6th Circuit Denies Summary Judgment In Establishment Challenge To School Outsourcing

Tennessee Code 49-6-3402 requires local boards of education to create alternative schools for students in grades 7-12 who have been suspended of expelled. Tennessee's Jefferson County School Board, for budgetary reasons, eliminated its separate alternative school program and instead contracted with Kingswood Academy to provide alternative services for public school students. Kingswood was already running a residential program for troubled children that included Christian religious training. In Smith v. Jefferson County School Board of Commissioners, (6th Cir., Nov. 24, 2008), the former principal and two former teachers from Jefferson County's former separate program challenged this arrangement on federal and state Establishment Clause grounds, as well as on other grounds.

In a 2-1 decision, the U.S. 6th Circuit Court of Appeals held that all of the plaintiffs have individual standing to bring the federal Establishment Clause claim and two of the three have municipal taxpayer standing. On the merits, it refused to grant defendants summary judgment, concluding:

Although the stated secular purpose of the Board—affording an education to alternative school students in the public-school system by sending them to the private Kingswood School in order to help resolve a budget crisis—arguably predominates over any inclination of the Board to advance religion, if the day program was infused with the same focus on Christianity as the residential program, a reasonable person could conclude that the Board was endorsing religion by delegating all of its duties to Kingswood.

Judge Rogers dissenting argued that plaintiffs lack standing to pursue their Establishment Clause claim.