liberty counsel, motion for preliminary injunction

8/9/2019 Liberty Counsel, Motion for Preliminary Injunction

1/30

1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

(PENSACOLA DIVISION)

Mary E. Allen, Gayle Lindsey, Vicki L. Kirsch,

Jessica M. Barnes, Denise L. Gibson, Robert

John Metty, Jr., Deandrea K. Dawson, Martha

Gough, Kace Browning, Sheila Bozeman,

Rebekah Nolan, Mittie J. Waller, Michelle

Winkler, Nancy B. Lay, Mark Hinote and

Deborah Hinote, as parents and next friends of

H.H., a minor, Kristan Harley, individually and

as parent and next friend of S.M.H. and H.J.H.,

minors, Falyn Martin, Chaz Riley, Philip Hughes

Moon, Mary Katherine Beckham, Joseph A.

Rogers and James T. Waters,

Plaintiffs,

v.

School Board for Santa Rosa County, Florida,

and Tim Wyrosdick, in his official capacity as

Superintendent, Santa Rosa County School

District,

Defendants.

)

)

)

)

)

)

)

)

)

)

)

)

))

)

)

)

)

)

)

)

)

)

)

Civil Action No. :

3:10-CV-00142-MCR-MD

Judge M. CASEY RODGERS

ORAL ARGUMENT REQUESTED

PLAINTIFFS' MOTION FOR A PRELIMINARY

INJUNCTION AND REQUEST FOR HEARING

WITH INCORPORATED MEMORANDUM OF LAW IN SUPPORT

Pursuant to Rule 65(a) of the Federal Rules of Civil Procedure, Plaintiffs, MARY E. ALLEN,

GAYLE LINDSEY, VICKI L. KIRSCH, JESSICA M. BARNES, DENISE L. GIBSON, ROBERT

JOHN METTY, JR., DEANDREA K. DAWSON, MARTHA GOUGH, KACE BROWNING,

SHEILA BOZEMAN, REBEKAH NOLAN, MITTIE J. WALLER, MICHELLE WINKLER,

NANCY B. LAY, MARK HINOTE and DEBORAH HINOTE, as parents and next friends of H.H., a

minor, KRISTAN HARLEY, individually and as parent and next friend of S.M.H. and H.J.H.,

minors, FALYN MARTIN, CHAZ RILEY, PHILIP HUGHES MOON, MARY KATHERINE

Case 3:10-cv-00142-MCR-MD Document 12 Filed 05/30/10 Page 1 of 30


2/30

2

BECKHAM, JOSEPH A. ROGERS and JAMES T. WATERS, (collectively, Plaintiffs), by and

through counsel, move this Court to enter a Preliminary Injunction enjoining Defendants, SCHOOL

BOARD FOR SANTA ROSA COUNTY, FLORIDA and TIM WYROSDICK, in his official

capacity as SUPERINTENDENT, SANTA ROSA COUNTY SCHOOL DISTRICT (collectively

Defendants), from enforcing against Plaintiffs the policies Defendants consented to by virtue of

entering into a Consent Decree and Order, which was subsequently entered by the United States

District Court for the Northern District of Florida on May 6, 2009 (hereinafter Consent Decree), as

well as the policies and guidelines Defendants adopted to implement the Consent Decree (hereinafter

Policies), and from violating Plaintiffs rights to freedom of speech, freedom of association, equal

protection, and free exercise of religion guaranteed by the First and Fourteenth Amendments to the

United States Constitution, and from violating the Establishment Clause contained in the First

Amendment to the United States Constitution.

In support of this motion, Plaintiffs state as follows:

1. This is a civil action in which Plaintiffs seek Preliminary and Permanent InjunctiveRelief enjoining Defendants, their agents, servants and employees and those acting in active concert

with them, from enforcing Defendants Policies and the Consent Decree, and from violating

Plaintiffs rights to freedom of speech, freedom of association, equal protection, and free exercise of

religion guaranteed by the First and Fourteenth Amendments to the United States Constitution, and

from violating the Establishment Clause contained in the First Amendment to the United States

Constitution.

2. Plaintiffs also pray for Declaratory Judgment to determine the constitutionality ofDefendants Policies and the Consent Decree, facially and as applied to Plaintiffs, and to declare

them unconstitutional.

3. Plaintiffs also seek damages.



3/30

3

4. An actual controversy exists between the parties involving substantial constitutionalissues in that the challenged Policies and the Consent Decree, on their face and as applied, violate the

United States Constitution.

5. Rule 65 of the Federal Rules of Civil Procedure authorizes this Court to grantpreliminary injunctive relief.

6. Plaintiffs are likely to succeed on the merits. The constitutional protections theyinvoke are not novel or complex, but firmly entrenched in First Amendment jurisprudence. As a

matter of well-established First Amendment law, for instance, Defendants cannot ban God Bless

within Santa Rosa Schools, dictate what teachers may wear and where they may sit at private

religious events in houses of worship, ban volunteers from even discussing religion at school events,

and inhibit or restrict the non-disruptive religious expression and exercise of teachers and students

during non-instructional time, when other subjects or forms of expression are permissible.

