in the united states district court for the middle ... · case 3:06-cv-00924 document 76 filed...

IN THE UNITED STATES DISTRICT COURTFOR THE MIDDLE DISTRICT OF TENNESSEE

AT NASHVILLE

JOHN DOE and JANE DOE, as the )Natural Parents and Next Friends of )Their Minor Child, JAMES DOE, )

)Plaintiffs, )

)vs. ) Civil Action No. 3:06-0924

) Judge EcholsTHE WILSON COUNTY SCHOOL ) Magistrate Judge BryantSYSTEM; et al., )

)Defendants, )

)DOUG GOLD, CHRISTY GOLD, )JAMES WALKER, and JENNIFER )WALKER, )

)Intervening Defendants. )

DEFENDANTS’ MEMORANDUM OF FACTS AND LAW IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

Come now defendants the Wilson County Board of Education,1 Wendell Marlowe, Janet

Adamson, and James M. Davis (hereinafter “Defendants”),2 by and through counsel, pursuant to

Fed. R. Civ. P. 56 and Local Rules of Court 7.01 and 56.01, and submit this memorandum of

facts and law in support of their motion for summary judgment, and would state as follows:

PRELIMINARY STATEMENT OF FACTS

Lakeview Elementary School (hereinafter “Lakeview”) is located in Wilson County,

Tennessee, and is part of the Wilson County School System. (Defendants’ Statement of

1 Also known as the Wilson County School System.2 Upon Plaintiff’s Motion (Docket Entry No. 62) to substitute James M. Davis—in his capacity only as the Director of Schools for defendant Wilson County Board of Education—as defendant in place of Dr. Jim Duncan, this Court so ordered. (Docket Entry No. 65). Plaintiffs voluntarily dismissed without prejudice Smith. (Docket Entry No.s 68 and 70). Plaintiffs have voluntarily dismissed with prejudice their claims for compensatory damages and declaratory judgment. (Docket Entry No. 70).

Case 3:06-cv-00924 Document 76 Filed 10/01/2007 of 25

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Undisputed Material Facts (hereinafter “SUMF”), ¶ 1).3 At the material times alleged in the

Complaint, Dr. Jim Duncan (hereinafter “Duncan”), Wendell Marlowe (hereinafter “Marlowe”),

Yvonne Smith (hereinafter “Smith”), and Janet Adamson (hereinafter “Adamson”) were

employees of the Wilson County School System/Wilson County Board of Education (hereinafter

the “WCBE”), as director of schools, principal of Lakeview, assistant principle of Lakeview, and

teacher at Lakeview, respectively. During the 2005-2006 school year, plaintiffs John Doe and

Jane Doe enrolled their son, James Doe, as a kindergarten student at Lakeview, his assigned

teacher being Adamson. Interpleading defendants in this cause are the parents of children who

attended Lakeview during the 2005-2006 school year and presently, but these defendants are not

employees of the WCBE. The regular scheduled time for the school day at Lakeview is 7:15

a.m. to 2:15 p.m. (SUMF, ¶¶ 2-6).

The “See You At The Pole” and “National Day of Prayer” (hereinafter “SYATP” and

“NDOP,” respectively) events at issue are organized, sponsored, and directed by parents of

children at Lakeview—not Lakeview or WCBE employees—occurring on school property,

beginning and ending prior to the start of the school day. Plaintiffs allege that these events are

religious and/or sectarian in nature. Attendance at these events is voluntary. (SUMF, ¶¶7-9).

The Praying Parents is a small, informal group of parents of students at Lakeview who

choose to meet once a month to pray for the school and its students. Participants in the group are

also the primary organizers and leaders of the SYATP and NDOP events. Their activities have

been made known to parents of Lakeview students through flyers taken home by students,

notices in the PTO newsletter, and with a notice appearing on the Lakeview website, all with the

3For ease of reading purposes, citation to paragraphs of Defendants’ Statement of Undisputed Material Facts is citation to the specific citations to the record contained in the paragraphs identified.


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permission of Marlowe. There are no costs incurred by Lakeview for any of the said flyers or

notices. (SUMF, ¶¶ 10-13).

The Praying Parents have publicly identified themselves with the following description,

and similar descriptions:

“Praying Parents” is a group of Lakeview parents who meet once a month to pray for our school, faculty, staff, and children. We pray for specific needs as well as for school-related issues. We also try to provide occasional “treats” for our faculty and staff to remind them that we are praying for them. Praying Parents is not affiliated with any organization, nor do we promote a political agenda. We’re just a group of parents who want to make an investment in our children’s school through prayer.

Their meetings occur once a month, in a partitioned-off area of the school cafeteria, from 7:15

a.m. to 8:15 a.m., at which time no students are in the cafeteria. During the 2005-2006 school

year, and with Marlowe’s permission, flyers concerning the group were sent home to parents in

the same manner as was child-specific academic or behavioral-related information, and in the

same manner as were general notices of other activities or programs, the PTO newsletter, and the

Principal’s newsletter. Following the initiation of the instant lawsuit, all approved flyers,

including those regarding the Praying Parents, were made available either at a counter in the

school’s main office or on a table in the individual classrooms, with students being told they

could choose whether to take the flyers home to their parents. (SUMF, ¶¶ 14-17).

