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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
MARY E. ALLEN, et al., CASE NO. 3:10-cv-142 MCR/MD Plaintiffs, v. SCHOOL BOARD FOR SANTA ROSA COUNTY, FLORIDA, et al., Defendants. ________________________________/
DOE PLAINTIFFS’ OPPOSITION TO ALLEN PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Plaintiffs in the case of Minor I Doe and Minor II Doe v. School Board for Santa
Rosa County, Fla., No. 3:08-cv-361 (N.D. Fla.) (“Does”) oppose the Allen Plaintiffs’
Renewed Motion for Preliminary Injunction, Docs. 12, 66, to the extent that the Allen
plaintiffs seek relief that is inconsistent with the Consent Decree entered in the Doe
litigation.1 In addition to the arguments and authorities set forth below, pursuant to
Federal Rule of Civil Procedure 10(c), the Does adopt and incorporate by reference
herein their Motion to Dismiss, Doc. 64.
Introduction
The Does oppose the Allen plaintiffs’ attempt to dismantle, vacate, or enjoin
enforcement of the Consent Decree, which, as this Court has repeatedly held, is fully
consistent with the First Amendment. See Minor I Doe v. Sch. Bd. for Santa Rosa
1 The Does maintain that they have not been joined properly in this action, as the
Allen plaintiffs have not filed an amended complaint that names the Does as parties or alleges specific claims against them. See Doc. 64 at 5-7.
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County, 264 F.R.D. 670 (N.D. Fla. 2010);2 see also Consent Decree and Order, Doc. 94
at p. 2 (noting that “the Court’s role in adopting the parties’ Agreement is limited to
ensuring the Agreement comports with the U.S. Constitution,” and concluding that “the
entry of this Order comports with federal constitutional law”).
For the same reasons why the Allen Plaintiffs lack standing and fail to state
cognizable claims for relief inconsistent with the Consent Decree, see Does’ Mot. to
Dismiss (Doc. 64) at pp. 7-27, their motion for a preliminary injunction for relief
inconsistent with the Consent Decree must be denied. The Allen plaintiffs do not and
cannot meet the standard for obtaining injunctive relief, which requires them to show that
(1) they have a substantial likelihood of success on the merits; (2) they will suffer
irreparable injury unless an injunction issues; (3) the threatened injury to them outweighs
damage to the defendants; and (4) the injunction sought is not adverse to the public
interest. See KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1268 (11th Cir.
2006). “The burden of persuasion in all four of the requirements is at all times upon the
plaintiff[s].” United States v. Jefferson County, 720 F.2d 1511, 1519 (11th Cir. 1983).
Yet, the Allen Plaintiffs’ motion fails each of these prongs. Instead, like their Complaint,
it rests alternately on unnecessary self-imposed censorship, which is provoked by a
hyperbolic and unreasonable reading of the Consent Decree, and misguided claims to
engage, in their roles as School Officials, in activities and expression in which they have
no constitutional right to engage, and therefore, are properly restricted by the Consent
2 Virtually all of the Allen plaintiffs’ claims based on strained readings of the
Consent Decree’s have been analyzed thoroughly and rejected by this Court in connection with its denial of the motion to intervene filed by the Christian Educators Association International (“CEAI”) in the Doe litigation. Minor I Doe v. Sch. Bd. for Santa Rosa County, 264 F.R.D. 670 (N.D. Fla. 2010).
Case 3:10-cv-00142-MCR -MD Document 83 Filed 10/27/10 Page 2 of 24
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Decree as well as the Establishment Clause of the First Amendment. Among the four
groups of plaintiffs – employees, students, parents, and pastors – none has demonstrated a
substantial likelihood of success on the merits or an irreparable injury. Moreover, to the
extent that the Allen plaintiffs have suffered or will incur any injury at all, such
hypothetical injury is significantly outweighed by the harm that the School District, the
Does, and indeed, all students, parents, and community members, would endure as a
result of a preliminary injunction: the relief sought that is inconsistent with the Consent
Decree would rob the Does of the benefit of the bargain for which they contracted with
the School District and would prohibit the District from enforcing the Establishment
Clause’s clear mandate against public-school promotion of religion, returning the District
to its pre-Consent Decree days when such constitutional violations ran rampant.
I. The Employee-Plaintiffs Are Not Likely to Succeed on the Merits and Cannot Establish Irreparable Injury Necessitating Relief Inconsistent with the Consent Decree.
The employee-plaintiffs are School Officials,3 as defined by the Consent Decree,
who cannot establish a likelihood of success on the merits for the relief inconsistent with
the Consent Decree. They either (A) misread the Decree to prohibit speech or conduct
that is permissible, as illustrated by the fact that other employees have engaged in the
same activities without punishment or censure since the Consent Decree was entered, or
(B) have no constitutional right to do what they would like, i.e., use their positions as
School Officials in class or during School Events to promote their personal religious
views.
3 The capitalization of some terms, such as “School Events,” denotes terms
defined by the Consent Decree. The employee-plaintiffs in this litigation are named, and their claims are alleged in Doc. 1 at ¶¶ 58-71.
