MEGAN DAUGHERTY AND DONALD SWEENY,
JEFFREY AND CATHY SEAVER,
individually and as next friends
of their minor children,
Plaintiffs,
V.
VANGUARD CHARTER SCHOOL ACADEMY,
GRAND VALLEY STATE UNIVERSITY, and
NATIONAL HERITAGE ACADEMIES, a
Michigan Corporation, Defendants.
____________________________________/
Case No. : 1:98 CV 897
HON. David W. McKeague
U.S. District Judge
FIRST SUPPLEMENTAL AFFIDAVIT OF JEFFREY SEAVER
Jeffrey Seaver, pursuant to 28 USC § 1746, declare under penalty of perjury that the following is true and correct, excepting those matters stated to be on information or belief, and as to those matters I declare that same are true and correct to the best of my knowledge, information and belief:
1. I have read the Affidavits and Brief of the Defendants in this case. In my view, these documents do not accurately describe the “Parent’s Room” so that the religious nature of its use as it actually impacted upon Vanguard students is understood for the following reasons:
a. The Parent’s Room has three doors: one to the gym, one to what was the library/media center and the third to the outside which was used as an exit for students at the end of the school day.
b. In the Parent’s Room was a wipe board containing the words: “Fall is a beautiful time of year. Teachers we pray you don’t lose your cheer.” These words were present for up to as long as a week or two.
c. Lighthouse Baptist Church property was present in the corner including a sign containing the name “Lighthouse Baptist
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Church,” in plain view; there was also a pulpit and other materials left in open view.
d. Lighthouse Baptist Church and Mom’s Prayer Group literature of a religious nature was left on tables in the room. A book shelf in the corner contained “Focus on the Family” literature, which I attest on information and belief have a christian religious basis for the ethics they contain.
e. Signage was on the inside and outside of the door between the gym and the parent’s room announcing the Mom’s Prayer Group functions.
f. Mom’s Prayer Group mailbox was on the wall next to mail boxes for official school committees.
g. Students routinely used the Parent’s Room for classroom activities.
h. The Parent’s Room was also used as a Teacher’s Lounge. Teachers routinely, attended luncheons in this room sponsored by the Mom’s Prayer Group.
i. Extracurricular activities and classes were held in this room.
j. vanguard Board of Directors and Moral Focus Group Committee meetings were routinely held in the Parent’s Room. This use continues to this day.
k. According to Vanguard’s Annual Educational Report, September 1, 1997, pg 5: “The school facility has established a ‘parent room’ as part of the design of the facility. This room has an outside entrance. Parents can utilize this room at their discretion anytime.”
2. Principal Al Couch told me that he gave permission to the Mom’s Prayer Group to set up a table in the hallway during student orientation in the Fall of 1998 to promote membership in this group.
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3. I have read Doug Dewey, vanguard Teacher’s Affidavit, and he admits to teaching creationism alongside evolution in the science classroom. It is my understanding that creationism is not an accepted scientific theory explaining the origin of animal species, and has been rejected by the U.S. Supreme Court as a scientific area of study. When I enrolled my children at Vanguard, I relied on the fact that this was a public school that would abide by decisions of the Supreme Court and not teach religious doctrines as science.
4. In their Brief Defendants refer repeatedly to Defendants’ “policy” or “policies.” I have been involved for two school years, and I am aware of other parents who have been involved for up to three school years in requesting and attempting to have Defendants formulate policies regarding the establishment of religion issues in this case. To my knowledge, despite such requests, no such policy has yet been promulgated and adopted, although agents of Defendants have made statements that same are in process, and some such policies are supposed to be considered at a special Board of Directors meeting scheduled for February 4, 1999. However, I have personal knowledge of, and have reviewed Vanguard Board of Directors Minutes which show that such policies have been brought up for discussion at Board of Directors meetings and consistently “tabled” without action for at least two school years.
Defendants’ Brief Opposing Preliminary Injunction, page 2, last paragraph, neglects to state that the Board of Directors failed to take any action at the November 1998 Board Meeting, other than to appoint a “facility use subcommittee.” At the December Board Meeting a promise was made to have draft policies available for parent comment at the January 1999 Board Meeting. This did not happen. To my personal knowledge, the Board’s policy
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review has been on-going for 3 school years and the Board has consistently failed to promulgate any policies as promised, as a result Plaintiff parents concluded there was no reason to expect the Board was acting in good faith in developing and promulgating such policies.