No students, administration, teachers, or staff of Lakeview attend the meetings of the

Praying Parents. In addition, Marlowe specifically instructed the Praying Parents concerning the

policy that they were not allowed to have direct contact with students related to the monthly

meetings, and that they were not allowed to give cards or notes to any student regarding having

prayed for that student. For those teachers at Lakeview that have specifically requested such, the


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Praying Parents do provide notes to those same teachers indicating that the Praying Parents have

prayed as requested. (SUMF, ¶¶ 18-20).

Parents of students at Lakeview—primarily kindergarten students—actively volunteer to

assist in the classroom, primarily under the direction of Lakeview teachers. Jennifer Walker and

Christy Gold participate in the Praying Parents activities, and have been and are volunteers in

their respective children’s classrooms. Although students are expected to show respect to these

volunteer parents as they would their teachers, the volunteer parents have no role in the

discipline of the students; are not provided access to confidential academic, testing, or behavioral

information; and do not participate in any faculty or staff meetings. All visitors to Lakeview—

including parents who act as volunteer helpers in classrooms and those who participate in the

Praying Parents meetings—during the school day must sign in and wear badges indicating that

they are visitors to the school. (SUMF, ¶¶ 21-24).

The organizers of the SYATP and NDOP events and Praying Parents meetings obtained

permission to conduct their activities related to these events from Marlowe—including the use of

sound equipment, distributing flyers regarding the events, placing notices in the PTO newsletter,

and sponsoring a poster contest. Marlowe required that posters for the contests be made at

home; these were hung in the school by the organizers of the contests and allowed to be hung for

approximately one week. The posters contained patriotic and religious content. Other groups—

including those that have no religious affiliation—were permitted to use school facilities and

equipment, distribute flyers concerning their activities, place notices in the PTO newsletter, and

otherwise make known their activities. (SUMF, ¶¶ 25-28).

Some school teachers and officials have attended the said events, but none of these

individuals led those in attendance in prayer, read any texts out loud, or lead the events in any


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way. Marlowe neither encouraged nor discouraged attendance by teachers or other Lakeview

employees at either event. Some students attend and actively participate in the said events.

Those individuals choosing to attend the NDOP event are offered stickers stating “I Prayed,”

which may be worn by those individuals. Following the NDOP event in the 2005-2006 school

year, one child in Adamson’s class wore an “I Prayed” sticker. However, Adamson did not

discuss the NDOP or SYATP events with her students, either during class time or otherwise.

(SUMF, ¶¶ 29-34).

During the 2005-2006 school year, Adamson had a child in her kindergarten class whose

younger brother was suffering from leukemia. As part of a community-wide effort to support the

family of the said child, a concerned father of another Lakeview student composed and recorded

an inspirational song, making CD copies for purchase in order to raise funds for the family. The

father’s child, who was not a member of Adamson’s class, brought a copy of the CD to

Adamson’s classroom. Given her student’s family situation, and because the student wanted to

listen to the CD, Adamson allowed the class to listen to the CD. Adamson has not permitted any

similarly inspirational or specifically religious CD to be played in her classroom, either before or

after this one time. (SUMF, ¶¶ 35-39).

Each school year, Adamson teaches a two-week unit on the historical origins and

traditions of the Thanksgiving Holiday, culminating in a Thanksgiving meal occurring in her

classroom for her students. The unit’s first week focuses on the involvement and contributions

of the American Indian, with the unit’s second week focusing on the role and life of the Pilgrims,

including their pursuit of religious freedom. Adamson provides a weekly calendar of activities

to her students’ parents, including notice of her annual Thanksgiving unit. On the final day of

the unit, and with help from some parents, the students have a Thanksgiving meal in their


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classroom. The students come to school dressed in appropriate Thanksgiving costumes.

Adamson dresses as a pilgrim. As part of the unit, and specifically regarding the role of the

Pilgrims, Adamson teaches the class a simple blessing prayer and song about thanksgiving for

health, strength, and daily food, which she informs the students are likely similar to that which

the Pilgrims would have used that first Thanksgiving. As part of the meal, the students are led

by Adamson in recreating the Pilgrim blessing and song. Other than as occurring during the

Thanksgiving unit, at no other time or in any manner do prayers or similar blessings and songs

occur in Adamson’s classroom, nor does Adamson encourage or discourage students from

engaging in their own private prayers. (SUMF, ¶¶ 40-47).

For the past number of years, the Lakeview kindergarten teachers presented an evening

program in which Lakeview kindergarten students perform the classic poem, “Twas The Night

Before Christmas.” The children are divided into various groups with some playing the roles of

Santa Claus and the reindeer—complete with a sled and sack of toys; some portraying the family

in the poem, a doll, a jack-in-the-box, and other “live” toys—complete with a stage setting; while

others stand on a riser and primarily sing songs; with one child reading the poem out loud, with

breaks for the songs and enactment of the story. With the exception of the singing of one verse

of “Silent Night” and one verse of “Away in the Manger,” which are sung after the completion of

the performance of “Twas the Night Before Christmas,” the songs sung by the children include

“Deck the Halls,” “Jingle Bells,” “Rudolph the Red Nose Reindeer,” “Up On the Housetop,”

“Must Be Santa,” and “We Wish You a Merry Christmas.” Those parents, family members, and

others attending the program are invited to sing along during the single verses of “Silent Night”

and “Away in a Manger,” the words for which are provided to the audience. During these

verses, two children costumed as Joseph and Mary stand on either side of a mock crib, in which


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lies a baby doll, and several other children costumed as angels stand behind. The program is

always presented following a scheduled business meeting of the Lakeview PTO, and lasts

approximately 20-22 minutes. The presentation of “Twas the Night Before Christmas” lasts

approximately 18-20 minutes. The singing of the single verses of “Silent Night” and “Away In

A Manger,” as well as the arrangement of the children around the crib, lasts approximately 1-2

minutes. There have been occasions when parents have requested that their children not

participate in the program, which requests have been honored. (SUMF, ¶¶ 49-55).

