Ms. Daugherty confirmed in her deposition testimony that she had a conversation with Mr. Dewey about the allegation her son Charlie had made that Mr. Dewey was teaching creationism. During the conversation, according to Ms. Daugherty, Mr. Dewey indicated that in his belief humans were not mammals and that was what he said in


8

---

class. (Dep.Tr. M. Daugherty p. 119-121.) Ms. Daugherty had given up on complaining about these types of episodes due to lack of response by Mr. Couch or other administrators. (Dep.Tr. M. Daugherty p. 121-2 and 133.)

NHA policy is to treat both evolution and the biblical creation story as theories. (Dep. Tr. J.C. Huizenga 11-2-99; p. 92) There is evidence that Carolyn Thompson a 5th grade science teacher employed by NHA at Knapp Academy, who describes herself as an “evangelical Christian” said she believes in “creationism and evolution from that point on” and teaches it that way in class. (Dep. Tr. J.C. Huizenga 11-2-99; p. 92) This information was contained in a published story in the Wall Street Journal on September 15, 1999. Mr. Huizenga testified NHA voluntarily participated in the interviews referred to in the story. (Dep. Tr. J.C. Huizenga 11-2-99; p. 93) The story contained a statement attributed to an NHA employee Becky Bullen, 4th grade teacher at Knapp Academy, who apparently dropped teaching about dinosaurs since parents at the NHA school she works at protested that fossil evidence that dinosaurs became extinct 65 million years ago contradicted their biblical belief that God created the world 6,000 years ago.l (Dep. Tr. J.C. Huizenga 11-2-99; p. 94)

---

1Plaintiffs assert the statements of NHA employees at other schools are admissible against NHA under Federal Rule of Evidence 404(b) . FRE 404(b) provides in part that:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may. however, be admissible for other purposes, such as proof of motive opportunity, intent. preparation, plan. knowledge, identity or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. (emphasis supplied)

This rule, most frequently invoked in criminal cases, is applicable to civil case. Bonilla v. Yamaha Motor Corp., 955 F.2d 150, 154 (1st cir. 1992) For example, evidence of prior misconduct has been admitted in civil cases to prove improper motive, notice, a wrongful “pattern or practice” and discriminatory or fraudulent intent. (Christopher B. Mueller & Laird C. Kirkpatrick, Evidence, 257 (1995)


9

---

It is difficult to determine exactly what the Content of classes are at vanguard because as Todd Avis, curriculum director for NHA, testified that NHA’s “history and science curricula do not use textbooks.” (Dep.Tr. T. Avis p. 48.) NHA policy is to create an outline of what needs to be presented and then Teachers are given free rein in the classrooms. (Dep.Tr. T. Avis p. 49-50.)

An article appeared in the New York Times on February 18, 2000 regarding NHA schools to be opened in New York managed by NHA. (See Attached Article: “Charter School to Raise Topic Of Creationism”) Mark DeHann, senior Vice President for NHA was quoted as stating:

If it is as a theory that is held by a number of people rather than as a matter of faith and religious belief, then it is not inappropriate to present it alongside evolution.” That is how National Heritage says it intends to present the material. Mark DeHaan, senior vice president for National Heritage Academies, said creationism would occupy a “minute” portion of the time spent on evolution. “The theory of creationism is appropriately mentioned when you talk of the theory of evolution.” Mr. DeHaan said. “But one percent of the time is spent on that and 99 on the theory of evolution. I think it’s inappropriate to teach evolution as, ‘This is reality,’” he added. “We have to teach evolution as a theory and in doing so we say, ‘By the way there are other theories out there.’ But we’re not going to give the other theories the detail we’re giving to evolution.”

Charlie Sweeney, who attended Vanguard as a third, fourth and fifth grade student, testified in response to a question by Mr. Brooks, counsel for the Defense, asking if anyone told him there was religion at Vanguard: “Well, like no one really told me, cause, like I found out, like ‘cause of the teachers.” (Dep. Tr. Charlie Sweeney p. 5) Charlie recollected the “science guy” teaching in Mrs. Barnes’ science class and that “people would ask how, like these things got here and he kept answering the questions ‘by God.’” (Dep. Tr. Charlie Sweeney p. 16-7) He


10

---

testified about an occurrence in third grade when “I had something wrong with my kidney” and his teacher, Ms. Halka “sent home a book for me to study, and it was a Christian book that she had picked up from her last school because she was a teacher for a Christian school.” (Dep. Tr. Charlie Sweeney p. 20) Charlie recollected Ms. Green reading the class a Bible story about David and Goliath during lunch. (Dep. Tr. Charlie Sweeney p. 21) Charlie also testified about the Bible, and “quite frequently” bible stories that were present during band practice in what is now called the parents room. (Dep. Tr. Charlie Sweeney p. 26-7) He recollected Mr. Dewey telling the whole class “that evolution isn’t true or something.” (Dep. Tr. Charlie Sweeney p. 28-9)

Kristen Sweeney confirmed the use of Veggie Tales in her “fifth or sixth” grade class teaching about the birth of Jesus. (Dep. Tr. Kristen Sweeney p. 30-1) Jordan Seaver, age seven and one-half, testified about some episodes of being read Christian stories by Ms. Meekhoff, a substitute teacher, and being teased by other students about religion. (Dep. Tr. Jordan Seaver p 26-30) After Ms. Meekhoff read him the Christian story, she told him “God looks over you and God is with you.” (Dep. Tr. Jordan Seaver p. 38)

Ms. Daugherty confirmed, despite Ms. Rosema’s denial, that they had a conversation where Ms. Rosema said, “I can’t not have Bible stories being read in a public school” when Ms. Daugherty confronted her about allegations of Bible stories being read in Joseph Sweeney’s class. (Dep.Tr. M. Daugherty p 192-3.) Ms. Daugherty testified she spoke with Ms. Peg Sonk, a parent volunteer, and Ms. Sonk advised that she did read Bible stories in Mrs. Rosema’s class, and that Ms. Sonk stated she had permission from Ms. Rosema to do so. (Dep.Tr. M. Daugherty p 194-5.) If Ms. Daugherty’s version is true, it supports the entanglement claim.

