case 5:10-cv-05030-jlv document 6 filed 05/03/10 page 1 of

FILED UNITED STATES DISTRICT COURT MAY G3 2010

DISTRICT OF SOUTH DAKOTA WESTERN DIVISION

~

ALOYSIUS DREAMING BEAR, ) )

Plaintiff, ) ) No. 10- 7j]) 30

v. ) )

BERLINE FLEMING, BONNIE ANDERSON, ) JOHN COPE, LANCE TLUSTOS, LISA ) LOCKHART, AND LAWRENCE JASKE, )

) Defendants. )

---------------- )

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION

"As a general matter, the First Amendment means that government has no power to

restrict expression because ofits message, its ideas, its subject matter, or its content." United

States v. Stevens, _ U.S. _, 2010 U.S. Lexis 3478 * 14 (April 20, 2010), quoting

Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573 (2002).

From its first contacts with Native Americans, the dominant white society sought to

subdue and subjugate them. Sometimes the method was war; sometimes it was treaties that

would be dishonored; and sometimes it was simply to force them to give up their traditions

and assimilate into white culture.

Case 5:10-cv-05030-JLV Document 6 Filed 05/03/10 of 12

Attempts to require native people to assimilate took many forms. One approach was

to require native children to conform to white standards oflanguage, grooming, and clothing.

Many native children in South Dakota who attended schools operated by non-Indians were

prevented from speaking Lakota, were forced to cut their hair, and were required to abandon

their traditional clothing. A well-known-and profoundly sad-photograph taken in 1927

at Holy Rosary Mission School in Pine Ridge shows scores ofLakota youth who were forced

to dress as if they were white.

The non-Indians who imposed such requirements always thought they were doing

good. They thought they were bringing the benefits ofa better civilization, and a better life,

to Lakota children. But the passage of time revealed the profound tragedy of attempting to

separate a traditional people from its culture.

Aloysius Dreaming Bear is a traditional Lakota man, nineteen years old, who is proud

of his heritage. He has earned the right to graduate from Oelrichs High School, and to

receive a diplonla on May 22 at graduation. He wants to wear traditional Lakota dress when

he receives his diploma. He has politely, respectfully, and appropriately asked defendants

to allow him to do so. Defendants refuse. They require him to hide his traditional dress

underneath the clothing the dominant white culture requires on such an occasion: a cap and

gown.

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Arl:ument

1. The Merits Overwhelming Favor Dreaming Bear

The First Amendment prohibits the government from "abridging the freedom of

speech." The word "speech" as used in the First Amendment includes conduct which

expresses an idea: "The First Amendment literally forbids the abridgment only ofspeech, but

we have long recognized that its protection does not end at the spoken or written word....

In deciding whetherparticular conduct possesses sufficient communicative elements to bring

the First Amendment into play, we have asked whether an intent to convey a particularized

message was present, and whether the likelihood was great that the message would be

understood by those who viewed it." Texas v. Johnson, 491 U.S. 397,404 (1989) (internal

quotations and brackets omitted).

In this case, Dreaming Bear intends by wearing traditional clothing at graduation to

convey a particularized message that he is proud ofhis Lakota heritage, culture, and people.

It is certain that this message will be understood by all-except perhaps the most

insensitive-who view it.

How a person chooses to dress is a form of expression. "A person's choice of

clothing is infused with intentional expression on many levels. In sonle instances, clothing

functions as pure speech.... Clothing may also symbolize ethnic heritage, religious beliefs,

and political and social views." Canady v. Bossier Parish School Board, 240 F .3d 437,440

(5th Cir. 2001). In this case, how Aloysius Dreaming Bear chooses to dress at graduation is

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exquisitely expressive, because it is a public ceremony (high school graduation) which marks

the transition from adolescence to adulthood, and he is a Native American living in a Native

American community (Oglala) who attends school in a predominantly non-Indian community

(Oelrichs).

