       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206           2    Rusk v. Crestview Local                     No. 02-3991
   ELECTRONIC CITATION: 2004 FED App. 0267P (6th Cir.)        School District, et al.
               File Name: 04a0267p.06
                                                                             _________________
UNITED STATES COURT OF APPEALS                                                    COUNSEL
              FOR THE SIXTH CIRCUIT                      ARGUED: Scott C. Peters, BRITTON, SMITH, PETERS &
                _________________                        KALAIL, Cleveland, Ohio, for Appellants. Scott T.
                                                         Greenwood, AMERICAN CIVIL LIBERTIES UNION OF
STEVE RUSK , Individually and X                          OHIO FOUNDATION, Cleveland, Ohio, for Appellee.
as the Father, Natural              -                    ON BRIEF: David A. Rose, David Kane Smith, BRITTON,
Guardian and Next Friend of         -                    SMITH, PETERS & KALAIL, Cleveland, Ohio, for
                                    -  No. 02-3991       Appellants. Jillian S. Davis, Raymond Vasvari, AMERICAN
Daniel and David Rusk,              -                    CIVIL LIBERTIES UNION OF OHIO FOUNDATION,
Minors,                              >                   Cleveland, Ohio, for Appellee. Nathan A. Adams IV,
                                    ,
             Plaintiff-Appellee, -                       CENTER FOR LAW AND RELIGIOUS FREEDOM,
                                    -                    Annandale, Virginia, Walter M. Weber, Jay A. Sekulow,
            v.                      -                    AMERICAN CENTER FOR LAW AND JUSTICE,
                                    -                    Washington, D.C., for Amici Curiae.
CRESTVIEW LOCAL SCHOOL              -                                        _________________
                                    -
DISTRICT, et al.,
                                    -                                            OPINION
       Defendants-Appellants. -
                                                                             _________________
                                   N
       Appeal from the United States District Court         COOK, Circuit Judge. Defendant-Appellant Crestview
        for the Northern District of Ohio at Toledo      Elementary School appeals the district court’s grant of partial
      No. 01-07239—James G. Carr, District Judge.        summary judgment in favor of Plaintiff-Appellee Steve Rusk
                                                         on Rusk’s action challenging Crestview’s practice of placing
               Argued: February 4, 2004                  flyers from community organizations advertising religious
                                                         activities in students’ school mailboxes. The district court,
         Decided and Filed: August 12, 2004              ruling that Crestview’s practice violated the Establishment
                                                         Clause of the First Amendment, issued a permanent
Before: BATCHELDER, GIBBONS, and COOK, Circuit           injunction barring Crestview from distributing flyers
                  Judges.                                advertising religious activities. We conclude that Crestview’s
                                                         practice does not violate the Establishment Clause, and
                                                         therefore we reverse the district court’s ruling and grant
                                                         summary judgment in favor of Crestview.



                           1
No. 02-3991                      Rusk v. Crestview Local        3    4    Rusk v. Crestview Local                     No. 02-3991
                                   School District, et al.                School District, et al.

                                I                                    “[a]dvertisements promoting a food drive sponsored by a
                                                                     local church or temple to benefit the poor of the community,
  As a service to community organizations, Crestview                 or even a youth sports league.” Slip Op. at 12. The court
occasionally distributes flyers advertising activities sponsored     based its conclusion that Crestview violated the
by such various groups as the American Red Cross, the 4-H            Establishment Clause solely on the possibility that
Club, sports leagues, and local churches. Some of the flyers         “impressionable” elementary school students would
describe religious activities; for example, one flyer advertises     misperceive the school’s distributing flyers advertising
“games, Bible stories, crafts and songs that celebrate God’s         religious activities as promoting religion.