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A. Employee-Plaintiffs Seek Relief to Permit Conduct That the Consent Decree Does Not Prohibit. The employee-plaintiffs are not likely to succeed on the merits in their attempt to
vacate the Consent Decree. The Consent Decree enjoins School Officials from praying in
their official position and promoting their religious beliefs to students “during or in
conjunction with a School Event.” Doc. 1-1 (“Consent Decree”) at ¶¶5, 8. What the
Decree does not prohibit, it permits, as authorized by law. Id. at ¶19; see Doe, 264
F.R.D. at 683 (“Importantly, the court also notes that the consent decree’s silence
regarding personal-capacity conduct is punctuated by its final phrase stating, if the
consent decree ‘does not expressly prohibit conduct, then it is permitted as authorized by
law.’”). In short, both private, non-official religious expression and “personal, non-
officially sanctioned prayer [are] beyond the realm of what is contemplated by the terms
of the consent decree.” Id. Nevertheless, the employee-plaintiffs seek to enjoin
enforcement of the Consent Decree based on a litany of imagined prohibitions. These
claims of prohibition and expressive chill are based on a reading of the Decree that is,
simply put, both inaccurate and unreasonable.
The Decree does not prohibit the majority of the speech or conduct for which
plaintiff-employees fear retribution, and their claims of irreparable injury thus ring
hollow, especially in light of the evidence produced by the School Board in opposition to
the motion for preliminary injunction. See Docs. 28 through 28-16. For example,
employee-plaintiff Lay avers that, because of the Decree, she has refrained from wearing
jewelry in the shape of a cross.4 But the Decree permits Lay to wear religious jewelry,
4 See Doc. 12-22 at 3.
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and many School Board employees have done so after entry of the Decree without
suffering adverse consequences.5
Other employee-plaintiffs claim that the Decree chills other forms of religious
expression, such as keeping a personal Bible, inspirational spiritual calendar, or
inspirational religious quotations in their desks to read to themselves during non-
instructional times.6 But again, the Decree does not prohibit this speech or conduct: the
Allen Plaintiffs persist in conflating official-capacity displays of religious symbols or
quotations, which are proscribed by the Decree (and the Establishment Clause), with
placing personal religious items within their personal areas out of students’ view, which
is not prohibited. As the Court has explained previously, “it is objectively unreasonable”
for school employees “to claim injury . . . based on their subjective belief they cannot
have small personal religious items in their personal area or a drawer.” See Doe, 264
F.R.D. at 685. Not only does the Decree not prohibit such conduct; consistent with the
Decree, school employees routinely keep personal religious items outside the view of
students without being punished.7
Likewise, plaintiff-employees’ proclaimed fears of retribution for uttering
statements such as “God Bless You,” in response to a colleague’s sneeze, “Bless You,” or
“I’m praying for you,” are simply unfounded and do not support the Allen plaintiffs’
motion to vacate the Decree. See Docs. 1 at 11, 12, 18; Doc. 12 at 3, 5, and exhibits to
Plaintiff’s Motion for Preliminary Injunction. The Consent Decree prohibits School
5 See Doc. 1-1 at ¶8(e); Docs. 28-1 at 2; id. at 8; Doc. 28-2 at 1; id. at 7; id. at 9;
Doc. 28-3 at 2; id. at 6; id at 9. 6 See, e.g., Docs. 12-12 at 2; 12-13 at 2; 12-14 at 2; 12-17 at 2; 12-18 at 2-3; 12-
19 at 2-3; 12-21 at 2; 12-22 at 2-3. 7 See Docs. 28-1 at 2, 8; 28-2 at 1, 7, 9; 28-3 at 2, 9).
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Officials from “promot[ing] their personal religious beliefs to students”8 in a school
setting and promoting or participating in official-capacity Prayer as part of a School
Event.9 Thus, the Allen plaintiffs cannot reasonably believe that the Decree prohibits
them from saying to colleagues the phrases listed above or other similar language. As the
Doe Court explained:
The members’ interpretation of “Prayer” as encompassing all speech at school that touches on religion is strained beyond the import of the words used in the consent decree. The consent decree plainly does not ban all religious speech or discourse as prayer. It proscribes only school-sponsored prayer, defined first and foremost as “a communication with a deity.” (Doc. 94, at 2.) It then lists several types of prayer, which follow the proviso that prayer includes but is “not limited to” the listed examples. . . . The list of examples is therefore not meant to be exclusive or exhaustive but neither does it render the word “prayer” all-encompassing of all religious speech. There is a common aspect among the listed items; each is a form of calling upon or communicating with a deity, and the definition is thereby constrained to include only items similar in kind.
264 F.R.D. at 681-82 (emphasis added); see also id. at 685 (“it is objectively
unreasonable for the members to believe the consent decree requires them to censor and
exclude all reference to religion from personal conversation with colleagues or parents”).
