Plaintiffs,
V.
VANGUARD CHARTER SCHOOL ACADEMY,
a public school academy and
NATIONAL HERITAGE ACADEMIES, a
Michigan Corporation,
Defendants.
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PLAINTIFFS’ FIRST AMENDED COMPLAINT AND JURY DEMAND
Plaintiffs, pursuant to leave of Court, Megan Daugherty and Donald Sweeny and Jeffrey and Catherine M. Seaver, and Michelle D. Kintz, individually and as guardians of their minor children, by and through their attorneys, the American Civil Liberties Fund of Michigan, Kary Love Cooperating Attorney, Michael J. Steinberg Legal Director and Kary L. Moss Executive Director, and for their First Amended Complaint against defendants, Vanguard Charter School Academy and National Heritage Academies, state:
JURISDICTIONAL ALLEGATIONS
1. Plaintiff Megan Daugherty and Donald Sweeny are residents of Kent County, State of Michigan and their minor children attend 2nd, 3rd, 5th and 6th grade at Vanguard Charter School Academy.
2. Plaintiff Jeffrey A. and Catherine M. Seaver are residents of Ottawa County, State of Michigan, and their minor child attends first grade at Vanguard Charter School Academy.
3. Plaintiff Michelle D. Kintz is a resident of Kent County, State of Michigan, and her minor child attends Vanguard Charter School Academy in the 7th grade.
4. Defendant vanguard Charter School Academy (Vanguard) is an educational institution for kindergarten through seventh grade students, received its’ charter as a public school from Grand Valley State university and is a public school for the purposes of Michigan’s code for public school academies, MCL §308.401. vanguard is located in Kent County, State of Michigan.
5. National Heritage Academy is a Michigan corporation with its principal place of business in the County of Kent, State of Michigan. vanguard Charter Public School has contracted with National Heritage Academies (NHA) to manage the Vanguard Charter Public School and for the purposes of this complaint, NHA is acting under the color of state law.
6. The subject matter of jurisdiction of this court is based on the Civil Rights Act, 42 U.S.C. §1983, federal question jurisdiction under 28 U.S.C. §1331 and 28 U.S.C. §1343 and supplemental state jurisdiction under 28 U.S.C. §1367. Declaratory relief is authorized by 28 U.S.C §§2201 and 2202 and Rule 57 of the Federal Rules of Civil Procedure. Injunctive Relief is authorized by Federal Rule of Civil Procedure 65.
7. Venue in this court is proper since the underlying transactions and occurrences transpired in Counties of Kent and Ottawa, State of Michigan, and the plaintiffs and defendants are residents of the Counties of Kent and Ottawa, State of Michigan.
Count I
The Acts Defendants Vanguard and NHA Violate
the First Amendment and
Plaintiff's Civil Rights Under 42 U.S.C. §1983
8. Plaintiffs allege and incorporate paragraphs 1-7 above as if fully set forth herein
9. Plaintiffs are parents of minor children who attend Vanguard Charter School Academy, and their children are impressionable, regard their school teachers and school administrators and parents who volunteer to work in the school as role models and are susceptible to adult persuasion and to peer pressure.
10. As a public school, vanguard qualifies for and receives federal and state tax dollars designated for public school education purposes. Pursuant to the contract between vanguard and NHA, “[NHA] shall receive as compensation for its services ninety-eight percent (98%) of the Academy’s net PPE [per pupil expenditure) (after deducting the amount payable to GVSU by the Academy for the Academy’s charter) as its annual capitation fee,” Additionally, the contract provides in part that NHA “shall be responsible for all of the management, operation, administration, and education at the Academy” including but not limited to:
a. Implementation and administration of the Educational Program, including the selection and acquisition of instructional materials, equipment and supplies and the administration of any and all extra-curricular and co-curricular activities and programs;
b. Management of all personnel functions, including professional development for the School Administrator and all instructional personnel;
c. Control, maintenance and operation of the school building;
d. [NHA] shall have the sole responsibility and authority to determine staffing levels, and to select, evaluate, assign, discipline and transfer personnel....;
e. [NHA] shall own all copyright and other proprietary rights to all instructional materials, training materials, curriculum and lesson plans, and any other materials developed by [NHA] its employees, agents or subcontractors, or by any individual working for or supervised by [NHA], which is developed during working hours or during time for which the individual is being paid;
f. “The parties anticipate that virtually all of the staff will be employees of [NHA] ... .“
11. The plaintiffs have certain rights secured to them by the Constitution of the United States which are protected under 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331 and 1343, including the First Amendment to the United States Constitution which prohibits the establishment of a religion.
