Response in Opposition To Motion To Dismiss Complaint
Response in Opposition To Motion To Dismiss Complaint
Plaintiffs,
Defendants.
/
PLAINTIFFS’ RESPONSE TO
respond to Defendants’ Motions to Dismiss (Docs. 19 and 20),1 and urge this
follows:
INTRODUCTION
Over the past decade, the Santa Rosa County School Board has cultivated
1
Defendant H. Frank Lay filed a motion to dismiss (Doc. 20) separate from the other
Defendants. (Doc. 19). In that motion, Lay adopted and incorporated the arguments of the
remaining Defendants’ motion to dismiss and supporting memorandum. Lay Mot. to
Dismiss, ¶4. Accordingly, this brief opposes both motions.
promoting religion in District schools. Acting under the authority and
exclude from this lawsuit the officially sponsored religious activities and
events at schools other than Pace High. First, Defendants argued that they
exist within the District. Plaintiffs’ response to that motion, filed separately,
challenge events at schools other than Pace High. But there is one major
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Plaintiffs allege that the School District has established a series of
Plaintiffs further allege that the religious activities and events occurring at
District schools other than at Pace High. Nor do Plaintiffs seek to assert
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Moreover, Defendants’ campaign to cordon off religious activities at
other District schools from those at Pace High reveals a disregard for, or
As the Court of Appeals for the Eleventh Circuit has put it, “the devil is in
the details.” Selman v. Cobb County Sch. Dist., 449 F.3d. 1320, 1322 (11th
Cir. 2006). Thus, even if Plaintiffs were to forgo their broader challenge to
at Pace High, the religious activities at other District schools would still be
relevant to Plaintiffs’ claim because they shed light on the purpose, history,
FACTS
Plaintiffs, who are students at Pace High School in the School District of
Santa Rosa County, Fla., filed this action in August 2008 against Defendants
School Board for Santa Rosa County, Superintendent John Rogers, and Pace
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Defendants have established policies or customs that authorize and
Complaint. See id., ¶¶ 23-30, 40-43, 45-52, 53-58. Plaintiffs also set forth
religious beliefs to which [Plaintiffs] do[ ] not subscribe and thereby fail to
respect [Plaintiffs’] and others’ religious choices and beliefs (id. ¶¶ 11, 16);
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policies or customs at Pace High, such as holding school events in places of
worship. Id. ¶ ¶ 11, 16. Plaintiffs ask the court to declare the District’s
LEGAL STANDARD
“A motion to dismiss does not test the merits of a case, but only requires
Apartments, Inc. v. Town of Jupiter, 529 F.3d 1027, 1037 (11th Cir. 2008)
Under Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), and its
Comm., 520 F.3d 1299, 1301-02 (11th Cir.2008). First, he must have
imminent. Lujan, 504 U.S. at 560. “At the pleading stage, general factual
allegations of injury resulting from the defendant’s conduct may suffice, for
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on a motion to dismiss we ‘presum[e] that general allegations embrace those
specific facts that are necessary to support the claim.’” Id. at 561 (quoting
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990)). Second, there
must be a causal connection between the plaintiff’s injury and the conduct
he challenges. Id. at 560. Third, the plaintiff must properly allege that his
ARGUMENT
Lujan’s three-prong test. Plaintiffs allege that they have suffered (and will
continue to suffer) injuries in fact, which are concrete and particularized and
actual or imminent. See Compl. (Doc. 1) ¶¶ 11, 16; Lujan, 504 U.S. at 560.
scope and limited to their conduct at Pace High, Plaintiffs’ alleged harm is
both the religious activities at Pace High and the District-wide policy
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between these injuries and the challenged District-wide policies and customs
Court. See Compl. (Doc. 1) ¶¶ 11, 16 72-80; Lujan, 504 U.S. at 560.
challenge events at Pace High School. Mot. to Dismiss (Doc. 19) at 10 n.3
(“For the purposes of this motion only, Defendants concede Does I and II
have standing to assert claims regarding past and future school sponsored
avoid them.” See Valley Forge Christian Coll. v. Americans United for
Separation of Church & State, Inc., 454 U.S. 464, 487 n.22 (1982).
in the form of religious coercion — that can only be redressed by this Court.