The First Amendment applies to public schools. Thus public school students cannot

be required to salute the American flag. West Virginia State Board a/Education v. Barnette,

319 U.S. 624 (1943). Likewise, high school students are constitutionally entitled to wear

black armbands to school to protest government policy. Tinker v. Des Moines Independent

Community School District, 393 U.S. 503 (1969). Wearing a black armband was "closely

akin to pure speech which, we have repeatedly held, is entitled to comprehensive protection

under the First Amendment." Id. at 505-06 (internal quotation omitted).

The other side ofthe coin-legitimate exercise ofschool authority-is demonstrated

by Morse v. Frederick, 551 U.S. 393 (2007), which upheld a high school's right to discipline

a student for unfurling a banner reading "BONG HITS 4 JESUS" at a school-sanctioned,

school-sponsored event, because a high school may lawfully restrict student speech which

reasonably may be viewed as promoting illegal drug use, in light of the substantial school

interest in deterring it.

This case is as far from "BONG HITS 4 JESUS" as any case possibly could be. This

case is not even about wearing a black armband to protest a government policy. Dreaming

Bear's traditional clothing is a statement ofhis pride in his people, his culture, and himself.

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The state has no legitimate interest in forbidding Dreaming Bear from wearing traditional

clothing when he graduates. Ironically, Lakota traditions and values, which Dreaming Bear

will promote ifallowed to wear traditional clothing at graduation, deter the abuse ofalcohol

and illegal drugs that has sometimes flourished when those traditions and values have been

suppressed or abandoned.

Courts have been down these roads before. Lowry v. Watson Chapel School District,

540 F.3d 752 (8th Cir. 2008) involved a school district that imposed a mandatory school

uniform policy focused particularly on grades seven through twelve. Several junior and

senior high school students wore black armbands to protest the policy or the way it was

enforced. The school disciplined them. The district court ruled that the discipline violated

plaintiffs' rights, and permanently enjoined defendants from disciplining any student who

wore a similar band. The circuit, relying on Tinker, affirmed.

By contrast, B. W.A. v. Farmington R-7 School District, 554 F.3d 734 (8th Cir. 2009)

held that high school officials were within their rights to ban the wearing ofConfederate flag

symbols, because officials had good reason to believe that allowing such displays "would

cause a substantial and material disruption" in light ofthe history of racial disruption at the

school. This history included a white student urinating on a black student, a group ofwhite

students armed with an aluminum baseball bat showing up at a black student's home and

making racially derogatory comments, and a racial confrontation at a high school basketball

game. Schools "may act proactively to prohibit race-related violence or even excessive racial

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tension that forces unnecessary departures ofminority students from the school." Id. at 741.

Dreaming Bear's wearing traditional Lakota clothing at his graduation will not, and

cannot, cause any problem. If anything, allowing him to wear such clothing will stinlulate

discussion of why he is wearing it, what it means, and why it is important to him. In the

absence ofa substantial and significant state interest, defendants may not restrict Dreaming

Bear's First Amendment right to express himself and his views by wearing traditional

clothing at graduation.

Cases from outside this circuit illustrate the same principles. Chalifoux v. New Caney

Independent School District, 976 F. Supp. 659 (S.D. Tex. 1997) held that high school

students have a First Amendment right to wear rosaries outside their clothing on school

premises. The First Amendment protects "not only verbal and written expression, but also

symbols and conduct that constitute symbolic speech." Id. at 665 (internal quotation marks

omitted).

These principles have been applied to Native American students. In Alabama and

Coushatta Tribes ofTexas v. Trustees ofthe Big Sandy Independent School District, 817 F.

Supp. 1319 (E. D. Tex. 1993), Native American students wanted to wear their hair long, in

their traditional manner. A school regulation required a boy's hair to be no longer than the

top of a standard dress collar. The court enjoined enforcement of the regulation against

Native Americans. The court recognized "the recent movement among younger Native

Americans to recognize and revitalize their Native American heritage, after more than a

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century of assimilation into white culture." Id. at 1326.

