Kary Love (P42623)
Attorneys for Plaintiffs
Suite 2
348 Waverly Road
Holland, MI 49423
616—396—6100

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PLAINTIFFS’ BRIEF IN SUPPORT OF MOTION
FOR PRELIMINARY INJUNCTION

Plaintiffs, by their attorney, Kary Love, submit this brief in support of their motion for preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure. Plaintiffs seek a preliminary injunction to enjoin further violations by the defendants of the establishment clause of the first Amendment of the United States Constitution.

STATEMENT OF FACTS

This proceeding arises out of an action for declaratory and injunctive relief as well as damages by the plaintiffs for violation of their constitutional rights as protected by the First Amendment to the Constitution of the United States, and protected under 42 U.S.C. § 1983. Plaintiffs’ Megan Daugherty and Don Sweeny, Jeffrey and Cathy Seaver, are parents of elementary school age minor children who attend Vanguard Charter School Academy (Vanguard). Vanguard Charter Academy, which is a public school
academy for the purposes of Michigan’s Public School Academy Code MCL §308.401, et seq.

Vanguard is chartered as a public school academy by Grand Valley State University (GVSU) which is, for the purposes of Michigan’s Public School Academy Code, the chartering authority. Grand Valley State University contracted with a private organization National Heritage Academies to operate and manage Vanguard Public School. National Heritage Academies (NHA) is a private Michigan corporation, which operates a public school academy under Michigan’s Public School Academy Code, using federal and state funds, and is acting under the color of state law.

Plaintiffs represent a spectrum of religious to non—religious belief. All the plaintiffs have sent their children to Vanguard for the purposes of obtaining an excellent academic education for their children. They did not send their children to Vanguard for the purpose of inculcating them with any particular religious or nonreligious belief. The parents have averred in their Affidavits that their children, being of elementary school age, are impressionable, view their school teachers and administrators as role models, and are susceptible to peer pressure.

As part of the school curriculum, Vanguard teaches a “moral focus” agenda. On October 23, 1998, Vanguard canceled school so that its school teachers and administrators could attend a retreat regarding the moral focus agenda. Attendance at the moral focus retreat for school teachers and administrators was mandatory. Plaintiff Jeff Seaver attended as a member of the Vanguard’s moral focus parent committee. He is an eye—witness to the events that transpired at the retreat on the moral focus agenda.

NHA sponsored the retreat on the moral focus agenda. The retreat was not only for Vanguard but for all of NHA's charter school academies located in Michigan. The retreat took place at the Ridgepoint Community Church in Holland, Michigan. The opening ceremony for the retreat included Christian music, specifically a song “When You Are a Soldier” made popular by Stephen Curtis Chapman, a well—known contemporary Christian artist. The text for the song is taken from John 15:12 and 15:13, Proverb 17:17; and Galatians 6:1 and 6:2. The master of ceremonies for the program was Peter Yoshanis, who is a seminary student.

In addition to the christian music, a prayer was conducted prior to lunch. Plaintiff Jeff Seaver who tape recorded part of the proceedings at the moral focus retreat transcribed the following quote from the prayer:

“Lord, together we give thanks. Lord, it is a privilege that we have today coming together focusing on character and keep looking at what it means to be a true hero. We ask that you be with us in our time here together today, and we give thanks for the provisions you have given our lives and the food we are going to eat. Lord, I thank you personally for [?]. In the name of Jesus, Amen.” (The Transcript appears as Exhibit 2 attached to Mr. Seaver’s Affidavit)

There were three speaker at the retreat. One of the speakers was Reverend Dr. John Reist, who is ordained as a Minister by the American Baptist Churches. He spoke on the topic of moral absolutes. His presentation was saturated with references to God, Jesus, and Biblical Scripture. He quoted from the book of Proverbs 4:7, cited to the Christian parable involving the rich young ruler, repeatedly referenced Jesus and cited to the Gospel of Luke and New Testament Book of James. The following are some of Reverend Reist’s other statements taken from the transcript:

Now folks, we are shaping precious lives, which is first of all made in the image
of God, whatever that is. There was a time when the Church - I don't know if it was officially taught - but it was taught that we are not actually created in the image of God, absurd, but that is where it is going. ...

Especially the older grades have these boys and girls and we want to do what we should do with it, because they are made in the image of God as you are. ...

