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 *-2-

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 distric t loc ated in southwestern Minnesota. It covers approximately 225 square miles o f agr icultural land, including the towns of Wabasso and Vesta. The district operate d elementary schools in both Wabasso and Vesta until the 1983-84 school year. It closed the Vesta elementary school and sold th e building in May 1984. Thereafter, the Vesta child renattended the Wabasso school, which is approximately fourteen miles fro m Vesta.Paskewitz estimated that approximately 115 of the 300 people living in Vesta 1 are members of the Brethren.
-3- Ll oydPaskewitz 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). (Appelle es’ App. Ex. W.) I t is undisputed that the Brethren have a sincerely held religious belief i n avoidi ng the use of technology, including televisions, radios, videos, films, an d computers.
In August 1992, Paskewitz, on behalf of several of the Vesta Brethren families,

wr ote to Dr. George Bates, the district’s superintendent, about the possibility o f reopening the Vesta elementary school in the form of a multi-age classroo m. Paskewitz offered to l ease 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 n o objection to it being a public school,” but requested that “the charter of the school in Vesta” con tain a clause stating “[t]hat no T.V., Radios, Videos, and Computers b e 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, non

Brethren children might be interested in att ending the Vesta school. Paskewitz’s letter also n oted that the Brethren children would not require transportation or schoo l lunches, as the children could walk to school and would go home for lunch i n accordance with their religious beliefs.

Dr. Ba tes attested that he considered the feasibility of opening a multi-ag e classroom in Vesta. He stated that the primary benefits of such a classroom included the reduction in the number of students being bu ssed to Wabasso, the availability of an ad ditional multi-age classroom, the reduction in class sizes in grade-specifi c
c l assrooms, and the alleviation of space shortage in the Wabasso building. He notedAlthough the “Brethern” [sic] was an additional party to the lease, the person 2 who signe d the lease allegedly on the Brethren’s behalf has attested that he had n o autho rity to do so. Furthermore, there is no evidence in the record that the Brethre n had any owne rship interest in the Vesta school building. Thus, we find littl e significance in the fact that they are a party to the lease.
-4- that the relative costs of the proposed classroom were minimal. After holding public meetings, the school board unanimously approved the proposal. Members of th e school board attested that they approved the opening of the Vesta school for severa l reasons, most of which were financial. Opening the Vesta school would prevent the Brethren children from possibly beinghome-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

sen done teacher to Vesta than to bus Vesta children to Wabasso. Additionally , opening a multi-age classroom in Vesta would provide educational benefits for those st udents who otherwise might have been home-schooled. Dr. Bates and the schoo l board members attested that during the approval process they did not discuss th e religious backgrounds of the parents or students who might attend the Ve sta school, nor were those religious backgrounds relevant to their decision.
A three-y ear 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 dis trict in the form of a multi-age classroom and would be “a public school for an y
re sident student in the School District.” The district would provide teachers an d admini strative services, establish the curriculum “in compliance with state laws an d rules,” a nd provide classroom materials for instruction. The parents of the Brethre n 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 prov ided that “[t]he School District shall, to the extent permitted under applicable law and rules and regulations . . . limit the use of technology such asThe lease stated t hat hot lunch would also be provided at the Wabasso school, 3 but the dis trict 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. -5- tele vision, radio, audio and/or video recordings, computers and movies in th e classro oms at the school.” The district would provide special education, certai n 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 ap ply at the [Vesta] school.” Paskewitz and the Brethren agreed to pay al l utilities, provide

custodial services, repair and maintain the building and grounds, pay property taxes, provide property and liability insurance related to the building, an d

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 di strict solicited students for these classrooms, and fifty-four students signed up and were allowed to request which school they w ished to attend. Thirty-five chose the Wabasso school, and the remainin g nineteen chose the Vesta school. Eleven parents of twenty-nine current or forme r Vestastudents attested that they preferred sending their children to the Vesta school rat her than the Wabasso school because they liked the convenience of having thei r 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 wh o

