UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

February 2, 1994

GERALD H. FLEISCHFRESSER, ET AL., PLAINTIFFS-APPELLANTS, v. DIRECTORS OF SCHOOL DISTRICT 200, A BODY POLITIC AND CORPORATE, DEFENDANT-APPELLEE.

Appeal 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.

Before 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 affirm.

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.

The 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.

With 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 reading.

VI. Conclusion

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

AFFIRMED.


RIPPLE, 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 in nature.