United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-3250

___________

Matthew Stark, Marcia Neely, *

*

Plaintiffs/Appellees, *

*

v. *

*

Independent School District, *

No. 640, and the members of *

its Board of Directors, *

*

Defendant/Appellant, * Appeal from the United States

* District Court for the

Leon Plaetz, Curtis Trost, * District of Minnesota.

Scott Frederickson, Tom Franta, *

Barb Beranek, Alois Guetter, *

*

Defendants. *

*

_________________ *

*

Jeff Paskewitz, Mavis *

Paskewitz, Stuart Paskewitz, *

Ben Paskewitz, Ron Paskewitz, *

Naomi Paskewitz, Carrie *

Paskewitz, Joe Paskewitz, *

Gordon Barber, Twyla Barber, *

Peter Barber, Cindy Logan, *

Sheldon Logan, Joanna Logan, *

Clayton Paskewitz, Linda *
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Paskewitz, Trisha Paskewitz, *

Minnesota Education Association, *

Minnesota Federation of *

Teachers, *

*

Amicus Curiae. *

___________

 Submitted: November 20, 1996

 Filed: August 21, 1997

___________

Before WOLLMAN, BEAM, and MURPHY, Circuit Judges.

___________

WOLLMAN, Circuit Judge.

This is an appeal from an injunction enjoining the operation of a public school.

We reverse and remand with directions to dismiss the complaint.

Factual Background

Independent School District No. 640 (the district) is a rural school district

located in southwestern Minnesota. It covers approximately 225 square miles of

agricultural land, including the towns of Wabasso and Vesta. The district operated

elementary schools in both Wabasso and Vesta until the 1983-84 school year. It closed

the Vesta elementary school and sold the building in May 1984. Thereafter, the Vesta

children attended the Wabasso school, which is approximately fourteen miles from

Vesta.
Paskewitz estimated that approximately 115 of the 300 people living in Vesta 1

are members of the Brethren.

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Lloyd Paskewitz bought the old Vesta elementary school building in 1991.

Paskewitz and several other Vesta families are members of a religious group known as

the Brethren, a group that originated in Dublin, Ireland, in the late 1820s. See Bryan 1

Ronald Wilson, “The Brethren” A Recent Sociological Study (1981). (Appellees’ App.

Ex. W.) It is undisputed that the Brethren have a sincerely held religious belief in

avoiding the use of technology, including televisions, radios, videos, films, and

computers. 

In August 1992, Paskewitz, on behalf of several of the Vesta Brethren families,

wrote to Dr. George Bates, the district’s superintendent, about the possibility of

reopening the Vesta elementary school in the form of a multi-age classroom. Paskewitz

offered to lease space in the old school to the district in consideration of the district’s

providing a teacher and supplies. Paskewitz’s letter stated, “[w]e would have no

objection to it being a public school,” but requested that “the charter of the school in

Vesta” contain a clause stating “[t]hat no T.V., Radios, Videos, and Computers be

used.” Paskewitz stated that there were approximately twenty-one Brethren children

that would be interested in attending and that the group had heard that other, nonBrethren children might be interested in attending the Vesta school. Paskewitz’s letter

also noted that the Brethren children would not require transportation or school

lunches, as the children could walk to school and would go home for lunch in

accordance with their religious beliefs.

Dr. Bates attested that he considered the feasibility of opening a multi-age

classroom in Vesta. He stated that the primary benefits of such a classroom included

the reduction in the number of students being bussed to Wabasso, the availability of an

additional multi-age classroom, the reduction in class sizes in grade-specific

classrooms, and the alleviation of space shortage in the Wabasso building. He noted
Although the “Brethern” [sic] was an additional party to the lease, the person 2

who signed the lease allegedly on the Brethren’s behalf has attested that he had no

authority to do so. Furthermore, there is no evidence in the record that the Brethren

had any ownership interest in the Vesta school building. Thus, we find little

significance in the fact that they are a party to the lease.

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that the relative costs of the proposed classroom were minimal. After holding public

meetings, the school board unanimously approved the proposal. Members of the

school board attested that they approved the opening of the Vesta school for several

reasons, most of which were financial. Opening the Vesta school would prevent the

Brethren children from possibly being home-schooled, which would have meant a loss

in state aid of roughly $3,200 for each student withdrawn from school. A Vesta school

eliminated the need to bus Vesta students to Wabasso, and it was more economical to

send one teacher to Vesta than to bus Vesta children to Wabasso. Additionally,

opening a multi-age classroom in Vesta would provide educational benefits for those

students who otherwise might have been home-schooled. Dr. Bates and the school

board members attested that during the approval process they did not discuss the

religious backgrounds of the parents or students who might attend the Vesta school, nor

were those religious backgrounds relevant to their decision. 

A three-year lease was signed on October 12, 1993, by the district, Paskewitz,

and the Brethren. The lease provided that the Vesta school would be operated by the 2

district in the form of a multi-age classroom and would be “a public school for any

resident student in the School District.” The district would provide teachers and

administrative services, establish the curriculum “in compliance with state laws and

rules,” and provide classroom materials for instruction. The parents of the Brethren

children would “have the right to comment on and provide input regarding” classroom

materials “to the same extent as other parents in the School District,” but the district

retained “the sole discretion” regarding “final approval” of textbooks and instructional

materials. The lease provided that “[t]he School District shall, to the extent permitted

under applicable law and rules and regulations . . . limit the use of technology such as
The lease stated that hot lunch would also be provided at the Wabasso school, 3

but the district has said that it would cater hot lunches to students at the Vesta school

if needed.