7. Plaintiffs face a substantial threat of irreparable harm if this Court does not interveneand does not grant an injunction. Plaintiffs constitutional rights have already been infringed by

Defendants Policies and the Consent Decree. These harms continue to this day and, absent an

injunction by this Court, will increase and be made worse. Every day that Plaintiffs are subjected to

the unconstitutional Policies and Consent Decree is another day of irreparable harm because

Plaintiffs constitutional rights are being violated. This harm is immediate and irreparable.

8. Any harm to Defendants is minimal, but the harm to Plaintiffs is irreparable andimmediate. Defendants have no legal interest in applying and enforcing unconstitutional Policies or

an unconstitutional Consent Decree. They have no legal interest in banning God Bless within Santa

Rosa Schools, or dictating what teachers may wear and where they may sit at private religious events

in houses of worship, or banning volunteers from even discussing religion at school events, or

inhibiting or restricting the non-disruptive religious expression and exercise of teachers and students

during non-instructional time, when other subjects or forms of expression are permissible.



4/30

4

9. Moreover, no significant harm will be visited upon Defendants or any other thirdparty by a temporary stay on the enforcement of the Consent Decree and Policies emanating from it,

pending the merits resolution of this action, because the Consent Decree is irreversibly moot and

therefore unenforceable by any court, since both anonymous student plaintiffs that obtained the

Consent Decree have graduated from Defendants schools.

10. An injunction requiring Defendants to abide by the Constitution in order to protectPlaintiffs constitutional freedoms is within the public interest. The protection of cherished

constitutional liberties is always in the public interest.

11. Plaintiffs respectfully request expedited consideration of, and a hearing on, thisMotion at the Courts earliest possible availability, because Plaintiffs continually face the loss of

their constitutional rights. Plaintiffs suggest that oral argument on this case is necessary in order to

fully apprise the Court of the facts and the law with regard to these important issues.

WHEREFORE, Plaintiffs respectfully request that this Court enter a Preliminary Injunction

enjoining the Defendants from enforcing their unconstitutional Policies and the Consent Decree

against Plaintiffs, pending the merits resolution of this action, and waiving any bond or alternatively

imposing only a nominal bond.

Respectfully submitted,

David M. Corry

Florida Bar No. 861308

LIBERTY COUNSEL

PO Box 11108Lynchburg, VA 24506-1108

434-592-7000 Telephone

434-592-7700 Facsimile

[email protected]

ATTORNEYS FOR PLAINTIFFS

/s/ Horatio G. Mihet___________________

Mathew D. Staver

Florida Bar No.

Anita L. Staver

Florida Bar No.Horatio G. Mihet

Florida Bar No.

LIBERTY COUNSEL

PO Box 540774

Orlando, FL 32854-0774



[email protected]



5/30

MEMORANDUM OF LAW

INTRODUCTION

This action brings before the Court twenty-four (24) individuals teachers, staff, students, a

former student, parents, volunteers, and clergy whose First Amendment rights have been, and are

being, violated by the Consent Decree (Consent Decree) (attached as Ex. 1) entered by this Court

on May 6, 2009 inMinor I Doe, et al. v. School Board for Santa Rosa County, et al., Case No. 3:08-

CV-00361-MCR-EMT (the ACLU Action). The so-called common sense interpretation and

application of the Consent Decree promised by Defendant School Board for Santa Rosa County

(School Board or the District), through its Superintendent, Defendant Timothy S. Wyrosdick

(Superintendent or Wyrosdick), (collectively, Defendants), has resulted in breathtaking

incursions into Plaintiffs sacred freedoms of speech, association, religion and equal protection, all of

which are guaranteed by the United States Constitution.

The Consent Decree and Defendants policies emanating from it (Policy or Policies)

have banned God Bless in the schools of Santa Rosa County, and Defendants have censored

students, including Plaintiff Chaz Riley, from using those words. The Consent Decree and Policies

have banned parent volunteers, including Plaintiffs Mary Katherine Beckham and Philip Hughes

Moon, from even discussing or enter[ing] into a dialogue with students regarding religion,

regardless of how academic such dialogue is, who initiates it, and its educational value. The same

Consent Decree and Policies have interfered with the rights of teachers, including many of the

Plaintiffs, to attend and participate in privately-sponsored, religious baccalaureate services held

outside of school hours in houses of worship or privately-rented facilities, and have interfered with

the rights of private citizens, including Plaintiffs Joseph A. Rogers and James T. Waters, to organize

and hold such services. Because of the Consent Decree and Policies, one former student, Plaintiff

Mary E. Allen, was silenced at her graduation, even though she earned the right to address her

colleagues as every other student body President had done at her school in the prior three decades.



