STEVE RUSK, Individually v. Crestview Local School District

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

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

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

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

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Rusk implies that by distributing flyers advertising
religious activities, Crestview sends a message of disfavor to
students who are “nonadherents.” Although Rusk quotes
from several cases in which the Supreme Court stated that
violations of the Establishment Clause could result in feelings
of exclusion, the government programs at issue in those cases
were unconstitutional not because they created the potential
for misperceived favoritism of religion but because they
actually favored religion. In Texas Monthly, Inc. v. Bullock,
for example, the Supreme Court held that a Texas statute
exempting religious publications from certain taxes violated
the Establishment Clause because it provided a benefit to
religious publications not also available to nonreligious
publications. 489 U.S. 1, 17-18 (1989). And in Edwards v.
Aguillard, the Court struck down a Louisiana statute requiring
schools teaching evolution to also teach creationism because
the statute preferenced the teaching of a particular religious
subject. 482 U.S. at 597.
In both Texas Monthly and Edwards, the government action
lacked a secular purpose; its intent was to promote religion.
In neither case was the Court concerned that some citizens’
misperceptions would cause them to feel less accepted if they
did not share the views they mistakenly believed the
government to be promoting. Instead, the Court’s concern
was that citizens who accurately understood the government
to be promoting religion would feel less accepted if they did
not share the government’s religious views. Here,
Crestview’s practice—which is neutral toward religion—does
not send a message of disfavor to students who do not attend
the advertised religious activities. Cf. Capitol Square Review
& Advisory Bd., 515 U.S. at 780 (O’Connor, J., concurring)
(“A State has not made religion relevant to standing in the
political community simply because a particular viewer of
[the challenged action] might feel uncomfortable.”).
Finally, our conclusion that Crestview does not endorse
religion by distributing flyers advertising religious activities
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is consistent with other court of appeals and district court
decisions involving elementary schools and the distribution
of religious literature. In Daugherty v. Vanguard Charter
School Academy, the district court for the Western District of
Michigan held that a public elementary school did not violate
the Establishment Clause when, as part of a general policy of
distributing materials from various community groups, the
school distributed flyers advertising religious activities. 116
F. Supp. 2d 897, 911-12 (W.D. Mich. 2000). Recognizing the
school’s neutrality toward religion, the district court
explained:
If defendants manipulated the facially neutral policy so
as to give preferential access to religious literature or
certain religious literature, then an Establishment Clause
violation might be made out. However, the present
record is devoid of any such evidence of favoritism or
discrimination among community groups who wish to
disseminate appropriate materials.
Id. (citing Peck v. Upshur County Bd. of Educ., 155 F.3d 274,
284 (4th Cir. 1998)).
Crestview considers the Daugherty opinion to squarely
support its claims of neutrality and constitutionality. Rusk,
however, contends—and the district court agreed—that the
Daugherty court’s citing of Peck v. Upshur County Board of
Education renders its decision questionable, because in Peck
the Fourth Circuit Court of Appeals held that a school
district’s policy allowing distribution of religious literature
was unconstitutional as applied in elementary schools. Slip
Op. at 9 (noting that “the Fourth Circuit did not intend the
reasoning cited by the Daugherty court to apply to elementary
school students”).
While we generally agree with the Peck court’s reasoning,
we disagree with that court’s—and the district
court’s—conclusion that the reasoning does not apply to

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elementary school students. In Peck, parents challenged a
school board’s decision allowing a community group to
distribute Bibles at tables in common areas of elementary,
middle, and high schools. 155 F.3d 274 (4th Cir. 1998). The
school board defended its policy as neutral toward religion,
treating the Bible distributors the same as the 4-H Club or the
Cub Scouts. The Fourth Circuit upheld the policy in the
middle and high schools, finding that the schools had taken
sufficient steps—including allowing a variety of community
groups to distribute literature—to guard against students
mistaking the distribution of Bibles as the schools’
endorsement of religion. Id. at 287-88. The court did not,
however, extend this finding to elementary schools, holding
instead that allowing Bible distribution in these schools
violated the Establishment Clause. Id. at 287-88 n.*.
The Fourth Circuit decided Peck before Milford’s rejection
of the age and impressionability of elementary school
students as grounds for ruling that allowing a religious club
to meet in school classrooms would violate the Establishment
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
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School District, et al.
No. 02-3991
religious (as well as nonreligious) activities as the school’s
endorsing religion.
B. The Free Speech Clause
Crestview argues that the district court’s order prohibiting
the school from distributing flyers advertising “activities at
which proselytization will occur” violates the Free Speech
rights of religious organizations. Our holding that Crestview
does not violate the Establishment Clause by distributing
flyers advertising community events, whether religious or
nonreligious, resolves the controversy before us. We need not
decide whether the Free Speech Clause requires Crestview to
distribute flyers advertising religious activities.
III
Accordingly, we reverse the district court’s grant of partial
summary judgment in favor of Rusk and remand with
instructions for entry of judgment in favor of Crestview.

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