4 wishes to attend there, apparently only Brethren children have attended the Vest a school since it opened.-6-

Dr. Bate s and the two Vesta teachers attested that the same elementar y curricul um

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

. Techn ology, in the form of computer instruction, is a standard part of that curriculum fo r each grade level. The teachers testified that when the Vesta school first opened , students wishing computer instructio n would have been bussed to the Wabasso school to rece ive it. Both attested that the district now provides computer and audio/visua l equipment to them at the Vesta school upon request. Although technology is available to all students, both teachers testif ied that they do not regularly use technology in their classroom instruction.

Minnesot alaw requires school districts to establish a procedure that allow s 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 fo r altern ative instruction. See Minn. Stat. Ann. § 126.699 (West 1994). The district’ s policy a llows students with religious objections to be excused from objectionabl e cl asses or activities. If the class or activity is a required one, “suitable alternativ e activities shall be provided.” Dr. Bates attested t hat the district has received numerous objec tions to various activities, including the use of computer technology, dru g education, sel f-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.

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

sc hool and have asked for alternative instruction for their children, which has bee n provided. Accordingly, the educational curriculum at the Vesta school does not include the use of computers, videos, films, or audio presentations. While the Bret hren children

were att ending the Wabasso school prior to the reopening of the Vesta school, th e district accommodated their religious objections and allowed them to avoidThe district also supplied the Brethren children with a separate lun ch table at the 5 Wabasso school. The plaintiffs also sued members of the school board, Paskewitz, and th e 6 Brethren. These defendants were dismissed at various times, and their dismissals are not raised on appeal.
-7- parti cipating in the use of technology. It is undisputed that, in light of th e 5

acco mmodations the district would make at the Wabasso school for the Brethre n children, t he Brethren children have received exactly the same education at the Vesta scho ol that they would have received if they had continued to attend the Wabass o school. I t 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 taxpaye r standin g who filed suit against the district seeking a declaratory judgment that th e 6

crea tionand operation of the Vesta school violates the Establishment Clause of th e FirstAm endment to the United States Constitution and article 1 section 16 of th e Minnesota

Constitution. They also sought an injunction prohibiting the district fro m operating the Vesta school in conformanc e with Brethren beliefs, a judgment requiring the district t o refund to the State of Minnesota all state aid the district received fo r children attending the Vesta school, and an award of attorney fees.

The c ase 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 exampl e of state sponsorship, or the advancement of a religion which violates th e mandates of the First Amendment.” The court conc luded that the district had modified the Vesta school’s curriculum “based solely on the request of a religious group.”-8-

The district court further conclu ded that the primary effect of the opening of the Vesta school was that of promoting religion; that “the opening, and the manner o f operation of, the Vesta school lacks a secular purpose and was done to conform to the religiou s beliefs of the Brethren”; and that the district had thus created “a n impermis sible identification of its powers and duties with the religious beliefs of th e Brethren.” The court entered an injunction permanently enjoining the district “fro m ope rating 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.” Th e 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 pendin g appeal, w e entered an order staying the district court’s injunction. Stark and Neel y ha ve 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 n oting that the decision by the district to open a school and t o
acc ommodate parental requests for exemption from aspects of the district’s chose n
cur riculum

falls within the heartland of the “comprehensive powers and substantia l discretion” that are generally afforded to school districts in “discha rg[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 boa rds or legislatures, and are ill-equipped to determine the ‘necessity’ o f discre te aspects of a State’s program of compulsory education.”). Despite thi s considerable discretion, co urts have recognized that school boards must exercise their powers “‘in a manner that comports with the transcendent imperatives of the Firs t Amendmen t,’” and courts “have been particularly vigilant in monitoring complianc e with the Establishment Clause in elementary and secondary schools.” Edwards v.-9-

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 c onflicts which arise in the daily operation of school systems and which do no t directly and sharply implicate basic constitu tional 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

commun ity uninformed about the school’s practice. . . . might leap to the erroneou s conclusion of state endorsement.”).