5. Defendants’ Brief Opposing preliminary Injunction, page ii, B3b claims no teachers or administrators participates in or monitors the parents’ group activity in the Parents’ Room. I know from personal knowledge that this is not true. As stated above, teachers have participated in Mom’s Prayer Group luncheon meetings. I also noted from reading the Affidavits submitted by the Teachers, that no teacher denied Plaintiffs’ allegations that teachers submit prayer requests for prayers to be conducted by the Mom’s Prayer Group. Clearly, teachers have submitted such requests and effectively ratified and participated in this religious activity at Vanguard.
6. Defendants’ Brief Opposing Preliminary Injunction, page 7 claims Defendants allow Lighthouse Baptist Church to use its facility to increase Vanguards opportunity to increase enrollment. However, it is my understanding and belief that there has been a waiting list for enrollment at Vanguard because the number of applicants exceed the number of student spaces available; although currently there is not a waiting list for all grades. Also, Defendants position indicates that Vanguard has a specific interest in promoting student applications from a select portion of the public, namely those affiliated with Lighthouse Baptist Church.
7. Defendants’ Brief Opposing Preliminary Injunction, page 8 states that “plaintiffs make no allegations that anyone was confused about whether the Lighthouse church was speaking for the Academy.” I was confused about this. When Vanguard listed in its
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goals and prominently displayed the Church sign in the parents room, I concluded the School was endorsing the church. Also, the fact that the School did not charge the Church to use its facility convinced me the School supported the Church through this favored treatment.
8. Defendants’ Brief Opposing Preliminary Injunction, page 10 states that to use the facility the community groups must “make a request to the Academy.” I had a conversation with Al Couch Principal at Vanguard where he advised me that J.C. Huizenga, who I understand and believe is Chairman of the Board and controlling owner of Defendant National Heritage Academies, made the decision to let Lighthouse Baptist Church use the facility at no cost.
Defendants also state such groups must obtain a written permit to use the facility. I have made a FOIA request and reviewed Vanguard’s records regarding such requests and permits, and as of the date I reviewed same, the Mom Prayer Group did not have a building use form on file at Vanguard. The Adam Street Christian School, had a building use form on file dated the same date as my FOIA request, but use by the Adam Street Christian School substantially predated that date.
9. Defendants’ Brief Opposing Preliminary Injunction, page 11, last paragraph and page 14, asserts that teachers and staff present at the Moral Focus Retreat were primarily focusing on eating lunch and were not listening to the Baptist Minister’s presentation. I was present, and this was not my impression. Rather I observed that most teachers and staff present were quiet, respectful and focused their attention on Dr. Reist’s sermon.
Defendants contend, “there is no claim that religious worship occurred during the program.” This is not true. I was present and in my view, the prayer and the sermon that were conducted constituted “religious worship.”
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I find this particularly disingenuous because, before the Moral Focus Retreat (MFR), I received a copy of the MFR Agenda. I was concerned about the MFR Agenda because there appeared to be a substantial religious orientation. I talked to Al Couch, Principal of Vanguard, about my concerns. Mr. Couch told me that NATIONAL HERITAGE ACADEMIES (NHA) controlled the agenda and that I should contact NHA about my concerns. I spoke with a Todd Avis at NHA who was represented to me by NHA as the person to discuss this with. Mr. Avis advised me that there was not going to be a religious aspect to the MFR. However, after attending the MFR it was more of a religious service than I ever expected, as I described in my original Affidavit in this case.
10. Defendants’ Brief Opposing Preliminary Injunction, page 18 states in the last paragraph that the Mom’s Prayer Group contributes to the schools goals. This appears to be an admission that prayer, and in particular christian prayer, is one of Vanguard’s goals. To me it appears that Vanguard’s position is that it has stopped student use of the parent room apparently for the sole purpose of being able to continue to allow religious worship in the room by the Mom’s Prayer Group.
