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Having benefited from their own day in court, Defendants Minor I Doe and Minor II Doe
(the “Doe Defendants”) now seek to deny Plaintiffs that same right and benefit, and to avoid a
merits inquiry into the injustice and harms occasioned by their unconstitutional Consent Decree.
But the Doe Defendants merely present the same arguments for dismissal (albeit in more
abbreviated fashion), and therefore make the same errors, as their co-defendants School Board
and Superintendent. Plaintiffs have already exhaustively demonstrated why those arguments
must fail (dkts. 35 and 65). Plaintiffs therefore rely principally on and incorporate herein their
previous responses, and will instead focus only on the most significant errors made by the Doe
The first argument advanced by Doe Defendants is also the most curious. In a motion to
dismiss filed in this case, Doe Defendants assert they are not proper defendants in this case.
That would, of course, render Doe Defendants’ motion a nullity, because putative defendants
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cannot loiter around the courthouse (or the electronic docket) and file motions to dismiss in cases
where they have not been made parties. The Court invited Doe Defendants to participate as
defendants in this case, and to defend a Consent Decree to which they are signatories. (Dkt. 45).
The Court ordered that Doe Defendants be served with the Summons and Complaint, imposed a
deadline for them to announce their decision, and stayed this action in the meantime. (Id.). The
Doe Defendants were in fact served (dkts. 46, 52-53), and they accepted the Court’s invitation to
join this action. (Dkt. 64). The Doe Defendants have aligned themselves with the other
defendants in this lawsuit to defend the Consent Decree against Plaintiffs’ constitutional
The Doe Defendants seek to elevate form over substance by claiming that the Complaint
must be dismissed so that they can be named as defendants in an amended complaint. They are
already defendants. Their only rationale for dismissal is that they need to “understand the precise
nature of the claims against them.” (Dkt. 64 at 7). But Plaintiffs have no claims against Doe
Defendants, who no longer have any connection to Santa Rosa County schools. Plaintiffs’ only
claims are against the Consent Decree and against the School Board and Superintendent
Defendants for their unconstitutional interpretation and application of the Consent Decree. These
claims are set out in detail in the instant Complaint, with which Doe Defendants have been
formally served, and to which Doe Defendants have formally responded. Thus, an amended
complaint “naming” the Doe Defendants as defendants would look identical to the instant
Complaint, and would serve no purpose other than to further delay this action to the prejudice of
Plaintiffs.
Neither of the two authorities containing the dicta cited by Doe Defendants support their
argument for dismissal, because neither English v. Seabord Coast Line R.R. Co., 465 F.2d 43 (5th
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Cir. 1972) nor Macklin v. Butler, 553 F.2d 525 (7th Cir. 1977) held that a district court may not
join defendants to an action. Like the mistaken defendants in another case, Doe Defendants thus
place the sole burden on the plaintiffs apparently without recognizing that … the
Court itself may join additional parties under Rules 19 and 21. Failure by the
plaintiffs to name possible Rule 19 parties in the original complaint does not
render the complaint defective warranting dismissal. Because the defendants
assert the absence of certain possible defendants as grounds for objecting to the
complaint rather than as a motion to join additional parties, the motion to dismiss
the complaint for the alleged failure to name as original parties additional possible
defendants is denied.
School Dist. of Kansas City, Mo. v. State of Mo., 460 F. Supp. 421, 442-43 (W.D. Mo. 1978)
(emphasis added) (disapproved on other grounds by Bd. of Educ. of City of Peoria, Sch. Dist. No.
150 v. Illinois Bd. of Educ., 810 F.2d 707 (7th Cir. 1987)).
Doe Defendants are now defendants in this action, and they are defending the Consent
Decree against the well-pled and well-known claims of Plaintiffs. 1 The Court should deny their
motion to dismiss.
Doe Defendants present a conclusory and exceedingly brief argument that all Plaintiffs
lack standing to bring this action, but only discuss the Pastor Plaintiffs’ claims and one of the
dozens of claims brought by the Educator Plaintiffs. (Dkt. 64 at 7-8). In their one and one-half
page “argument” on standing, Doe Defendants do not even mention the Student Plaintiffs, the
Former Student Plaintiffs, the Parent Plaintiffs or any of the other dozens of claims brought by
the Educator Plaintiffs. (Id.). Thus, Doe Defendants do not explain how a parent, such as Mrs.
