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11
Civil Rights Litigation
JOHN M. IZZO
Sraga Hauser, LLC
Flossmoor
TODD K. HAYDEN
Robbins Schwartz Nicholas Lifton & Taylor, Ltd.
Joliet
PATRICK J. BRONCATO
Chief Legal Officer
Illinois School District U-46
Elgin
©COPYRIGHT 2010 BY JOHN M. IZZO, TODD K. HAYDEN, AND IICLE.
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ILLINOIS SCHOOL LAW: ORGANIZATION, FINANCE, AND PROPERTY
I. [11.1] Introduction
II. [11.2] Litigation Under the Reconstruction Civil Rights Statutes
A. [11.3] Section 1981
B. Section 1983
1. [11.4] Creation of the Cause of Action
2. Jurisdiction
a. [11.5] State Courts
b. [11.6] Federal Courts
3. Elements of the Cause of Action
a. [11.7] Persons Who May Be Sued
(1) [11.8] The school district as a body politic and corporate
(2) [11.9] Officials and employees sued in their official capacities
(3) [11.10] Officials and employees sued as individuals
b. [11.11] Conduct Under Color of State Law or Custom
c. [11.12] Conduct Causes the Deprivation of Federal Rights
d. Federal Rights Secured by Fourteenth Amendment
(1) [11.13] Equal protection
(2) [11.14] Procedural due process
(3) [11.15] Fundamental rights incorporated
(4) [11.16] Substantive due process
(5) [11.17] Federal statutory rights
4. [11.18] Remedies
5. Defenses
a. [11.19] Immunities
(1) [11.20] Qualified immunity
(2) [11.21] Absolute immunity
(3) [11.22] Immunity from punitive damages
(4) [11.23] The Eleventh Amendment
b. [11.24] Claim Preclusion
c. [11.25] Statute of Limitations
d. [11.26] Legitimate, Nondiscriminatory Reasons for Employment Decisions
6. Procedural Considerations
a. [11.27] Exhaustion of State Administrative Remedies
b. [11.28] Exhaustion of State Judicial Remedies
c. [11.29] Removal to Federal Court
d. [11.30] Arbitration of §1983 Claims
C. [11.31] Section 1985
D. [11.32] Section 1986
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E. Section 1988 — Attorneys’ Fees
1. [11.33] Statutory Authority
2. [11.34] Prevailing Plaintiff
3. [11.35] Computation of Fee Award
4. [11.36] Prevailing Defendant
III. Church-State Litigation Issues
A. Sources of Law
1. [11.37] Constitutional Provisions
2. [11.38] Statutes
B. General Principles
1. [11.39] Standing
2. [11.40] Test for Establishment Clause Violations
3. [11.41] Test for Free Exercise Clause Violations
4. [11.42] Relationship of the Two Clauses
5. [11.43] Application of Illinois Constitution Provisions
6. [11.44] Level of the School
C. Applications
1. [11.45] Compulsory Attendance
2. Religion in Public Schools
a. [11.46] In General
b. [11.47] Released Time
c. Religious Instruction and Displays
(1) [11.48] Bible instruction
(2) [11.49] Evolution and creationism
(3) [11.50] Books
(4) [11.51] Observing holidays
(5) [11.52] Ten Commandments displays
(6) [11.53] Other displays and instruction
d. Prayers
(1) [11.54] In general
(2) [11.55] Moments of silence
(3) [11.56] Graduation prayers
(4) [11.57] Pledge of Allegiance
(5) [11.58] Prayers at board meetings
e. [11.59] Access to Facilities for Religious Activities
(1) [11.60] Student groups
(2) [11.61] Community groups
(3) [11.62] Literature distribution
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f.
[11.63] Conduct and Participation of Teachers and Students
(1) [11.64] Instruction selection
(2) [11.65] Dress regulations
(3) [11.66] Religious holidays
(4) [11.67] Student participation in school activities
g. [11.68] Religious Representatives as Public School Employees or Volunteers
3. Public Aid to Religious Schools
a. [11.69] In General
b. [11.70] Textbooks
c. [11.71] Transportation
d. [11.72] Teachers’ Salaries
e. [11.73] Tuition Benefits
f. [11.74] Record-Keeping and Testing Services
g. [11.75] Auxiliary Services
h. [11.76] Instructional Material and Equipment
i. [11.77] Construction, Maintenance, and Equipping of Buildings
j. [11.78] Shared Time
4. [11.79] Application of General Laws to Parochial Schools
IV. Racial Desegregation of Students
A.
B.
C.
D.
E.
F.
G.
H.
I.
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[11.80]
[11.81]
[11.82]
[11.83]
[11.84]
[11.85]
[11.86]
[11.87]
[11.88]
In General
The Constitutional Violation
Elements of Intentional Discrimination
Court-Ordered Remedial Action
Achieving “Unitary” Status
Statutory Violations
Voluntary Actions To Desegregate Schools
Race-Conscious Student Assignment
State Statutes
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§11.3
I. [11.1] INTRODUCTION
In this litigious society of ours, schools are not generally immune from lawsuits. Though the
circumstances vary widely, the attempted enforcement of civil rights guaranteed by federal and
state statutes and constitutional provisions is a common basis for lawsuits against school districts.
This chapter explores the most frequently used procedural mechanism in civil rights litigation
against public school districts and two of the most important areas of substantive civil rights —
religious freedoms and racial desegregation of students.
While these subject matters deal largely with federal rights and procedures, related state laws
and interpretations by the local federal courts are important considerations for practitioners. For
this reason, this chapter includes references to the Illinois Constitution, the School Code, 105
ILCS 5/1-1, et seq., decisions of the Illinois courts, and other sources of Illinois law as well as an
emphasis on the decisions of the United States Circuit Court of Appeals for the Seventh Circuit
and the federal district courts in Illinois.
II. [11.2] LITIGATION UNDER THE RECONSTRUCTION CIVIL RIGHTS
STATUTES
In the period following the Civil War, several statutes were enacted for the purpose of
ensuring the civil rights of the newly freed slaves. Today, some of these statutes are used as
vehicles to protect the civil rights of not only the descendants of the freed slaves, but all persons.
A. [11.3] Section 1981
The Civil Rights Act of 1866 provides in part as follows:
All persons within the jurisdiction of the United States shall have the same right
in every State and Territory to make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white citizens, and shall be subject
to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and
to no other. 42 U.S.C. §1981(a).
Section 1981 protects both white and nonwhite persons against racial discrimination.
McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 49 L.Ed.2d 493, 96 S.Ct. 2574
(1976). Included in the term “race” for the purposes of §1981 are, inter alia, Arabs, Asians, and
Hispanics. See, e.g., Saint Francis College v. Al-Khazraji, 481 U.S. 604, 95 L.Ed.2d 582, 107
S.Ct. 2022 (1987) (Arab); Hussein v. Oshkosh Motor Truck Co., 816 F.2d 348 (7th Cir. 1987)
(Egyptian); Doe ex rel. Doe v. St. Joseph’s Hospital of Fort Wayne, 788 F.2d 411 (7th Cir. 1986)
(Korean), overruled on other grounds by Alexander v. Rush North Shore Medical Center, 101
F.3d 487 (7th Cir. 1996); Cardona v. American Express Travel Related Services Co., 720 F.Supp.
960 (S.D.Fla. 1989) (Columbian); Quintana v. Byrd, 669 F.Supp. 849 (N.D.Ill. 1987) (Hispanic);
Vargas v. Salvation Army, 649 F.Supp. 763 (N.D.Ill. 1986) (Mexican-American); Carroll v.
Elliott Personnel Services, Inc., 51 F.E.P.Cas. (BNA) 1173 (D.Md. 1989) (Caucasian).
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Initially, courts declined to apply §1981 to post-hiring conduct of employers. However, the
Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071, restored coverage of §1981 to
conduct occurring after the formation of an employment contract by amending the statute to
provide that “the term ‘make and enforce contracts’ includes the making, performance,
modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms,
and conditions of the contractual relationship.” 42 U.S.C. §1981(b). The trend toward expanding
the scope of §1981 has continued. The United States Supreme Court recently held that §1981
encompasses retaliation claims. CBOCS West, Inc. v. Humphries, 553 U.S. ___, 170 L.Ed.2d 864,
128 S.Ct. 1951 (2008). Notably, CBOCS involved a plaintiff asserting a retaliation claim under
§1981 for complaining about the treatment of another employee. The Seventh Circuit has held
that §1981 applies to claims other than those based on a contract. In Palmer v. Board of
Education of Community Unit School District 201-U, Will County, Illinois, 46 F.3d 682, 686 –
688 (7th Cir. 1995), the court stated that the “full and equal benefit” clause of §1981 was
designed to forbid disparate treatment and is not limited in its scope to instances involving
contractual relationships. But see Domino’s Pizza Inc. v. McDonald, 546 U.S. 470, 163 L.Ed.2d
1069, 126 S.Ct. 1246 (2006), holding that plaintiffs cannot state a claim under §1981 unless they
have or would have rights under an existing or proposed contract that the they wish to make or
enforce and, further, that §1981 plaintiffs must identify injuries flowing from a racially motivated
breach of their own contractual relationship, not someone else’s.
Courts have indicated that §1981 claims and actions under Title VII of the Civil Rights Act of
1964, Pub.L. No. 88-352, 78 Stat. 241 (see 42 U.S.C. §2000e, et seq.) are not mutually exclusive,
and both may be maintained in the same lawsuit. Hussein, supra, 816 F.2d at 356. To establish a
prima facie case under §1981, a plaintiff must prove that
1. the plaintiff is a member of a racial minority;
2. the defendant had an intent to discriminate on the basis of race; and
3. the discrimination concerned one or more of the activities set forth in the statute. Morris
v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir. 1996).
Importantly, while evidence of discriminatory intent is necessary to sustain a §1981 claim,
plaintiffs may satisfy this burden through direct proof or via the burden-shifting method
elaborated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L.Ed.2d 668, 93 S.Ct. 1817
(1973). Von Zuckerstein v. Argonne National Laboratory, 984 F.2d 1467, 1472 (7th Cir. 1993).
B. Section 1983
1. [11.4] Creation of the Cause of Action
42 U.S.C. §1983 creates a cause of action for damages and injunctive relief against persons
who, acting under color of state law, violate federal rights. Section 1983 is procedural in nature
and does not itself create any substantive rights that could be asserted. Barfield v. Brierton, 883
F.2d 923, 934 (11th Cir. 1989), citing Baker v. McCollan, 443 U.S. 137, 61 L.Ed.2d 433, 99 S.Ct.
2689, 2694 n.3 (1979). Specifically, §1983 provides, in pertinent part, as follows:
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§11.6
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.
2. Jurisdiction
a. [11.5] State Courts
The question of whether state courts were required to accept jurisdiction over claims under 42
U.S.C. §1983 was addressed by the Supreme Court in Howlett v. Rose, 496 U.S. 356, 110
L.Ed.2d 332, 110 S.Ct. 2430 (1990), in which a former Florida high school student brought a
§1983 claim against a school board and three school administrators. The school board defendant
filed a motion to dismiss in which one of the grounds for dismissal asserted that the state court
was without jurisdiction to hear the §1983 claim. The Florida appellate court affirmed dismissal
of the §1983 claim against the school board, relying on the Florida Supreme Court’s decision in
Hill v. Department of Corrections, State of Florida, 513 So.2d 129 (Fla. 1987) (holding that
Florida’s statutory waiver of sovereign immunity did not permit suits against state and its
agencies under §1983), cert. denied, 108 S.Ct. 1024 (1988). On review, the U.S. Supreme Court
reversed the Florida court’s dismissal of the §1983 claim, holding that state courts cannot use
sovereign immunity as a justification for refusing jurisdiction over §1983 claims. 110 S.Ct. at
2446.
b. [11.6] Federal Courts
Because 42 U.S.C. §1983 does not by itself confer jurisdiction on the federal district courts,
these courts generally find their authority to adjudicate §1983 claims in either of two federal
statutes. The first source of federal court jurisdiction is found in the general “federal question”
statute, 28 U.S.C. §1331, on which all §1983 claims, regardless of the alleged amount in
controversy, can rely as a basis for federal court jurisdiction. The second basis for federal court
jurisdiction is found in 28 U.S.C. §1343, which provides, in pertinent part, as follows:
(a) The district courts shall have original jurisdiction of any civil action
authorized by law to be commenced by any person:
***
(3) To redress the deprivation, under color of any State law, statute,
ordinance, regulation, custom or usage, of any right, privilege or immunity
secured by the Constitution of the United States or by any Act of Congress
providing for equal rights of citizens or of all persons within the jurisdiction of
the United States;
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(4) To recover damages or to secure equitable or other relief under any
Act of Congress providing for the protection of civil rights, including the right to
vote.
Sections 1343(a)(3) and 1983 unquestionably authorize federal court jurisdiction over suits
alleging violations of constitutional rights under color of law. Hagans v. Lavine, 415 U.S. 528, 39
L.Ed.2d 577, 94 S.Ct. 1372 (1974). But §1983 suits that allege violations of federal statutes can
come within the ambit of §1343 jurisdiction only if the statute allegedly violated is one that
provides for either “equal rights” as this phrase is used in §1343(a)(3) or “the protection of civil
rights” as this phrase is used in §1343(a)(4). The courts provide little guidance as to the federal
statutes that are within the meaning of these phrases. However, the clear jurisdiction established
under §1331 has rendered this question moot.
3. Elements of the Cause of Action
a. [11.7] Persons Who May Be Sued
Under 42 U.S.C. §1983, “every person” who acts under color of state law may be sued. In the
school context, three types of “persons” are potentially liable under §1983 subject to the
immunities discussed in §§11.19 – 11.23 below.
(1)
[11.8] The school district as a body politic and corporate
In 1978, the U.S. Supreme Court held that municipalities and other local governments,
including school districts, are “persons” under §1983 and that municipal liability could be
imposed for injuries inflicted due to governing policy or custom. Monell v. Department of Social
Services of City of New York, 436 U.S. 658, 56 L.Ed.2d 611, 98 S.Ct. 2018 (1978). Monell was
reaffirmed in Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507
U.S. 163, 122 L.Ed.2d 517, 113 S.Ct. 1160 (1993), in which the Court held that a successful
§1983 claim requires the plaintiff to plead and prove that the alleged constitutional violation
occurred as a result of a custom or policy of the governmental entity. Subsequently, the Supreme
Court ruled that a school district may not be held liable under §1983 for its employees’ violation
of a teacher’s contract rights under a respondeat superior theory. Jett v. Dallas Independent
School District, 491 U.S. 701, 105 L.Ed.2d 598, 109 S.Ct. 2702, 2723 – 2724 (1989). Jett limits
the viability of the implied Fourteenth Amendment cause of action recognized in Hostrop v.
Board of Junior College District No. 515, Counties of Cook & Will & State of Illinois, 523 F.2d
569, 576 (7th Cir. 1975), cert. denied, 96 S.Ct. 1748 (1976).
Generally, one incident of alleged unconstitutional activity is insufficient to demonstrate a
custom or policy and thus impose liability under §1983. City of Oklahoma City v. Tuttle, 471 U.S.
808, 85 L.Ed.2d 791, 105 S.Ct. 2427 (1985). Nonetheless, the Supreme Court has stated that
proof that a municipality’s legislative body or authorized decision maker has intentionally
deprived a plaintiff of a federally protected right necessarily establishes that the municipality
acted culpably. Board of County Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S.
397, 137 L.Ed.2d 626, 117 S.Ct. 1382 (1997). Similarly, the court in Brown stated that a finding
that an action taken or directed by the municipality or its authorized decision maker itself violates
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§11.11
federal law also proves that the municipality is responsible for the plaintiff’s injury under §1983.
The Northern District of Illinois has held that a plaintiff must show a “specific pattern or series of
incidents” that support the claim of custom or policy. Doe v. Bobbitt, 665 F.Supp. 691, 694
(N.D.Ill. 1987), quoting Henry v. Farmer City State Bank, 808 F.2d 1228, 1237 (7th Cir. 1986).
However, a single act by an individual with final decision-making authority can be used to
establish the existence of a municipal policy. McNabola v. Chicago Transit Authority, 10 F.3d
501 (7th Cir. 1993); Glatt v. Chicago Park District, 847 F.Supp. 101 (N.D.Ill. 1994).
(2)
[11.9] Officials and employees sued in their official capacities
Although §1983 suits are often filed against officials and employees of a school district “in
their official capacities,” this represents only another way of pleading an action against the school
district itself. Local government officials sued in their official capacities are “persons” under
§1983 and are suable to the same extent as the local government would be in its own name.
Brandon v. Holt, 469 U.S. 464, 83 L.Ed.2d 878, 105 S.Ct. 873 (1985); Karcher v. May, 484 U.S.
72, 98 L.Ed.2d 327, 108 S.Ct. 388, 393 (1987) (“We have repeatedly recognized that the real
party in interest in an official-capacity suit is the entity represented and not the individual
officeholder.”). This established liability doctrine is reflected by the Seventh Circuit in Leahy v.
Board of Trustees of Community College District No. 508, County of Cook, State of Illinois, 912
F.2d 917, 922 (7th Cir. 1990) (“Leahy’s suit against the Board of Trustees of City Colleges is an
official-capacity suit, which we treat in all respects, except for name, as a suit against the
municipality or state.”).
(3)
[11.10] Officials and employees sued as individuals
It is well established that school board members, administrators, and other board employees
sued in their personal capacities are “persons” within the meaning of 42 U.S.C. §1983. See, e.g.,
Wood v. Strickland, 420 U.S. 308, 43 L.Ed.2d 214, 95 S.Ct. 992 (1975). In Wood, the Court set
forth the standard for determining when immunity from liability under §1983 would attach for
school “persons,” holding that school officials would not be immune from liability if they knew
or reasonably should have known that their official conduct would violate another person’s
constitutional rights. 95 S.Ct. at 1001. This qualified immunity standard was subsequently
modified to provide that “government officials performing discretionary functions are shielded
from liability for civil damages unless their conduct violates clearly established statutory or
constitutional rights of which a reasonable person would have known.” Landstrom v. Illinois
Department of Children & Family Services, 892 F.2d 670, 674 – 675 (7th Cir. 1990). See §11.20
below, discussing qualified immunity.
b. [11.11] Conduct Under Color of State Law or Custom
In order to be liable for the deprivation of a protected right, a person must have acted “under
color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.” 42 U.S.C.
§1983. In 1961, the U.S. Supreme Court said that misuse of power by local officials made
possible because they are clothed with the authority of state law constitutes action taken “under
color” of state law. Monroe v. Pape, 365 U.S. 167, 5 L.Ed.2d 492, 81 S.Ct. 473, 476 (1961)
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(citing United States v. Classic, 313 U.S. 299, 85 L.Ed. 1368, 61 S.Ct. 1031 (1941)), overruled on
other grounds by Monell v. Department of Social Services of City of New York, 436 U.S. 658, 56
L.Ed.2d 611, 98 S.Ct. 2018 (1978).
The “under color of law” requirement applies whether the §1983 claim alleges a violation of
the Constitution or of a federal statute. The U.S. Supreme Court has held that if the challenged
conduct meets the “state action” requirement for proving a violation of the Fourteenth
Amendment, then it necessarily meets the lesser “under color of law” test. Lugar v. Edmondson
Oil Co., 457 U.S. 922, 73 L.Ed.2d 482, 102 S.Ct. 2744, 2752 n.18 (1982). However, when the
§1983 claim is based on the violation of a statute or a constitutional provision that does not itself
require state action, the “under color of law” requirement is a distinct element to be proved.
c. [11.12] Conduct Causes the Deprivation of Federal Rights
In order to establish a prima facie case under 42 U.S.C. §1983, the plaintiff must prove that
the defendant’s conduct was a cause in fact of the deprivation of the plaintiff’s federal rights.
Since there is nothing in §1983 itself that requires that the challenged conduct be intentional, the
state of mind required to establish liability depends on the constitutional or statutory provision
allegedly violated. For example, either “deliberate indifference” (Estelle v. Gamble, 429 U.S. 97,
50 L.Ed.2d 251, 97 S.Ct. 285, 291 – 292 (1976) (evaluating state’s responsibility to provide
medical care to prisoners)) or “unnecessary and wanton” infliction of pain (Whitley v. Albers, 475
U.S. 312, 89 L.Ed.2d 251, 106 S.Ct. 1078, 1084 – 1085 (1986) (determining whether prison
security measures taken to quell disturbance were appropriate)) is required to establish a violation
of the Eighth Amendment. “Discriminatory intent” is necessary to prove a violation of the
Fourteenth Amendment Equal Protection Clause. City of Memphis v. Greene, 451 U.S. 100, 67
L.Ed.2d 769, 101 S.Ct. 1584, 1596 (1981), citing Village of Arlington Heights v. Metropolitan
Housing Development Corp., 429 U.S. 252, 50 L.Ed.2d 450, 97 S.Ct. 555 (1977).
Regardless of the state of mind required, it is clear that a defendant must personally violate
federal law in order to be liable under §1983. For example, a local government entity such as a
school district cannot be held vicariously liable under a theory of respondeat superior for
violations committed by its officials or employees. Monell v. Department of Social Services of
City of New York, 436 U.S. 658, 56 L.Ed.2d 611, 98 S.Ct. 2018 (1978). Similarly, a supervisor is
not liable under §1983 for the acts of subordinates under a theory of respondeat superior. Id.;
Riordan v. Kempiners, 831 F.2d 690, 695 (7th Cir. 1987). Supervisors can be liable, however,
when the plaintiff can show an affirmative link between the occurrence of misconduct and the
adoption of any plan or policy reflecting the supervisor’s authorization or approval of the
subordinate’s misconduct. Boswell v. County of Sherburne, 849 F.2d 1117, 1123 (8th Cir. 1988).
See also Kolb v. State of Ohio, Department of Mental Retardation & Developmental Disabilities,
Cleveland Developmental Center, 721 F.Supp. 885, 892 (N.D. Ohio 1989).
Notably, the Seventh Circuit has rejected the concept of individual liability under the
Americans with Disabilities Act of 1990, 42 U.S.C. §12101, et seq., the Age Discrimination in
Employment Act of 1967, 29 U.S.C. §621, et seq. (ADEA), and Title VII of the Civil Rights Act
of 1964, instead limiting their scope to “employers” as defined under the Civil Rights Act of
1991. U.S. Equal Employment Opportunity Commission v. AIC Security Investigations, Ltd., 55
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F.3d 1276, 1279 – 1282 (7th Cir. 1995). However, the Supreme Court has held that “same-sex”
harassment is actionable under Title VII. Oncale v. Sundowner Offshore Services, Inc., 523 U.S.
75, 140 L.Ed.2d 201, 118 S.Ct. 998 (1998) (holding recognized by Seventh Circuit in Shepherd v.
Slater Steels Corp., 168 F.3d 998, 1007 – 1008 (7th Cir. 1999)). Moreover, the Supreme Court
narrowly interpreted the ADEA in Gross v. FBL Financial Services, Inc., ___ U.S. ___, 174
L.Ed.2d 119, 129 S.Ct. 2343 (2009), and held that a mixed-motive case is not recognized under
the ADEA. Instead, the Court held that a plaintiff claiming age discrimination must prove that
age was the “but for” cause of the employer’s adverse action and that the burden of persuasion
does not shift to the employer to show that it would have taken the action regardless of age —
even if the plaintiff has produced evidence that age was one of the motivating factors.
Conversely, the Supreme Court has expanded the liability of employers under Title VII for
the acts of their employees. In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 141 L.Ed.2d
633, 118 S.Ct. 2257 (1998), the Court addressed a sexual harassment claim and held that an
employer is vicariously liable to an employee subjected to a hostile environment created by a
supervisor with immediate (or greater) authority over the employee. If the harassment results in a
tangible employment action such as discharge, demotion, or undesirable reassignment, the
employer is strictly liable. When no tangible employment action is taken, the employer is
presumed liable but may raise an affirmative defense consisting of two elements: (1) that the
employer exercised reasonable care to prevent and correct promptly any sexually harassing
behavior; and (2) that the plaintiff employee unreasonably failed to take advantage of any
preventative or corrective opportunities provided by the employer or failed to avoid harm
otherwise. The Court also clarified a dispute among the federal circuit courts as to the meaning of
“opposition” to discrimination for those seeking to invoke the protection of Title VII’s antiretaliation provisions. In Crawford v. Metropolitan Government of Nashville & Davidson County,
Tennessee, ___ U.S. ___, 172 L.Ed.2d 650, 129 S.Ct. 846 (2009), the Court held that an
employee who responds to an employer’s inquiry about harassment and, in that context,
complains of harassing behavior is protected from retaliation the same as if the employee initiated
the inquiry by filing a harassment complaint. The Court stated that “nothing in the statute requires
a freakish rule protecting an employee who reports discrimination on her own initiative but not
one who reports the same discrimination in the same words when her boss asks a question.” 129
S.Ct. at 851.
It is also worth noting here that, under the Illinois Human Rights Act, an employer is strictly
liable for the sexual harassment engaged in by one of its supervisors regardless of whether the
supervisor had any authority over the affected employee and regardless of whether the employer
knew of the offending conduct. Sangamon County Sheriff’s Department v. Illinois Human Rights
Commission, 233 Ill.2d 125, 908 N.E.2d 39, 330 Ill.Dec. 187 (2009).
Employer liability under Title IX of the Education Amendments of 1972, Pub.L. No. 92-318,
86 Stat. 235, 373 (see 20 U.S.C. §1681, et seq.), has also been addressed by the U.S. Supreme
Court. In Gebser v. Lago Vista Independent School District, 524 U.S. 274, 141 L.Ed.2d 277, 118
S.Ct. 1989 (1998), the district was sued under Title IX based on allegations of teacher-student
sexual harassment. While the Court upheld the denial of damages on the facts of the case, it held
that damages may be recovered for teacher-student sexual harassment under Title IX when a
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school official who at a minimum has authority to address the allegations and to institute
corrective measures has actual notice of the discrimination and is deliberately indifferent to the
teacher’s conduct.
The U.S. Supreme Court has held that Title IX protects whistleblowers who accuse
educational institutions of discrimination based on sex. Jackson v. Birmingham Board of
Education, 544 U.S. 167, 161 L.Ed.2d 361, 125 S.Ct. 1497 (2005) (holding that retaliation
against person because he or she complained of sex discrimination is form of intentional sex
discrimination encompassed by Title IX).
d. Federal Rights Secured by Fourteenth Amendment
(1)
[11.13] Equal protection
The Equal Protection Clause of the Fourteenth Amendment is enforceable under 42 U.S.C.
§1983. This clause provides as follows:
No state shall . . . deny to any person within its jurisdiction the equal protection of
the laws.
In general, the states have wide leeway to enact legislation or regulations that affect similarly
situated people differently. The distinctions drawn by a challenged statute or regulation are
generally not violative of the Equal Protection Clause if they bear some rational relationship to a
legitimate governmental objective. United States v. Craveiro, 907 F.2d 260, 265 (1st Cir. 1990).
If, however, the statute or regulation affects a fundamental right (one guaranteed by the
Constitution) or differentiates on the basis of a suspect classification (such as race, indigency,
religion, or national origin), then the test is whether the governmental unit can show a compelling
interest. City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 87 L.Ed.2d 313, 105
S.Ct. 3249 (1985).
Similarly, the selective application of a statute or regulation can be violative of the Equal
Protection Clause if a person is deliberately singled out on the basis of an arbitrary classification
such as race or religion. DeShaney v. Winnebago County Department of Social Services, 489 U.S.
189, 103 L.Ed.2d 249, 109 S.Ct. 998, 1004 n.3 (1989). See also Village of Willowbrook v. Olech,
528 U.S. 562, 145 L.Ed.2d 1060, 120 S.Ct. 1073 (2000). The Seventh Circuit also embraces this
view, holding that a plaintiff can allege an equal protection violation by asserting that state action
was motivated solely by a “spiteful effort to ‘get’ him for reasons wholly unrelated to any
legitimate state objective.” Olech v. Village of Willowbrook, 160 F.3d 386, 387 (7th Cir. 1998),
quoting Esmail v. Macrane, 53 F.3d 176, 180 (7th Cir. 1995).
(2)
[11.14] Procedural due process
The Due Process Clause of the Fourteenth Amendment provides as follows:
No state shall . . . deprive any person of life, liberty, or property, without due
process of law.
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Under the “entitlement” approach adopted by the Supreme Court in Board of Regents of State
Colleges v. Roth, 408 U.S. 564, 33 L.Ed.2d 548, 92 S.Ct. 2701 (1972), a violation of the Due
Process Clause is established by proving the deprivation of a life, liberty, or property interest
without due process of law.
To determine the existence of a property interest, the courts look not to the Constitution but to
“existing rules or understandings that stem from an independent source such as state law.” Roth,
supra, 92 S.Ct. at 2709. The Court in Roth elaborated on the attributes of a property interest that
would be sufficient to require procedural due process:
To have a property interest in a benefit, a person clearly must have more than an
abstract need or desire for it. He must have more than a unilateral expectation of it.
He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the
ancient institution of property to protect those claims upon which people rely in
their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of
the constitutional right to a hearing to provide an opportunity for a person to
vindicate those claims. Id.