C. NHA EMBRACES A RELIGIOUSLY INFLUENCED MORAL FOCUS CURRICULUM BOTH IN THE VANGUARD SCHOOL AND IN TRAINING ITS EMPLOYEES

11

---

J.C. Huizenga believed at the time he began to become interested in Charter Schools, that there was among the public a “general dissatisfaction with the lack of character being taught in public schools.” (Dep. Tr. J.C. Huizenga 11-2-99; p. 19) This resulted in the moral focus NHA schools would use to market NHA schools as a choice superior to conventional public schools.

The moral focus of the curriculum for NHA schools was originally developed by persons associated with NHA run Excel School. Mr. Huizenga testified he recalled this being done by “primarily two people, Mrs. Siegel and Bill Knoester.” Apparently the moral focus curriculum “evolved” from Excel the first NHA school, to be used in later NHA operated schools. (Dep. Tr. J.C. Huizenga 11-2-99; p. 8-9) The “Rationale Statement for Morals and Ethical Education” (“Rationale Statement”) at Excel included the statement: “Without an integration of moral absolutes (based on the authority of a higher being) we will be willing partners in the propagation of our society’s current value system and lack of moral ethics (i.e. greed, self interest, narcissism, materialism.)” (See:”Rationale Statement” attached.) The Affidavit of Lynnette Grate previously tendered averred this: “Rationale Statement” was distributed at a PTO meeting in about September of 1998.” This raises a disputed issue of fact as to whether the “evolution” of the Excel moral focus continued at Vanguard so that the “higher being” remained the basis for the moral focus.

This seems to be supported by the Moral Focus Curriculum itself. (See attached: NHA “Moral Focus Framework with Appreciation to Members of the Excel Faculty”) The “Moral Focus Curriculum” (MFC) Defendants contend is based on the four cardinal greek virtues: “prudence; temperance; fortitude; justice.” In fact, the “Moral Focus Curriculum” of NHA strays remarkably from the four cardinal greek virtues asserted. Under “justice” the MFC includes “to do what is honorable, right and merciful.” It is suspect as to whether “mercy” was part of the Cardinal Greek virtue of “justice;” that mercy is part of a Christian concept of


12

---

justice seems beyond cavil.

“Justice” for April is defined in the MFC as to “care for others in the kindest way possible” and includes under “Key Words,” “compassion, kindness, forgiveness, grace.” “Extra words” to get the concept across to students are “gentle, merciful, tenderhearted and forgiving.” For May, “justice” in the MFC is “integrity” with “Key Words” including “virtuous” and “faithful.”

“Temperance for November includes: “Gratitude; to be thankful,” followed by the “Key Words” including “Generous” and the “extra word” “unselfish.” For January “temperance “ includes the virtue of “encouragement” defined as “to put others first and build them up.” “Key words” include “humility” and extra words include “meekness.” Fortitude for February is the virtue “courage” with “Key Words” including “moral strength, conscience, faith, self-sacrifice.” Extra words include “righteousness.” The daily MFC for “Monday” gives additional guidance as to what is being inculcated: “Courage begins with moral strength to live by our conscience in the fact of obstacles. It requires faith and self-sacrifice.” (emphasis in original)

Perhaps most telling, the daily MFC for “Monday” gives additional guidance as to what is being inculcated under this “Greek virtue” of “justice” also known as “ compassion:” “Compassion begins with empathy for others and is demonstrated by kindness and forgiveness. It depends on grace.” (emphasis in original) Although arguably other inferences might be drawn, against the back drop of the Excel “higher being” MFC and the MPG, Prayer Requests and other activities shown, the foregoing supports the existence of a material issue of fact on the religious content of the MFC.

D. TEACHER PRAYER GROUPS AND PARTICIPATION IN PRAYER ACTIVITY EXISTED AT VANGUARD

In this environment, teacher prayer groups came to be formed by NHA teachers, including those at Vanguard, meeting in the school building, shortly before school started apparently at times


13

---

students could be arriving for the school day. (Dep. Tr. Monica Zegunis p. 26-30) Ms. Raby, a parent volunteer and MPG member, became aware that a group of teachers was meeting as a prayer group. (Dep. Tr. Melody Raby p. 31-2) To her knowledge the teachers involved were a Ms. Jill Sage and Mrs. Darryl. She recollected probably learning of this in the MPG. (Dep. Tr. Melody Raby p. 31-2) It is unclear if this is the same group of teachers Ms. Zegunis testified about as that group included Ms. Zegunis, Ms. Bialik and another woman teacher whose name Ms. Zegunis could not recollect. (Dep. Tr. Monica Zegunis p. 26-7) Apparently associated with this, Ms. Zegunis keeps a King James Bible in her desk at Vanguard. (Dep. Tr. Monica Zegunis p. 20)

Alicia Kintz, minor plaintiff aged 13, testified about her awareness of religious matters, activities and materials at Vanguard over the four years she has attended. She spoke of “where in the morning you’d go and they’d sit around the flag pole
and they’d sit there and pray.” (Dep. Tr. Alicia Kintz, p. 9) She was asked who does that and testified that two of her teachers attend to her knowledge. (Id.) Although this took place before school it was while students were arriving for the school day. (Dep. Tr. Alicia Kintz1 p. 9) A genuine issue of material fact exists as to whether the school was so entangled with teacher prayer that a reasonable observer would find an establishment.

E. PARENT VOLUNTEERS INFLUENCED THE CLASSROOM AND SCHOOL ENVIRONMENT FURTHER ENTANGLING THE SCHOOL WITH RELIGION

Parental input is extensive in accord with the NHA marketing model. “Parents now, since they’re the ones who are making the decision about their child--where their child goes to school, they begin to have input into what the academic curriculum looks like. We even have parent committees that help interview new teachers. I think that’s valuable input. So it becomes an empowering kind of system where parents are included rather than excluded.” (Dep. Tr. J.C. Huizenga 10-14-99; p. 31-2) Todd Avis testified that the Teachers Handbook in use by NHA makes clear to teachers that:


14

---

“Our parents are our customer base and that we are here to serve them and we will listen to their concerns and treat them just as any customer would want to be served. That’s part of our--that’s part of our philosophy.” (Dep.Tr. T. Avis p. 51.) Mr. Avis confirmed the Teachers Handbook advises: “If we fail to offer an outstanding education we will not stay in business.” (Dep.Tr. T. Avis p. 52.) Jeff Poole NHA’s vice president for marketing, in an Article appearing on January 23, 2000 in the Grand Rapids Press confirmed when he was quoted as saying: “We have, first and foremost, to keep parent happy and their children happy. And we’re doing that.” (See Attached: Grand Rapids Press article, 1/23/00, “Will Charter Schools Make the Grade?”)