Beckham, who is being denied the right to volunteer at her child’s school on account of her
unwillingness to waive core constitutional rights, does not have standing to seek redress against
1
Plaintiffs in no way concede that Doe Defendant belong in this action, and Plaintiffs do not waive their
argument that Doe Defendants have no standing to defend the Consent Decree because they have
graduated. (Dkt. 35 at 3-12).
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the Consent Decree and School Board conduct responsible for that denial. (Id.). Nor do the Doe
Defendants explain how a student, such as H.J.H., does not have standing to challenge her
expression during non-instructional time. (Id.). Nor do the Doe Defendants explain how former
students lack standing to seek damages (nominal or actual) for their school’s unconstitutional
interpretation and application of an unconstitutional Consent Decree to deny them their First
The sole argument on standing which Doe Defendants choose to develop so obviously
misses the mark that it can be dismissed out of hand. Doe Defendants maintain that Pastor
Plaintiffs do not have standing to sue because they have no “right to the unfettered assistance of
public school employees to plan and produce baccalaureate services.” (Dkt. 64 at 8). But Pastor
Plaintiffs seek no such “unfettered assistance.” They seek only the assistance and involvement of
private individuals who happen to be school employees, during the off-the-clock hours of those
employees, on time that belongs to the employees themselves, without interference from their
public employer. (Compl., ¶¶ 194-210). Pastor Plaintiffs allege that the Consent Decree prohibits
even this type of involvement and assistance, and set forth a multitude of facts showing that the
Consent Decree has actually been applied to prohibit piano players and event organizers from
off-duty involvement in baccalaureates solely because they happen to be school employees. (Id).
If the Doe Defendants claim that Pastor Plaintiffs are not entitled even to this type of assistance,
they certainly cite no support for such a breathtaking proposition. If they concede that Pastor
Plaintiffs are entitled to such assistance, the Doe Defendants do nothing to neutralize Pastor
Plaintiffs’ claims that they have been actually denied this assistance, and have been significantly
hampered in their efforts to organize baccalaureates, by the Consent Decree and the School
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Board and Superintendent Defendants. In either case, Pastor Plaintiffs’ claims must be decided
on their merits, after full discovery, and cannot be brushed away simply by mischaracterizing the
Doe Defendants also contend, in a mere one sentence utterly devoid of any authority, that
“Pastor Waters has no right to lead student groups on the premises of public schools within the
School District.” (Dkt. 64 at 8). The reason Doe Defendants do not offer any authority is because
the Supreme Court has held that a school district that opens up its facilities for private
community use cannot exclude from those facilities privately-sponsored, after-school religious
clubs or activities for students. See Good News Club v. Milford Central Sch. Dist., 533 U.S. 98
(2001) (Christian Good News Club cannot be banned from meeting on public school campus
open to other private secular groups); see also, Culbertson v. Oakridge Sch. Dist. No. 76, 258
F.3d 1061 (9th Cir. 2001) (public school may not ban the Christian Good News Club from
meeting immediately after school on an elementary school campus); Good News/Good Sports
Club v. Sch. Dist. of City of Ladue, 28 F.3d 1501 (8th Cir. 1994), cert. denied, 515 U.S. 1173
(1995) (same).
Pastor Waters alleges that Defendant School Board has opened its facilities for private
community use. (Compl. ¶¶ 191, 232). If true, which must be assumed for purposes of a motion
to dismiss, this would indeed give community members, including Pastor Waters, the “right to
lead student groups on the premises of public schools within the School District” in private,
religious after-school activities. This is what Pastor Waters wants to do. (Compl. ¶ 238). But the
Consent Decree classifies all such activities as School Events, even though they are privately-
sponsored, because they are principally attended by district students. (Compl. ¶ 239; Consent
Decree ¶ 3(g)). Because the Consent Decree bans “Prayer” at such “School Events,” it is in direct
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contravention of Good News Club, and therefore unconstitutional on its face. Pastor Waters has
standing to bring this challenge, because he is being adversely affected by the Consent Decree’s
unconstitutional prohibition.
The Court should not entertain Doe Defendants’ half-hearted and conclusory “efforts” to
deny all Plaintiffs their day in court, on the basis of only a couple of “examples” which
themselves clearly miss the mark. Plaintiffs have detailed the legal and factual bases for their
standing to bring this action (dkt. 35 at 18-43), and the Doe Defendants offer nothing in rebuttal.