Plaintiffs have withdrawn their son, James Doe, from attendance at Lakeview Elementary

and are currently home-schooling him. Plaintiffs bring this cause, asserting a “pattern and

practice” of Defendants’ endorsement and promotion of the SYATP and NDOP events, the

Praying Parents activities, teacher-led classroom prayers, and Christian theme and overtly

religious songs at the “Christmas” program, in violation of the Establishment Clause of the

United States Constitution. (SUMF, ¶ 56).

ARGUMENT

I. Summary Judgment

Summary judgment is proper where there exists no genuine issue of material fact and one

party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party bears

the initial burden of showing that no genuine issue as to any material fact exists. Leary v.

Daeschner, 349 F.3d 888, 897 (6th Cir. 2003). In deciding a motion for summary judgment, a

court must view the evidence and draw all reasonable inferences in favor of the nonmoving

party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1996); Wade v.

Knoxville Utils. Bd., 259 F.3d 452, 460 (6th Cir. 2001). The purpose of the procedure is not to

resolve factual issues, but to determine if there are genuine issues of fact to be tried. Lashlee v.


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Sumner, 570 F.2d 107, 111 (6th Cir. 1978). "If after reviewing the record as a whole a rational

factfinder could not find for the nonmoving party, summary judgment is appropriate."

Braithwaite v. Timken Co., 258 F.3d 488, 493 (6th Cir. 2001).

II. The Establishment Clause

The U. S. Supreme Court has recognized that the purpose of the Religion Clause of the

First Amendment is to “prevent government from making any laws respecting an establishment

of religion or prohibiting the free exercise thereof.” Santa Fe Independent Sch. Dist. v. Doe,

530 U.S. 290, 313 (2000) (emphasis added)(citations omitted). The Supreme Court further

explains: “By no means do these commands impose a prohibition on all religious activity in our

public schools. Indeed, the common purpose of the Religion Clause ‘is to secure religious

liberty.’” Id. (citations omitted). Alleged violations of the Establishment Clause are evaluated

with reference to three factors developed in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).

Under the Lemon test a government activity is not considered to have violated the Establishment

Clause if: (1) it has a secular purpose; (2) its principal or primary effect neither advances nor

inhibits religion; and (3) it does not create an excessive entanglement of the government with

religion. If a challenged practice fails to satisfy any prong of this test, it is deemed to have

violated the Establishment Clause. Coles v. Cleveland Bd. Of Educ., 171 F.3d 369, 384 (6th Cir.

1999). Although these prongs remain the original formulation of the test, the U.S. Court of

Appeals for the Sixth Circuit has recognized that the Supreme Court has applied what is known

as the “endorsement” test,4 which looks to whether a reasonable observer would believe that a

4 It is anticipated that Plaintiffs may rely on portions of the deposition testimony of Dr. Jim Duncan, during which he was questioned, under general objection to the form, whether certain of the actions at issue might appear to others as endorsement of religion. However, such questions seek legal opinions and speculation, and as demonstrated in the argument section of this memorandum, his responses, one way or the other, are not dispositive as courts have found actions and events similar to those at issue in the instant litigation as not violative of the Establishment Clause. (Deposition of Dr. Jim Duncan, filed contemporaneously as Exhibit 6, p. 19, lines 7-15; p. 27, line 4 through p. 28, line 8; p. 30, line 9 through p. 31, line 3; p. 32, line 24 through p. 33, line 20 through p. 36, line 3.)


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particular action constitutes an endorsement of religion by the government. ACLU v. McCreary

County, 345 F.3d 438, 446 (6th Cir. 2003). However, the government’s purpose need not be

exclusively secular. Chaudhuri v. Tennessee, 130 F.3d 232, 236 (6th Cir. 1997), cert. denied,

523 U.S. 1024 (1998). As the Chaudhuri court recognized: “[A] focus exclusively on the

religious component of any activity would inevitably lead to its invalidation. . . . Unless it seems

to be a sham, moreover, the government’s assertion of a legitimate secular purpose is entitled to

deference. We must be cautious about attributing unconstitutional motives to state officials.” Id.

(citations omitted).

Significantly, the focus of the Lemon test is on the actions of the government not the

impressionability of students. Rusk v. Crestview Local School District, 379 F.3d 418 (6th Cir.

2004). Plaintiffs suggest that in this case there are heightened concerns with protecting freedom

of conscience from subtle coercive pressure in the elementary and secondary public schools.

However, the U.S. Supreme Court has rejected the notion that when, as here, a school is not

actually advancing religion, that the impressionability of students is relevant to the Establishment

Clause issue. Good News Club v. Milford Central School, 533 U.S. 98, 116 (2001). As

explained by the U.S. Court of Appeals for the Sixth Circuit:

[The Supreme Court] has never ruled that a school’s practice might amount to an impermissible endorsement of religion because of the impressionability of the school’s young students. The Court’s opinion in Milford suggests just the opposite--that elementary school students’ possible misperceptions of endorsement are an insufficient basis for finding an Establishment Clauseviolation. . . .