love,” while another notes that a program is “Rated
Religious.”                                                            Crestview appeals the partial grant of Rusk’s summary
                                                                     judgment motion and the denial of its own motion, arguing
  Although the school does not have a written policy                 that (1) Crestview’s practice does not violate the
governing the distribution of flyers, according to Crestview’s       Establishment Clause, and (2) the Free Speech Clause
unwritten policy organizations first submit their flyers to the      requires Crestview to distribute flyers advertising religious
principal, who reviews them to ensure that (1) the sponsoring        activities.
organization is a non-profit group serving children in the
community, and (2) the flyer does not “advocate the benefits                                       II
of a particular religion” and was not “created for use as a
recruiting tool.” (Aff. of Principal.) If the principal approves                     A. The Establishment Clause
a flyer, copies (that the organization supplies) are given to
teachers, who place them in students’ mailboxes. Crestview              In Lemon v. Kurtzman, the Supreme Court set forth the
also uses these mailboxes for distributing official school           basic test for determining whether a state action violates the
papers. While teachers require students to remove the flyers         Establishment Clause. 403 U.S. 602, 612-13 (1971). Under
from the mailboxes, teachers do not discuss the flyers either        Lemon, the government has violated the Establishment Clause
informally or as part of formal classroom instruction.               if: (1) the purpose of the state action is to aid or promote
                                                                     religion; (2) the primary effect of the action is to aid or
  Rusk is a parent of two children attending Crestview. Rusk         promote religion; or (3) the result is excessive entanglement
contends that the school’s distribution of flyers advertising        with religion. Id. In this appeal, Rusk does not contend that
religious activities violates the Establishment Clause of the        Crestview’s practice is intended to promote religion or results
First Amendment. His complaint sought a declaratory                  in excessive entanglement with religion. Instead, Rusk argues
judgment and an injunction prohibiting Crestview from                that because the practice in effect endorses religion, it is
“engaging in acts of proselytization.” Both parties moved for        unconstitutional either under the Lemon test’s second element
summary judgment. The district court granted Rusk’s motion           or under other Supreme Court precedents.
in part, enjoining the school from “distributing flyers or
similar notices that advertise religious activities.” The district     Whether a particular state action endorses religion depends
court’s opinion specified that while Crestview cannot                upon how a reasonable observer would interpret the action.
“advertis[e] activities at which proselytization will occur,” the    See Capitol Square Review & Advisory Bd. v. Pinette, 515
injunction does not bar the school from distributing                 U.S. 753, 779-80 (1995) (O’Connor, J., concurring); see also
No. 02-3991                    Rusk v. Crestview Local       5    6      Rusk v. Crestview Local                  No. 02-3991
                                 School District, et al.                 School District, et al.

Zelman v. Simmons-Harris, 536 U.S. 639, 655 (2002) (“[N]o            Second, even if the Crestview students were the relevant
reasonable observer would think a neutral program of private      audience, their youth would not alter the outcome of our
choice . . . carries with it the imprimatur of government         reasonable observer analysis. The Supreme Court has, as
endorsement.”); Lynch v. Donnelly, 465 U.S. 668, 686 (1984)       Rusk points out, expressed general “heightened concerns”
(holding that a reasonable observer would interpret the           about the impressionability of elementary school students.