It has been held that a teacher enjoys a property interest in continued employment if that
teacher has tenure under statute or contract (cf. Roth, supra) or de facto tenure under written
guidelines (Perry v. Sindermann, 408 U.S. 593, 33 L.Ed.2d 570, 92 S.Ct. 2694 (1972)).
Additionally, elected school board members in Illinois have a protectable property right in their
office, and they cannot be removed unless procedural due process requirements (i.e., notice of
and opportunity to contest the basis for removal) are satisfied. East St. Louis Federation of
Teachers, Local 1220, American Federation of Teachers, AFL-CIO v. East St. Louis School
District No. 189 Financial Oversight Panel, 178 Ill.2d 399, 687 N.E.2d 1050, 227 Ill.Dec. 568
(1997).
The Seventh Circuit Court of Appeals has held that an employee has a property interest in
continued employment when it is shown that a “mutually explicit understanding” existed between
the employee and the employer that the employment relationship would continue for a fixed term
(Wolf v. Larson, 897 F.2d 1409, 1413 (7th Cir. 1990)) or even when there is an implied term
employment contract (Domiano v. Village of River Grove, 904 F.2d 1142, 1147 – 1148 (7th Cir.
1990) (finding entitlement to continued employment based on city ordinance)).
Once the deprivation of a life, liberty, or property interest has been identified, the analysis
focuses on the private interest to be affected by the official action, the risk of erroneous
deprivation of that interest through the procedures used, the probable value, if any, of providing
additional or substitute procedural safeguards, and, finally, the government’s interest, including
the function involved and the fiscal and administrative burdens that the additional or substitute
procedural requirements would entail. Mathews v. Eldridge, 424 U.S. 319, 47 L.Ed.2d 18, 96
S.Ct. 893 (1976).
“The Constitutional requirement of due process does not always translate into the entitlement
to a full-blown predeprivation hearing, complete with every procedural safeguard available.”
North Star Contracting Corp. v. Long Island R.R., 723 F.Supp. 902, 909 (E.D.N.Y. 1989).
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Instead, procedural due process is a flexible concept intended to provide the right to “some form
of hearing.” [Emphasis in original.] Logan v. Zimmerman Brush Co., 455 U.S. 422, 71 L.Ed.2d
265, 102 S.Ct. 1148, 1156 (1982), quoting Roth, supra, 92 S.Ct. at 2705 n.8. The mandated
requirement that the hearing take place “at a meaningful time and in a meaningful manner” does
not always require that a pre-deprivation hearing be provided. Parratt v. Taylor, 451 U.S. 527, 68
L.Ed.2d 420, 101 S.Ct. 1908, 1915 (1981) (quoting Armstrong v. Manzo, 380 U.S. 545, 14
L.Ed.2d 62, 85 S.Ct. 1187, 1191 (1965)), overruled in part on other grounds by Daniels v.
Williams, 474 U.S. 327, 88 L.Ed.2d 662, 106 S.Ct. 662 (1986).
When an employment discharge is involved, the availability of an after-the-fact cause of
action in state court may not be sufficient. In Cleveland Board of Education v. Loudermill, 470
U.S. 532, 84 L.Ed.2d 494, 105 S.Ct. 1487 (1985), a school employee was dismissed in
accordance with state law that provided for administrative review of the dismissal but did not
have a requirement for a pre-dismissal hearing. The Court held that the employee was entitled to
a pretermination opportunity to respond as well as the post-termination administrative review
provided in the state statute. In Baird v. Board of Education for Warren Community Unit School
District 205, Jo Daviess County, Illinois, 389 F.3d 685 (7th Cir. 2004), the court held that a state
breach-of-contract action was not an adequate post-termination remedy for an employee with an
entitlement to continued employment and who was afforded only a limited pretermination
hearing. Baird involved the termination of a school superintendent after the first year of a threeyear contract who, among other things, was not given a full opportunity (at a pretermination
hearing) to question persons who provided information to board members. The court found the
pretermination procedures inadequate and concluded that a post-termination lawsuit did not
satisfy the due process requirement of promptness. However, in Michalowicz v. Village of
Bedford Park, 528 F.3d 530 (7th Cir. 2008), the court held that the employee’s entitlement to
administrative review of his termination under the Illinois Administrative Review Law provided
an adequate remedy to address claimed procedural inadequacies at his pretermination and posttermination hearings. The court noted, however, that the issues raised by the employee related
more to claims of bias than to an inability to develop a full record during his pretermination and
post-termination hearings.
In Gilbert v. Homar, 520 U.S. 924, 138 L.Ed.2d 120, 117 S.Ct. 1807 (1997), the Court held
that public employers may in certain circumstances suspend an employee without pay even
though a pre-suspension hearing was not conducted. The Court stated, “An important government
interest, accompanied by a substantial assurance that the deprivation is not baseless or
unwarranted, may in limited cases demanding prompt action justify postponing the opportunity to
be heard until after the initial deprivation.” 117 S.Ct. at 1812, quoting Federal Deposit Insurance
Corp. v. Mallen, 486 U.S. 230, 100 L.Ed.2d 265, 108 S.Ct. 1780, 1787 – 1788 (1988). In Gilbert,
the suspended employee was a state university police officer who was arrested and charged with
possession of drugs with intent to deliver and a criminal conspiracy, which was a felony. The
university immediately suspended the employee upon learning of the charges without any presuspension notice or hearing. The Court held that the employee’s due process rights were not
violated because the suspended employee received a prompt post-suspension hearing and because
the arrest and criminal charges were sufficient to ensure that the suspension was not arbitrary or
unjustified. Illinois employers must be mindful of the Illinois Human Rights Act, 775 ILCS
5/1-101, et seq., which prohibits employers from inquiring into or using the fact of an arrest when
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making employment decisions. 775 ILCS 5/2-103. However, the Act does not prohibit employers
from determining whether the person actually engaged in the conduct for which he or she was
arrested or from disciplining the employee if the conduct violates a work rule. Franklin v. City of
Evanston, 384 F.3d 838 (7th Cir. 2004). The court in Franklin also held that the prohibition
against considering arrest records in the Illinois Human Rights Act does not create a liberty
interest protected by the U.S. Constitution.
In Combs v. Board of Education of Avon Center School District No. 47, 147 Ill.App.3d 1092,
498 N.E.2d 806, 101 Ill.Dec. 482 (2d Dist. 1986), the Second District Appellate Court considered
Loudermill, supra, in conjunction with §24-12 of the School Code. The Combs court noted that
unlike the Ohio statute in Loudermill, §24-12 provides for a pretermination hearing. Although the
school district in Combs effectively dismissed the teacher by suspending him without pay before
a formal hearing before a hearing officer, the teacher was afforded an opportunity to appear
before the school board prior to the adoption of charges against him and his suspension without
pay. The court found that this procedure satisfied the minimal pretermination opportunity to be
heard that is required by Loudermill. The Seventh Circuit has also held that due process does not
require an independent decision maker outside the board itself to conduct the hearing. Beischel v.
Stone Bank School District, 362 F.3d 430 (7th Cir. 2004).
Additional due process considerations arise when disciplining employees facing criminal
charges for their conduct. When an employee requests a deferral of the discipline process until
after the criminal charge is resolved or refuses to answer questions because of the pending
charges, the employer can either (a) warn the employee that he or she has immunity for
statements made during the disciplinary proceeding (and is therefore required to answer
questions), or (b) grant the requested continuance. If an employee refuses to respond to the
employer after being informed of the use immunity, disciplinary action may be taken as the lack
of a response amounts to insubordination. Blunier v. Board of Fire & Police Commissioners of
City of Peoria, 190 Ill.App.3d 92, 545 N.E.2d 1363, 137 Ill.Dec. 348 (3d Dist. 1989). Failing to
advise the employee that his statements cannot be used against him in the criminal proceeding
and instead forcing an employee to choose between his job and Fifth Amendment rights violates
procedural due process guarantees. Franklin, supra.
These decisions underscore the nebulous nature of procedural due process. As the U.S.
Supreme Court observed, “due process is flexible and calls for such procedural protections as the
particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 33 L.Ed.2d 484, 92 S.Ct. 2593,
2600 (1972).
(3)
[11.15] Fundamental rights incorporated
Many of the provisions in the Bill of Rights have been made applicable to the states under the
theory that they are incorporated in the Due Process Clause of the Fourteenth Amendment. Other
fundamental rights, though not expressly mentioned in the Constitution, have also been judicially
determined to be incorporated in the Due Process Clause or the Privileges and Immunities Clause
of the Fourteenth Amendment. Among the fundamental rights that are enforceable under 42
U.S.C. §1983 are freedom of speech (Mt. Healthy City School District Board of Education v.
Doyle, 429 U.S. 274, 50 L.Ed.2d 471, 97 S.Ct. 568 (1977); Tinker v. Des Moines Independent
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Community School District, 393 U.S. 503, 21 L.Ed.2d 731, 89 S.Ct. 733 (1969)); free exercise of
religion (Cantwell v. State of Connecticut, 310 U.S. 296, 84 L.Ed. 1213, 60 S.Ct. 900 (1940)); no
establishment of religion (Everson v. Board of Education of Ewing Township, 330 U.S. 1, 91
L.Ed. 711, 67 S.Ct. 504 (1947)); protection against unreasonable searches (Wolf v. People of State
of Colorado, 338 U.S. 25, 93 L.Ed. 1782, 69 S.Ct. 1359 (1949), overruled in part by Mapp v.
Ohio, 367 U.S. 643, 6 L.Ed.2d 1081, 81 S.Ct. 1684 (1961)); access to the courts (United States v.
Kras, 409 U.S. 434, 34 L.Ed.2d 626, 93 S.Ct. 631 (1973)); and privacy (Roe v. Wade, 410 U.S.
113, 35 L.Ed.2d 147, 93 S.Ct. 705 (1973)).
In 2006, the United States Supreme Court issued an important decision circumscribing the
protections afforded to public employees who claim adverse employment action in retaliation for
their public speech activities. Garcetti v. Ceballos, 547 U.S. 410, 164 L.Ed.2d 689, 126 S.Ct.
1951 (2006), held that when a public employee makes statements pursuant to his official duties,
he is not speaking as a citizen, and the First Amendment does not protect the employee from
discipline by his employer related to this unprotected speech. In Garcetti, a deputy district
attorney claimed retaliation for his draft of a disposition memorandum concerning his beliefs
about a troublesome affidavit obtained in a case and his conclusion that the case should be
dismissed. The Court found that the memorandum was prepared by the attorney as part of his
official duties and, therefore, it was not protected speech. Therefore, the statements made by the
attorney in the memorandum were not protected against adverse job action.
(4)
[11.16] Substantive due process
The Due Process Clause has been held to provide substantive rights as well as to establish
procedural limitations on state action. While these “liberty” or “property” interests are recognized
to be “difficult of definition” (Paul v. Davis, 424 U.S. 693, 47 L.Ed.2d 405, 96 S.Ct. 1155, 1165
(1976)), the Seventh Circuit has stated that intent to injure is required in order to hold a defendant
liable for such a deprivation (Archie v. City of Racine, 847 F.2d 1211 (7th Cir. 1988)). In Archie,
the court noted that “negligence” and even “gross negligence” are not sufficiently reckless to
sustain a constitutional tort. Instead, the court stated that an act is reckless “when it reflects
complete indifference to risk — when the actor does not care whether the other person lives or
dies, despite knowing that there is a significant risk of death.” 847 F.2d at 1219. In essence, the
official conduct at issue must “shock the conscience” in order to impose liability. King v. East St.
Louis School District 189, 496 F.3d 812, 818 (7th Cir. 2007). Moreover, the Supreme Court has
stated that “barring certain government actions regardless of the fairness of the procedures used to
implement them . . . serves to prevent governmental power from being ‘used for purposes of
oppression.’ ” Daniels v. Williams, 474 U.S. 327, 88 L.Ed.2d 662, 106 S.Ct. 662, 665 (1986),
quoting Den ex dem. Murray v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 277,
15 L.Ed. 372 (1856).
(5)
[11.17] Federal statutory rights
In 1980, the U.S. Supreme Court held that 42 U.S.C. §1983 created a cause of action for all
violations of federal statutory law. Maine v. Thiboutot, 448 U.S. 1, 65 L.Ed.2d 555, 100 S.Ct.
2502 (1980). One year later, the Court limited Thiboutot’s apparently broad holding by ruling that
§1983 does not create a cause of action for the violation of federal statutes that themselves
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contain a built-in “comprehensive enforcement scheme.” Middlesex County Sewerage Authority
v. National Sea Clammers Ass’n, 453 U.S. 1, 69 L.Ed.2d 435, 101 S.Ct. 2615, 2626 (1981),
quoting Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 60 L.Ed.2d 508, 99
S.Ct. 1905, 1945 n.2 (1979). The Court found that the existence of these mechanisms evinced a
congressional intent to foreclose §1983 actions. Middlesex County, supra. Subsequently, the
Court relied on Middlesex County to conclude that the Education of the Handicapped Act (EHA)
(now the Individuals with Disabilities Education Act (IDEA)), 20 U.S.C. §1400, et seq., was the
exclusive avenue through which a child and his or her parents could pursue the right to a free
appropriate education based on either the EHA/IDEA or the Equal Protection Clause of the
Fourteenth Amendment. Smith v. Robinson, 468 U.S. 992, 82 L.Ed.2d 746, 104 S.Ct. 3457
(1984). Congress responded by enacting the Handicapped Children’s Protection Act of 1986,
Pub.L. No. 99-372, 100 Stat. 796, which amended the EHA/IDEA to explicitly provide that
§1983, as well as other avenues, were available to pursue such claims. 20 U.S.C. §1415(f).
However, this amendment was omitted in the 1997 and 2004 reauthorizations of IDEA, and thus
the Smith holding could still be considered “good” law (although the legislative history suggests
that Smith misinterpreted the congressional intent).
In Gonzaga University v. Doe, 536 U.S. 273, 153 L.Ed.2d 309, 122 S.Ct. 2268 (2002), the
Court held that the Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C.
§1232g, is not enforceable by way of a private action brought under §1983. The Court
specifically concluded that because FERPA’s confidentiality provisions lack the necessary sort of
individually focused rights-creating language, these provisions fail to create “rights” enforceable
under §1983. The Seventh Circuit has also held that it does not recognize an equal protection
retaliation claim under §1983. Boyd v. Illinois State Police, 384 F.3d 888 (7th Cir. 2004).
4. [11.18] Remedies
42 U.S.C. §1983 does not prescribe any special remedies upon demonstrating a deprivation of
protected rights. Accordingly, when a plaintiff seeks §1983 damages for the violation of
constitutional rights, the level of damages is ordinarily determined according to common-law tort
principles. Memphis Community School District v. Stachura, 477 U.S. 299, 91 L.Ed.2d 249, 106
S.Ct. 2537 (1986). The Seventh Circuit Court of Appeals has held that §1983 damages are
considered to be appropriate as long as these damages generally effect the policies underlying
§1983. Graham v. Sauk Prairie Police Commission, 915 F.2d 1085, 1104 (7th Cir. 1990). Cf.
Smith v. City of Chicago, 913 F.2d 469, 472 – 473 (7th Cir. 1990) (noting that absent actual
injury resulting from violation of constitutional rights, no damage recovery should be granted),
citing Carey v. Piphus, 435 U.S. 247, 55 L.Ed.2d 252, 98 S.Ct. 1042 (1978).
While §1983 may be used to remedy unconstitutional discrimination, it does not provide
redress for violations of the rights regarding employment discrimination created in Title VII of
the Civil Rights Act of 1964, which provides its own comprehensive remedial scheme. Gray v.
Lacke, 885 F.2d 399, 414 (7th Cir. 1989). However, plaintiffs may pursue a §1983 claim and a
Title VII claim simultaneously. The Civil Rights Act of 1991 imposed a cap on future pecuniary
loss, noneconomic loss, and punitive damages in intentional employment discrimination cases
under Title VII. 42 U.S.C. §1981a(b)(3). The cap varies according to the size of the employer. In
Hudson v. Reno, 130 F.3d 1193 (6th Cir. 1997), the court also clarified that the cap applies on a
“per lawsuit” basis, not separately to each distinct claim raised by a plaintiff.
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An expansive remedy is not always available, however, even in the aftermath of a wrongful
discharge. See Patterson v. Portch, 853 F.2d 1399, 1407 – 1408 (7th Cir. 1988) (holding that
backpay is recoverable only for time period between discharge and date on which termination
would have been effected with proper due process procedures being applied). A plaintiffemployee seeking a backpay remedy has the initial burden of establishing the amount of
damages. Fleming v. County of Kane, State of Illinois, 898 F.2d 553, 560 (7th Cir. 1990). If the
plaintiff meets this burden, then the employer may prevail only by proving that the plaintiff failed
to mitigate these damages. Id.
Reinstatement generally will be granted when a plaintiff prevails in a wrongful discharge case
brought under §1983. Starrett v. Wadley, 876 F.2d 808, 824 (10th Cir. 1989). Front pay may be
awarded in lieu of reinstatement if reinstatement would create a hostile work environment or
prove disruptive. Lindahl v. Bartolomei, 618 F.Supp. 981, 991 (N.D.Ind. 1985). However, in
order to recover front pay, the plaintiff must be eligible for equitable relief. Swanson v. Martwick,
726 F.Supp. 210, 211 (N.D.Ill. 1989). Importantly, the Supreme Court has confirmed that front
pay is not subject to the statutory cap applicable to compensatory and punitive damages under
Title VII. Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 150 L.Ed.2d 62, 121 S.Ct.
1946 (2001), overruling in part Hudson, supra. See also Pals v. Schepel Buick & GMC Truck,
Inc., 220 F.3d 495 (7th Cir. 2000). Also, the Seventh Circuit has held that compensatory and
punitive damages are not available in claims for retaliation in violation of the Americans with
Disabilities Act of 1990. Kramer v. Banc of America Securities, LLC, 355 F.3d 961 (7th Cir.
2004).
5. Defenses
a. [11.19] Immunities
Although 42 U.S.C. §1983 does not expressly provide for any immunities, the U.S. Supreme
Court has extended a variety of common-law immunities to certain defendants.
(1)
[11.20] Qualified immunity
Persons sued in their individual capacities under 42 U.S.C. §1983 may assert a qualified
immunity from liability for damages. In Wood v. Strickland, 420 U.S. 308, 43 L.Ed.2d 214, 95
S.Ct. 992, 1000 (1975), which extended this immunity to school board members and school
administrators, the U.S. Supreme Court stated the following underlying policy rationale:
We think there must be a degree of immunity if the work of the schools is to go
forward; and, however worded, the immunity must be such that public school
officials understand that action taken in the good-faith fulfillment of their
responsibilities and within the bounds of reason under all the circumstances will not
be punished and that they need not exercise their discretion with undue timidity.
As originally stated in Wood, the test for qualified immunity contained both objective and
subjective components; i.e., §1983 would not provide immunity from liability to an official who
(a) knew or reasonably should have known that an action was violative of constitutional rights, or
(b) took the action with the malicious intention to deprive a person of constitutional rights.
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Observing that the second component involved questions of fact not disposable on summary
judgment, the Supreme Court later eliminated it from the test for good-faith immunity. In Harlow
v. Fitzgerald, 457 U.S. 800, 73 L.Ed.2d 396, 102 S.Ct. 2727, 2738 (1982), the Court stated:
Reliance on the objective reasonableness of an official’s conduct, as measured by
reference to clearly established law, should avoid excessive disruption of
government and permit the resolution of many insubstantial claims on summary
judgment. On summary judgment, the judge appropriately may determine, not only
the currently applicable law, but whether that law was clearly established at the
time an action occurred. If the law at that time was not clearly established, an
official could not reasonably be expected to anticipate subsequent legal
developments, nor could he fairly be said to “know” that the law forbade conduct
not previously identified as unlawful. Until this threshold immunity question is
resolved, discovery should not be allowed. If the law was clearly established, the
immunity defense ordinarily should fail, since a reasonably competent public official
should know the law governing his conduct. Nevertheless, if the official pleading the
defense claims extraordinary circumstances and can prove that he neither knew nor
should have known of the relevant legal standard, the defense should be sustained.
But again, the defense would turn primarily on objective factors.
Although Harlow did not involve a claim under §1983, the Court specifically noted that there
was no basis for drawing a distinction for purposes of immunity law between actions against
federal officials and actions under §1983. 102 S.Ct. at 2738 n.30. Subsequently, in Anderson v.
Creighton, 483 U.S. 635, 97 L.Ed.2d 523, 107 S.Ct. 3034 (1987), the Court held that
governmental officials are immune from liability if their conduct does not violate clearly
established constitutional or federal statutory rights of which a reasonable person would have
known — even if a constitutional violation is found. See also Narducci v. Moore, 572 F.3d 313
(7th Cir. 2009), in which the court similarly defined “qualified immunity” but held that it was
waived by not raising the defense until the filing of a reply brief on summary judgment. In
Crawford-El v. Britton, 523 U.S. 574, 140 L.Ed.2d 759, 118 S.Ct. 1584 (1998), the Court further
noted that a defense of qualified immunity cannot be overcome by evidence that the defendant’s
conduct was malicious or otherwise improperly motivated because motivation is irrelevant to this
defense.
Qualified immunity is not available, however, to school districts or other local governmental
entities even when an individual defendant enjoys immunity. Brandon v. Holt, 469 U.S. 464, 83
L.Ed.2d 878, 105 S.Ct. 873 (1985). Importantly, under certain circumstances, denial of a claim of
qualified immunity is an immediately appealable decision. Mitchell v. Forsyth, 472 U.S. 511, 86
L.Ed.2d 411, 105 S.Ct. 2806 (1985). Orders rejecting qualified immunity are immediately
appealable if based on a determination of the existence of a clearly established right. When the
denial rests on a determination that the evidence raises a genuine issue of material fact, an
immediate appeal is not permitted. Johnson v. Jones, 515 U.S. 304, 132 L.Ed.2d 238, 115 S.Ct.
2151 (1995). The Seventh Circuit has indicated that it will entertain immediate appeals when the
material facts are undisputed or when the defendant is entitled to immunity even under the
plaintiff’s view of the facts. Anderson v. Romero, 72 F.3d 518 (7th Cir. 1995). Under these
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circumstances, an interlocutory appeal suspends the trial date. Apostol v. Gallion, 870 F.2d 1335
(7th Cir. 1989). Note that defendants asserting qualified immunity to a §1983 claim brought in
state court have no federal right to an interlocutory appeal. Johnson v. Fankell, 520 U.S. 911, 138
L.Ed.2d 108, 117 S.Ct. 1800 (1997).
(2)
[11.21] Absolute immunity
In addition to qualified immunity (see §11.20 above), local government officials are
absolutely immune from claims under 42 U.S.C. §1983 for their legislative activities. Bogan v.
Scott-Harris, 523 U.S. 44, 140 L.Ed.2d 79, 118 S.Ct. 966 (1998). Recognizing that important
policy considerations support affording local officials this immunity, the court went on to state
that officials outside the legislative branch are entitled to the same protection from suit when they
perform legislative functions. 118 S.Ct. at 973 (applying absolute immunity to protect mayor who
prepared budget eliminating various positions and departments within his city and who signed
into law budget ordinance adopted by city council). The Court in Bogan also stated that absolute
immunity attaches to all actions taken “in the sphere of legitimate legislative activity.” 118 S.Ct.
at 972, quoting Tenney v. Brandhove, 341 U.S. 367, 95 L.Ed. 1019, 71 S.Ct. 783, 788 (1951).
Determining whether an act is legislative turns on the nature of the act rather than on the motive
or intent of the official performing the act. Thus, the Supreme Court in Bogan reversed the circuit
court, which had erroneously relied on the defendants’ subjective intent in determining whether
the officials’ acts were legislative. Notably, employment decisions are generally considered
administrative unless they are accomplished through legislative functions such as policy making
and budget restructuring that “strike at the heart of the legislative process.” Boyd v. Village of
Carol Stream, No. 99 C 6514, 2000 WL 1700124 at *4 (N.D. Ill. 2000) (citing Rateree v. Rockett,
852 F.2d 946, 950 (7th Cir. 1988)).
(3)
[11.22] Immunity from punitive damages
Although local governmental entities and persons sued in their official capacities do not enjoy
qualified good-faith immunity from all liability, they do enjoy an absolute immunity from
punitive damages. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 69 L.Ed.2d 616, 101
S.Ct. 2748 (1981); Planned Parenthood Association/Chicago Area v. Chicago Transit Authority,
767 F.2d 1225 (7th Cir. 1985); 42 U.S.C. §1981a(b)(l). However, public officials and employees
sued in their individual capacities can be held liable for punitive damages, and their local
governmental employers may not expend public funds to cover such damage awards.
(4)
[11.23] The Eleventh Amendment
The Eleventh Amendment to the United States Constitution provides that suits against states
cannot be maintained in federal court by citizens of foreign states. However, “if a State waives its
immunity and consents to suit in federal court, the Eleventh Amendment does not bar the action.
Atascadero State Hospital v. Scanlon, 473 U.S. 234, 87 L.Ed.2d 171, 105 S.Ct. 3142, 3145
(1985). The test for determining whether a state has waived its immunity from federal court
jurisdiction is a stringent one; in order to conclude that a state has relinquished its Eleventh
Amendment immunity, there must be an unequivocal waiver specifically applicable to federal
court jurisdiction. 105 S.Ct. at 3146 – 3147. However, 42 U.S.C. §2000d-7(a)(1) expressly
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provides that a state shall not be immune under the Eleventh Amendment for a violation of §504
of the Rehabilitation Act of 1973, Pub.L. No. 93-112, 87 Stat. 355 (29 U.S.C. §701, et seq.; see
29 U.S.C. §794); Title IX of the Education Amendments of 1972, Pub.L. No. 92-318, 86 Stat.
235, 373 (see 20 U.S.C. §1681, et seq.); the Age Discrimination Act of 1975, Pub.L. No. 94-135,
Title III, 89 Stat. 728 (see 42 U.S.C. §6101, et seq.); Title VI of the Civil Rights of 1964, Pub.L.
No. 88-352, 78 Stat. 241 (see 42 U.S.C. §2000d, et seq.); or the provisions of any other federal
statute prohibiting discrimination by recipients of federal financial assistance.
The Supreme Court has held that the Americans with Disabilities Act of 1990 is
unconstitutional to the extent that it attempted to abrogate the states’ Eleventh Amendment
immunity from suits for money damages under Title I of the Act. Board of Trustees of University
of Alabama v. Garrett, 531 U.S. 356, 148 L.Ed.2d 866, 121 S.Ct. 955 (2001). The Court found
that Congress failed to identify a pattern of irrational state discrimination in employment against
the disabled and that the rights and remedies created by the ADA against the states raise
congruence and proportionality concerns given the inadequate record of state discrimination
against the disabled. As a result, states enjoy Eleventh Amendment immunity from private suits
seeking money damages under Title I of the ADA. However, the Court noted that the ADA still
authorizes actions for money damages against states brought by the United States, as well as
actions by private individuals seeking injunctive relief against states.
Similarly, the Supreme Court declared Congress’ attempt to abrogate the states’ immunity
under the Age Discrimination in Employment Act of 1967 to exceed Congress’ authority under
§5 of the Fourteenth Amendment to the Constitution. Kimel v. Florida Board of Regents, 528
U.S. 62, 145 L.Ed.2d 522, 120 S.Ct. 631 (2000). Noting that Congress cannot decree the
substance of the Fourteenth Amendment’s restrictions on states, the Court found the ADEA to be
“so out of proportion to a supposed remedial or preventive object that it cannot be understood as
responsive to, or designed to prevent, unconstitutional behavior.” 120 S.Ct. at 645, quoting City
of Boerne v. Flores, 521 U.S. 507, 138 L.Ed.2d 624, 117 S.Ct. 2157, 2170 (1997). The Court did
note that most employees subject to age discrimination by their state employers would still be
protected by, and recover damages under, state age discrimination statutes. In Illinois, the Illinois
Human Rights Act prohibits discrimination in employment on the basis of age. 775 ILCS
5/2-102(A), 5/1-103(Q).
With respect to the Family and Medical Leave Act of 1993 (FMLA), Pub.L. No. 103-3, 107
Stat. 6 (codified in part at 29 U.S.C. §2601, et seq.), the Court has declared that Congress
properly abrogated the states’ immunity. Nevada Department of Human Resources v. Hibbs, 538
U.S. 721, 155 L.Ed.2d 953, 123 S.Ct. 1972 (2003).
Many practitioners have questioned whether the Eleventh Amendment affords school districts
immunity from suits brought in federal court under 42 U.S.C. §1983. The Supreme Court
resolved this question in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S.
274, 50 L.Ed.2d 471, 97 S.Ct. 568 (1977), in which the Court held that a local school board is
more like a county or city than an arm of the state. Therefore, the Court concluded, a school
district cannot assert Eleventh Amendment immunity from suit in federal courts. It was
previously settled by the courts that the immunity provided by the Eleventh Amendment is
applicable to only the state and agencies that are viewed to be the state’s alter ego. This protection
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does not extend to political subdivisions. Lincoln County v. Luning, 133 U.S. 529, 33 L.Ed. 766,
10 S.Ct. 363 (1890); Edelman v. Jordan, 415 U.S. 651, 39 L.Ed.2d 662, 94 S.Ct. 1347 (1974). In
Illinois, school districts and boards are, for questions of this distinction, political subdivisions.