The multi-age classrooms in Wabasso were open only for the 1993-94 school 4

year.

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television, radio, audio and/or video recordings, computers and movies in the

classrooms at the school.” The district would provide special education, certain

federally funded educational services, and counseling services, as well as instruction

in health, physical education, and music at the Wabasso School to any Vesta students

needing them. The lease stated that “[a]ll policies adopted by the [School District] . . . 3

shall apply at the [Vesta] school.” Paskewitz and the Brethren agreed to pay all

utilities, provide custodial services, repair and maintain the building and grounds, pay

property taxes, provide property and liability insurance related to the building, and

remove snow.

The district planned to operate three multi-age classrooms during the 1993-94

school year, two in Wabasso and one in Vesta. The district solicited students for these

classrooms, and fifty-four students signed up and were allowed to request which school

they wished to attend. Thirty-five chose the Wabasso school, and the remaining

nineteen chose the Vesta school. Eleven parents of twenty-nine current or former

Vesta students attested that they preferred sending their children to the Vesta school

rather than the Wabasso school because they liked the convenience of having their

children attend a school within walking distance and having their children come home

for lunch. They also preferred the multi-age Vesta classroom to a grade-specific one

in Wabasso. Although the Vesta school is open to any student in the district who

4

wishes to attend there, apparently only Brethren children have attended the Vesta

school since it opened.
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Dr. Bates and the two Vesta teachers attested that the same elementary

curriculum is taught at the Vesta school as is taught at the Wabasso school.

Technology, in the form of computer instruction, is a standard part of that curriculum

for each grade level. The teachers testified that when the Vesta school first opened,

students wishing computer instruction would have been bussed to the Wabasso school

to receive it. Both attested that the district now provides computer and audio/visual

equipment to them at the Vesta school upon request. Although technology is available

to all students, both teachers testified that they do not regularly use technology in their

classroom instruction.

Minnesota law requires school districts to establish a procedure that allows

parents to review the content of instructional materials provided to a minor child. If the

parent objects to that content, the district must make reasonable arrangements for

alternative instruction. See Minn. Stat. Ann. § 126.699 (West 1994). The district’s

policy allows students with religious objections to be excused from objectionable

classes or activities. If the class or activity is a required one, “suitable alternative

activities shall be provided.” Dr. Bates attested that the district has received numerous

objections to various activities, including the use of computer technology, drug

education, self-esteem training, certain books and audio and visual presentations, and

sex education; that the district does not inquire into the motivations for a parent’s

objections; and that the district provides alternative instruction.

All of the Brethren parents have objected to the use of computers at the Vesta

school and have asked for alternative instruction for their children, which has been

provided. Accordingly, the educational curriculum at the Vesta school does not include

the use of computers, videos, films, or audio presentations. While the Brethren children

were attending the Wabasso school prior to the reopening of the Vesta school, the

district accommodated their religious objections and allowed them to avoid 
The district also supplied the Brethren children with a separate lunch table at the 5

Wabasso school.

The plaintiffs also sued members of the school board, Paskewitz, and the

6

Brethren. These defendants were dismissed at various times, and their dismissals are

not raised on appeal. 

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participating in the use of technology. It is undisputed that, in light of the

5

accommodations the district would make at the Wabasso school for the Brethren

children, the Brethren children have received exactly the same education at the Vesta

school that they would have received if they had continued to attend the Wabasso

school. It is also undisputed that no religious instruction has taken place at the Vesta

school and that no religious artifacts are present.

Procedural History

Matthew Stark and Marcia Neely are Minnesota citizens utilizing taxpayer

standing who filed suit against the district seeking a declaratory judgment that the

6

creation and operation of the Vesta school violates the Establishment Clause of the

First Amendment to the United States Constitution and article 1 section 16 of the

Minnesota Constitution. They also sought an injunction prohibiting the district from

operating the Vesta school in conformance with Brethren beliefs, a judgment requiring

the district to refund to the State of Minnesota all state aid the district received for

children attending the Vesta school, and an award of attorney fees. 

The case was submitted to the district court on cross-motions for summary

judgment. The court concluded that “the facts presented by this case provide a clear

example of state sponsorship, or the advancement of a religion which violates the

mandates of the First Amendment.” The court concluded that the district had modified

the Vesta school’s curriculum “based solely on the request of a religious group.”
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The district court further concluded that the primary effect of the opening of the

Vesta school was that of promoting religion; that “the opening, and the manner of

operation of, the Vesta school lacks a secular purpose and was done to conform to the

religious beliefs of the Brethren”; and that the district had thus created “an

impermissible identification of its powers and duties with the religious beliefs of the

Brethren.” The court entered an injunction permanently enjoining the district “from

operating the Vesta School or any other school in conformance with the Brethren’s

religious objections to the use of computers and other technology and media.” The

court did not rule on the refunding of state aid money or on the matter of attorney fees.

Following the district court’s denial of the district’s motion for a stay pending

appeal, we entered an order staying the district court’s injunction. Stark and Neely

have moved to dissolve the stay. Stark and Neely have dismissed their refund claim,

and their claim for attorney fees has been stayed pending the outcome of this appeal.