A.

The appli cable test for evaluating whether state action has violated th e 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 bee n overruled.” ). “In order to satisfy the Lemontest, a challenged governmental actio n must(1) have a secular purpose, (2) not have the primary or principal effect o f advancing religion, and (3) not fos ter an excessive entanglement with religion.” Good News/Good Sports Club v. School Dist. o f Ladue , 28 F.3d 1501, 1508 (8th Cir. 1994) (footnote o mitted) (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 i s simplest to recognize why entanglement is significant and treat it . . . as an aspect of the inquiry into a statute’s effect.”).

The decisio n to open a school in Vesta furthers the valid secular purpose o f educating the district’s children. See Mueller v. Allen , 463 U .S. 388, 395 (1983) (state has “secular purpose of ensuring th at 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-10-

substantial and legitimate interest in insuring that its youth receive an adequate secular edu cation.”); Everson v. Board of Educ. of Ewing Tp. , 330 U.S. 1, 7 (1947) (“It i s much too late to argue that leg islation intended to facilitate the opportunity of children to get a secular education s erves no public purpose.”). The district’s decision to open the school in Vesta was based upo n the secular reasons of space efficiency, savings in transp ortation costs, and the addition of a multi-age classroom and correspondin g reductionin class sizes. Further, the decision forestalled the plans of certain parents to home-school their children and thus preve nted 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 , 47 3 U.S. 373 (1985), and Parents Ass’n of P.S. 16 v. Quinones , 803 F.2d 1235 (2d Cir. 1986), the district court co ncluded 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 Bre thren school and that the district had thus “create[d] an impermissibl e identification of its powers and duties with the religious beliefs of the Brethren.”
Quinone s involved a plan to educate Hasidic Jewish girls at a public school by physically separating a gro up of classrooms from the rest of the school and dedicating them for their use, and

providing only female public school teachers who would teach prima rily in Yiddish, with English taught as a second language. See Quinones , 80 3 F.2dat 1237. The Second Circuit concluded that this plan created “a symbolic lin k between the state and the Hasidic sect” which appeared to endorse the separatis t religious views of the Hasidic Jews and that the plan thus failed the primary effect test. See id. at 1241-42.

This ca se is distinguishable because the Vesta school does not involve th e
com plete segregation and dedication of part or all of a public facility to a group o f students for religious reasons as in Quinones . That portion of Grand Rapids on which-11-

the district court relied has now been overruled. See Agostini , 1997 WL 338583, a t **16, 21.
The Vesta school is a public school open to all, and there is no evidence that any student s wishing to attend there have been turned away. Further, that the schoo l board’s decision to open the Vesta school coin cided with certain parents’ desire to see a public school opened in Vesta does not compel a finding that the p rimary effect of the decision was to advance religion or that the distri ct 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 reli gious 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 a n additional school for the secular education of Vesta children. Cf. Good News/Good Sports C lub , 28 F.3d at 1508 (incidental benefits to religion from policy of allowin g group access to school proper ty 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 ha s happened here. As evidenced by the material submitted to the district court, th e district’s curriculum has not been altered in any way at the Vesta school, and the same

cur riculum

is taught at Vesta as at the Wabasso school. While technology was no t initially provided at the Vesta school, and students not exempted from it would have been b ussed to Wabasso to receive it, the record shows that technology is no w available at the Vesta school. Thus, contrar y 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-12-

modified or changed in any way at the Vesta school from what is taught at the Wabasso school.