Furthermore, current employees of the School Board aver that they and others regularly
engage in such extemporaneous expressions with each other without fear of retribution
and without any adverse consequences.10
Plaintiffs’ demands to vacate the Decree based on their unsubstantiated fears of
retribution for praying in their individual capacities with adult colleagues during non-
8 Consent Decree at ¶ 8. 9 Id. at ¶ 5. 10 See, e.g., Docs. 28-1 at 4; 28-2 at 1, 4-5; 28-3 at 2, 4, 6, 9.
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instructional time and outside the presence of students11 are also unfounded and do not
support their motion for a preliminary injunction. “Personal, non-officially sanctioned
prayer is beyond the realm of what is contemplated by the terms of the consent decree.”
Doe, 264 F.R.D. at 683. Thus, nothing in the Decree prohibits the employee-plaintiffs
from praying, either in solitude or with colleagues, outside the presence of students, or
discussing matters of faith or religion with faculty colleagues; they need not, for instance,
resort to doing so in closets, as they allege in the complaint (Doc. 1 at 11, 12, 18) or
motion for preliminary injunction (Doc. 12 at 3, 5, 6, 18, 20). The Allen plaintiffs’
beliefs otherwise are patently unreasonable. See Doe, 264 F.R.D. at 681 (“[A]ssertions of
fear and self-censorship are based on a misunderstanding and an isolated reading of
selected portions of the decree’s definitions of “Prayer,” “School Official,” and “School
Event,” taken out of context . . . .”). Their misinterpretations may not, therefore, serve as
the basis for a valid First Amendment claim. See id. at 680 (“The individual claiming a
chill on First Amendment speech rights must make an objective claim of chill through a
credible threat of penalty for exercising those rights.”) (citing Fla. Family Policy Council
v. Freeman, 561 F.3d 1246, 1253 (11th Cir. 2009), Am. Civil Liberties Union v. The Fla.
Bar, 999 F.2d 1486, 1492 n.13 (11th Cir. 1993)).
Indeed, even if the plaintiff-employees’ interpretations of the Consent Decree
were not so incongruous with its text and intent, the Allen plaintiffs still would not be
entitled to a preliminary injunction suspending enforcement of the Consent Decree, as
they cannot establish irreparable injury. Other School Officials are engaging in the same
11 See, e.g., Docs. 12-12 at 3; 12-13 at 3; 12-14 at 3; 12-16 at 3; 12-17 at 3; 12-18
at 3; 12-19 at 2; 12-20 at 3; 12-21 at 3; 12-22 at 3; 12-23 at 1.
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speech and conduct without fear or threat of punishment. For instance, eleven School
Officials have averred that, without fear of punishment or censorship, they engage in
discussions with their colleagues about religion and their churches or attend weekly
prayer or Bible study groups before school starts.12 Moreover, contrary to the employee-
plaintiffs’ claims that the Consent Decree compels them to censor student speech,
interferes with their interactions with parents, and forces them to prohibit parents from
praying over an injured player at an athletic competitions,13 the Decree does not reach
that conduct, and School Officials have repeatedly and consistently affirmed that no such
conduct or speech has been prohibited or punished. Accordingly, because the Allen
plaintiffs have not shown irreparable injury, their motion for preliminary injunctive relief
must be denied. See Siegel v. LePore, 234 F.3d 1363, 1176 (11th Cir. 2000) (holding
that, even if movant established likelihood of success on merits, failure to establish
irreparable injury “would, standing alone, make preliminary injunctive relief improper”).
B. Employee-Plaintiffs Seek to Enjoin Enforcement of the Consent Decree to Permit Conduct That Is Barred By the Establishment Clause.
Employee-plaintiffs also ask this Court to vacate the Consent Decree so that they can
participate in overtly unconstitutional activities. As illustrated by this Court’s decision in
Doe, these claims are unlikely to succeed because plaintiffs “have no arguable
constitutionally protected right to engage in such conduct.” See 264 F.R.D. at 681.
12 See, e.g., Docs. 28-1 at 4; 28-2 at 1, 4-5; 28-3 at 2, 4, 6, 9. 13 See, e.g., Docs. 12-12 at 3; 12-13 at 3; 12-14 at 3; 12-16 at 3; 12-17 at 3; 12-18
at 3; 12-19 at 2; 12-20 at 3; 12-21 at 3; 12-22 at 3; 12-23 at 1.
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1. Using the Bible as a Teaching Tool Plaintiff Browning wishes to “[u]se the Bible as a teaching tool within accepted
curricular standards, to teach, for example, early American history, the literature of
various periods and cultures, and the historical and factual context and circumstances of
such literature.” Doc. 12-18 at 3. Plaintiff Dawson would like to “[u]se the Bible as a
teaching tool within accepted curricular standards, to teach, for example, early American
history, Social Darwinism, imperialism or the literature of various periods and cultures.”
Doc. 12-16 at 3.
To the extent that these plaintiffs wish to cite to the Bible as “authority for
historical or scientific fact,” Consent Decree at ¶ 8(c), the Consent Decree properly
prohibits such a use. Teaching the Bible as a source of truth or fact in a public school
violates the Establishment Clause. See, e.g., Edwards v. Aguillard, 482 U.S. 578, 592 n.
