Grove v. Mead School District No. 354

EUGENE A. WRIGHT, Circuit Judge: At issue here is a school board’s refusal to remove a book from a sophomore English literature curriculum based on plaintiffs’ religious objections to the book. Plaintiffs brought this civil rights suit arguing that use of the book violates the religion clauses of the First Amendment. The district court granted summary judgment to defendants, finding no violation of the Constitution. We also must decide whether plaintiffs have standing to bring this suit, whether they were given adequate notice that the district court was considering a grant of summary judgment, and whether attorneys’ fees should have been awarded to the defendant intervenor. FACTS Cassie Grove was assigned The Learning Tree, by Gordon Parks, in her public school sophomore English literature class. She read part of it, found it offensive to her religious beliefs, and showed it to her mother. Her mother read the entire book and agreed. The Groves informed the teacher of their objections and Cassie was assigned another book. She was given permission to leave during classroom discussion of The Learning Tree, but chose to remain. Mrs. Grove (hereinafter Grove) filed a formal complaint concerning the book with the school district. An evaluation committee concluded that The Learning Tree “is an appropriate element of the sophomore English curriculum.” Grove and the Riddles, taxpayers, appealed to the Board of Directors of the school district. After a hearing, the Board denied the request to remove the book from the curriculum. Plaintiffs then brought this civil rights suit under 42 U.S.C. § 1983 against the school district. They contend that use of The Learning Tree violated the religion clauses of the First Amendment. They seek damages and injunctive relief. The Mead Education Association, bargaining representative for the district teachers, was allowed to intervene as a defendant. The defendants filed motions to dismiss in district court. After reading plaintiffs’ affidavits and the book and conducting a hearing, the judge granted summary judgment for the defendants and denied their requests for attorneys’ fees. ANALYSIS I. STANDING If the plaintiffs lack standing to bring this suit, the courts lack jurisdiction to consider it. Allen v. Wright, — U.S. —, 104 S.Ct. 3315, 3324-25, 82 L.Ed.2d 556 (1984). To satisfy constitutional standing requirements, a plaintiff must allege distinct personal injury that is fairly traceable to the challenged conduct and likely to be redressed by the requested relief. Id. 104 S.Ct. at 3325. Prudential limitations on the exercise of jurisdiction include a general prohibition on a litigant’s raising another’s rights. Id. at 3324-25. A. Free Exercise Claims Appellants have standing to challenge alleged violations of the free exercise clause of the First Amendment only if they claim infringement of their personal religious freedom. McGowan v. Maryland, 366 U.S. 420, 429, 81 S.Ct. 1101, 1107, 6 L.Ed.2d 393 (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, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). As a parent, Grove has a direct, personal right to direct Cassie’s religious training. Collins v. Chandler Unified School District, 644 F.2d 759, 764 n. 1 (9th Cir.), cert. denied, 454 U.S. 863, 102 S.Ct. 322, 70 L.Ed.2d 163 (1981). The Riddles present no claim of violation of a personal right of religious freedom. In the complaint, their only interest is iden [1532] tified as their taxpayer status. Appellants assert that the Riddles are the parents of school-age children in the district, but not that the children have attended public school there. The Riddles do not have standing to pursue their free exercise claims. B. Establishment Claims Appellants have standing to challenge alleged violations of the establishment clause of the First Amendment if they are directly affected by use of The Learning Tree in the English curriculum. Abington School District v. Schempp, 374 U.S. 203, 224 n. 9, 83 S.Ct. 1560, 1572 n. 9, 10 L.Ed.2d 844 (1963). Grove has standing as a parent whose right to direct the religious training of her child is allegedly affected. See Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15; Abington School District, 374 U.S. at 224 n. 9, 83 S.Ct. at 1572 n. 9. Whether the Riddles as taxpayers may bring an establishment clause challenge is not simply answered. The Supreme Court has made it clear that a federal taxpayer has no standing to maintain a purely religious objection to federal expenditures. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 478, 102 S.Ct. 752, 762, 70 L.Ed.2d 700 (1982). But cf. K. Davis, 4 Administrative Law Treatise § 24:25 (2d ed. 1983). Similarly, a state taxpayer has been held not to have standing to assert a purely religious objection to Bible reading. Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952). On the other hand, municipal taxpayers have traditionally been held to have standing to assert objections to municipal expenditures. See Massachusetts v. Mellon, 262 U.S. 447, 486, 43 S.Ct. 597, 600, 67 L.Ed. 1078 (1923). The First Circuit concluded, in a case subsequently reviewed on the merits by the Supreme Court, that Valley Forge did not change the rule that a municipal taxpayer could assert a religious objection to a city’s use of public resources, there the maintenance of a creche on city property. Donnelly v. Lynch, 691 F.2d 1029,1031 (1st Cir.1982), rev’d, — U.S. —, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). See also Conrad v. City and County of Denver, 656 P.2d 662, 669 (Colo. 1982); Fausto v. Diamond, 589 F.Supp. 451, 460 n. 5 (D.R.I. 1984). We need not resolve the question of the Riddles’ taxpayer standing here, however, because Grove has standing to pursue the establishment clause claims. We therefore may proceed to the merits. See, e.g., Watt v. Energy Action Educational Foundation, 454 U.S. 151,102 S.Ct. 205, 70 L.Ed.2d 309 (1981); Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Buckley v. Va-leo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). II. NOTICE OF CONSIDERATION OF MOTION FOR SUMMARY JUDGMENT Grove contends that the district judge provided insufficient notice of his intent to treat defendants’ pretrial motions as motions for summary judgment. She argues that she was denied an adequate opportunity to conduct discovery that would support her claims, in violation of due process. Whenever a district court looks beyond the pleadings in evaluating a Rule 12(b)(6) motion to dismiss, the motion must be treated as one for summary judgment under Rule 56. Fed.R.Civ.P. 12(b)(6); Portland Retail Druggists Association v. Kaiser Foundation Health Plan, 662 F.2d 641, 645 (9th Cir.1981). Before summary judgment may be entered, all parties must be given notice of the motion and an opportunity to respond. Portland Retail Druggists, 662 F.2d at 645. The opportunity to respond must include time for discovery necessary to develop facts justifying opposition to the motion. Id.; Fed.R.Civ.P. 56. In this circuit, notice is adequate if the party against whom judgment is entered is “fairly apprised” that the court will look beyond the pleadings, thereby transforming the motion to dismiss into [1533] a motion for summary judgment. Mayer v. Wedgewood, Neighborhood Coalition, 707 F.2d 1020, 1021 (9th Cir.1983) (per curiam) (citing Portland Retail Druggists, 662 F.2d at 645). When a party is represented by counsel, formal notice may be unnecessary. See Garaux v. Pulley, 739 F.2d 437, 439-40 (9th Cir.1984). Notice occurs when a party has reason to know that the court will consider matters outside the pleadings. See Townsend v. Columbia Operations, 667 F.2d 844, 849 (9th Cir.1982). A represented party who submits matters outside the pleadings to the judge and invites consideration of them has notice that the judge may use them to decide a motion originally noted as a motion to dismiss, requiring its transformation to a motion for summary judgment. Id.; see Garaux, 739 F.2d at 439. Grove submitted matters outside the pleadings. On August 18 the parties agreed that the judge should then read The Learning Tree. On August 30 Grove submitted copies of affidavits of her witnesses. At the September 13 hearing the judge relied on the book and Grove’s affidavits in deciding the motion. Grove had adequate notice that he would do so. III. FIRST AMENDMENT The grant of summary judgment is reviewable de novo. National Union Fire Insurance Co. v. Argonaut Insurance Co., 701 F.2d 95, 96 (9th Cir.1983). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Local school boards have broad discretion in the management of schools. Epperson v. Arkansas, 393 U.S. 97,104, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968). Judicial supervision of public education is limited to the resolution of conflicts that clearly involve constitutional values. Id.; Nicholson v. Board of Education, 682 F.2d 858, 863 (9th Cir.1982). Grove contends that the Board’s refusal to prohibit use of The Learning Tree in high school English courses violated the First Amendment religion clauses. Those clauses provide that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise there-cf.” U.S. Const, amend. I. A. Free Exercise of Religion The free exercise clause recognizes the right of every person to choose among types of religious training and observance, free of state- compulsion. Abington School District, 374 U.S. at 222, 83 S.Ct. at 1571. To establish a violation of that clause, a litigant must show that challenged state action has a coercive effect that operates against the litigant’s practice of his or her religion. Id. at 223, 83 S.Ct. at 1572. The state action at issue here is a school board policy of academic freedom and refusal to remove from the curriculum a book that offends Grove’s religious sensibilities. Three factors are relevant in our analysis: (1) the extent of the burden upon the exercise of religion, (2) the existence of a compelling state interest justifying that burden, and (3) the extent to which accommodation of the complainant would impede the state’s objectives. Callahan v. Woods, 736 F.2d 1269, 1273 (9th Cir.1984). The burden on Grove’s free exercise of religion was minimal. Cassie was assigned an alternate book as soon as she and Grove objected to The