The di strict granted the parental requests for exemption from technolog y pursua nt to Minn. Stat. Ann. § 126.699 and district policy. Granting the parenta l requ ests made pursuant to the statute and the policy served the secular purpose o f facilitating the secular education of children at the Vesta school. Even if the district’s decision t o honor the requests for exemption was motivated by a desire t o accommodate the Brethren pa rents’ religious beliefs, such accommodation constitutes a legitimate sec ular 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 Lync h , 465 U.S. at 673 (“Nor does the Constitution require complete separation o f church and state; it affirmatively mandates accommodatio n, 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 allowschurches to advance religion . . . . For a law to have forbidd en “effects” under Lemon , it must be f

air to say that the government itself has advanced religion through its own ac tivities and influence.” Amos , 483 U.S. at 337. Although the religiou s 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 con clude that the district’s application of state law and district policy t o grant parental requests for exemption will not result in any excessive entanglement.-13-

Because the record shows that the district grants all parental exemption requests and routinely provides alternative instruction, its poli cy actually “promotes less, rather than

mo re,” involvement with religion because the district avoids considering parents ’ motivations--including religious motiva tions--for requesting exemptions. See Clayton , 884 F.2d at 379; Good News/Good Sports Club , 28 F.3d at 1510 (no excessiv e entanglement where, in applying open-access school use po licy, school would not have to distinguish among types of groups wanting to use school). The teachers have altered theirt eaching methods only to the extent necessary to accommodate the parenta l exemptio n

requests, as they would any exemption request. See Agostini , 1997 W L 33 8583, at *20 (“Entanglement must be ‘excessive’ before it runs afoul of th e Establ ishment

Clause.”); Wolman , 433 U.S. at 248 (“It can hardly be said that th e 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 th at deductions for sectarian books could be disallowed).

In conclus ion, neither the decision to open the Vesta school nor the district’ s application of the exemption policies violates the Lemontest. 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 i s indi stinguishable 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 spe cial state statute which created a school district for a village defined exclusively along re ligious lines. See id. , 512 U.S. at 693. The “fundamental source o f constitutional concern” in Kiryas Joel was that the legislature had not exercised itsThere has been no delegation of political power to the Brethren community in 7 th is case. Cf. Kiryas Joel , 512 U.S. at 697-702 (plurality opinion) (delegation o f political power to group chosen by religious criteria).
-14- pow er 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 di strict of its own will receive one.” Id. (footnote omitted). This lack o f neutrality forced the Court to conclude that the creation of the school district violated the Establis hment Clause. See id. at 704-05. Further, the legislation could not b e saved by viewing it as an accommodation of religion because the “propose d accommodation

singles out a particular religious sect for special treatment,” violating the principle of “neutrality as among religions.” Id. at 706-07.

This c ase is not Kiryas Joel . As we discussed earlier, the record does no t support Stark’s and Neely’s contention that the district has taken special actions t o
wrongly benefit the Brethren, and the fact that the district’s actions coincide with the desire s of certain parents does not mean that the Establishment Clause has bee n vio lated. See Clayton by Clayton , 884 F.2d at 380. The district here decided, fo r 7 secular reason s, to open a public school in a building in which a public school ha d prev iously been located, a school that is open to all students regardless of religiou s affiliati on. The district grants the requests of all parents for exemptions regardless of religious affiliation.

The e xtension of a benefit through the neutral application of state law and th e district’s policy to allow parental requests for exemption from curri culum--even if those reques ts are motivated by the religious reasons of the parents and the honoring of the requ ests accommodates those religious beliefs--does not violate the Establishmen t Clause. The Supreme Court has said:-15--16-

A central lesson of our decisions is that a significant factor in upholding governmental programs in the face of Establis hment Clause attack is their neutrality towards religion. . . . We have held that the guarantee o f
ne utrality is respected, not offended, when the government, followin g neu tral criteria and evenhanded policies, extends benefits to recipient s 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, 252 1 (1995); se e also Agostini , 1997 WL 338583, at *18 (“[W]here the aid is allocated on the basis of neutral, secular criteria that neither f avor nor disfavor religion, and is made available to religious and secular beneficiarie s 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 (neut ral 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. Was hingtonDep’t of Servs. for the Blind , 474 U.S. 481, 486-89 (1986) (vocationa l assis tance 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, test ing, diagnostic and therapeutic services); Board of Educ. of Central Sch. Dist. No. 1 v. Allen , 392 U.S. 236, 243-44 (1968) (textbooks); Everson , 3 30 U.S. at 17 (bussing reimbursement). Indeed, by granting exemption s without regard to parental motivations, the district has adhered to the principle that “[a] p roper 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-17-