First Amendment

We begin by noting that the decision by the district to open a school and to

accommodate parental requests for exemption from aspects of the district’s chosen

curriculum falls within the heartland of the “comprehensive powers and substantial

discretion” that are generally afforded to school districts in “discharg[ing] the important

tasks entrusted to them.” Pratt v. Independent Sch. Dist. No. 831, 670 F.2d 771, 775

(8th Cir. 1982). See Wisconsin v. Yoder, 406 U.S. 205, 235 (1972) (“[C]ourts are not

school boards or legislatures, and are ill-equipped to determine the ‘necessity’ of

discrete aspects of a State’s program of compulsory education.”). Despite this

considerable discretion, courts have recognized that school boards must exercise their

powers “‘in a manner that comports with the transcendent imperatives of the First

Amendment,’” and courts “have been particularly vigilant in monitoring compliance

with the Establishment Clause in elementary and secondary schools.” Edwards v. 
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Aguillard, 482 U.S. 578, 583-84 (1987) (quoting Board of Educ., Island Trees Union

Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 864 (1982)).

As the Supreme Court has stated, courts “do not . . . intervene in the resolution

of conflicts which arise in the daily operation of school systems and which do not

directly and sharply implicate basic constitutional values.” Epperson v. Arkansas, 393

U.S. 97, 104 (1968). Cf. Capitol Square Review and Advisory Bd. v. Pinette, 115 S.

Ct. 2440, 2448 (1995) (plurality opinion) (“[O]utsiders or individual members of the

community uninformed about the school’s practice. . . . might leap to the erroneous

conclusion of state endorsement.”).

A.

The applicable test for evaluating whether state action has violated the

Establishment Clause is that established by Lemon v. Kurtzman, 403 U.S. 602, 612-13

(1971). See Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384,

389 n.7 (1993) (“Lemon, however frightening it may be to some, has not been

overruled.”). “In order to satisfy the Lemon test, a challenged governmental action

must (1) have a secular purpose, (2) not have the primary or principal effect of

advancing religion, and (3) not foster an excessive entanglement with religion.” Good

News/Good Sports Club v. School Dist. of Ladue, 28 F.3d 1501, 1508 (8th Cir. 1994)

(footnote omitted) (citing Lemon, 403 U.S. at 612-13). See also Agostini v. Felton,

Nos. 96-552 & 96-553, 1997 WL 338583, at *19 (U.S. June 23, 1997) (“Thus, it is

simplest to recognize why entanglement is significant and treat it . . . as an aspect of

the inquiry into a statute’s effect.”).

The decision to open a school in Vesta furthers the valid secular purpose of

educating the district’s children. See Mueller v. Allen, 463 U.S. 388, 395 (1983) (state

has “secular purpose of ensuring that the State’s citizenry is well educated”); Wolman

v. Walter, 433 U.S. 229, 240 (1977) (“There is no question that the State has a 
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substantial and legitimate interest in insuring that its youth receive an adequate secular

education.”); Everson v. Board of Educ. of Ewing Tp., 330 U.S. 1, 7 (1947) (“It is

much too late to argue that legislation intended to facilitate the opportunity of children

to get a secular education serves no public purpose.”). The district’s decision to open

the school in Vesta was based upon the secular reasons of space efficiency, savings in

transportation costs, and the addition of a multi-age classroom and corresponding

reduction in class sizes. Further, the decision forestalled the plans of certain parents

to home-school their children and thus prevented a reduction in the amount of state aid

flowing to the district, funding that benefits all students within the district. 

Relying primarily on School Dist. of Grand Rapids v. Ball, 473 U.S. 373 (1985),

and Parents Ass’n of P.S. 16 v. Quinones, 803 F.2d 1235 (2d Cir. 1986), the district

court concluded that the primary effect of the district’s decision to open the school at

Vesta was to promote religion. The court noted that the Vesta school is perceived as

a Brethren school and that the district had thus “create[d] an impermissible

identification of its powers and duties with the religious beliefs of the Brethren.”

Quinones involved a plan to educate Hasidic Jewish girls at a public school by

physically separating a group of classrooms from the rest of the school and dedicating

them for their use, and providing only female public school teachers who would teach

primarily in Yiddish, with English taught as a second language. See Quinones, 803

F.2d at 1237. The Second Circuit concluded that this plan created “a symbolic link

between the state and the Hasidic sect” which appeared to endorse the separatist

religious views of the Hasidic Jews and that the plan thus failed the primary effect test.

See id. at 1241-42. 

This case is distinguishable because the Vesta school does not involve the

complete segregation and dedication of part or all of a public facility to a group of

students for religious reasons as in Quinones. That portion of Grand Rapids on which
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the district court relied has now been overruled. See Agostini, 1997 WL 338583, at

**16, 21.

The Vesta school is a public school open to all, and there is no evidence that any

students wishing to attend there have been turned away. Further, that the school

board’s decision to open the Vesta school coincided with certain parents’ desire to see

a public school opened in Vesta does not compel a finding that the primary effect of the

decision was to advance religion or that the district was sending a message of approval

or disapproval of individual religious choices. See Clayton by Clayton v. Place, 884

F.2d 376, 380 (8th Cir. 1989) (“The mere fact a governmental body takes action that

coincides with the . . . desires of a particular religious group . . . does not transform the

action into an impermissible establishment of religion.”). Any incidental benefits to the

Brethren’s religious beliefs are secondary to the primary effect of providing an

additional school for the secular education of Vesta children. Cf. Good News/Good

Sports Club, 28 F.3d at 1508 (incidental benefits to religion from policy of allowing

group access to school property were secondary to primary effect of providing neutral

forum for exchange of ideas).