Hostrop v. Board of Junior College District No. 515, Counties of Cook & Will & State of Illinois,
523 F.2d 569, 576 – 577 (7th Cir. 1975), cert. denied, 96 S.Ct. 1748 (1976).
Even before Mt. Healthy, the Illinois legislature had waived any protection that an Illinois
school district or board may have had. Section 10-2 of the School Code provides that boards
“may sue and be sued in all courts and places where judicial proceedings are had.” 105 ILCS
5/10-2. Section 34-2 of the School Code makes an identical provision applicable to the Chicago
board. 105 ILCS 5/34-2. The legislature has also been held to have waived immunity under §3-11
of the Public Community College Act, 110 ILCS 805/3-11, for boards created under this Act.
Hostrop, supra.
b. [11.24] Claim Preclusion
The doctrine of claim preclusion (res judicata) holds that a final judgment in a prior action
bars the same parties or their privies from relitigating not only the issues that were in fact raised
and decided, but also all other issues that could have been raised in the prior action. Mandarino v.
Pollard, 718 F.2d 845 (7th Cir. 1983), cert. denied, 105 S.Ct. 116 (1984).
Application of the doctrine of claim preclusion requires the existence of three essential
elements: (1) a final judgment on the merits in an earlier action; (2) an identity of parties or their
privies in the two suits; and (3) an identity of the cause of action in the two suits. See generally
Welch v. Johnson, 907 F.2d 714 (7th Cir. 1990) (applying this analysis to determine whether
lower court properly concluded that plaintiff’s claims under Title VII of Civil Rights Act of 1964
and 42 U.S.C. §1983 were barred by res judicata).
A suit filed under §1983 in federal court can be precluded by the existence of a previous state
court judgment. Migra v. Warren City School District Board of Education, 465 U.S. 75, 79
L.Ed.2d 56, 104 S.Ct. 892 (1984). The federal courts are required to give a state judgment the
same preclusive effect it would be given under the law of the state in which the judgment was
rendered.
The preclusive effect of state administrative proceedings varies depending on the
congressional intent underlying the federal statutory remedy at issue. In University of Tennessee
v. Elliott, 478 U.S. 788, 92 L.Ed.2d 635, 106 S.Ct. 3220 (1986), the Supreme Court held that
unreviewed state administrative findings did not have a preclusive effect on Title VII claims.
However, administrative findings will have a preclusive effect on claims under the
Reconstruction civil rights statutes, including §1983. In this regard, unappealed arbitration awards
have no preclusive effect in subsequent §1983 actions. McDonald v. City of West Branch,
Michigan, 466 U.S. 284, 80 L.Ed.2d 302, 104 S.Ct. 1799 (1984).
In Kirk v. Board of Education of Bremen Community High School District, No. 228, Cook
County, Illinois, 811 F.2d 347 (7th Cir. 1987), the plaintiff teachers failed to file a counterclaim
in a suit brought by the school board to set aside an arbitrator’s award ordering their
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reinstatement. The school board prevailed in that suit. Subsequently, the school board filed a
motion to dismiss the plaintiffs’ Title VII complaint that had been initiated at the time the
grievance was filed on the basis that the Title VII complaint was barred by res judicata. The
district court granted the motion, but the Seventh Circuit reversed on the basis that the Title VII
suit did not involve the same cause of action as the state litigation.
In Hussein v. Oshkosh Motor Truck Co., 816 F.2d 348 (7th Cir. 1987), the plaintiff was
required to bring the counts under both 42 U.S.C. §1981 and Title VII in the same complaint. The
district court dismissed the civil rights action and entered judgment in favor of the defendant in
the Title VII action. However, the appellate court reversed the dismissal on the basis that the
plaintiff was entitled to a jury resolution of the factual issues underlying his §1981 claim.
Following this trend, in Duggan v. Board of Education of East Chicago Heights, District No.
169, Cook County, Illinois, 818 F.2d 1291 (7th Cir. 1987), the Seventh Circuit held that
unreviewed findings of fact made during a state administrative hearing should not be given
preclusive effect in a suit brought under the Age Discrimination in Employment Act of 1967.
However, the Seventh Circuit has also held that res judicata applied to bar a federal race
discrimination claim filed by an employee challenging his termination when the employee failed
to raise race discrimination as a defense to the discharge proceedings that were challenged by the
employee in state court. Pirela v. Village of North Aurora, 935 F.2d 909 (7th Cir. 1991). See also
Durgins v. City of East St. Louis, Illinois, 272 F.3d 841 (7th Cir. 2001), holding that because
Illinois permits the joinder of §1983 actions with administrative review actions and applies the
doctrine of merger and bar, an administrative review action forecloses a subsequent §1983 action
arising out of the same transaction.
c. [11.25] Statute of Limitations
42 U.S.C. §1983 does not contain a specific statute of limitations governing actions initiated
under it. Wilson v. Garcia, 471 U.S. 261, 85 L.Ed.2d 254, 105 S.Ct. 1938, 1942 (1985). In
response to this omission, the Supreme Court has concluded that the borrowing principle
contained in 42 U.S.C. §1988 should be construed as a directive “to select, in each State, the one
most appropriate statute of limitations for all §1983 claims.” 105 S.Ct. at 1946 – 1947. See also
Goodman v. Lukens Steel Co., 482 U.S. 656, 96 L.Ed.2d 572, 107 S.Ct. 2617, 2620 (1987)
(“Because §1981, like §§1982 and 1983, does not contain a statute of limitations, federal courts
should select the most appropriate or analogous state statute of limitations.”).
In Owens v. Okure, 488 U.S. 235, 102 L.Ed.2d 594, 109 S.Ct. 573, 577 (1989), the Supreme
Court confirmed that in states in which one statute of limitations applies to all personal injury
claims, this statute of limitations must be applied to all §1983 claims. The Owens Court noted that
its decision was “fully consistent with Wilson’s rejection of a state residual, or ‘catch-all,’
limitations provision as the appropriate one for §1983 actions.” 109 S.Ct. at 582 n.12. Arguably,
the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101,
et seq., is the singular Illinois statute for personal injury actions brought against local
governmental bodies and their employees as its express purpose is “to protect local public entities
and public employees from liability arising from the operation of government.” 745 ILCS
10/1-101.1(a).
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The Local Governmental and Governmental Employees Tort Immunity Act defines “injury”
to specifically include “any injury alleged in a civil action, whether based upon the Constitution
of the United States or the Constitution of the State of Illinois, and the statutes or common law of
Illinois or of the United States.” 745 ILCS 10/1-204. The Act further states:
(a) No civil action other than an action described in subsection (b) may be
commenced in any court against a local entity or any of its employees for any injury
unless it is commenced within one year from the date that the injury was received or
the cause of action accrued.
(b) No action for damages for injury or death against any local public entity or
public employee, whether based upon tort, or breach of contract, or otherwise,
arising out of patient care shall be brought more than 2 years after the date on
which the claimant knew, or through the use of reasonable diligence should have
known, or received notice in writing of the existence of the injury or death for which
damages are sought in the action, whichever of those dates occurs first, but in no
event shall such an action be brought more than 4 years after the date on which
occurred the act or omission or occurrence alleged in the action to have been the
cause of the injury or death.
(c) For purposes of this Article, the term “civil action” includes any action,
whether based upon the common law or statutes or Constitution of this State.
[Emphasis added.] 745 ILCS 10/8-101.
Thus, it appears that except for actions involving patient care under §8-101(b), a one-year
limitation period applies to §1983 claims. However, the Seventh Circuit has expressly held that
the two-year statute of limitations found at §13-202 of the Code of Civil Procedure, 735 ILCS
5/1-101, et seq., applies to §1983 claims. Palmer v. Board of Education of Community Unit
School District 201-U, Will County, Illinois, 46 F.3d 682, 684 (7th Cir. 1995). In Palmer, the
court rejected the defendants’ argument that the one-year statute of limitations found in the Local
Governmental and Governmental Employees Tort Immunity Act applies to §1983 claims against
local governmental entities.
The Supreme Court has determined that the statute of limitations period under the civil rights
statutes begins to run on the date that the plaintiffs receive notice of the alleged discriminatory
act, not on the date the consequences of the alleged discriminatory act take effect. Delaware State
College v. Ricks, 449 U.S. 250, 66 L.Ed.2d 431, 101 S.Ct. 498, 504 (1980). This distinction is
especially important for schoolteachers who receive notice of their termination prior to the actual
date their employment ends. Under Ricks, the statute of limitations on a civil rights claim arising
out of the teacher’s termination begins to run when the teacher first receives notice of the
employment decision. However, the mere initiation of a discharge process does not trigger the
statute of limitations. Instead, “[t]he discrete event in a discharge situation is the formal
announcement to the employee that the job will come to an end.” Cigan v. Chippewa Falls School
District, 388 F.3d 331, 334 (7th Cir. 2004).
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The Lily Ledbetter Fair Pay Act of 2009, Pub.L. No. 111-2, 123 Stat. 5, was signed into law
on January 29, 2009. The Act is the congressional response to the Supreme Court’s ruling in
Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 167 L.Ed.2d 982, 127 S.Ct. 2162
(2007). In Ledbetter, the Court held that employees cannot challenge pay discrimination if the
decision resulting in that ongoing discrepancy was made outside the statute of limitations period.
The Act overruled Ledbetter and effectively restarts the statute of limitations on pay
discrimination claims with each new paycheck issued pursuant to an earlier discriminatory pay
decision. The Act applies to pay discrimination claims brought under Title VII, the ADEA, the
ADA, and §§501 and 504 of the Rehabilitation Act of 1973. Additionally, the Act is retroactively
effective to May 28, 2007.
d. [11.26] Legitimate, Nondiscriminatory Reasons for Employment Decisions
Many cases under 42 U.S.C. §1983 arise from adverse employment action taken against an
individual. As a result, the courts have recognized that an employer may have taken the action for
a valid business reason that precludes the employee from succeeding on a claim. Examples of
legitimate, nondiscriminatory reasons for employment decisions include absenteeism (Rush v.
McDonald’s Corp., 966 F.2d 1104 (7th Cir. 1992)), fraud (McCarthy v. Kemper Life Insurance
Cos., 924 F.2d 683 (7th Cir. 1991)), physical abuse (Billups v. Methodist Hospital of Chicago,
922 F.2d 1300 (7th Cir. 1991)), and violation of work rules (Hamdan v. JK Guardian Security
Services, 66 Empl.Prac.Dec. (CCH) ¶43,551 (N.D.Ill. 1994)).
In Raytheon Co. v. Hernandez, 540 U.S. 44, 157 L.Ed.2d 357, 124 S.Ct. 513 (2003), the
Court upheld the company’s policy prohibiting the rehiring of workers previously terminated for
workplace misconduct. Hernandez, a former drug addict, applied for work at Raytheon. He was
previously fired from Raytheon for using illegal drugs in violation of company policy. The Ninth
Circuit Court of Appeals deemed the no-rehire policy unlawful under the Americans with
Disabilities Act of 1990, concluding that the policy had a discriminatory impact on former drug
users who have been rehabilitated. The Supreme Court reversed the Ninth Circuit, finding that the
policy was a quintessential, legitimate, nondiscriminatory reason for refusing to rehire an
employee terminated for violating workplace conduct rules.
6. Procedural Considerations
a. [11.27] Exhaustion of State Administrative Remedies
The U.S. Supreme Court has held that a plaintiff bringing a claim under 42 U.S.C. §1983
need not first exhaust available state administrative remedies. Patsy v. Board of Regents of State
of Florida, 457 U.S. 496, 73 L.Ed.2d 172, 102 S.Ct. 2557, 2563 (1982). The Seventh Circuit
Court of Appeals has acknowledged the fact that the availability of a state administrative review
procedure does not necessarily foreclose a §1983 cause of action. Artist M. v. Johnson, 917 F.2d
980, 988 (7th Cir. 1990) (citing Patsy, supra), rev’d on other grounds, 112 S.Ct. 1360 (1992).
However, failure to exhaust state remedies may bar a §1983 action when adequate state
procedures and remedies exist to assert a deprivation of life, liberty, or property claim and the
actions of the public official-defendant were random and unauthorized or pre-deprivation
protections were impossible to provide. Zinermon v. Burch, 494 U.S. 113, 108 L.Ed.2d 100, 110
S.Ct. 975 (1990).
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b. [11.28] Exhaustion of State Judicial Remedies
Since its decision in Monroe v. Pape, 365 U.S. 167, 5 L.Ed.2d 492, 81 S.Ct. 473 (1961),
overruled on other grounds by Monell v. Department of Social Services of City of New York, 436
U.S. 658, 56 L.Ed.2d 611, 98 S.Ct. 2018 (1978), the U.S. Supreme Court has held that a plaintiff
bringing a claim under 42 U.S.C. §1983 need not first pursue state judicial relief in the state
courts. As stated by Justice Douglas in Monroe, “The federal remedy is supplementary to the
state remedy, and the latter need not be first sought and refused before the federal one is
invoked.” 81 S.Ct. at 482.
A federal court may, however, postpone consideration of a §1983 claim pending a state court
adjudication of an unsettled issue of state law. Such an “abstention” by the federal court imposes
a de facto requirement that the litigant exhaust state judicial remedies before having a §1983
claim heard. See England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 11
L.Ed.2d 440, 84 S.Ct. 461, 467 – 468 (1964) (seminal case credited with establishing England
reserve doctrine).
c. [11.29] Removal to Federal Court
In some instances, plaintiffs will choose to bring suit against the board of education or board
members or employees in state court rather than in a federal forum. The defendants in these
actions will then have an opportunity to remove the suit to a federal district court providing that
certain conditions are met.
28 U.S.C. §1441 generally defines which actions may be removed from state court to federal
court. For claims based on 42 U.S.C. §1983, §1441(b) permits removal provided that the federal
court would have original jurisdiction over the action. Claims based on §1983 will always be
removable because there are no longer any jurisdictional prerequisites such as an amount in
controversy that would prevent the court from taking jurisdiction.
Cases with multiple defendants based on §1983, the Fourteenth Amendment, or a
combination of both will be removable only if all defendants join in the attempt to remove. When
plaintiffs have joined pendent claims to their federal actions (e.g., a suit for breach of contract
joined to a §1983 suit for dismissal and consequent deprivation of property without due process
of law), defendants can remove under §1441(b) as if the federal claim were brought by itself.
The procedure for removal is defined by 28 U.S.C. §1446. Defendants must file a verified
petition with the federal district court for the district and division in which the action is presently
pending, usually within 30 days after receipt of the complaint. The petition should set out the fact
entitling the defendants to have the action removed. 28 U.S.C. §1446(a). After the petition has
been filed in federal court, the party seeking removal must give written notice to the other party
of the filing and file a copy of the notice with the state court. 28 U.S.C. §1446(d). The filing with
the state court automatically effects the removal to federal court and deprives the state court of
jurisdiction unless and until the federal court remands the case. Id.
Section 1441(a) provides that the action shall be removed to the federal district court for the
district and division embracing the place where the action is pending.
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d. [11.30] Arbitration of §1983 Claims
While no court has specifically held that claims under 42 U.S.C. §1983 may be subject to
mandatory arbitration, some useful caselaw has developed. For example, in Gilmer v.
Interstate/Johnson Lane Corp., 500 U.S. 20, 114 L.Ed.2d 26, 111 S.Ct. 1647 (1991), the Court
held that an employee could be required to arbitrate a federal age discrimination claim if the
employee contracted to do so in an arbitration agreement. In support of its decision, the Court
stated, “[S]o long as the prospective litigant effectively may vindicate [his or her] statutory cause
of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent
function.” 111 S.Ct. at 1653, quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,
473 U.S. 614, 87 L.Ed.2d 444, 105 S.Ct. 3346, 3359 (1985). The Civil Rights Act of 1991 stated,
with respect to Title VII claims, that the parties could pursue arbitration of their dispute. In Cole
v. Burns International Security Services, 105 F.3d 1465 (D.C.Cir. 1997), the court upheld an
arbitration agreement in the context of a case under Title VII of the Civil Rights Act of 1964
when an employee was required, as a condition of employment, to execute an agreement allowing
the employer to require, at its discretion, arbitration of claims of discrimination in violation of
federal or state laws. The Cole court also detailed various procedural safeguards the arbitration
agreement should meet in order to be upheld in the employment context, including the right to
and scope of judicial review of the arbitration award. While application of these principles to
§1983 claims remains uncertain, the trend is toward a more favorable reception of arbitration
agreements by federal courts.
In Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 149 L.Ed.2d 234, 121 S.Ct. 1302 (2001),
the Court upheld an arbitration agreement that required arbitration over various federal civil
rights claims arising out of the employment application process, the actual employment
relationship, or the termination of the plaintiff’s employment with the employer. The employee
argued that the Federal Arbitration Act, 9 U.S.C. §1, et seq., precluded enforcement of the
agreement at issue given the Act’s exclusion of contracts for the employment of “seamen,
railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9
U.S.C. §1. The Court held that this exclusion is limited to transportation workers and rejected the
Ninth Circuit’s construal of the exemption to reach all contracts of employment. While the
employee in Adams asserted state law claims under California’s Fair Employment and Housing
Act and general tort law, the arbitration agreement was written to include claims under federal,
state, and local statutory or common law, such as the Age Discrimination in Employment Act of
1967, Title VII of the Civil Rights Act of 1964, as amended, including the amendments of the
Civil Rights Act of 1991, and the Americans with Disabilities Act of 1990. Moreover, this
“contract” was an agreement signed by the employee as part of his employment application. In
upholding the arbitration agreement, the Court also noted that these agreements may be enforced
under the Federal Arbitration Act without contravening the policies of congressional enactments
providing employees with specific protection against discrimination prohibited by federal law.
Notably, the Seventh Circuit has held that an employee’s salary constitutes adequate
consideration for an agreement to arbitrate disputes with the employer. Oblix, Inc. v. Winiecki,
374 F.3d 488 (7th Cir. 2004).
In 14 Penn Plaza v. Pyett, ___ U.S. ___, ___ L.Ed.2d ___, 129 S.Ct. 1456 (2009), the Court
upheld a collective bargaining agreement that required ADEA claims to be arbitrated. The Court
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discussed at length the concerns with a collective bargaining agreement imposing on individuals
the obligation to arbitrate a federal civil rights claim but found nothing in the ADEA to prohibit
such a result. Thus, the Court held that a collective bargaining agreement that clearly and
unmistakably requires bargaining unit members to arbitrate an ADEA claim is enforceable.
C. [11.31] Section 1985
42 U.S.C. §1985(3) creates a cause of action to address “conspiracies” (i.e., actions of two or
more persons) to deprive a person of rights or privileges guaranteed by the Constitution to all
citizens:
If two or more persons in any State or Territory conspire, or go in disguise on
the highway or on the premises of another, for the purpose of depriving, either
directly or indirectly, any person or class of persons of the equal protection of the
laws, or of equal privileges and immunities under the laws; or for the purpose of
preventing or hindering the constituted authorities of any State or Territory from
giving or securing to all persons within such State or Territory the equal protection
of the laws; or if two or more persons conspire to prevent by force, intimidation, or
threat, any citizen who is lawfully entitled to vote, from giving his support or
advocacy in a legal manner, toward or in favor of the election of any lawfully
qualified person as an elector for President or Vice-President, or as a Member of
Congress of the United States; or to injure any citizen in person or property on
account of such support or advocacy; in any case of conspiracy set forth in this
section, if one or more persons engaged therein do, or cause to be done, any act in
furtherance of the object of such conspiracy, whereby another is injured in his
person or property, or deprived of having and exercising any right or privilege of a
citizen of the United States, the party so injured or deprived may have an action for
the recovery of damages, occasioned by such injury or deprivation, against any one
or more of the conspirators.
This section creates no substantive rights but provides a cause of action against two or more
persons who engage in discriminatory conduct prohibited by other law. It has been used in
connection with 42 U.S.C. §1981 (discussed in §11.3 above) (Hudson v. Teamsters Local Union
No. 957, 536 F.Supp. 1138 (S.D. Ohio 1982); Witten v. A.H. Smith & Co., 567 F.Supp. 1063
(D.Md. 1983)) and the Rehabilitation Act of 1973 (Tyus v. Ohio Department of Youth Services,
606 F.Supp. 239 (S.D. Ohio 1985)). The U.S. Supreme Court, however, has held that violations
of Title VII of the Civil Rights Act of 1964 could not also be alleged under §1985(3) because the
enforcement scheme under Title VII is exclusive. Great American Federal Savings & Loan Ass’n
v. Novotny, 442 U.S. 366, 60 L.Ed.2d 957, 99 S.Ct. 2345 (1979). Novotny has since been
interpreted to disallow these multiple claims only when the case does not involve a right
independent of Title VII. If a plaintiff asserts a violation of 42 U.S.C. §1985 or §1983 based on a
right not created by Title VII (e.g., equal protection), this plaintiff may bring a Title VII claim
and a §1985 or §1983 claim in the same action. Bremiller v. Cleveland Psychiatric Institute, 879
F.Supp. 782 (N.D. Ohio 1995).
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Under §1985(3), a plaintiff must allege four elements to constitute a valid cause of action: (1)
a conspiracy; (2) a purpose of depriving, either directly or indirectly, any person or class of
persons of the equal protection of the laws or of equal privileges and immunities under the laws;
(3) an act in furtherance of the conspiracy; and (4) an injury to a person or property or a
deprivation of any right or privilege of a citizen of the United States. Trautvetter v. Quick, 916
F.2d 1140, 1153 (7th Cir. 1990).
The intra-corporate conspiracy doctrine is an important concept in considering §1985(3)
claims. It may provide a defense for §1985 claims when agents of the same governmental body
and the governmental entity itself are named defendants. Under this doctrine, a corporate entity
cannot conspire with itself or its agents. Also, the agents or officers of a corporate entity cannot
conspire with each other since they are acting for the corporation or entity.
Pursuant to the intra-corporate conspiracy doctrine, the requirements of §1985(3) are not
satisfied by “proof that a discriminatory business decision reflects the collective judgment of two
or more executives of the same firm.” Dombrowski v. Dowling, 459 F.2d 190, 196 (7th Cir.
1972). The Dombrowski court reasoned that “if the challenged conduct is essentially a single act
of discrimination by a single business entity, the fact that two or more agents participated in the
decision or in the act itself will normally not constitute the conspiracy contemplated by this
statute.” Id.
Dicta in Volk v. Coler, 845 F.2d 1422 (7th Cir. 1988), suggests that corporate managers could
become conspirators when engaging in multiple discriminatory or retaliatory acts. Such a
conclusion is incorrect, however. Numerous acts performed by several persons who are agents of
the same governmental entity who are acting within the scope of their employment but who have
no ability as individuals to affect the plaintiff do not comprise a conspiracy. Travis v. Gary
Community Mental Health Center, Inc., 921 F.2d 108, 111 (7th Cir. 1990). The intra-corporate
conspiracy doctrine as first articulated in Dombrowski lives, as explained by Judge Easterbrook in
Travis:
Travis’s final proffered limit is that corporate managers become conspirators
when they engage in multiple discriminatory (or retaliatory) acts. Some language in
Volk v. Coler, 845 F.2d 1422, 1434 – 36 (7th Cir. 1988), as in Dombrowski itself, 459
F.2d at 196, supports this proposal. Yet such a line responds neither to the text nor
to the objectives of §1985. Section 1985 depends on multiple actors, not on multiple
acts of discrimination or retaliation. Sequences such as first chastising an employee
and then firing him are neither better nor worse (so far as the objectives of §1985
are concerned) than is a clean act of discharge. A single corporate executive who
made multiple decisions would not be a “conspiracy”; why then would two
discriminatory or retaliatory acts approved by a plurality of corporate executives be
a conspiracy, if a single act by the same executives is not? We do not think the
distinction tenable if the foundation of Dombrowski is sound. Judge Manion,
concurring in Volk, observed that the discussion of Dombrowski in the majority’s
opinion is dicta. 845 F.2d at 1439. Now that the question has been presented for
decision, we conclude that it does not matter whether the corporate managers took
multiple steps to carry out their plan; intra-corporate discussions are not
“conspiracies.” [Emphasis in original.] Id.
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See also Wright v. Illinois Department of Children & Family Services, 40 F.3d 1492 (7th Cir.
1994). The Seventh Circuit has not decided whether the intra-corporate conspiracy doctrine
applies to §1983 claims. The federal district courts in Illinois have applied the doctrine to bar
§1983 conspiracy claims in certain situations involving school officials. See Doe v. Board of
Education of Hononegah Community High School District No. 207, 833 F.Supp. 1366, 1381 –
1382 (N.D.Ill. 1993). But see Williams v. Brown, 269 F.Supp.2d 987, 994 (N.D.Ill. 2003)
(holding that policy behind doctrine did not apply to §1983 claims presented).
D. [11.32] Section 1986
42 U.S.C. §1986 creates a cause of action for the failure to prevent a conspiracy within the
meaning of 42 U.S.C. §1985:
Every person who, having knowledge that any of the wrongs conspired to be
done, and mentioned in [42 U.S.C. §1985], are about to be committed, and having
power to prevent or aid in preventing the commission of the same, neglects or
refuses to do so, if such wrongful act be committed, shall be liable to the party
injured, or his legal representatives, for all damages caused by such wrongful act,
which such person by reasonable diligence could have prevented.
An essential element of a claim under 42 U.S.C. §1986 is the existence of a valid §1985(3) claim.
Williams v. St. Joseph Hospital, 629 F.2d 448, 451 – 452 (7th Cir. 1980). Furthermore, a
municipality may be sued under §1986 only if it has a custom or policy of neglecting to prevent
§1985 violations by its agents or employees. Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir.
1984). Finally, §1986 contains its own statute of limitations and bars any claims not commenced
within one year after the cause of action accrued.
E. Section 1988 — Attorneys’ Fees
1. [11.33] Statutory Authority
The Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. §1988, provides in part as
follows:
In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982,
1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [20 U.S.C. §1681, et
seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C. §2000bb, et seq.,
invalidated by the Supreme Court as it applied to state or local government action in City
of Boerne v. Flores, 521 U.S. 507, 138 L.Ed.2d 624, 117 S.Ct. 2157 (1997) (see §11.38
below)], the Religious Land Use and Institutionalized Persons Act of 2000 [42 U.S.C.
§2000cc, et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C. §2000d, et seq.], or
section 13981 of this title [held unconstitutional in United States v. Morrison, 529 U.S.
598, 146 L.Ed.2d 658, 120 S.Ct. 1740 (2000))], the court, in its discretion, may allow
the prevailing party, other than the United States, a reasonable attorney’s fee as
part of the costs, except that in any action brought against a judicial officer for an
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act or omission taken in such officer’s judicial capacity such officer shall not be held
liable for any costs, including attorney’s fees, unless such action was clearly in
excess of such officer’s jurisdiction. 42 U.S.C. §1988(b).
The Civil Rights Attorney’s Fees Awards Act was adopted in response to Alyeska Pipeline
Service Co. v. Wilderness Society, 421 U.S. 240, 44 L.Ed.2d 141, 95 S.Ct. 1612 (1975), in which
the Supreme Court severely restricted the circumstances in which attorneys’ fees could be
awarded by federal courts. The Court repudiated the “private attorney general” doctrine that
previously had been utilized to award fees to prevailing plaintiffs if the civil rights suit was to
benefit other aggrieved members of the public. The Act was intended to encourage the private
enforcement of federal civil rights and to attract competent attorneys as a means of ensuring this
enforcement.
2. [11.34] Prevailing Plaintiff
While the Civil Rights Attorney’s Fees Awards Act of 1976 speaks in terms of prevailing
“parties” and not just prevailing “plaintiffs” (42 U.S.C. §1988) it is clear under the Act that the
standards used in determining awards for prevailing plaintiffs and prevailing defendants differ. A
prevailing plaintiff ordinarily recovers attorneys’ fees unless special circumstances would render
such an award unjust. Hensley v. Eckerhart, 461 U.S. 424, 76 L.Ed.2d 40, 103 S.Ct. 1933 (1983).
The Supreme Court has narrowed the definition of “prevailing party” when determining
entitlement to an award of attorneys’ fees. In Buckhannon Board & Care Home, Inc. v. West
Virginia Department of Health & Human Resources, 532 U.S. 598, 149 L.Ed.2d 855, 121 S.Ct.
1835 (2001), the Court held that a party is considered “prevailing,” and thus entitled to fees, when
he or she receives a favorable judgment on the merits or obtains a court-ordered consent decree.
Additionally, the Court held that the “catalyst theory” is not a permissible basis for the award of
attorneys’ fees. The catalyst theory was previously recognized by the Seventh Circuit (see Zinn v.
Shalala, 35 F.3d 273, 276 (7th Cir. 1994)) and qualified plaintiffs as prevailing parties if they
achieved the desired result of the lawsuit albeit through a voluntary change in the defendant’s
conduct. This approach is no longer viable, and the Buckhannon Board & Care Home Court
makes clear that in order to be deemed a “prevailing party” the plaintiff must have obtained a
judgment on the merits or a court-ordered consent decree. Note, however, that the federal
Freedom of Information Act was amended in 2007 to retain the catalyst theory that existed prior
to Buckhannon. See 5 U.S.C. §552(a)(4)(E)(ii).
A plaintiff may also be barred from recovering attorneys’ fees if the plaintiff rejects a timely
offer of settlement, proceeds to trial, and recovers a judgment in an amount less than the
defendant’s pretrial offer. See Federal Rule of Civil Procedure 68. In Marek v. Chesny, 473 U.S.