See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 313 (2000).
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But Plaintiffs’ injuries do not end there. The harm inflicted on Plaintiffs
arises not only from the actual implementation at Pace High of the District-
wide policies or customs, but from the existence of those broader policies or
customs in the first place because they were established with the purpose of
Court explained in Santa Fe, “the mere passage by the District of a policy
exercise or other religious views. Id. at 316 (“the simple enactment of this
classmates and others who adhere to the District’s chosen faith are “insiders,
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quotations/citations omitted); see also Lee v. Weisman, 505 U.S. 577, 604-
harm caused by the religiously coercive events at Pace High, as the Supreme
Court recognized in Santa Fe. See Santa Fe, 530 U.S. 313-14. Indeed,
that those attempts may fail.” Id. at 316 (holding that “even if no Santa Fe
High School Student were ever to offer a religious message [in accordance
with challenged policy], the October policy fails a facial challenge because
unconstitutional policies to Pace High students would not fully redress the
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particularized harm suffered by Plaintiffs; more is required. That the
would also cure the injury suffered by students at other schools surely does
sponsored religious events at Pace High and the District-wide policies and
showing at this point in the litigation to proceed with their case. See Lujan,
activities and events at Pace High, and in light of the searching factual
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schools other than Pace High are likely to be critical elements of Plaintiffs’
case.
policies or customs, Plaintiffs will be tasked with proving the existence and
parameters of these alleged policies or customs.2 Cf., e.g., Faustin, 423 F.3d
2
That the District’s policies or customs promoting religion are unwritten does
not insulate them from legal challenge. See Jones v. Salt Lake County, 503 F.3d 1147,
1159 n. 13 (10th Cir. 2007) (holding that “the constitutionality of a [challenged] prison
regulation, whether written, unwritten, publicized or unpublicized, is governed by” the
same case law); Faustin v. City & County of Denver, 423 F.3d 1192, 2296 n. 1 (10th Cir.
2005) (“Our precedent allows facial challenges to unwritten policies.”); Sentinal
Comm’ns Co. v. Watts, 936 F.2d 1189, 1197 (11th Cir. 1991) (acknowledging that facial
challenges to unwritten policies, though disfavored, are permissible); Steele v. Van Buren
Pub. Sch. Dist., 845 F.2d 1492, 1495 (8th Cir. 1988) (“Because informal practices of
governmental officials can be just as injurious as established policies, the custom or
policy need not have ‘received formal approval through . . . decisionmaking channels’ to
expose it to liability.”) (internal quotations/citation omitted); Adams v. Wellsburg, 2008
WL 2340374, at * 2 n. 4 (N.D. W. Va. June 6, 2008) (“Unwritten policies or procedures
can violate the First Amendment the same as written policies or procedures.”); see,e.g.,
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at 1196-97 (10th Cir. 2005) (noting that the “parties dispute the precise
offered no evidence to prove” that the scope of the policy was as broad as
plaintiffs’ reliance solely on testimony from one deposition “to support their
2959235, *6 (S.D. N.Y. Oct. 17, 2006) (ordering trial to determine whether
Unified Sch. Dist. No. 233, 895 F. Supp. 1463, 1471 (D. Kan. 1995) (where
alleged policy was unwritten and defendants denied its existence, plaintiff
surrounding other incidents); Ashby v. Isle of Wight County Sch. Bd., 354 F.
finding that actions like the one [challenged] . . . are so pervasive throughout
Rothergy v. Gillespie County, 128 S. Ct. 2578, 2583 (2008) (challenging unwritten policy
of denying appointed counsel to indigent defendants out on bond until entry of
indictment); Johnson v. California, 543 US 499, 502 (2005) (ruling on constitutionality
of unwritten policy of racially segregating new prisoners).