Although a district may not modify its curriculum to conform to a set of sectarian

beliefs, see Edwards v. Aguillard, 482 U.S. at 593; Epperson v. Arkansas, 393 U.S.

at 106; Pratt, 670 F.2d at 776-79 (removal of film from curriculum), nothing of the sort

has happened here. As evidenced by the material submitted to the district court, the

district’s curriculum has not been altered in any way at the Vesta school, and the same

curriculum is taught at Vesta as at the Wabasso school. While technology was not

initially provided at the Vesta school, and students not exempted from it would have

been bussed to Wabasso to receive it, the record shows that technology is now

available at the Vesta school. Thus, contrary to the district court’s finding, technology

has never been unavailable to students at the Vesta school. In sum, the curriculum--

whether the substantive curriculum or the availability of technology--has not been 
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modified or changed in any way at the Vesta school from what is taught at the Wabasso

school. 

The district granted the parental requests for exemption from technology

pursuant to Minn. Stat. Ann. § 126.699 and district policy. Granting the parental

requests made pursuant to the statute and the policy served the secular purpose of

facilitating the secular education of children at the Vesta school. Even if the district’s

decision to honor the requests for exemption was motivated by a desire to

accommodate the Brethren parents’ religious beliefs, such accommodation constitutes

a legitimate secular purpose so long as “the relevant governmental decisionmaker . . .

[does not] abandon[] neutrality and act[] with the intent of promoting a particular point

of view in religious matters.” See Corporation of the Presiding Bishop of the Church

of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 334-35 (1987); see also

Lynch, 465 U.S. at 673 (“Nor does the Constitution require complete separation of

church and state; it affirmatively mandates accommodation, not merely tolerance, of all

religions, and forbids hostility toward any.”). The record shows that the district honors

all parental exemption requests, regardless of motivation.

The district’s actions in granting the parental requests for exemption did not have

the primary effect of advancing religion. “A law is not unconstitutional simply because

it allows churches to advance religion . . . . For a law to have forbidden “effects” under

Lemon, it must be fair to say that the government itself has advanced religion through

its own activities and influence.” Amos, 483 U.S. at 337. Although the religious

beliefs of the Brethren parents were accommodated by the granting of their requests

for exemptions, the district itself did not advance religion by honoring those requests.

See id. at 336-37 (any advancement of religion as a result of exemption for religious

groups in Civil Rights Act of 1964 could not be “fairly attributed” to the government).

We conclude that the district’s application of state law and district policy to

grant parental requests for exemption will not result in any excessive entanglement. 
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Because the record shows that the district grants all parental exemption requests and

routinely provides alternative instruction, its policy actually “promotes less, rather than

more,” involvement with religion because the district avoids considering parents’

motivations--including religious motivations--for requesting exemptions. See Clayton,

884 F.2d at 379; Good News/Good Sports Club, 28 F.3d at 1510 (no excessive

entanglement where, in applying open-access school use policy, school would not have

to distinguish among types of groups wanting to use school). The teachers have altered

their teaching methods only to the extent necessary to accommodate the parental

exemption requests, as they would any exemption request. See Agostini, 1997 WL

338583, at *20 (“Entanglement must be ‘excessive’ before it runs afoul of the

Establishment Clause.”); Wolman, 433 U.S. at 248 (“It can hardly be said that the

supervision of public employees performing public functions on public property creates

an excessive entanglement between church and state.”); cf. Mueller, 463 U.S. at 403

(no excessive entanglement from requirement that state officials examine textbooks to

determine if they qualify for tax deduction so that deductions for sectarian books could

be disallowed).

In conclusion, neither the decision to open the Vesta school nor the district’s

application of the exemption policies violates the Lemon test. Both actions had a

secular purpose and did not have the primary effect of advancing religion or endorsing

the Brethren’s religious beliefs. Cf. Agostini, 1997 WL 338583, at *21.

B.

Stark and Neely argue that the present case involves a situation that is

indistinguishable from that in Board of Educ. of Kiryas Joel Village Sch. Dist. v.

Grumet, 512 U.S. 687 (1994). In that case, the Supreme Court held unconstitutional

a special state statute which created a school district for a village defined exclusively

along religious lines. See id., 512 U.S. at 693. The “fundamental source of

constitutional concern” in Kiryas Joel was that the legislature had not exercised its 
There has been no delegation of political power to the Brethren community in 7

this case. Cf. Kiryas Joel, 512 U.S. at 697-702 (plurality opinion) (delegation of

political power to group chosen by religious criteria). 

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power in a manner neutral to religion. See id. at 703. The Court was concerned that

“[b]ecause the religious community of Kiryas Joel did not receive its new governmental

authority simply as one of many communities eligible for equal treatment under a

general law, we have no assurance that the next similarly situated group seeking a

school district of its own will receive one.” Id. (footnote omitted). This lack of

neutrality forced the Court to conclude that the creation of the school district violated

the Establishment Clause. See id. at 704-05. Further, the legislation could not be

saved by viewing it as an accommodation of religion because the “proposed

accommodation singles out a particular religious sect for special treatment,” violating

the principle of “neutrality as among religions.” Id. at 706-07.

This case is not Kiryas Joel. As we discussed earlier, the record does not

support Stark’s and Neely’s contention that the district has taken special actions to

wrongly benefit the Brethren, and the fact that the district’s actions coincide with the

desires of certain parents does not mean that the Establishment Clause has been

violated. See Clayton by Clayton, 884 F.2d at 380. The district here decided, for

7

secular reasons, to open a public school in a building in which a public school had

previously been located, a school that is open to all students regardless of religious

affiliation. The district grants the requests of all parents for exemptions regardless of

religious affiliation.

The extension of a benefit through the neutral application of state law and the

district’s policy to allow parental requests for exemption from curriculum--even if those

requests are motivated by the religious reasons of the parents and the honoring of the

requests accommodates those religious beliefs--does not violate the Establishment

Clause. The Supreme Court has said:
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A central lesson of our decisions is that a significant factor in upholding

governmental programs in the face of Establishment Clause attack is their

neutrality towards religion. . . . We have held that the guarantee of

neutrality is respected, not offended, when the government, following

neutral criteria and evenhanded policies, extends benefits to recipients

whose idealogies and viewpoints, including religious ones, are broad and

diverse.