And secondly, if I may be so bold in the
reformed church to suggest that they [our
brothers and sisters] for whom Christ died, they are made in the image of God and are
loved by Christ as we are. ...

We must commit ourselves to ____ to consider moral absolutes, all ten of them and all of which come from God. ...

These are just a few of the quotations with religious references.

Prior to the retreat, Vanguard distributed an agenda brochure instructing Vanguard teachers that the ideas presented at the retreat were to be incorporated into school lesson plans about moral focus. (See: Exhibit 1 attached to Mr. Seaver’s Affidavit) In addition, each school associated with NHA was to develop school wide objectives based on the material presented at the retreat.

In addition to the retreat on moral focus, Vanguard has either directly condoned or conducted or allowed others to directly engage in activities of a religious nature. For most of the school year, an organized parents group called, “The Mom’s Prayer Group” has been allowed to conduct prayer service on Thursday morning of each week during school hours on the Vanguard school premises. As least once a month, the Mom’s Prayer Group sponsors a luncheon for teachers which takes place at the school facility in what is designated as the “Parent’s Room.” The last Mom’s Prayer Group sponsored luncheon for teachers took place on December 15, 1998.

Until recently, Vanguard allowed the Mom’s Prayer Group to have its own mailbox maintained in the central office in proximity to other official school mail boxes. (See: Seaver Affidavit ¶8) Vanguard has permitted the Mom’s Prayer Group to solicit prayer requests on a form which is circulated to school administrators and teachers. (See: Exhibit 4 attached to Mr. Seaver’s Affidavit) According to minutes published by the Mom’s Prayer Group dated October 11, 1998, teachers and school administrators actively
participate in the Mom’s Prayer Group. For example, the following individuals are identified in the minutes of the Mom’s Prayer Group for October 11, 1998 as submitting prayer requests:

Kim Barnes - 4th grade teacher;
Eunice Kuiper — music teacher;
Phil Sage - 1st grade teacher;
Mr. Peterson - Vice-Principal;
Marcia VanderSloot — art teacher;
Doug Dewey — teacher.
(See: Seaver Affidavit ¶8)

In addition, either the school has sponsored or outside groups are permitted to distribute and disseminate information of a religious nature on school premises. Until recently, in the parent’s room, literature of religious and/or political nature has been available for distribution. For example, “Focus on the Family” brochures by Dr. James Dobson, a Baptist ordained Minister located in Denver, Colorado, had been made freely available in the parent’s room. These brochures include such items as: “Women of Influence. How to Pray for Your Children. and Women’s Guide to Reaching Goals” which contains references to Proverbs, God, the Bible, and Christian educators. (These two documents are attached as Exhibit 6 to Mr. Seaver’s Affidavit)

Vanguard also has an affiliation with the Lighthouse Baptist Church. In the school goals listed for the 1997-1998 school year, one of the goals listed is community outreach which included a partnership with the Adams Street School, a Christian school, and the Lighthouse Church. (See: Affidavit of Megan Daugherty, Exhibit 1, pg. 18) The Lighthouse Baptist Church is allowed to use the school facilities for public worship on Wednesday evenings and Sundays. Based on responses to a Freedom of Information Request, it was revealed that the Lighthouse Baptist Church is allowed to use the school facility at no charge, even though other groups are charged a rental fee to use the school facilities after school hours. (See: Seaver Affidavit ¶10) To plaintiffs’ knowledge, Vanguard has not declared itself a limited public form.

In addition, the Lighthouse Baptist Church has left its literature and religious paraphernalia on school property. For
example, on October 19, 1998, the Lighthouse Baptist Church left a prayer request on the blackboard in the parent’s room. Also, it frequently leaves pages from children’s religious books such as the one attached as Exhibit 5 to Jeff Seavers Affidavit, on school property. Jeff Seaver picked up a children’s religious cross-word puzzle from the parent’s room on school property from October 19, 1998, and he again found a religious children’s book on November 30, 1998 from the parent’s room on school property. (See: Seaver Affidavit ¶11)

At Vanguard, some of the above-described activities have manifested themselves in the classroom. Daugherty’s Affidavit describes that in October of 1998 her fifth grade son advised her that his science teacher, stated that “humans are not mammals.” Ms. Daugherty affirms she spoke with the science teacher who told her, “Most science teachers would not agree with me, however it is [his] personal belief that humans are not mammal[s] and are not part of the animal species” and he tells his students that. Although the science teacher indicated he always includes the “opposing viewpoint” when discussing this with his class, it appears that science curriculum include religious views of creation.

