                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 08-1847
                                     ___________

Lonney Roark, et al.,                            *
                                                 *
        Plaintiffs - Appellees,                  *
                                                 *
        v.                                       *
                                                 *
South Iron R-1 School District, et al., *
                                                 *
        Defendants - Appellants,                 * Appeal from the United States
------------------------------------------------ * District Court for the
Foundation for Moral Law,                        * Eastern District of Missouri
                                                 *
        Amicus on Behalf of Appellants, *
                                                 *
American Jewish Congress; Americans *
United for Separation of Church and              *
State,                                           *
                                                 *
        Amici on Behalf of Appellees.            *
                                          ___________

                              Submitted: December 11, 2008
                                 Filed: July 16, 2009
                                  ___________

Before LOKEN, Chief Judge, BEAM, Circuit Judge, and KYLE,* District Judge.
                              ___________



      *
        The HONORABLE RICHARD H. KYLE, United States District Judge for the
District of Minnesota, sitting by designation.
LOKEN, Chief Judge.

       For some thirty years, school officials at South Iron Elementary School in Iron
County, Missouri, permitted representatives of Gideons International to distribute
Bibles to fifth grade students in the classroom, during the school day, in the presence
of a teacher or school administrator. In February 2006, parents of several elementary
school students commenced this action against the School District, members of the
Board of Education, and school officials (referred to collectively as “the District”),
alleging that this practice violated the Establishment Clause of the First Amendment.
Ten days before a hearing on plaintiffs’ motion for a preliminary injunction, the Board
passed a new policy on literature distribution prepared by counsel recently retained
to represent the District in the lawsuit.

       The district court granted a preliminary injunction enjoining the District from
“allowing distribution of Bibles to elementary school children on school property at
any time during the school day.” Doe v. S. Iron R-1 Sch. Dist., 453 F. Supp. 2d 1093,
1104 (E.D. Mo. 2006). We affirmed the preliminary injunction, declining to address
the constitutionality of the new policy. Doe v. S. Iron R-1 Sch. Dist., 498 F.3d 878,
882-84 (8th Cir. 2007). The case returned to the district court, where plaintiffs
amended their complaint to allege that the new policy violates the Establishment
Clause because it allows distribution of Bibles to elementary school students during
the school day. The district court granted plaintiffs summary judgment. Roark v. S.
Iron R-1 Sch. Dist., 540 F. Supp. 2d 1047, 1056-65 (E.D. Mo. 2008). The court
entered a permanent injunction identical to the preliminary injunction we upheld in
Doe, 498 F.3d at 884. It also granted a declaratory judgment “on plaintiffs’
complaint.” The District appeals, arguing that the new policy is constitutional and the
permanent injunction should be modified to allow Bible distribution under that policy.
Reviewing First Amendment rulings de novo, we affirm the permanent injunction but
reverse the declaratory judgment. United States v. Corum, 362 F.3d 489, 495 (8th Cir.
2004), cert. denied, 543 U.S. 1056 (2005) (standard of review).


                                         -2-
                                   I. Background

       In February 2005, District Superintendent Homer Lewis informed the Board
that several attorneys, including the District’s attorney and its insurer’s attorney, had
advised the District to discontinue its practice of allowing the Gideons to distribute
Bibles to fifth grade students. Lewis suggested the Board adopt an “open forum”
policy if it wished to allow distribution of Bibles. The Board voted “to pretend this
meeting never happened, and to continue to allow the Gideons to distribute Bibles as
we have done in the past.” At its March meeting, the Board voted “to delay the
Gideon’s distribution of Bibles” pending further advice from the District’s attorney.

       At a September Board meeting, Lewis read letters from the ACLU, the
District’s attorney, and the District’s insurer opining that the Bible distribution
practice was unconstitutional. A Gideons representative attended the meeting. When
asked if the prior practice could be modified to allow school children to distribute the
Bibles, he responded that Gideon Bibles may not be distributed unless Gideons are
present. The Board then passed a motion to allow the Gideons to distribute Bibles to
fifth graders. The District’s attorney urged the Board to rescind this action. The
Board declined to do so. Superintendent Lewis resigned. On October 4, 2005, after
meeting with two Board members, the elementary school principal accompanied two
Gideons to the fifth grade classrooms and observed as the Gideons passed out Bibles.
This lawsuit followed.