Rusk, 379 F.3d at 4215

5The U.S. Supreme Court further explains: “We decline to employ Establishment Clause jurisprudence using a modified heckler's veto, in which a group's religious activity can be proscribed on the basis of what the youngest members of the audience might misperceive. Milford, 533 U.S. at 119.


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Above all else, the Establishment Clause demands neutrality on the part of governmental

entities, forbidding not only endorsement of religion, but also forbidding hostility toward

religion,6 Lynch v. Donnelly, 465 U.S. 668, 673 (1984), including a prohibition of viewpoint

discrimination. E.g., Milford, 533 U.S. at 106-07. That the alleged events occurred in an

elementary school context does not, per se, alter these constitutional requirements. See Child

Evangelism Fellowship v. Stafford Tp. Sch. Dist., 386 F.3d 514, 519-21 (3rd Cir. 2004); Child

Evangelism Fellowship v. Montgomery County Pub. Schs., 373 F.3d 589 (4th Cir. 2004).

III. “See You At The Pole” and “National Day of Prayer” Events

Plaintiffs assert that Lakeview’s permitting of the SYATP and NDOP events—both

occurring on school property prior to the beginning of the school day—permitting the organizers

and leaders of these events to announce these events through flyers sent home with students, the

PTO newsletter, and poster contests, as well as providing stickers to participants at the NDOP

indicating that they prayed, are violative of the Establishment Clause.

Notwithstanding Plaintiffs’ complaints, it is well established that the U.S. Supreme Court

has “never extended [its] Establishment Clause jurisprudence to foreclose private religious

conduct during nonschool hours merely because it takes place on school premises where

elementary school children may be present.” Milford, 533 U.S. at 116. In fact, courts have

upheld a student group’s right to engage in morning prayer at the school flagpole. Westfield

High Sch. L.I.F.E. Club v. City of Westfield, 249 F. Supp. 2d 98, 118 (D. Mass. 2003). In

Westfield, the court rejected the plaintiff’s challenge noting that granting access to school

facilities during non-instructional time is guaranteed under the Equal Access Act (20 U.S.C. §

6 Tennessee statutes and the WCBE’s own stated policy are consistent with the requirement of neutrality. (Tenn. Code Ann. § 49-6-2901, et seq.(copy attached to this memorandum); WCBE Policy No. 4.803, “Recognition of Religious Beliefs, Customs & Holidays” (copy filed contemporaneously as Exhibit 7)).


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4071 et seq.), and is not an Establishment Clause violation. Additionally, the U.S. Supreme

Court has clearly stated that failure to censor such an event for its religious content—whether it

favors one religion over another—does not mean the government has endorsed the event. See Bd.

of Educ. v. Mergens, 496 U.S. 226, 250 (1990) (“the proposition that schools do not endorse

everything they fail to censor is not complicated”).7

In evaluating the Establishment Clause, the U.S. Supreme Court has explained that

“[t]eachers [do not] shed their constitutional rights to freedom of speech or expression at the

schoolhouse gate.” Tinker v. Des Moines Ind. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969); Perry

Educ. Ass’n v. Perry Local Educator’s Ass’n, 460 U.S. 37, 44 (1983). Thus, the presence and

even the “assignment of a teacher, administrator, or other school employee to a meeting for

custodial purposes does not constitute sponsorship of a meeting.” Mergens, 496 U.S. at 236

(“Custodial oversight of the student initiated religious group, merely to ensure order and good

behavior, does not impermissibly entangle government in day-to-day surveillance or

administration of religious activities.” Id. at 253). More specifically for the purposes of this

case, at least one court has found that the mere presence of teachers at a flagpole gathering is not,

7 Indeed, this Court has previously recognized:

The Establishment Clause cannot require a complete separation between church and state because it is upon the very principles of the church that our nation was founded and continues to flourish. "There is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789." These traditions are too numerous to mention in this opinion, but some examples include: (1) the official recognition of Thanksgiving as a national holiday on which to give thanks to God; (2) the congressional decision to prescribe "In God We Trust" as our national motto; (3) the inclusion of the language "One nation under God" in our Pledge of Allegiance to the American flag, and (4) presidential proclamations recognizing a National Day of Prayer "on which [day] the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals." Although, standing alone, these traditions would not justify contemporary violations of theEstablishment Clause, they also serve to shed light on what the Framers' intended the Clause to mean and how they thought it should be applied. Chaudhuri v. Tennessee, 886 F. Supp. 1374, 1384-85 (M.D. Tenn. 1995) (citations omitted), affirmed, 130 F.3d 232 (6th Cir. 1997), cert. denied, 523 U.S. 1024 (1998).


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in itself, necessarily representative of a “school’s endorsement of prayer or religion.” Daugherty

v. Vanguard Charter Sch. Academy, 116 F. Supp. 2d 897, 910 (W.D. Mich. 2000).

In Daugherty, the court upheld actions similar to those of the Defendants in this case.

The court held that the school’s policy in allowing groups to distribute information “relevant to

the students and parents regarding community activities and events” was a content-neutral

policy, not an endorsement of religion. Id. at 911. The court denied the plaintiff’s request to

enjoin the defendants from allowing the distribution of religious materials during school hours.