According to teacher Monica Zegunis, parents provide “lots of help in [class] rooms.” Parents read Bibles and bible stories with their children in the classroom at Vanguard. (Dep. Tr. Monica Zegunis p. 18-19)

Ms. Green, MPG coordinator, testified to how parental “empowerment” works at Vanguard. She indicated that she spoke with 4th grade teacher Ms. Barnes about disagreement over teaching evolution and asked her, “Are you aware that there are some people who will rebel against this?” She testified Ms. Barnes, “said yes, because she was aware that there were some parents who were strongly against evolution.” (Dep. Tr. JoAnne Green p. 73-4) It was Ms. Green’s understanding that creationism “is always presented alongside the idea that evolution is believed by some’ creationism is believed by others and that these are possibilities.” (Dep. Tr. JoAnne Green p. 73) Mr. Dewey a Vanguard science teacher told Ms. Green that he believes in the “creation theory,” meaning that “God created the earth and the heavens.” Marge Halka according to Ms. Green has similar views to those of Mr. Dewey, and that Ms. Halka indicated creation theory “would be presented, again, you know as an option that there are some families that believe differently from the evolution theory and that she would encourage the children to stick to the


15

---

teachings of their parents.0 (Dep. Tr. JoAnne Green p. 78--9) Ms. JoAnn Green, in addition to her activity as MPG member and coordinator, was also a substitute teacher for Vanguard, although she aid not have a teaching certificate nor was on the Kent County ISD substitute teacher list. (Dep. Tr. JoAnne Green p. 5-6)

Other manifestations of parental empowerment included. “quite a disturbance” centering around the celebration of Halloween at a parent teacher meeting in the 1996-7 school year. Mt centered around differences in belief and how to express it. I do recollect that the point was brought up that some parents had gone back to different teachers--and I could not say which ones--but had gone back and were very, again, vehement with teachers, accusatory and whatnot, of maybe, you know, not having better control of the classroom....” (Dep. Tr. JoAnne Green p. 75-7) Halloween is not celebrated at Vanguard, and NHA has a policy of holding rather a “Fall Festival.”

NHA saves money by not providing buses or cafeterias. (Dep. Tr. J.C. Huizenga 11-2-99; p. 88) The use of parent volunteers to provide “car pooling11 for transportation and as classroom lunch supervisors is a custom or policy of NHA, one it has a financial incentive to use.

Teachers are non-union and are dependent to some extent on parent approval for bonus pay. (Dep. Tr. J.C. Huizenga 11-2-99; p. 89) That teachers are interested in the annual bonus process cannot be denied. They can use it to take stock options in NHA, further implicating teachers in the need to be customer friendly to parents. (Dep. Tr. Cynthia Rosema, p. 5-7)

Mr. Huizenga indicated that it is true that because parent involvement and the parent as customer is so important to NHA’s success that the parents’ religious views influence what is taught in NHA’s schools. (Dep. Tr. J.C. Huizenga 11-2-99; p. 104-5) Ms. Green the MPG leader testified that she understood that NHA is responsive to parents because NHA cannot compel students to attend, but parents must elect to send their children to NHA


16

---

schools. She was aware that if she removes her children, NHA will not receive state reimbursement for that child. As a result, it is her experience that the NHA staff and administrators and teachers make an effort to accommodate the parent’s “educational wants and desires” for their children at Vanguard. (Dep. Tr. JoAnne Green p. 71-2)

Parent Melody Raby testified she was a volunteer who provided “transportation” and “lunch room mom” assistance. During the 1998-99 school year, she was “lunch room mom” for several teachers, Ms. Zegunis, Ms. Burton and Ms. VanDyke. (Dep. Tr. Melody Raby p. 5-8) She was also a member of the MPG. Ms. Raby testified prior to selecting Vanguard for her children she home-schooled them “because of the education we wanted them to have. It was a Christian education without the expense of a Christian School.” (Dep. Tr. Melody Raby p. 12) Apparently she found a comparable environment at Vanguard after attending an “orientation” and subsequently enrolled her children. (Dep. Tr. Melody Raby p. 13-21) Ms. Raby advised the Vanguard Board that she prayed with her children, as many as three, while being a “lunch room mom” about March 15, 1999. (Dep. Tr. Melody Raby p. 22-4) Ms. Raby also advised the Board she would not stop praying with her child in the classroom during lunch. (Dep. Tr. Melody Raby p. 23) Ms. Raby did not know if teachers or administrators were aware of her praying or bible reading with her children in classes because “she didn’t pay attention. To me it was just part of our life.” (Dep. Tr. Melody Raby p. 27) She estimated that she also prayed with her children during lunch when she was not the “lunch room mom.” She would simply stop in for a visit, and that was acceptable to Vanguard. (Dep. Tr. Melody Raby p. 25). This would occur “maybe at least 3 times a month.” (Dep. Tr. Melody Raby p. 28) Ms. Raby recalled at least one “lunch room mom” Ms. Gerswhin (sic) being present when Ms. Raby did this. (Dep. Tr. Melody Raby p.26)

Ms. Raby volunteered 4-5 hours a week at Vanguard. Most of this was not during lunch. She helped teachers with paperwork,


17

---

correcting papers and photocopying. She received no training from Vanguard regarding First Amendment type issues regarding free exercise or establishment of religion prior to acting as a volunteer. (Dep. Tr. Melody Raby p. 29-31)

Ms. Raby testified she told the Vanguard Board during the March 15, 1999 meeting that she would play “christian music,” during her transportation of students. She further testified she was told by “probably the Board” that it was all right to play that music if “the kids ask you to turn to a certain station.” (Dep. Tr. Melody Raby p. 34-5) The station she was referring to was 89.9 FM known as WAY—FM which is a “contemporary Christian radio station. (Dep. Tr. Melody Raby p. 36-7)

The extensive involvement as parents as volunteers was confirmed by Ms. Green. Her volunteering included “lunch duty” and also being “asked to step into a classroom and just kind of oversee it for a few minutes while the teacher steps out To her knowledge other MPG members have done similar things. (Dep. Tr. JoAnne Green p. 34-5) On occasion Ms. Green has been a lunch duty mom and brought her son Jeremy with her. Jeremy was not an enrolled student, but according to Ms. Green NHA employees authorized her to bring Jeremy with her to lunch duty. When Jeremy and she are in the classroom she “will remind him to pray before he eats his lunch. (Dep. Tr. JoAnne Green p. 66-8) She has done this in Mr. Dewey’s classroom.