In accordance with a verbal request I was allowed access to Vanguard’s records. When reviewing the records I found, among the Board of Directors Minutes, the result of a parent survey (see: Exhibit A) , for the year 1996-7 indicating numerous comments by concerned parents over the apparent, pronounced religious content of Vanguard’s program. Clearly, the entanglement of religion with Vanguard was known to the Board at least at the time of this survey. The survey results show that a goal of establishing religion at Vanguard is not supported by all the parents. The survey also shows that Vanguard has been aware of concerns about the establishment of religion at Vanguard including comments:
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a. “I think the principal should stand up for his teachers and support them especially when they are confronted with problems about religion in the classroom.”
b. “We are disappointed with the amount of religion that is presented in the Language Arts books.”
c. Under the category “Needs Attention:” “Reminding parents this is a public school, not a Christian school. We are morally focused, not religiously focused.”
d. “I think we need to take a step back and realize that we need to work together as parents and not fight each other over matters like religion, which is supposed to be separate from school “
e. “There is a group of parents that need to be told very firmly that this is a public school and they cannot make moral decisions for everyone based on their particular religion.”
Despite these and other comments and notices to Vanguard of the problems with religion, through January of 1999, no policies have been adopted to regulate establishment of religion at Vanguard.
11. I have read the materials submitted by the Defendants in this case. I know that Parents, including myself, are significantly and substantially involved in the operations at Vanguard, including in the classroom during class hours as volunteer classroom aides, lunch supervisors, tutors, recess aids, office assistants and participants in many parent led committees. In practice this makes parent actions at school appear to be “official school practice.” The Moral Focus Committee of which I am a member, sponsored a “Developing Moral Character in Children” Parents Workshop. It was held after school on school property on or about September 23, 1997. The speaker was Doug Cushman who is a parent of Vanguard students, and a social worker at Wedgewood
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Christian Youth and Family Services. Mr. Cushman repeatedly cited the Bible to support his views on childrearing and stated that God is the only basis for morality. I understand and believe that Mr. Cushman was paid by Vanguard for his services.
12. I have obtained and reviewed a copy of the Management Agreement in effect between NHA (formerly known as Educational Development Corporation Inc.) and Vanguard Charter Academy. A copy is attached as Exhibit B. Pursuant to the Agreement, NHA provides “all labor, materials equipment and supervision necessary for the provision of educational services to students, and the management, operation and maintenance of the Academy (Art. I ¶B) NHA is a for profit Michigan Corporation. (Art. I, ¶C) NHA “shall be responsible and accountable to the Board (of Vanguard) for the administration, operation and performance of the Academy. (Art. III, ¶A) NHA “shall be responsible for all of the management, operation, administration, and education at the Academy.” Art. III, ¶C. “Such functions include but are not limited to:
“1. 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 (EDC [now NHA] may at its discretion use the Academy’s tax exempt and tax identification number in contracts with the Academy for these purchases, or alternatively provide said items in its own name) . Assets provided, or caused to be provided, to the Academy by EDC [now NHA] shall remain the property of EDC or the providing entity unless agree in writing to the contrary. “
“2. Management of all personnel functions, including professional development for the School Administrator and all instructional personnel and the personnel functions outlined in
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Article VI.”
“3. Control, maintenance and operation of the school building, which the Board shall lease or otherwise provide to EDC, and the installation of technology integral to the school design.”
Article III, ¶F provides: “[NHA] and the Board shall be jointly responsible for the recruitment of students . . . ."
Article III, ¶I provides: “[NHA] shall recommend reasonable rules, regulations and procedures applicable to the Academy and is authorized and directed to enforce such rules, regulations and procedures adopted by the Academy. “
Article V, ¶A provides, in pertinent part: “[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.”
I have made the following rough calculations based on a state payment of $5,500 per student being paid to GVSU on behalf of Vanguard multiplied by approximately 485 students, which is the number of enrolled students according to Vanguards publications. These calculations reveal a total state of Michigan payment of about $2,667,500 per annum.
GVSU is charging 1.5% or $40,012.50 as its Charter fee. This leaves a balance of approximately $2,627,487.50. Per the management contract, Vanguard receives 2% of this or $52,549.75 per annum or $4,379.15 per month of funds controlled by the Vanguard Board of Directors. NHA receives and controls the 98% balance or $2,574,937.80 and NHA retains any of said funds not expended to fulfill its “management agreement” obligations as a profit .
Article VI of the “management agreement” provides that “[NHA] shall have the sole responsibility and authority to determine
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staffing levels, and to select, evaluate, assign, discipline and transfer personnel (Art VI, ¶A) Article VI, ¶B grants NHA the authority to select the school administrator, and provides “the Board’s [of Directors for Vanguard] failure to adopt/ratify [NHA’s] recommendations with respect to the school administrator shall constitute a material breach of this agreement.”