Id. Likewise, the U.S. Court of Appeals for the Sixth Circuit held that a school’s distribution of

flyers to elementary school children that contain religious content did not violate the

Establishment Clause. Rusk, 379 F.3d at 424. The plaintiff, parent of two elementary school

students, challenged a school’s practice of distributing flyers to students advertising activities

sponsored by various non-profit organizations, including some religious activities. Id. at 420.

The flyers were placed in student mailboxes which were used for distributing official school

papers to each student. Teachers required students to remove the flyers from the mailboxes;

however, teachers did not discuss the flyers with the children. Id. The plaintiff argued that the

court, in considering whether endorsement might be perceived, should consider the youngest of

the audience—the elementary school children. Id. at 420-21. The Sixth Circuit rejected this

argument for two reasons. First, the children were not able to participate in any of the advertised

events of the organizations (such as the American Red Cross, 4-H clubs, sports leagues, and local

churches) without the permission of their parents. Id. at 421. Second, the court explained that

“even if the Crestview students were the relevant audience, their youth would not alter the

outcome of our reasonable observation analysis.” Id.


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Similarly, the U.S. Court of Appeals for the Third Circuit has held a school district’s

actions unconstitutional in excluding a religious group from a list of groups allowed to distribute

literature in the district’s elementary schools. The court explained:

It is evident that [the defendant, Stafford] created limited public fora when it opened up the three fora at issue for speech by a broad array of community groups on matters related to the students and the schools. Stafford had no constitutional obligation to distribute or post any community group materials or to allow any such groups to staff tables at Back-to-School nights. But when it decided to open up these fora to a specified category of groups (i.e., non-profit, non-partisan community groups) for speech on particular topics (i.e., speech related to the students and the schools), it established a limited public fora. As a consequence, it is bound to “respect the lawful boundaries it has itself set.” It “may not exclude speech where its distinction is not ‘reasonable in light of the purpose served by the forum,’ . . . nor may it discriminate against speech on the basis of its viewpoint.”

Stafford, 386 F.3d at 526 (citations omitted). The court went on to note that even if the forum

had been a closed forum, the school district could not engage in viewpoint discrimination. Such

exclusion of religious groups violates free speech rights clearly enunciated in U.S. Supreme

Court decisions:

As the Supreme Court observed in Lamb’s Chapel, “control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Therefore, assuming for the sake of argument that the fora at issue in this case were non-public, if Stafford engaged in viewpoint discrimination, it violated Child Evangelism’s free-speech rights.

Id.

A public school must treat both religious and secular viewpoints equally. If it allows

access to a forum for a certain type of use or content that is non-religious, it must also provide

the same for a use or content that is religious. For example, in Good News Club, the court held

that if nonreligious groups such as the boy Scouts could use the school to promote the “moral

and character development” of children, then it would be improper to allow a school to ban a


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religious group because it considered that something that is “decidedly religious in nature”

should not be properly characterized in the same manner. 533 U.S. at 108. Likewise, in

Stafford, a school created a limited public forum by allowing non-religious groups to distribute

literature on campus. Thus, the court held that the school’s actions prohibiting the same

distribution of material by religious groups was viewpoint discrimination and a violation of the

Free Speech Clause of the First Amendment. 386 F.3d at 519-28. Further, the United States

Department of Education has expressly recognized that “[s]tudents may express their beliefs

about religion in the form of homework, artwork, and other written and oral assignments free of

discrimination based on the religious content of their submissions.”8 Indeed, the law is well

settled that religious speech—speech from a religious point of view, or speech with religious

connotations—is protected First Amendment speech. See Good News Club, 533 U.S. at 110;

Widmar v. Vincent, 454 U.S. 263, 269 (1981). Indeed, there “is a crucial difference between

government speech endorsing religion, which the Establishment Clause forbids, and private

speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.” Mergens,

496 U.S. at 250 .

Although in the context of the wearing of armbands and political speech, the U.S.

Supreme Court has long protected against restriction of student speech absent a substantial

interference with school discipline, particularly if that expression “is a silent, passive expression

of opinion, unaccompanied by any disorder or disturbance.” Tinker, 393 U.S. at 508-09.

In the instant matter, and as more fully detailed in the preliminary statement of facts, the

SYATP and NDOP events occur on the property of Lakeview Elementary, beginning and ending

prior to the start of the school day. The event is organized by various parents of children who

8 United States Dept. of Education Guidelines on Religious Expression in Public Schools, Feb. 7, 2003, available athttp://www.ed.gov/policy/gen/guid/religionsandschools/prayer_guidance.html.


www.ed.gov/policy/gen/guid/religionsandschools/prayer_guidance.html.

http://www.ed.gov/policy/gen/guid/religionsandschools/prayer_guidance.html.

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attend Lakeview Elementary School, not by Lakeview or WCBE employees, which is consistent

with Lakeview’s encouragement of parent volunteerism in facilitating parents’ involvement in

the educational mission of the school. Although some of the organizers and leaders of these

events also serve as parent volunteers in the classroom, they are clearly identified as visitors to

the school and do not participate in any faculty or staff meetings.