       The new policy passed on the eve of the preliminary injunction hearing is set
out in Appendix A to our opinion in Doe, 498 F.3d at 884-85.1 It provides that an
organization wishing to distribute “any printed material” must submit the material to


      1
        After cross-motions for summary judgment were briefed, the District advised
the district court that the Board had amended the new policy. Although potentially
significant in the future, the amendments do not affect our resolution of this appeal.

                                          -3-
the Superintendent for approval in advance. All requests “shall be approved” unless
the material is libelous, obscene, or unlawful; advertises products or services for sale;
endorses a candidate for public office; promotes alcohol, tobacco, drugs, or other
illegal activity; or is likely to cause substantial disruption at the school. If approved,
the material may be distributed either in front of the administrative offices or at a table
in a corner of the cafeteria “either before or after the school day, before or after classes
or during lunch time.” If a request is denied, the organization may appeal to the
Board, which “shall hold a hearing” at its next regular meeting.

       In granting plaintiffs summary judgment, the district court applied the test first
articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971), and concluded that the new
policy violates the Establishment Clause because its purpose is “the promotion of
Christianity” and its primary effect is “advancing religion by conveying a message of
endorsement to elementary school children.” 540 F. Supp. 2d at 1060, 1064.

                            II. The Permanent Injunction

        The district court permanently enjoined the District from “allowing distribution
of Bibles to elementary school children on school property at any time during the
school day.” Like the preliminary injunction, this decree does not address the
District’s new policy or prescribe how the District may distribute other materials and
literature to students. In the district court, the District argued that plaintiffs are not
entitled to a permanent injunction because adoption of the new policy made the
challenge to the past practice of Bible distribution moot. The district court properly
rejected that contention, 540 F. Supp. 2d at 1055-56, and the District does not raise
that issue on appeal. Nor does the District challenge the court's decision that the prior
practice of distributing Bibles in fifth grade classrooms should be permanently
enjoined as violative of the Establishment Clause, a ruling consistent with our
discussion of the merits of this issue in Doe, 498 F.3d at 882-83.



                                            -4-
       The District argues on appeal that the permanent injunction “impermissibly
mandates a content-based restriction on speech in the limited public forum created by
the content-neutral [new] policy,” a contention we rejected in Doe. Id. at 882-83.
Assuming without deciding that the issue is not foreclosed by Doe because of the
difference between permanent and preliminary injunctions, we again conclude the
contention is without merit.

       The First Amendment limits the government’s authority to impose content-
related restrictions on private speakers in a public forum. See Good News Club v.
Milford Cent. Sch., 533 U.S. 98, 106-07 (2001). “However, there is a crucial
difference between government speech endorsing religion, which the Establishment
Clause forbids, and private speech endorsing religion, which the Free Speech and Free
Exercise Clauses protect.” Wigg v. Sioux Falls Sch. Dist. 49-5, 382 F.3d 807, 813
(8th Cir. 2004) (quotation omitted). The permanent injunction is based on a judicial
determination that the District has for decades impermissibly endorsed a particular
religion by allowing the distribution of Bibles in fifth grade classrooms. The
injunction imposes a somewhat broader prohibition -- “distribution of Bibles to
elementary school children on school property at any time during the school day” --
but its scope is facially reasonable and is not challenged on appeal.2 The injunction
does not address, and therefore does not categorically prohibit, other ways in which
the District might, in a neutral manner, facilitate Bible distribution by private parties,
such as the distribution of flyers advertising off-campus or after-school distributions.
Cf. Child Evangelism Fellowship of N.J. Inc. v. Stafford Twp. Sch. Dist., 386 F.3d
514, 530-35 (3d Cir. 2004), and cases cited.

      The Supreme Court “ha[s] never held the mere creation of a public forum
shields the government entity from scrutiny under the Establishment Clause.” Santa


      2
       The District’s reply brief argues for the first time that the permanent injunction
is “unworkable.” We do not consider issues initially raised in a reply brief.