13 (1987) (striking down state statute authorizing teachers to “refer to the Bible and other
religious texts to support the creation-science theory”); Doe v. Porter, 370 F. 3d 558, 563
(6th Cir. 2004) (holding school district’s Bible Education Ministry class unconstitutional
because “the lesson plans here evidence an intention to teach the Bible as literal truth, and
to draw from its narratives certain theological propositions”); Gibson v. Lee County Sch.
Bd., 1 F.Supp.2d 1426, 1434 (M.D. Fla. 1998) (granting preliminary injunction against
school district’s Bible history class); Herdahl v. Pontotoc County Sch. Dist., 933 F. Supp.
582, 596-97 (N.D. Miss. 1996) (holding that public-school course teaching “the Bible not
as a work of fiction, but as a historic record, i.e., as a record of what actually occurred in
the past,” was “inherently religious instruction, rather than objective, secular education”).
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Moreover, although the School Board, consistent with the Consent Decree and the
First Amendment, could decide to approve a curriculum in which the Bible is “presented
objectively as part of a secular program of education,” School Bd. of Abington Twp. v.
Schempp, 374 U.S. 203, 225 (1963), the employee-plaintiffs have no individual or
independent right to teach whatever they choose. The classroom is neither a public
forum where teachers can express whatever views they wish nor a creative laboratory
where they can use whatever methods of teaching they want. See Mayer v. Monroe
County Comty. Sch. Corp., 474 F.3d 477, 480 (7th Cir. 2006) (“[T]he first amendment
does not entitle primary and secondary teachers, when conducting the education of
captive audiences, to cover topics, or advocate viewpoints, that depart from the
curriculum adopted by the school system”). Even if a curriculum that used the Bible
were objectively secular, it would still constitute government speech subject to the
School Board’s approval. See Downs v. L.A. Unified Sch. Dist., 228 F.3d 1003, 1015-16
(9th Cir. 2000) (holding that curriculum taught in public schools is government speech);
Nampa Classical Acad. v. Goesling, --- F.Supp.2d ---, 2010 WL 1977434 at *8 (D. Idaho
May 17, 2010) (concluding that teachers do not have a free-speech right to choose which
materials and sources to use in the classroom because school administrators are the
“speakers” in the context of setting schools’ curricula).
2. Praying in the Presence of, or With Students, at School Events
Plaintiff-employees also seek to vacate the Decree so that they may pray in the
presence of students,14 bow their heads in connection with student prayers,15 and pray
14 See, e.g., Docs. 12-14 at 3; 12-18 at 3; 12-21 at 3; 12-23 at 2.
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with students during non-instructional time at School Events.16 Given that School
Officials serve as role models,17 however, and in light of the School Board’s admitted
history of Establishment Clause abuses in the district, the Decree properly prohibits
School Officials from engaging in these activities. See Doe, 264 F.R.D. at 686 (“Where,
as here, there is an admitted history of Establishment Clause abuses in the school district,
the consent decree’s remedial injunctive provisions preventing a school official from
participating in his or her official capacity in “Prayer” at a “School Event” does not
arguably violate the teacher’s First Amendment rights.”), citing Borden v. Sch. Dist., 523
F.3d 153, 166 (3d Cir. 2008) (upholding school district policy prohibiting faculty
participation in student-initiated prayer and rejecting argument that school official has
free speech right to participate in or recognize student prayers by bowing his head and
taking a knee, particularly in light of history of Establishment Clause violations).
Moreover, kindergarteners taught by plaintiffs Waller and Bozeman and fifth
graders taught by plaintiff Nolan,18 “as elementary school students, have a heightened
susceptibility to pressures of conformity and possible ostracism.” See S.D. v. St. John’s
County Sch. Dist., 632 F. Supp.2d 1085, 1096-97 (M.D. Fla. 2009) (enjoining school
district from directing or causing public-school students to rehearse or perform sectarian
15 See, e.g., Docs. 12-12 at 3; 12-14 at 3; 12-16 at 3; 12-18 at 3; 12-19 at 3; 12-
20 at 3; 12-22 at 3. 16 See, e.g., Docs. 12-16 at 3; 12-18 at 3. 17 See Doe, 264 F.R.D. at 682 (noting that the “language [of Consent Decree]
understandably recognizes the importance of School Officials as role models and a source of authority and discipline at school events”); see also id. at 678 (citing Superintendent’s testimony that “students view teachers in a supervisory role, even at extracurricular events, and, as such, teachers are expected to enforce the school’s code of conduct if necessary at any extracurricular event they attend”).
