Peterson

Concurring:

I concur in the result of Judge Noonan’s opinion. I do so because the record leaves no room for any other conclusion than that the school district chose to reassign Peterson on the basis of vague concerns voiced by *1361 teachers and parents that the principal entertained thoughts that he might home school his children in order to provide them a religious education. The record is also clear that he had not presented a home school plan for approval. He had not removed the children from school.

What the district court had to balance, then, was Peterson’s right to free exercise of his religion and to control the education of his children (subject to reasonable regulation), against the district’s vague concerns that Peterson might no longer be an effective leader because of his statements that he might home school his children and the possibility that home-schooling his children, if it occurred, might adversely affect his time on the job and his attention to his duties. The balance at the time the decision was made by the Board clearly was in favor of the principal’s right to suggest that he was considering home schooling to provide a religious education without any…

dissenting:

I dissent because I do not believe that summary judgment was appropriate on Peterson’s free exercise of religion claim. Since the district court presented this claim to the jury as one. that Peterson had won, and for their consideration in determining what amount of damages to award, I would reverse the judgment on the jury’s damage award. I therefore would not reach Peterson’s cross-appeal of the district court’s denial of his petition for attorney’s fees.

There is no basis for assuming that Peterson engaged in conduct protected by the Free Exercise Clause. 1 As I read the record, Peterson did not prove—and perhaps cannot prove—that his expressed desire to home school was “rooted in religious beliefs,” Wisconsin v. Yoder, 406 U.S. 205, 215-16, 218 , 92 S.Ct. 1526, 1533-34, 1535 , 32 L.Ed.2d 15 (1972), and that reassignment to a teacher’s position “burden[ed][his] practice of ... religion by pressuring him ... to commit an act forbidden by [his] religion or by preventing him ... from engaging in conduct or having a religious experience which the faith mandates.” Graham v. C.I.R., 822 F.2d 844 , 850-51 (9th Cir.1987), aff'd sub nom. Hernandez v. Commissioner, 490 U.S.…

The Minidoka County School District No. 331, a corporate and politic body of the State of Idaho, (the District) appeals the judgment in favor of Frank Peterson and his wife Priscilla in their action against the District. The Petersons cross-appeal the denial of attorney’s fees. We affirm the judgment of the district court in favor of the Petersons. We reverse the denial of attorney’s fees and remand for their award.

FACTS NOT IN DISPUTE

At the beginning of 1992 Frank Peterson was the principal of Paul Elementary School. He had a contract to serve as principal which was annually reviewed by the District on the basis of written evaluation of his performance being submitted by the Superintendent’s office to the Board of Trustees of the District (the Board). For fifteen years the evaluations had been favorable, and his contract as principal had been renewed. In January 1992 Peterson informed Robert L. Pavlock, one of two Assistant Superintendents, that he was contemplating home schooling for his children. That communication began the series of events culminating in this lawsuit.

The Petersons are the parents of twelve children. In January 1992 eight were between the ages of 7 and…