1, 87 L.Ed.2d 1, 105 S.Ct. 3012 (1985), the plaintiff rejected a pretrial settlement offer of
$100,000 that expressly included accrued costs and settlement fees. At trial, the plaintiff was
awarded $5,000 on the state law claim, $3,000 in punitive damages, and $52,000 for the claim
under 42 U.S.C. §1983. The plaintiff asked for attorneys’ fees, including those incurred after the
settlement offer. The Court denied the fees incurred after the offer of settlement, relying on Rule
68, which provides that if a timely pretrial offer of settlement is not accepted and “the judgment
finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs
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incurred after the making of the offer.” [Emphasis added by the Court.] 105 S.Ct. at 3014.
However, Rule 68 offers must be specific. When an offer of judgment is ambiguous as to whether
attorneys’ fees are included, courts may construe the offer against the defendant and allow
plaintiffs to accept the offer and pursue a fee petition. Nusom v. Comh Woodburn, Inc., 122 F.3d
830 (9th Cir. 1997); Chambers v. Manning, 169 F.R.D. 5 (D.Conn. 1996).
3. [11.35] Computation of Fee Award
In Hensley v. Eckerhart, 461 U.S. 424, 76 L.Ed.2d 40, 103 S.Ct. 1933 (1983), and Blum v.
Stenson, 465 U.S. 886, 79 L.Ed.2d 891, 104 S.Ct. 1541 (1984), the Supreme Court addressed the
issue of computation of fee awards. The fee applicant bears the burden of establishing entitlement
to an award and documenting the appropriate hours expended. The court, however, is vested with
discretion in determining the amount of a fee award. Hensley, supra, 103 S.Ct. at 1942. The
starting point or lodestar figure for determining a reasonable attorney’s fee is the product of the
number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.
103 S.Ct. at 1939.
Under Hensley, the hours spent on an unsuccessful claim should be excluded in considering
the amount of a reasonable fee. When the plaintiff achieves only limited success, therefore, the
court should award only the amount of fees that is reasonable in relation to the results obtained.
When a lawsuit consists of related claims, however, the fee award is not necessarily reduced
simply because the plaintiff failed to prevail on every contention raised in the lawsuit.
The determination of the reasonableness of the rates requested involves an inquiry into the
rates actually charged by the petitioner’s attorney as well as the rates charged by comparable
attorneys in the market. However, the lodestar is generally presumed to be reasonable under 42
U.S.C. §1988. City of Riverside v. Rivera, 477 U.S. 561, 91 L.Ed.2d 466, 106 S.Ct. 2686, 2691
(1986). When the petitioner’s attorney has no billing history, such as in the case of a not-forprofit law firm, courts will not confine the fee award to the “actual cost” but will look to the
“prevailing market rates in the relevant community.” Blum, supra, 104 S.Ct. at 1547.
A downward adjustment of the lodestar amount will be appropriate when there is inefficiency
and duplication of efforts, such as partners doing work easily and ordinarily performed by junior
associates. Plummer v. Chemical Bank, 592 F.Supp. 1168, 1172 (S.D.N.Y. 1984). Additionally,
courts may award low fees or no fees depending on the amount of damages awarded, without
reference to a lodestar. Farrar v. Hobby, 506 U.S. 103, 121 L.Ed.2d 494, 113 S.Ct. 566 (1992).
The Supreme Court has held, however, that the fee award need not be limited to a portion of the
damages since the public benefit served by the litigation should also be considered. Rivera, supra.
The Seventh Circuit Court of Appeals generally follows the Supreme Court’s guidance in
Hensley and Blum when analyzing a petition for attorneys’ fees in an enforcement action under
42 U.S.C. §1983. See generally Graham v. Sauk Prairie Police Commission, 915 F.2d 1085,
1107 – 1110 (7th Cir. 1990) (affirming district court’s refusal to reduce attorney’s fee request
tendered by prevailing plaintiff); Libby v. Illinois High School Ass’n, 921 F.2d 96, 98 – 100 (7th
Cir. 1990) (ruling that successfully obtaining temporary restraining order did not qualify plaintiff
as prevailing party for fee recovery purposes under 42 U.S.C. §1988). The Seventh Circuit has
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also held that fee awards may not be increased in order to punish the defendant in a meaningful
way. Simpson v. Sheahan, 104 F.3d 998 (7th Cir. 1997). In Simpson, the district court initially
determined that the plaintiff deserved a low fee award because he achieved limited success on the
merits (damages were awarded in the amount of $140). After making its initial determination, the
district court decided to increase the fee award to $20,000 in order to serve as a meaningful
sanction against the defendant. The Seventh Circuit reversed the fee award, concluding that it was
punitive in nature and, therefore, an abuse of the district court’s discretion.
The Supreme Court has read §1988 to allow, as part of “reasonable” attorneys’ fees, the
award of paralegals’ fees. Missouri v. Jenkins, 491 U.S. 274, 105 L.Ed.2d 229, 109 S.Ct. 2463
(1989). Although the Supreme Court held that non-testimonial services by experts in civil rights
litigation may not be included in an award of attorneys’ fees (West Virginia University Hospitals,
Inc. v. Casey, 499 U.S. 83, 113 L.Ed.2d 68, 111 S.Ct. 1138 (1991)), the Civil Rights Act of 1991
superseded this holding by expressly providing that expert fees may be included in any attorney’s
fee award under 42 U.S.C. §1981 as well as Title VII of the Civil Rights Act of 1964. The Act
appears to let Casey stand, however, with regard to §1983 actions.
4. [11.36] Prevailing Defendant
As acknowledged by the Second Circuit in PRC Harris, Inc. v. Boeing Co., 700 F.2d 894,
898 (2d Cir. 1983) (citing Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 44
L.Ed.2d 141, 95 S.Ct. 1612 (1975)), attorneys’ fees should not be granted to a prevailing party in
the absence of statutory authorization. From this general rule, the PRC Harris court identified a
narrow exception that would allow a defendant to recover fees “when the claims asserted are
‘entirely without color and [have] been asserted wantonly, for purposes of harassment or delay, or
for other improper reasons.’ ” 700 F.2d at 898, quoting Browning Debenture Holders’ Committee
v. DASA Corp., 560 F.2d 1078, 1088 (2d Cir. 1977).
The exception was applied by the Second Circuit in awarding fees to a defendant in a civil
rights case. Gerena-Valentin v. Koch, 739 F.2d 755, 761 (2d Cir. 1984) (“defendants in civil
rights cases are entitled to fees under Section 1988 upon a showing that the complaint is frivolous
without regard to the state of mind of either the plaintiff or his or her counsel”), citing
Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 54
L.Ed.2d 648, 98 S.Ct. 694 (1978). In this regard, an action is not deemed “unreasonable” simply
because it is unsuccessful. Hermes v. Hein, 742 F.2d 350, 357 (7th Cir. 1984).
Fellowship Baptist Church v. Benton, 815 F.2d 485 (8th Cir. 1987), is an example of a school
case in which defendants were awarded fees. In Benton, the plaintiffs, a religious group, sought to
use their suit to coerce the school board into agreeing to an informal accommodation of their
religious views.
Another potential source for the recovery of attorneys’ fees is Fed.R.Civ.P. 11(c), which
provides that sanctions shall be imposed if an attorney files pleadings that are not reasonably
based on the law or in fact or that are meant to harass. These sanctions may include an order to
pay to the other party the reasonable expenses incurred, including a reasonable attorney’s fee.
There are two grounds for sanctions under Rule 11: the frivolousness clause and the improper
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purpose clause. Zaldivar v. City of Los Angeles, 780 F.2d 823, 830 – 831 (9th Cir. 1986). The
Seventh Circuit has indicated that Rule 11 will be actively enforced in order to ensure that
litigation is grounded in an objectively reasonable view of the facts and the law. In re TCI, Ltd.,
769 F.2d 441, 450 (7th Cir. 1985). Subsequent decisions reflect the court’s commitment to
enforcing this statement. See, e.g., Samuels v. Wilder, 906 F.2d 272 (7th Cir. 1990); Kapco
Manufacturing Co. v. C & O Enterprises, Inc., 886 F.2d 1485 (7th Cir. 1989).
III. CHURCH-STATE LITIGATION ISSUES
A. Sources of Law
1. [11.37] Constitutional Provisions
The First Amendment of the United States Constitution begins with the following words:
Congress shall make no law respecting an establishment of religion, or
prohibiting the free existence thereof.
The two prohibitions contained in these words are known as the “Establishment Clause” and the
“Free Exercise Clause,” respectively.
Although these guarantees of religious freedom have been a part of the United States
Constitution since the ratification of the Bill of Rights in 1791, the relationship of church and
state in the context of public and private schools has become a heavily litigated area of
constitutional law only in the last several decades. During this period, the decisional basis of
court opinions in this field has usually been the Establishment Clause and the Free Exercise
Clause. While the specific prohibitions of the First Amendment refer only to Congress, in 1940
the Supreme Court made the prohibitions applicable to the states via the Fourteenth Amendment.
Cantwell v. State of Connecticut, 310 U.S. 296, 84 L.Ed. 1213, 60 S.Ct. 900 (1940). However,
two very significant early cases, Pierce v. Society of Sisters of Holy Names of Jesus & Mary, 268
U.S. 510, 69 L.Ed. 1070, 45 S.Ct. 571 (1925), and Cochran v. Louisiana State Board of
Education, 281 U.S. 370, 74 L.Ed. 913, 50 S.Ct. 335 (1930), were decided solely on Fourteenth
Amendment grounds.
The Illinois Constitution of 1970 also contains guarantees of religious freedom. Section 3 of
Article I provides as follows:
The free exercise and enjoyment of religious profession and worship, without
discrimination, shall forever be guaranteed, and no person shall be denied any civil
or political right, privilege or capacity, on account of his religious opinions; but the
liberty of conscience hereby secured shall not be construed to dispense with oaths or
affirmations, excuse acts of licentiousness, or justify practices inconsistent with the
peace or safety of the State. No person shall be required to attend or support any
ministry or place of worship against his consent, nor shall any preference be given
by law to any religious denomination or mode of worship.
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Section 3 of Article X of the Illinois Constitution on education directly relates to public aid for
sectarian schools:
Neither the General Assembly nor any county, city, town, township, school
district, or other public corporation, shall ever make any appropriation or pay from
any public fund whatever, anything in aid of any church or sectarian purpose, or to
help support or sustain any school, academy, seminary, college, university, or other
literary or scientific institution, controlled by any church or sectarian denomination
whatever; nor shall any grant or donation of land, money, or other personal
property ever be made by the State, or any such public corporation, to any church,
or for any sectarian purpose.
Tax exemptions for property used for school or religious purposes are permitted under §6 of
Article IX on revenue.
Finally the Free Speech, Due Process, and Equal Protection Clauses of both the federal and
state Constitutions also have been relied on in religious freedom litigation in the education field.
2. [11.38] Statutes
Various federal and state statutes may form the basis for religious rights litigation relating to
schools. Potentially the most significant piece of relevant federal legislation, the Religious
Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §2000bb, et seq., was invalidated by the
Supreme Court as it applied to state or local government action in City of Boerne v. Flores, 521
U.S. 507, 138 L.Ed.2d 624, 117 S.Ct. 2157 (1997). The RFRA, as amended after Flores by
Pub.L. No. 106-274, 114 Stat. 803, which enacted the Religious Land Use and Institutionalized
Persons Act of 2000, 42 U.S.C. §2000cc, et seq., may still form the basis of a claim against the
federal government or against state or local officials implementing federal laws. The RFRA
generally prohibits substantial governmental burdens on religiously motivated practices without a
compelling governmental interest to impose this burden. 42 U.S.C. §2000bb-1.
Among the other federal statutory legal sources are Title VII of the Civil Rights Act of 1964,
which prohibits discrimination on the basis of religion in employment, and the Equal Access Act,
20 U.S.C. §4071, et seq., which guarantees the equal access to school facilities for all noncurricular student groups in public secondary schools receiving federal funds, including
religiously oriented student groups.
Illinois has its own Religious Freedom Restoration Act, 775 ILCS 35/1, et seq., enacted in
1998. This Act closely parallels the invalidated federal RFRA. It provides for judicial relief,
including attorneys’ fees, whenever a person’s exercise of religion has been substantially
burdened by a governmental action, including actions of school districts. 775 ILCS 35/20. It is
not a sufficient defense, as it would be for most constitutional free exercise claims, that the
governmental burden is the result of a rule of general applicability that does not discriminate
against or among religious beliefs. 775 ILCS 35/15. However, it is a valid defense that the
governmental refusal to grant a religion-based exemption from its general rule “(i) is in
furtherance of a compelling governmental interest and (ii) is the least restrictive means of
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furthering that compelling governmental interest.” Id. While the first reviewing court to consider
such a defense, albeit not in a school case, found the government to have met its burden (see City
of Chicago Heights v. Living Word Outreach Full Gospel Church & Ministries, Inc., 302
Ill.App.3d 564, 707 N.E.2d 53, 236 Ill.Dec. 208 (1st Dist. 1998), rev’d in part on other grounds,
196 Ill.2d 1 (2001)), the practical difficulty for school districts in meeting this statutory burden
remains to be seen.
Among the other Illinois statutory legal sources are the Illinois Human Rights Act, which,
like Title VII, prohibits religious discrimination in employment (775 ILCS 5/2-102), and the
School Code itself, which specifically mandates the granting of religious exemptions in various
contexts. See, e.g., 105 ILCS 5/10-22.25b (student uniforms), 5/26-2b (attendance on religious
holidays), 5/27-8.1(8) (student health or dental examination and immunizations).
B. General Principles
1. [11.39] Standing
Generally, plaintiffs in freedom of religion cases must meet the same requirements of
standing as other plaintiffs. One major exception to this generalization was created for taxpayers
qua taxpayers in Flast v. Cohen, 392 U.S. 83, 20 L.Ed.2d 947, 88 S.Ct. 1942 (1968). The
Supreme Court had held in Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 67 L.Ed.
1078, 43 S.Ct. 597 (1923), that federal taxpayers had no standing merely as taxpayers to
challenge federal spending programs. In Flast, the Court held that federal taxpayers have standing
if a two-part test is met, with the plaintiffs showing (a) a nexus between their status as taxpayers
and the legislative enactment attacked, and (b) a nexus between that status and the precise nature
of the alleged constitutional infringement. Under this latter requirement, taxpayers must show that
a spending program exceeds a specific constitutional limit on spending and not simply that the
program is generally beyond Congress’ taxing and spending power. The Establishment Clause
was determined to be just such a specific constitutional limit on spending. Since no subsequent
cases have revealed any other specific constitutional limits on spending to grant standing, the
effect of Flast has been to permit federal taxpayers the standing in Establishment Clause cases
that has been denied to federal taxpayer plaintiffs in other cases.
Even in Establishment Clause cases, however, Flast has been limited strictly to its terms. In
Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454
U.S. 464, 70 L.Ed.2d 700, 102 S.Ct. 752 (1982), the Supreme Court refused to grant standing to
federal taxpayers to challenge the action of a federal agency in disposing of governmental
property by transferring it to a church-related college. The court held that Flast did not apply
because a congressional enactment was taken pursuant to the Property Clause, not the taxing and
spending power. However, if the challenged conduct is an administrative application of
legislative spending authority, there is still federal taxpayer standing. Bowen v. Kendrick, 487
U.S. 589, 101 L.Ed.2d 520, 108 S.Ct. 2562 (1988).
It should be noted that local taxpayers have been exempted from the Mellon limitation from
the beginning because their interest in the application of a municipality’s money is direct and
immediate. Valley Forge should not be read to undermine this rule. Annunziato v. New Haven
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Board of Aldermen, 555 F.Supp. 427, 430 – 431 (D.Conn. 1982). Still, local taxpayers must show
that tax revenues are expended on the disputed practice (Doe v. Duncanville Independent School
District, 70 F.3d 402, 408 (5th Cir. 1995)) or that the government has lost revenue as a result of
the disputed practice (Johnson v. Economic Development Corporation of County of Oakland, 241
F.3d 501, 508 (6th Cir. 2001)). The fact that disputed activities are conducted by governmental
employees is not enough for local taxpayer standing. Altman v. Bedford Central School District,
245 F.3d 49 (2d Cir. 2001).
Teachers, other school employees, and the parents of students, to the extent that they can
show distinct and palpable injury in these roles, have a different basis to establish standing apart
from their status as taxpayers. See Roberts v. Madigan, 921 F.2d 1047 (10th Cir. 1990); Smith v.
Jefferson County School Board of Commissioners, 549 F.3d 641 (6th Cir. 2008), reh’g en banc
granted, opinion vacated (Mar. 24, 2009).
2. [11.40] Test for Establishment Clause Violations
The Establishment Clause is the constitutional provision most frequently invoked to
challenge government actions regarding religion and the schools, public or private. Obviously,
this clause has been read to prohibit more than a formal recognition by government of a particular
sect. Since its crystallization in Lemon v. Kurtzman, 403 U.S. 602, 29 L.Ed.2d 745, 91 S.Ct. 2105
(1971), the courts have most commonly used a three-pronged test for analysis under this clause,
each prong of which must be satisfied for the government action to be constitutional. First, the
government action must have a secular purpose; second, its principal or primary effect must be
one that neither advances nor inhibits religion; and third, the action must not foster an excessive
government entanglement with religion. The parts can be referred to as the “purpose,” “effect,”
and “entanglement” prongs of the Establishment Clause test.
The purpose prong is the most easily satisfied. Usually, the courts look to the legislative
articulation of a statute’s purpose and defer to this pronouncement. A secular purpose is lacking
only when there is no question that the action was motivated wholly by religious considerations.
However, Stone v. Graham, 449 U.S. 39, 66 L.Ed.2d 199, 101 S.Ct. 192 (1980), in which a
Kentucky statute requiring the posting of a copy of the Ten Commandments on the walls of each
public school classroom was declared unconstitutional, demonstrated the Supreme Court’s
willingness to invalidate an enactment on the basis that it has no secular legislative purpose.
Legislative history is often reviewed to determine the legislative purpose.
The effect prong does not bar every benefit to religion. Rather, it requires that any nonsecular effect be remote, indirect, and incidental. Most often, this is the part of Lemon that is
determinative.
The entanglement prong usually relates to the perceived evil of excessive administrative
surveillance of religious institutions by government to ensure that public funds are not used for
religious purposes. There are three factors to be considered in determining whether an
impermissibly high degree of government administrative surveillance exists: (a) the character and
purposes of the benefitted institutions; (b) the nature of the aid provided; and (c) the resulting
relationship between the state and the religious authority.
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A more obvious but rarer form of entanglement exists when government delegates some
portion of its governing power to a religious institution. This form was found in a Massachusetts
statute that permitted churches and schools the power to veto applications for liquor licenses near
the premises of the church or school (Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 74 L.Ed.2d
297, 103 S.Ct. 505 (1982)) and in a New York law that tailored the boundaries of a public school
district to suit the separatist tenets of a religious community (Board of Education of Kiryas Joel
Village School District v. Grumet, 512 U.S. 687, 129 L.Ed.2d 546, 114 S.Ct. 2481 (1994)).
The Court has, in turn over the years, criticized, clarified, ignored, resurrected, and distilled
the traditional Lemon test. In Agostini v. Felton, 521 U.S. 203, 138 L.Ed.2d 391, 117 S.Ct. 1997
(1997), which involved government aid to religious schools, the Court declared that the
entanglement inquiry should be recognized as part of the effect prong. The Court continued the
Agostini reinterpretation of the Lemon test in Mitchell v. Helms, 530 U.S. 793, 147 L.Ed.2d 660,
120 S.Ct. 2530 (2000), and Zelman v. Simmons-Harris, 536 U.S. 639, 153 L.Ed.2d 604, 122 S.Ct.
2460 (2002). In an earlier refinement, the Court decided to pay particularly close attention to
whether the challenged governmental practice has either the purpose or the effect of “endorsing”
religion. County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter,
492 U.S. 573, 106 L.Ed.2d 472, 109 S.Ct. 3086 (1989). This refinement appears to be an attempt
to permit a less rigid application of the test and to emphasize government’s ability to
acknowledge the existence and role of religion without promoting it. Courts will look to the entire
context of government conduct to determine whether a message of endorsement is conveyed. The
endorsement test was used to void a school policy of allowing students to pray over the public
address system at high school football games when circumstances would suggest to objective
observers school sponsorship of the prayers. Santa Fe Independent School District v. Doe, 530
U.S. 290, 147 L.Ed.2d 295, 120 S.Ct. 2266 (2000).
On other occasions, the Court has looked beyond purpose, effect, and entanglement for the
analytical basis for its rulings. In Marsh v. Chambers, 463 U.S. 783, 77 L.Ed.2d 1019, 103 S.Ct.
3330 (1983), the Nebraska legislature’s employment of clergy as official chaplains was upheld on
the historical basis that the first Congress employed a chaplain synchronously with its adoption of
the First Amendment. Similarly, the plurality in Van Orden v. Perry, 545 U.S. 677, 162 L.Ed.2d
607, 125 S.Ct. 2854 (2005), approved of a Ten Commandments monument on state capitol
grounds based on the unbroken history of governmental official acknowledgment of religion in
American life. In Lee v. Weisman, 505 U.S. 577, 120 L.Ed.2d 467, 112 S.Ct. 2649 (1992), the
Court found it unacceptable to coerce public school students into participation in a religious
exercise (graduation ceremony prayers), suggesting without saying that the absence of coercion
would have rendered the practice acceptable. The coercion test was used expansively as an
alternative basis for invalidating the football game public address prayers in Santa Fe. In Santa
Fe, the Court viewed the prayers as impermissibly coercive, even if the students in attendance
were there voluntarily, because of the social pressure to participate in an act of religious worship.
One Justice has characterized the Court’s Establishment Clause jurisprudence as being “in
hopeless disarray.” Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819, 132
L.Ed.2d 700, 115 S.Ct. 2510, 2532 (1995) (Thomas, J., concurring). Still, until Agostini, no major
Establishment Clause case had been overturned. A Supreme Court majority employed Lemon as
recently as the decision in McCreary County, Kentucky v. American Civil Liberties Union of
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Kentucky, 545 U.S. 844, 162 L.Ed.2d 729, 125 S.Ct. 2722 (2005). Therefore, when a dispute
resembles issues previously considered by the Supreme Court, the Court’s opinion in that case
will offer the best prediction and analytical framework for a judicial resolution. But when a
dispute involving religion and schools presents circumstances unlike earlier decisions, the lower
courts still most often look to the traditional Lemon analysis for guidance.
3. [11.41] Test for Free Exercise Clause Violations
While the Free Exercise Clause has been read to guarantee an absolute freedom of belief, the
Constitution does not prohibit a state from imposing restrictions on the freedom to act in pursuit
of one’s religious beliefs. The government may not compel affirmation of religious belief, punish
the expression of religious doctrines it believes to be false, impose special disabilities on the basis
of religious views or religious status, or lend its power to one or the other side in controversies
over religious authority or dogma.
With regard to regulation of conduct that conflicts with an individual’s belief, it had long
been the practice of the courts to engage in a balancing test. Under this analysis, a court would
first look for the extent of the burden, if any, that the government regulation had placed on the
individual’s free exercise of religion. Next, the court would inquire into whether the state had
demonstrated a compelling governmental interest justifying its refusal to grant an exception or
accommodation to the individual. The degree of the burden and the magnitude of the state’s
interest were then balanced against each other in order to reach a resolution. While the
individual’s religious belief had to be sincerely held, the extent to which the belief was
acceptable, logical, consistent, or comprehensible to others did not enter into the balancing
process.
However, the Supreme Court in Employment Division, Department of Human Resources of
Oregon v. Smith, 494 U.S. 872, 108 L.Ed.2d 876, 110 S.Ct. 1595 (1990), limited the use of the
compelling interest balancing test to cases involving regulation of religious-based conduct in
“hybrid situations” in which the Free Exercise Clause and some other constitutional right, such as
freedom of speech or the right to direct the education of one’s children, are both implicated.
However, if such expressive or parental rights are not involved, a neutral government regulation
of conduct may be applied to all without the need to consider whether the government’s interest
in the regulation warrants the failure to accommodate. Under this approach, there is no balancing
of interests.
The key limitation on the power of school officials to regulate conduct that burdens religious
beliefs is that the regulation must truly be neutral. If exceptions are granted, then religiously
motivated conduct should not be denied exemption. See Church of Lukumi Babalu Aye, Inc. v.
City of Hialeah, 508 U.S. 520, 124 L.Ed.2d 472, 113 S.Ct. 2217 (1993).
In an effort to restore the balancing test used prior to Smith, Congress, in 1993, passed the
Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §2000bb, et seq., which was used
by students and school employees seeking to be exempted on religious grounds from school
requirements on dress, attendance, curriculum, and participation in other school activities. After
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the Supreme Court in City of Boerne v. Flores, 521 U.S. 507, 138 L.Ed.2d 624, 117 S.Ct. 2157
(1997), invalidated the RFRA, holding that Congress had exceeded its power to enforce due
process rights under the Fourteenth Amendment, the RFRA was amended to apply only to
“Federal law, and the implementation of that law.” 42 U.S.C. §2000bb-3(a). See §11.38 above.
In 1998, the Illinois General Assembly passed its own Religious Freedom Restoration Act,
775 ILCS 35/1, et seq., which, like the federal RFRA, prohibits government officials, including
public school officials, from substantially burdening a person’s exercise of religion even if the
burden is the result of a neutral rule of general applicability unless it is demonstrated that the
subject application of the rule is in furtherance of a compelling governmental interest and is the
least restrictive means of furthering this interest. 775 ILCS 35/15. This Act not only expands
individual rights but also places the burden on government officials to prove the necessity of
denying religious exemptions to generally applicable rules. Further, like most federal civil rights
statutes and unlike most state laws, the Illinois RFRA allows persons who prevail against
government officials to recover their attorneys’ fees. 775 ILCS 35/20. Although the
constitutionality of the Illinois RFRA has not been tested, the Federal Religious Land Use and
Institutionalized Persons Act of 2000, enacted as a partial replacement to the invalidated federal
RFRA, has withstood an Establishment Clause challenge. Cutter v. Wilkinson, 544 U.S. 709, 161
L.Ed.2d 1020, 125 S. Ct. 2113 (2005).
4. [11.42] Relationship of the Two Clauses
While the courts have devised different tests for the Free Exercise Clause and the
Establishment Clause, these two provisions are related in that they both seek to impose
government neutrality in relation to religion. The two clauses may overlap, as when the
government attempts to mandate religious practices. See School District of Abington Township,
Pennsylvania v. Schempp, 374 U.S. 203, 10 L.Ed.2d 844, 83 S.Ct. 1560 (1963). Frequently,
however, the two religion clauses appear antagonistic. The Establishment Clause exhorts
government toward blindness to all consideration of religion, while the Free Exercise Clause may
mandate an accommodation with a religious minority, implicating recognition. The Supreme
Court itself has emphasized that, although the two clauses are frequently in tension, “there is
room for play in the joints,” such as those state actions that are permitted by the Establishment
Clause but not required by the Free Exercise Clause. Locke v. Davey, 540 U.S. 712, 158 L.Ed.2d
1, 124 S.Ct. 1307, 1311 (2004), quoting Walz v. Tax Commission of City of New York, 397 U.S.
664, 25 L.Ed.2d 697, 90 S.Ct. 1409, 1412 (1970). Still, it is not uncommon for school districts to
be caught in the middle, challenged in turn for promoting and for censoring religion. Compare,
e.g., Doe v. Wilson County School System, 564 F.Supp.2d 769 (M.D.Tenn. 2008), with Gold v.
Wilson County School Board of Education, 632 F.Supp.2d 771 (M.D.Tenn. 2009).
One court has summarized the judicial view that the two clauses are compatible:
The Establishment Clause ensures government neutrality in matters of religion.
Gillette v. United States, 401 U.S. 437, 449, 91 S.Ct. 828, 835, 28 L.Ed.2d 168 (1971).
But government neutrality “is not so narrow a channel that the slightest deviation
from an absolutely straight course leads to condemnation.” Sherbert v. Verner, 374
U.S. 398, 422, 83 S.Ct. 1790, 1803, 10 L.Ed.2d 965 (1963) (Harlan, J., dissenting).
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Courts have defined the government’s obligation as one of “benevolent neutrality.”
Walz v. Tax Commission, 397 U.S. 664, 669, 90 S.Ct. 1409, 1411, 25 L.Ed.2d 697
(1970). While the government must avoid “partiality to any one group,” Zorach v.
Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 683, 96 L.Ed. 954 (1952), it may deviate
from absolute rigidity to accommodate the religious practices of each group. Walz,
397 U.S. at 669, 90 S.Ct. at 1411.
Government can accommodate the beliefs and practices of members of minority
religions without contravening the prohibitions of the Establishment Clause. Cf.
Wisconsin v. Yoder, 406 U.S. 205, 234 n.22, 92 S.Ct. 1526, 1542 n.22, 32 L.Ed.2d 15
(1972) (exempting Amish children from state compulsory education laws); Sherbert
v. Verner, 374 U.S. 398, 409, 83 S.Ct. 1790, 1796, 10 L.Ed.2d 965 (1963) (exempting
Seventh-Day Adventists from state unemployment requirements). Government may
legitimately enforce accommodations of religious beliefs when the accommodation
reflects the “obligation of neutrality in the face of religious differences,” and does
not constitute “sponsorship, financial support, (or) active involvement of the
sovereign in religious activities” with which the Establishment Clause is mainly
concerned. Wisconsin v. Yoder, 406 U.S. at 234 n.22, 92 S.Ct. at 1542 n.22; Walz v.