The Plaintiffs’ concerns regarding these above-described activities were communicated to Grand Valley State University Charter School laison Patrick Sando, to the NHA representatives, and to the President of the Vanguard’s Board of Directors. The t ~ Vanguard Board of Directors has agreed to undertake a “policy review” on use of school facilities by outside groups. Other actions have been taken in response to the concerns. However, as part of this policy review, defendants have not given any assurances that the above—activities will cease or desist or that policies will be implemented consistent with the requirements of the establishment clause of the United States Constitution. Plaintiffs have received absolutely no assurance from Defendants that they will not conduct any further moral focus retreats such as the one as was conducted on October 23, 1998. Plaintiffs’ have received no remedial offer for past actions taken by Vanguard. In fact, Vanguard, through its attorney, insists that teachers continue to have a right to actively participate in prayer activities on school property. Consequently, plaintiffs seek a preliminary injunction from this court to enjoin any further violations of the establishment clause of the First Amendment of the United State Constitution and to Michigan’s Establishment Clause under Michigan’s Constitution.

ARGUMENT

Defendants’ actions violate the constitutional rights of plaintiffs who have no adequate remedy at law. Consequently, preliminary injunctive relief is not only appropriate but essential to prevent the likelihood of continuous irreparable harm to the plaintiffs and their minor children.

The trial court has discretion in exercising its power to grant preliminary relief. There are four factors in determining whether preliminary relief is appropriate: (1) whether the plaintiffs have suffered irreparable harm; (2) whether plaintiffs are likely to succeed on the merits of their claim; (3) a balancing of the harm that may result to the defendants if the relief is granted; and (4) whether the public interest is served by issuing a preliminary injunction. Frisch’s Restaurant v. Shoney’s Inc. 759 F.2d 1261, 1263 (6th Cir. 1985); In Re: DeLorean Motor Company. 755 F.2d 1223, 1228 (6th Cir. 1985). the circumstances presented to this court satisfy all these criteria and fully justify a preliminary injunction.

1. PLAINTIFFS ARE BEING IRREPARABLY HARMED.

The first criteria for a preliminary injunction is easily met. The plaintiffs in this case are asserting their rights under the First Amendment of the United States Constitution. Violations of the First Amendment rights constitute per se irreparable
injury. See Elrod v. Burns. 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d, 547 (1976), cited in Doe v. Shandoah County School Board. 737 F.Supp. 913, 916 (W.D.Va. 1990)(Federal District court granted temporary restraining order and preliminary injunction preventing private sectarian organization from conducting religious classes within a few feet of an elementary school).

Violation of the First Amendment rights constitute irreparable injury even if the impairment exists for a minimum period of time. 737 F.Supp. at 916.

2. PLAINTIFFS WILL SUCCEED ON THE MERITS OF THEIR CLAIM.

A. A CHARTER SCHOOL IS A PUBLIC SCHOOL.

A charter school or a public school academy is a public school. According to Michigan’s Public Academy School Code, it defines public school academies, or charter schools as a public school. MCL §308.401. In Counsel of Organizations v. Governor of Michigan. 453 Mich. 914 (1997), the Michigan Supreme Court declared that public school academies and charter schools are public schools.

As public schools, they are subject to both the United States and Michigan Constitutions which prohibit an establishment of a religion. The First Amendment to the United States Constitution provides in relevant part:

Congress shall make no law representing an
establishment of religion...

The establishment clause of the first amendment was made applicable to the states in Everson v. Board of Education. 330 U.S. 1 (1947).

The State of Michigan has equally stringent standards. Article 1, Section 4 to Michigan’s Const. 1963, states in relevant part regarding religion:

No person shall be compelled to attend, or, against his consent, to contribute to the erection or support of any religious worship, or to pay tithes, taxes or other rates for the support of any administer of the gospel or teacher of religion. No money shall be appropriated or drawn from the treasury for the benefit of any religious sect or society, theological or religious seminary; nor shall property belonging to the State be appropriated for any such person. Civil and political rights, privileges and capacities of no person shall be diminished or enlarged on account of his religious beliefs.

