1987) acknowledging, rather than promoting, religion). (“The Court has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and We disagree on two grounds with Rusk’s contention that in secondary schools.”); Widmar v. Vincent, 454 U.S. 263, 274 deciding whether a reasonable observer would perceive n.14 (1981) (“University students are, of course, young endorsement, this court should assess Crestview’s practice adults. They are less impressionable than younger students from the perspective of a Crestview student. First, because and should be able to appreciate that the University’s policy Crestview students cannot participate in any of the advertised is one of neutrality toward religion.”). But despite such activities without their parents’ permission, the relevant concerns, the Court has never ruled that a school’s practice observers are the parents. See Good News Club v. Milford might amount to an impermissible endorsement of religion Cent. Sch., 533 U.S. 98, 115 (2001) (“[T]o the extent we because of the impressionability of the school’s young consider whether the community would feel coercive pressure students. The Court’s opinion in Milford suggests just the to engage in the Club’s activities, the relevant community opposite—that elementary school students’ possible would be the parents, not the elementary school children. It misperceptions of endorsement are an insufficient basis for is the parents who choose whether their children will attend finding an Establishment Clause violation: the Good News Club meetings.” (citation omitted)). As such, the parents must be deemed aware that Crestview distributes We cannot operate, as Milford would have us do, under flyers advertising both religious and nonreligious community the assumption that any risk that small children would events. Zelman, 536 U.S. at 655 (noting that “the reasonable perceive endorsement should counsel in favor of observer in the endorsement inquiry must be deemed aware excluding the Club’s religious activity. We decline to of the history and context underlying a challenged program” employ Establishment Clause jurisprudence using a (internal quotation marks omitted)). Given this awareness, no modified heckler’s veto, in which a group’s religious reasonable observer could conclude that by distributing the activity can be proscribed on the basis of what the flyers at issue here, Crestview is endorsing religion. See youngest members of the audience might misperceive. Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 395 (1993) (rejecting anticipated Establishment Milford Cent. Sch., 533 U.S. at 119. Clause challenge to policy concerning use of school facilities and ruling that because religious and secular organizations Rusk’s citation to Lee v. Weisman does not convince us that would have equal access, “there would have been no realistic whether distributing flyers advertising religious activities danger that the community would think that the [School] constitutes endorsement of religion depends on how a District was endorsing religion or any particular creed”). reasonable elementary school student would perceive the practice. In Lee, the Supreme Court held that a public school’s practice of inviting local clergy to offer prayers at No. 02-3991 Rusk v. Crestview Local 7 8 Rusk v. Crestview Local No. 02-3991 School District, et al. School District, et al.

middle and high school graduation ceremonies violated the control over any impressions it gives its students.” Bd. of Establishment Clause. 505 U.S. 577, 599 (1992). The Educ. of Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 251 Court’s opinion noted two controlling factors: (1) the (1990) (plurality opinion); see also Hedges v. Wauconda offering of a prayer at school graduation ceremonies Cmty. Unit Sch. Dist. No. 118, 9 F.3d 1295, 1300 (7th Cir. constituted a “state-sponsored religious activity”; and 1993) (“Schools may explain that they do not endorse speech (2) although not required, attendance at the ceremonies was by permitting it. If pupils do not comprehend so simple a “in a fair and real sense obligatory.” Id. at 586. The Court lesson, then one wonders whether [their] schools can teach discussed at length the likely coercive effect of the prayer on anything at all. Free speech, free exercise, and the ban on students attending the ceremony, stating “there are heightened establishment are quite compatible when the government concerns with protecting freedom of conscience from subtle remains neutral and educates the public about the reasons.”). coercive pressure in the elementary and secondary public Moreover, not even impressionable elementary school schools,” and “prayer exercises in public schools carry a students are likely to misperceive Crestview’s practice of particular risk of indirect coercion.” Id. at 