UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
GERALD H. FLEISCHFRESSER, ET AL., PLAINTIFFS-APPELLANTS, v. DIRECTORS
OF SCHOOL DISTRICT 200, A BODY POLITIC AND CORPORATE, DEFENDANT-APPELLEE.
from the United States District Court for the Northern District of Illinois, Eastern
Division. No. 91 C 7780. James B. Moran, Judge.
For Gerald H. Fleischfresser,
Lorraine A. Grabner, Marie Gentile, Denise Amsden, Seung Yang, Jin Yang, Cathy Anderson,
Brian Fippinger, Diana Fippinger, Julie Bass, Plaintiffs - Appellants: Robert V.
Gildo, Wheaton, Il.
For Directors OF School District 200, Body Politic and
Corporate, Defendants - Appellees: Lawrence J. Weiner, Anthony G. Scariano, Justino
D. Petrarca, John D. Dalton, Lisa A. Rapacz, Scariano, Kula, Ellch & Himes, Chicago,
Il. John M. Izzo, Scariano, Kula, Ellch & Himes, Chicago Heights, Il.
Bauer, Easterbrook, and Ripple, Circuit Judges.
The opinion of the court was
delivered by: Bauer
BAUER, Circuit Judge.
Parents of students enrolled
in grades Kindergarten through Five in Lowell Elementary School of School
District 200 in Wheaton, Illinois, brought this action to enjoin the directors of
the school district from continuing to use the Impressions Reading Series as the
main supplemental reading program for these grades. The parents claim the use of
this series violates the Establishment and Free Exercise Clauses of the First Amendment.
The directors filed a motion to dismiss the complaint, which the district court treated
as a motion for summary judgment, and the district court dismissed the action. We
1. Facts and Procedural History
The school district has included
the Impressions Reading Series in its curriculum since February 1988. The parents
claim that the Lowell Elementary School has used this series as a "supplemental
reading program" and will continue to "teach, instruct and otherwise educate
the students" with this series. The parents allege that the series "fosters
a religious belief in the existence of superior beings exercising power over human
beings by imposing rules of conduct, with the promise and threat of future rewards
and punishments," and focuses on supernatural beings including "wizards,
sorcerers, giants and unspecified creatures with supernatural powers." The parents
also claim that use of the series "indoctrinates children in values directly
opposed to their Christian beliefs by teaching tricks, despair, deceit, parental
disrespect and by denigrating Christian symbols and holidays." They cast these
allegations in the form of violations of the Establishment and Free Exercise Clauses
of the First Amendment.
The parents filed this action in the Circuit Court
of DuPage County, Illinois, and the directors removed it to the district court. The
district court granted the directors' first motion to dismiss and granted the parents
leave to file an amended complaint. Then, the directors moved the district court
to dismiss the amended complaint pursuant to Fed. R. Civ. P. 12(b)(6). Because the
parents had only appended excerpts of the series to their amended complaint, the
district court asked them to provide the complete series, which they did. Finally,
after reviewing the series, the district court dismissed the parents' action.
parents, not the students by their parents, have brought this suit. Therefore, as
a threshold matter, we must determine whether the parents have standing to raise
these claims; if the parents lack standing to bring this suit, we do not have jurisdiction
to consider it. Allen v. Wright, 468 U.S. 737, 82 L. Ed. 2d 556, 104 S. Ct. 3315
(1984); Harris v. City of Zion, 927 F.2d 1401 (7th Cir. 1991), cert. denied, 112
S. Ct. 3025, 120 L. Ed. 2d 890 (1992). To satisfy constitutional standing requirements,
the parents must allege "personal injury fairly traceable to the [directors']
challenged conduct and likely to be redressed by the requested relief." Allen,
468 U.S. at 751. In this case, we must be sure that the parents are raising rights
personal to them and not the rights of their children.
The parents have standing
to challenge alleged violations of the Establishment Clause of the First Amendment
if they are directly affected by the government action, here, the use of the series.