In addition, the Public School Code for charter school academies, MCL 380.502 restricts affiliations between charter schools and religious organizations. The statute provides in relevant part:

To the extent disqualified under the State or Federal constitution, a public school academy shall not be governed by a church or religious organization and shall not have any organizational or contractual affiliations with or constitute a church or other religious organization.

Furthermore, Grand Valley as the authorizing body which approved the charter for Vanguard, has the responsibility to ensure that Vanguard comply with the public school code and all applicable laws. MCL §380.506.

B. THE LEMON TEST

To evaluate whether a public school’s involvement with religion violates the establishment clause, courts use the three part test first set forth in Lemon v. Kurtzman 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d, 745 (1971). Under the Lemon test, the challenged conduct must: (1) have a predominantly secular purpose; (2) have a primary affect that neither advances, endorses or inhibits religion; and (3) not result in excessive entanglement of government and religion. Conduct is illegal if it fails just one of the tests. See: Lee v. Weisman. 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d (1992). The Lee court declined the invitation to revisit Lemon: “We can decide the case without reconsidering the general constitutional framework by which public schools’ efforts to accommodate religion are measured. Thus, we do not accept the invitation of petitioners and amicus the United States to reconsider our decision in Lemon v. Kurtzman, supra.” [505 U.S. 577, at 587]

The Lemon test remains the standard to apply in cases claiming violations of the establishment clause. In the most recent test involving religion in public education, Justice O’Conner made repeated reference to the Lemon test. See: Agostini v. Felton. 521 U.S. 203, 117 S.Ct. 1997, 2008, 138 L.Ed.2d, 391 (1997). In a 1994 United States Supreme Court case involving religion in public schools, Justice Blackman was careful to write in a concurring opinion of his continued adherence to the Lemon test. Board of Education of Krys Joel Village School District v. Grumet. 512 U.S. 687, 114 S.Ct. 2481, 121 L.Ed 2d, 546 (1994)(Supreme court struck down as unconstitutional a statute which created a special school district for the religious enclave of Satmar hasidic-a strict sect of Judaism).

Certainly, the Lemon test is followed by Michigan courts and by the United States 6th Circuit Court of Appeals. For example, in Washegesic v. Bloomingdale Public Schools 33 F.3d 679 (6th Cir. 1994), the 6th Circuit Court of Appeals affirmed a decision by Judge Gibson in the United States District Court for the Western District of Michigan which ordered the Bloomingdale Public School District to remove a portrait of Jesus Christ from display in a secondary school hallway, even though the display had been there for several years. See also Stein v. Plainwell Community Schools, 822 F.2d 1406 (6th Cir. 1987), (school graduation prayer was unconstitutional where “school framed and phrased it so that they symbolically placed the government seal of approval on one religious view—-the Christian view” by invoking “Jesus as the savior.” 822 F.2d at 1410.)

Other circuits still rely heavily on the Lemon test to guide their analysis of public school and establishment clause issues.
See: Doe v. Duncanville Independent School District. 70 F.3d 402, 405 (5th Cir. 1995); Chandler v. James. 985 F.Supp. 1068, 1087, No.39 M.D. Ala. 1997); Herdaho v. Pontotoc County School District. 933 F. Supp 582, 593 N.D.Miss. 1996).

The defendants’ activities challenged here fail all three prongs of the Lemon test. The defendants may contend that the moral focus agenda has a secular purpose. However, the mandatory in—service retreat on moral focus which occurred on October 23, 1998 belies any such contention. To the reasonable establishment clause observer, certainly there is cause for skepticism when a public school conducts a mandatory in-service for teachers at a church building. There is even more cause for skepticism when the mandatory in—service concerns the topic of moral values.

However, what transpired inside the church building during the moral focus agenda, removes any doubt as to the predominantly religious purpose of the October 23, 1998 retreat, which was organized by NBA. The retreat opened with Christian music. A seminary student acted as master of ceremonies. The retreat had a prayer conducted prior to lunch which invoked the name of Jesus. Finally, the retreat contained a presentation by a Baptist minister which could fairly be described as a revivalist sermon. The speaker, Reverend Dr. John Reist, an ordained Baptist minister, spoke on the topic of moral absolutes. While he made passing reference to Benjamin Franklin, Thomas Jefferson, and Socrates, his presentation was saturated with references to God, Jesus and Biblical scripture. He ended his presentation by commenting that “we must commit ourselves to freeing them to consider moral absolutes, all ten of them and all which come from God. All joy, all love comes from God and therefore all human longing is a longing for God.” This unquestionably represents a predominantly religious viewpoint being presented at the moral retreat. From this retreat teachers were to develop moral focus goals to implement during the current 1998/99 school year. These goals were then to be used when teaching elementary school age children “their schools own moral focus curriculum/program.” (See Exhibit 1, pg. 3, Attached to Seaver Affidavit)