Tax Commission, 397 U.S. at 668, 90 S.Ct. at 1411; Sherbert v. Verner, 374 U.S. at
409, 83 S.Ct. at 1796. Tooley v. Martin-Marietta Corp., 648 F.2d 1239, 1244 (9th Cir.
1981).
5. [11.43] Application of Illinois Constitution Provisions
The states are free to read their own constitutional provisions against governmental actions to
be more restrictive than the U.S. Constitution. Compare Witters v. Washington Department of
Services for Blind, 474 U.S. 481, 88 L.Ed.2d 846, 106 S.Ct. 748 (1986), with Witters v. State of
Washington Commission for Blind, 112 Wash.2d 363, 771 P.2d 1119 (1989). While the language
of the Illinois constitutional provisions is more specific than that found in the First Amendment to
the U.S. Constitution, the Illinois Supreme Court has so far read §3 of Article X of the Illinois
Constitution, which prohibits payment from public funds in aid of any church or sectarian
purpose or to help support any institution controlled by a church, to impose only those restrictions
concerning the establishment of religion that are imposed by the First Amendment. Moreover, in
determining whether a government action violates the prohibition of §3 of Article I against any
preference being given by law to any religious denomination, the court has prescribed the same
purpose-effect-entanglement test described in §11.40 above used in federal Establishment Clause
analysis. Board of Education, School District No. 142, Cook County, Illinois v. Bakalis, 54 Ill.2d
448, 299 N.E.2d 737 (1973). The “lockstep doctrine,” by which the Illinois courts follow federal
constitutional precedents in applying similar Illinois constitutional provisions, continues to retain
its vitality. Toney v. Bower, 318 Ill.App.3d 1194, 744 N.E.2d 351, 253 Ill.Dec. 69 (4th Dist.
2001).
6. [11.44] Level of the School
One pervasive trend in freedom of religion cases worthy of special note has been the differing
treatment given by the courts to the different levels of schools. Although religious groups operate
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in schools at all levels, the Supreme Court has noted differences between the religious aspects of
church-related institutions of higher education and parochial elementary and secondary schools:
The “affirmative if not dominant policy” of the instruction in pre-college church
schools is “to assure future adherents to a particular faith by having control of their
total education at an early age.” [Walz v. Tax Commission of City of New York, 397
U.S. 664, 25 L.Ed.2d 697, 90 S.Ct. 1409, 1412 (1970)]. There is substance to the
contention that college students are less impressionable and less susceptible to
religious indoctrination. Common observation would seem to support that view, and
Congress may well have entertained it. The skepticism of the college student is not
an inconsiderable barrier to any attempt or tendency to subvert the congressional
objectives and limitations. Furthermore, by their very nature, college and
postgraduate courses tend to limit the opportunities for sectarian influence by virtue
of their own internal disciplines. Many church-related colleges and universities are
characterized by a high degree of academic freedom and seek to evoke free and
critical responses from their students. Tilton v. Richardson, 403 U.S. 672, 29 L.Ed.2d
790, 91 S.Ct. 2091, 2099 (1971).
For this reason, direct public aid to church-related colleges and universities is more likely to be
permissible than direct public aid to sectarian schools at the elementary and secondary level.
These differences in academic freedom and student impressionability have also been
observed between public schools at the different levels and may be used to justify differing
tolerance of religious activity in the public schools. See, e.g., Tanford v. Brand, 104 F.3d 982,
985 – 986 (7th Cir. 1997); Webster v. New Lenox School District No. 122, 917 F.2d 1004, 1007
(7th Cir. 1990).
C. Applications
1. [11.45] Compulsory Attendance
Before the First Amendment was made applicable to the states, the Supreme Court held on
the basis of the Fourteenth Amendment that a state could not require that children attend only
public schools. Pierce v. Society of Sisters of Holy Names of Jesus & Mary, 268 U.S. 510, 69
L.Ed. 1070, 45 S.Ct. 571 (1925). In Pierce, the plaintiffs were two Oregon corporations that
operated private schools, one religious and one nonsectarian, that sought to enjoin enforcement of
the state’s compulsory education law. In declaring the law unconstitutional, the Court found that
the clear and immediate business interests of the plaintiffs were entitled to protection against
arbitrary, unreasonable, and unlawful interference and that Oregon had not shown that its interest
in secular education justified a requirement that all children attend public schools.
While not truly an issue, the Court took the opportunity to reemphasize the liberty of parents,
first expounded in Meyer v. State of Nebraska, 262 U.S. 390, 67 L.Ed. 1042, 43 S.Ct. 625 (1923),
to direct the education of their children and to be free from any attempt at standardization of
children by the state.
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Further, the Pierce Court made it clear that the state’s power to compel school attendance
generally or to require that attendance be at an institution meeting state-imposed requirements as
to the nature and quality of curriculum was not at issue. What was left unanswered by Pierce and
is particularly relevant since the development of the excessive entanglement prong of the
Establishment Clause test is the extent to which a state may impose on religious schools its
requirements as to the nature and quality of curriculum. However, by the time of Board of
Education of Central School District No. 1 v. Allen, 392 U.S. 236, 20 L.Ed.2d 1060, 88 S.Ct.
1923, 1927 – 1928 (1968), the Supreme Court was able to say at least the following:
Since Pierce, a substantial body of case law has confirmed the power of the States to
insist that attendance at private schools, if it is to satisfy state compulsoryattendance laws, be at institutions which provided minimum hours of instruction,
employ teachers of specified training, and cover prescribed subjects of instruction.
Examples of valid state requirements for private education include teacher certification and the
reporting of such information as students’ names, days attending, and texts used. See Fellowship
Baptist Church v. Benton, 815 F.2d 485 (8th Cir. 1987). The state may also require “equivalent
instruction” in private education, including home study, but the term must be sufficiently defined.
815 F.2d at 495 – 496. See also New Life Baptist Church Academy v. Town of East Longmeadow,
885 F.2d 940 (1st Cir. 1989); Blackwelder v. Safnauer, 689 F.Supp. 106 (N.D.N.Y. 1988);
Mazanec v. North Judson-San Pierre School Corp., 614 F.Supp. 1152 (N.D.Ind. 1985), aff’d, 798
F.2d 230 (7th Cir. 1986); State of Vermont v. DeLaBruere, 154 Vt. 237, 577 A.2d 254 (1990);
State of North Dakota v. Anderson, 427 N.W.2d 316 (N.D. 1988). Private schools and home
study may be made subject to prior approval and achievement testing. Ohio Association of
Independent Schools v. Goff, 92 F.3d 419 (6th Cir. 1996); Murphy v. State of Arkansas, 852 F.2d
1039 (8th Cir. 1988); Blount v. Department of Educational & Cultural Services, 551 A.2d 1377
(Me. 1988). See also Vandiver v. Hardin County Board of Education, 925 F.2d 927 (6th Cir.
1991); Clonlara, Inc. v. Runkel, 722 F.Supp. 1442 (E.D.Mich. 1989).
A landmark Supreme Court case regarding compulsory attendance laws is State of Wisconsin
v. Yoder, 406 U.S. 205, 32 L.Ed.2d 15, 92 S.Ct. 1526 (1972), in which members of the Amish
religion challenged, on Free Exercise grounds, Wisconsin’s general compulsory attendance law
as it applied to their children’s attendance beyond eighth grade. Applying the two-part balancing
test, the Court held that the state could not require Amish children to attend high school. In so
doing, the Court relied heavily on particular aspects of Amish society. Thus, the Court ensured
that few religious groups would be able to enforce constitutional exceptions to compulsory
attendance requirements. See Benton, supra, in which the court declined to exempt
fundamentalist Baptists from compulsory attendance requirements.
Illinois’ compulsory attendance law is Article 26 of the School Code. 105 ILCS 5/26-1
creates an exception to the requirement of public school attendance for children attending private
or parochial schools “where children are taught the branches of education taught to children of
corresponding age and grade in the public schools, and where the instruction of the child in the
branches of education is in the English language.” This provision has been read to include home
study as long as the parents are providing a course of instruction that is at least commensurate
with the minimum standards for the public schools. People v. Levisen, 404 Ill. 574, 90 N.E.2d
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213 (1950). The Illinois compulsory attendance statute has been held to be constitutional. Scoma
v. Chicago Board of Education, 391 F.Supp. 452 (N.D.Ill. 1974). Further, §10-20.24 of the
School Code mandates that public schools accept private school students for part-time attendance,
provided there is sufficient space. 105 ILCS 5/10-20.24. Finally, even for students enrolled in the
public schools, the School Code allows nonattendance due to religious holidays with the right to
make up missed assignments. 105 ILCS 5/26-2b.
2. Religion in Public Schools
a. [11.46] In General
Because the public schools are institutions operated by the government, the conduct of
religious practices in public schools violates the Establishment Clause in principle by fostering
religion. As discussed in more detail in §§11.47 – 11.68 below, school sponsorship of prayers,
inspirational Bible reading, and religious instructions, even when performed in a
nondenominational and voluntary manner, are not permitted. However, as Justice Jackson
observed in his concurring opinion in People of State of Illinois ex rel. McCollum v. Board of
Education of School District No. 71, Champaign County, ILL, 333 U.S. 203, 92 L.Ed. 649, 68
S.Ct. 461, 477 (1948), it is neither possible nor desirable “to isolate and cast out of secular
education all that some people may reasonably regard as religious instruction. . . . Music without
sacred music, architecture minus the cathedral, or painting without the scriptural themes would be
eccentric and incomplete, even from a secular point of view.”
The Free Exercise Clause may also come into play in the public school setting. Most often
this happens as the result of school rules of conduct or curriculum that conflict with the dictates
of the religious beliefs of students and teachers.
b. [11.47] Released Time
The concept of releasing children during the school day so that they may receive religious
instruction has been implemented in two basic forms, one upheld and one invalidated by the
Supreme Court. The crucial difference in the cases was the use of the public school buildings as
the location of the religious instruction.
In 1948, the released-time program developed and implemented by the Champaign Council
on Religious Education was invalidated by the Supreme Court in People of State of Illinois ex rel.
McCollum v. Board of Education of School District No. 71, Champaign County, ILL, 333 U.S.
203, 92 L.Ed. 649, 68 S.Ct. 461 (1948). In cooperation with the board of education, members of
the Catholic, Protestant, and Jewish faiths arranged to conduct weekly classes of religious
instruction in schools for children of parents who requested that their children be released from
regular classroom instruction to take the classes. The petitioner charged that this joint program
between a public school and religious groups violated the First and Fourteenth Amendments to
the United States Constitution. The Supreme Court agreed that the program transgressed the wall
between church and state mandated by the First Amendment, pointing to the use of tax-supported
property for religious instruction, the close cooperation between school authorities and the
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religious council in promotion of religious education, and the aid provided to sectarian groups by
providing pupils for their religious classes through the use of the state’s compulsory school
attendance machinery.
Just four years later in Zorach v. Clauson, 343 U.S. 306, 96 L.Ed. 954, 72 S.Ct. 679 (1952),
the Supreme Court reviewed a New York statute that expressly provided for the release of public
school pupils from class attendance to attend religious instruction off school premises. Claiming
that the program was not unlike that in McCollum, the essence of the petitioner’s argument was
that the weight and influence of the public school was put behind a program of religious
instruction and that the school acted as a crutch on which the churches were leaning for support in
their religious training. The Supreme Court, however, found that the program was unlike that in
McCollum because it involved neither religious instruction in public school classrooms nor the
expenditure of public funds. In sustaining the New York program, the court held that what was
involved was a permissible accommodation of the wishes of parents that their children receive
religious instruction. The separation of church and state mandated by the First Amendment does
not preclude public institutions from making such adjustments.
Although McCollum and Zorach were decided prior to the development of the modern
Establishment Clause test, subsequent federal court decisions indicate that McCollum and Zorach
are still viewed as binding authority. Pierce v. Sullivan West Central School District, 379 F.3d 56
(2d Cir. 2004). Off-premises released-time programs of the type approved in Zorach will not be
invalidated as violating the three-pronged test of Lemon v. Kurtzman, 403 U.S. 602, 29 L.Ed.2d
745, 91 S.Ct. 2105 (1971). Lanner v. Wimmer, 662 F.2d 1349 (10th Cir. 1981); Smith v. Smith,
523 F.2d 121 (4th Cir. 1975). Lanner demonstrated, however, that certain aspects of an offpremises released-time program may be reviewed separately from the program as a whole and
found violative of the three-pronged test. On-premises programs and even those so near as to
appear to be on school property will not be permitted. Doe v. Human, 725 F.Supp. 1503
(W.D.Ark. 1989), aff’d without op., 923 F.2d 857 (8th Cir. 1990); Doe v. Shenandoah County
School Board, 737 F.Supp. 913 (W.D.Va. 1990). In Moore v. Metropolitan School District of
Perry Township, No. IP 00-1859-C-M/S, 2001 WL 243292 (S.D.Ind. Feb. 7, 2001), the district
court analyzed a McCollum-type program under the Lemon standards and found it wanting.
In the 1940s, the Illinois Supreme Court approved both off-premises and on-premises
released-time programs in People ex rel. Latimer v. Board of Education of City of Chicago, 394
Ill. 228, 68 N.E.2d 305 (1946), and People ex rel. McCollum v. Board of Education of School
District No. 71, 396 Ill. 14, 71 N.E.2d 161 (1947), respectively. Of course, the latter decision was
reversed by the Supreme Court the following year.
c. Religious Instruction and Displays
(1)
[11.48] Bible instruction
The teaching of religion in the public schools, outside the released-time situation approved in
Zorach v. Clauson, 343 U.S. 306, 96 L.Ed. 954, 72 S.Ct. 679 (1952) (see §11.47 above), can run
afoul of both the Establishment and the Free Exercise Clauses. The most common problem in this
area has been the study of the Bible. In School District of Abington Township, Pennsylvania v.
Schempp, 374 U.S. 203, 10 L.Ed.2d 844, 83 S.Ct. 1560 (1963), the Supreme Court found
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unconstitutional two state statutes that provided for the reading of Bible verses without comment
in public schools. The Court relied on the religious character of the Bible exercises, noting the
place of the Bible as “an instrument of religion.” 83 S.Ct. 1572. However, the Court did not
prohibit all study of the Bible or religion, stating as follows:
[I]t might well be said that one’s education is not complete without a study of
comparative religion or the history of religion and its relationship to the
advancement of civilization. It certainly may be said that the Bible is worthy of
study for its literary and historic qualities. Nothing we have said here indicates that
such study of the Bible or of religion, when presented objectively as part of a secular
program of education, may not be effected consistently with the First Amendment.
83 S.Ct. at 1573.
For later examples of cases in which Bible classes were analyzed to see whether they were of
the literary or historical type deemed permissible in Schempp, see Hall v. Board of School
Commissioners of Conecuh County, 656 F.2d 999 (5th Cir. 1981), Gibson v. Lee County School
Board, 1 F.Supp.2d 1426 (M.D.Fla. 1998), and Crockett v. Sorenson, 568 F.Supp. 1422 (W.D.Va.
1983).
The Illinois Supreme Court long ago found that Bible readings constitute sectarian instruction
and thus violate state constitutional provisions guaranteeing free exercise and prohibiting the use
of public funds for any sectarian purpose. People ex rel. Ring v. Board of Education of District
24, 245 Ill. 334, 92 N.E. 251 (1910).
(2)
[11.49] Evolution and creationism
Related to the problem of Bible study in the public schools is the controversy involving the
theory of the origin of the human species. In Epperson v. Arkansas, 393 U.S. 97, 21 L.Ed.2d 228,
89 S.Ct. 266 (1968), the Supreme Court considered a statute that made it unlawful for a public
school teacher to teach the theory of evolution. The statute was held unconstitutional because its
purpose was to suppress the teaching of a scientific theory thought to contradict the religious
beliefs of some of the state’s citizens. In a different aspect of the same controversy, some states
have by statute mandated that the public schools give a balanced treatment to evolution and
“creation science,” the definition of the latter being consistent with a literal interpretation of the
Book of Genesis. Such a statute from Louisiana was the subject of the challenge in Edwards v.
Aguillard, 482 U.S. 578, 96 L.Ed.2d 510, 107 S.Ct. 2573 (1987), in which the Supreme Court
found the statute violative of the purpose prong of the Establishment Clause test. The Seventh
Circuit Court of Appeals has held that a school board may prohibit the teaching of a nonevolutionary theory of creation. Webster v. New Lenox School District No. 122, 917 F.2d 1004
(7th Cir. 1990).
One court invalidated a local school board requirement that the teaching of evolution be
preceded by a disclaimer stating that the school board did not intend to dissuade belief in the
Biblical version of creation because the sole purpose for the disclaimer requirement was religious.
Freiler v. Tangipahoa Parish Board of Education, 975 F.Supp. 819 (E.D.La. 1997). The district
court in Freiler was affirmed by the court of appeals, although based on the disclaimer’s religious
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effect rather than the lack of a secular purpose. Freiler v. Tangipahoa Parish Board of Education,
185 F.3d 337 (5th Cir. 1999), cert. denied, 120 S.Ct. 2706 (2000). In another science textbook
disclaimer challenge, a similar result was reached by the district court, but the case was remanded
for further factual findings. Selman v. Cobb County School District, 390 F.Supp.2d 1286
(N.D.Ga. 2005), vacated, remanded, 449 F.3d 1320 (11th Cir. 2006).
(3)
[11.50] Books
Both the Establishment and Free Exercise Clauses have been the basis of unsuccessful
challenges to public schools’ use of certain books as part of their curriculum. (For reference to the
Free Exercise cases, see §11.67 below.) Some Establishment Clause claims have been based on
the proposition that certain books espouse the principles of a religion that the plaintiffs termed
“secular humanism.” Both the Ninth Circuit in Grove v. Mead School District No. 354, 753 F.2d
1528 (9th Cir. 1985), and the Eleventh Circuit in Smith v. Board of School Commissioners of
Mobile County, 827 F.2d 684 (11th Cir. 1987), avoided the question of whether secular
humanism is a religion for purposes of First Amendment analysis but found that the books at
issue did not endorse or denigrate any religion merely by conveying secular messages. Parents of
students have also challenged the use of certain student readers on Establishment Clause grounds,
arguing that the readers’ emphasis on stories about witches, wizards, sorcerers, and the
supernatural constituted an endorsement of the religion of “Neo-Paganism.” The Seventh Circuit
Court of Appeals rejected such a challenge to the Impressions Reading Series in Fleischfresser v.
Directors of School District 200, 15 F.3d 680, 689 (7th Cir. 1994), observing that the fact that a
relatively small minority of the stories in the series happen to coincide with the tenets of a
particular religion is not an endorsement of that religion; the primary effect of the series is to
educate children by improving their reading skills and to develop imagination and creativity. A
similar result was reached in Brown v. Woodland Joint Unified School District, 27 F.3d 1373 (9th
Cir. 1994).
(4)
[11.51] Observing holidays
Public schools’ use of non-text curriculum with religious themes has occasionally been
challenged under the establishment clause. The problems attendant with the observance of
religious holidays in school activities were considered in Skoros v. City of New York, 437 F.3d 1
(2d Cir. 2006), and much earlier in Florey v. Sioux Falls School District 49-5, 619 F.2d 1311 (8th
Cir. 1980). In Skoros, the court applied the Lemon test (see §11.40 above) to approve a school
holiday display policy allowing the Jewish menorah, the Islamic star and crescent, and secular
Christmas symbols, but not a nativity scene. In Florey, the court approved under the Lemon test a
school board’s written guidelines for the observance of those holidays having both a religious and
a secular basis. The school activities were required to deal with the cultural basis or heritage of
the holidays.
However, elective public choir music selections consisting of predominantly religious music
have been approved even in the absence of detailed guidelines. Bauchman v. West High School,
132 F.3d 542 (10th Cir. 1997); Doe v. Duncanville Independent School District, 70 F.3d 402 (5th
Cir. 1995). See also Sechler v. State College Area School District, 121 F.Supp.2d 439 (M.D.Pa.
2000) (upholding public school’s winter holiday display and song program representing variety of
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cultures against challenge that Christianity was underrepresented). But one court reached a
different result when the religious song was sung not in choir but in a third-grade class. S.D. v. St.
John’s County School District, 632 F.Supp.2d 1085 (M.D.Fla. 2009).
(5)
[11.52] Ten Commandments displays
In 1981, the Supreme Court ruled that a Kentucky statute requiring the posting of a copy of
the Ten Commandments on the wall of each public school classroom was violative of the
Establishment Clause. Stone v. Graham, 449 U.S. 39, 66 L.Ed.2d 199, 101 S.Ct. 192 (1980). The
Court emphasized that in this case the Ten Commandments were not integrated into an
appropriate secular study of the Bible. The statute was struck down because it had no secular
legislative purpose and thus failed the first prong of the three-pronged test of Lemon v. Kurtzman,
403 U.S. 602, 29 L.Ed.2d 745, 91 S.Ct. 2105 (1971) (see §11.40 above). See also DiLoreto v.
Downey Unified School District Board of Education, 196 F.3d 958 (9th Cir. 1999) (district’s
prohibition of paid advertisement at school football field citing Ten Commandments approved
under free speech forum analysis); Doe v. Harlan County School District, 96 F.Supp.2d 667
(E.D.Ky. 2000) (countywide classroom displays of Ten Commandments, together with several
documents from American history with religious content, had unconstitutionally religious
purpose and effect).
The frequently litigated subject of the display of the Ten Commandments on public grounds
came to the Supreme Court twice in 2005 in non-school circumstances, with differing results.
McCreary County, Kentucky v. American Civil Liberties Union of Kentucky, 545 U.S. 844, 162
L.Ed.2d 729, 125 S.Ct. 2722 (2005) (posting at county courthouses failed purpose prong of
Lemon test); Van Orden v. Perry, 545 U.S. 677, 162 L.Ed.2d 607, 125 S.Ct. 2854 (2005) (longtime display on state capitol grounds permissible based on historical test). Most recently, the
Court held that, even though a city park contained a donated Ten Commandments monument, the
city had not created a public forum requiring the acceptance of the donations of other religiousthemed monuments under the Free Speech Clause. Pleasant Grove City, Utah v. Summun, ___
U.S. ___, 172 L.Ed.2d 853, 129 S.Ct. 1125 (2009). Yet another case involving a permanent
religious display on public property was heard in the Court’s 2009 term. Salazer v. Buono, No.
08-472, court of appeals’ opinion reported at Buono v. Kempthorne, 502 F.3d 1069 (2007),
amended, superseded on denial of reh’g, 527 F.3d 758 (9th Cir. 2008).
(6)
[11.53] Other displays and instruction
A student’s or a teacher’s religious references in a school project or exhibit may be prohibited
when the expression is school-sponsored or may appear to be a school endorsement of a
particular faith. See Bannon v. School District of Palm Beach County, 387 F.3d 1208 (11th Cir.
2004); Lee v. York County School Division, 418 F.Supp.2d 816 (E.D.Va. 2006); Joki v. Board of
Education of Schuylerville Central School District, New York, 745 F.Supp. 823 (N.D.N.Y. 1990);
Washegesic v. Bloomingdale Public Schools, 33 F.3d 679 (6th Cir. 1994). Commemorative or
memorial tiles or bricks on school grounds with religious messages have been treated differently;
the courts have sometimes viewed exclusion of the religious speech as impermissible viewpoint
discrimination. Kiesinger v. Mexico Academy & Central School, 427 F.Supp.2d 182 (N.D.N.Y.
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2006); Seidman v. Paradise Valley Unified School District No. 69, 327 F.Supp.2d 1098 (D.Ariz.
2004). But see Fleming v. Jefferson County School District No. R-1, 298 F.3d 918 (10th Cir.
2002).
If school officials wish to avoid the appearance of endorsing religious instruction, they may
do so by directing a teacher to remove religious materials from the classroom. Roberts v.
Madigan, 921 F.2d 1047 (10th Cir. 1990). They may also prohibit the teacher from discussing
personal religious beliefs during instructional time. Peloza v. Capistrano Unified School District,
37 F.3d 517 (9th Cir. 1994).
d. Prayers
(1)
[11.54] In general
Perhaps the most controversial aspect of the church-state relationship in education has been
the question of prayer in the public schools. The landmark case in this area is Engel v. Vitale, 370
U.S. 421, 8 L.Ed.2d 601, 82 S.Ct. 1261 (1962), in which the Supreme Court ruled that it was
unconstitutional for a school board to require recitation of a state-composed prayer. The
requirement was rendered permissible neither by the fact that the prayer was denominationally
neutral nor by the fact that its observance on the part of students was voluntary. The program of
daily classroom invocation of God’s blessings was a state-sponsored religious activity that the
Establishment Clause prohibited. Similarly, just one year later, in School District of Abington
Township, Pennsylvania v. Schempp, 374 U.S. 203, 10 L.Ed.2d 844, 83 S.Ct. 1560 (1963), the
Court barred the use of the Lord’s Prayer in a school’s opening exercises. Since Engel and
Schempp were decided, there has been substantial opposition to them. Nevertheless, the Supreme
Court has not backed away from its position against school-sponsored prayer in the classroom.
See Treen v. Karen B., 455 U.S. 913, 71 L.Ed.2d 455, 102 S.Ct. 1267 (1982), aff’g without op.
653 F.2d 897 (5th Cir. 1981).
Lower courts have consistently invalidated policies or statutes that authorize group classroom
prayer, even when student participation is “voluntary.” Ingebretsen v. Jackson Public School
District, 88 F.3d 274 (5th Cir. 1996); Committee for Voluntary Prayer v. Wimberly, 704 A.2d
1199 (D.C.App. 1997).
The Supreme Court revisited prayers at school in the context of invocations delivered by
students over the public address system at varsity football games. In Santa Fe Independent School
District v. Doe, 530 U.S. 290, 147 L.Ed.2d 295, 120 S.Ct. 2266 (2000), the prayers were given as
the result of a policy allowing two student elections: one to decide whether invocations should be
delivered and the second to select the spokesperson. The Court invalidated this practice,
reasoning that the prayers were public speech and not private student speech because the
circumstances would lead an objective observer to believe that the prayers were officially
endorsed. The policy of using a student election to decide whether prayers were to be delivered
did not insulate school officials from this decision. The Court emphasized that while voluntary
student prayer at school has never been deemed unconstitutional, the Establishment Clause does
not permit affirmative state sponsorship of prayer.
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The long litigation history of Chandler v. Siegelman, 230 F.3d 1313 (11th Cir. 2000),
illustrates the distinction between state-sponsored prayer and voluntary student prayer from a
different angle. In Chandler, the court of appeals reaffirmed its decision to vacate a lower court’s
overly broad permanent injunction against a school district’s permitting students to speak
religiously in any sort of public context. Just as the fact that it was a student volunteer who
prayed in Santa Fe did not automatically render the religious speech private, the fact that prayers
might be uttered publicly at school does not render the religious speech public. The courts will
look at all the facts to determine whether the religious speech is state-sponsored.
(2)
[11.55] Moments of silence
Various measures have been proposed to change or evade the effect of Engel v. Vitale, 370
U.S. 421, 8 L.Ed.2d 601, 82 S.Ct. 1261 (1962) (see §11.54 above). One recurring proposal has
been a constitutional amendment to permit organized prayer in public schools. Another measure
has been to permit or require a brief period of silence in which students, if they choose, may
engage in silent prayer, meditation, or reflection. In Wallace v. Jaffree, 472 U.S. 38, 86 L.Ed.2d
29, 105 S.Ct. 2479 (1985), the Supreme Court invalidated Alabama’s period-of-silence statute for
its non-secular purpose. Alabama’s statute not only mentioned “voluntary prayer” explicitly but
also had a history clearly indicating a legislative intent solely to “return voluntary prayer to our
public schools.” [Emphasis added by Court.] 105 S.Ct. at 2490 n.43. At the same time, the Court
acknowledged a student’s right to engage in voluntary prayer during an appropriate period of
silence. After Wallace, the Third Circuit Court of Appeals affirmed a district court’s invalidation
of a New Jersey period-of-silence statute that did not mention prayer because its legislative
history showed a religious rather than secular purpose. May v. Cooperman, 780 F.2d 240 (3d Cir.
1985), appeal dismissed, 108 S.Ct. 388 (1987). When, however, a moment-of-silence statute does
not have a legislative history clearly demonstrating a religious purpose, it may be upheld. Croft v.
Governor of State of Texas, Rick Perry, 562 F.3d 735 (5th Cir. 2009); Brown v. Gilmore, 258
F.3d 265 (4th Cir. 2001); Bown v. Gwinnett County School District, 112 F.3d 1464 (11th Cir.
1997).
Illinois has its own history with the moment of silence in public schools. Originally, the
moment was discretionary with school officials under the Silent Reflection and Student Prayer
Act, 105 ILCS 20/0.01 et seq. Immediately after that statute was amended to make the moment
mandatory in 2007, it was challenged by a litigious atheist, Robert Sherman. In Sherman v.