Attendance at these events is purely voluntary.9 While some teachers and other school

officials may attend, their attendance is neither encouraged nor discouraged, and these

individuals take no part in leading the events in any way. Although certain school facilities and

equipment has been used by the organizers of these events, the school has made accessible its

facilities and equipment to nonreligious groups. Announcements and notice of these events

occurred in the same way that announcements for other activities, including non-religious

activities, have occurred. Marlowe required that posters for the contests be made at home; these

were hung in the school by the organizers of the contests and allowed to be hung for

approximately one week. The posters contained patriotic and religious content. Those

individuals choosing to attend the NDOP event, including students, are offered stickers stating “I

Prayed,” which may be worn by those individuals as a “silent, passive expression of opinion,

unaccompanied by any disorder or disturbance.” Indeed, there is no evidence that these events

were discussed during class time, and defendant Adamson has stated under oath that she did not

discuss the NDOP or SYATP events with her students, either during class time or otherwise.

As a result, it is indisputable that Lakeview has fulfilled its requirement to remain neutral,

that there is a secular purpose involved in these events, that the events and the associated

9 Plaintiffs’ objection that their son is forced to pass by the SYATP event is akin to the “modified heckler's veto” rejected by the Milford court. See Footnote 5, infra, p. 9.


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activities themselves are not coercive and do not substantially interfere with the daily educational

or disciplinary process, that the First Amendment rights of individuals are preserved, and that

Defendants’ conduct otherwise passes the “endorsement” test. There being no genuine issue of

material fact, Defendants are entitled to summary judgment on this issue as a matter of law.10

IV. The Praying Parents Monthly Meetings

Plaintiffs assert that Lakeview’s permitting the Praying Parents to conduct meetings on

school property during the school day—as well as permitting the announcement of these

meetings through flyers sent home with students, the PTO newsletter, and the school web site—

is violative of the Establishment Clause. However, the U.S. Supreme Court has explained that

“[b]y granting permission for use of [a school’s] facilities, [a school board did] not endorse any

organization [or] the beliefs of an organization or group.” Rosenberger v. Rector of Univ. of

Virginia, 515 U.S. 819, 841-42 (1995). In addition, the Supreme Court has refused to uphold a

school policy which specifically excluded religious groups from renting its facilities. Lamb’s

Chapel v. Center Moriches School District, 508 U.S. 384, 394 (1993).

More specifically to the instant matter, in Daugherty, the court upheld a school’s practice

in permitting a parent group to pray at the school during school hours in a designated room. In

determining the school’s actions were not violative of the Establishment Clause, the court

applied the Lemon test. 116 F. Supp. 2d at 907. Under the first prong, the court explained that

the school’s policy of allowing parents and parent groups to pray or meet during school hours

10 Related to Plaintiffs’ allegations of Defendants’ pattern and practice of endorsement of religion is the specific allegation that Adamson played a religious CD in her classroom. However, as made abundantly clear in the preliminary statement of facts, it is indisputable that the playing of this CD was an isolated and spontaneous event, resulting from the personal tragedy of a Lakeview student’s family and the efforts of the local community to support that family. As such, this one-time occurrence cannot reasonably be confused with or elevated to a demonstrated pattern and practice of endorsing or advancing religion.


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served a secular purpose in “facilitat[ing] their involvement in the school’s educational mission.”

Id. Because the school’s policy refused to discriminate against parents or parent groups who

wished to use the room for prayer, the school maintained a “governmental posture of neutrality

toward religion.” Id. at 908. As for the second prong, the court concluded that the school’s

“refusal to prohibit prayer in the parent room does not constitute an endorsement of religion.” Id.

The school’s actions were also considered neutral under the third prong, because the school

provided parents parental access to the school, yet did not regulate the content of their speech. In

addition, the school appropriately “shielded” the school children from “unwelcome religious

influences” by making the room accessible only to the parents. Thus, the situation did not

provide for excessive entanglement between government and religion. Id. (holding that a school

policy “requiring discrimination against or censoring of religious groups would risk the very

entanglement which the Establishment Clause prohibits”).

In the instant matter, it is indisputable that the Praying Parents is a small, informal group

of parents of students at Lakeview who choose to meet inconspicuously once a month to pray for

the school and its students. The Praying Parents have publicly identified themselves as not

affiliated with any organization, but simply as a group of parents who voluntarily wish to pray

for their children and their children’s school. Announcements and notice of their meetings and

activities generally have occurred in the same way that announcements for other activities,

including non-religious activities, have occurred. Their meetings occur once a month, in a

partitioned-off area of the school cafeteria, from 7:15 a.m. to 8:15 a.m., at which time no

students are in the cafeteria.11 No students, administration, teachers, or staff of Lakeview attend

the meetings of the Praying Parents. In addition, Marlowe specifically instructed the Praying

11 As presented more fully in the Preliminary Statement of Facts, other non-religious groups were permitted to use school property, and the fact that Praying Parents met during school hours is not, per se, dispositive of the issue.


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Parents concerning the policy that they were not allowed to have direct contact with students

related to the monthly meetings, and that they were not allowed to give cards or notes to any

student regarding having prayed for that student. Even presuming for purposes of summary

judgment that, as alleged by Plaintiffs, there was a single incident involving a note being given to

a child, it is clear that no pattern of such behavior can be established and that such behavior was

specifically prohibited by the school. Although Praying Parents do place notes in teachers’

mailboxes indicating that prayers have been offered for that teacher and his or her class, it is the

result of that teacher’s private request for prayer. Moreover, as in Daugherty, Lakeview’s

allowing this group to meet was consistent with the encouragement of parent volunteerism in

facilitating involvement in the educational mission of the school, and is further consistent with

allowing other community groups to use school facilities. Even if, as Plaintiffs allege, a parent is

seen walking in a school hallway either to or from a monthly meeting of the Praying Parents, that

parent is clearly identified as a visitor to the school and does not participate in any faculty or

staff meetings.


that there is a secular purpose involved in these meetings, that the meetings and the associated

activities themselves are not coercive and do not substantially interfere with the daily educational

or disciplinary process, that the First Amendment rights of individuals are preserved, and that

Defendants’ conduct otherwise passes the “endorsement” test. There being no genuine issue of

material fact, Defendants are entitled to summary judgment on this issue as a matter of law.

