UNITED STATES FEDERAL DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
MEGAN DAUGHERTY AND DONALD SWEENY,
JEFFREY SEAVER AND CATHY SEAVER,
individually and as next friends of their minor children,
Plaintiffs,
Case No. 1:98 CV 897
Hon. DAVID W. McKEAGUE
VANGUARD CHARTER SCHOOL ACADEMY,
GRAND VALLEY STATE UNIVERSITY, and
NATIONAL HERITAGE ACADEMIES,
a Michigan corporation
Defendants.
PLAINTIFFS’ REPLY BRIEF IN SUPPORT OF MOTION
FOR PRELIMINARY INJUNCTION
Plaintiffs did not entrust their children to Vanguard, to National Heritage Academies (NHA) or to the oversight of GVSU, to have them inculcated with religious views. Plaintiffs have no objection to a “moral focus” in education of their children, so long as same is not based on the premise that morality can only be taught in the context of a God. They prefer that this fundamental constitutional, theological and moral responsibility remain in the home and in the place of worship or other arena chosen for children by their parents.
The Defendants’ Brief concedes the Lemon test controls. The Defendants witness, science Teacher Doug Dewey, admits in his Affidavit to teaching creationism alongside evolution in the science classroom. Defendants admit the Mom’s Prayer Group met in the school building during school hours and conducted prayers for an hour a week. Defendants admit “Lighthouse Baptist Church originally stored the [religious] material in a corner of the Parents Room, which is now restricted to parents and adults.” [Aff. Al Couch ¶10-11]
The original and Supplemental Affidavits submitted by Plaintiffs establish that, inter alia:
a) Bibles are used as “textbooks” from which students copy verses; and a teacher displays Bible verses on her desk in class. [First Supp. Aft. Jeffrey Seaver ¶15 b-fl
b) A picture with words stating “Jesus loves the little children of the world” is displayed in the Kindergarten classroom at vanguard. [First Supp. Aff. Barb Rehner]
c) A student distributed “Jesus loves me” pillows in school during class time. When discussing this incident with Barb Rehner, the teacher Ms. Zegunis, stated that she had no idea how to handle the request because there was no policy in place at vanguard on how to handle a student request to hand out religious. [First Supp. At f. Barb Rehner]
d) Teachers and staff, NHA employees from its various “campuses” including vanguard and Excel, were paid to and required to attend a Moral Focus Retreat (MPG) which contained substantial religious rituals, content, music and which was conducted in a church, and teachers were encouraged to incorporate this matter into lesson plans. The materials submitted by Plaintiffs show NHA controls 98% of the vanguards funds and “calls the shots.” Plaintiffs submit evidence of religious activities at another NHA “campus,” Excel, is admissible to show NHA has a policy or practice of entanglement with religion. [First Supp. Aft. Jeffrey Seaver ¶8-9; in addition to his original Affidavit]
e) Teachers read from Bibles in NHA classes during school hours and otherwise inject religion into class. [First Aft. Lanette Grate ¶5, 61 Teachers allow parents to read from Bibles in class. [First Supp.Aff. Megan Daugherty, ¶7] Teachers play cartoon videotapes in class that promote “the true meaning of Christmas,” and otherwise promote a christian world view. [First Supp.Aff. Megan Daugherty, ¶3b]
t) Mom’s Prayer Group solicited prayers in school from teachers. Teachers have had luncheons with the Mom’s Prayer Group, presumably when prayer has been conducted. Mom’s Prayer Group members disseminate materials in class when students are present.