Article VI, ¶E provides in pertinent part: “The parties anticipate that virtually all of the staff will be employees of [NHA] . . . . "
Article IX provides that “[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 “
Article VIII governs termination and provides in ¶B.2 that “upon termination or expiration of this agreement, for any reason, [NHA] shall have the right to remove all property (i) owned, leased, guaranteed or provided by [NHA] inclusive of any personal property which the Academy has a right to purchase to the extent the purchase price is not paid in full for all of the property being acquired by the Academy with ten (10) days from the effective date of termination or expiration of this agreement, and (ii) any personal property pledged by the Academy to [NHA].”
Based on statements made in Board of Directors meetings, my review of the management contract and participation as a member of several parent committees at Vanguard, it is my understanding that effectively NHA owns all the school property (including teacher lesson plans) ; employs, trains and disciplines all administrators and staff; determines which rules, regulations and policies will
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be proposed to the Board of Directors. Also, in the event the management contract is terminated, NHA retains all the personal property, lesson plans and other intellectual property, employment contracts with staff and other assets provided under the contract.
In addition, Vanguard Charter Academy letterhead shows that NHA logo prominently. (See Exhibit C)
13. I have obtained and reviewed a copy of the Articles of Incorporation for Vanguard Charter Academy filed with the Secretary of the State of Michigan on June 13, 1996 which shows that J.C. Huizenga, 1007 Parchment Drive, S.E., Grand Rapids, MI, to be the sole incorporator. On information and belief, I attest that this is the same J.C. Huizenga who is a controlling owner of NHA, and the same J.C. Huizenga related to the J.C. Huizenga Trust from which Vanguard rents the school building. I had a conversation with the Principal of Vanguard, Al Couch, who advised me that J.C. Huizenga made the decision to allow Lighthouse Baptist Church to use the Vanguard facility free of charge.
14. Vanguard Board Member Kim VanderSluis has told me that NHA had been “calling the shots” and that “some of the teachers need to be reigned in.” These statements were made in the context of discussing my concerns over excessive religious activities at Vanguard during school hours.
a. In my review of Vanguard’s records, I have found a letter from Ms. VanderSluis, then and now a member of Vanguard’s Board of Directors, dated August 7, 1997, to “Dear Mark” who, on information and belief, I believe is Mark DeHann, Chief Financial Officer for NHA. This letter (see Exhibit D) states in part that: “the following questions [be] answered by Attorney Sorensen in regard to school policy for the distribution of literature on premises. First, may ‘non-school’ literature which has religious content be treated differently than ‘non-school’ literature which
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does not have religious content? . . .
“Second, don’t all students have the constitutional right to be free from religious harassment? If so, doesn’t the handing out of religious flyers at the primary exit of an elementary school constitute harassment as a practical matter? Shouldn’t the ‘acceptance’ of religious material be ‘voluntary?’ If the answer to that question is yes, aren’t elementary school age school children too young to know the difference between ‘voluntary’ and ‘involuntary’ acceptance of this type of material?”
On information and belief, this letter was prompted by an incident where Bill Kirkwood, then Principal, approved a student’s distribution of First Assembly of God literature inside the school entrance .
15. NHA advertises and holds itself out as an entity with multiple “campuses,” of which Vanguard is merely a part. See Exhibit E which is an application for NHA and shows this treatment on page 2 at the bottom. I have also reviewed the “web site” disclosed as the NHA site on Exhibit E and state from my own knowledge that the “web site” treats NHA as a single entity possessing or controlling multiple “campuses” of which Vanguard is one. Another “campus” is known as Excel Academy. The following religious based acts have occurred at the Excel campus and are indicative of NHA’s role in establishing religion at its “campuses : “
a. I attest on information and belief that, J.C. Huizenga was billed for “Focus on the Family” books, which have a christian religious basis for the ethics they contain, and which were located in the Excel Parent’s Room;
b. A teacher by the name of Ms. Gruennart has been reading from the Book of Proverbs in class; has read from the Book of Genesis in the context of teaching about the origin of the world;
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and when discussing the “moral focus” topic of the week “wisdom” in September of 1998 stated words to the effect that “only God has the truth” and then read to the class from the Bible.
c. The King James Bible has been used as a writing text for students who copied verses from the Bible and same were posted in the school building.
d. The Bible, specifically the Book of Psalms, was used by Teacher Ms. Bristol at Excel to teach poetry apparently when teaching the moral focus goal of “gratitude” including such “poems” as:
“Oh Lord, I will always
be faithful to you. I will
give not take, I will praise
you with all my heart.