18 See Docs. 12-19 at 1; 12-21 at 1; Doc. 12-2- at 2.
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song that that overtly endorsed a specific religious viewpoint). Younger students are
more impressionable and, therefore, “are reliant upon th[eir] teachers to reinforce positive
social, cultural, and scholastic behaviors.” Id. at 1097. They are also “extremely
sensitive to signs of disapproval and disappointment from the same teachers and their
classmates. The slightest hint that they are somehow different from their peers can be
very troubling.” Id. (citing Abington, 374 U.S. 203, 289 (1963)).19
3. Using the District’s Website and Email System to Broadcast Religious Views
Plaintiff-employees Waller, Gough, and Lindsey seek to broadcast – either
through the school email system, or on the district’s teacher webpages – that they are
“religious person[s]” and “followers of Christ,” or to communicate that “God is in
control” or “God will take care of you.”20 However, when acting as School Board
employees, School Officials do not enjoy the full free-speech protections of the First
Amendment, and they are, therefore, not entitled to use the School Board’s email system
or website to promote their personal religious beliefs. See Gilder-Lucas v. Elmore
County Bd. of Educ., 186 Fed. Appx. 885 (11th Cir. 2006) (applying Garcetti v. Ceballos,
547 U.S. 410, 421 (2006) to conclude that a teacher’s speech was not protected by the
First Amendment because she spoke “pursuant to [her] official duties”; quoting Garcetti:
“We hold that when public employees make statements pursuant to their official duties,
19 According to the principal of one District middle school, for instance, a Jewish
child was so ridiculed last year for not standing up and joining in student-led prayer that the parents removed the child from the school for the remainder of the year. Doc. 29-1 at 6. The Principal advised the students that, while they certainly have a right to pray voluntarily, they may not do so in a substantially disruptive manner, and that no student could be harassed for not participating. Id.
20 See Docs. 12-12 at 3, 12-17 at 3, 12-21 at 3.
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the employees are not speaking as citizens for First Amendment purposes, and the
Constitution does not insulate their communications from employer discipline.”)).
Furthermore, religious views expressed through District-sponsored email or on the
District’s website are attributable to the School District for Establishment Clause
purposes. The webpages are hosted by the District and posted in connection with the
teachers’ official duties to serve the purpose of providing students with information
related to their classes, such as their teacher’s expectations, assignments, etc. And the
district retains ultimate control over their content. Thus, such religious expression would
send an impermissible message of endorsement in violation of the Establishment Clause.
See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 307, 308 (2000) (holding that prayer
at football games would be perceived “as stamped with [the] school’s seal of approval,”
in part, because “[t]he message is broadcast over the school's public address system,
which remains subject to the control of school officials”); see also Doe, 264 F.R.D. at
686 (“[A] school official has no right to violate the Establishment Clause or to use school
facilities for a private purpose absent permission from the school district. The school
district has a constitutional obligation to ensure that ‘subsidized teachers do not inculcate
religion.’”) (citing Lemon v. Kurtzman, 403 U.S. 602, 619 (1971)).
4. Attending Baccalaureate Services in an Official Capacity Plaintiffs Metty, Lindsey, Barnes, Dawson, Gough, Browning, and Lay ask this
Court to vacate the Consent Decree insofar as it prohibits them from “[p]articipat[ing] in
privately-sponsored, voluntary, religious baccalaureate services . . . including praying out
loud, being recognized for their contributions as teachers, sitting with fellow educators
and wearing school colors or other educator attire, such as their college graduation
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gowns.”21 But the Decree expressly permits school employees to participate in
baccalaureate services in their personal capacity. See Consent Decree at ¶6(d)
(participation in Religious Services) and ¶3(c) (Religious Services include
baccalaureates). The decree only prohibits plaintiff-employees from holding themselves
out as participating in religious services in their official capacity, which is entirely
consistent with the School Board’s right, and indeed legal obligation, to ensure that its
employees avoid sending the message that the State endorses the religious service. See
id. at ¶6(d) (“School Officials collectively shall not conform their seating or dress so as to
designate their participation or attendance at a Religious Service is by virtue of their
official positions.”) (emphasis added).
5. Participating in Religious Student Clubs
Several plaintiff-employees ask this Court to vacate the Consent Decree so that
they may actively participate in meetings of religious student clubs during non-
instructional time at school. Yet, where such club activities fall under the aegis of the
Equal Access Act, the participation by teachers or other school employees is expressly
prohibited. See 20 U.S.C. § 4071(c)(3) (school officials should be “present at religious
meetings only in a nonparticipatory capacity”). See also Consent Decree ¶4 (“No
provision in this Order is intended to supplant or alter the rights afforded student clubs by
the Equal Access Act. School Officials shall comply with the Equal Access Act.”)
(citation omitted). And, of course, proselytizing students or participating in prayer with
them during student club meetings or other activities also runs afoul of the Establishment
21 See Docs. 12-11 at 2-3; 12-12 at 3-4; 12-14 at 3; 12-16 at 3; 12-17 at 3-4; 12-
18 at 4; 12-22 at 3.
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Clause. See, e.g., Borden, 523 F.3d at 166 (holding that public-school football coach
could not bow head or take a knee during students’ voluntary pregame prayer); Doe v.