[First Supp.Aff. Megan Daugherty, ¶3a]
g) No policy on the distribution of religious materials by students or others exists and the principal will deal with it on a case by case basis. [First Supp. Aft. Barb Rehner]
h) The children exposed to these materials, the Bible readings and writings, solicitation of prayer requests of teachers by some parents in school, which are then conducted in school, are elementary age students
i) A Teacher stating “the subject of dinosaurs was not being taught in .second grade class .because some parents object to the subject because it was against their religious beliefs.” [Aft. Michelle Nelson, ¶3]
j) The children of plaintiffs have suffered adverse consequences of an overtly religious atmosphere at school to the point where one child, to avoid controversy over religious issues at school advises others at school that she is Jewish, even though she is not. [First Supp.Aff. Megan Daugherty, ¶3, 4; First. Supp. Aft. Jeffrey Seaver, ¶17; Aft. Lanette Grate, ¶6]
k. Al Couch, Principal at vanguard distributed materials overtly supporting introduction of religion into public schools. [First Supp.Aff. Megan Daugherty, ¶2]
Not surprisingly, the Defendants do not mention the recent Sixth Circuit decision Washegesic v Bloomingdale Public Schools 33 F.3d 679 (6th Cir. 1994), in which the Court ordered the removal of a portrait of Jesus from a secondary school. In that case the Sixth Circuit found that the display of this portrait, which had been in the school for a number of years, violated all three prongs of the Lemon test, any one of which is sufficient to constitute a violation of the establishment clause. Rather than discuss this significant precedent, containing facts analogous to the picture with words stating “Jesus loves the little children of the world” being displayed in the Kindergarten classroom at vanguard, Defendants cite Brown v. Woodland Joint Unified School Dist., 27 F.3d 1373 (9th Cir 1994) and Fleischfresser v. Directors of School District 200. 15 F.3d 680 (7th Cir. 1994). This reliance is misplaced. Both Brown and Fleischfresser dealt with allegations of establishing witchcraft as a religion in public schools. Given the divergent factual issues, these cases afford little basis for informed analysis.
Defendants do not discuss Lee v. Weisman. 505 U.S. 577 (1992) (striking school sponsored prayer at a secondary school graduation ceremony) when analyzing the “objective observer in the position of an elementary student” required to observe prayer by a minister at an event attended by “the entire 5th Grade, including teachers, principal, students and parents were asked to bow their heads and pray to God who gave his only son Jesus. In the course of the Minister’s remarks, Jesus was mentioned several times. Although I do not know what Mr. Couch said to the Minister, it appeared to me that the Minister’s remarks were preconceived and were not spontaneous.” [First Supp. Aft. Megan Daugherty ¶1]. In Weisman, the Court acknowledged that public school students of secondary or elementary level are impressionable, they often emulate their teachers as role models, and they are susceptible to peer pressure. Clearly, an objective elementary school student would be hard pressed not to discern School ratification of this activity if High School students would be so influenced by the single, isolated, brief prayer at issue in Weisman.
Plaintiffs have established a pervasive, undeniable, apparently purposeful entanglement with religion by NHA which is replicated both at vanguard and Excel, another NHA “campus.” Teachers and staff were paid and mandated to attend a Moral Focus Retreat heavily laden with religious ritual (including a 50 minute sermon) and then encouraged to incorporate same in their lesson plans, by their employer, NHA, which owns those lesson plans and controls 98% of the money funding vanguard, Excel and a number of other “campuses.” Defendants claim that the analysis of this MPG must focus on the actions of vanguard, rather than NHA, is somewhat puzzling under the facts of NHA’s control over teachers.
Parents of some students pray in the school during school hours. Parents of some students solicit prayer requests from teachers and conduct prayers in response in school during school hours. Teachers are reading from the Bible in class. The Bible is used as a de facto text in class. Creationism is taught, evolution and dinosaurs are avoided because of some parents’ religious objection. “Science” classes treat evolution and creationism as equivalent theories. Pictures are posted containing Biblical passages and references. Religious literature and symbols were visible in the school, courtesy of Lighthouse Baptist Church, which used the school facility rent free. (Plaintiffs’ concern is not the use of the facility during nonschool hours by the Church, but rather its contribution to the religious atmosphere in the form of materials and property displayed at school together with the fact the Church is not charged rent while non-religious groups are charged is indicative of preferential treatment.) Religious children’s videos are displayed in the parent’s room and played in classes. A picture with the caption stating “Jesus loves the little children of the world” is posted in the kindergarten class room. Bible verses are displayed on a calendar on a teacher’s desk. These facts, in toto, establish excessive entanglement.