                                           -5-
Fe Ind. Sch. Dist. v. Doe, 530 U.S. 290, 303 n.13 (2000). The Board did not repeal
its prior actions allowing Bible distribution, and the new policy does not address the
distribution of religious materials. But the policy provides that requests “shall be
approved” unless the materials fall within limited exceptions that do not apply to
Bibles, creating a strong inference that any request by the Gideons to distribute Bibles
on school property during the school day will be approved. In these circumstances,
the new policy provides no defense to entry of the reasonable permanent injunction
at issue. The injunction is affirmed.3

                          III. The Declaratory Judgment

       The district court’s final Judgment provides that plaintiffs “shall have judgment
against defendants . . . on plaintiffs’ complaint.” The amended complaint requested
the following declaratory relief:

              A. Declaratory judgment finding that Defendants’ actions in
      facilitating the distribution of bibles in fifth grade classrooms during
      class time violate the Establishment Clause . . . .

             B. Declaratory judgment finding that Defendants’ actions in
      instituting a policy that will facilitate the distribution of Bibles to
      elementary school students during the school day violate[] the
      Establishment Clause . . . .



      3
       Entry of the permanent injunction does not forever preclude the District from
allowing distribution of Bibles at South Iron Elementary under all circumstances.
“[A] federal court’s regulatory control . . . [does] not extend beyond the time required
to remedy the effects of past constitutional violations.” Ass’n for Retarded Citizens
of N.D. v. Sinner, 942 F.2d 1235, 1239 (8th Cir. 1991), quoting Bd. of Educ. v.
Dowell, 498 U.S. 237, 248 (1991). Thus, the District may seek relief under Rule
60(b)(5) of the Federal Rules of Civil Procedure if future circumstances warrant a
request that the district court modify or terminate the injunction.

                                          -6-
The Declaratory Judgment Act, 28 U.S.C. § 2201, is “an enabling Act, which confers
a discretion on the courts rather than an absolute right upon the litigant.” Public Serv.
Comm’n of Utah v. Wycoff Co., 344 U.S. 237, 241 (1952). We review a district
court’s exercise of this remedial power for abuse of discretion. See Morrison v.
Mahaska Bottling Co., 39 F.3d 839, 846 (8th Cir. 1994). That review is relatively
rigorous. See Alsager v. Dist. Court, 518 F.2d 1160, 1163 (8th Cir. 1975) (“the
appellate court may substitute its judgment for that of the lower court.”).

       1. The declaratory judgment incorporating Paragraph A of the amended
complaint is superfluous. A major purpose of the Declaratory Judgment Act was “to
provide an alternative [remedy] to injunctions against state officials,” particularly in
situations where a more intrusive injunction would not be appropriate. Steffel v.
Thompson, 415 U.S. 452, 467 (1974) (quotation omitted, emphasis added). Here, the
operative remedy is a permanent injunction based on the district court’s determination
that the Establishment Clause has been violated. Like any other, this injunction may
be the subject of future judicial proceedings. Those proceedings should not be
burdened by a declaratory judgment whose presence would only add confusion and
complexity. This portion of the declaratory judgment is vacated.

      2. The declaratory judgment incorporating Paragraph B of the amended
complaint is the crux of the parties’ dispute on appeal. The first problem we
encounter is discerning what the Judgment “on plaintiffs’ complaint” declares, given
that Paragraph B of the amended complaint was so ambiguously worded. The
Judgment does not expressly declare the new policy unconstitutional, yet both parties
briefed the appeal as though the district court declared the new policy facially
unconstitutional. That view of the remedy is supported by the district court’s
Memorandum and Order, which stated that “Plaintiffs are entitled to both declaratory
and injunctive relief” because “the new policy violates the Establishment Clause.”
540 F. Supp. 2d at 1065. But the Judgment neither enjoined the District from
implementing the new policy nor declared that policy unconstitutional. Rather, it

                                          -7-
cross referenced an amended complaint seeking a declaration “that Defendants’
actions in instituting” the new policy violated the Establishment Clause. The precise
import of the declaratory judgment is hopelessly obscure. Given its impact on the
operations of a state governmental entity, this ambiguity alone requires reversal.

