Pucket v. RoundsFor more than a decade, Hot Springs (SD) School District policy was to provide public busing services to all primary and secondary students in the district, whether they attended public schools or private schools. The main beneficiaries of the policy were students attending Bethesda Lutheran School, located on Baltimore Avenue in Hot Springs. No new routes were added; Bethesda school students were picked up along existing routes.
However, in March 2002 the district's insurance company asked that transportation of Bethesda Lutheran students be dropped because the service exceeded the scope of the district's coverage. By August, an agreement had been reached under which Bethesda's insurance would cover its students, and parents of those students would sign a "hold harmless" agreement with the district.
But a separate issue remained: whether transporting Bethesda Lutheran students was legal under state law so the School District banned busing at the start of the 2002-03 school year. On October 31, 2002 the district asked the South Dakota Attorney General for clarification and a formal opinion on whether "a school district [is] authorized to allow private school students to be transported to the private school on a public school bus."
A week later, the Attorney General responded that the question was covered by an earlier opinion holding that transporting "sectarian" school students would violate the "Blaine Amendment" to South Dakota's constitution. Accordingly, on December 9, 2002 the school district ratified their existing ban by formal resolution, making it absolutely clear that the District interprets the Blaine Amendments as prohibiting busing of Bethesda Lutheran School students.
Blaine Amendments vary somewhat in specific language from state to state, but all of them prohibit the use of "public funds" to fund "sectarian" schools. They are named for James G. Blaine, who offered such an amendment to the U.S. Constitution when he was Speaker of the U.S. House of Representatives in 1875. Pushed along by a wave of anti-immigrant (and largely anti-Catholic) bigotry, it passed overwhelmingly in the House but fell short in the Senate. Afterwards, nativists shifted tactics and began pushing for adoption of such amendments to state constitutions, and were particularly successful in requiring them as a condition of admission to the Union. Such was the case with the Enabling Act that admitted South Dakota (as well as North Dakota, Montana and Washington) as states in 1889. [Much more information about Blaine Amendments can be found on The Becket Fund's special website devoted to the issue, www.blaineamendments.org.
The South Dakota Blaine Amendment language reads as follows:
"No appropriation of lands, money or other property or credits to aid any sectarian school shall ever be made by the state, or any county or municipality within the state, nor shall the state or any county or municipality within the state accept any grant, conveyance, gift or bequest of lands, money or other property to be used for sectarian purposes, and no sectarian instruction shall be allowed in any school or institution aided or supported by the state." [Article VIII, Section 16]
"No money or property of the state shall be given or appropriated for the benefit of any sectarian or religious society or institution." [Article VI, Section 3]
At the time, the term "sectarian" was a thinly-disguised code word for "Catholic," reflecting Protestant fears of large numbers of Catholic immigrants. The "common" (public) schools often provided lowest-common-denominator religious education, including daily readings from the King James Bible. It was not until much later that courts began to interpret "sectarian" as refering to all religious schools, including, in this case, Bethesda Lutheran School.
On April 23, 2003, The Becket Fund for Religious Liberty, together with Rapid City attorney Daniel F. Duffy, filed a lawsuit (DOC format) on behalf of three Bethesda Lutheran students (Luke and Benjamin Pucket, and Jamie Wilhelm) and their parents, charging that the school district's new policy enforces "South Dakota's infamous 'Blaine Amendment' — a product of Nineteenth Century nativism — which the State has consistently and authoritatively interpreted so that the Amendment's religion-based hostility remains in effect, even to this day." The policy "violates federal constitutional guarantees against religious discrimination," and "should be struck down."
"From virtually the date of its passage to the present, South Dakota's Blaine Amendment has been interpreted to treat religious adherents as second class citizens," and violates their rights under the First and Fourteenth Amendments to the U.S. Constitution, the complaint charges.
The case was assigned to U.S. District Judge Karen E. Schreier.
On May 27, 2003 the state moved to dismiss a claim against it for damages, and although The Becket Fund argued that it was not seeking damages from the state, but only from the school district and school board, on August 25, 2003 Judge Schreier issued an order (PDF format, 279K) finding that the complaint was "not clear" on the matter and granted the state motion.
More importantly, Judge Schreier denied a motion by the school district to dismiss the complaint on grounds that it was immune from suit under the Eleventh Amendment. "This precise issue, whether a school district is a state agency, was recently addressed by the federal district court in South Dakota in Wigg v. Sioux Falls School District 49. The Wigg court found that in South Dakota a school district is not an arm of the state, but rather is akin to a municipality and thus is not immune from suit. . . . This court adopts the reasoning of the Wigg court and finds that the District is not an arm of the state entitled to Eleventh Amendment immunity." Judge Schreiner also denied a motion to strike the "School Board" as a named defendant.
On January 17, 2006, the Becket Fund defeated a motion for summary judgment filed by the Hot Springs School District. The School District argued that Plaintiffs' declaratory, compensatory, and injunctive claims were moot because all the Plaintiffs' children that were originally denied busing had graduated from Bethesda Lutheran. However, in its opinion (PDF 93kb), the court found that the "District's policy of denying busing to Bethesda students increased the costs of exercising that right. This is sufficient injury-in-fact . . . to assert a claim" and that "the Pucket parents' claims are not moot because they have a younger child S.P. who currently attends Bethesda and is subject to School District's busing policy." Even though S. Pucket was not denied busing like the other Pucket children because she was not attending Bethesda Lutheran at the time, the court reasoned that the District's refusal to reinstate busing when given explicit permission by the State legislature casts doubt on its assurances that it would not deny busing to the last Pucket child attending Bethesda Lutheran once the lawsuit ended.
Of greater significance, the court granted the Becket Fund's motion for voluntary dismissal of the State Defendants because the "State has changed its position" regarding state busing policy towards sectarian school students, and "has stated under oath that it cannot and will not prohibit the busing of Bethesda students." The State of South Dakota has completely rejected Attorney General Opinion 92-04 which striclty interpreted the state Blaine Amendments to justify the District's discriminatory busing ban. Due to vigorous Becket Fund litigation, AG Opinion 92-04 is now a dead letter. The State's dramatic policy reversal constitutes a significant victory for all citizens of South Dakota, especially those that attend or have children attending religous schools seeking equal access to public benefits. The opinion's Westlaw ciation is Pucket v. Rounds, 2006 WL 120233 (D.S.D. January 17, 2006). In December, 2006, plaintiffs, with the aid of the Becket Fund, filed a motion for summary judgement. The motion says the policy the school followed (based on the Blaine Amendment) that denied the children busing for a year is in violation of federal constitutional guarantees against religious discrimination and should be struck down. A ruling is expected sometime in the new year. Resources & DocumentsArticles & News Items- "Becket Fund challenges South Dakota's Blaine Amendment," April 24, 2003
- "Group sues state over school busing (Associated Press, as published in the Rapid City Journal)," April 25, 2003
- "Suit claims inequity in busing, (Argus Leader)," April 25, 2003
- "South Dakota Reverses Policy, Now Allows Busing for Students Attending Religious Schools," January 20, 2006
- "Becket Fund Argues at 8th Circuit Court of Appeals over Discriminatory "Blaine Amendments"," March 13, 2008
|