over others no r 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 ca n be viewed as accommodating religion by removing a burden from the Brethren families (forcing their children to use technology), such action does not o ffend the Establishment Clause. “[T]he Constitution [does not] requi re complete separation of church and state; it affirmatively mandate s accommoda

tion.” Lynch , 465 U.S. at 673. The Establishment Clause is not violated whe n the government accommodates religious beliefs “by relieving people fro m 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 th e 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 withou t violati ng the Establishment Clause.” (quoted case omitted)). The district’s actions in this ca se follow our best traditions of the accommodation of religious beliefs in th e schoo l context. See, e.g. , Yoder , 406 U.S. at 234; Zorach v. Clauson , 343 U.S. 306, 312-15 (195 2); West Virginia State Bd. of Educ. v. Barnette , 319 U.S. 624, 64 2 (1943).

C.
Finally, we examine the district’s actions under the “endorsement test.” Se e Kiryas Joel , 512 U.S. at 720 (“Experience proves that the Establishment Clause . .

. cannot eas ily be reduced to a single test.”) (O’Connor, J., concurring in part an d concurring in the judgment). The Supreme Co urt has “paid particularly close attention to whet her the challenged governmental practice either has the purpose or effect o f

‘ e ndorsing’ religion, a concern that has long had a place in our Establishment Clause-18-

jurisprud ence.” County of Allegheny v. American Civil Liberties Union Greate r Pitt sburghChapter , 492 U.S. 573, 592 (1989). The endorsement test has been thu s explained:
[T]he Establishment Clause “prohibits government from makin g adherence to a religion relevant in any way to a person’s standing in the politi cal community.” The government violates this prohibition if i t en dorses or disapproves of religion. “Endorsement sends a message t o nonad herents that they are outsiders, not full members of the politica l
commu nity, and an accompanying message to adherents that they ar e insiders, favored members of the political community.”

Id. at 625 (O’Connor, concurring in part and concurring in the judgment) (quotin g Lynch , 465 U.S. at 687-88 (O’Connor, J., concurring)).

As we have discussed, the district has acted neutrally in this case towards th e citiz ens of the district regarding the decision to open the school in Vesta and i n applying the exemption policy . Thus, the district has not made anyone’s adherence to religion relevant to their standing in the c ommunity and consequently has not endorsed religion or a set of religious beliefs.

In sum, t he district’s actions in this case have not violated the Establishmen t Clause.

Minnesota Constitution

We must also consider how the district’s actions fare under the Minnesot a Co nstitution, for the “limitations contained in the Minnesota Constitution ar e substanti ally more restrictive than those imposed by U.S. Const. Amend. I. ” America ns United Inc. v. Independent Sch. Dist. No. 622 , 179 N.W.2d 146, 15 5 (Minn. 1970). The district court did not separately analyze the state constitutional-19-

i s sue, but declared that because the district’s actions violated the federal constitution they also violated the state constitution. The issue was briefed on app eal, 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) (citin g Talley v. United States Postal Serv. , 720 F.2d 505, 508 (8th Cir. 1983)).
The Minnesota constitutional provisions preventin g the establishment of religion provide in relevant part that “nor shall any money be drawn from the treasury for the benefit of any reli gious 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 p articular Christian or other religious sect are promulgated or taught.” Minn

. Const. Art. XIII, § 2. The “fundamental concept” is “that the state may neithe r advance nor inhibit religion, which . . . defines permissible limits of legislation under sta te . . . law.” Americans United , 179 N.W.2d at 157. The “establishment clause s prohibitboth ‘benefits’ and ‘support’ to schools teaching distinctive religiou s doctrines.” Minnesota Fed’n of Teachers v. Mammenga , 500 N.W.2 d 136, 138 (Minn. Ct. App. 1993).