       The second problem we encounter is determining what remedial purpose this
declaratory judgment serves. A permanent injunction has been entered prohibiting the
specific practice determined to be unconstitutional, distribution of Bibles to
elementary school children. What more is needed? The district court’s Memorandum
and Order discussed this issue as though Bibles have been distributed under the new
policy. But the preliminary injunction was entered just a few days after the policy was
adopted. The text of the new policy and the statements of individual Board members
raise a strong inference that, absent an injunction, a request from the Gideons to
distribute Bibles would be approved. But the permanent injunction eliminates that
risk. What is left is a facial challenge to a broad policy that has never been
implemented (so far as the record reveals) and that is constitutionally permissible in
a host of other applications. A declaratory judgment prohibiting implementation of
that policy is both unnecessary and inappropriate.

       The district court invalidated the policy primarily on the ground that it fails the
first part of the Lemon test -- “the statute must have a secular legislative purpose.”
403 U.S. at 612. Though the Lemon test has had a “checkered career,” Van Orden v.
Perry, 545 U.S. 677, 700 (2005) (Breyer, J., concurring), we apply it to this type of
Establishment Clause challenge.4 The district court held that “the District’s purpose
in passing the new policy was the promotion of Christianity,” based upon the court’s


      4
       Corum, 362 F.3d at 495. “Taking our cue” from Van Orden, we did not apply
the Lemon test in ACLU Neb. Found. v. City of Plattsmouth, 419 F.3d 772, 778 n.8
(8th Cir. 2005) (en banc), a Ten Commandments display case like Van Orden. The
Lemon test may be better suited to cases challenging statutes and policies, rather than
specific government actions. But the issue does not affect our resolution of this case.

                                           -8-
review of the District’s historical practices, the School Board’s “behavior” in passing
the new policy only ten days before the preliminary injunction hearing, testimony by
individual Board members that there was nothing wrong with the prior practice, the
District’s failure to repeal prior motions allowing the Gideons to distribute Bibles, and
the absence of a formal statement of governmental purpose. Roark, 540 F. Supp. 2d
at 1060-62.

       While past practice and the views of individual Board members are relevant,
the district court wholly ignored the proper initial inquiry, whether the text of the new
policy evidences an unconstitutional purpose. See Santa Fe, 530 U.S. at 314-15.5 On
its face the new policy makes the South Iron school a limited public forum for the
distribution of a wide variety of literature. “[O]pening the schools for expressive
conduct to community and student groups serves the secular purpose of providing a
forum for an exchange of ideas and social intercourse.” Good News/Good Sports
Club v. Sch. Dist., 28 F.3d 1501, 1508 (8th Cir. 1994), cert. denied, 515 U.S. 1173
(1995). We know of no case holding that the creation of a limited public forum was
not a secular purpose satisfying this part of the Lemon test. See Widmar v. Vincent,
454 U.S. 263, 271 & n.10 (1981).

       Though the District did not issue a formal statement of purpose when enacting
the policy, former Superintendent Lewis and the District’s attorney had advised the
Board that creation of a limited public forum was necessary to comply with the
Establishment Clause. The policy itself applies to all persons or groups wishing to
distribute literature to students, not just to Bible distribution by the Gideons, unlike
the policy at issue in Santa Fe, which addressed only the issue of prayer at school
functions. In these circumstances, although it is the duty of courts to “distinguish a

      5
        The Supreme Court is “reluctan[t] to attribute unconstitutional motives to the
States, particularly when a plausible secular purpose for the state’s program may be
discerned from the face of the statute.” Mueller v. Allen, 463 U.S. 388, 394-95
(1983).

                                          -9-
sham secular purpose from a sincere one,” Santa Fe, 530 U.S. at 308 (quotation
omitted), a facial challenge to the entire policy prior to its implementation is an
inappropriate time to determine whether the District’s secular purpose was a sham,
particularly when the permanent injunction provides a complete remedy to the
Establishment Clause violation at issue.6 Presumably, if the District’s only purpose
was to facilitate Bible distribution that has now been enjoined, the new policy will be
voluntarily rescinded.