V. The Thanksgiving Blessing and Song

Plaintiffs assert that Lakeview has endorsed teacher-led prayers in the classroom,

pointing specifically at Adamson’s leading a Thanksgiving blessing and song in her classroom.


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However, educational activities that have a secular purpose, such as teaching children about

American history and heritage, do not violate the Establishment Clause merely because they

recognize the role religion played in a historical event.

[W]hen the primary purpose served by a given school activity is secular, that activity is not made unconstitutional by the inclusion of some religious content. . . . It would be literally impossible to develop a public school curriculum that did not in some way affect the religious or nonreligious sensibilities of some of the students or their parents.

Florey v. Sioux Falls Sch. Dist., 619 F.2d 1311, 1316-17 (8th Cir. 1980).

Thanksgiving is an official national holiday that is preeminently part of American

heritage and history.12 The Pilgrims and Indians held what has now become known as the First

Thanksgiving as a day to be thankful for the harvest. It was a celebration for making it through a

year of adversity. Webster’s 1828 dictionary defines Thanksgiving as “a public celebration of

divine goodness; also, a day set apart for religious services, especially to God, either in any

remarkable deliverance from calamities or danger, or in the ordinary dispensation of his

bounties.” Noah Webster, American Dictionary Of The English Language (1828).

Furthermore, the Supreme Court has made it clear that the Constitution cannot be

interpreted in a manner that would purge religious references from society. Over a century ago,

the Court recognized that “this is a religious nation.” Church of the Holy Trinity v. United States,

143 U.S. 457, 470 (1892). More recently, the Court considered the historical role of religion in

our society and concluded that “[t]here is an unbroken history of official acknowledgment by all

three branches of government of the role of religion in American life from at least 1789.” Lynch,

465 U.S. at 674. Recognition of the primacy of religion in the Nation’s heritage is nowhere more

12 See Footnote No. 7, infra, p. 11.


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affirmatively expressed than in Zorach v. Clauson, 343 U.S. 306, 313 (1952), where the Court

acknowledged that “[w]e are a religious people whose institutions presuppose a Supreme Being.”

Thus, courts have agreed that religious songs and symbols can be used in public schools

as long as they are presented in a “prudent and objective manner and only as part of the cultural

and religious heritage of the holiday.” Florey, 619 F.2d at 1317; Clever v. Cherry Hill Township

Bd. of Educ., 838 F. Supp. 929, 939 (D.N.J. 1993). In addition, at least one court has found that

role-playing activities, which are not in actuality the practice of a religion, are not violative of the

Establishment Clause. Eklund v. Byron Union Sch. Dist., 2003 U.S. Dist. LEXIS 27152 (N.D.

Cal. Dec. 5, 2003) (copy attached), affirmed, 154 Fed. Appx. 648, 2005 U.S. App. LEXIS 25155

(9th Cir. 2005), cert. denied, 127 S. Ct. 86, 166 L. Ed. 2d 252, 2006 U.S. LEXIS (2006) (as part

of Islam study unit, and in role-playing context, class required to recite portion of Muslim

prayer).

In the instant matter, and as more fully detailed in the preliminary statement of facts, the

clear purpose of Adamson’s reenactment of Thanksgiving was to educate her students about the

events that took place during the first Thanksgiving, culminating in coming to class in

appropriate costumes and recreating the first Thanksgiving meal. While the reenactment

incorporated some religious content, the thrust of the unit was secular and educational in nature

and purpose. Moreover, it is indisputable that, other than as occurring during the Thanksgiving

unit, at no other time or in any manner have prayers or similar blessings and songs occurred in

Adamson’s classroom, nor has Adamson made any attempt to either encourage or discourage

students from engaging in their own private prayers.


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that there is a secular purpose involved in the instructional unit, that there is no pattern or

practice of impermissible teacher-led prayers, that the unit was not in actuality the practice of

religion, and that Defendants’ conduct otherwise passes the “endorsement” test. There being no

genuine issue of material fact, Defendants are entitled to summary judgment on this issue as a

matter of law.

VI. The “Christmas” Program

Plaintiffs assert that Lakeview’s annual “Twas The Night Before Christmas” presentation

by the combined kindergarten classes is primarily one of Christian theme and overtly religious

songs, in violation of the Establishment Clause. However, as stated, courts have recognized that

religious songs and symbols can be used in public schools as long as they are presented in a

“prudent and objective manner and only as part of the cultural and religious heritage of the

holiday.” Florey, 619 F.2d at 1317; Clever, 838 F. Supp. at 939.13 A school’s involvement in an

activity of unquestionably religious origin does not contravene the Establishment Clause if its

“present purpose and effect” is secular. Florey, 619 F.2d at 1315. See e.g., McGowan v.