inclusion of a nativity scene in a public holiday display to be   E.g., Edwards v. Aguillard, 482 U.S. 578, 583-84 (1987)
acknowledging, rather than promoting, religion).                  (“The Court has been particularly vigilant in monitoring
                                                                  compliance with the Establishment Clause in elementary and
   We disagree on two grounds with Rusk’s contention that in      secondary schools.”); Widmar v. Vincent, 454 U.S. 263, 274
deciding whether a reasonable observer would perceive             n.14 (1981) (“University students are, of course, young
endorsement, this court should assess Crestview’s practice        adults. They are less impressionable than younger students
from the perspective of a Crestview student. First, because       and should be able to appreciate that the University’s policy
Crestview students cannot participate in any of the advertised    is one of neutrality toward religion.”). But despite such
activities without their parents’ permission, the relevant        concerns, the Court has never ruled that a school’s practice
observers are the parents. See Good News Club v. Milford          might amount to an impermissible endorsement of religion
Cent. Sch., 533 U.S. 98, 115 (2001) (“[T]o the extent we          because of the impressionability of the school’s young
consider whether the community would feel coercive pressure       students. The Court’s opinion in Milford suggests just the
to engage in the Club’s activities, the relevant community        opposite—that elementary school students’ possible
would be the parents, not the elementary school children. It      misperceptions of endorsement are an insufficient basis for
is the parents who choose whether their children will attend      finding an Establishment Clause violation:
the Good News Club meetings.” (citation omitted)). As such,
the parents must be deemed aware that Crestview distributes           We cannot operate, as Milford would have us do, under
flyers advertising both religious and nonreligious community          the assumption that any risk that small children would
events. Zelman, 536 U.S. at 655 (noting that “the reasonable          perceive endorsement should counsel in favor of
observer in the endorsement inquiry must be deemed aware              excluding the Club’s religious activity. We decline to
of the history and context underlying a challenged program”           employ Establishment Clause jurisprudence using a
(internal quotation marks omitted)). Given this awareness, no         modified heckler’s veto, in which a group’s religious
reasonable observer could conclude that by distributing the           activity can be proscribed on the basis of what the
flyers at issue here, Crestview is endorsing religion. See            youngest members of the audience might misperceive.
Lamb’s Chapel v. Center Moriches Union Free Sch. Dist.,
508 U.S. 384, 395 (1993) (rejecting anticipated Establishment     Milford Cent. Sch., 533 U.S. at 119.
Clause challenge to policy concerning use of school facilities
and ruling that because religious and secular organizations         Rusk’s citation to Lee v. Weisman does not convince us that
would have equal access, “there would have been no realistic      whether distributing flyers advertising religious activities
danger that the community would think that the [School]           constitutes endorsement of religion depends on how a
District was endorsing religion or any particular creed”).        reasonable elementary school student would perceive the
                                                                  practice. In Lee, the Supreme Court held that a public
                                                                  school’s practice of inviting local clergy to offer prayers at
No. 02-3991                     Rusk v. Crestview Local       7    8    Rusk v. Crestview Local                      No. 02-3991
                                  School District, et al.               School District, et al.

middle and high school graduation ceremonies violated the          control over any impressions it gives its students.” Bd. of
Establishment Clause. 505 U.S. 577, 599 (1992). The                Educ. of Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 251
Court’s opinion noted two controlling factors: (1) the             (1990) (plurality opinion); see also Hedges v. Wauconda
offering of a prayer at school graduation ceremonies               Cmty. Unit Sch. Dist. No. 118, 9 F.3d 1295, 1300 (7th Cir.
constituted a “state-sponsored religious activity”; and            1993) (“Schools may explain that they do not endorse speech
(2) although not required, attendance at the ceremonies was        by permitting it. If pupils do not comprehend so simple a
“in a fair and real sense obligatory.” Id. at 586. The Court       lesson, then one wonders whether [their] schools can teach
discussed at length the likely coercive effect of the prayer on    anything at all. Free speech, free exercise, and the ban on
students attending the ceremony, stating “there are heightened     establishment are quite compatible when the government
concerns with protecting freedom of conscience from subtle         remains neutral and educates the public about the reasons.”).
coercive pressure in the elementary and secondary public           Moreover, not even impressionable elementary school
schools,” and “prayer exercises in public schools carry a          students are likely to misperceive Crestview’s practice of
particular risk of indirect coercion.” Id. at 592. Adolescents,    distributing flyers from a variety of community organizations
the Court observed, are especially vulnerable to pressures to      as endorsing religion. In Milford, the Supreme Court noted
conform. Id. at 593. Because a reasonable high school              that such students should know the difference between
student could believe that the school was requiring her to         school-sponsored events and events requiring parental
pray, the Court declared the school’s practice                     permission. Milford Cent. Sch., 533 U.S. at 117-18 (“[E]ven
unconstitutional. Id. (“What matters is that, given our social     young children are aware of events for which their parents
conventions, a reasonable dissenter in this milieu could           must sign permission forms.”). And unlike the Good News
believe that the group exercise signified her own participation    Club meetings at issue in Milford, none of the activities
or approval of it.”).                                              advertised in the flyers Crestview distributes take place on
                                                                   school grounds—further diminishing the likelihood that
  The Lee Court considered the beliefs of a reasonable             students will mistake the advertised religious activities for
student observer not because of the possibility for                school-sponsored events.