Duncanville Indep. Sch. Dist.,70 F.3d 402, 406 (5th Cir. 1995) (holding that public-
school basketball coach could not participate in student prayers at games and practices);
Steele v. Van Buren Pub. Sch. Dist., 845 F.2d 1492, 1496 (8th Cir. 1988) (public-school
band teacher could not lead band in prayer before practice or rehearsals).
C. The Consent Decree is Neither Overbroad Nor Vague.
As the School Board correctly argues, see Doc. 28 at 9-10, the Allen plaintiffs
have “merely incorporated” the vagueness arguments made by CEAI in its failed motion
to intervene in the Doe litigation failing to specify, other than by the strained and rote
averments made in the employee-plaintiffs’ declarations, exactly what they do not
understand about the Consent Decree. Indeed, there can be no serious confusion: as this
Court held in Doe, “[b]ecause the consent decree at issue here includes express
definitions to guide the discretion of the School Board in its interpretation, and those
definitions expressly preclude only certain official capacity conduct, any void-for-
vagueness challenge regarding personal speech rights would be futile in this instance[.]”
264 F.R.D. at 687 n. 31 (emphasis added).
The plaintiff-employees also claim that the Consent Decree is overbroad because
it “automatically” deems them to act in their official capacity as School Officials at
School Events, when they are present in their individual capacities. But the simple fact
is that, to the extent the Consent Decree regulates employee expression and conduct that
would be perceived by a reasonable student observer as an official endorsement of
religion, it is necessary, as a matter of law, to ensure compliance with the Establishment
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Clause and thus cannot be overbroad. Religious expression by a School Official at a
School Event would create just such a perception.
II. The Remaining Plaintiffs’ Claims for Injunctive Relief Fail.
In addition to plaintiff-employees, who are School Officials, various students,
parents, and clergy seek to enjoin enforcement of the Consent Decree. None of their
claims is viable, as the Does argued throughout their Motion to Dismiss, see Doc. 64.
A. Student-Plaintiffs Are Not Likely to Succeed on the Merits.
Student-plaintiffs H.H., Allen, Martin, and Riley have graduated and thus have no
standing to seek injunctive relief. 22 Student-plaintiff S.M.H also is not entitled to enjoin
enforcement of the Consent Decree, as she has no right to insist that the school establish a
student-elected chaplain for the school band.23 Although student-plaintiff H.J.H., now
presumably a ninth-grader, may have a right to recite Bible verses in the cafeteria (Doc.
12-3 at 2), this is not proscribed by the Consent Decree. Therefore, redressing any injury
alleged by H.J.H. would not require relief inconsistent with the Consent Decree.
B. Parent-Plaintiffs Are Not Likely To Succeed on the Merits.
The conduct in which parent-plaintiffs Moon, Beckham, and Harley seek to
engage is either properly prohibited by the Consent Decree, where they are serving as
volunteer School Officials, or is not reached at all by the Consent Decree where they are
acting in their individual capacities as parents communicating with their children’s
teachers. Accordingly, they are not likely to succeed on the merits of their claims and are
not entitled to preliminary injunctive relief inconsistent with the Consent Decree.
22 See Docs. 12-5; 12-6; 12-7; 28-8 at 4. 23 See Doc. 12-4 at 1-3.
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Plaintiff Moon formerly chaperoned the Pace High School band during various
trips and other School Events. If he were to resume chaperoning the band, and if a
student were to ask him a question about evolution, Plaintiff Moon would like to have a
discussion with the student that “likely will include the idea of a Creator.” Doc. 12-9 at
2-3. Similarly, Plaintiff Beckham would like to resume his chaperoning activities and,
like Plaintiff Moon, during the School Events he chaperones, espouse a variety of
opinions, including his religious views about capital punishment, abortion, assisted
suicide, infanticide, depression, anxiety, and the role of God in government and public
life. See Docs. 12-8; 12-9. Though these parents remain free as private citizens to
discuss all topics from a religious or secular point of view with their children and others
in their homes, churches, and elsewhere, the Decree properly prohibits them from
“express[ing] personal religious beliefs” or “encourag[ing] students to engage in religious
activity or attend a Religious Service” when they are acting as agents or representatives
of the School Board at School Events. Consent Decree at ¶8(b), (d), (e), (f). As
volunteer chaperones for official school activities, these parents’ actions are taken with
the authority and imprimatur of the school, and the parents must, accordingly, don the
cloak of religious neutrality required by the First Amendment during those school-
sponsored activities. See, e.g., Hazlewood School Dist. v. Kulmeier, 484 U.S. 260, 267
(1988).24
C. Pastor-Plaintiffs Are Not Entitled to Injunctive Relief.
The pastor-plaintiffs’ claims fall into three categories: (1) self-censorship and
chilling effects allegedly suffered by third parties; (2) “difficulties and problems”
24 See Docs. 12-8 at 3-4; 12-10 at 2-4.
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allegedly endured when planning past baccalaureate services in their churches without
the assistance of School Officials; and (3) fears of that those “difficulties” will recur.25
None of those claims is likely to succeed on the merits, and neither pastor has
demonstrated irreparable injury, as required to obtain a preliminary injunction.