In washegesic v. Bloomingdale Public Schools, the 6th Circuit Court of Appeals ordered the removal of a portrait of Jesus from a secondary school. In that case the 6th 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. In finding that the display was unconstitutional, the 6th Circuit commented:

The support of sectarian prayers and pictures are similar religious acts
and symbols by public schools violates the accommodation we made long ago with the religious history and traditions of our country. That accommodation requires a neutral state designed to foster the
most extensive liberty of conscience compatible with a similar or equal liberty for others. 33 F.3d at 682.

The documented facts that exist with respect to the defendants in this case far exceed the facts at issue in the Washegesic case. They represent an overwhelming assault on the equal liberty of conscious, for all, especially in a case involving highly impressionable elementary school age children confronted with multiple acts entangling their school, teachers, administrators and parents on the premises with religious activities.

The defendants’ acts easily violate the second prong of the Lemon test: the actions of the school can not have the affect of either inhibiting nor advancing religion. This has been described as a requirement of strict neutrality. Government action can not create an identification of the state with a particular religion or with religion in general. Government action can not endorse one religion over another, or even endorse religious belief over non—religious belief. Lee v. Weisman, 505 U.S. 577, 112 S.Ct 2649, 2654, 120 L. Ed.2d 467 (1992)(Supreme Court struck down school sponsored prayer at a secondary school graduation ceremony).

Again, the October 23, 1998 retreat went beyond just endorsing a religious viewpoint, but endorsed a Christian religious viewpoint. The Christian music, Christian prayers invoking the name of Jesus, and the Baptist minister frequently invoking the Bible, especially in passages relating to Jesus, references to the fact that persons are made in the image of God, and that absolute values come from God, endorsed a Christian viewpoint.

Considering the Mom’s Prayer Groups, Vanguard engaged in patent endorsement of their activities, Vanguard permitted the prayer groups to use school facilities during the school hours to conduct their prayer services. At Vanguard, school administrators
allowed the prayer group to have its own mailbox. It permitted the group to sponsor monthly luncheons for the teachers and school administrators. Most egregious, the prayer group was allowed to directly solicit prayers from teachers and school administrators which were then incorporated into the prayer service. The prayer group devised a special form to accomplish this objective, which was apparently disseminated to school staff during school hours. In fact, according to the prayer group minutes of October 11, 1998, several teachers and administrators did submit prayer requests which apparently were acted upon. The same minutes indicate the teachers themselves were going to form their own prayer group. Plaintiffs submit that it would be impossible for an elementary school child, or for that matter an adult, to discern Vanguard’s independence from religion and the activities of the subject prayer group. These activities were so pervasive as to impermissibly entangle Vanguard with religion, especially in the presence of impressionable children.

Similarly, the school’s endorsement of religion is further evidenced by the sponsoring or allowing others to sponsor the distribution or availability for dissemination of religious materials on school grounds. As noted above, Focus on the Family materials by James Dobson, an ordained Baptist Minister, were freely available for dissemination at Vanguard during school hours.

Moreover, at Vanguard there is the issue of the Lighthouse Baptist Church. In a the school objectives for the 1997-1998 school year, is listed an affiliation with the Lighthouse Baptist Church which uses the school facility at no charge for worship service on Wednesdays and Sundays. Other groups are charged a rental fee to use the school facility. The Lighthouse Baptist Church has had a practice of leaving its religious paraphernalia such as a podium and $ signs in the school for all to see, and it frequently leaves its literature on school property. In this case not only has Vanguard failed to disassociate itself from the Lighthouse Baptist Church, but instead as evidenced by the school objectives, it has openly sought an affiliation with the Lighthouse Baptist Church as one of Vanguard’s goals. This constitutes another endorsement of religious viewpoint.