Ms. Green has not ever received any training by NHA or Vanguard regarding First Amendment, free exercise and establishment clause issues as part of her substitute—teaching role at Vanguard. (Dep. Tr. JoAnne Green p. 52) Any information she received in this regard came from informal discussions and her recollection was the reason it came up at all was “. . .in regards to the lawsuit, things that we had heard about the lawsuit.” (Dep. Tr. JoAnne Green p.53-4) Ms. Green never received any training regarding First Amendment matters for her volunteer activities. (Dep. Tr. JoAnne Green p. 55) The cavalier attitude


18

---

towards training volunteers reflects NHA’s unwillingness to prevent introduction of religious messages into the school environment by volunteers. If NHA does not attract parents, it will not attract children. If NHA does not enroll children it does not receive state per child funds. If NHA does not receive sufficient funds to make a profit its value is diminished and its stock will have less value. Interference with the parents’ religious expression while providing service for NHA would not be in NHA’s financial interest.

Children were impacted by this environment. Alicia Kintz was aware of parent volunteer talking with other children apparently about what they prayed about during lunch. (Dep. Tr. Alicia Kintz, p. 14-5) Ben Sweeney, seven years old testified that he recalled a mom reading a pop up book about Jesus birth during lunch at Vanguard. (Dep. Tr. Charlie Sweeney p. 18-20) Kristen Sweeney told a friend of hers that she was jewish because she didn’t want “people to make fun of me because I didn’t have a certain religion.” (Dep. Tr. Kristen Sweeney p. 27-9) Joe Sweeney also testified that other students teased him about his religion almost everyday during lunch. He was not certain if teachers or parent volunteers heard this teasing. (Dep. Tr. Joe Sweeney p. 19-23)

F. NHA IS A FOR PROFIT CORPORATION WITH A RELIGIOUS CULTURE THAT IS PART OF ITS MARKETING STRATEGY AND INFLUENCES ITS POLICIES AND PRACTICES

J.C. Huizenga, the Chairman of NHA, described himself as a “evangelical christian.” (Dep. Tr. J.C. Huizenga 11-2-99; p. 78-9) He has led a corporate culture at NHA that encourages prayer, Bible verse reading and a Christian philosophy. In October of 1998 plaintiffs by prior counsel formally threatened this lawsuit asserting establishment clause concerns. Following this, Mr. Huizenga on December 4, 1998, gave his “traditional” holiday address to about 600 assembled NHA employees. (Dep. Tr. J.C. Huizenga 11-2-99; p. 52-77) This speech had become “traditional”


19

---

over the years since NHA started its first school with an added twist: “As many of you already know, we have recently received some complaints from a small group of parents about the moral focus component of our curriculum.” J.C. Huizenga read from the Bible, Luke 2, the account of Christ’s birth. He praised the assembled employees for their accomplishments and stated: “But the thing I want you to know is you’re doing things incredibly well. . .please don’t stop doing it.” Surely J.C. Huizenga was arguably telling the NHA employees to ignore the plaintiffs’ claims of establishment clause violations and exhorting them to continue. Teachers listen to Mr. Huizenga when he speaks at the Christmas galas and they know that his religious beliefs are important to him. (Dep. Tr. Cynthia Rosema, pg. 26-7)

Mr. Huizenga told the employees: “Before we get started I’d like to begin the way we begin our meal times at home. . .with a word of prayer.” He continued: “. . . please understand that because my faith is important to me. . . .“ Arguably, Mr. Huizenga was letting his employees know his personal views and their significance in his life, so they could take guidance as to what he expected of them. He stated: “Please join me in Prayer,” and then led the assembled employees in a Prayer that ended: “We pray this in your name Christ Jesus. Amen.”

He followed this Prayer with a “Comment” section of his presentation. He told the employees “I’d like to continue with a tradition that began a few years ago. . .reading the Christmas story as found in Luke 2,” and: “. . .I believe this to be an accurate“ account of the birth of Jesus Christ 2000 years ago. . . . He exhorted the employees to understand his “belief that the celebration of our faith is an important component of the way we live our lives.” Mr. Huizenga stated this view was consistent with what the founding fathers believed and what they sought to protect when they “wrote into our nation’s constitution the Establishment Clause.” A reasonable observer could conclude that Mr. Huizenga was exhorting employees to inject their faith in to


20

---

their daily lives, and in the context of a annual meeting of teachers, this might include their teaching lives.

Mr. Huizenga made some disclaimers: “While I do not wish to be offensive However, his true position is baldly stated:

While it may not be appropriate to read from the bible (sic) out loud in a public school setting with children present, I see nothing wrong with continuing the tradition of recalling the Christmas story here tonight. Those who disagree are welcome to share your thoughts afterward or at some later date.

It is arguable that a reasonable observer might conclude from this that Mr. Huizenga was not encouraging dissent. Ultimately, Mr. Huizenga left little doubt as to what he was exhorting his employees to do as he finished:

The thought I want to leave you with tonight is that when you feel that the Lord is trying to use you no matter how surprising or bold the endeavor is, first make sure you understand what He is saying then go forward boldly in the confidence of his guidance.

This supports an issue of fact as to whether Mr. Huizenga intended employees to apply this while at work. NHA employees surely took such statements seriously, especially considering, as Mr. Huizenga testified, it cost NHA “upwards of ten grand” to put on the ‘98 Christmas Party at the Amway Grand Plaza. (Dep. Tr. J.C. Huizenga 11—2—99; p.107)

The religious aspect of NHA corporate culture is inherent in what Mr. Huizenga refers to as the “tradition.” Not only the annual party, but also the “annual Fall-Kick Off” or “Fall Galas” held just prior to the beginning of the school year include religious activity. (Dep. Tr. J.C. Huizenga 11-2-99; p. 52-77) J.C. Huizenga has personally invited various persons to give the “invocations” at the Fall Galas.

Mr. Huizenga admitted that his presentations at the Annual Holiday Parties are important and that he intends by same to communicate the importance of what he is saying to the assembled NHA employees. (Dep. Tr. J.C. Huizenga 11-2-99; p. 105-7) Mr.