As shown above, no religious instruction takes place at the Vesta school, an d there is no expenditure of public funds in support of the teaching or promulgating o f religi ous beliefs. Accordingly, we conclude that no violation of the state constitution has occurred.

Conclusion

The inj unction is vacated, and the case is remanded to the district court with directions to dismiss the complaint.-20-

MURPHY, Circuit Judge, dissenting.

Becaus e I believe that the establishment by the public school district of thi s special school i n Vesta for children of the Brethren goes beyond what is permitted by the first amendment to the United States Constitution, I respectfully dissent.

The di strict entered into a contractual arrangement with the religious grou p 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 fo urteen miles away in Vesta. After the school in Vesta was closed for economic reasons, children of the Brethren eit her attended the regular public elementary school in Wabasso or were homeschool ed. Various accommodations were mad e at Wabasso to respect the religious beliefs of the Brethren, such as providin g
se parate tables for their children at lunch and excusing them from activities that involved technological devices. Their opposition tothe 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 an d contemporaneous newsp aper accounts indicate that the school was identified with the Brethren. One such news story stated in part:

The W abasso 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, andThe 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 requeste d exemptions from the standard curricula.
-21- video an d audio equipment. The reasoning behind this is that th e Brethren’s religious beli efs 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 el iminate the need to remove these children from the publi c school en vironment and teach them at home, the Brethren made th e proposal for a second school in Vesta last year.

Vi cki L. Gerdes, "Agreement is Reached on Proposed School in Vesta," Redwoo d Gazette , June 17, 1993.

On Octobe r 12, 1993, the Brethren, the school district, and Lloyd Paskewit z entered into a formal written agreement to operate a public elementary sch ool in Vesta. 8 Paskewitz had previously purchased the Vesta school building, and the building was

ma de available under the agreement for the district to use free of charge. Paskewit z and the Brethren also agreed to be responsibl e 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 applic able 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 record ings, computers and movies in the classrooms at the schoo l provided for herein.

Sections 8 and 9 indicate that the district envisioned a different set of academi c offerings at the Vesta school than at the public school in Wabasso. These sections-22-

reser ve to the district the right to provide special education, health, music, physica l education classes, and hot lunches at the Wabasso elementary school for any students at V esta who might want to participate in these normally available programs whic h would not be offered at Vesta because of the preferences of the Brethren.
The Brethren were actively involved in other w ays in the reopening of the Vesta school. Lloyd Paskewitz and several other members of t he 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 an d Wabasso. Although the official curricula adopted for t he Vesta school calls for at least

one half h our of computer lab each week and district officials claim compute r technolo gyis available at Vesta, computer training has never been offered. Othe r forms of technology to which the Brethren object, such as television, video players, and films, have not been use d 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 throug h sixth grade are not available at Vesta. Alth ough the official curricula at Vesta requires

one half hour of physical education each day “with specialists,” it is presented in a n unstructu redmanner by a parent volunteer who has no formal training in physica l ed ucation. At Wabasso it is taught in a structured manner by a physical educatio n teacher. The Vesta curricula officially requires at least an hour of musical instruction each week, but the reco rd does not indicate that music is actually offered. If a child at the Vesta school wants such standard curricula offerings, he or she m ust make a special request and then com

mute thirty miles in the middle of the school day to Wabasso for health, physical education, or music classes.The d istrict's decision to reopen the school by entering into a special writte n 9 agreement with a religious group could not have been motivated by statutory dutie s because the district approved the proposal from the Brethren to reopen the school i n 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 establis hment clause jurisprudence. See Board of Educ. of Kiryas Joel