13 Citing decisions of the U.S. Supreme Court, and analogous to the instant matter, this Court has previously recognized:

In [Lynch v. Donnelly, 465 U.S. 668 (1984)], the Supreme Court considered whether the city's annual display of a creche or nativity scene at Christmas violated the Establishment Clause. The display, located in a park in the heart of the city's shopping district, also included a Santa Clause house, reindeer pulling Santa's sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, a teddy bear, hundred of colored lights, and a large banner reading "SEASON'S GREETINGS." In applying the second prong of the Lemon test, the Court examined whether the nativity scene, while religious, could be said to advance religion. The Court held that given the overwhelmingly secular character of the display, "the inclusion of a single symbol of a particular historic religious event . . . [did not] so 'taint' the city's exhibit as to render it violative of the Establishment Clause." ACLU v. Rutherford County, 209 F. Supp. 2d 799, 810 (M.D. Tenn. 2002) (citations omitted).


22

Maryland, 366 U.S. 420, 445 (1961). Thus, “schools are permitted to observe holidays that have

both a secular and religious basis.” Florey, 619 F.2d at 1315.

In Florey, the United States Court of Appeals for the Eighth Circuit ruled that the study

and performance of religious songs, including Christmas carols, was constitutional as long as it

“advance[ed] the students’ knowledge of society’s cultural and religious heritage as well as the

provision of an opportunity for students to perform a full range of music, poetry, and drama that

is likely to be of interest to the students and their audience.” Id. at 1314.

Since Florey, other circuits have confirmed its holding. In Doe v. Duncanville

Independent School District, 70 F.3d 402 (5th Cir. 1995), a student and her father sued the

school district for various proposed violations of the Establishment Clause, including the use of a

Christian theme song in the school choir. The U.S. Court of Appeals for the Fifth Circuit upheld

the school’s longtime use of “The Lord Bless You and Keep You” as its theme song because a

legitimate secular reason existed for keeping the religious song, despite the Plaintiff’s contention

that using a religious song constituted an endorsement of religion. Id. at 407. The court

explained:

A position of neutrality towards religion must allow choir directors to recognize the fact that most choral music is religious. Limiting the number of times a religious piece of music can be sung is tantamount to censorship and does not send students a message of neutrality. . . . Such animosity towards religion is not required or condoned by the Constitution.

Id. at 408.

In the instant matter, and as more fully described in the preliminary statement of facts, it

is indisputable that the program at issue was predominantly and overwhelmingly a secular

presentation—both in content and in emphasis—which also briefly acknowledged a symbol of a

particular historic religious event that is unquestionably associated with the seasonal holiday and


23

culture, and which was of likely interest to the students and their audience. The program was

voluntary in that, upon request by parents, no child was forced to participate. Certainly, no

parent or child was forced to attend, and in the event that a parent chose to attend the PTO

business meeting, there was certainly nothing to prohibit that parent from leaving at the

conclusion of that meeting.


that a secular purpose was the major thrust of the program, and that Defendants’ conduct

otherwise passes the “endorsement” test. There being no genuine issue of material fact,

Defendants are entitled to summary judgment on this issue as a matter of law.

CONCLUSION

Based upon the foregoing reasoning and authorities, there being no genuine issue of

material fact, Defendants are entitled to summary judgment as a matter of law.

Respectfully submitted,

LEWIS, KING, KRIEG & WALDROP, P.C.

By: /s/Winston N. HarlessWinston N. Harless, No. 17389SunTrust Bank Building201 Fourth Avenue North, Suite 1500P.O. Box 198615Nashville, TN 37219(615) 259-1366

Counsel for Defendants the Wilson County Board of Education, James M. Davis, Wendell Marlowe, and Janet Adamson

Michael R. Jennings, No. 006628 326 North Cumberland StreetLebanon, TN 37087(615) 444-0585

Co-Counsel for Defendants Wilson County Board of Education and James M. Davis


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LAW OFFICES OF LARRY L. CRAIN

Larry L. Crain, No. [email protected] Counsel American Center for Law & Justice5214 Maryland Way, Ste 402Brentwood, TN 37027(615) 376-2600

Co-Counsel for Defendants Wendell Marlowe and Janet Adamson


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CERTIFICATE OF SERVICE

I hereby certify that on this the 1st day of October, 2007, a copy of the foregoing DEFENDANTS’ MEMORANDUM OF FACTS AND LAW IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT was filed electronically. Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties indicated on the electronic filing receipt. All other parties will be served by regular U.S. mail. Parties may access this filing through the Court’s electronic filing system.

Edmund J. Schmidt, III, Esq. Tricia Herzfeld, Esq.1913 21st Avenue South Staff AttorneyNashville, TN 37212 ACLU Foundation of Tennessee

P.O. Box 120160Susan L. Kay, Esq. Nashville, TN 37212Chair, ACLU Legal Committee131 21st Avenue South Jonathan Scruggs, Esq.Nashville, TN 37203 Alliance Defense Fund

15333 N. Pima Road, Ste 165Scottsdale, Arizona 85260

Larry L. Crain, Esq.Senior Counsel American Center for Law & Justice5214 Maryland Way, Ste 402Brentwood, TN 37027

Michael R. Jennings, Esq.326 North Cumberland StreetLebanon, TN 37087

Nathan W. Kellum, Esq.Alliance Defense FundP.O. Box 11159Memphis, TN 38111

Benjamin W. Bull, Esq.Alliance Defense Fund15333 N. Pima Road, Ste 165Scottsdale, Arizona 85260

/s/Winston N. Harless


in the united states district court for the middle ... · case 3:06-cv-00924 document 76 filed...

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