21

---

Huizenga admitted that in the event of a conflict between his religious views and the law, which predominated would “depend on the conflict.” (Dep. Tr. J.C. Huizenga 11-2-99; p. 107-9)

G. RELIGIOUS MATERIALS DISTRIBUTION WAS SUPPORTED BY NHA

J.C. Huizenga purchased the “Focus on the Family” literature complained of by Plaintiffs and put in the “parents room.” (Dep. Tr. J.C. Huizenga 10-14-99; p. 52) Mr. Huizenga was aware this literature was related to Dr. James Dobson who is a “Christian” and that “filters through his philosophical approach.” (Dep. Tr. J.C. Huizenga 10-14-99; p. 58) Mr. Huizenga also provided the Thanksgiving, Easter and Christmas “cards” plaintiffs complain of which he “made available to principals” on “how to celebrate the
three different holidays.” Mr. Huizenga understood these materials promoted religion as he identified them in response to a question asking if he had caused to be shipped to any NHA school materials that “have a Christian message or Christian philosophy in them.” (Dep. Tr. J.C. Huizenga 10-14-99; p. 61-2)

H. THE MORAL FOCUS RETREAT OF OCTOBER 1998 REFLECTED THIS RELIGIOUS TRADITION OF NHA

J.C. Huizenga attended the Moral Focus Retreat for NHA schools held on October 23, 1998. (Dep. Tr. J.C. Huizenga 11-2-99; p. 21) The presence of the Chairman of NHA at the mandatory inservice clearly communicated to the assembled employees the importance this meeting represented to the company. The religious overtones of this event have been described elsewhere. Defendants do not dispute what occurred, but defend by saying, it was the fault of the invited speakers, not NHA policy or custom. In light of what the facts show about the religious influence present as a “tradition” at NHA, this is a disputed issue of fact to be resolved by a trier of fact after viewing the demeanor of declarants while making these statements.

Defendants dispute NHA’s responsibility for the remarks of Dr. Reist at the October Moral Focus Retreat. Todd Avis, then


22

---

Director of Curriculum and Teacher Development for NHA, and himself a graduate and former faculty member of an affiliate of Hillsdale College, contacted Dr. Reist and invited him to speak. Todd Avis testified, in response to being asked was there anything else, besides Dr. Reist being a member of Hillsdale College faculty, that Mr. Avis knew about Dr. Reist that would make him appropriate for that program: “Other than being a man of letters in religion and philosophy who understood our moral focus and could--and he agreed to speak on those principles.” (Dep.Tr. T. Avis p. 19.) Mr. Avis follow-up letter to Dr. Reist confirming his agreement to speak belies NHA’s claims: “As we discussed, teachers are increasingly challenged by moral relativism. This, of course, runs contrary to our intentions and hope.” (See Letter to Reist from Avis) . That they discussed concerns about addressing “moral relativism” is evidence that Mr. Avis intended Dr. Reist to support “moral absolutism, “ perhaps based on a supreme being like the MFC, in addressing NHA employees and solicited such declarations as Dr. Reist ultimately produced.

I. NHA CONTROLS VANGUARD AND 90% OF NHA FUNDS ARE GOVERNMENTAL FUNDS

NHA controls the members of the School Boards of Directors (Board) at the Charter School it operates. In fact, at Vanguard, J.C. Huizenga provided “a lot of the names” of persons who ended up on the Board. Grand Valley State University (GVSU) Trustees has not rejected any NHA nominees to the Board. (Dep. Tr. J.C. Huizenga 10-14-99; p. 42-8) The Vanguard Board is composed entirely of volunteers who meet once a month to formulate policy, but all other management and operation of Vanguard on a day to day basis is a responsibility of NHA. (Dep.Tr. Darlene Kolehouse p. 3-10) Ms. Kolehouse confirms Mr. Huizenga’s role in her selection to the Board and that there are business relations between her employer and NHA.

Mr. Huizenga has even found teachers on his own initiative that have been hired at Vanguard. Ms. Monica Zegunis testified


23

---

that it was her encounter with Mr. Huizenga that led to her being hired as a 3rd grade teacher. (Dep. Tr. Monica Zegunis p. 5)

The Defendants have not disputed the facts contained in the prior Affidavit of Jeffrey Seavers regarding the financial arrangements between NHA and Vanguard, where it was shown NHA receives about 98% of the funds Vanguard collects from public sources and Vanguard controls only 2%. (See: FIRST SUPPLEMENTAL AFFIDAVIT OF JEFFREY SEAVER; filed in Support of Motion for Preliminary Injunction ¶12.) Especially telling is Article VIII of the Management Agreement which 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 . . . of this agreement. . . .“ With only a pittance of the public funding in its control, Vanguard, in the event of a dispute with NHA has a mere ten days to come up with the funds to buy back all property needed to run the School. This provision alone, independent of the other operational authority NHA is granted, places the Board at the mercy of NHA.

The annual operating budget for NHA consists of more than 90% governmental funds and private sources “probably less than 10%.” (Dep. Tr. J.C. Huizenga 11-2-99; p. 86-7) Defendants do not appear to contest NHA is a person subject to 42 USC §1983. It is clear that NHA controls the operation of Vanguard, and that the Court ought to review the facts in this case as though what is done by NHA, Vanguard and Parent “volunteers” are the acts of a School District for purposes of establishment clause analysis.

J. PRIVATE ACTIONS OF INVITEES

Plaintiffs are not contesting the “memorial service” as a violation. The Private Speakers issue remains a disputed area in that it appears Ms. Halka did not advise Mr. Gordon of any First


24

---

Amendment constraints on his comments contrary to the Schools own policies. (See: First Amendment Policy, Part 4, page 6 of 16: “It is the responsibility of teachers. . . to notify, whenever relevant, outside speakers. .of Vanguard’s policy and its guidelines.”)
It is submitted this is evidence of the “sham” nature of the policy and NHA’s employees being influenced not to meaningfully implement same due to the reasons asserted above.