Doe Defendants’ last argument – that Plaintiffs fail to state claims on which relief may be
granted – is rooted in a regurgitation of the Court’s order denying CEAI’s intervention into their
suit, which Doe Defendants seek to apply to these Plaintiffs in this action. (Dkt. 64 at 9-13). Doe
Defendants would thus have this Court ignore the myriad factual allegations adduced by
Plaintiffs regarding the unconstitutional effects of the Consent Decree which were not before
the Court in CEAI’s intervention action. (E.g., parents banned from volunteering at children’s
schools unless they agree not to engage in any “religious dialogue” or discussion “regarding
religion, religious views or the like;” pastors banned from leading private, after-school religious
activities for district students on same terms as other private individuals lead non-religious
activities; students banned from voluntary, student-led and student-initiated religious discourse
during non-instructional time; students banned from uttering such words as “God Bless;” and
many, many others). But the Court cannot ignore those well-pled factual allegations, and must
instead accept them as true. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft
v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Plaintiffs have demonstrated that applying the Court’s
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denial of CEAI’s intervention to this case, without the benefit of discovery and trial, would be
improper not only because of the new facts brought before the Court, but also because it would
violate the due process rights of all Plaintiffs, including twenty-one Plaintiffs that were never
Doe Defendants purport to defend only the Consent Decree, and not any of their co-
defendants’ interpretations, applications and conduct in furtherance of the Consent Decree. (Dkt.
64 at 9, fn. 4). Thus, Doe Defendants apparently want to deprive their co-defendant School
Board and Superintendent of any excuse for their conduct in limiting the free expression of
Plaintiffs, even though in many cases that conduct was specifically attributed by the School
Board and Superintendent to the Consent Decree. (E.g., censorship of Chaz Riley’s address to
fellow students purportedly because “Good luck and God Bless” is a “Prayer” banned by
paragraphs 3(b) and 5(e) of the Consent Decree; banning of Mary Allen’s graduation speech
The Doe Defendants’ defense of the Consent Decree, however, is based either upon an
For example, Doe Defendants accurately set out the Consent Decree’s prohibition on the
“display of religious symbols … on the classroom walls … on the classroom floor, or … on the
District’s tangible property,” but then claim, incredibly, that this provision does not facially ban
the display of a Bible or devotional book on a teacher’s desk, or the placement of an angel on a
“holiday” tree. (Dkt. 64 at 10). Although Doe Defendants do not explain their logic, the only
“logical” explanations would be either that a Bible, a devotional book or an angel are not
“religious symbols,” or that a teacher’s desk or a classroom “holiday” tree is not “the District’s
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When they cannot assail the plain language of the Consent Decree, Doe Defendants
mischaracterize Plaintiffs’ claims to make them fit what Doe Defendants contend are legally
implausible claims, when in fact Plaintiffs assert altogether different claims grounded in firmly
established constitutional rights. For example, Doe Defendants continually assert that Educator
Plaintiffs wish to engage in religious expression in their official capacity, while on-the-clock,
and while representing their public school employer, when in fact the Educator Plaintiffs attack
the Consent Decree’s and their employer’s failure to recognize the difference between official
conduct and private-capacity conduct. The Educator Plaintiffs adduce numerous facts where the
School Board and Superintendent have actually banned or sharply interfered with private-
capacity conduct, during off-the-clock time, and have attributed their actions directly to the
Consent Decree (e.g., banning piano player from playing piano at privately-sponsored, evening
religious event held in a church; banning event coordinator from leading privately-sponsored,
evening religious event held in a church; threatening teacher not to sit with other colleagues at
evening religious event held in a church). These well-pled factual allegations must be accepted
as true, and the Court must consider (or re-consider) whether the “common sense” application of
the Consent Decree envisioned by the Court and promised by the Superintendent has, in fact,
materialized, or whether the terms of the Consent Decree that allow for these types of intrusions
Moreover, although they say they are not defending their co-defendants’ policies and
conduct in furtherance of the Consent Decree, the Doe Defendants proceed to do precisely that
by arguing that Plaintiffs have not stated cognizable claims for relief in challenging that conduct.
(Dkt. 64 at 14-27). Doe Defendants contend, for example, that neither Chaz Riley nor the
Educator Plaintiffs can challenge the School Board’s cleansing of “God Bless” from their
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vocabulary, because “they have no free speech right” to utter those words. (Dkt. 64 at 19, 21).