“Oh Lord, come into
my heart and search me.
Praise the Lord with
my soul and all my inmost
being.
Oh Lord I am thankful
for my family that I
love, animals and the air
that I breathe.
Dear Lord, thank you.
A substantial number of such “poems” were posted on a wall within the school building visible to students.
e. The “golden rule” as quoted in the New Testament is taped to on yardsticks around the door frame in one classroom.
f. On Ms. Gruennarts classroom desk was a “Fruit of the Spirit Daily Bible Verses,” flip calendar containing different Bible verse for every day displayed so students could see it,
16. Based on my review of the materials cited above, my participation on several Parent Committees at Vanguard, including the Moral Focus Committee, statements made at Board of Directors meetings I attended, I am of the opinion that NHA is in control of
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the environment created at Vanguard, the content of class instruction and activities, the discipline and control of teachers and staff and their introduction of their religious views into the school during school hours. I have requested but have received no response to my requests for policies that Vanguard has in place that would give guidance to school staff as to how to maintain neutrality towards religion and I believe that no such policies exist. This issue has been an unresolved issue since the 1996-7 school year, and has been consistently tabled at Board of Directors meetings, many of which were attended by J.C. Huizenga and Patrick Sandro, the GVSU representative responsible for oversight of Vanguard and compliance with Charter requirements. (For example, the issue of distribution of religious literature by students on school grounds was discussed at the board meeting of February 17, 1997 and the Board minutes show “Non Board Members attending: J.C. Huizenga, . . . Pat Sandro. ...“)
17. In my opinion, as a result of the failure of NHA, Vanguard and GVSU to address these issues, my child who attends Vanguard is suffering adverse consequences. My son Jordan Seaver, who is in the first grade, won’t tell his teachers or substitute teachers what he believes because he doesn’t want to hurt their feelings. In my opinion, because of the environment at Vanguard, where religion has been extensively introduced by authority figures including teachers and parents acting as volunteers or quasi-official assistants to the school, my son, a first grader, is having to deal with controversies over religion and religious issues that are beyond his ability to comprehend fully, exceed his intellectual grasp, and result in confusion and detract from his ability to focus on the academic matters that I expected would be the focus of his education when I enrolled him in Vanguard school.
a. For example, a substitute teacher read the Max Lucando
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book, The Crippled Lamb, to Jordan in class. Max Lucando is a well known author of Christian books. This book is essentially a retelling of the Christmas story regarding the birth of Jesus. The substitute teacher made statements to Jordan such as “God is watching over you” and asked him other questions about religion.
b. On February 1, 1999, Jordan advised me that he could not go to school the next day. When I asked him why he stated that this same substitute was going to be his teacher for the day and Jordan was visibly upset at the thought of attending school with that substitute for the day.
18. I have read the Affidavit of Ms. Daugherty where she states she telephoned Jeffrey Seaver, being myself, the day Mr. Couch told her that there would probably be a prayer at the event referred to in her Affidavit and that Ms. Daugherty might want to pull her daughter, Kristin Sweeny, out of school at that time and that Ms. Daugherty expressed her concern to Mr. Couch that it appeared the presence of the Minister would indicate that Vanguard Administration sponsored prayer in the classroom. I recollect that Ms. Daugherty did communicate this information to me at that time.
19. I was present during a Vanguard Board of Director’s meeting where the members of the Board fielded questions from parents about this lawsuit. I was present when, in the context of discussing the allegations made in this lawsuit, Darlene Kolehouse, President of Vanguard’s Board of Directors stated: “We were doing some things wrong. “
Further Affiant sayeth not.
VERIFICATION
I, the undersigned, pursuant to 28 USC § 1746, declare under penalty of perjury that the foregoing is true and correct, excepting those matters stated to be on information or belief, and
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as to those matters I declare that same are true and correct to the best of my knowledge, information and belief.
Date: 2/3/99
Jeffrey Seaver
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