Village Sch. Dist. v. Grumet , 114 S. Ct. 2481, 2487 (1994). The firstame ndment prohibits the state from favoring one religion over another or fro m fa voring 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 andattendance is involuntary. Edwards v. Aguillard , 482 U.S. 578, 583-84 (1987)

. While the Supreme Court "has long recognized that the government may (an d sometimes must) accommodate religious practices and that it may do so withou t violat ing the Establishment Clause,” Corporation of the Presiding Bishop of th e Ch urchof Jesus Christ of Latter Day Saints v. Amos , 483 U.S. 327, 334 (1987 ) (citations and q

uotations omitted), “accommodation is not a principle without limits,” and at some point

accommodation may devolve into an unlawful fostering of religion. Kirya s Joel , 114 S. Ct. at 2492; Amos , 483 U.S. at 334. An asserted motivation o f religious accommodation, even if justif ied by reference to a state statute, cannot shield governmental actions that otherwise viola te 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 th e 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 thei r preferences. The district has a greed to limit the use of technology not for pedagogical reasons, but to match the tenets of a single religi ous group. It also modified the health,

mu sic, 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-

he alth, physical education, music, or computer offerings must make a special request and/ or commute almost thirty miles during the school day to obtain such regula r educa tional services at Wabasso. It is not surprising that non-Brethren children have not enrolled at Vesta.

This cas e is similar to Kiryas Joel where the Supreme Court found that th e creation of a school district based on the religious affiliation of the c ommunity members

was unco nstitutional because it impermissibly singled out a particular religious group forsp ecial treatment. 114 S. Ct. at 2491. The village of Kiryas Joel had bee n established as an enclave for a partic ular sect of Hasidic Jews called the Satmars who, like the Brethren, eschewed much of the modern world and maintained a very isolated community. The Sa

tmar children were normally educated in private religious schools in the vill age, but these parochial schools did not provide services for handicappe d students a s required by state law. The New York legislature created a special school district that conformed to the boundaries of the villag e so that services for handicapped children c ould be provided in a way acceptable to the Satmars. Since the community of Kiryas Joel di d not receive its benefit "simply as one of many communities eligible for equal treatment under a general law," there w as no guarantee that the next religious community desiring its own school district would be given one and the arrangemen t was unconstitutional. Id.
Like the legislature in Kiryas Joel , the schooldistrict has singled out a particular religious group for benefits by setting up a schoo l the Brethren find acceptable in order to retain their participation in the public school system. There is no guarantee that the nextreligious group in the district (or elsewhere in the state) could obtain a specia l 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 Ves tathus violates the principle of neutrality and "crosses the line from permissibl e accommodation to impermissible establishment." Id.-25-

The distri ct argues it reopened the Vesta school to provide a better publi c edu cation by transporting fewer students from Vesta to Wabasso, reducing the clas s 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 befor e without a special signed agreement with the Brethren. The only reason the Brethren are involved is that the district presumab ly could not afford to reopen the Vesta school without the fin ancial assistance they provided directly in the agreement and indirectly by enrolling their children in the public school system. Even if the district wa s motivat ed 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. Se e 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 o f 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 particu lar religious viewpoint”); Pratt v. Independent Sch. Dist. No. 831 , 670 F.2d 771 (8 th Cir. 1982) (removing a film froma school curriculum based on religious objections violated the Establishmen t Clause).
An impermissible effect of governmental action is one th at endorses or promotes religion. County of Al legheny v. American Civil Liberties Union , 492 U.S. 573, 592- 601 (198 9); Texas Monthly, Inc. v. Bullock , 489 U.S. 1, 17 (1989). Whether th e primary effect is the impermissible endorsement of religion can be measured by what reasonable observers, inclu ding 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 wa s reopened and operated created a perception in the community that the school was really just f

or the children of the Brethren even though it was theoretically open to all students. The eff ect of establishing the school was thus an endorsement of the Brethren’s beliefs.-26-