IV. A GENUINE ISSUE OF MATERIAL FACT EXISTS AS TO WHETHER NHA HAS ESTABLISHED RELIGION AT VANGUARD

Plaintiffs contend that the totality of what is transpiring at Vanguard supports the conclusion that a religious slant permeates the entire operation of the school so that a establishment clause violation has occurred. As the Supreme Court explained in Abington School Dist. v. Schempp, 374 U.S. 203 (1963)

The distinction between the two clauses is apparent - a violation of the Free Exercise Clause is predicated on coercion while the Establishment Clause violation need not be so attended. The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce non-observing individuals or not. This is not to say, of course, that laws officially prescribing a particular form of religious worship do not involve coercion of such individuals. When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.” [374 U.S. 203, 223]

Clearly coercion need not be shown. If the acts of the defendants have put the power, prestige and financial support of government behind acts promoting religious belief, that is sufficient. The Court went on to note:

public schools are organized “on the premise that secular education can be isolated from all religious

25

---

teaching so that the school can inculcate all needed temporal knowledge and also maintain a strict and lofty neutrality as to religion. The assumption is that after the individual has been instructed in worldly wisdom he will be better fitted to choose his religion.” Id., at 23-24. [374 U.S. 203, 2181 (emphasis supplied)

In LEMON v. KURTZMAN. 403 U.S. 602 (1971), the Court counseled the facts of each establishment clause case must be viewed comprehensively:

Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U.S. 236, 243 (1968); finally, the statute must not foster “an excessive government entanglement with religion.” Walz, supra, at 674. Judicial caveats against entanglement must recognize that the line of separation, far from being a “wall,” is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship. [403 U.S. 602, 612-3] (emphasis supplied)

Several of the concerns present in the Lemon facts exist here.

In Allen the Court refused to make assumptions, on a meager record, about the religious content of the textbooks that the State would be asked to provide. We cannot, however, refuse here to recognize that teachers have a substantially different ideological character from books. In terms of potential for involving some aspect of faith or morals in secular subjects, a textbook’s content is ascertainable, but a teacher’s handling of a subject is not. We cannot ignore the danger that a teacher under religious control and discipline poses to the separation of the religious from the purely secular aspects of pre-college education. The conflict of functions inheres in the situation.

Several teachers testified, however, that they did not inject religion into their secular classes. And the District Court found that religious values did not necessarily affect the content of the secular instruction. But what has been recounted suggests the potential if not actual hazards of this form of state aid. The teacher is employed by a religious organization, subject to the direction and discipline of

26

---

religious authorities, and works in a system dedicated to rearing children in a particular faith. These controls are not lessened by the fact that most of the lay teachers are of the Catholic faith. Inevitably some of a teacher’s responsibilities hover on the border between secular and religious orientation. [403 U.S. 602, 618]

We need not and do not assume that teachers in parochial schools will be guilty of bad faith or any conscious design to evade the limitations imposed by the statute and the First Amendment. We simply recognize that a dedicated religious person, teaching in a school affiliated with his or her faith and operated to inculcate its tenets, will inevitably experience great difficulty in remaining religiously neutral. Doctrines and faith are not inculcated or advanced by neutrals. With the best of intentions such a teacher would find it hard to make [403 U.S. 602, 619]a total separation between secular teaching and religious doctrine. What would appear to some to be essential to good citizenship might well for others border on or constitute instruction in religion. Further difficulties are inherent in the combination of religious discipline and the possibility of disagreement between teacher and religious authorities over the meaning of the statutory restrictions. [403 U.S. 602, 617-9] . . .

Unlike a book, a teacher cannot be inspected once so as to determine the extent and intent of his or her personal beliefs and subjective acceptance of the limitations imposed by the First Amendment. [403 U.S. 602, 620]

The pervasive religious atmosphere shown to exist at Vanguard is analogous to the fusion between catholic schools, public funds and teachers in Lemon. The absence of textbooks gives rise to the potential for teacher manipulation of the subject matter without accountability or restraint. The religious “tradition” of NHA, manifest through its Chairman and vigorously transmitted to its employees through speeches at annual meetings and fall galas,2 and

---

2 The prayer activity at these events is analogous to that in Coles v Cleveland Bd of Ed, 171 F.3d 369 (6th Cir. 1999) which struck down as a violation of the establishment clause the Board’s practice of opening meetings with prayer in large part because its meetings are an integral part of the public schools. Citing Engel v. Vitale, 370 U.S. 421 (1962), the Sixth Circuit noted, “The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated . . . whether those [governmental practices] operate directly to coerce nonobserving individuals or not.” Discussing Engel and Schempp, the Sixth Circuit noted: “As these two cases make clear, coercion is not the full extent of the proper inquiry under the establishment clause. Mixing religious activity with a government institution designed to foster and educate youth in the values of a democratic, pluralistic society is troubling because of the special nature of public schools as ‘the symbol of our democracy and the most pervasive means for promoting our common destiny. ‘“ “Based on the above review of the Supreme court’s school prayer cases, two overriding principles can be discerned. The first is that “coercion” of impressionable young minds is to be avoided, and the second is that the endorsement of religion is prohibited in the public schools context.”


27

---

reinforced at Moral Focus Retreats, gives rise to the dangers underscored by the Court in Lemon.

The Lemon court struck down both challenged programs even though the State laws involved prescribed specific safeguards to avoid entanglement, something not present in this case.

We do not assume, however, that parochial school teachers will be unsuccessful in their attempts to segregate their religious beliefs from their secular educational responsibilities. But the potential for impermissible fostering of religion is present. The Rhode Island Legislature has not, and could not, provide state aid on the basis of a mere assumption that secular teachers under religious discipline can avoid conflicts. The State must be certain, given the Religion Clauses that subsidized teachers do not inculcate religion -indeed the State here has undertaken to do so. To ensure that no trespass occurs, the State has therefore carefully conditioned its aid with pervasive restrictions. An eligible recipient must teach only those courses that are offered in the public schools and use only those texts and materials that are found in the public schools. In addition the teacher must not engage in teaching any course in religion. A comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions are obeyed and the First Amendment otherwise respected. [403 U.S. 602, 620] (emphasis supplied)

Rather than scrupulously undertaking to ensure no trespass occurs, NHA has endeavored to avoid all accountability by allowing MPG members and other parent volunteers to foster religion, and by allowing teachers maximum leeway without the guidance of required


28

---

texts and by taking no meaningful action to investigate concerns voiced by these Plaintiffs, let alone intercede.

The Supreme Court has never held that the government can permit private groups to display sectarian religious materials, let alone conduct prayer sessions, read and discuss Bibles, in public schools while school is in session. Rather, the Court has repeatedly stressed the susceptibility of school children to the power of government and the pressure of peers in “enforc[ing] religious orthodoxy,” Lee v. Weisman, 505 U.S. 577, 592-93 (1992), and has warned against the use of the Bible as an “instrument of religion” in the public schools. School Dist. of Abington Township v. Schempp, 374 U.S. 203, 224 (1963). Accord Stone v. Graham. 449 U.S. 39, 41 n. 3 (1981) (per curiam); Edwards v. Aguillard, 482 U.S. 578, 608 (1987) (Powell, J., concurring).