Rosenberger v. Rector and Visitors of the Univ. of Virginia, 115 S. Ct. 2510, 2521

(1995); see also Agostini, 1997 WL 338583, at *18 (“[W]here the aid is allocated on

the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made

available to religious and secular beneficiaries on a nondiscriminatory basis . . . the aid

is less likely to have the effect of advancing religion.”).

The state action in this case is well within the boundaries set by cases in which

the Supreme Court has upheld “government programs that neutrally provide benefits

to a broad class of citizens defined without reference to religion.” Zobrest v. Catalina

Foothills Sch. Dist., 509 U.S. 1, 8 (1993). See, e.g., Rosenberger, 115 S. Ct. at 2521-

25 (neutral program paying for printing of student publications); Zobrest, 509 U.S. at

10-14 (sign-language interpreter for deaf student at Catholic high school); Witters v.

Washington Dep’t of Servs. for the Blind, 474 U.S. 481, 486-89 (1986) (vocational

assistance for blind person studying for religious vocation at Christian college);

Mueller, 463 U.S. at 396-99 (tax deduction for educational expenses); Widmar v.

Vincent, 454 U.S. 263, 273-75 (1981) (open access to university facilities); Wolman,

433 U.S. at 237-48 (textbooks, testing, diagnostic and therapeutic services); Board of

Educ. of Central Sch. Dist. No. 1 v. Allen, 392 U.S. 236, 243-44 (1968) (textbooks);

Everson, 330 U.S. at 17 (bussing reimbursement). Indeed, by granting exemptions

without regard to parental motivations, the district has adhered to the principle that “[a]

proper respect for both the Free Exercise and the Establishment Clauses compels the

State to pursue a course of neutrality toward religion, favoring neither one religion 
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over others nor religious adherents collectively over nonadherents.” Kiryas Joel, 512

U.S. at 696 (quotation omitted).

To the extent that the district’s application of the state law and district policy to

grant the parental requests for exemption can be viewed as accommodating religion by

removing a burden from the Brethren families (forcing their children to use technology),

such action does not offend the Establishment Clause. “[T]he Constitution [does not]

require complete separation of church and state; it affirmatively mandates

accommodation.” Lynch, 465 U.S. at 673. The Establishment Clause is not violated

when the government accommodates religious beliefs “by relieving people from

generally applicable rules that interfere with their religious callings.” Lee v. Weisman,

505 U.S. 577, 627 (1992) (Souter, J., concurring); id. at 628 (“accommodating religion

reveals nothing beyond a recognition that general rules can unnecessarily offend the

religious conscience when they offend the conscience of secular society not at all”);

Amos, 483 U.S. at 334 (“This Court has long recognized that the government may (and

sometimes must) accommodate religious practices and that it may do so without

violating the Establishment Clause.” (quoted case omitted)). The district’s actions in

this case follow our best traditions of the accommodation of religious beliefs in the

school context. See, e.g., Yoder, 406 U.S. at 234; Zorach v. Clauson, 343 U.S. 306,

312-15 (1952); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642

(1943).

C.

Finally, we examine the district’s actions under the “endorsement test.” See

Kiryas Joel, 512 U.S. at 720 (“Experience proves that the Establishment Clause . . .

cannot easily be reduced to a single test.”) (O’Connor, J., concurring in part and

concurring in the judgment). The Supreme Court has “paid particularly close attention

to whether the challenged governmental practice either has the purpose or effect of

‘endorsing’ religion, a concern that has long had a place in our Establishment Clause
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jurisprudence.” County of Allegheny v. American Civil Liberties Union Greater

Pittsburgh Chapter, 492 U.S. 573, 592 (1989). The endorsement test has been thus

explained:

[T]he Establishment Clause “prohibits government from making

adherence to a religion relevant in any way to a person’s standing in the

political community.” The government violates this prohibition if it

endorses or disapproves of religion. “Endorsement sends a message to

nonadherents that they are outsiders, not full members of the political

community, and an accompanying message to adherents that they are

insiders, favored members of the political community.”

Id. at 625 (O’Connor, concurring in part and concurring in the judgment) (quoting

Lynch, 465 U.S. at 687-88 (O’Connor, J., concurring)).

As we have discussed, the district has acted neutrally in this case towards the

citizens of the district regarding the decision to open the school in Vesta and in

applying the exemption policy. Thus, the district has not made anyone’s adherence to

religion relevant to their standing in the community and consequently has not endorsed

religion or a set of religious beliefs.

In sum, the district’s actions in this case have not violated the Establishment

Clause.

Minnesota Constitution

We must also consider how the district’s actions fare under the Minnesota

Constitution, for the “limitations contained in the Minnesota Constitution are

substantially more restrictive than those imposed by U.S. Const. Amend. I.”

Americans United Inc. v. Independent Sch. Dist. No. 622, 179 N.W.2d 146, 155

(Minn. 1970). The district court did not separately analyze the state constitutional 
-19-

issue, but declared that because the district’s actions violated the federal constitution

they also violated the state constitution. The issue was briefed on appeal, however, and

we exercise our discretion to resolve it because it can be decided as a matter of law.

See Hutchins v. Champion Int’l Corp., 110 F.3d 1341, 1345 (8th Cir. 1997) (citing

Talley v. United States Postal Serv., 720 F.2d 505, 508 (8th Cir. 1983)).