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policies or customs promoting religion, but it is also may be required to hold
the School Board liable for the violations that have occurred at Pace High
School. See Monell v. N.Y. City Dep’t of Social Servs., 436 U.S. 658, 690-
91 (1978) (holding that local governmental bodies may only be held liable
be vital to Plaintiffs’ ability to show that the policies or customs alleged here
actually exist and to defining the exact parameters of those policies and
customs. See e.g., Denno v. Sch. Bd, 218 F.3d 1267, 1278 (11th Cir. 2000)
Plaintiffs allege, it will be apparent that the District does indeed have a
policy or custom of promoting and encouraging prayer, and that the events at
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Pace High (e.g., graduation prayer) are authorized by, and carried out
because they shed light on the history and purpose of the events at Pace
High, and are part of the contextual background in which the Pace High
Clause analysis: “the devil is in the details.” Selman, 449 F.3d. at 1322; see
McCreary County v. ACLU of Kentucky, 545 U.S. 844, 867 (2005) (“under
1282, 1288 (11th Cir. 2003) (“Establishment Clause challenges are not
that failed to heed this axiom, the Eleventh Circuit explained: “Facts and
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context are crucial and they, of course, must be determined from the
varsity football games,” as well the context in which the policy arose. Santa
Fe, 530 U.S. at 315 (“We refuse to turn a blind eye to the context in which
this policy arise, and that context quells any doubt that this policy was
implemented with the purpose of endorsing school prayer”); see also Jager
v. Douglas County Sch. Dist., 862 F.2d 824, 831 (11th Cir. 1989) (taking into
Dist., 736 F.2d 646, 649 (11th Cir. 1984) (weighing evidence of “district’s
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The Santa Fe Court recognized that all of these factors affected students’
530 U.S. at 315-16. Here, a reasonable, objective Pace High student would
assess the purpose and effect of the religious activities advanced at Pace
these events.
revenue of the state or any political subdivision or agency thereof shall ever
be taken from the public treasury directly or indirectly in aid of any church,
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promoting religion, expended governmental revenue (in the form of
officials spent School Board revenue to print baccalaureate programs for the
(Doc. 1), Exs. 1-2, pp. 2-5, 10-21 (Central High and Jay High graduation
supplemental jurisdiction, and for the sake of judicial economy, should not
hesitate to do so. See Parker v. Scrap Metal Processors, Inc., 468 F.3d 733,
confers supplemental jurisdiction over all state claims which arise out of a
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A. Plaintiffs have Standing to Assert Their No Aid Claim
Defendants misstate the standard for standing in federal courts. Because
federal law governs the powers and jurisdiction of federal courts, it is federal
law, and not state law, that controls standing in this case. See Phillips
Petroleum Co. v. Shotts, 472 U.S. 797, 804 (1985) (“Standing to sue in any
Article III court is, of course, a federal question which does not depend [on
what would have been the party’s] standing in state court.”). Accordingly,
the same test set forth in Lujan and employed above regarding Plaintiffs’
concrete and particularized injury that is both actual and imminent: Because
programs and planning prayer at school functions, they have diverted these
Compl. (Doc. 1) ¶ 84. They have alleged a causal connection between this
injury and the Defendants’ conduct: If Defendants had not used this revenue
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have benefited from increased funding for their secular education. Id. And
revenues at schools other than Pace High because Plaintiffs are not enrolled
those schools. See Mot. to Dismiss (Doc. 19) at 10 n. 3; id. at 14-15. But
Defendants’ argument does not follow when you consider the nature of
there are less funds to devote to secular education at all District schools,
including Pace High. Thus, Plaintiffs are injured by the District’s policies
permitting such spending, whether the funds support events at Pace High or
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B. The Court Should Exercise Supplemental Jurisdiction Over
Plaintiffs’ State-Law Claim
Next, Defendants argue that the Court should decline to exercise
Constitution’s No-Aid Provision. Defs.’ Mot. to Dismiss (Doc. 19), pp. 15-
predominates over the state constitutional claim, they nevertheless urge the
Court to decline exercising jurisdiction over the state claim on two bases —
that the state claim raises a “novel or complex issue of State law” (see 28
(see 28 U.S.C. §1367(c)(4)). See Defs.’ Mot. to Dismiss (Doc. 19), pp. 15-
U.S.C. §1367(a); Palmer v. Hosp. Auth., 22 F.3d 1559, 1569 (11th Cir.