misperceived endorsement but rather because of the
possibility for coercion. No risk of coercion exists in this          The Milford Court also reasoned that students would be just
case because the religious activities are not school-sponsored     as likely to infer hostility toward religion from the school’s
events. See Milford Cent. Sch., 533 U.S. at 116 (stating that      excluding the Good News Club as they would be to infer
“where the school facilities are being used for a nonschool        favoritism from the school’s including it. Id. at 118.
function and there is no government sponsorship of the             Similarly, if Crestview were to refuse to distribute flyers
Club’s activities, Lee is inapposite”); cf. Santa Fe Indep. Sch.   advertising religious activities while continuing to distribute
Dist. v. Doe, 530 U.S. 290, 302-06 (2000) (finding student-        flyers advertising other kinds of activities, students might
led prayers at school football games coercive); Lee, 505 U.S.      conclude that the school disapproves of religion. Id.; see also
at 596-99 (finding school-sponsored prayers at graduation          Mergens, 496 U.S. at 248 (“[I]f a State refused to let religious
ceremonies coercive).                                              groups use facilities open to others, then it would demonstrate
                                                                   not neutrality but hostility toward religion.”).
  Additionally, Rusk’s “fear of a mistaken inference of
endorsement” is unfounded “because the school itself has
No. 02-3991                     Rusk v. Crestview Local       9    10   Rusk v. Crestview Local                     No. 02-3991
                                  School District, et al.               School District, et al.

  Rusk implies that by distributing flyers advertising             is consistent with other court of appeals and district court
religious activities, Crestview sends a message of disfavor to     decisions involving elementary schools and the distribution
students who are “nonadherents.” Although Rusk quotes              of religious literature. In Daugherty v. Vanguard Charter
from several cases in which the Supreme Court stated that          School Academy, the district court for the Western District of
violations of the Establishment Clause could result in feelings    Michigan held that a public elementary school did not violate
of exclusion, the government programs at issue in those cases      the Establishment Clause when, as part of a general policy of
were unconstitutional not because they created the potential       distributing materials from various community groups, the
for misperceived favoritism of religion but because they           school distributed flyers advertising religious activities. 116
actually favored religion. In Texas Monthly, Inc. v. Bullock,      F. Supp. 2d 897, 911-12 (W.D. Mich. 2000). Recognizing the
for example, the Supreme Court held that a Texas statute           school’s neutrality toward religion, the district court
exempting religious publications from certain taxes violated       explained:
the Establishment Clause because it provided a benefit to
religious publications not also available to nonreligious            If defendants manipulated the facially neutral policy so
publications. 489 U.S. 1, 17-18 (1989). And in Edwards v.            as to give preferential access to religious literature or
Aguillard, the Court struck down a Louisiana statute requiring       certain religious literature, then an Establishment Clause
schools teaching evolution to also teach creationism because         violation might be made out. However, the present
the statute preferenced the teaching of a particular religious       record is devoid of any such evidence of favoritism or
subject. 482 U.S. at 597.                                            discrimination among community groups who wish to
                                                                     disseminate appropriate materials.