1. The Pastor-Plaintiffs May Not Assert Claims on Behalf of Third-Party School District Employees.
Based on Milton High teacher Carol Jones’s refusal “to be involved” in the
planning of a baccalaureate service, Milton employee Sheila Thompson’s purported
hesitation to play the piano at the same service,26 and the alleged fears of other teachers
“to stand and be recognized” at the religious services, see Docs. 12-24 at 4; 12-25 at 2-3,
pastor-plaintiffs argue that the Consent Decree should be vacated. But the pastor-
plaintiffs lack standing to assert claims on behalf of these employees. A plaintiff may
only assert the rights and interests of third parties if: “(1) the plaintiff has suffered an
injury in fact so as to have a sufficient concrete interest in the case; (2) the plaintiff has a
close relationship to the party; and (3) the third party faces an obstacle to protecting her
own interests.” Harris v. Evans, 20 F.3d 1118, 1122 (11th Cir. 1994). The pastor-
25 Parent-plaintiffs Beckham and Harley also allege that the Consent Decree has
led to the deterioration of teacher-parent relationships because, in “routine discussions and communications,” the teachers do not respond in kind to their religious greetings or phrases. See Docs. 12-24; 12-25. The injury to the parent-plaintiffs in this regard is entirely unclear. The Consent Decree does not prohibit these parents from including religious content in their written or oral communications to teachers, nor does it prohibit parents from discussing religious matters with teachers in their individual capacities. To the extent that the parents claim they are entitled to receive religious communications from public-school teachers acting and speaking in their official capacities, no such right exists.
26 Though Associate Pastor Waters alleges that School Board members told Thompson not to play the piano at baccalaureate ceremony, see Doc. 12-24 at 3, Thompson did so without incident or rebuke from the District. See Doc. 28-2 at 6,
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plaintiffs have failed to meet this standard. For example, Jones and Thompson, as well as
any other District employee, are free to join as plaintiffs in this lawsuit, just like the
thirteen “employee-plaintiffs.” They have chosen not to do so, however, and plaintiffs
have not identified or provided evidence of any “obstacle” that would prevent these
employees from protecting their interests in this way.
2. The Pastor-Plaintiffs Lack standing to Assert the Claims Brought on Their Own Behalf.
Moreover, with regard to the claims brought on their own behalf, the pastor-
plaintiffs also have failed to establish standing. As an initial matter, the conduct
identified by the Allen plaintiffs is not barred by the Consent Decree, provided that the
school employees do not to undertake these activities in their official capacities. Indeed,
though the plaintiff-pastors allege that it is “extremely difficult if not impossible for
Plaintiff Pastors to organize and conduct warm, joyous, efficient and effective
baccalaureate services for Santa Rosa County graduating seniors” and that the “success of
their events will again be diminished” next year, Docs. 12-24; 12-25, the baccalaureate
services have been held, without incident, since the Consent Decree was entered. See
Doc. 28 at 4-5. Thus, the plaintiff-pastors have not demonstrated any injury sufficient to
support standing for their baccalaureate-related claims, let alone the irreparable injury
required to obtain a preliminary injunction. See Lujan v. Defenders of Wildlife, 504 U.S.
555, 561(1992) (“[T]he plaintiff must have suffered an ‘injury in fact’ - an invasion of a
legally-protected interest which is (a) concrete and particularized . . . and (b) actual or
imminent, not ‘conjectural’ or ‘hypothetical[.]’”) (internal citations/quotation marks
omitted).
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Furthermore, even if the Consent Decree did prohibit those activities, enjoining its
enforcement would not provide guaranteed redress of the pastor-plaintiffs’ alleged
injuries – difficulties and problems planning the baccalaureate service. Specifically, both
pastors seek to enjoin the Consent Decree on the ground that it hampers their churches’
ability to conduct baccalaureate services, even though the Consent Decree only governs
School Officials’ conduct in their official capacity. Doe, 264 F.R.D. at 681. Teachers and
other school employees may still decline to take part in the religious services or to engage
in certain conduct at the services for any number of reasons. Accordingly, because a
favorable decision for plaintiffs still would not remedy their alleged injury, they lack
standing to assert their claims. See Lujan, 504 U.S. at 561 (“[I]t must be likely, as
opposed to merely speculative, that the injury will be redressed by a favorable decision.”)
(internal quotation marks omitted).27
27 The pastors, who are not School Officials, do not allege, nor could they
establish, that the Consent Decree coerces them into violating their religious beliefs or giving up religious practices or substantially burdens those practices. See, e.g., Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 450 (1988) (government action - building road across federal land traditionally used for religious worship - that had no tendency to coerce individuals into acting contrary to their beliefs did not require a compelling justification); Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 144 (1987) (state’s refusal to grant unemployment compensation benefits to Seventh Day Adventist fired for refusing to work on Sabbath unlawfully burdened claimant’s free exercise of religion, as employee was “forced to choose between fidelity to religious belief and continued employment”). The pastors’ claims of potential inconvenience in planning future baccalaureates (the 2010 events have already been held, and claims as to those past events are moot) do not spring from the Consent Decree nor from any conduct of the Doe Plaintiffs, do not violate the First Amendment, and are not redressable by this Court by injunction or other relief.