592. Adolescents, distributing flyers from a variety of community organizations the Court observed, are especially vulnerable to pressures to as endorsing religion. In Milford, the Supreme Court noted conform. Id. at 593. Because a reasonable high school that such students should know the difference between student could believe that the school was requiring her to school-sponsored events and events requiring parental pray, the Court declared the school’s practice permission. Milford Cent. Sch., 533 U.S. at 117-18 (“[E]ven unconstitutional. Id. (“What matters is that, given our social young children are aware of events for which their parents conventions, a reasonable dissenter in this milieu could must sign permission forms.”). And unlike the Good News believe that the group exercise signified her own participation Club meetings at issue in Milford, none of the activities or approval of it.”). advertised in the flyers Crestview distributes take place on school grounds—further diminishing the likelihood that The Lee Court considered the beliefs of a reasonable students will mistake the advertised religious activities for student observer not because of the possibility for school-sponsored events. misperceived endorsement but rather because of the possibility for coercion. No risk of coercion exists in this The Milford Court also reasoned that students would be just case because the religious activities are not school-sponsored as likely to infer hostility toward religion from the school’s events. See Milford Cent. Sch., 533 U.S. at 116 (stating that excluding the Good News Club as they would be to infer “where the school facilities are being used for a nonschool favoritism from the school’s including it. Id. at 118. function and there is no government sponsorship of the Similarly, if Crestview were to refuse to distribute flyers Club’s activities, Lee is inapposite”); cf. Santa Fe Indep. Sch. advertising religious activities while continuing to distribute Dist. v. Doe, 530 U.S. 290, 302-06 (2000) (finding student- flyers advertising other kinds of activities, students might led prayers at school football games coercive); Lee, 505 U.S. conclude that the school disapproves of religion. Id.; see also at 596-99 (finding school-sponsored prayers at graduation Mergens, 496 U.S. at 248 (“[I]f a State refused to let religious ceremonies coercive). groups use facilities open to others, then it would demonstrate not neutrality but hostility toward religion.”). Additionally, Rusk’s “fear of a mistaken inference of endorsement” is unfounded “because the school itself has No. 02-3991 Rusk v. Crestview Local 9 10 Rusk v. Crestview Local No. 02-3991 School District, et al. School District, et al.

Rusk implies that by distributing flyers advertising is consistent with other court of appeals and district court religious activities, Crestview sends a message of disfavor to decisions involving elementary schools and the distribution students who are “nonadherents.” Although Rusk quotes of religious literature. In Daugherty v. Vanguard Charter from several cases in which the Supreme Court stated that School Academy, the district court for the Western District of violations of the Establishment Clause could result in feelings Michigan held that a public elementary school did not violate of exclusion, the government programs at issue in those cases the Establishment Clause when, as part of a general policy of were unconstitutional not because they created the potential distributing materials from various community groups, the for misperceived favoritism of religion but because they school distributed flyers advertising religious activities. 116 actually favored religion. In Texas Monthly, Inc. v. Bullock, F. Supp. 2d 897, 911-12 (W.D. Mich. 2000). Recognizing the for example, the Supreme Court held that a Texas statute school’s neutrality toward religion, the district court exempting religious publications from certain taxes violated explained: the Establishment Clause because it provided a benefit to religious publications not also available to nonreligious If defendants manipulated the facially neutral policy so publications. 489 U.S. 1, 17-18 (1989). And in Edwards v. as to give preferential access to religious literature or Aguillard, the Court struck down a Louisiana statute requiring certain religious literature, then an Establishment Clause schools teaching evolution to also teach creationism because violation might be made out. However, the present the statute preferenced the teaching of a particular religious record is devoid of any such evidence of favoritism or subject. 