The court ruled that the school hair code violated the plaintiffs' right to freedom of

speech guaranteed by the First Amendment: "the wearing of long hair by Native American

students is a protected expressive activity, which does not unduly disrupt the educational

process or interfere with the rights of other students. As such, the regulation, as applied to

these students, violates the First Amendment free speech clause." Id. at 1334. Mere

"[a]nticipation of disruption due to the wearing of long hair does not justify the curtailment

of the students' silent, passive expression of their faith and heritage." Id.

Like the students inAlabama andCoushatta Tribes ofTexas , Aloysius Dreaming Bear

seeks to express his faith and heritage by wearing traditional clothing at graduation. No

improper disruption of anything will occur.

A similar case is A.A. v. Needville Independent School District, 2009 U.S. Dist. Lexis

125690 (S. D. Tex.) The school prohibited Native American students fronl wearing their hair

long. They sued, alleging that the regulation unconstitutionally restricted their First

Anlendment rights. The district court reviewed the history of "the federal government's

efforts to assimilate Native Americans in the 19th and 20th century," including sending

children to boarding schools where teachers prohibited them from speaking their indigenous

language and practicing their religious beliefs, and where students were required to cut their

hair.

The court found that a Native American student's braids "convey a particularized

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message ofhis Native American heritage and religion." Id. at *52. A plaintifftestified that

wearing long hair, in part, is "a symbol, an outward extension ofwho we are and where we

come from, our ancestry and where we're going in life. It's a constant reminder to us ofwho

we are." Id. The court found that the restriction violated the First Amendment, and granted

the requested injunction. The defendants failed to demonstrate that the limitation on hair

length furthered important interests of the school. Id. at 56.

Aloysius Dreaming Bear's traditional clothing has similar symbolic meaning for hinl

as the student's braids did in A.A. v. Needville Independent School District. He wrote to the

school board and Dr. Jaske: "I am protecting my people by coming here to face you, and

protect my cultures heritage by standing up for what is right and that is me wear my tribes

traditional clothing with pride on graduation day, because how can I be a honorable Lakota

warrior by wearing a white mans gown, and not my tribes regalia?" Attachment to Affidavit

ofAloysius Dreaming Bear, filed herewith. He wrote: "[M]y ancestors have fought many

battles and wars with the wasicu people just so that I can stand here in confidence and respect

for my people and honor what my people gave their lives for and that is our heritage, our

culture, our beliefs, our language, and most ofall our pride, and I can only see me honoring

them by wearing what I wish to wear in making it through a white man's education, by

graduating high school." Id.

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2. Dreaming Bear is Entitled to Injunctive Relief

"Aplaintiffseeking a preliminary injunction must establish that he is likely to succeed

on the merits, that he is likely to suffer irreparable harm in the absence ofpreliminary relief:

that the balance of equities tips in his favor, and that an injunction is in the public interest."

Winter v. Natural Resources Defense Council, 129 S. Ct. 365, 375 (2008).

A. Plaintiff is Likely to Succeed on the Merits

Plaintiff has demonstrated above that he is likely to succeed on the merits.

B. Plaintiff Will Suffer Irreparable Harm in the Absence of Prelinlinary Relief

High school graduation comes at most once in a lifetime. Plaintiffwill graduate from

high school on May 22, nineteen days fronl today, which is even before defendants' Answer

is due. He will never again have the opportunity to wear traditional clothing at his high

school graduation. The opportunity to wear traditional clothing at graduation is meaningful

and important to him, as he explains in his Affidavit and the attached letter to the Oelrichs

School Board filed herewith. "The loss of First Amendment freedoms, for even minimal

periods of time, unquestionably constitutes irreparable injury." Lowry v. Watson Chapel

School District, 540 F.3d 752, 762 (8th Cir. 2008), quoting Elrodv. Burns, 427 U.S. 347, 373

(1976).

c. The Balance of Equities Favors Plaintiff

The Court must balance Aloysius Dreaming Bear's First Amendment right to wear

traditional dress at his high school graduation against defendant's interest in - what?