Courts have recognized that parents have standing as a result of their right to direct
the religious training of their children. See Wisconsin v. Yoder, 406 U.S. 205, 32
L. Ed. 2d 15, 92 S. Ct. 1526 (1972); Abington Sch. Dist. v. Schempp, 374 U.S. 203,
224 n.9, 10 L. Ed. 2d 844, 83 S. Ct. 1560 (1963); McCollum v. Board of Educ., 333
U.S. 203, 92 L. Ed. 649, 68 S. Ct. 461 (1948); Mozert v. Hawkins County Bd., 827
F.2d 1058 (6th Cir. 1987), cert. denied, 484 U.S. 1066, 98 L. Ed. 2d 993, 108 S.
Ct. 1029 (1988); Grove v. Mead Sch. Dist. No. 354, 753 F.2d 1528, 1532 (9th Cir.),
cert. denied, 474 U.S. 826, 106 S. Ct. 85, 88 L. Ed. 2d 70 (1985). Consistent with
these other cases, we hold that the parents have standing to raise their claim alleging
a violation of the Establishment Clause because the impermissible establishment of
religion might inhibit their right to direct the religious training of their children.
respect to the alleged violation of the Free Exercise Clause, the parents have standing
only if they claim infringement of their personal religious freedom. McGowan v. Maryland,
366 U.S. 420, 429, 6 L. Ed. 2d 393, 81 S. Ct. 1101 (1961). One aspect of the religious
freedom of parents is the right to control the religious upbringing and training
of their minor children. See Wisconsin v. Yoder, 406 U.S. 205, 32 L. Ed. 2d 15, 92
S. Ct. 1526 (1972); Grove, 753 F.2d at 1531. In this case, the parents have a direct,
personal right to direct their children's religious training. See Grove, 753 F.2d
at 1531; Collins v. Chandler Unified Sch. Dist., 644 F.2d 759, 764 n. 1 (9th Cir.),
cert. denied, 454 U.S. 863, 70 L. Ed. 2d 163, 102 S. Ct. 322 (1981). Therefore, the
parents have standing to bring this claim as well.
In their filings in the
district court, the parents claim that the series is used as a "supplemental
reading program" and that the series will continue to be used to "teach,
instruct and otherwise educate the students." In their brief, however, the parents
also allege that the students are required "to prepare and cast chants and spells
and to practice being witches." The directors contend that the parents fail
to allege at all that the students even read the passages in the series deemed offensive
by the parents. We think that, in reviewing the record and drawing all inferences
in favor of the parents, the students are occasionally assigned a reading from the
series, which may or may not be a story that might be considered offensive by the
parents, and even more occasionally, teachers lead a class discussion on an offensive
This case involves no genuine issue of any
material fact and the directors are entitled to judgment as a matter of law. Therefore,
the district court's decisions to convert the motion to dismiss to one for summary
judgment and the grant of summary judgment were proper. For these reasons and those
expressed in the body of this opinion, the decision of the district court is
Circuit Judge, concurring.
I join the judgment of the court in the comprehensive
and thoughtful opinion of Judge Bauer. I write separately to emphasize that our decision
today does not in any way dilute the protections of either of the religion clauses
for those individuals--and there are many in our society--who adhere to a creed that
some might characterize as nontraditional.
When the religion clauses were
drafted, we were, in terms of our religious practices, a nation of little white churches.
Although religious bigotry and discrimination were considerable, the range of religious
beliefs and practices found among the population certainly can be described as "traditional."
Today, we are a far more diverse people in terms of our religious beliefs and practices,
and it is important for us to keep in mind that the constitutional protections of
the religion clauses protect with equal vigor those who adhere to beliefs and practices
that do not fit comfortably into the traditional "little white church."
Indeed, it is usually adherents of these "non-mainstream" religions who
are in most need of the Amendment's protection.
As Judge Bauer cogently demonstrates,
these considerations are not in jeopardy in this case. On the record before us, it
is clear that we are not dealing with a religion, even when that term is defined
broadly to encompass nontraditional beliefs and practices. The parents here may have
good cause to question the professional judgments of the educators who decided to
use the literature at issue as an instructional tool, but it is not reasonable to
characterize the material, at least as it is presented on this record, as religious
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