The Minnesota constitutional provisions preventing the establishment of religion

provide in relevant part that “nor shall any money be drawn from the treasury for the

benefit of any religious societies or religious or theological seminaries,” Minn. Const.

Art. I, § 16, and that “[i]n no case shall any public money or property be appropriated

or used for the support of schools wherein the distinctive doctrines, creeds or tenets of

any particular Christian or other religious sect are promulgated or taught.” Minn.

Const. Art. XIII, § 2. The “fundamental concept” is “that the state may neither

advance nor inhibit religion, which . . . defines permissible limits of legislation under

state . . . law.” Americans United, 179 N.W.2d at 157. The “establishment clauses

prohibit both ‘benefits’ and ‘support’ to schools teaching distinctive religious

doctrines.” Minnesota Fed’n of Teachers v. Mammenga, 500 N.W.2d 136, 138 (Minn.

Ct. App. 1993). 

As shown above, no religious instruction takes place at the Vesta school, and

there is no expenditure of public funds in support of the teaching or promulgating of

religious beliefs. Accordingly, we conclude that no violation of the state constitution

has occurred.

Conclusion

The injunction is vacated, and the case is remanded to the district court with

directions to dismiss the complaint.
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MURPHY, Circuit Judge, dissenting.

Because I believe that the establishment by the public school district of this

special school in Vesta for children of the Brethren goes beyond what is permitted by

the first amendment to the United States Constitution, I respectfully dissent.

The district entered into a contractual arrangement with the religious group

known as the Brethren to operate a special public school in Vesta tailored to meet the

group's religious concerns. Before 1984 the district operated two elementary schools:

one in Wabasso and one fourteen miles away in Vesta. After the school in Vesta was

closed for economic reasons, children of the Brethren either attended the regular public

elementary school in Wabasso or were homeschooled. Various accommodations were

made at Wabasso to respect the religious beliefs of the Brethren, such as providing

separate tables for their children at lunch and excusing them from activities that

involved technological devices. Their opposition to the use of technology includes any

use of television, radio, audio and video recordings, computers, or movies.

During 1992-93, the Brethren proposed a joint venture with the school district

to reopen the elementary school in Vesta and this proposal was approved at a meeting

of the school board in February 1993. The minutes of the meeting and

contemporaneous newspaper accounts indicate that the school was identified with the

Brethren. One such news story stated in part:

The Wabasso Board of Education has reached an agreement with

the Vesta Brethren to proceed with plans for a K-6 elementary school at

Vesta this fall.

 . . . .

If it is legally possible to establish this school, it would be operated

without the assistance of modern technology such as computers, and 
The majority finds "little significance" in the fact that the Brethren were party 8

to the lease, but the group's inclusion is significant in light of the district's claim that it

did not take into account the religious background or beliefs of those who requested

exemptions from the standard curricula.

-21-

video and audio equipment. The reasoning behind this is that the

Brethren’s religious beliefs prohibit them from using such items, and this

has created a conflict in trying to send their children to the public school

in Wabasso, which uses such teaching tools and methods. 

To eliminate the need to remove these children from the public

school environment and teach them at home, the Brethren made the

proposal for a second school in Vesta last year.

Vicki L. Gerdes, "Agreement is Reached on Proposed School in Vesta," Redwood

Gazette, June 17, 1993.

On October 12, 1993, the Brethren, the school district, and Lloyd Paskewitz

entered into a formal written agreement to operate a public elementary school in Vesta.8

Paskewitz had previously purchased the Vesta school building, and the building was

made available under the agreement for the district to use free of charge. Paskewitz

and the Brethren also agreed to be responsible for all maintenance, security, taxes, and

insurance. In return the district would provide a teacher and educational materials and

limit the use of technology. Section 6 of the Agreement provides:

The School District shall, to the extent permitted under applicable law and

rules and regulations adopted by the School Board of the School District,

limit the use of technology such as television, radio, audio and/or video

recordings, computers and movies in the classrooms at the school

provided for herein.

Sections 8 and 9 indicate that the district envisioned a different set of academic

offerings at the Vesta school than at the public school in Wabasso. These sections 
-22-

reserve to the district the right to provide special education, health, music, physical

education classes, and hot lunches at the Wabasso elementary school for any students

at Vesta who might want to participate in these normally available programs which

would not be offered at Vesta because of the preferences of the Brethren.

The Brethren were actively involved in other ways in the reopening of the Vesta

school. Lloyd Paskewitz and several other members of the Brethren participated in the

interviews conducted to select a teacher for the new school. It is undisputed that it was

unprecedented to have non-district employees present at such interviews. On June 1,

1993, Lloyd Paskewitz provided Superintendent Bates with a list of 19 children who

planned to attend the school in Vesta, and only these children eventually enrolled in the

school. 

There are significant differences between the curricula offered at Vesta and

Wabasso. Although the official curricula adopted for the Vesta school calls for at least

one half hour of computer lab each week and district officials claim computer

technology is available at Vesta, computer training has never been offered. Other

forms of technology to which the Brethren object, such as television, video players, and

films, have not been used at Vesta, although they are regularly used at Wabasso. The

health offerings at Vesta are also not the same as those offered at Wabasso. The drug

awareness education programs used in the Wabasso school for kindergarten through

sixth grade are not available at Vesta. Although the official curricula at Vesta requires

one half hour of physical education each day “with specialists,” it is presented in an

unstructured manner by a parent volunteer who has no formal training in physical

education. At Wabasso it is taught in a structured manner by a physical education

teacher. The Vesta curricula officially requires at least an hour of musical instruction

each week, but the record does not indicate that music is actually offered. If a child at

the Vesta school wants such standard curricula offerings, he or she must make a special

request and then commute thirty miles in the middle of the school day to Wabasso for

health, physical education, or music classes.
The district's decision to reopen the school by entering into a special written

9

agreement with a religious group could not have been motivated by statutory duties

because the district approved the proposal from the Brethren to reopen the school in

February 1993 and Minn. Stat. § 126.699 (1996) was not passed until May 1993.