Township High School District 214, 594 F.Supp.2d 981 (N.D.Ill. 2009), the court found a clear
religious purpose in the statute’s legislative history and also found its directive to be
unconstitutionally vague. This district court opinion has state-wide impact because all Illinois
school districts were joined as class defendants.
The invalidation of this statute, it should be noted, does not necessarily mean that moments of
silence cannot be observed by schools or teachers when there is a secular purpose and no
predominant religious effect. Still, an individual teacher’s practice of actively encouraging a daily
moment of silent prayer, absent consideration of any statute, was found violative of the LemonAgostini standard in Holloman ex rel. Holloman v. Harland, 370 F.3d 1252 (11th Cir. 2004). See
the discussion of Lemon v. Kurtzman, 403 U.S. 602, 29 L.Ed.2d 745, 91 S.Ct. 2105 (1971), and
Agostini v. Felton, 521 U.S. 203, 138 L.Ed.2d 391, 117 S.Ct. 1997 (1997), in §11.40 above.
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(3)
§11.56
[11.56] Graduation prayers
This issue of prayers at school ceremonies, including graduations, has generated a great deal
of litigation. The Supreme Court first addressed the issue of ceremonial prayer at public school
functions in Lee v. Weisman, 505 U.S. 577, 120 L.Ed.2d 467, 112 S.Ct. 2649 (1992), in which the
Court held unconstitutional a school’s practice of inviting clergy to lead invocations and
benedictions at public middle and high school graduation ceremonies. The Court in Lee relied on
the fact that student attendance at graduation ceremonies was, in a practical sense, obligatory and
the fact that the school principal was the person who decided that the prayers were to be given,
who chose the person to give them, and who, at least in part, controlled their contents. Under
these circumstances, the school official was coercing students to participate in a religious
exercise. The Court refused to consider the practice acceptable on the basis that the prayer was
short or that it was nondenominational.
Since Lee, the lower federal courts have differed on whether prayers scheduled as part of
public school graduation ceremonies can still be permitted under different circumstances. In
Jones v. Clear Creek Independent School District, 977 F.2d 963 (5th Cir. 1992), high school
graduation prayers were approved as an accommodation to students when the prayers were
initiated, delivered, and composed by students. In Tanford v. Brand, 104 F.3d 982 (7th Cir.
1997), a school-sponsored graduation invocation was approved, with Lee distinguished because
the ceremony involved more mature university students and there was no coercion. Similarly, the
court in Chaudhuri v. State of Tennessee, Tennessee State University, 130 F.3d 232 (6th Cir.
1997), approved of prayers at non-compulsory university functions. In Adler v. Duval County
School Board, 206 F.3d 1070 (11th Cir.), vacated, remanded, 121 S.Ct. 31 (2000), op. reinstated,
250 F.3d 1330 (11th Cir. 2001), prayers were delivered at graduations pursuant to a school
board’s facially neutral policy permitting seniors to choose which student spoke for the class
without dictating or suggesting in any fashion the content of the speech. This procedure was
approved, both before and after the Supreme Court’s decision in Santa Fe Independent School
District v. Doe, 530 U.S. 290, 147 L.Ed.2d 295, 120 S.Ct. 2266 (2000), because the
circumstances rendered the prayers voluntary both as to the speaker and as to the listeners. The
choice to pray was that of the speaker alone, and the mere fact that it took place at a schoolsponsored event did not mean that the student’s prayer was school-sponsored. In Doe v. School
District of City of Norfolk, in County of Madison, 340 F.3d 605 (8th Cir. 2003), a school board
member-parent’s recitation of a Christian prayer at a high school graduation was found not to be
unconstitutional school-sponsored prayer.
On the other hand, the court in Corder v. Lewis Palmer School District No. 38, 566 F.3d 1219
(10th Cir. 2009), determined that the school’s policy of prior approval meant that a student’s
graduation speech was school sponsored; as a result, school officials could censor the speech and
punish the student for adding religious content without permission. See also Harris v. Joint
School District No. 241, 41 F.3d 447 (9th Cir. 1994), vacated as moot, 115 S.Ct. 2604 (1995);
Appenheimer v. School Board of Washington Community High School District 308, No. 01-1226,
2001 WL 1885834 (C.D.Ill. May 24, 2001). Similarly, the court in American Civil Liberties
Union of New Jersey v. Black Horse Pike Regional Board of Education, 84 F.3d 1471 (3d Cir.
1996), ruled that the principles set forth in Lee, supra, could not be avoided simply by having the
senior class vote on whether to have graduation prayers, expressly disagreeing with the Fifth
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Circuit’s decision in Jones, supra. School officials also have some affirmative constitutional
power to prohibit prayers in a graduation ceremony. In Cole v. Oroville Union High School
District, 228 F.3d 1092 (9th Cir. 2000), although many of the free speech claims were dismissed
on mootness and standing grounds, the court did deny some damage claims on the basis that
school officials had properly maintained plenary control over the content of the student’s speech
and, therefore, could exclude sectarian, proselytizing prayers from the school-sponsored
messages. See also Lassonde v. Pleasanton Unified School District, 320 F.3d 979 (9th Cir. 2003).
(4)
[11.57] Pledge of Allegiance
Recitation of the Pledge of Allegiance, despite its ceremonial reference to “one Nation under
God,” has been held not to constitute a prayer or other religious exercise. Sherman v. Community
Consolidated School District 21 of Wheeling Township, 980 F.2d 437 (7th Cir. 1992). Accord
Myers v. Loudoun County Public Schools, 418 F.3d 395 (4th Cir. 2005). A different circuit’s
ruling to the contrary in Newdow v. U.S. Congress, 328 F.3d 466 (9th Cir. 2002), was reversed by
the Supreme Court on the basis of the plaintiff’s lack of standing in Elk Grove Unified School
District v. Newdow, 542 U.S. 1, 159 L.Ed.2d 98, 124 S.Ct. 2301 (2004). For the free-exercise
aspects of Pledge recitation, see §11.64 below.
(5)
[11.58] Prayers at board meetings
Ceremonial prayer at school board meetings was found unconstitutional in Coles v. Cleveland
Board of Education, 171 F.3d 369 (6th Cir. 1999). The court relied on Lee v. Weisman, 505 U.S.
577, 120 L.Ed.2d 467, 112 S.Ct. 2649 (1992), and Lemon v. Kurtzman, 403 U.S. 602, 29 L.Ed.2d
745, 91 S.Ct. 2105 (1971), to invalidate the practice of official prayers at school board meetings.
The court distinguished Marsh v. Chambers, 463 U.S. 783, 77 L.Ed.2d 1019, 103 S.Ct. 3330
(1983), the legislative prayer case relied on by the district court, because the meetings of school
boards, unlike those of state legislatures, inherently involve students. At least one district court,
however, has held that Marsh does permit school board prayers. Dobrich v. Walls, 380 F.Supp.2d
366 (D.Del. 2005). In Bacus v. Palo Verde Unified School District Board of Education, 52
Fed.Appx. 355, 357 (9th Cir. 2002), the court did not need to decide whether the legislativeprayer standard of Marsh or the traditional prayer-in-school standard should apply to school
board prayers because the board’s prayers “in the Name of Jesus” violated even the Marsh
standard by giving preference to one religious denomination.
e. [11.59] Access to Facilities for Religious Activities
The use of public school buildings for religious activities not initiated by the school has
generally raised freedom of speech concerns in opposition to establishment of religion concerns.
Section 10-22.10 of the School Code provides express authority for school districts to grant
temporary use of school buildings when not being used by the school “for religious meetings and
Sunday schools.” 105 ILCS 5/10-22.10. Nonetheless, this area has seen much activity in the
federal courts that provides further guidance.
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§11.61
[11.60] Student groups
In Widmar v. Vincent, 454 U.S. 263, 70 L.Ed.2d 440, 102 S.Ct. 269 (1981), a religious
student group sought the same access to the facilities of a state university as other registered
student groups. The Supreme Court ruled that because the university had created a forum
generally open to student groups, it could not exclude student groups on the basis of the religious
content of their speech absent a compelling state interest. The Establishment Clause would not
serve as that compelling interest because an equal-access policy would pass the Lemon test. See
the discussion of Lemon v. Kurtzman, 403 U.S. 602, 29 L.Ed.2d 745, 91 S.Ct. 2105 (1971), in
§11.40 above. This analysis has been extended to the payment of activity fee funds to university
student groups. Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819, 132
L.Ed.2d 700, 115 S.Ct. 2510 (1995).
In 1984, Congress passed the Equal Access Act, 20 U.S.C. §4071, et seq., to require that
public secondary schools receiving federal funds grant the same access to school facilities to
religious and political non-curricular student groups as is granted to other non-curricular student
groups. In Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226, 110
L.Ed.2d 191, 110 S.Ct. 2356, 2366 (1990), the Supreme Court provided an expansive definition
of “non-curricular.” It also held that, despite the differences between the maturity level of the
university students in Widmar and the high school students with which it was dealing, the
Establishment Clause would not serve as a basis to exclude religious groups from the limited
open forums recognized by the Equal Access Act. See also Donovan v. Punxsutawney Area
School Board, 336 F.3d 211 (3d Cir. 2003). In granting access under this Act, a school district
may require that student groups not discriminate among students who wish to participate;
however, the district cannot deny exemption from a nondiscrimination policy based on
antireligious animus. Truth v. Kent School District, 542 F.3d 634 (9th Cir. 2008).
Counsel should keep in mind that the Equal Access Act does not apply to student meetings at
the elementary level. Further, the Act does not, by itself, prevent school rules against staff
participation in student religious meetings. 20 U.S.C. §4071(c)(3). Constitutional standards
continue to govern these circumstances. While at least one court has held that the maturity level
of younger students can serve as the basis for an Establishment Clause justification for a rule
prohibiting teachers from participating in student religious meetings when this participation may
reasonably appear as school endorsement on religion, the court of appeals reversed. Wigg v. Sioux
Falls School District 49-5, 274 F.Supp.2d 1084 (D.S.D. 2003), aff’d in part, rev’d in part, 382
F.3d 807 (8th Cir. 2004).
For a further exposition of the forum analysis employed by the courts to resolve student free
speech issues and the Equal Access Act, see Chapter 7 of ILLINOIS SCHOOL LAW:
PERSONNEL AND STUDENT ISSUES (IICLE, 2010).
2. [11.61] Community groups
The Establishment Clause neither requires nor permits the exclusion of community religious
groups from using school facilities after hours on the same terms as nonreligious groups. In
Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 124 L.Ed.2d 352,
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113 S.Ct. 2141 (1993), the school district was held to have unconstitutionally barred a church
from using school property to show a film series about child-rearing and family values because it
had previously opened its doors to other groups for similar activities. Such viewpoint
discrimination was prohibited by the Free Speech Clause and could not be justified by the
Establishment Clause when the activities were not school-sponsored, did not take place during
school hours, and would not otherwise lead the community to think that the district was endorsing
religious views. However, school facilities are still not generally open forums. A school may
place reasonable limits on the use of these facilities based on speaker identity or subject matter as
long as these limits are viewpoint-neutral. In theory, that would seem to allow the prohibition of
religious worship services and religious instruction on school grounds without prohibiting
religious viewpoints on permitted subject matters. In practice, such a distinction has proved
difficult to implement within constitutional free speech analysis.
The difficulty in drawing the line between religion as a subject and religion as a viewpoint
came to a head in Good News Club v. Milford Central School, 533 U.S. 98, 150 L.Ed.2d 151, 121
S.Ct. 2093 (2001), in which the court of appeals, like some other courts, had held it permissible to
exclude religious worship services or religious instruction while not excluding the discussion of
secular topics from a religious perspective. The Supreme Court, however, ruled that under the
Free Speech Clause there was no logical difference in kind between the invocation of Christianity
by the Good News Club and the invocation of teamwork, loyalty, or patriotism by other
associations to provide a foundation for their lessons. The same subject was involved,
characterized by the Court as “the teaching of morals and character.” 121 S.Ct. at 2102. Further,
the Establishment Clause did not provide a compelling reason for this viewpoint discrimination
against religious speech for several reasons, including the fact that impressionable young students
would not be coerced or confused about the schools allowing religious clubs to meet on school
grounds after regular school hours along with other groups. Thus, while school districts may
create limited public forums for organizational use of their facilities after hours, it now appears
generally that “religion,” “religious instruction,” or “religious activity” cannot be singled out for
exclusion as a subject matter. What remains unclear is whether “mere religious worship” divorced
from discussion or instruction, if there truly is such a thing, can permissibly be excluded. See
Bronx Household of Faith v. Board of Education of City of New York, 492 F.3d 89 (2d Cir. 2007);
Campbell v. St. Tammany Parish School Board, No. Civ.A.98-2605, 2003 WL 21783317
(E.D.La. July 30, 2003).
(3)
[11.62] Literature distribution
The permissibility of restricting distributions of religious literature is not governed by the
Equal Access Act, 20 U.S.C. §4071, et seq., but most often by the forum analysis used in free
speech cases. See, e.g., M.A.L. v. Kinsland, 543 F.3d 841 (6th Cir. 2008); Child Evangelism
Fellowship of New Jersey, Inc. v. Stafford Township School District, 386 F.3d 514 (3d Cir. 2004);
Muller v. Jefferson Lighthouse School, Racine, Wisconsin, 98 F.3d 1530 (7th Cir. 1996); Hedges
v. Wauconda Community Unit School District No. 118, 9 F.3d 1295 (7th Cir. 1993). When
religious materials are distributed to students as part of general practice of distributing
community group flyers, without giving preferential access to religious literature, the
Establishment Clause has not been violated, even at the elementary school level. Rusk v.
Crestview Local School District, 379 F.3d 418 (6th Cir. 2004); Child Evangelism Fellowship of
Maryland, Inc. v. Montgomery County Public Schools, 373 F.3d 589 (4th Cir. 2004).
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While the distribution of Bibles at school may be subject to the same sort of forum analysis as
the distribution of other religious-themed materials, historically, Bibles have often been
distributed by outside community groups, such as the Gideons, under circumstances more
suggestive of official school endorsement. When that is so, the practice is held unconstitutional
under the Establishment Clause. Berger v. Rensselaer Central School Corp., 982 F.2d 1160 (7th
Cir. 1993); Roark v. South Iron R-1 School District, 573 F.3d 556 (8th Cir. 2009).
f.
[11.63] Conduct and Participation of Teachers and Students
Conflicts often arise when the religious beliefs of a teacher or a student dictate acting or
refraining from acting in a manner contrary to law or school rules. While these conflicts raise
constitutional free exercise issues, related free speech rights are also frequently at issue. Further,
Title VII of the Civil Rights Act of 1964 has also been invoked by teachers alleging employment
discrimination based on religion and seeking accommodations for their beliefs. Finally, the
Illinois Religious Freedom Restoration Act may serve as the basis for employee or student
claims.
Illinois by statute has mandated certain religious exemptions for students. The School Code
expressly permits parents to have their children excused on religious grounds from the following:
health and dental examinations and immunizations (105 ILCS 5/27-8.1(8)); instruction relating to
family life, to AIDS or other diseases and to recognizing and avoiding sexual abuse (elementary
students only) (105 ILCS 5/27-9.2, 5/27-11, 5/27-13.2); and mandatory student uniforms (105
ILCS 5/10-22.25b).
The following are just a few examples of how the courts have resolved these types of
conflicts. Counsel should keep in mind that the precedents cited have been decided on varying
standards (see §11.41 above).
(1)
[11.64] Instruction selection
In West Virginia State Board of Education v. Barnette, 319 U.S. 624, 87 L.Ed. 1628, 63 S.Ct.
1178 (1943), the Supreme Court, overruling Minersville School District v. Gobitis, 310 U.S. 586,
84 L.Ed. 1375, 60 S.Ct. 1010 (1940), a decision rendered just three years earlier, ruled that
Jehovah’s Witnesses could not be compelled to salute the flag against their beliefs. Barnette was
based as much on the Freedom of Speech Clause as on the Free Exercise Clause. However, when
an atheist could not show that his son was compelled to recite the Pledge of Allegiance, which
includes the phrase “under God,” while the rest of the class recited it, there was no free exercise
violation despite §27-3 of the School Code, which provides that the Pledge “shall be recited each
school day by pupils in elementary . . . educational institutions supported or maintained in whole
or in part by public funds.” Sherman v. Community Consolidated School District 21 of Wheeling
Township, 980 F.2d 437, 439 (7th Cir. 1992).
However, a teacher’s responsibility to teach is distinguishable from personal affirmation of
belief. Thus, when a teacher who was a Jehovah’s Witness refused not only to participate in
patriotic ceremonies but also to teach her students to participate, the school district could compel
her to conform to the prescribed curriculum. Palmer v. Board of Education of City of Chicago,
603 F.2d 1271 (7th Cir. 1979). Similarly, a substitute teacher could be released based in part on
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his improper interjection of religion into the classroom by reading the Bible aloud to students and
discussing religion in contravention to his lesson plans. Helland v. South Bend Community School
Corp., 93 F.3d 327 (7th Cir. 1996). See also Marchi v. Board of Cooperative Educational
Services of Albany, Schoharie, Schenectady & Saratoga Counties, 173 F.3d 469 (2d Cir. 1999).
Likewise, a student or parent does not have a constitutional right to select curriculum because
of personal religious beliefs. In Settle v. Dickson County School Board, 53 F.3d 152 (6th Cir.
1995), Curry v. Hensiner, 513 F.3d 570 (6th Cir. 2008), and Busch v. Marple Newton School
District, 567 F.3d 89 (3d Cir. 2009), school officials acted properly in prohibiting religious
messages from students as part of classroom assignments.
(2)
[11.65] Dress regulations
School restrictions on clothing and personal appearance may run counter to the dictates of the
religious beliefs of students or teachers. In Menora v. Illinois High School Ass’n, 683 F.2d 1030
(7th Cir. 1982), orthodox Jewish high school basketball players whose faith required a head
covering challenged the defendants’ rule forbidding headwear while playing basketball. The court
ordered a compromise, putting the burden on the plaintiffs to come up with a form of head
covering that met the defendants’ concerns regarding safety. The contention that yarmulkes
secured by bobby pins should be allowed despite a safety risk was rejected as not required by
religious law as defined by the parties. In Alabama & Coushatta Tribes of Texas v. Trustees of
Big Sandy Independent School District, 817 F.Supp. 1319 (E.D.Tex. 1993), a preliminary
injunction was granted against enforcement of a school’s dress code restricting male hair length
against Native American students who asserted a hybrid claim of free religious exercise, free
speech, due process, and equal protection. See also Cheema v. Thompson, 67 F.3d 883 (9th Cir.
1995), which was decided under the federal Religious Freedom Restoration Act, in which the
court affirmed a temporary injunction allowing Sikh children to carry ceremonial knives (kirpans)
to school for religious reasons. However, in Levon v. O’Rourke, No. 96 C 7304 (N.D.Ill. Mar. 28,
1997) (Conlon, J.), also decided under the federal RFRA, a student’s claim for a complete
religious exception to the school’s mandatory school uniform policy was rejected because the
belief asserted (final parental control over a child’s appearance) was neither genuinely religious
in nature nor substantially burdened by the policy. A mandatory school uniform policy with a
religion-based opt-out provision withstood various constitutional challenges, including the Free
Speech, Free Exercise, and Establishment Clauses, in Littlefield v. Forney Independent School
District, 268 F.3d 275 (5th Cir. 2001). But see Hicks v. Halifax County Board of Education, 93
F.Supp.2d 649 (E.D.N.C. 1999). A prohibition against teachers wearing clothing indicative of
adherence to a particular religious sect, such as head scarves or turbans, was upheld under both
the Free Exercise Clause and Title VII. United States v. Board of Education for School District of
Philadelphia, 911 F.2d 882 (3d Cir. 1990). In School District of Philadelphia, the court relied on
Cooper v. Eugene School District No. 4J, 480 U.S. 942, 94 L.Ed.2d 784, 107 S.Ct. 1597 (1987),
in which the Supreme Court summarily dismissed the appeal from the Oregon Supreme Court’s
decision in Cooper v. Eugene School District No. 4J, 301 Or. 358, 723 P.2d 298 (1986). A vastly
different result was reached in Nichol v. Arin Intermediate Unit 28, 268 F.Supp.2d 536 (W.D.Pa.
2003).
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In some cases, schools have attempted to prohibit students from wearing T-shirts based on the
content of the religiously motivated message conveyed, raising free speech and free exercise
concerns. In both Nuxoll v. Indian Prairie School District #204, 523 F.3d 668 (7th Cir. 2008),
and Harper v. Poway Unified School District, 318 Fed. Appx. 540 (9th Cir. 2009), the T-shirt
message was against homosexuality. The Seventh Circuit in Nuxoll found that the prohibition
could not be justified under the traditional “substantial disruption” test for limiting the content of
student speech, at least not at the preliminary injunction stage. In Harper, while the district court
had upheld the school’s action, the claims were held moot on appeal.
For more on constitutional issues involved in student dress restrictions, see Chapter 7 of
ILLINOIS SCHOOL LAW: PERSONNEL AND STUDENT ISSUES (IICLE, 2010).
(3)
[11.66] Religious holidays
Numerous courts have had to deal with problems arising when religion dictates absences
from school at particular times. In Ansonia Board of Education v. Philbrook, 479 U.S. 60, 93
L.Ed.2d 305, 107 S.Ct. 367 (1986), in the context of an employment discrimination claim under
Title VII, the Supreme Court considered the question of a teacher’s absence from school because
of religious holidays. The Court held that Title VII requires only that an employer “reasonably
accommodate” an employee’s religious needs, not that it accept any alternative accommodation
suggested by the employee that would not result in undue hardship. For a subsequent application
of this Title VII standard, see Favero v. Huntsville Independent School District, 939 F.Supp. 1281
(S.D.Tex. 1996), involving a school bus driver. After the Supreme Court did away with the free
exercise balancing test in 1990, that constitutional clause has not served as the basis for claims for
religious absences. The Illinois Religious Freedom Restoration Act, of course, may.
State-mandated holidays may raise Establishment Clause concerns. In Metzl v. Leininger, 57
F.3d 618 (7th Cir. 1995), the Seventh Circuit declared unconstitutional the School Code’s
mandated school holiday for Good Friday. See 105 ILCS 5/24-2. The court reasoned that, unlike
Easter and Christmas, Good Friday had not been secularized and that the legislative history of the
statute showed a religious purpose. However, local school districts may still close on Good Friday
if the purpose is to grant a long spring weekend or spring break or if it can be shown that teacher
or student absences on that day would make keeping the schools open impractical. The Seventh
Circuit later ruled that even state-prescribed Good Friday holidays may be constitutional when
the state meets its burden of demonstrating a secular purpose (as Indiana had but Illinois did not),
such as providing a spring holiday convenient to many employees. Bridenbaugh v. O’Bannon,
185 F.3d 796 (7th Cir. 1999).
(4)
[11.67] Student participation in school activities
Courts have frequently dealt with issues concerning the participation of students in curricular
studies or other school activities contrary to their religious beliefs, generally under free exercise
or due process parental rights standards. See, e.g., Fleischfresser v. Directors of School District
200, 15 F.3d 680, 689 – 690 (7th Cir. 1994) (readers with occult-related themes); Mozert v.
Hawkins County Board of Education, 827 F.2d 1058 (6th Cir. 1987) (readers with occult-related
themes); Grove v. Mead School District No. 354, 753 F.2d 1528 (9th Cir. 1985) (assigned reading
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of THE LEARNING TREE); Leebaert v. Harrington, 332 F.3d 134 (2d Cir. 2003) (family life
and AIDS instruction); Morrison v. Board of Education of Boyd County, 521 F.3d 602 (6th Cir.
2008) (diversity training regarding sexual orientation); Parker v. Hurley, 514 F.3d 87 (1st Cir.
2008) (readings with same-gender couples). Generally, a public school’s curriculum need not be
neutral on controversial social issues, and mere exposure to ideas that conflict with religious
beliefs does not violate the Free Exercise or Due Process Clauses; however, family claims for
religious exemptions will often be granted from specific activities or from classes that urge
students to adhere to particular beliefs.
g. [11.68] Religious Representatives as Public School Employees or Volunteers
Increasingly, church members and clergy have endeavored to assist as volunteers and workers
at public schools, often as counselors but also as teacher assistants, proctors, monitors, or other
roles usually associated with parent volunteers. One formal Texas school district program of
“Clergy in Schools” involved the district’s use of local clergy as counselors. In Doe v. Beaumont
Independent School District, 240 F.3d 462 (5th Cir. 2001), a severely divided court of appeals
remanded the case for a trial on the issue of whether the use of clergy only for secular counseling,
when viewed in the context of all the district’s volunteer programs, created a symbolic union of
church and state. Despite the multiple opinions, the message of Beaumont may be a simple one:
church volunteers should be used only as part of a comprehensive adult volunteer program that
includes representatives from all facets of the community.
3. Public Aid to Religious Schools
a. [11.69] In General
Questions regarding the permissibility of government efforts to provide assistance or benefits
to religiously oriented schools or to the students attending these schools are generally
Establishment Clause issues. While the three-pronged test enunciated in Lemon v. Kurtzman, 403
U.S. 602, 29 L.Ed.2d 745, 91 S.Ct. 2105 (1971) (see §11.40 above), has served as the basis for
most of the decisions resolving these questions, several of the presumptions used in applying
Lemon were cast aside in 1997 in Agostini v. Felton, 521 U.S. 203, 138 L.Ed.2d 391, 117 S.Ct.
1997 (1997). Many of the pre-Agostini precedents referenced below will be subject to
reevaluation now in light of this decision that will greatly facilitate the provision of public aid to
religious schools.
Still, Agostini did continue the use of the purpose-effect-entanglement analysis in Lemon
while characterizing the entanglement inquiry as part of the effect test. After Agostini as before, it
appears that the purpose prong will usually be easy to satisfy because the provision of educational
services to parochial school students is a secular purpose. Most difficulties, however, will
continue to arise under the effect and entanglement tests. Previously, the interaction between
effect and entanglement often created a dilemma from which the public aid could not survive.
Specifically, the courts often held that the only way to prevent public aid from being used for
religious purposes and thus have the primary effect of fostering religion was to impose
restrictions that necessitated continued state surveillance. Such restrictions and surveillance,
while alleviating the non-secular effect problem, would then run afoul of the prohibition against
excessive entanglement.
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Agostini eases this tension between effect and entanglement by removing the presumed
religious effect of many programs. First, the court will no longer presume that public school
teachers providing instructional services in secular subjects on religious school premises will
inevitably indoctrinate students in religion; second, the court no longer feels that the mere
presence of public school teachers on religious school grounds creates a symbolic union between
church and state for impressionable young minds; third, direct public aid to religious schools’
educational programs will not automatically be considered to have a primarily religious effect,
even though this aid allows religious schools to spend more on religious education. Courts before
and after Agostini have now clarified the principle that when a government program provides
assistance directly to a broad class of citizens who in turn direct government aid to religious
schools wholly as a result of their genuine and independent private choice, the Establishment
Clause is not violated. Zelman v. Simmons-Harris, 536 U.S. 639, 153 L.Ed.2d 604, 122 S.Ct.
2460 (2002). Despite these rules, this aid must still be provided in a neutral manner, meaning that
religious groups cannot be favored or disfavored but that the aid must be allocated based on
secular criteria. Agostini summarized the effect test as applied to parochial school aid as requiring
inquiry into three primary criteria: (1) whether the government aid results in government
indoctrination of religion; (2) whether the aid program defines its recipients by reference to
religion; and (3) whether it creates excessive entanglement.
When monetary government aid is provided directly to religious educational institutions, the
courts used to look at whether the institution was “pervasively sectarian.” In Mitchell v. Helms,
530 U.S. 793, 147 L.Ed.2d 660, 120 S.Ct. 2530, 2552 (2000), the plurality stated that this
doctrine is no longer viable, focusing exclusively on the neutrality of the program by which the
aid is provided. The concurring Justices in Mitchell would also examine whether the
governmental financial assistance is actually being diverted to religious instruction.
While the full impact of Agostini is still to be felt, it has already resulted in greater allowance
of public aid to private school students on private school grounds. However, Agostini may also
result in more confusion, more litigation, and inconsistent lower court decisions because, without
the presumption of invalidity for on-premises instructional aid, the religious effect of parochial
school aid programs will prove difficult to judge.
Even before the development of the Lemon three-pronged test, the Supreme Court established
that at least some forms of aid to parochial school children were permissible if provided on the
same basis as to public school children. In Cochran v. Louisiana State Board of Education, 281
U.S. 370, 74 L.Ed. 913, 50 S.Ct. 335 (1930), Everson v. Board of Education of Township of
Ewing, 330 U.S. 1, 91 L.Ed. 711, 67 S.Ct. 504 (1947), and Board of Education of Central School
District No. 1 v. Allen, 392 U.S. 236, 20 L.Ed.2d 1060, 88 S.Ct. 1923 (1968), the Court employed
the “child benefit” theory to approve the public furnishing of secular textbooks and transportation
to children attending sectarian schools. This theory justified the aid programs on the basis that the
benefit went to all school children and only incidentally to nonpublic schools. The Court also
presumed that the secular and religious functions could be separated, with aid permissibly going
only to the former. After the development of the three-pronged test, however, the courts
frequently viewed aid to parochial school children as an impermissible fostering of the religious
mission of the schools these children attend because the form of the aid did not or could not
adequately isolate the parochial school’s secular function. Aid has been considered more
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acceptable when given to religious institutions that are not “pervasively sectarian” (see Bowen v.