Because “ [t]he State exerts great authority and coercive power through mandatory attendance requirements, and because of the students’ emulation of teachers as role models and the children’s susceptibility to peer pressure, ‘ the Court itself has pointed out the frequency with which it has been required “to invalidate statutes which advance religion in public elementary and secondary schools.” Edwards, 482 U.S. at 584. For example, the Court has found violative of the Establishment Clause not only an in-school Bible reading requirement, Schempp, 374 U.S. at 223-26, but also the posting of privately financed copies of the Ten Commandments in public school classrooms, Stone, 449 U.S. at 39-41, the imposition of limitations on the teaching of evolutionary theory in public schools, Edwards, 482 U.S. at 586-96 (in Edwards the 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 concluding the purpose of the law was to promote a particular religious doctrine.); Epperson v. Arkansas, 393 U.S. 97, 104-09 (1968), the observance of a one-minute period of meditative silence or voluntary prayer during regular school


29

---

hours, Wallace v. Jaffree, 472 U.S. 38, 55-61 (1985), and, most recently, the use of a short nonsectarian prayer at non-compulsory high school and middle school graduation ceremonies. Lee, 505 U.S. at 586-99. The requirement of strict neutrality to avoid “entanglement” is no where more strenuously applied than in the elementary and middle public school setting.

In this case, considering the “traditions” and history of NHA, all the religious related matters, activities, Moral Focus curriculum, use of parent volunteers, the need to keep parents happy, a reasonable observer could only conclude that by permitting such activities at all levels of the public school system--in the corporate retreats and Holiday parties, fall Galas, and the elementary schools themselves--NHA effectively endorsed religion. The Establishment Clause prohibits this result.

A. DEFENDANTS CLAIM THAT THE MPG IS PROTECTED BECAUSE IT IS USING A LIMITED PUBLIC FORUM FAILS BECAUSE RATIFICATION OF THE RELIGIOUS SPEECH BY GOVERNMENT ACTORS VIOLATES THE ESTABLISHMENT CLAUSE

The Defendants attempt to justify the MPG activities in the “parents room “ by creating a “limited public forum.” The Defendants do not distinguish between a traditional public forum and a limited public forum, or appreciate the differential results that may attach.

In a traditional public forum--a public street or park--long “devoted to assembly and debate,” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983), the government can exclude a speaker “only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest.” Arkansas Educ. Television Comm’n v Forbes 118 S. Ct. 1633, 1641 (1998) (internal quotation marks omitted) . Similarly, the government may create a designated or limited purpose public forum by opening public property “for use by the public as a place for expressive activity, “ which it may


30

---

limit to “use by certain groups . or for the discussion of certain subjects.” Perry. 460 U.S. at 45, 46 n.7. As long as a designated public forum retains its “open character, “ it “is bound by the same standards as apply in a traditional public forum.” Id. at 46.

The government retains significant power to limit private speech in a nonpublic forum--i.e., a “[p]ublic property which is not by tradition or designation a forum for public communication. “Id. It can deny access to a nonpublic forum “on the basis of subject matter and speaker identity,” id. at 49, if “the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Cornelius v. NAACP Legal Defense & Educ. Fund. Inc., 473 U.S. 788, 806 (1995) . “In contrast to a public forum, a finding of strict incompatibility between the nature of the speech or the identity of the speaker and the functioning of the nonpublic forum is not mandated.” Id. at 808. If the characteristics of the private speaker seeking access to a nonpublic forum do not match the characteristics of the class of speakers to which the forum has been made selectively available, the government may exclude the speaker. See Arkansas Educ., 118 S. Ct. at 1642; Perry, 460 U.S. at 48 (in a nonpublic forum or even a designated public forum “the constitutional right of access. . .extend[s] only to entities of a similar character”) .

It appears NHA contends it “ha[s] in place” a nonpublic forum to which it permitted “selective access . “ allegedly “for the purpose of enhancing the educational mission of the public schools.” Public schools do not by nature possess the attributes of a public forum open for “indiscriminate use” by the citizenry or some segment thereof. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267-70 (1988) . Prior to March 15, 1999 NHA and Vanguard did not have a policy or historical practice that in any way suggested that NHA or Vanguard intentionally designated the parents room a public forum. Cf. Arkansas Educ., 118 S. Ct. at 1641-42. Thus, it appears the “parent room” at Vanguard schools


31

---

constitute a nonpublic or limited public forum. See Id. at 7, 16. (At best its status is a disputed issue of fact.)

Given that, in a nonpublic forum, the government need only afford similarly situated private religious groups the same access it has granted private groups lacking a religious viewpoint, the Free Speech Clause did not require NHA to permit the MPG in the school. But even if MGP did possess such a right, NHA could not constitutionally grant the group access to the school if the MPG activities offended the Establishment Clause. This is so because “ [t]here is no doubt that compliance with the Establishment Clause is a state interest sufficiently compelling to justify content-based restrictions on speech.” Capital Square Review & Advisory Bd.v. Pinette, 115 S. Ct. 2240, 2446 (1995); see also Lamb’s Chapel v. Center Moriches Union Free Sch. Dist. 508 U.S. 384, 394 (1993); Widmar v. Vincent 454 U.S. 263, 271 (1981) . (This reasoning also applies to Defendants’ contention that student speech is somehow outside the zone of Defendants’ responsibility. If student religious speech disrupts the legitimate educational goals of the school, or constitutes harassment of other students, a public school may control content of speech. School employee’s and representative’s speech is likewise subject to limitations to comply with the establishment clause .3)

---

3 In Marchi v. Board of Coop. Ed. Services, 173 F.3d 469 (2d. Cir. 1998) a special ed teacher, after converting to Christianity began including forgiveness, reconciliation and God into his teaching. He was given a “cease and desist” directive, and when he failed to comply was suspended and required to affirm in writing he would comply. On return the Teacher sent a not to a parent including religious references. The Teacher brought a §1983 action against the Board claiming free speech and exercise violations. The Court upheld the Board’s directive holding that schools have a constitutional duty to ensure that public school teachers do not give the impression that the school prefers one religion or even religion in general. See also: Helland v. South Bend Community School Corp. 93 F.3d 327 (7th. Cir. 1996); Peloza v. Capistrano Unified School Dist., 37 F.3d 517 (9th Cir. 1994); Bishop v. Aronov. 926 F.2d 1066, 1077 (11th Cir. 1991) (schools may direct teachers to “refrain from expression of religious viewpoints in the classroom and like settings.”)