-23-

The facts of this case show an abandonment of the principle of state neutrality

in religious matters which underlies establishment clause jurisprudence. See Board of

Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 114 S. Ct. 2481, 2487 (1994). The

first amendment prohibits the state from favoring one religion over another or from

favoring religious adherents collectively over non-adherents. Id. (citing Epperson v.

Arkansas, 393 U.S. 97, 104 (1968)). Religious neutrality is particularly important in

the context of elementary and secondary schools, where the students are impressionable

and attendance is involuntary. Edwards v. Aguillard, 482 U.S. 578, 583-84 (1987).

While the Supreme Court "has long recognized that the government may (and

sometimes must) accommodate religious practices and that it may do so without

violating the Establishment Clause,” Corporation of the Presiding Bishop of the

Church of Jesus Christ of Latter Day Saints v. Amos, 483 U.S. 327, 334 (1987)

(citations and quotations omitted), “accommodation is not a principle without limits,”

and at some point accommodation may devolve into an unlawful fostering of religion.

Kiryas Joel, 114 S. Ct. at 2492; Amos, 483 U.S. at 334. An asserted motivation of

religious accommodation, even if justified by reference to a state statute, cannot shield

governmental actions that otherwise violate the principle of neutrality embedded in the

establishment clause. See Kiryas Joel, 114 S. Ct. at 2493.9

Here the school district has done far more than grant individual exemptions to

aspects of the public school curricula under state law, for it has entered into a

contractual relationship with members of a religious group to tailor a school to their

preferences. The district has agreed to limit the use of technology not for pedagogical

reasons, but to match the tenets of a single religious group. It also modified the health,

music, physical education, and computer curricula normally offered. The district has

acted to create a school where a student interested in participating in the standard 
-24-

health, physical education, music, or computer offerings must make a special request

and/or commute almost thirty miles during the school day to obtain such regular

educational services at Wabasso. It is not surprising that non-Brethren children have

not enrolled at Vesta. 

This case is similar to Kiryas Joel where the Supreme Court found that the

creation of a school district based on the religious affiliation of the community members

was unconstitutional because it impermissibly singled out a particular religious group

for special treatment. 114 S. Ct. at 2491. The village of Kiryas Joel had been

established as an enclave for a particular sect of Hasidic Jews called the Satmars who,

like the Brethren, eschewed much of the modern world and maintained a very isolated

community. The Satmar children were normally educated in private religious schools

in the village, but these parochial schools did not provide services for handicapped

students as required by state law. The New York legislature created a special school

district that conformed to the boundaries of the village so that services for handicapped

children could be provided in a way acceptable to the Satmars. Since the community

of Kiryas Joel did not receive its benefit "simply as one of many communities eligible

for equal treatment under a general law," there was no guarantee that the next religious

community desiring its own school district would be given one and the arrangement

was unconstitutional. Id. 

Like the legislature in Kiryas Joel, the school district has singled out a particular

religious group for benefits by setting up a school the Brethren find acceptable in order

to retain their participation in the public school system. There is no guarantee that the

next religious group in the district (or elsewhere in the state) could obtain a special

school for its members supported with a publicly funded teacher teaching a modified

curricula in accordance with their religious beliefs. The establishment of the school in

Vesta thus violates the principle of neutrality and "crosses the line from permissible

accommodation to impermissible establishment." Id.
-25-

The district argues it reopened the Vesta school to provide a better public

education by transporting fewer students from Vesta to Wabasso, reducing the class

size in Wabasso, and by lessening a space shortage there as well, but these purposes

could have been carried out by reopening the Vesta school as it had operated before

without a special signed agreement with the Brethren. The only reason the Brethren

are involved is that the district presumably could not afford to reopen the Vesta school

without the financial assistance they provided directly in the agreement and indirectly

by enrolling their children in the public school system. Even if the district was

motivated by improving the overall quality of education in its area, it established a

school in which the curricula conformed to the religious objections of the Brethren in

exchange for financial assistance. This is not an acceptable secular purpose. See

Epperson, 393 U.S. at 106 (“There is and can be no doubt that the First Amendment

does not permit the State to require that teaching and learning must be tailored to the

principles or prohibitions of any religious sect or dogma.”); Edwards, 482 U.S. at 593

(striking down Louisiana’s Creationism act because the “purpose of the . . . Act was

to restructure the science curriculum to conform with a particular religious viewpoint”);

Pratt v. Independent Sch. Dist. No. 831, 670 F.2d 771 (8th Cir. 1982) (removing a film

from a school curriculum based on religious objections violated the Establishment

Clause).

 

An impermissible effect of governmental action is one that endorses or promotes

religion. County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 592-

601 (1989); Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 17 (1989). Whether the

primary effect is the impermissible endorsement of religion can be measured by what

reasonable observers, including non-adherents, would conclude. Allegheny, 492 U.S.

at 595, 627-32 (plurality opinion). As the district court pointed out, the way in which

the school was reopened and operated created a perception in the community that the

school was really just for the children of the Brethren even though it was theoretically

open to all students. The effect of establishing the school was thus an endorsement of

the Brethren’s beliefs.
-26-

The majority relies on Clayton by Clayton v. Place, 884 F.2d 376 (8th Cir.