Kendrick, 487 U.S. 589, 101 L.Ed.2d 520, 108 S.Ct. 2562, 2574 (1988)) and when the aid is
channeled directly to students and parents rather than to religious institutions (see Mueller v.
Allen, 463 U.S. 388, 77 L.Ed.2d 721, 103 S.Ct. 3062 (1983); Lemon, supra).
b. [11.70] Textbooks
The permissibility of providing secular textbooks to nonpublic school children has been
upheld repeatedly by the Supreme Court. While later cases have all been based on the First
Amendment, the Court first considered the question in 1930 under the Fourteenth Amendment
principle that private property should not be taken for a private purpose. Cochran v. Louisiana
State Board of Education, 281 U.S. 370, 74 L.Ed. 913, 50 S.Ct. 335 (1930). The Cochran Court
found that the textbook program at issue was for a public purpose because it provided textbooks
to public and private school students alike and because the benefit ensuing from the program
went to school children of the state, not to the private schools. The “child benefit” theory was
used again in Board of Education of Central School District No. 1 v. Allen, 392 U.S. 236, 20
L.Ed.2d 1060, 88 S.Ct. 1923 (1968), in which a textbook program was approved under a First
Amendment analysis. The statute at issue in Allen required that local school boards purchase
secular textbooks and lend them without charge to all school children residing in the district,
including both public and private school children. In upholding the statute, the Court rejected the
notion that the processes of secular and religious training performed in religious schools “are so
intertwined that secular textbooks furnished to students by the public are in fact instrumental in
the teaching of religion.” 88 S.Ct. at 1929. Thus, the Court declared that at least sometimes
religious and secular ends can be separated. The constitutionality of textbook loan programs of
the type in Allen was reaffirmed in Meek v. Pittenger, 421 U.S. 349, 44 L.Ed.2d 217, 95 S.Ct.
1753 (1975), and Wolman v. Walter, 433 U.S. 229, 53 L.Ed.2d 714, 97 S.Ct. 2593 (1977), despite
the invalidation of other forms of aid in these cases. Note that Meek and Wolman were overruled
in part in Mitchell v. Helms, 530 U.S. 793, 147 L.Ed.2d 660, 120 S.Ct. 2530 (2000).
But there are limitations on state aid to religious schools in the form of textbooks. In Lemon
v. Kurtzman, 403 U.S. 602, 29 L.Ed.2d 745, 91 S.Ct. 2105, 2107 (1971), the Court struck down a
Pennsylvania statute that provided for state reimbursements directly to nonpublic schools for their
actual expenditures for certain items of “secular educational service,” including secular
textbooks. The statute failed under the entanglement prong of the Establishment Clause test
because of the accounting procedures imposed on the church schools in order to distinguish
secular from religious instruction and because of the surveillance responsibilities of the state.
These entanglements were avoided in the textbook programs in Allen, Meek, and Wolman, in
which the textbooks were loaned directly to the students and their parents. The Lemon Court
specifically distinguished Allen on the basis that the state aid there was provided to the students
and their parents, not to the church-related schools.
The Court has also permitted a state to grant tax deductions to parents for the expense
incurred in providing textbooks for their children. Mueller v. Allen, 463 U.S. 388, 77 L.Ed.2d
721, 103 S.Ct. 3062 (1983).
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The Illinois Supreme Court in 1973 voided that part of an Illinois statute that required school
districts to furnish private school students with textbooks on the same basis as public school
students. People ex rel. Klinger v. Howlett, 56 Ill.2d 1, 305 N.E.2d 129 (1973). The constitutional
fault in the program was its financing system; the cost of textbooks for public school students was
paid by the taxpayers of the local school district, while the cost of textbooks for private school
students was borne by the state. The Klinger court cited Sloan v. Lemon, 413 U.S. 825, 37
L.Ed.2d 939, 93 S.Ct. 2982 (1973), for the principle that the state cannot single out a class of its
citizens for special economic benefit.
In response to Klinger, the Illinois legislature in 1975 passed an act authorizing the Illinois
State Board of Education to loan secular textbooks, free of charge, to “any student in this State
who is enrolled in grades kindergarten through 12 at a public school or at a school other than a
public school which is in compliance with the compulsory attendance laws of this State and Title
VI of the Civil Rights Act of 1964.” 105 ILCS 5/18-17. Only textbooks listed for use by the State
Board of Education are authorized for loan. Textbook loans are provided directly to the students
at their request or at the request of parents or guardians.
c. [11.71]
Transportation
The constitutionality of the state’s provision of transportation of school children to and from
religious schools was established in one of the Supreme Court’s early First Amendment cases. In
Everson v. Board of Education of Ewing Township, 330 U.S. 1, 91 L.Ed. 711, 67 S.Ct. 504
(1947), a local board of education had provided reimbursement to parents of nonpublic school
children for money expended for the children’s bus transportation by public carrier. This
reimbursement was authorized by state statute. A taxpayer challenged the constitutionality of the
statute and the board action on two grounds: (1) that authorizing the state to tax the private
property of some and bestow it on others for their own private purposes was a violation of the
Fourteenth Amendment; and (2) that tax-based support of schools that regularly teach religion
was a violation of the First Amendment’s prohibition respecting an establishment of religion.
Both challenges were answered by declaring that the legislation was passed in response to an
assessment of public need. It was of no consequence that the legislation, passed to satisfy a public
need, happened to coincide with the personal desires of individuals to send their children to
sectarian schools, and neither does the First Amendment prohibit a state from extending its
general benefits to all its citizens without regard to their religious beliefs. The Court placed the
furnishing of transportation for all pupils in the category of other public services for all, such as
police, fire, and health protection. The transportation law was viewed as establishing a general
program to help parents get their children, regardless of whether they attended public or parochial
schools, safely and expeditiously to and from these schools.
An important limitation on the public provision of transportation to religious school students,
now of questionable vitality, was declared in Wolman v. Walter, 433 U.S. 229, 53 L.Ed.2d 714,
97 S.Ct. 2593 (1977), overruled in part by Mitchell v. Helms, 530 U.S. 793, 147 L.Ed.2d 660,
120 S.Ct. 2530 (2000). In Wolman, the Court struck down a statutory provision authorizing
public expenditures to pay the cost of field trip transportation for nonpublic school students. The
Court reasoned that field trips are an integral part of the educational experience and an
unacceptable risk of fostering religious activities could not be avoided.
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As with textbook costs, the Supreme Court has permitted a state to grant tax deductions to
parents for the expense incurred in providing transportation for their children. Mueller v. Allen,
463 U.S. 388, 77 L.Ed.2d 721, 103 S.Ct. 3062 (1983).
The authority of states to provide transportation to parochial school students does not imply,
however, that this transportation must be provided. See, e.g., State of West Virginia ex rel. Cooper
v. Board of Education of Summers County, 197 W.Va. 668, 478 S.E.2d 341 (1996); Frame v.
South Bend Community School Corp., 480 N.E.2d 261 (Ind.App. 1985). A federal court claim
that failure to provide such transportation was unconstitutional was dismissed on standing
grounds in Pucket v. Hot Springs School District No. 23-2, 526 F.3d 1151 (8th Cir. 2008).
The obligation of school districts to provide transportation of students with disabilities to
parochial schools is frequently litigated under the Individuals with Disabilities Education Act, 20
U.S.C. §1400, et seq. See, e.g., Donald B. v. Board of School Commissioners of Mobile County,
Alabama, 117 F.3d 1371 (11th Cir. 1997).
Illinois’ transportation statute, 105 ILCS 5/29-4, was approved in Board of Education, School
District No. 142, Cook County, Illinois v. Bakalis, 54 Ill.2d 448, 299 N.E.2d 737 (1973). Section
29-4 requires that local school boards provide the same transportation along regular school bus
routes for nonpublic school students as for public school students. The statute was found to have
passed the three-pronged test of Lemon v. Kurtzman, 403 U.S. 602, 29 L.Ed.2d 745, 91 S.Ct.
2105 (1971) (see §11.40 above), and withstood challenges under several provisions of the Illinois
Constitution, including §3 of Article X (no aid to sectarian institutions), §3 of Article I (religious
freedoms), §1(a) of Article VIII (public funds only for public purposes), and §13 of Article IV
(no special laws). The state’s efforts to withhold reimbursements for public school children’s
transportation from the district involved in Bakalis for failing to provide transportation to students
at nonpublic schools was upheld in People ex rel. Board of Education of School District No. 142,
Cook County v. State Board of Education, 62 Ill.2d 517, 344 N.E.2d 5 (1976).
Section 29-5.2 of the School Code provides for reimbursement of transportation expenses to
certain students at both public and private schools who do not have access to publicly financed
transportation. 105 ILCS 5/29-5.2. However, §29-5.2(e) puts a cap on reimbursements equal to
the amount of the previous year’s state reimbursement per pupil to school districts for
transporting pupils.
d. [11.72] Teachers’ Salaries
The laws of two states that provide for state payments for the salaries of teachers of secular
subjects in nonpublic schools were invalidated in Lemon v. Kurtzman, 403 U.S. 602, 29 L.Ed.2d
745, 91 S.Ct. 2105 (1971). The Rhode Island program consisted of salary supplements paid by
the state to the teachers, and the Pennsylvania program involved state reimbursements directly to
nonpublic schools for teachers’ salaries, textbooks, and instructional materials. Although both
programs were limited to the teaching of secular subjects and promoted secular legislative
purposes, they both involved excessive entanglement of church and state. The entanglement
would result from the continuing state surveillance necessary to ensure that the teachers, who,
unlike the publicly employed teachers in Agostini v. Felton, 521 U.S. 203, 138 L.Ed.2d 391, 117
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S.Ct. 1997 (1997), were under religious control, played the strictly nonideological role required
by statute. Thus, the payment of religious school teachers’ salaries, even for facially secular
subjects, is one form of aid for which the Supreme Court has so far determined the religious and
secular aspects are so intertwined that the Constitution will permit no assistance.
e. [11.73] Tuition Benefits
That aid to parents of religious school children to help defray the cost of tuition for religious
schools would seem to be a form of aid for which no segregation of secular and religious
components would be plausible was essentially the holding of the Supreme Court in the
companion cases Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756,
37 L.Ed.2d 948, 93 S.Ct. 2955 (1973), and Sloan v. Lemon, 413 U.S. 825, 37 L.Ed.2d 939, 93
S.Ct. 2982 (1973). However, a decade later, in Mueller v. Allen, 463 U.S. 388, 77 L.Ed.2d 721,
103 S.Ct. 3062 (1983), the Court distinguished Nyquist in approving state tax deductions for
tuition expenditures. Then, in 2002, in Zelman v. Simmons-Harris, 536 U.S. 639, 153 L.Ed.2d
604, 122 S.Ct. 2460 (2002), the Court approved a state tuition voucher program that included
private religious schools because of its neutrality toward religion, a factor missing in Nyquist.
Nyquist involved a New York program by which low- and moderate-income parents of
nonpublic school children received either partial reimbursements for the cost of tuition at the
nonpublic schools or tax credits. Sloan involved nonpublic school tuition reimbursements by the
Commonwealth of Pennsylvania. These programs violated the effect prong of the Establishment
Clause test of Lemon v. Kurtzman, 403 U.S. 602, 29 L.Ed.2d 745, 91 S.Ct. 2105 (1971) (see
§11.40 above), because, without an effective means of guaranteeing that the state aid would be
used exclusively for secular purposes, they inevitably advanced the religious mission of sectarian
schools. The fact that the aid was given to the parents and not directly to sectarian schools did not
affect the result because the effect of the aid was unmistakably to provide financial support to
sectarian schools by inducing parents to continue to send their children to these schools.
The Minnesota statute at issue in Mueller, supra, permitted state taxpayers to deduct their
expenses incurred in providing tuition, textbooks, and transportation for their children attending
elementary or secondary schools. The majority of the Court found that the tax deduction scheme
passed constitutional muster under the Lemon three-pronged test, including the effect prong.
Nyquist was distinguished on two grounds: (1) the tuition reimbursements and tax credits in
Nyquist went only to nonpublic school families, while the Minnesota tax deductions were
available to all; and (2) the Nyquist tax benefits had the aspect of tax credits in that they were
unrelated to the amount of money actually expended, while the Minnesota benefits were “genuine
tax deduction[s].” Mueller, supra, 103 S.Ct. at 3068, n.6, quoting Nyquist, supra, 93 S.Ct. at
2974, n.49. As Justice Marshall’s dissent pointed out, however, the only taxpayers who could
realize the significant advantage from the statute were those whose children went to schools that
charged tuition. The Court also noted that the distinction between tax credits and tax deductions is
formalistic.
Finally, in Zelman, supra, Ohio created a scholarship program providing tuition aid to
Cleveland parents according to financial need to be used at the alternative public or private school
chosen by the parents. Based on Mueller and other subsequent cases, the Court stated the rule that
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the Establishment Clause permits a government aid program that is neutral as to religion and that
provides assistance directly to a broad class of citizens, even when these citizens exercise their
genuine choice to direct this government aid to religious schools. Thus, because the Ohio
program offered a true private choice through a neutral program, the tuition voucher program was
constitutional even though the vast majority of the participating alternative schools were
religious. Although Nyquist was decided in an era of different presumptions about aid to religious
schools, it was not overturned but rather distinguished. The program in Nyquist was not neutral
because the benefits were allowed to flow only to private schools.
Since Zelman, the Court has pointed out that while the Establishment Clause permits neutral
tuition benefit programs that include religious schools, the Free Exercise Clause does not mandate
their inclusion. Hence, a Washington State program granting scholarships for postsecondary
education expenses validly barred the use of these scholarships for theology students. Locke v.
Davey, 540 U.S. 712, 158 L.Ed.2d 1, 124 S.Ct. 1307 (2004). This reasoning was extended to
permit the State of Maine to exclude religious schools from a program for tuition payments at
other private high schools. Eulitt v. State of Maine, Department of Education, 386 F.3d 344 (1st
Cir. 2004).
An Illinois general grant program for parents of nonpublic school children was invalidated in
1973 in People ex rel. Klinger v. Howlett, 56 Ill.2d 1, 305 N.E.2d 129 (1973). The Illinois
Supreme Court found the program, which authorized state payments to low-income families with
children attending nonpublic schools, indistinguishable from the tuition-grant program
invalidated in Nyquist. Beginning with the 2000 tax year, Illinois has granted an education
expense tax credit, available for public as well as private school expenses. The credit is equal to
25 percent of all qualified education expenses (including tuition, book fees, and lab fees in excess
of $250) to a maximum credit of $500. 35 ILCS 5/201(m). The Illinois appellate court twice
approved the credit against constitutional challenges, largely based on Mueller. Toney v. Bower,
318 Ill.App.3d 1194, 744 N.E.2d 351, 253 Ill.Dec. 69 (4th Dist. 2001); Griffith v. Bower, 319 Ill.
App.3d 993, 747 N.E.2d 423, 254 Ill.Dec. 383 (5th Dist. 2001).
f.
[11.74] Record-Keeping and Testing Services
The Supreme Court has permitted state aid to nonpublic schools in the form of recordkeeping and testing services, but only as long as there are means to ensure that the tests are free
from religious instruction. In Levitt v. Committee for Public Education & Religious Liberty, 413
U.S. 472, 37 L.Ed.2d 736, 93 S.Ct. 2814 (1973), those means were not present. New York
appropriated money to reimburse nonpublic schools for their expenses in compiling, grading, and
reporting the results of tests and examinations and in maintaining records concerning public
enrollment and health and personnel qualifications and characteristics. The tests and examinations
included traditional teacher-prepared tests, and qualifying schools were not required to account
for how they spent the money received. The Court found fault with these last two elements
because teachers under the authority of religious institutions might draft their examinations “with
an eye, unconsciously or otherwise, to inculcate students in the religious precepts of the
sponsoring church” (93 S.Ct. at 2819) and because there was no way for the courts to determine
how much of the lump-sum payments corresponded to reimbursable secular services.
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The infirmities of the program in Levitt were avoided in Wolman v. Walter, 433 U.S. 229, 53
L.Ed.2d 714, 97 S.Ct. 2593 (1977), overruled in part by Mitchell v. Helms, 530 U.S. 793, 147
L.Ed.2d 660, 120 S.Ct. 2530 (2000), in which the State of Ohio provided nonpublic schools with
the same standardized tests used by the public schools, tests that were graded by commercial
publishing organizations. Since the nonpublic school controlled neither the content of the tests
nor their results, the use of the tests as part of religious teaching was prevented. Further, since no
state supervision was required, no excessive entanglement would be present.
Later, the Court in Committee for Public Education & Religious Liberty v. Regan, 444 U.S.
646, 63 L.Ed.2d 94, 100 S.Ct. 840 (1980), relied on Wolman to approve the New York testing and
record-keeping aid plan enacted after Levitt. Similar to Wolman, the tests involved in the New
York program were objective and state-prepared so that they could not be used for religious
instruction. The record-keeping and reporting services for which the state provided
reimbursement were not part of the teaching process and could not be used to foster an
ideological outlook. However, unlike Wolman, the services were performed by nonpublic school
personnel, whose costs were reimbursed by the state. Significantly, the Court refused to invalidate
the statute simply because it provided for direct cash reimbursement to the nonpublic schools.
g. [11.75] Auxiliary Services
State programs providing nonpublic school children with various “auxiliary services” have
received differing treatment by the Supreme Court. Generally, public health services have always
been permissible. Special education and guidance, remedial education, and therapeutic services
used to be permissible only in a neutral setting off the premises of the religious schools. Now
these service programs will be evaluated for religious effect without a presumption that onpremises instruction will inevitably lead to government-sponsored religious indoctrination.
The old rule was developed in Meek v. Pittenger, 421 U.S. 349, 44 L.Ed.2d 217, 95 S.Ct.
1753 (1975), Wolman v. Walter, 433 U.S. 229, 53 L.Ed.2d 714, 97 S.Ct. 2593 (1977) (both of
which were overruled in part by Mitchell v. Helms, 530 U.S. 793, 147 L.Ed.2d 660, 120 S.Ct.
2530 (2000)), and Aguilar v. Felton, 473 U.S. 402, 87 L.Ed.2d 290, 105 S.Ct. 3232 (1985). In
Meek, Pennsylvania supplied professional staff, supportive materials, and personnel to nonpublic
schools for furnishing remedial and accelerated instruction, guidance counseling and testing, and
speech and hearing services. Although the instruction and guidance services were nominally
secular and were to be performed by public employees, the fact that the services were to be
performed on the premises of church-related schools where “an atmosphere dedicated to the
advancement of religious belief is constantly maintained” created the potential of impermissible
fostering of religion that could be prevented only by some form of continuing surveillance. 95
S.Ct. at 1766. In Wolman, the Court permitted both state-funded diagnostic services provided in
the nonpublic schools and state-funded therapeutic services performed off nonpublic school
premises. The diagnostic services related to speech and learning and to psychological testing.
These differed from teaching and counseling because the services had little or no educational
content and contact between the diagnostician and the pupil was usually brief and objective. The
therapist, on the other hand, may establish a relationship with the pupil in which there might be
opportunities to transmit ideological ideas. However, since the therapeutic guidance and remedial
services were to be performed at neutral sites off the premises of the nonpublic schools, the
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danger perceived in Meek would not arise. Finally, in Aguilar, New York City had used federal
funds to pay the salaries of public school employees who conducted remedial courses and
guidance services at parochial schools for children from low-income families. The city’s attempt
to avoid the potential for fostering religion by extensive supervision ran afoul of the entanglement
test, just as in Lemon v. Kurtzman, 403 U.S. 602, 29 L.Ed.2d 745, 91 S.Ct. 2105 (1971).
The on-premises versus off-premises distinction was first relaxed in Zobrest v. Catalina
Foothills School District, 509 U.S. 1, 125 L.Ed.2d 1, 113 S.Ct. 2462 (1993), in which the
Supreme Court approved use of a federally funded interpreter for a deaf student attending a
Catholic high school. Then, in Agostini v. Felton, 521 U.S. 203, 138 L.Ed.2d 391, 117 S.Ct. 1997
(1997), Aguilar, supra, was overruled as the Court authorized the use of federal remedial reading
funds under Title I of the former Elementary and Secondary Education Act of 1965, Pub.L. No.
89-10, 79 Stat. 27, to service students on site at parochial schools. See the discussion of Agostini
in §11.69 above.
Even before Zobrest and Agostini, however, aid for instructional auxiliary services was
permitted under two different circumstances. First, this aid was permissible if distributed based
on secular criteria directly to students or their families who then independently decided to use the
aid at religious institutions. See Witters v. Washington Department of Services for Blind, 474 U.S.
481, 88 L.Ed.2d 846, 106 S.Ct. 748 (1986), in which state payments to a college student for
vocational rehabilitation were permissible even when the student used the money to study at a
Christian college and sought to pursue a career as a pastor, missionary, or youth director. Second,
even direct payments to a religious institution were permissible for secular instructional services
when the institution was not “pervasively sectarian.” See Bowen v. Kendrick, 487 U.S. 589, 101
L.Ed.2d 520, 108 S.Ct. 2562, 2575 (1988), which upheld a federal program despite the fact that
the program provided funding directly to religious organizations for services related to the
problems of adolescent sexuality and pregnancy.
More recent litigation in the area of auxiliary instructional services in parochial schools has
related to services for special education students. See, e.g., Peck v. Lansing School District, 148
F.3d 619 (6th Cir. 1998), holding that the provision of physical and occupational therapy for a
special education student at a Lutheran school would not violate the Establishment Clause.
However, after Zobrest and Agostini, the focus of this litigation is usually whether the Individuals
with Disabilities Education Act or state law requires this aid rather than whether the
Establishment Clause permits it. See, e.g., K.R. v. Anderson Community School Corp., 125 F.3d
1017 (7th Cir. 1997); Fowler v. Unified School District No. 259, Sedgwick County, Kansas, 128
F.3d 1431 (10th Cir. 1997); Cefalu v. East Baton Rouge Parish School Board, 117 F.3d 231 (5th
Cir. 1997). Even though Agostini allows the provision of special education services on the
premises of parochial schools, it does not require it. KDM v. Reedsport School District, 196 F.3d
1046 (9th Cir. 1999).
The Illinois Supreme Court, in a case antedating Meek, Wolman, and Aguilar, invalidated
Illinois’ auxiliary service aid plan. People ex rel. Klinger v. Howlett, 56 Ill.2d 1, 305 N.E.2d 129
(1973). The health services portion of the plan, though purely secular, suffered from the same
difficulty found in the state’s textbooks program: services furnished to nonpublic school students
were paid by the state, while those furnished to public school students were paid by local
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taxpayers. Public provision of guidance and counseling services, psychological services, and
remedial and therapeutic programs for educationally disadvantaged children was struck down
because these functions were “not susceptible of supervision to assure a strictly secular content.”
305 N.E.2d at 134.
h. [11.76] Instructional Material and Equipment
Originally, the Supreme Court held that material and equipment used for instruction, although
ostensibly secular, could not be provided to religious schools by the state because this material
and equipment constituted substantial aid to the educational function and hence the religious
mission of the schools. In Meek v. Pittenger, 421 U.S. 349, 44 L.Ed.2d 217, 95 S.Ct. 1753 (1975),
the Court acknowledged that objects such as maps, charts, and laboratory equipment loaned to
nonpublic schools were secular, nonideological, and neutral and would not change in use.
However, the presumption was that the secular educational function of the religious schools could
not be separated from their religious role. Similarly, in Wolman v. Walter, 433 U.S. 229, 53
L.Ed.2d 714, 97 S.Ct. 2593 (1977), Ohio’s program to loan instructional materials such as
projectors, tape recorders, record players, maps and globes, science kits, and weather forecasting
charts was struck down.
In 2000, the Supreme Court overruled Meek and Wolman in Mitchell v. Helms, 530 U.S. 793,
147 L.Ed.2d 660, 120 S.Ct. 2530 (2000). The federal program at issue in Mitchell involved the
distribution of funds to state and local governmental agencies, which in turn lend educational
materials such as library books, computer hardware and software, television equipment, maps,
etc., to both public and private schools. The materials themselves are secular, and the Court
rejected the notion that this aid would be impermissible simply because the materials could be
diverted to religious use. However, the plurality and the concurring Justices divided on the
important question of whether actual diversion of government-provided secular materials to
religious use is unconstitutional.
i.
[11.77] Construction, Maintenance, and Equipping of Buildings
The permissibility of public aid to religious schools for the construction or maintenance of
school buildings historically hinged largely on the distinction between primary and secondary
schools, on the one hand, and institutions of higher education, on the other. The Supreme Court in
Tilton v. Richardson, 403 U.S. 672, 29 L.Ed.2d 790, 91 S.Ct. 2091 (1971), approved of federal
construction grants to church-related colleges and universities that excluded facilities to be used
for sectarian instruction, religious worship, or a divinity program. The Court did, however, strike
down that part of the statute that placed a 20-year limitation on the prohibition against religious
use of the facilities. Tilton was followed by Hunt v. McNair, 413 U.S. 734, 37 L.Ed.2d 923, 93
S.Ct. 2868 (1973), in which the Court upheld a South Carolina program for aiding colleges by
issuing revenue bonds for projects, excluding facilities used for sectarian study or religious
worship. In holding that this form of aid did not violate the effect prong of the Establishment
Clause test (see §11.40 above), the Court made the following observation:
Aid normally may be thought to have a primary effect of advancing religion
when it flows to an institution in which religion is so pervasive that a substantial
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portion of its functions are subsumed in the religious mission or when it funds a
specifically religious activity in an otherwise substantially secular setting. 93 S.Ct. at
2874.
The church-related colleges in Tilton and Hunt were seen as institutions where religion was not
unacceptably pervasive.
By contrast, New York’s payments to nonpublic elementary and secondary schools for
maintenance and repair of their facilities were invalidated in Committee for Public Education &
Religious Liberty v. Nyquist, 413 U.S. 756, 37 L.Ed.2d 948, 93 S.Ct. 2955 (1973). While no
attempt was made to restrict payments to those expenditures related to facilities used exclusively
for secular purposes, the Court expressed its belief that the imposition of these restrictions would
be impossible within the context of the religious elementary and secondary schools at issue.
Moreover, the provision limiting state aid to 50 percent of comparable aid to public schools did
not suffice because a mere statistical judgment as to the percentage of expenditures for secular
education could not guarantee that state funds would not be used to finance religious education.
Subsequently, the courts have focused on aid in the form of government-issued bonds. In
Johnson v. Economic Development Corporation of County of Oakland, 241 F.3d 501 (6th Cir.
2001), the court of appeals upheld the use of government-issued tax-exempt revenue bonds to
finance construction of buildings at a Catholic elementary and secondary school that was found
not to be pervasively sectarian. The same court, when faced with facts involving tax-exempt
government bonds for a school that was pervasively sectarian, approved the bonds because the
benefit was neutral as to religion and was “indirect” in that the issuance of the bonds did not
involve the expenditure of public funds. Steele v. Industrial Development Board of Metropolitan
Government Nashville, 301 F.3d 401 (6th Cir. 2002). In both decisions, the court acknowledged
that Justice Thomas’ belief that the “pervasively sectarian” doctrine is dead (see Mitchell v.
Helms, 530 U.S. 793, 147 L.Ed.2d 660, 120 S.Ct. 2530, 2550 (2000)) has not yet been accepted
by the full Supreme Court.
The Seventh Circuit, also avoiding deciding whether the religious schools at issue were
pervasively sectarian, has ruled that direct money payments to religious schools for
telecommunications access is the type of aid that would still violate the Establishment Clause.
Freedom from Religion Foundation, Inc. v. Bugher, 249 F.3d 606 (7th Cir. 2001).
The Illinois Supreme Court, in a case coming between Tilton and Hunt, approved under both
the Illinois and U.S. Constitutions an Illinois plan by which the state issued revenue bonds for the
construction of college facilities, excluding those used for sectarian instruction, religious worship,
or a divinity program. Cecrle v. Illinois Educational Facilities Authority, 52 Ill.2d 312, 288
N.E.2d 399 (1972). However, the court did invalidate a provision permitting units of local
government to invest in the revenue bonds because of the potential for excessive entanglement
resulting from a long-range relationship of debtor and creditor.
j. [11.78] Shared Time
Several states have permitted local school districts to implement programs of “dual
enrollment” or “shared time” in which students, in compliance with compulsory attendance laws,
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attend some classes at a public school and some at a nonpublic school. In principle, this concept
would seem constitutionally permissible. Indeed, the Illinois appellate court long ago sustained
such a plan under statutory and constitutional challenges in Morton v. Board of Education of City
of Chicago, 69 Ill.App.2d 38, 216 N.E.2d 305 (1st Dist. 1966). In Morton, students enrolled in the
dual enrollment program and took all courses at the public Kennedy High School except English,
social studies, music, and art, which they took at the nearby parochial St. Paul High School.
However, the shared-time programs that have been challenged in the federal courts have
generally been of a significantly different nature than the one found acceptable in Morton. In
School District of City of Grand Rapids v. Ball, 473 U.S. 373, 87 L.Ed.2d 267, 105 S.Ct. 3216
(1985), as well as in several lower court cases, the shared-time programs were conducted in
classrooms located within nonpublic schools that leased the space to the local public school
district. Generally, the students who attended the public school classes in a nonpublic school
building were the very same students who attended the nonpublic school for the rest of their
course work. Often the teachers who taught the public school courses in the leased classrooms
formerly or currently taught at the school as parochial school teachers at a different time period.