The teaching by Ms. Daugherty’s son's science teacher that “humans are not mammals” runs afoul of the Supreme Court decision in Edwards v. Aguillard. 482 U.S. 578 (1987). There the Court struck down Louisiana’s “Creationism Act” which forbids the teaching of the theory of evolution in public elementary and ~ secondary schools unless accompanied by instruction in the theory of “creation science.” The Court held the Act impermissibly endorses religion by advancing the religious belief that a supernatural being created humankind. (See: Edwards, 482 U.S. at 589—594.)

It is difficult to conceive that the Defendants will argue that these activities had a secular purpose. However, in the event they do, it is still proper to inquire whether or not the “secular purpose” asserted for the activities were sincere and not a sham to introduce religion into the school. See Wallace v. Jafree. 472 U.S. 38, 105 S.Ct. 2479, 2503, 86 L.Ed.2d 29 (1985); 42 U.S. at 585.

The third prong of the Lemon test has also been violated by defendants’ activities. Under this test, the activities can not entangle government with religion. Plaintiffs have suspected for some time that the moral focus agenda being emphasized at Vanguard is a Trojan horse to introduce religion into the school. The October 23, 1998 retreat provided confirmation of their suspicions. School administrators at Vanguard instructed the teachers via memorandum to incorporate into their lesson plans the information learned at the mandatory moral focus retreat, which presumably includes the moral absolutes which come from God. What ever pretext the moral focus agenda had for secular instruction has tilted head long into religious instruction.

At Vanguard entanglement with a religion is also demonstrated by Vanguard school objectives which stated as one of its objectives an affiliation with the Lighthouse Baptist Church. Once again, Vanguard allows the Lighthouse Baptist Church free use of its tax supported school facilities for the purpose of public worship. All of these actions represent violations of the guiding principle behind the establishment clause which is the concept of equal liberty of private conscience for all citizens.

3. VANGUARD IS NOT A LIMITED PUBLIC FORUM..

Defendants may argue that they are simply allowing outside parties and/or students or faculty to exercise their freedom of speech and freedom of religion. In conjunction with this argument, they may also contend that the elementary schools, in particular certain rooms such as the parent’s room, represent a limited open form ar even an open public form, and further that it would be unconstitutional for them to inhibit or discriminate against those who chose to exercise their freedom of speech and/or freedom of religion. Plaintiffs acknowledge and agree that government, including public schools, can not engage in viewpoint discrimination. For example, in Rosenberger v. University of Virginia. 515 U.S. 819, 115 S. Ct. 2510, 132 L. Ed.2d, 700 (1995), the United States Supreme Court prohibited the University of Virginia from discriminating against a student publication which published material with a Christian point of view. See also Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226, 110 S. Ct. 2356, 110 L.Ed.2d, 191 (1990). While viewpoint discrimination is a valid claim where legitimate free exercise or free speech issues exist, it has no place in the context of the present case. First, the traditional public forum usually associated with a public street or park which is devoted to assembly and debate. Education Association v. Perry Local Educators Association. 460 U.S. 37, 45, 10 S. Ct. 948, 74 L. Ed.2d, 794 (1983). Public schools do not by nature possess the attributes of a forum en for indiscriminate use by the citizens or some segment thereof. Usually, a public school is considered a non-public forum to which elective access is permitted for the purposes of enhancing the educational mission. In an open public forum, Vanguard would arguably have to allow literature to be distributed by gay and lesbian organizations or even by the Klu Klux Klan. If public schools were to allow dissemination of Focus on the Family literature, presumably it would also have to allow parents to supply subscriptions to atheist, humanist or skeptic materials.

Neither is the concept of limited public forum available to the defendants. The Federal Equal Access Act was at issue in the Mergens’ case. Under this act, in any public secondary school which receive federal financial assistance which has allowed a limited open forum it is improper for that school to deny equal access or fair opportunity against any students who wish to conduct meetings within that limited open forum on the basis of a religious, political, philosophical or other content of the speech at such meetings. 20 U.S.C. §4071. However, the Equal Access Act is limited to secondary education. It does not apply to elementary schools. Furthermore, none of the defendants have declared themselves to be a limited public forum.

The main obstacle to the open or limited public forum ‘is the fact that Vanguard is primarily an elementary educational facilities . Aside from the Equal Access Act, the public forum argument in the context of education usually is identified at the University level. See: Rosenberger v. University of Virginia. supra; Woodmere v. Vincent. 454 U.S. 263, 271, 102 S.Ct. 269, 275, 70 L. Ed.2d, 440 (1981), (the court has not questioned authority of the state colleges to hold courses on religion or theology as undue influences are far less with regard to college students.)