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In all the First Amendment cases discussed above, defendants cited some allegedly

legitimate interest that they contended justified their restriction of plaintiffs freedom of

expression. In some cases the allegedly legitimate interest is the possibility ofviolence. In

other cases it is the need to maintain order or avoid alleged disruption of the school.

In this case, there is no legitimate school board interest in prohibiting plaintiff from

wearing traditional clothing at graduation. The school superintendent, Dr. Lawrence Jaske,

defended the school's decision by stating "no one holds a gun to these kids' heads and says

they have to come here." Letter ofApril]2, 20]0, by Aloysius Dreaming Bear, p. ], attached

to Affidavit ofAloysius Dreaming Bear filed herewith. Dr. Jaske stated that if wearing

traditional clothing at graduation was important to him, Dreaming Bear "should have gone

to Pine Ridge or Red Cloud. That is his choice." Id. atp. 2. In other words, the school says

that Dreaming Bear may not wear his traditional clothing at graduation because he

voluntarily chose to go off the reservation to attend high school.

Dr. Jaske's statements are disturbing. Dreaming Bear's letter shows that he found the

statements disturbing. But even apart from that issue, Dr. Jaske's statements express the

view that Dreaming Bear may be denied the right to wear traditional clothing at graduation

because he chose to attend Oelrichs High School. This is plainly contrary to law. "[T]he

government may not deny a benefit to a person on a basis that infringes his constitutionally

protected freedom of speech even if he has no entitlement to that benefits." Rumsfeld v.

Forum for Academic and Institutional Rights, 547 U.S. 47, 59 (2006) (ellipsis omitted),

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quoting United States v. Am. Library Ass 'n, 539 U.S. 194, 210 (2003) and Board of

Comm'rs, Wabaunsee Cty. v. Umbehr, 518 U.S. 668, 674 (1996).

D. An Injunction is in the Public Interest

Two federal district judges have explained, far more cogently and eloquently than

plaintiffs attorney can, why an injunction in a case such as this one is in the public interest.

The first is Alabama and Coushatta Tribes ofTexas v. Trustees ofthe Big Sandy Independent

School District, 817 F. Supp. 1319 (E. D. Tex. 1993), the case described above challenging

the school's requirement that Native An1erican students wear their hair short. In finding an

injunction to be in the public interest, the court stated: "the granting ofpreliminary

injunctive reliefis in the public interest, as itpromotes tolerance for diverse viewpoints, and

fosters understanding andsensitivity towards Native American students, and, indeed, toward

all students who have beliefs which fall outside ofour society's mainstream, ethnocentric

beliefsystem." Id. at 1337 (emphasis added).

The second case is A.A. v. Needville Independent School District, 2009 U.S. Dist.

Lexis 125690 (S. D. Tex.), the other case described above challenging the school's

requirement that Native American students wear their hair short. In finding an injunction to

be in the public interest, the court stated: "The public has a strong interest in the enforcement

of constitutional rights, particularly in the context of public schools. 'That they are

educating the young for citizenship is reason for scrupulous protection of constitutional

freedoms ofthe individual, ifwe are not to strangle the free mind at its source and teach

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youth to discount important principles ofour government as mere platitudes. '" Id. at * 62

(emphasis added), quoting West Virginia State BoardofEducation v. Barnette, 319 U.S. 624,

637 (1943).

Conclusion

Plaintiffrequests a prelinlinary and permanent injunction restraining defendants from

prohibiting him and other students from wearing traditional clothing at graduation on May

22, 2010, and for a permanent injunction restraining defendants from prohibiting other

Lakota students from wearing traditional clothing at future graduations.

Dated: May 3, 2010 Respectfully submitted,

~ACP'~ Attorney at Law 1617 Sheridan Lake Rd. Rapid City, SD 57702 Tel: (605) 341-4400 Fax: (605) 341-0716 [email protected] Attorney for Plaintiff

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