482 U.S. at 597. discrimination among community groups who wish to disseminate appropriate materials. In both Texas Monthly and Edwards, the government action lacked a secular purpose; its intent was to promote religion. Id. (citing Peck v. Upshur County Bd. of Educ., 155 F.3d 274, In neither case was the Court concerned that some citizens’ 284 (4th Cir. 1998)). misperceptions would cause them to feel less accepted if they did not share the views they mistakenly believed the Crestview considers the Daugherty opinion to squarely government to be promoting. Instead, the Court’s concern support its claims of neutrality and constitutionality. Rusk, was that citizens who accurately understood the government however, contends—and the district court agreed—that the to be promoting religion would feel less accepted if they did Daugherty court’s citing of Peck v. Upshur County Board of not share the government’s religious views. Here, Education renders its decision questionable, because in Peck Crestview’s practice—which is neutral toward religion—does the Fourth Circuit Court of Appeals held that a school not send a message of disfavor to students who do not attend district’s policy allowing distribution of religious literature the advertised religious activities. Cf. Capitol Square Review was unconstitutional as applied in elementary schools. Slip & Advisory Bd., 515 U.S. at 780 (O’Connor, J., concurring) Op. at 9 (noting that “the Fourth Circuit did not intend the (“A State has not made religion relevant to standing in the reasoning cited by the Daugherty court to apply to elementary political community simply because a particular viewer of school students”). [the challenged action] might feel uncomfortable.”). While we generally agree with the Peck court’s reasoning, Finally, our conclusion that Crestview does not endorse we disagree with that court’s—and the district religion by distributing flyers advertising religious activities court’s—conclusion that the reasoning does not apply to No. 02-3991 Rusk v. Crestview Local 11 12 Rusk v. Crestview Local No. 02-3991 School District, et al. School District, et al.

elementary school students. In Peck, parents challenged a religious (as well as nonreligious) activities as the school’s school board’s decision allowing a community group to endorsing religion. distribute Bibles at tables in common areas of elementary, middle, and high schools. 155 F.3d 274 (4th Cir. 1998). The B. The Free Speech Clause school board defended its policy as neutral toward religion, treating the Bible distributors the same as the 4-H Club or the Crestview argues that the district court’s order prohibiting Cub Scouts. The Fourth Circuit upheld the policy in the the school from distributing flyers advertising “activities at middle and high schools, finding that the schools had taken which proselytization will occur” violates the Free Speech sufficient steps—including allowing a variety of community rights of religious organizations. Our holding that Crestview groups to distribute literature—to guard against students does not violate the Establishment Clause by distributing mistaking the distribution of Bibles as the schools’ flyers advertising community events, whether religious or endorsement of religion. Id. at 287-88. The court did not, nonreligious, resolves the controversy before us. We need not however, extend this finding to elementary schools, holding decide whether the Free Speech Clause requires Crestview to instead that allowing Bible distribution in these schools distribute flyers advertising religious activities. violated the Establishment Clause. Id. at 287-88 n.*. III The Fourth Circuit decided Peck before Milford’s rejection of the age and impressionability of elementary school Accordingly, we reverse the district court’s grant of partial students as grounds for ruling that allowing a religious club summary judgment in favor of Rusk and remand with to meet in school classrooms would violate the Establishment instructions for entry of judgment in favor of Crestview. Clause. Given Milford, we believe that Peck’s conclusions regarding older students properly apply to elementary school students as well. See Child Evangelism Fellowship of Md., Inc. v. Montgomery County Pub. Sch., 373 F.3d 589, 601-02 (4th Cir. 2004) (holding that a religious organization’s participation in public elementary schools’ “take-home flyer forum” likely would not violate the Establishment Clause and noting that in Milford, “the Supreme Court rejected the suggestion that, when [as here] the school was not actually advancing religion, the impressionability of students would be relevant to the Establishment Clause issue” (alteration in original) (internal quotation marks omitted)). Accordingly, we conclude that the district court erred in finding an Establishment Clause violation based solely on the possibility that elementary school students might misperceive Crestview’s practice of distributing flyers advertising