The objective elementary age student observer knows why he or she goes to school. It is to learn. Elementary schools are powerful tools, designed, planned and run to inculcate ideas in minds ripe for molding. Elementary students know they are there to learn, to behave, to conform, so that learning may take place. And if they don’t, their parents will be informed and the child will be disciplined at home in addition to at school.
These impressionable students observe parents at the school for an organized prayer group and know they pray. They know the parents are soliciting prayers from teachers, teachers who read to them from the Bible, give assignments using the Bible as a reference, and place calendars on their desk containing Bible verses, and teach that the world originated by an act of God in six days. These students know the educational environment is laden with religion, religious activity and religious persuasion.
This environment is planned by NHA, imparted to its employee staff and teachers at a Moral Focus Retreat replete with religious overtones. These employees are not obtuse, they understand the message. They are paid to take the day of f, participate in the MPG and return to school with instructions to incorporate what the learned in lessons for their students
Defendants assert the tree exercise rights of teachers and staff. public employees may have limits placed on their free exercise (and other constitutional) rights as a condition of employment. The Supreme Court stated in Arnett v. Kennedy, 416 U.S. 1633 (1974) public employees take “the bitter with the sweet” and accept conditions on their rights attached to public employment being offered to them. They are free not to take a job if the conditions attached offends their religious sensibilities. However, adult public employees, who take public dollars, especially those working in elementary schools, have no free exercise right to inculcate their religious views in children of others who may not share those views and to whom the children are entrusted for an education in reading, writing, arithmetic and science.
Defendants assert the free exercise rights of parents. Plaintiffs are committed to free exercise rights of all persons as against governmental infringement. Foremost, it must be noted that much parent involvement at vanguard is in “quasi-official” positions, lunch aides, elective class teachers and the like. Under this scenario, parents have no free exercise rights as against non-state actor elementary school students who wish only to be left alone to be secularly educated. Also, Parents who volunteer in a public school, from the perspective of the objective elementary student, become an authority figure representing the school. These parents must recognize that their free exercise rights end where the free exercise and establishment clause rights of students not their child begin. The students have establishment clause rights not to be inculcated with the religion of parents of their fellow students as well as free exercise rights not to be proselytized when they are a captive audience trying to attend school at their own parents direction. In the real world setting this court and these parents are dealing with, the rights of the students must prevail.
Defendants claim the school has created a limited public forum in the parents room. No written policy adopted by the Board declaring or governing same is produced. In Muller v. Jefferson Lighthouse School. 98 F.3d 1530, 1538 (7th Cir. 1996) the Court analyzed:
“When is a school a public forum? The Court answered that “school facilities may be deemed to be public forums only if school authorities have ‘by policy or by practice’ opened those facilities ‘for indiscriminate use by the general public, ‘ or by some segment of the public, such as student organizations.” (cites omitted). A public forum is not created by default, only by design: “‘The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse. ‘ “
Plaintiffs submit that absent a Board adopted policy, no limited public forum has been created.
If, in fact, the parents room is a limited public forum, the rest of the school, especially classes, are not. Thus policies governing neutral, non-content based regulation of distribution of ideas may still be imposed. The free exercise rights of other students are also, by defendants admission subject to reasonable time, place and manner restrictions. Barb Rehner gave Al Couch the Wyoming Public School policies providing same in a public school setting. [First Supp.Aff. Rehner] proselytizing is not, and cannot be, the purpose of the school during class. Dissemination of ideas is not allowed under circumstances where captive students receive the impression of School is not strictly neutral. particular places and times may be set aside for all students to distribute information about ideas, where and when others interested in receiving same can freely choose do so. However, distribution in class where teachers or others having apparent authority to represent the school are present, the students are captive audiences required to be present and not free to leave, give rise to an appearance of school entanglement with and ratification of the content of the materials distributed. To an objective elementary student observer, sitting in a classroom during lunch, under the supervision of a teacher who allows a student to hand out pillows stating “I Love Jesus,” when the student is not free to leave, is coercive and appears to be school ratified endorsement of that religious idea.