   In both Texas Monthly and Edwards, the government action
lacked a secular purpose; its intent was to promote religion.      Id. (citing Peck v. Upshur County Bd. of Educ., 155 F.3d 274,
In neither case was the Court concerned that some citizens’        284 (4th Cir. 1998)).
misperceptions would cause them to feel less accepted if they
did not share the views they mistakenly believed the                 Crestview considers the Daugherty opinion to squarely
government to be promoting. Instead, the Court’s concern           support its claims of neutrality and constitutionality. Rusk,
was that citizens who accurately understood the government         however, contends—and the district court agreed—that the
to be promoting religion would feel less accepted if they did      Daugherty court’s citing of Peck v. Upshur County Board of
not share the government’s religious views.              Here,     Education renders its decision questionable, because in Peck
Crestview’s practice—which is neutral toward religion—does         the Fourth Circuit Court of Appeals held that a school
not send a message of disfavor to students who do not attend       district’s policy allowing distribution of religious literature
the advertised religious activities. Cf. Capitol Square Review     was unconstitutional as applied in elementary schools. Slip
& Advisory Bd., 515 U.S. at 780 (O’Connor, J., concurring)         Op. at 9 (noting that “the Fourth Circuit did not intend the
(“A State has not made religion relevant to standing in the        reasoning cited by the Daugherty court to apply to elementary
political community simply because a particular viewer of          school students”).
[the challenged action] might feel uncomfortable.”).
                                                                     While we generally agree with the Peck court’s reasoning,
  Finally, our conclusion that Crestview does not endorse          we disagree with that court’s—and the district
religion by distributing flyers advertising religious activities   court’s—conclusion that the reasoning does not apply to
No. 02-3991                    Rusk v. Crestview Local      11    12   Rusk v. Crestview Local                     No. 02-3991
                                 School District, et al.               School District, et al.

elementary school students. In Peck, parents challenged a         religious (as well as nonreligious) activities as the school’s
school board’s decision allowing a community group to             endorsing religion.
distribute Bibles at tables in common areas of elementary,
middle, and high schools. 155 F.3d 274 (4th Cir. 1998). The                       B. The Free Speech Clause
school board defended its policy as neutral toward religion,
treating the Bible distributors the same as the 4-H Club or the      Crestview argues that the district court’s order prohibiting
Cub Scouts. The Fourth Circuit upheld the policy in the           the school from distributing flyers advertising “activities at
middle and high schools, finding that the schools had taken       which proselytization will occur” violates the Free Speech
sufficient steps—including allowing a variety of community        rights of religious organizations. Our holding that Crestview
groups to distribute literature—to guard against students         does not violate the Establishment Clause by distributing
mistaking the distribution of Bibles as the schools’              flyers advertising community events, whether religious or
endorsement of religion. Id. at 287-88. The court did not,        nonreligious, resolves the controversy before us. We need not
however, extend this finding to elementary schools, holding       decide whether the Free Speech Clause requires Crestview to
instead that allowing Bible distribution in these schools         distribute flyers advertising religious activities.
violated the Establishment Clause. Id. at 287-88 n.*.
                                                                                                III
   The Fourth Circuit decided Peck before Milford’s rejection
of the age and impressionability of elementary school               Accordingly, we reverse the district court’s grant of partial
students as grounds for ruling that allowing a religious club     summary judgment in favor of Rusk and remand with
to meet in school classrooms would violate the Establishment      instructions for entry of judgment in favor of Crestview.
Clause. Given Milford, we believe that Peck’s conclusions
regarding older students properly apply to elementary school
students as well. See Child Evangelism Fellowship of Md.,
Inc. v. Montgomery County Pub. Sch., 373 F.3d 589, 601-02
(4th Cir. 2004) (holding that a religious organization’s
participation in public elementary schools’ “take-home flyer
forum” likely would not violate the Establishment Clause and
noting that in Milford, “the Supreme Court rejected the
suggestion that, when [as here] the school was not actually
advancing religion, the impressionability of students would be
relevant to the Establishment Clause issue” (alteration in
original) (internal quotation marks omitted)).
   Accordingly, we conclude that the district court erred in
finding an Establishment Clause violation based solely on the
possibility that elementary school students might misperceive
Crestview’s practice of distributing flyers advertising