First, Doe Defendants contend that words such as “God bless” do not “appear to
constitute ‘Prayer’ within the meaning of the Consent Decree.” (Dkt. 64 at 19). But the School
Board and Superintendent have reached exactly the opposite conclusion, namely, that even a
pedestrian reference to “God Bless” is a “Prayer” within paragraph 3(b) of the Consent Decree,
and therefore banned at all School Events and in all school communications under paragraph 5(e)
of the Consent Decree. 2 (Compl. at ¶¶ 100-102 and Exhibit E). Doe Defendants’ contrary
interpretation provides no comfort to Plaintiffs, because, while Doe Defendants have graduated
and moved on to other things, Plaintiffs (including Educator Plaintiffs and Student Plaintiffs) are
left to deal with the School Board’s application of the Consent Decree. After all, it is the School
Board and Superintendent who are charged with enforcing the Consent Decree against, and
reporting violations of, their employees. More significantly, the fact that the two parties who
drafted the Consent Decree (the Doe Defendants and the School Board/Superintendent)
can come to such divergent conclusions as to the meaning of “Prayer” and other terms in
that Consent Decree demonstrates that the instrument is anything but clear, and gives
of the Consent Decree themselves do not know what it means, how can Plaintiffs know, and how
2
Doe Defendants claim that Chaz Riley “does not indicate which provision of the Consent Decree he
believes prohibits him from using the phrase “God Bless.” (Dkt. 64 at 21, fn. 22). Doe Defendants have
apparently overlooked paragraphs 100-102 of the Complaint where Chaz Riley identifies precisely which
provisions of the Consent Decree (i.e., paragraphs 3(b) and 5(e)) were employed by the School Board to
censor him. Chaz Riley doesn’t have to guess which provisions of the Consent Decree are responsible for
the denial of his First Amendment rights because the School Board Defendant has told him exactly which
provisions of the Consent Decree it drafted ban “God Bless” in Santa Rosa Schools.
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can Plaintiffs be unreasonable in adopting the same interpretation as the entity charged with
Second, Doe Defendants’ argument reveals, for the first time, that the banning of “God
Bless” in Santa Rosa Schools was not accidental as a result of a misreading of the Consent
Decree, but was intentional as a result of Defendants’ erroneous belief that such phrases can be
legally purged in public schools. When CEAI forecasted in the intervention action that a logical
and literal application of the Consent Decree would lead to the banning of “God Bless America,”
one of our unofficial national anthems, or the banning of “God Bless” wishes after a student
sneezes, or the banning of President Obama’s speeches to schoolchildren which invariably end
with “God Bless You,” the Doe Defendants (as well as the School Board and Superintendent)
were quick to dismiss that interpretation of the Consent Decree as “hysteria,” and “hyperbole.”
Doe Defendants have now come full circle to argue – incredibly – that neither Chaz Riley nor
teachers have any right to say “God Bless” at school. (Dkt. 64 at 19, 21).
Doe Defendants contend that teachers and students can and should be banned from uttering “God
Bless” at school because their words would amount to government speech in a non-public forum.
(Dkt. 64 at 19, 21). Whether or not that is, in fact, the case will depend on several factual
circumstances which the Court cannot decide on a motion to dismiss, such as whether the speech
individual speakers or the school. See public fora discussion at dkt. 35, pp. 44-52; see also,
Westfield High Sch. L.I.F.E. Club v. City of Westfield, 249 F. Supp. 2d 98, 117-18 (D. Mass.
2003). But even if the Court concludes (after discovery and merits litigation) that Chaz Riley was
engaged in government speech within a non-public forum when he wanted to end his address
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with “God Bless,” or that teachers are speaking for the government when they wish blessings
upon a sneezing student (which Plaintiffs in no way concede is the case), by no means does it
follow (as Doe Defendants contend) that “the school may limit or eliminate at its discretion”
students’ and teachers’ ability to greet each other with “God Bless.”
Government does not have the authority to arbitrarily and capriciously censor speech,
even in a non-public government forum. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273-
276 (1988) (holding that school boards may exercise “editorial control over the style and content
in non-public government fora must still be reasonable and viewpoint neutral. Id.; see also,
Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 806 (1985) (“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”); Planned Parenthood of S. Nevada, Inc. v. Clark County Sch. Dist., 941 F.2d
817, 829-30 (9th Cir. 1991) (school board exclusion of Planned Parenthood advertisements from
student publication was reasonable because material was improper for maturity level of students
and educational mission of school board); Romano v. Harrington, 725 F. Supp. 687 (E.D.N.Y.