12. Defendants Vanguard and NHA have violated the establishment clause to the First Amendment of the United States Constitution and the plaintiffs’ civil rights, in the following, among other, respects:
a. They have allowed, permitted, and/or endorsed the use of school facilities for the purpose of conducting prayer during and after school hours.
b. They have allowed, permitted and otherwise endorsed, school teachers and school administrators’ participation in prayer on school property during school hours.
c. They have allowed, permitted and/or endorsed the distribution and/or dissemination of brochures, pamphlets, and information of religious nature on school property during school hours.
d. Vanguard School officials and school teachers have permitted and allowed school students, as young as first grade, to distribute religious material or information in classrooms during school hours.
e. Defendants have allowed the Lighthouse Baptist Church to use its school facility, which is supported and financed by federal and state tax dollars, for purposes of conducting worship service on Wednesday night and Sunday without charging any rent or other remuneration when other groups are charged rent or remuneration for use of school facilities.
f. In the stated school objectives for the 1997-1998 school year, Vanguard endorsed an affiliation with the Lighthouse Baptist Church as one of its objectives.
g. On October 23, 1998, vanguard and NHA canceled school and conducted a mandatory in-service requiring the attendance of all school teachers and administrators as a moral focus retreat which was conducted at the Ridge Point Community Church in Holland, Michigan. The following activities, among others, took place at this mandatory in-service for moral focus:
1. Christian music was performed;
2. Prayer was conducted;
3. A Baptist minister made a presentation on moral focus and moral values during which presentation he made numerous references to God, Jesus, and biblical scripture, including the following statement: “Now folks we are shaping precious lives which is first of all made in the image of God; they are made in the image of God and are loved by Christ as we are.”
“We must commit ourselves to freeing them to consider moral absolutes, all ten of them and all of which come from God. All joy, all love comes from God. And therefore all human longing is a longing for God.”
h. Vanguard or NHA school teachers were instructed to incorporate ideas from the moral focus retreat directly into their moral focus plans to be implemented in the classroom.
i. Defendants have allowed, permitted or acquiesced in the teaching that “creationism” is an accepted scientific theory in science classes or at other times that students are required to be present.
13. Defendants’ violations of the establishment clause of the First Amendment also constitute violations of plaintiffs’ civil rights under 41 U.S.C. §1983.
14. As a direct and proximate cause of the Defendants’ actions, plaintiffs have suffered embarrassment, humiliation, frustration and mental anguish.
COUNT II
The Acts Defendants Vanguard and NHA
Violate The Michigan State Constitution
15. Plaintiffs allege and incorporate paragraphs 1-14 above as if fully set forth herein.
16. The State of Michigan’s Constitution of 1963, Article 1, Section 4, prohibits the establishment of a religion or the use of tax dollars to support any religious education.
17. Defendants Vanguard's and NHA’s acts as described in paragraph 12a-i, violate Article 1, Section 4, of the Michigan Constitution of 1963.
18. As a direct and proximate cause of Defendants’ actions, plaintiffs suffered embarrassment, humiliation, frustration and mental anguish and suffering.
WHEREFORE, plaintiffs request that judgment be entered in their favor and against the defendants and that the court grant the following relief:
A. The court grant injunctive relief, including but not limited to an order enjoining NHA and Vanguard from allowing persons to conduct prayer services on school property during school hours or when students are required to be present.
B. The court enter an order enjoining Defendants’ school teachers and administration from participating in or in anyway endorsing prayer on school property during school hours or when students are required to be present.
C. The court enter an order enjoining Defendants from allowing Lighthouse Baptist Church to have free use of the school facilities for religious worship while charging nonreligious groups or entities rent for similar use.
D. That the court enter an order enjoining Defendants from having as one of its objectives for the school year an affiliation with the Lighthouse Baptist Church or any other religious entity or group.
E. That the court enter an order enjoining Defendants to prohibit the distribution and/or dissemination of religious materials, brochures or pamphlets on school property during school hours or when students are required to be present.
F. That the court enter an order enjoining Defendants from conducting any future mandatory in-service for school teachers and administration which includes use of religious symbols, prayer, religious music and/or religious presentations.
G. That the court enter an order enjoining Defendants from having religious music or prayers at official school functions.
H. That the court enter an order enjoining Defendants from teaching any moral focus agenda which endorses a religious viewpoint.
I. That the court enter an order enjoining Defendants from teaching that “creationism” is an accepted scientific theory in science classes or at other times that students are required to be present.
J. That the Court award the plaintiffs their actual damages for the violations of their constitutional rights.
K. That the court award the plaintiffs a reasonable attorney fee pursuant to 42 U.S.C. §1988 and such other and further relief as may be just.
Plaintiffs demand trial by jury of all issues so triable.
March 29, 1999
Plaintiffs, Megan Daugherty, Donald
Sweeny and Jeffrey A. and Catherine M.
Seaver, and Michelle D. Kintz
By:
ACLU Fund of Michigan
Kary Love (P42623)
Cooperating Attorney
348 Waverly Road
Ste. 2
Holland, MI 49423
616 396 6100
Michael J. Steinberg
(P43085)
Legal Director
Kary L. Moss
(P49759)
Executive Director
ACLU Fund of Michigan
1249 Washington Blvd
Ste 2910
Detroit MI 48226
313 961 7728
Attorneys for the Plaintiff