1989), for the idea that state action which coincidentally mirrors certain religious

beliefs does not have the effect of promoting religion. Clayton upheld a rule prohibiting

dances at public schools where there was no evidence in the record to indicate why the

rule had been passed. Id. at 378, 380. In contrast, the actions of the district regarding

the school in Vesta did not simply coincide with the beliefs of the Brethren. The record

reflects direct involvement of the Brethren in organizing and financing the school. Mr.

Paskewitz’s letter, the meetings of the school board, and the formal written agreement

between the district and the Brethren, all indicate that but for the religious concerns and

financial support of the Brethren, the school in Vesta would never have been reopened

or operated in the current manner. Here there is far more than mere coincidence

between the modifications of the Vesta school program and the beliefs of the Brethren.

The district contends the Vesta school does not advance religion because it is

open to all students and the same curricula available at Wabasso is available to Vesta

students willing to bus to Wabasso for specific classes, but it is appropriate to look

beyond the theory to examine the practical reality of the situation. See Kiryas Joel, 114

S. Ct. at 2488-89 (looking at effect of statute, not its form); Lee v. Weisman, 505 U.S.

577, 593, 595 (1992) ("subtle and indirect" pressure to participate in religious

ceremony can be as real as overt compulsion; "law reaches past formalism"); Edwards,

482 U.S. at 586-87 (“While the Court is normally deferential to a State’s articulation

of a secular purpose, it is required that the statement of such purpose be sincere and not

a sham.”). The contemporaneous newspaper accounts indicate the Vesta school is

considered by both Brethren and non-Brethren citizens to be a school for the Brethren

children. The Vesta school creates the perception that the state has singled out the

Brethren for special, preferential treatment by modifying the standard curricula to fit

their religious objections. Such treatment has the primary effect of creating a state

endorsement of the religious views of the Brethren, Edwards, 482 U.S. at 593

(“preference” for particular religious beliefs constitutes an endorsement of religion),

and cannot be reconciled with the establishment clause cases which require the 
-27-

government to adopt a neutral position toward religion. See, e.g., Kiryas Joel, 114 S.

Ct. at 2487; Wallace v. Jaffee, 472 U.S. 38, 52-54; Epperson, 393 U.S. at 104.

Three primary criteria are helpful in considering whether state action has the

effect of advancing religion: whether it results in government indoctrination of religious

beliefs, whether it defines the aid recipients by reference to religion, and whether it

creates an excessive entanglement between the state and religion. Agostini v. Felton,

Nos. 96-552, 96-553, 1997 WL 338583 (U.S. June 23, 1997) at *21. Applying these

factors to the facts of this case, the actions of the district have the impermissible effect

of advancing religion.

Aid that furthers the educational function of religious schools is no longer

presumed to be invalid per se, Agostini, 1997 WL 338583, at *15, but state action may

impermissibly indoctrinate religious beliefs when it provides direct aid to religious

institutions or when it relieves sectarian institutions of costs they otherwise would bear.

Id. at *17; see also Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 12 (1993).

Although the Vesta school is theoretically open to the public, the district's actions are

suspect because they relieve the Brethren of costs they would have otherwise borne in

homeschooling or establishing their own school. If this arrangement were upheld, it

would no longer be necessary for Catholic, Lutheran, Jewish, or Muslim communities

to expend the resources required to establish separate parochial schools. They could

also offer a district free rent in a building they own in exchange for a teacher and

teaching materials and obtain a religiously homogeneous school with basic educational

instruction to their liking. This is the type of direct subsidization that has the effect of

advancing religion. Agostini, 1997 WL 338583, at *17; Meek v. Pittenger, 421 U.S.

349, 365-66 (1975) (lending instructional materials and equipment to sectarian schools

has the effect of advancing religion).

Aid provided to all eligible children on the basis of neutral, secular criteria

regardless of where they attend school is permissible because it does not define 
Agostini states that previous cases have essentially collapsed the "effect" and 10

"entanglement" prongs of the Lemon test. Id. at *19.

-28-

recipients on the basis of religion and does not provide incentives for recipients to

modify there religious beliefs. Agostini, 1997 WL 338583, at *18-19; see also Widmar

v. Vincent, 454 U.S. 263, 274 (1981) . In contrast, the effect of the Vesta operation

is to provide a benefit for the Brethren which it does not provide for non-Brethren. The

Brethren children can now obtain a publicly financed education in Vesta that conforms

with their particular religious beliefs, while non-Brethren children, either with or

without the reopened Vesta school, must still commute to Wabasso if they want to

receive all of the curricula regularly offered by the district. The actions of the district

violate the establishment clause because they have the effect of singling out the

Brethren for a special benefit.

State aid or action will also advance religion if it leads to an excessive

entanglement between church and state. The test for an impermissible entanglement 10

examines the character and purposes of the institutions benefitted, the nature of the aid

provided, and the resulting relationship between the government and the religious

authority. Agostini, 1997 WL 338583, at *19 (quoting Lemon v. Kurtzman, 403 U.S.

602, 615 (1971)). Here, the district has entered into a contractual relationship with a

religious group for mutual benefit, essentially forming a partnership between the

Brethren and the district to open and operate the Vesta school with a curricula

acceptable to the religious group.

There are many competing values in our richly diverse society, and the religion

clauses of the first amendment protect the rights of all to practice the religion of their

choice and also prevent the government from preferential advancement of any one

religious group. Because the school district's establishment of the special school at

Vesta crosses over the line permitted under the Constitution, I dissent.
-29-

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.