1989) (genuine issues of material fact precluded summary judgment on whether school board
could punish publication in school newspaper of student article opposing Martin Luther King, Jr.
federal holiday).
While government might arguably have a reasonable and legitimate interest in precluding
students from ending a speech with “Vote Republican!” or “U.S. Out of Afghanistan!” (the
examples proffered by Doe Defendants), government cannot reasonably preclude students and
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teachers from borrowing the words of our unofficial national anthem, our national motto or our
President, and using those words to greet one another in ways that cannot possibly be construed
Desilets on Behalf of Desilets v. Clearview Reg'l Bd. of Educ., 630 A.2d 333, 338-39 (N.J. Super.
Ct. App. Div. 1993) (aff'd, 137 N.J. 585, 647 A.2d 150 (1994)) (holding that school board’s
censorship of student’s R-rated movie reviews in school publication was not reasonable and
At the very least, if this Court is inclined to conclude otherwise and enshrine Doe
Defendants’ chilling view of the public square into the law of the land in Santa Rosa County, it
should not do so at the motion to dismiss stage, without the benefit of a full merits inquiry.
Desilets, 630 A.2d at 338 (“The curtailment of cherished First Amendment rights mandates
careful analysis of the reasons given for the censorship in light of the facts of this case to
determine if there is any valid educational purpose to support the censorship”) (emphasis added).
Ultimately, Doe Defendants are confused about the stage of these proceedings, and seek
to put Plaintiffs to the proof of their factual allegations, when in fact the well-pled factual
allegations themselves are sufficient to move the case from the pleading stage to discovery and
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merits determination. Twombly, 550 U.S. at 555; Iqbal, 129 S.Ct. at 1949. Thus, under Twombly
and Iqbal:
• Plaintiffs have stated free speech claims upon which relief can be granted because they
have alleged facts which, accepted as true, demonstrate that the Consent Decree and the
School Board and Superintendent Defendants have interfered with Plaintiffs’ free speech
rights.
• Plaintiffs have stated free association claims upon which relief can be granted because
they have alleged facts which, accepted as true, demonstrate that the Consent Decree and
the School Board and Superintendent Defendants have curtailed the rights of teachers,
students, parents and community members to associate privately during off-school, off-
duty hours to pursue “a wide variety of political, social, economic, educational, religious,
and cultural ends.” Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984).
• Plaintiffs have stated Equal Protection claims upon which relief can be granted because
they have alleged facts which, accepted as true, demonstrate that the Consent Decree and
the School Board and Superintendent Defendants have treated more favorably, and do not
ban from their fora, those who speak on otherwise permissible subjects from a non-
religious viewpoint. Jones v. Ray, 279 F.3d 944, 946 (11th Cir. 2001).
• Plaintiffs have stated Free Exercise of Religion claims upon which relief can be granted
because they have alleged facts which, accepted as true, demonstrate that the Consent
Decree is not only not neutral towards religion (as Doe Defendants acknowledge), but
also is not narrowly tailored to serve any compelling government interest. First Assembly
of God of Naples v. Collier County, 20 F.3d 419, 423 (11th Cir. 1994) (holding that if a
law is not neutral toward religion it must be narrowly tailored to serve a compelling
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activities held in privately-rented school facilities solely because the principal attendees
are school district students. Good News Club., 533 U.S. at 113-19.
• Finally, Plaintiffs have stated Establishment Clause claims upon which relief can be
granted because they have alleged facts which, accepted as true, demonstrate that the
Consent Decree and the School Board and Superintendent principally and primarily
inhibit religion by, inter alia, precluding piano players and event organizers from
participating in private church services held off-school grounds during off-school hours,
and by interfering with pastors’ rights to conduct private church services “in the precise
manner that they prefer” (Sch. Bd. Mot. to Dismiss, dkt. 23 at 20). See Lemon v.
Kurtzman, 403 U.S. 602, 612-13 (1971) (statute that has principal or primary effect of
CONCLUSION
For these reasons, the Doe Defendants’ Motion to Dismiss should be denied.
Respectfully submitted,
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was filed
electronically with the Court this 25th day of October, 2010. Service will be effectuated upon all
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