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Smith v. Jefferson County school Board, No. 06-6533 (6th Cir. Nov. 24, 2008)

| Nov 23, 2008 | Daily Developments in EEO Law |

A school board must know that its playing with fire when it closes its alternative school — thus throwing the staff out of work — and turns the reins over to a sectarian organization devoted to “instilling in each child a personal faith in God, and the assurance of the saving grace of Jesus Christ.”  A 2-1 majority of the Sixth Circuit panel holds today that the staff has standing to sue for back pay and benefits under the Establishment Clause.

Smith v. Jefferson County school Board, No. 06-6533 (6th Cir. Nov. 24, 2008): The majority opinion summarizes the school board’s actions —

“After discussion of the budget on June 26, 2003, the Board voted to eliminate several programs, including the alternative school and the positions of the teachers and principal working there. It voted again to ‘officially delete’ the alternative school at its July 10, 2003 meeting. Joint Appendix (‘J.A.’) at 351 (July 10, 2003 Minutes of the Regular Meeting). In addition, the Board voted at the July meeting to contract with Kingswood to provide alternative-school services for public-school students for the 2003-2004 academic year. The contract between the Board and Kingswood specifically stated that Kingswood personnel would not be considered employees of the Board. In fact, Director of schools for the county, Douglas Moody (‘Moody’), was not authorized to hire or fire the Kingswood employees who provided the alternative-school services, nor did he supervise or evaluate those individuals. Counsel for the Board, Chuck Cagle (‘Cagle’), approved the contract.”

Kingswood school is a day and residential program that — while non-denominational — promotes salvation through Jesus.  The school Board avowed that the single motivating factor in its decision in contracting with the Kingswood day program was to save money.

The tenured staff of the former school were offered transfers that were deemed inferior, although one plaintiff eventually landed a job within the system. They also brought suit under federal and state law challenging the loss of their jobs as a violation of their procedural rights and of the Establishment Clause.  The district court dismissed the federal claims on standing grounds, holding “that the teachers did not meet the individual standing requirements necessary to bring an Establishment Clause claim because their alleged injuries were the direct result of the Board’s decision to allow a third party to run the alternative school, not the result of that third party being a ‘faith based organization.'”

The panel majority reverses.  The majority opinion states what appears to be obvious enough: “When the Board abolished the public alternative school during the summer of 2003, the teachers suffered an injury because they lost their positions at the school and were not transferred to other positions. Their injuries are directly linked to the Board’s decision to abolish the alternative school that it once operated in order to contract-out for the services of Kingswood’s staff.”  The majority also holds that the injuries are redressable by an award of back pay and benefits.  [In a belt-and-suspenders move, the panel majority holds that along with  direct individual standing under the First and Fourteenth Amendments, two of the plaintiffs also have taxpayer standing.]

That panel majority goes on to the merits and holds that the plaintiffs make out a claim for religious discrimination, despite that their personal religious beliefs were not at issue in the decision.  “Under Tenn. Code Ann. § 49-6-3402, the Board is required to establish at least one alternative school for grades seven  through twelve. Although the stated secular purpose of the Board-affording an education to alternative school students in the public-school system by sending them to the private Kingswood school in order to help resolve a budget crisis-arguably predominates over any inclination of the Board to advance religion, if the day program was infused with the same focus on Christianity as the residential program, a reasonable person could conclude that the Board was endorsing religion by delegating all of its duties to Kingswood.”  Moreover, the panel majority holds that “there is a genuine issue of material fact as to whether Kingswood separates its residential program from its day program such that the Christian religious focus of the residential program does not affect day students.” 

Finally, the panel affirms dismissal of the due process claims and affirms legislative immunity of the individual board members.

In dissent, Judge John Rogers holds that the plaintiffs make out the bare minima for Article III standing but fail under prudential standing, because their interest supposedly has nothing to do with the “zone of interests” protected by the First Amendment:  “The Establishment Clause protects citizens from injuries resulting from government endorsement of religion. In the present context, the persons at whom the constitutional protection is aimed are clearly teachers, students, or parents who are forced by the state to interact with a religion at their schools. Plaintiffs as employees in this case have not alleged such harm, or anything like it. They do not, for instance, claim that they were forced into contact with religion as a result of their positions being eliminated. Indeed, plaintiffs’ primary complaint is that they are no longer associated with the administration of the alternative program.” [Citations omitted.]

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