The United States Supreme Court in the 1992 decision Lee v. Weisman. struck down a school sponsored graduation prayer in a secondary school environment. The Court recognized a violation in an arguably voluntary setting, of pray consisting only of two minutes or so on a one time only basis. In doing so, Justice O’Connor wrote:

The injury caused by the government’s action, and the reason why Daniel and Deborah Weisman object to it, is that the State, in a school setting, in effect required participation in a religious exercise. It is, we concede, a brief exercise during which the individual can concentrate on joining its message, meditate on her own religion, or let her mind wander. But the embarrassment and the intrusion of the religious exercise cannot be refuted by arguing that these prayers, and similar ones to be said in the future, are of a deminimis character. To do so would be an affront to the rabbi who offered them and to all those for whom the prayers were an essential and profound recognition of divine authority. And for the same reason, we think that the intrusion is greater than the two minutes or so of time consumed for prayers like these. Assuming, as we must, that the prayers were offensive to the student and the parent who now object, the intrusion was both real and, in the context of a secondary school, a violation of the objectors’ rights. 505 U.S. at 595.

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, the pervasive, repeated, extended acts of defendants in this case create a more compelling case.

A recent case decided by the 4th Circuit Court of Appeals on August 14, 1998 readily demonstrates the illegality of the defendants practices in an elementary school setting. Peck v. Upshur Co. Board of Education. 155 F.3d 274 (4th Cir. 1998), involved a challenge to a school board policy permitting outside parties to disseminate Bibles and other religious materials in kindergarten through grade 12 at public schools during school hours. In this case, the West Virginia’ school district had a practice of allowing non—student, private groups such as little league, boy scouts, girl scouts, and 4H to distribute literature in public schools. In order to maintain a policy which did not discriminate against a religious viewpoint, the school board developed a policy which allowed outside groups to disseminate religious information.

However, in contrast to Vanguard, the school board in Peck imposed severe restrictions. The Board designated a single day during the school year in which private religious groups could set up tables in accessible locations such as the halls or libraries. The table displays were to be set up and stocked entirely by private citizens who were not in any way affiliated with the schools, and the tables had to bear signs informing students only that they should feel free to take the information and material off them. Under court order, the tables also had to display a disclaimer renouncing any sponsorship or endorsement by the school. No one was allowed to enter the classrooms or announce availability of their religious material. No school assembly was permitted to proclaim the availability of the religious material. School administrators were charged with ensuring strict compliance with these guidelines. Lastly, all religious groups and non-religious groups were allowed to set up similar displays on a designated day. Because of these severe restrictions, the 4th Circuit Court of Appeals upheld the school policy.

However, even with these severe restrictions, the 4th Circuit Court of Appeals unanimously held that this policy was inappropriate in elementary schools. Consequently, the 4th Circuit struck down the policy of allowing distribution of religious material by outside groups as it related to elementary schools. In this regard, the 4th Circuit stated:

[W]e are convinced that a majority of the Supreme Court might well believe that these concerns should be and are sufficient in the, elementary school context to invalidate such policy. We can appreciate fully what might be the Court’s thinking in this regard. In elementary schools, the concerns animating the coercion principle are at their strongest because of the impressionability of young elementary age children. Moreover, because children of these ages may be unable to fully recognize and appreciate the difference between government and private speech——a difference that lies at the heart of the neutrality principle--the County’s policy could more easily be (mis)perceived as endorsement rather than as neutrality. Thus, because our obligation as the Court of Appeals is to reason as we believe the Supreme Court would, we do hold that the school board’s policy is unconstitutional to the extent that it allows the display of Bibles and other religious material in the elementary schools of the County. Accordingly, to the extent that the District Court Judgment sustains this aspect of the Upshur County policy, the Judgment is reversed. Id. at 287-288.

The activities at Vanguard Charter Academy far exceed those allowed in the school policy in the Peck case. There are no safeguards in place to ensure that the schools disassociate themselves from religious practices and beliefs. Instead, to the reasonably informed observer, there is a warm embrace of religious viewpoints and in fact, the particular religious viewpoint of the Christian religion. Therefore, the defendants are not in compliance with establishment clause. the constitutional requirements of the Plaintiffs have every reason to be confident they will be successful in establishing the merits of their claim.