       Another reason we reject the district court’s Lemon analysis is that its emphasis
on past practice and the views of individual Board members would preclude the
District from ever creating a limited public forum in which religious materials may be
distributed in a constitutionally neutral manner. Past actions do not “forever taint any
effort [by a government entity] to deal with the subject matter.” McCreary County v.
ACLU, 545 U.S. 844, 874. The courts must be “particularly vigilant in monitoring
compliance with the Establishment Clause in elementary and secondary schools.”
Edwards v. Aguillard, 482 U.S. 578, 583-84 (1987). But school officials must remain
free to experiment in good faith with new policies to accommodate the tensions
between educational objectives, non-interference with private parties’ rights under the
Free Exercise Clause, and compliance with the school’s Establishment Clause
obligations. Cf. Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1038 (10th Cir.
2008); Peck v. Upshur County Bd. of Educ., 155 F.3d 274 (4th Cir. 1998). “The
Establishment Clause is properly understood to prohibit the use of the Bible and other
religious documents in public school education only when the purposes of the use is
to advance a particular religious belief.” Edwards, 482 U.S. at 608 (Powell, J.,
concurring).


      6
        In Santa Fe, the Court concluded that the text of the invocation policy
evidenced an unconstitutional purpose. 530 U.S. at 314-15. Here, by contrast, the
scope of the new policy is broad, and its text is silent regarding the distribution of
religious materials, giving no facial indication of a religious purpose. The difference
counsels against entertaining a facial challenge.

                                         -10-
        Facial Establishment Clause challenges to government policies are appropriate
if “mere passage . . . has the purpose and perception of government establishment of
religion,” like the prayer policy at issue in Santa Fe, 530 U.S. at 314. However, facial
challenges “run contrary to the fundamental principle of judicial restraint that courts
should neither anticipate a question of constitutional law in advance of the necessity
of deciding it nor formulate a rule of constitutional law broader than is required by the
precise facts to which it is to be applied.” Wash. State Grange v. Wash. State
Republican Party, 128 S. Ct. 1184, 1191 (2008) (quotations omitted). Here, the
parties and the district court lost sight of this well-established principle, which applies
with particular force to exercise of a court’s declaratory judgment discretion “where
governmental action is involved.” Eccles v. Peoples Bank of Lakewood Village, 333
U.S. 426, 431 (1948). As the permanent injunction has remedied the specific issue
litigated, entering an ambiguous declaratory judgment that seemingly invalidates a
facially neutral policy that has never been implemented was ill-advised.

      The judgment of the district court granting a permanent injunction is affirmed.
The judgment of the district court granting a declaratory judgment is reversed.

BEAM, Circuit Judge, concurring.

       I concur in the court's opinion affirming a permanent injunction. I write
separately to express my concern over the standing alone breadth of the injunction's
prohibitory language. It is my understanding that the stated restraint prohibits only
an earlier practice of the school district that permitted Gideons to personally distribute
(Christian) Bibles to fifth grade students inside their classroom during school hours.
I believe the injunction does not purport to address the merits, or lack thereof, of any
district policies concerning distribution of literature to students under other
circumstances. And, as noted by the court in footnote 3, ante at 6, any attempted
overreaching by any party or the district court may be immediately remedied through



                                           -11-
equitable relief under Federal Rule of Civil Procedure 60(b)(5). See Horne v. Flores,
Nos. 08-289, 08-294, 2009 WL 1789470, at *11 (U.S. June 25, 2009).

      Accordingly, I concur.

KYLE, District Judge, concurring.

       I concur in the court’s opinion and write separately only to express my view
that the record here amply supports – indeed, likely compels – the district court’s
conclusion that the School District’s new policy was passed for the purpose of
promoting Christianity and, hence, violated Lemon. (See slip. op. at 8-11.) Because
I believe the portion of the court’s opinion discussing the new policy under Lemon is
dicta, however, I join in the opinion.
                         ______________________________




                                        -12-