32

---

A majority of the Court has recently reaffirmed the importance of Lemon's “purpose” prong, and concluded that its “effect” and “entanglement” prongs rightly comprise a single inquiry. See: Agostini v. Felton. 117 S. Ct. 1997, 2010, 2015 (1997). “‘The purpose prong of the Lemon test asks whether government’s actual purpose is to endorse or disapprove of religion.’” Edwards, 482 U.S. at 585 (quoting Lynch v. Donnelly 465 U.S. 668, 690 (1984) (O’Connor, J., concurring)). [T]he First Amendment requires that [government action] must be invalidated if it is entirely motivated by a purpose to advance religion.” Wallace, 472 U.S. at 56. Although the government must act with a “clearly secular purpose, “ still it may be “motivated in part by a religious purpose.” Id. (citing Schempp, 374 U.S. at 296-303 (Brennan, J., concurring)) .

Throughout its Establishment Clause rulings, the Supreme Court has stressed the importance of both government “neutrality” and the avoidance of “endorsement” of religion. See, e.g., Schempp. 374 U.S. at 222 (“neutrality”); Engel v. Vitale, 370 U.S. 421, 436 (1962) (“endorsement”) . Recently, however, these words have been used to denominate two competing tests for determining whether, absent unlawful government coercion, government action in the context of a public forum has the effect of establishing religion .

To begin, the Court has never applied the neutrality test in any context other than a public forum, publicly announced as open to all on equal terms. In this case, the forum is only open to “parent’s groups,” not the public. Even groups with some parent members, such as the Freethought Association, do not apparently qualify. In applying the neutrality test, the Defendants appear to rely on Lamb’s Chapel, Mergens, and Widmar for the proposition that “government need not be administering a ‘public forum’ or even ‘a limited public forum’ as those terms are understood in free speech jurisprudence in order for it to allow private religious expression on a neutral basis without violating the


33

---

Establishment Clause.” The implication that the Supreme Court applied the neutrality test in Lamb’s Chapel, Mergens, and Widmar is simply wrong.

In each of those cases, the Court applied the language and analysis of the endorsement test. See Lamb’s Chapel, 508 U.S. at 391-95 (“no realistic danger that the community would think that the District was endorsing religion” when after-school facilities were “repeatedly” used by a “wide variety” of private groups); Mergens, 496 U.S. at 231, 246-47, 250 (plurality opinion) (when high school permitted “30 recognized [student] groups” to “meet after school hours on school premises” establishing a “limited open forum,” students were “likely to understand that [the] school does not endorse . . . student speech”); Widmar, 454 U.S. at 276-77 (doubtful that university students “could draw any reasonable inference of University support f or private religious speech] from the mere fact of [supplying] a campus meeting place” when university made its facilities available for meetings of “over 100 recognized [private] student groups” creating an “open” “public forum”).

Manipulation by NHA of “the forum through its residual discretion to exclude harmful, disruptive, or age inappropriate materials, so as to give “preferential access” to religious groups or so as to ensure ‘‘ that only certain religious groups take advantage of it, “ constitutes “governmental favoritism” of religious speech that violates the Establishment Clause. Capitol Square Review and Advisory Board v. Pinette, 115 S. Ct. 2440, at 2448-49 (1995) (plurality) (holding that a state could, pursuant to a “religiously neutral” policy, permit a private party to display a cross in a traditional public forum located next to the state’s seat of government) . Justice O’Connor has suggested that, “[a]t some point, . . a private religious group may so dominate a public forum that a formal policy of equal access is transformed into a demonstration of approval,” and that the resulting “endorsement” of religion violates the Establishment Clause.


34

---

Capitol Square, 115 S. Ct. at 2454 (O’Connor, J., concurring in part and concurring in the judgment)

The record is replete with evidence that NHA has devised and applied its forum standards in a manner that discriminates in favor of religious groups and activities. NHA has not taken “pains to disassociate itself from the private speech” at issue in this case similar to that exercised elsewhere in order to maintain neutrality. Rosenberqer v. Rector of University of Virginia, 115 S. Ct. 2510, at 2523 (1995) (holding that university could pay the publication expenses of a student Christian newspaper in accordance with its general policy of funding student newspapers) . NHA has allowed the MGP to use the “parents room” because it is making a marketing decision to satisfy a certain type of parent--namely religious parents seeking to inculcate religion into the school. Rather than disassociate NHA from the MPG, NHA allowed its teachers and staff to participate in prayer requests and MPG sponsored luncheons and utilized MPG members as volunteers in the school. NHA allowed the MPG to use official mail boxes to transmit and receive prayer requests and responses to and from teachers. At the same time NHA denied access to the Free Thought Association of West Michigan, a group with some parent members but an agnostic philosophy. Under these circumstances, even assuming a valid limited public forum exists, NHA has allowed the MPG to so dominate the “parents room” as to transform it into the “MPG room” in violation of the establishment clause.

CONCLUSION

At the very least, genuine issues of material fact exist so that this matter ought to advance to trial for serious, informed decision making by the Court in this unusual, and important matter. Defendants’ Motion for Summary Judgment should be denied.


35

---

Respectfully submitted:

By: Kary Love (p42623)
ACLU Fund of Michigan
Cooperating Attorney
977 Butternut Drive
Ste. 128
Holland, MI 49424
616 399 4408


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

CERTIFICATE OF SERVICE

Kary Love, Attorney at Law, certifies that he served the following persons with a copy of: Plaintiffs’ Memorandum of Law Opposing Defendants’ Joint Motion for Summary Judgment with all exhibits; on February 25, 2000 by mailing same to them as set forth below by U.S. Mail, first class postage fully prepaid:

John Grant and
Terry Mroz (P18044)
McShane & Bowie PLC
National Heritage Academy Inc.
P0 Box 360
99 Monroe Ave. NW #1100
Grand Rapids, MI 49501-0360


William Mills (P24263)
Attorney for Vanguard Charter School Academy
Gruel, Mills, Nims & Pylman LLP
50 Monroe Place #700W
Grand Rapids, MI 49503


February 25, 2000

Kary Love