4. IF THE COURT SHOULD ISSUE A PRELIMINARY INJUNCTION.
MINIMAL AT MOST.

Plaintiffs’ motion for a preliminary injunction has asked the court to enjoin any further prayer services occurring on school property during school hours. It has asked the court to enjoin the distribution of religious materials on school property, it has asked the court to enjoin the defendants from conducting any future mandatory in—service programs which involve the use of religious symbols and/or religious presentations. It has asked the court to enjoin the teaching of any moral or ethical focus agenda which endorses a religious and/or particular religious ~ viewpoint. In essence, the plaintiffs have asked the court to enjoin the defendants as public schools to follow the constitution. These actions require no change in defendants’ operations and no expenditure of funds. See Doe v Shandoah County School Board. 737 F. Supp. 913 916 (W.D. Va. 1990). A

Defendants may argue that they have already voluntarily ceased the activities. Specifically the defendants may contend that they have removed the religious material from the school and 7 have required the prayer groups to meet off campus. Though this may be true, when requested by plaintiffs, the defendants refused3 to issue any written directive to this effect. Instead, these actions have been taken under the guise of “a policy review”. No promises or assurances have been given to the plaintiffs that the defendants will now and in the future comply with the constitutional requirements of the establishment clause Furthermore, the courts have held that as a matter of law, voluntary cessation is not a defense to unconstitutional conduct. The court’s jurisdiction may abate only if there is no reasonable expectation that the alleged violations will recur and the intervening events have completely and irrevocably eradicated the effects of the alleged violations. Chandler v. James 985 F. Supp. 1068, 1075, N. 12 (M.D. Ala. 1997).

In regard to the later issue of irrevocably eradicating the effects of the alleged violations, the defendants have refused all plaintiffs’ demands for compensation and remedial action with respect to the constitutional violations which have occurred. Defendants have refused to enter into any settlement agreement which would be enforceable in a court of law.

5. PUBLIC INTEREST ADVANCED INJUNCTIVE RELIEF.

The final factor of the public interest also militates heavily in favor of granting the preliminary injunction. First Amendment rights cut to the very heart of societies’ values. Perhaps more than anything else, the desire to free from state promoted religion and its resulting pressures and the desire to be free to follow the dictates of one’s conscience and beliefs without persecution, is the key historical principle in our Country’s history. In addition, where a federal statute, in this case 42 U.S.C. §1983, prohibits the alleged acts of the defendants for violating the constitution, the plaintiffs are clearly aligned with the public interest.

This criteria of the preliminary injunction is satisfied. While they may be known as charter schools or public school academies, defendants are operating public schools. As public schools, they are subject to the requirements of the First Amendment of the United States Constitution and to the Michigan State Constitution regarding the establishment of religion. Defendants’ actions have resulted in material and substantial breaches of the wall of separation between church and state. The actions documented in this case represent a clear and unqualified endorsement, not only of a religious viewpoint, but of a particular religious viewpoint: Christian belief. Defendants’ actions have violated the plaintiffs’ and their minor childrens’ First Amendment rights. Perhaps equally important, defendants’ actions constitute a violation of societal interest in general. These charter schools are financed with federal and state tax dollars. Use of the charter schools to endorse a religious viewpoint grossly violate the special trust that must exist between charter schools and the tax paying public. Defendants’ actions are unfair to the general tax paying public, their actions are unfair to all other public schools which adhere to the First Amendment principals as represented in the establishment clause, and their actions are unfair to that portion of the public that spends considerable sums of their private money to educate their children in a parochial school environment.

CONCLUSION

For the foregoing reasons, plaintiffs respectfully move this honorable court to grant their motion for a preliminary injunction and to enjoin defendants from:

allowing prayer group meetings to occur during school hours at school facilities;

endorsing the activities of outside prayer groups;

endorsing or participating in prayer groups and prayer services;

distributing religious materials on school grounds during school hours;

holding any school sponsored required teacher in-service programs which includes religious symbols, prayers, and/or religious presentations;

teaching any moral focus lesson plans or agenda which endorse religious viewpoint over a nonreligious viewpoint, and;

engaging in any activity which f church or religious institution.

Respectfully submitted.
By Kary Love (P42623
Attorney for the Plaintiffs

December 16, 1998