1994) (“Under the language of section 1367, whenever a federal court has
exercised unless section 1367(b) or (c) applies.”); see also United Mine
the maintenance of a single action rather than two cases with substantially
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similar evidence being presented twice. See L.A. Draper & Son v.
Wheelabrator-Frye, Inc., 735 F.2d 414 (11th Cir. 1984) (ruling that judicial
economy weighs in favor of one action when the “same witnesses would
proceeding”).
For the sake of judicial economy, the Court should exercise jurisdiction
over the pendent state claim. The No-Aid provision is neither novel nor
unique to Florida. Over thirty states have a similar no-aid provision in their
although a state may add a no-aid provision to its state establishment clause,
“the interest [the state] seeks to further is scarcely novel.” See id. at 722
(emphasis added).
Moreover, a body of state case law will guide this court in ruling on this
claim, as it has done for the Middle District of Florida, which has already
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302 F.Supp.2d 1328, 1351 (M.D. Fla. 2004); see also Nohrr v. Brevard
County Educ. Facilities Auth., 247 So. 2d 304 (Fla. 1971); Johnson v.
Presbyterian Homes of the Synod of Fla., Inc., 239 So. 2d 256 (Fla. 1970);
Koerner v. Borck, 100 So. 2d 398 (Fla. 1958); Bush v. Holmes, 886 So. 2d
340 (Fla. 1st DCA 2004); Rice v. State, 754 So. 2d 881, 883 (Fla. 5th DCA
2000); Silver Rose Entm’t, Inc. v. Clay County, 646 So. 2d 246, 251 (Fla. 1st
DCA 1994).
this claim. While the Defendants raise concerns about pending state actions
and intrusion into the operation of local government (see Mot. to Dismiss
(Doc. 19) at 22-23), there are no pending state actions between these parties
rights cases is to bring local government into line with the U.S. Constitution.
are simply inapplicable here. For the sake of judicial economy, the Court
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CONCLUSION
For all the foregoing reasons, this Court should deny Defendants
RESPECTFULLY SUBMITTED,
s/ Heather L. Weaver
Heather L. Weaver (D.C. Bar No.: Glenn M. Katon (Fla. Bar. No.
495582) 636894)
[email protected] American Civil Liberties Union
Daniel Mach (D.C. Bar No.: Found. of Florida
461652) Post Office Box 18245
[email protected] Tampa, FL 33679
ACLU Program on Freedom of [email protected]
Religion and Belief Tel: 813.254.0925
915 15th Street, NW Fax: 813.254.0926
Washington, DC 20005
Tel: 202.675.2330 Randall C. Marshall (Fla. Bar No.:
Fax: 202.546.0738 181765)
[email protected]
Benjamin James Stevenson (Fla. Maria Kayanan (Fla. Bar No.:
Bar. No. 598909) 305601)
American Civil Liberties Union [email protected]
Found. of Florida American Civil Liberties Union
Post Office Box 12723 Found. of Florida
Pensacola, FL 32591-2723 4500 Biscayne Blvd., Suite 340
[email protected] Miami, Florida 33137
Tel: 786.363.2738 Tel: 786.363.2707
Fax: 786.363.1985 Fax: 786.363.1108
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CERTIFICATE OF SERVICE
with the Clerk of the Court using the CM/ECF system, which will send
notification of such filing to all persons registered for this case, including the
Defendants’ counsel.
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