These shared-time programs were generally found to be unconstitutional as implemented. The
Supreme Court in Grand Rapids made it clear that such an on-premises program suffered the
same faults as other forms of on-premises instructional parochial school aid.
The Supreme Court in Agostini v. Felton, 521 U.S. 203, 138 L.Ed.2d 391, 117 S.Ct. 1997
(1997), rejected the per se on-premises rule in Grand Rapids and overruled that part of Grand
Rapids invalidating the shared-time program. Still, even under Agostini, there may be shared-time
programs with insufficient safeguards against the use of public funds for religious indoctrination.
4. [11.79] Application of General Laws to Parochial Schools
When government excludes from tax-exempt status those institutions that discriminate on the
basis of race, an excluded institution cannot assert its religious tenets as a conditional defense. In
Bob Jones University v. United States, 461 U.S. 574, 76 L.Ed.2d 157, 103 S.Ct. 2017 (1983), two
religiously oriented colleges were denied tax-exempt status by the Internal Revenue Service
because of their racially discriminatory policies that were based on religious beliefs. Under a Free
Exercise Clause analysis, the Supreme Court observed that this action would have a substantial
impact on the operation of the schools but would not prevent the schools from observing their
religious tenets. This burden was easily outweighed by the government’s compelling interest in
eradicating racial discrimination in education.
For other examples of the applications of federal or state antidiscrimination and regulatory
policies to religious schools despite First Amendment defenses, see Equal Employment
Opportunity Commission v. Fremont Christian School, 781 F.2d 1362 (9th Cir. 1986) (religious
school could not provide health insurance only to single persons and married men as “heads of
households” in violation of Title VII of the Civil Rights Act of 1964 and Equal Pay Act of 1963,
29 U.S.C. §206(d)); Ninth & O Street Baptist Church v. Equal Employment Opportunity
Commission, 616 F.Supp. 1231 (W.D.Ky. 1985) (EEOC had right to conduct investigation of
former teacher’s charge of retaliatory discharge from church school), aff’d without op., 802 F.2d
459 (6th Cir. 1986); Soriano v. Xavier University Corp., 687 F.Supp. 1188 (S.D. Ohio 1988)
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(federal court had jurisdiction over claim under Age Discrimination in Employment Act of 1967
against religious university); and South Jersey Catholic School Teachers Organization v. St.
Teresa of Infant Jesus Church Elementary School, 150 N.J. 575, 696 A.2d 709 (1997) (religious
school was subject to mandatory collective bargaining law with respect to secular terms or
conditions of teachers’ employment).
For different results, see Dayton Christian Schools, Inc. v. Ohio Civil Rights Commission,
766 F.2d 932 (6th Cir. 1985) (assertion of jurisdiction by state civil rights commission over
employment discrimination claim of discharged teacher at religious school violated both religion
clauses of First Amendment), rev’d on other grounds, 106 S.Ct. 2718 (1986), and Equal
Employment Opportunity Commission v. Catholic University of America, 83 F.3d 455 (D.C.Cir.
1996) (EEOC’s investigation of Catholic nun’s sex discrimination claim for denial of tenure was
impermissible entanglement in religious university’s decision on employment of clergy). Note
also that Title VII exempts religious organizations, including schools, from the prohibition
against religious discrimination. 42 U.S.C. §§2000e-1(a), 2000e-2(e)(1). (This exception may be
required by the First Amendment. See Little v. Wuerl, 929 F.2d 944 (3d Cir. 1991).) Thus, a
religious school may terminate an employee for violating a policy against extramarital sex. Boyd
v. Harding Academy of Memphis, Inc., 88 F.3d 410 (6th Cir. 1996). Further, the federal courts
have recognized a “ministerial exception” to the application of Title VII, meaning that they will
not entertain discrimination claims about employment decisions involving clergy. See Petruska v.
Gannon University, 350 F.Supp.2d 666 (W.D.Pa. 2004), and cases discussed therein.
Finally, the rights of employees and students in public schools to due process do not extend to
employees and students in private schools because these institutions are not governmental actors.
See, e.g., Nobles v. Alabama Christian Academy, 917 F.Supp. 786 (M.D.Ala. 1996); Gaston v.
Diocese of Allentown, 712 A.2d 757 (Pa.Super. 1998).
IV. RACIAL DESEGREGATION OF STUDENTS
A. [11.80] In General
The racial desegregation of public schools began in the Nineteenth Century with the
individual states’ inherent power to create and regulate the public schools within their borders.
Since the 1950s, however, federal law has been the primary vehicle in desegregating the nation’s
schools. Federal authority is derived primarily from two sources: the Equal Protection Clause of
the Fourteenth Amendment to the United States Constitution, and federal statutes prohibiting
discrimination on the basis of race. More recently, the focus of racial desegregation has shifted
from liability to the appropriate remedy for findings of segregation and discrimination and the
determination as to whether a school district has divested itself of vestiges of discrimination.
B. [11.81] The Constitutional Violation
With the Supreme Court’s decision in Brown v. Board of Education of Topeka, Shawnee
County, Kansas, 347 U.S. 483, 98 L.Ed. 873, 74 S.Ct. 686 (1954), school districts intentionally
segregating students on the basis of race violate the Equal Protection Clause of the Fourteenth
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Amendment. School districts can also violate the Fourteenth Amendment if segregation in
schools exists for reasons unrelated to state action but is found to be maintained by intentional
state action. Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 37 L.Ed.2d 548, 93
S.Ct. 2686, 2699 – 2700 (1973). When this intentional action occurs, courts have found that a
dual system of schools based on race has been created. Once a dual system has been found, the
burden is then focused on the school district to become “unitary,” or to eliminate all vestiges of
segregation.
C. [11.82] Elements of Intentional Discrimination
To violate the Fourteenth Amendment, a school district must engage in intentional conduct.
Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 37 L.Ed.2d 548, 93 S.Ct. 2686,
2697 (1973). A racially segregated school, in and of itself, is not a constitutional violation.
Columbus Board of Education v. Penick, 443 U.S. 449, 61 L.Ed.2d 666, 99 S.Ct. 2941 (1979).
The Constitution does not require “any particular degree of racial balance or mixing.” Swann v.
Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 28 L.Ed.2d 554, 91 S.Ct. 1267, 1280
(1971). Rather, the violation occurs when the segregation was created or maintained by
intentional government action. Keyes, supra, 93 S.Ct. at 2700.
Segregative intent can be shown by either direct or circumstantial evidence. Village of
Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 50 L.Ed.2d 450,
97 S.Ct. 555 (1977). Evidence of discrimination includes (1) the discriminatory impact of the
official action, (2) the historical background of the decision, (3) substantive and procedural
departures from the normal course of making decisions, and (4) the administrative history of the
decision, including minutes of meetings, reports, and testimony of decision makers. 97 S.Ct. at
564 – 565. In determining whether a school district engaged in intentionally segregative conduct,
a court will examine not only the racial and ethnic composition of the schools, but also “every
facet of school operations — faculty, staff, transportation, extracurricular activities and facilities.”
Green v. County School Board of New Kent County, Virginia, 391 U.S. 430, 20 L.Ed.2d 716, 88
S.Ct. 1689, 1693 (1968). Quality of educational opportunities and achievement of minority
students may also be a factor, if attributable to discriminatory intent. See Freeman v. Pitts, 503
U.S. 467, 118 L.Ed.2d 108, 112 S.Ct. 1430, 1446 (1992); Missouri v. Jenkins, 515 U.S. 70, 132
L.Ed.2d 63, 115 S.Ct. 2038, 2055 (1995).
If a prima facie case of intentional segregation is established, the burden shifts to the school
district to show “that the same decision would have resulted even had the impermissible purpose
not been considered.” Arlington Heights, supra, 97 S.Ct. at 566 n.21. If a school district cannot
disprove segregative intent, “it can rebut the prima facie case only by showing that its past
segregative acts did not create or contribute to the current segregated condition” of the schools.
Keyes, supra, 93 S.Ct. at 2699.
D. [11.83] Court-Ordered Remedial Action
School districts have an affirmative duty to desegregate when they have been found to have
intentionally segregated students on the basis of race. This constitutional violation is not remedied
by simply halting intentional discriminatory acts and adopting racially neutral policies and
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practices; rather, courts are empowered to take such proceedings and enter such orders and
decrees as are necessary to desegregate schools “with all deliberate speed.” Brown v. Board of
Education of Topeka, Shawnee County, Kansas, 349 U.S. 294, 99 L.Ed. 1083, 75 S.Ct. 753, 757
(1955). Thus, school boards must “dismantle” their dual school systems and eliminate the
vestiges of prior intentional discrimination. Green v. County School Board of New Kent County,
Virginia, 391 U.S. 430, 20 L.Ed.2d 716, 88 S.Ct. 1689, 1696 (1968).
If a federal court finds a violation of the Fourteenth Amendment, its remedial power is
extensive. As a court of equity, the federal court has the remedial power to restore victims of
discriminatory conduct to the position they would have occupied in the absence of the conduct.
Milliken v. Bradley, 418 U.S. 717, 41 L.Ed.2d 1069, 94 S.Ct. 3112 (1974). The nature of the
desegregation remedy is to be determined by the nature and scope of the constitutional violation.
Milliken v. Bradley, 433 U.S. 267, 53 L.Ed.2d 745, 97 S.Ct. 2749 (1977). A desegregation
remedy must (1) be tailored to the nature and scope of the constitutional violation, (2) be
designed to restore the discrimination victims to the position they would have occupied had the
discrimination not occurred, and (3) take into account the interest of state and local authorities in
themselves managing the public schools. 97 S.Ct. at 2757 – 2758. In Missouri v. Jenkins, 515
U.S. 70, 132 L.Ed.2d 63, 115 S.Ct. 2038, 2056 (1995), the Supreme Court, quoting Freeman v.
Pitts, 503 U.S. 467, 118 L.Ed.2d 108, 112 S.Ct. 1430, 1445 (1992), added that a court’s “end
purpose is not only ‘to remedy the violation’ to the extent practicable, but also ‘to restore state
and local authorities to the control of a school system that is operating in compliance with the
Constitution.’ ”
E. [11.84] Achieving “Unitary” Status
The remedial power of the federal courts in addressing a Fourteenth Amendment violation
includes the authority to order remedial education programs, teacher in-service, guidance and
counseling, and revised testing procedures as part of a school desegregation decree. Milliken v.
Bradley, 433 U.S. 267, 53 L.Ed.2d 745, 97 S.Ct. 2749, 2755 (1977). It also includes the power to
require changes in attendance center boundaries and compel busing. Swann v. CharlotteMecklenburg Board of Education, 402 U.S. 1, 28 L.Ed.2d 554, 91 S.Ct. 1267, 1281 – 1283
(1971). A school district is entitled to a precise statement of its obligations under a desegregation
order. Board of Education of Oklahoma City Public Schools, Independent School District No. 89,
Oklahoma County, Oklahoma v. Dowell, 498 U.S. 237, 112 L.Ed.2d 715, 111 S.Ct. 630, 636
(1991). A court also has the power to order a school district to levy taxes in excess of state
statutory limits to fund school desegregation plans. Missouri v. Jenkins, 495 U.S. 33, 109 L.Ed.2d
31, 110 S.Ct. 1651 (1990). But the court’s power does not include the ability to order school
district staff salary increases in order to improve the district’s image and potentially attract
students not currently attending the school. Missouri v. Jenkins, 515 U.S. 70, 132 L.Ed.2d 63, 115
S.Ct. 2038, 2055 (1995). Similarly, a court may not require improved academic achievement
when this goal is unrelated to the effects of prior segregation or when external factors influencing
student achievement are not the result of segregation. Id.
The federal supervision of a local school system is intended only as a temporary measure to
remedy past discrimination. Dowell, supra, 111 S.Ct. at 638. Once intentional racial
discrimination has been eliminated and the effects of this discrimination have been eradicated, the
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court may declare a school district “unitary,” thereby ending its supervision of the school district.
In fact, the court’s supervision must end when no more constitutional violations exist to justify
continuing supervision. Id.
A school district may be afforded either complete or partial relief from a desegregation order.
In Freeman v. Pitts, 503 U.S. 467, 118 L.Ed.2d 108, 112 S.Ct. 1430, 1446 (1992), the Court held
that a district court may withdraw judicial supervision with respect to discrete categories in which
the school district has achieved compliance with a court-ordered desegregation plan. A district
court need not retain active control over every aspect of school administration until a school
district has demonstrated unitary status in all facets of its system. Id. The Supreme Court in
Freeman set forth three factors for a court to consider in determining whether complete or partial
relief from a desegregation order is appropriate:
[1] whether there has been full and satisfactory compliance with the decree in those
aspects of the system where supervision is to be withdrawn; [2] whether retention of
judicial control is necessary or practicable to achieve compliance with the decree in
other facets of the school system; and [3] whether the school district has
demonstrated, to the public and to the parents and students of the once disfavored
race, its good-faith commitment to the whole of the court’s decree and to those
provisions of the law and the Constitution that were the predicate for judicial
intervention in the first instance. Id.
The Court further stated that a court should also consider the school board’s good-faith
compliance with the desegregation decree since it was entered and whether the vestiges of past
discrimination have been eliminated to the extent practicable. The Freeman Court cited the
factors from Green v. County School Board of New Kent County, Virginia, 391 U.S. 430, 20
L.Ed.2d 716, 88 S.Ct. 1689, 1693 (1968) (see §11.82 above), of faculty, staff, transportation,
extracurricular activities, and facilities as areas that must be assessed in determining whether the
vestiges of segregation have been eliminated as far as practicable. 112 S.Ct. at 1446 – 1447. The
school district bears the burden of showing that any current inequities are not traceable in a
proximate way to the prior violation. 112 S.Ct. at 1447.
F. [11.85] Statutory Violations
Various statutes impose sanctions for racial discrimination in the schools. Federal statutes
such as Titles IV and VI of the Civil Rights Act of 1964, 42 U.S.C. §§2000c and 2000d, and 42
U.S.C. §1983 are the chief statutory vehicles by which racial discrimination is redressed in the
public schools. The Illinois State Constitution and various School Code provisions also safeguard
the civil rights of public school students.
Title VI generally prohibits discrimination in federally assisted programs on the basis of race,
color, or national origin:
No person in the United States shall, on the ground of race, color, or national
origin, be excluded from participation in, be denied the benefits of, or be subjected
to discrimination under any program or activity receiving Federal financial
assistance. 42 U.S.C. §2000d.
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The Civil Rights Act of 1964 places the responsibility for the enforcement for these funding
restrictions on the United States Department of Education, Office for Civil Rights. The
regulations effecting the Act’s provisions are set out at 34 C.F.R. §100.1, et seq. Essentially, the
Office for Civil Rights evaluates individual school districts receiving federal aid, requiring school
authorities who have been found to engage in prohibited discrimination to formulate corrective
programs or face loss of federal funds.
In Guardians Ass’n v. Civil Service Commission of City of New York, 463 U.S. 582, 77
L.Ed.2d 866, 103 S.Ct. 3221 (1983), one of the seminal decisions regarding Title VI, in a
plurality decision, the Supreme Court held that a statutory violation of Title VI required the
showing of discriminatory intent. The Court went on to say that the Department of Education
could enforce regulations promulgated under Title VI when these regulations required a
termination of funds to a federal fund recipient upon a showing of discriminatory impact alone. A
careful reading of Guardians reveals that the Justices were well aware of the anomaly that they
created: federal funds cannot be terminated to a recipient under Title VI unless discriminatory
intent is proved, but these funds can be terminated under the Title VI regulations upon a showing
of only discriminatory impact. Thus, the regulations promulgated under the statute reach farther
than the statute itself.
The Seventh Circuit, consistent with Guardians, has held that when a plaintiff seeks to
proceed under the Title VI regulations on a disparate impact theory, only prospective relief is
available. Craft v. Board of Trustees of University of Illinois, 793 F.2d 140 (7th Cir. 1986).
Compensatory relief can be obtained under Title VI only upon proof of intentional discrimination.
793 F.2d at 142.
A plaintiff alleging a racial discrimination violation must make a prima facie showing that the
alleged conduct has a disparate impact. New York Urban League, Inc. v. State of New York, 71
F.3d 1031 (2d Cir. 1995). Once such a showing has been made, the burden shifts to the defendant
to demonstrate the existence of “a substantial legitimate justification” for the allegedly
discriminatory practice. 71 F.3d at 1036, quoting Georgia State Conference of Branches of
NAACP v. State of Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985). If the defendant sustains this
burden, the plaintiff may still prove his or her case by “demonstrating that other less
discriminatory means would serve the same objective.” 71 F.3d at 1036. Furthermore, statistical
disputes must be sufficiently substantial that they raise an inference of causation. Watson v. Fort
Worth Bank & Trust, 487 U.S. 977, 101 L.Ed.2d 827, 108 S.Ct. 2777, 2789 (1988). The
enforceability of the Title VI regulations was further clarified in Alexander v. Sandoval, 532 U.S.
275, 149 L.Ed.2d 517, 121 S.Ct. 1511 (2001), in which the Court held that there is no private
right of action to enforce the disparate impact regulations promulgated under Title VI. The Court
questioned the propriety of the disparate impact regulations but assumed that they were valid for
purposes of the instant case as no challenge to the regulations had been made. However, the
Court’s constriction of the remedial scope of Title VI is abundantly clear.
Title VI regulations that previously restricted fund termination to the specific programs
receiving federal funding (as interpreted by Grove City College v. Bell, 465 U.S. 555, 79 L.Ed.2d
516, 104 S.Ct. 1211 (1984)) have been rendered ineffective by the Civil Rights Restoration Act of
1987, Pub.L. No. 100-259, 102 Stat. 28. Federal funds received by any program in a school can
be terminated upon a finding that the institution practices racial discrimination.
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The Supreme Court in Board of Education of City School District of City of New York v.
Harris, 444 U.S. 130, 62 L.Ed.2d 275, 100 S.Ct. 363 (1979), determined that discrimination that
disqualified a school district for funding under former Title VII of the Education Amendments of
1972 was not discrimination in the Fourteenth Amendment sense. The Court held that under this
Act, as under other civil rights statutes, disparate or disproportionate impact alone was sufficient
to establish a violation even in the absence of specific intent to discriminate.
G. [11.86] Voluntary Actions To Desegregate Schools
The Supreme Court, in Wygant v. Jackson Board of Education, 476 U.S. 267, 90 L.Ed.2d
260, 106 S.Ct. 1842 (1986), found that a layoff policy extending preferential treatment to
minorities violated the Equal Protection Clause when the policy was not narrowly tailored to
further a compelling governmental purpose. The Court held that societal discrimination is
insufficient to justify a racial classification. Rather, there must be convincing evidence of prior
discrimination by the school district before allowing limited use of racial classifications to
remedy this discrimination. 106 S.Ct. at 1848 – 1849.
In City of Richmond v. J.A. Croson Co., 488 U.S. 469, 102 L.Ed.2d 854, 109 S.Ct. 706
(1989), the Supreme Court recognized the power of local governmental bodies to voluntarily
remedy private discrimination. The Supreme Court said with regard to the City of Richmond,
Virginia, “As a matter of state law, the city of Richmond has legislative authority over its
procurement policies, and can use its spending powers to remedy private discrimination, if it
identifies that discrimination with the particularity required by the Fourteenth Amendment.”
[Emphasis added.] 109 S.Ct. at 721. Although Croson pertains to the employment setting, it has
relevance to any affirmative action program adopted by local governments, including school
districts.
In Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 132 L.Ed.2d 158, 115 S.Ct. 2097, 2113
(1995), the Supreme Court again emphasized the rigid standards that these programs must satisfy
by holding that “all racial classifications, imposed by whatever federal, state, or local
governmental actor, must be analyzed by a reviewing court under strict scrutiny. In other words,
such classifications are constitutional only if they are narrowly tailored measures that further
compelling governmental interests.” It is clear that school districts must make some kind of
finding of existing discrimination and identify their role in perpetuating or perpetrating that
discrimination to justify adoption of an affirmative action program. The program must then be
narrowly tailored to remedy the identified discrimination. The failure to do so will invalidate the
program.
H. [11.87] Race-Conscious Student Assignment
Following Brown v. Board of Education of Topeka, Shawnee County, Kansas, 347 U.S. 483,
98 L.Ed. 873, 74 S.Ct. 686 (1954), the Supreme Court had not decided whether diversity could be
a compelling state interest. On June 23, 2003, Gratz v. Bollinger, 539 U.S. 244, 156 L.Ed.2d 257,
123 S.Ct. 2411 (2003), and Grutter v. Bollinger, 539 U.S. 306, 156 L.Ed.2d 304, 123 S.Ct. 2325
(2003), were considered by the Supreme Court. The Court decided in a five-four majority in
Grutter that educational diversity could be a compelling state interest. 123 S.Ct. at 2339.
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In Grutter, the Supreme Court addressed the issue of diversity in a law school admissions
policy. The policy itself did not utilize a quota system; instead, the law school’s goal was to attain
a “critical mass” of underrepresented minority students. 123 S.Ct. at 2339 – 2340. This goal was
supported by the law school’s determination that diversity was essential to its educational
mission. The Supreme Court determined that neither giving some attention to numbers nor
keeping track of the racial or ethnic composition of law school classes was unacceptable and did
not automatically admit or disqualify students based on race. The admissions policy resulted in
minority enrollment that varied between 13.5 and 20.1 percent, which was deemed inconsistent
with a quota admissions policy. Moreover, the law school’s focus on diversity factors other than
race showed “that the Law School seriously weigh[ed] many other diversity factors besides race
that can make a real and dispositive difference for nonminority applicants.” 123 S.Ct. at 2344.
In Grutter, the Court held that the law school policy was narrowly tailored to meet a
compelling state interest of diversity and that an admission system can “consider race or ethnicity
more flexibly as a ‘plus’ factor in the context of an individualized consideration of each and every
applicant.” 123 S.Ct. at 2342. The Supreme Court determined that “the Equal Protection Clause
does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to
further a compelling interest in obtaining the educational benefits that flow from a diverse student
body.” 123 S.Ct. at 2347.
In Gratz, the challenge was to the undergraduate admissions policy, which admitted students
getting at least 100 out of 150 points using categories such as the student’s GPA, SAT scores,
athletic ability, and legacy status. Students from underrepresented minority groups received an
additional 20 points.
The Supreme Court struck down this admissions policy, stating that the 20 points made the
race factor decisive for “virtually every minimally qualified underrepresented minority
applicant.” 123 S.Ct. at 2429. While the admission officers could flag applications of both
minorities and nonminorities for individualized review, the Court found this practice
unpersuasive because almost all qualified minorities were admitted without the review. Thus, the
Court found that the 20-point policy resulted in unlawful discrimination against nonminorities.
Grutter and Gratz, taken together, stand for the proposition that while a school district can
identify as a compelling state interest the desire for obtaining a critical mass of diverse students,
race cannot be the sole determinative factor in admission decisions, and neither are fixed numeric
goals and quotas constitutionally permissible. Moreover, in determining admissions, each
applicant must receive individualized consideration.
In Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701,
168 L.Ed.2d 508, 127 S.Ct. 2738 (2007), and its companion case, Meredith v. Jefferson County
Board of Education, the Supreme Court addressed the issue of voluntary student assignment plans
that were designed to promote racial diversity.
Under Seattle’s plan, students who entered ninth grade ranked their top three choices among
the district's high schools. The district applied tiebreakers when more students applied than there
were available seats. The first tiebreaker was current sibling enrollment at the school; the second
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tiebreaker was the racial composition of the school and the individual student’s race. If the
school’s white/nonwhite racial composition differed from the district average by more than ten
percentage points, diversity was considered by assigning underrepresented students to the school
before the other racial group was assigned. If it was still necessary to go to a tiebreaker, the next
tiebreaker was the geographic proximity of the school to the student’s residence.
Under Jefferson County's plan, the district sought to maintain racially integrated schools that
were achieved as a result of years of court intervention. The district's plan was implemented for
elementary, middle, and high schools. Clusters were created for elementary schools, and students
were assigned either to the school near where they resided or to another school in the cluster
using both assignments by the district and transfer requests by the parents, and decisions were
made based on available space within the schools and the racial guidelines in the district’s current
student assignment plan. Middle and high school students were assigned based on their residence.
Attendance boundaries were drawn to promote diversity. The district tried to ensure black
enrollments between 15 percent and 50 percent throughout the district's schools.
In both cases, the lower courts held for the school districts and determined that the programs
met constitutional muster, finding that the plans were narrowly tailored to meet compelling
governmental interests of racial and ethnic diversity. Both plaintiffs petitioned the Supreme Court
for certiorari, and the Court agreed to hear the cases.
The issue presented in these cases was “whether a public school that had not operated
legally segregated schools or has been found to be unitary may choose to classify students by race
and rely upon that classification in making school assignments.” 127 S.Ct. at 2746. The strict
scrutiny standard was applied in considering whether the voluntary student assignment plans
violated the Equal Protection Clause. The Court considered whether the government has a
compelling interest and, if so, whether the means chosen to achieve the compelling interest are
narrowly tailored. The Court stated that it had recognized only two compelling interests to
warrant the use of race as an assignment method: remedying the effects of intentional
discrimination and showing a compelling interest in diversity in higher education identified in
Grutter, supra.
The Court found that the Seattle and Jefferson County plans did not meet the narrowly
tailored and compelling interest requirements for a race-conscious assignment plan. Rather, the
plans were used only to achieve racial balance. As in Grutter, public schools may not use race as
the sole determining factor for student assignment.
The Court determined that there was no intentional discrimination found in either district to
warrant a race-conscious assignment plan. Further, the school districts failed to show that they
shared the same compelling interests recognized in Grutter; rather the plans were designed only
to achieve racial balance. As a result, the Court found that due to the failure to show evidence of
the compelling interest in diversity established in Grutter, “the racial classifications employed by
the districts are not narrowly tailored to the goal of achieving the educational and social benefits
asserted to flow from racial diversity. In design and operation, the plans are directed only to racial
balance, pure and simple, an objective this Court has repeatedly condemned as illegitimate.” 127
S.Ct. at 2755.
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In finding that there was a lack of showing of a compelling governmental interest, the Court
identified the limited impact that the plans actually had on student assignment in both districts
and the failure of the districts to seriously consider race-neutral alternatives.
I.
[11.88] State Statutes
Various School Code provisions help assure public school students of equal education
opportunity, free of racial discrimination. Under §10-21.3 of the School Code, local school
boards are
[t]o establish one or more attendance units within the district. As soon as
practicable, and from time to time thereafter, the board shall change or revise
existing units or create new units in a manner which will take into consideration the
prevention of segregation and the elimination of separation of children in public
schools because of color, race or nationality. 105 ILCS 5/10-21.3.
Section 10-22.5 of the School Code indicates that desegregation of the schools is to be the
primary responsibility of the local school boards, which have the duty
[t]o assign pupils to the several schools in the district; to admit non-resident pupils
when it can be done without prejudice to the rights of resident pupils and provide
them with any services of the school including transportation . . . but no pupil shall
be excluded from or segregated in any such school on account of his color, race, sex,
or nationality. Nothing herein shall be construed to permit or empower the State
Board of Education to order, mandate or require busing or other transportation of
pupils for the purpose of achieving racial balance in any school. 105 ILCS 5/10-22.5.
Also, §22-19 of the School Code provides that upon receipt of a complaint endorsed by the lesser
of 50 residents or 10 percent of the district’s residents that a pupil has been impermissibly
segregated from any school, the State Board of Education may conduct a hearing to determine the
merits of the complaint. 105 ILCS 5/22-19. If after a full hearing the State Board determines that
a violation exists, “it shall request the Attorney General to apply to the appropriate circuit court
for such injunctive or other relief as may be necessary to rectify the practice complained of.” Id.
Also note §10-20.12 of the School Code, which states that students shall have “the right and
opportunity to an equal education.” 105 ILCS 5/10-20.12. Section 22-11 of the School Code
provides minor criminal sanctions for school officials who practice racial discrimination. 105
ILCS 5/22-11. Section 18-12 of the School Code conditions state aid on compliance with School
Code requirements pertaining to nonsegregation of students on the basis of color, creed, race, sex,
or nationality. 105 ILCS 5/18-12.
Finally, the Illinois General Assembly passed the Illinois Civil Rights Act of 2003, 740 ILCS
23/1, et seq., which provides that a school district may not exclude a person from participation in,
deny a person the benefits of, or subject a person to discrimination under any program or activity
on the grounds of that person’s race, color, national origin, or gender, and neither may a school
district utilize criteria or methods of administration that have the effect of subjecting individuals
to discrimination because of their race, color, national origin, or gender. 740 ILCS 23/5(a).
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Of particular note is the award of attorneys’ fees for a “prevailing party,” which includes any
party who obtains some of his or her requested relief through a judicial judgment in his or her
favor, or who obtains some of his or her requested relief through any settlement agreement
approved by the court, or whose pursuit of a nonfrivolous claim was a catalyst for a unilateral
change in position by the opposing party relative to the relief sought. 740 ILCS 23/5(c), 23/5(d).
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