Plaintiffs submit a compelling case has been made because the fundamental parental right to guide the religious upbringing of their young children is at issue. Adults have sufficient maturity and intelligence to review ideas skeptically. Adults are free to leave when confronted with ideas they find unacceptable. Plaintiffs’ children are told by their parents they must attend school, they must listen to their teachers, they must respect the adults present who are helping in the school. These children are susceptible to influence by adults in apparent authority. They are not able to resist the pressure of their peers, especially when backed by the appearance of such authority. They are confused, distressed, uncertain. They are called upon to make decisions beyond their years and wisdom. They are resorting to duplicity to avoid religious controversy while at a public school: e.g. Kristin Sweeny claiming she is Jewish to avoid disputes over religion at school.
The challenged practices violate established law. School prayer was declared unconstitutional in Engel v. Vitale, 370 U.S. 421 (1962) and neither the fact that the prayer was “nondenominational” nor that students who so wished might “remain silent or be excused from the room” could “free it from the limitations of the Establishment Clause Abington School District v Schempp, 374 U.S. 203 (1963) held school organized prayer is unconstitutional, and also banned the recitation of the Lord’s Prayer and Bible reading in public schools. In Wallace v. Jaffree, 472 U.S. 38, (1985) the court invalidated an Alabama law allowing a one-minute period of silence at the start of each school day “for meditation or voluntary prayer,” concluding this mandated moment amounts to “the State’s endorsement of prayer activity.” The Court noted this is quite different from “merely protecting every student’s right to engage in voluntary prayer... .“ In Edwards v. Aguillard, 482 U.S. 578 (1987) the Supreme Court invalidated Louisiana’s “Balanced Treatment Act” which required equal time for the teaching of “creation science “whenever the theory of evolution is taught in science classes. The Court concluded the purpose of the law was to promote a particular religious doctrine. As recently as Lee v. Weisman, 505 U.S. 577, 112 S.Ct 2649, 2654, 120 L. Ed.2d 467 (1992) the Supreme Court struck down school sponsored prayer at a secondary school graduation ceremony, because “government involvement with religious activity. . . is pervasive, to the point of creating a state-sponsored and state-directed religious exercise in a public school.” Each of these activities are alleged to exist in this case.
Defendants attempt to justify these entanglements on the grounds they must market their product and this marketing requires the Defendants to offer a product consistent with the views of the majority of their target “customers.” People won’t send their children unless these entanglements persist, seems to be the argument. Defendants seem also to contend the free exercise rights of employees and parents who use the school predominate over the establishment clause protection afforded minor children who are a captive audience. Such contentions are incompatible with: “. . .the very purpose of the Bill of Rights [which] was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the Courts. One’s right to. . .freedom of worship. . .and other fundamental rights may not be submitted to vote, they depend on the outcome of no elections.” West Virginia Board of Ed. v. Barnette, 319 U.S. 624 (1943) (holding that compelling a flag salute by public school children whose religious scruples forbade it violated the first amendment) . Surely, the right of elementary public school children to be free from such entanglement is one of those rights.
Defendants contention they will issue appropriate policies achieving disentanglement from religion are disingenuous in view of the Plaintiffs’ submissions showing repeated requests for same and inaction by Defendants for up to three school years. [First Supp. Aft. Jeffrey Seaver; First. Supp Aft. Megan Daugherty]
A substantial likelihood that establishment violations are occurring has been shown and the Court ought to issue an appropriate preliminary injunction in this case.
February 4, 1999
Respectfully submitted:
Kary Love (P42623)
Attorney for Plaintiffs
348 Waverly Rd. Ste 2
Holland, MI 49423
616 396 6100