Learning Tree. Cassie was given permission to avoid classroom discussions of The Learning Tree. We agree with the district court’s finding that no coercion existed. The state interest in providing well-rounded public education would be critically impeded by accommodation of Grove’s wishes. If we are to eliminate everything that is objectionable to any of [the religious bodies existing in the United States] or inconsistent with any of their doctrines, we will leave public education in shreds. Florey v. Sioux Falls School District 49-5, 619 F.2d 1311, 1318 (8th Cir.), cert. denied, 449 U.S. 987, 101 S.Ct. 409, 66 L.Ed.2d 251 [1534] (1980) (quoting McCollum v. Board of Education, 333 U.S. 203, 235, 68 S.Ct. 461, 477, 92 L.Ed. 649 (1948) (Jackson, J., concurring)). In light of the absence of coercion and the critical threat to public education, we conclude that the school board has not violated the free exercise clause. Id. at 1318- B. Establishment of Religion The establishment clause of the First Amendment requires government neutrality with respect to religion. Abington School District, 374 U.S. at 215, 83 S.Ct. at 1567. It was intended to protect against “sponsorship, financial support, and active involvement of the sovereign in religious activity.” Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971) (quoting Walz v. Tax Commission, 397 U.S. 664, 668, 90 S.Ct. 1409, 1411, 25 L.Ed.2d 697 (1970)). To pass constitutional muster, challenged state action (1) must have a secular purpose, (2) must have a primary effect that neither advances nor inhibits religion, and (3) must not foster excessive state entanglement with religion. Lemon, 403 U.S. at 612-13, 91 S.Ct. at 2111-12. The option of nonparticipation does not save state action from an establishment clause challenge. Engel v. Vitale, 370 U.S. 421, 430, 82 S.Ct. 1261, 1266, 8 L.Ed.2d 601 (1962). Religious activities prohibited in public schools include daily readings from the Bible, Abington School District, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844, recitation of the Lord’s Prayer, id., posting the Ten Commandments in every classroom, Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980), beginning school assemblies with prayer, Collins, 644 F.2d 759, and teaching a Transcendental Meditation course that includes a ceremony involving offerings to a deity, Malnak v. Yogi, 592 F.2d 197 (3d Cir.1979). The Supreme Court has stated clearly that literary or historic study of the Bible is not a prohibited religious activity. Stone, 449 U.S. at 42, 101 S.Ct. at 194; Abington School District, 374 U.S. at 225, 83 S.Ct. at 1573. Not all mention of religion is prohibited in public schools. Appellants contend that use of The Learning Tree in an English literature class has a primary effect of inhibiting their religion, fundamentalist Christianity, and advancing the religion of secular humanism. The district court concluded that use of the book was not a religious activity and that it served a secular educational function. At issue here is not a ritual, but students reading a novel with autobiographic overtones used in the English literature class ... for purposes of exposing students to expectations and orientations of Black Americans. District Court Memorandum Decision at 4. The central theme of the novel is life, especially racism, from the perspective of a teenage boy in a working class black family. Comment on religion is a very minor portion of the book. Its primary effect is secular. Secular humanism may be a religion. See Rhode Island Federation of Teachers v. Norberg, 630 F.2d 850, 854 (1st Cir.1980). The Learning Tree, however, was included in a group of religiously neutral books in a review of English literature, as a comment on an American subculture. Its use does not constitute establishment of religion or anti-religion. IV. ATTORNEYS’ FEES Defendant-intervenor Mead Education Association moved for an award of attorneys’ fees below, under 42 U.S.C. § 1988. Its motion was denied. It cross-appeals that denial of fees and seeks an award of fees on appeal. A defendant who prevails in a § 1983 action is awarded attorneys fees “only where the action brought is found to be unreasonable, frivolous, meritless or vexatious.” Mayer v. Wedgewood Neighborhood Coalition, 707 F.2d 1020, 1021 (9th Cir.1983) (citing Christiansburg Gar1535 merit Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978)). Awards to intervenors should not be granted unless the intervenor plays a significant role in the litigation. See Seattle School District No. 1 v. State of Washington, 633 F.2d 1338,1349-50 (9th Cir.1980), aff’d, 458 U.S. 457, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982); see also Donnell v. United States, 682 F.2d 240, 245-49 (D.C.Cir.1982), cert. denied, 459 U.S. 1204, 103 S.Ct. 1190, 75 L.Ed.2d 436 (1983). A district court’s denial of fees is reviewed for abuse of discretion. Seattle School District No. 1, 633 F.2d at 1349. The Education Association did not play an exceptional role in this litigation. The district court’s denial of attorneys’ fees was not an abuse of discretion. Attorneys’ fees on appeal are denied also. AFFIRMED.