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III. Vacating the Consent Decree is Contrary to the Public Interest.
Because the Allen plaintiffs have not established that they will suffer irreparable
injury without a preliminary injunction, they have not, of course, demonstrated that the
threatened injury outweighs whatever damage the proposed injunction may cause the
opposing party. See KH Outdoor, 458 F.3d at 1268; Jefferson County, 720 F.2d at 1519.
Here, any minimal injury evinced by the Allen plaintiffs surely does not outweigh the
harm that would be suffered by the Board and the Does and would also “‘upset the
delicate balance’ already achieved by the parties” that has allowed the school district to
return its focus on educating students. Cal. Dep’t of Toxic Substances Control v. Comm’l
Realty Projects, Inc., 309 F.3d 1113, 1119 (9th Cir. 2002). Quite the opposite – the
opposing parties would not only incur severe harm by being denied the benefit of their
long-negotiated bargain, but all students, parents, and the community would suffer, as the
Allen Plaintiffs seek, in many instances, to engage in the very unconstitutional conduct
that the Consent Decree was put in place to stop.
The Decree must be viewed in the context of the School District’s admitted,
longstanding policy and custom of permitting School Officials to engage in widespread
Establishment Clause violations by promoting, endorsing, or causing prayers or
devotionals during school-sponsored events; planning or promoting religious
baccalaureate services at schools; holding school-sponsored events at Religious Venues
when suitable district sites were available; and permitting School Officials to engage in
or sponsor prayer or otherwise promote their personal religious beliefs and proselytize to
students in class and during school-sponsored events and extracurricular activities.
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The parties painstakingly crafted the Consent Decree to address this broad range
of constitutional violations that had pervaded the School District for years, and this Court
has repeatedly ruled that the Decree is consistent with the First Amendment. Given the
School Board’s admitted long-standing history of First Amendment violations, this Court
“should be particularly cautious when contemplating relief that implicates public
interests.” Salazar v. Buono, 130 S. Ct. 1803, 1816 (2010).
Here, where the status quo – namely the continued enforcement of the Consent
Decree – prevents the District’s history of Establishment Clause violations from
repeating itself, enjoining enforcement of the Consent Decree would be contrary to the
public interest. Indeed, the District argues that “[i]f, as requested, this Court suspends
the provisions of the Consent Decree, the primary source for which the District currently
relies for its policies on matters within the School District, Defendants are frankly
concerned that Establishment Clause violations may occur within the District’s Schools.”
Doc. 28 at 20. The motion should be denied in its totality, as the relief sought is contrary
to law and against the public interest.
IV. The Consent Decree is Not Moot.
Plaintiffs’ claim that the Consent Decree should be vacated because they believe
the Does have graduated from high school and therefore have no standing to enforce it
should be dismissed because it is patently frivolous. Three plaintiffs in the instant case
raised this issue through CEAI in its litigation in the Doe case and the Court received
extensive briefing on the issue. Based upon the reasoning set forth in the Court’s May 6,
2010, Order in the CEAI litigation, the Does’ standing to enforce the terms of the
Consent Decree is beyond peradventure. See Doe, 264 F.R.D. 670.
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Conclusion.
Based on the foregoing arguments and authorities, the Doe Plaintiffs respectfully
request that this Court deny the Allen Plaintiffs’ Motion for Preliminary Injunction.
Electronically filed this 27th day of October, 2010.
Respectfully submitted,
Benjamin James Stevenson (Fla. Bar. No. 598909) American Civil Liberties Union Found. of Florida Post Office Box 12723 Pensacola, FL 32591-2723 [email protected] Tel: 786.363.2738 Fax: 786.363.1985 Glenn M. Katon (Fla. Bar. No. 636894) American Civil Liberties Union Found. of Florida Post Office Box 18245 Tampa, FL 33679 [email protected] Tel: 813.254.3314 Fax: 813.254.0926
s/ Maria Kayanan Maria Kayanan (Fla. Bar No.: 305601) [email protected] Randall C. Marshall (Fla. Bar No. 181765) [email protected] American Civil Liberties Union Found. of Florida 4500 Biscayne Blvd., Suite 340 Miami, Florida 33137 Tel: 786.363.2707 Fax: 786.363.1108 Daniel Mach (D.C. Bar No. 461652) [email protected] Heather L. Weaver (D.C. Bar No. 495582) [email protected] ACLU Program on Freedom of Religion and Belief 915 15th Street, NW Washington, DC 20005 Tel: 202.675.2330 Fax: 202.546.0738
COUNSEL FOR MINOR I DOE AND MINOR II DOE
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Certificate of Service I certify that the foregoing document is being filed electronically on October 27, 2010, using the Court’s ECF system, which automatically serves counsel of record through electronic mail. /s/ Maria Kayanan Maria Kayanan
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