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

. 1989), for the idea that state action which coincidentally mirrors certain religiou s 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, 38 0. 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 i n 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 sch ool in Vesta would never have been reopened

or operated in the current manner. Here there is far more than mere coincidenc e between the modifications of the Vesta school prog ram and the beliefs of the Brethren. The d istrict contends the Vesta school does not advance religion because it i s open to all stud ents and the same curricula available at Wabasso is available to Vesta students wi lling to bus to Wabasso for specific classes, but it is appropriate to loo k beyond the theory to examine the practical reality of the situation. See Kiryas Joel , 114 S. Ct. at 2488-89 (looking at effect of s tatute, not its form); Lee v. Weisman , 505 U.S. 577, 593, 595 (1992) ("subtle and indirect" pressure to participate in religiou s ceremony can be as real as overt compulsion; "law reac hes past formalism"); Edwards , 48 2 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 purpo se be sincere and not

a sh am.”). The contemporaneous newspaper accounts indicate the Vesta school i s considered by both Brethren and non-Brethren citizens to be a school for the Brethren chi ldren. The Vesta school creates the perception that the state has singled out th e Br ethrenfor special, preferential treatment by modifying the standard curricula to fi t theirreligi ous objections. Such treatment has the primary effect of creating a stat e
en dorsement

of the religious views of the Brethren, Edwards , 482 U.S. at 59 3 (“prefe rence” for particular religious beliefs constitutes an endorsement of religion) , and cannot be reconciled with the establishment clause cases which require the-27-

government to ad opt 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 pri mary criteria are helpful in considering whether state action has th e effect of advancing religion: whether it results in governme nt indoctrination of religious beliefs, whether it defines the aid recipients by reference to religion, and whether i t creates an exc essive 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 longe r presumed to be invalid per se, Agostini , 1997 WL 338583 , at *15, but state action may impermi ssibly indoctrinate religious beliefs when it provides direct aid to religiou s institutions or when it relieves sectarian institutions of costs they otherwise would bear. Id. a t *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 B rethren of costs they would have otherwise borne in homes chooling or establishing their own school. If this arrangement were upheld, i t would no longer be nece ssary for Catholic, Lutheran, Jewish, or Muslim communities to expend the resources required to establish separate parochial schools. They could also offera district free rent in a building they own in exchange for a teacher an d teaching materials and obtain a religiously ho mogeneous school with basic educational instructio n to their liking. This is the type of direct subsidization that has the effect of adva ncing religion. Agostini , 1997 WL 338583, at *17; Meek v. Pittenger , 421 U.S. 349, 365-66 (1975) (lending instructional mater ials and equipment to sectarian schools has the effect of advancing religion).

Aid provided to all eligible children on the basis of neutral, secular criteri a regardless of where they attend school is permissible because it does not defineAgostini states that previous cases have essentially collapsed the "effect" and 10 "entanglement" prongs of the Lemontest. Id. at *19.
-28- recipients o n the basis of religion and does not provide incentives for recipients t o 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 do es not provide for non-Brethren. The Brethren children can now obtain a publicly f inanced education in Vesta that conforms with their particular religious beliefs, while non-Brethren children, either with o r without the reopened Vesta school, must still commute to Wabasso if they want t o 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 th e Brethren for a special benefit.

St ate aid or action will also advance religion if it leads to an excessiv e entanglement between chur ch and state. The test for an impermissible entanglement

10 examines the character and purposes of the i nstitutions benefitted, the nature of the aid provid ed, and the resulting relationship between the government and the religiou s authority. Agostini , 19 97 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 religi ous group for mutual benefit, essentially forming a partnership between th e Brethre n and the district to open and operate the Vesta school with a curricul a acceptable to the religious group.
There are many com

peting values in our richly diverse society, and the religion cl auses of the first amendment protect the rights of all to practice the religion of their choic e and also prevent the government from preferential advancement of any on e religious group. Because the school district's establishment of the special school a t Vesta crosses over the line permitted under the Constitution, I dissent.-29-

A true copy.

Attest:

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