Posted by: Patrick Allen Foster | July 30, 2013

District Court Finds that Tennessee School Board Violated Establishment Clause

The case is Kucera, et al. v. Jefferson County School Board Commissioners, et al. (3:03-cv-00593, E.D. Tenn. July 9, 2013), and the Knoxville News-Sentinel has the story:

U.S. District Judge Thomas Phillips has issued a groundbreaking ruling in which he contends it doesn’t matter if the Jefferson County Board of Education was simply trying to save money — not souls — when it turned to Christian-based Kingswood School for teaching its troubled students to run afoul of the Establishment Clause of the U.S. Constitution.

(A word: to paraphrase one of my professors, the court does not “contend” anything. Courts do not contend or argue. Courts state, they rule, they hold, they decide; they do not contend.)

In 2003, Jefferson County’s school system was financially strapped. Its board decided to contract out the teaching of troubled students assigned to its alternative school to Kingswood, a nonprofit Christian organization located in Bean Station in Grainger County. Jefferson County wasn’t the only local school system to do so. At least two others, including Grainger County schools, opted to send its alternative school students there because it was cheaper to do so than run its own alternative school.

Jefferson County alternative school teachers whose jobs were at risk because of the decision filed suit. Years of legal wrangling ensued, with a federal appeals court rejecting the claim the teachers had a right to sue because their jobs were impacted. But the 6th Circuit U.S. Court of Appeals sent back to Phillips one key issue — could the teachers as mere taxpayers allege a violation of the Establishment Clause, commonly referred to as the separation of church and state, as basis for their suit and, if so, what constitutes of a violation?

In the Jefferson County case, Phillips agreed Kingswood did not require public school students to attend church services nor did it include religious instruction as part of the curriculum for those students. But Kingswood clearly held itself out to be a Christian-based organization, he said. Its campus included a church. Scripture abounded in its décor. Nearly every document sent home to parents, including report cards and mandatory monthly forms, included Scripture.

The school board, Phillips said, also had made clear it only sought to save cash in sending students to Kingswood and did nothing overtly to push Christian principles on those students or endorse Kingswood’s religious beliefs.

Still, he ruled, perception proved reality.

(A word of caution: the comments section of the News-Sentinel is one of the fever swamps of East Tennessee; enter at your own risk.)

The decision of Judge Phillips is here, and below I have excerpted the crux of the decision (some formatting omitted and some citations omitted):

In the instant case, it is undisputed that the Board’s contract with Kingswood served a predominantly secular purpose—to save money for the school district; consequently, the Court will only discuss the second and third prongs of the Lemon Test, i.e. whether Jefferson County’s decision to contract with Kingswood 2) had a principal or primary effect that advanced or inhibited religion or 3) created an excessive entanglement with government and religion.

“The effect prong asks whether, irrespective of government’s actual purpose, the practice under review in fact conveys a message of endorsement or disapproval.” Lynch v. Donnelly, 465 U.S. 668, 690, 104 S. Ct. 1355, 79 L. Ed. 2d 604 (1984) (O’Connor, J., concurring). “Justice O’Connor’s modification of the Lemon test makes our inquiry very case-specific, as it asks this court to examine carefully the particular context and history of these displays before concluding what effect they would likely have on the reasonable observer.” American Atheists, Inc. v. Duncan, 637 F.3d 1095, 1117 (10th Cir. Utah 2010). See also, County of Allegheny v. ACLU, 492 U.S. 573, 605-608 (U.S. 1989) (defending the fact-specific nature of the Court’s Establishment Clause jurisprudence which requires that courts “[examine] the particular contexts in which the government employs religious symbols”). The Constitution does not call for total separation between church and state, for that is not possible in an absolute sense, and some relationship between government and religious organizations is inevitable. Establishment Clause analysis is not “black letter;” on the contrary, determining whether a particular act violates the Establishment clause is a fact intensive analysis that must be considered on a case-by-case basis.

When interpreting the Establishment Clause, the federal courts demonstrate a low degree of homogeneity. Notwithstanding the apparent opacity of this subject, this Court has applied a version of the Lemon Test that has been recently sanctioned by the Sixth Circuit. The Sixth Circuit, as recently as August 1, 2012, reaffirmed its support for a form of the Lemon Test, writing that, “Although it has lost some of its luster, the test from Lemon….as refined by later Supreme Court opinions,8 guides our Establishment Clause analysis.” Satawa v. Macomb County Rd. Comm’n, 689 F.3d 506, 526 (6th Cir. Mich. 2012).

In this case, a “reasonable observer” would see the Board’s decision to contract with a self-proclaimed “religious institution,” conveys a message of religious endorsement, running afoul of the Establishment Clause.

In the instant case, the “heightened concerns” expressed by the Court in Lee were equally present at Kingswood. Kingswood, a self-identified “Christian environment” served public school children. The “subtle coercive pressure” at Kingswood was made manifest by Kingswood’s overt affiliation with the Christian Faith.

Though no assembly at the church was mandatory, the fact that religious iconography is present on Kingswood’s campus, and Bible verses are attached to some of Kingswood’s literature, coupled with its known religious affiliation and Kingswood’s selfidentification as a “Christian environment,” combine to create an institution that “is indisputably and emphatically Christian.” … Plaintiff offered no evidence of explicit religious activism. However, the numerous religious displays on campus and in Kingswood’s literature, were not innocuous; rather, the displays created a coercive environment that implicitly promoted the Christian faith to public school children. Undoubtedly, Kingswood’s religious displays did not extend to the degree considered by the Seventh Circuit in Elmbrook; nevertheless, Kingswood was a pervasively Christian institution. The average student that attended Kingswood would arrive on campus and see a church within the grounds. She would then see an intake staff member who was also an ordained minister. After intake, the student would attend secular classes, but would take home report cards branded with Christian language and symbols. In order to progress though the level system, she would need to have her parents routinely sign and return Family Feedback Forms that also contained bible verses. If she visited Kingswood’s website, she would be greeted by the phrases “Christian environment” and “Christian education” among others. Benefactors would receive fundraising correspondence that contained Christian references and iconography, and assemblies would be held in the campus church.

Any of these facts, taken alone, might not rise to the level of a constitutional violation; however, when considered together and as applied to relevant case law, the facts plainly establish that Kingswood is a religious institution — a fine institution — but an institution that should have never sought to operate a public alternative school as part of its ministry. The appearance of governmental endorsement of the Christian faith is too pronounced and non-believers, or students of a different faith, would likely feel divorced from Kingswood, a well-intentioned, but overtly-Christian school.

The News-Sentinel reports that the school board is planning to appeal. I expect that they will lose in the Sixth Circuit.



  1. This is one of those cases that is easily resolved, commonsensically if not legally, by the thought experiment of the Tennessee students’ being sent by their district to a local madrassah.

  2. In this neck of the woods, I fear you would have lost a lot of people with the words “thought experiment.”

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