6/30

2

And, the Consent Decree and Policies preclude teachers and staff, including many of the Plaintiffs,

from having inspirational materials on tangible school property (such as their desks), or reading such

materials during non-instructional time, or engaging in any other kind of religious discussion or

observance with other consenting adults during non-instructional time.

Plaintiffs seek to invalidate the Consent Decree, facially and as applied to them, and to enjoin

Defendants from further enforcement and application of their unconstitutional Policies. Because

Plaintiffs have suffered and continue to suffer irreparable harm every day the Consent Decree and

Defendants Policies are in effect, Plaintiffs now respectfully request that the Court enter a

Preliminary Injunction and Declaration precluding further enforcement of the Consent Decree and

Defendants Policies, pending the resolution of Plaintiffs claims on the merits.

BACKGROUND FACTS

The vagueness, overbreadth and other constitutional flaws of the Consent Decree are fully

documented and explained in the ACLU Action by the attempted Intervenor therein, Christian

Educators Association International (CEAI), including in its Written Closing Argument on

Intervention. (ACLU Action, dkt. 227, pp. 11-21). For the sake of brevity, Plaintiffs herein will not

rehash that explanation, but adopt it as their own and incorporate it by reference pursuant to

Fed.R.Civ.P. 10(c).

The School Board has interpreted and applied the Consent Decree to cover all religious

speech, such as the all-American expression God Bless. Plaintiff Chaz Riley is a student at Milton

High School, where he serves as the student body President. (Decl. of Chaz Riley, 3, attached as

Ex. 2). At the request of school officials, Chaz authored a welcome back letter for his classmates,

for inclusion in the agenda planners distributed to Milton High School students in August 2009. (Id.

at 4). Chaz ended the message with Good luck and God Bless. (Id. at 5-6 and Ex. A). He

clearly used God Bless not as a communication with a deity, but as a wishful expression of

goodwill, using words commonly employed by many Americans (including the President) at the end



7/30

3

of a communication or conversation. (Id. at 7). School officials prohibited Chaz from uttering the

words God Bless, because, after obtaining the professional advice of their attorney, they

concluded that God Bless would be prohibited by the Order because it falls within the definition

of prayer in paragraph 3(b) of the Consent Decree. (Id. at 9 and Exhibit B). School officials,

following advice of their attorney, further concluded that the Consent Decree prohibited Chaz from

closing with God Bless because it prohibited offering a prayer. (Id.). Thus, Chaz Rileys remarks

were censored. (Id. at 10-11 and Ex. C).

Consistent with the Consent Decree, Defendants have shown clear hostility to voluntary,

student-led religious speech and expression in many other instances:

Chaz was threatened not to engage in voluntary, student-initiated and student-ledprayer at last years graduation exercises, which he attended as a student government leader, under

pain of immediate ejection from the ceremony and subsequent discipline. (Id. at 14-15).

H.J.H., a minor Plaintiff and student at Thomas L. Sims Middle School, and her classmates were threatened with discipline by school officials for their voluntary, student-led and student-

initiated recitation of a Bible verse before eating their lunch at school, during non-instructional time

when they were otherwise free to discuss other subjects out loud. (Decl. of H.J.H., 10-16, attached

as Ex. 3). The threat was sufficient to deter further participation in this voluntary activity, and

immediately and effectively shut down this and other forms of student religious expression. (Id. at

16-18).

S.M.H., another minor Plaintiff and a student at Pace High School, was stripped ofher role as student chaplain for her student band colleagues, even though her fellow students decided

on their own to have that position, and to elect her to serve them in that position, by leading

voluntary, student-led and student-initiated prayers and devotions during free time before band

events. (Decl. of S.M.H., 9-14, attached as Ex. 4).



8/30

4

H.H., another minor Plaintiff and student at Pace High School, S.M.H. and Falyn V.Martin, a student over the age of eighteen at Pace High School, have all witnessed and experienced

first hand the Districts hostility to voluntary, student-led and student-initiated prayers, devotions and

religious discussions during non-instructional time. (S.M.H. Decl. at 15-16; Decl. of H.H., 10-

16, attached as Ex. 5; Decl. of Falyn V. Martin, 10-11, attached as Ex. 6). School officials have

created an environment that is hostile to voluntary, student-led and student-initiated religious

expression. (Id.) As a result, students now either forego such expression or feel rushed, hurried and

hushed, as if they are doing something illicit. (Id.)

Falyn Martins participation in First Priority, a voluntary Christian student club atPace High School, has also been hampered by Defendants application of the Consent Decree.

(Martin Decl. at 5-9). School officials have interfered with Falyns and other students ability to

organize and conduct First Priority activities and events: (a) by prohibiting teachers and staff from

speaking at such events, even when invited to do so by students during non-school hours; (b) by

prohibiting otherwise willing teachers and staff from acting in an advisory capacity to the club during

off-duty hours, in the same way that other teachers do for other clubs; and (c) by prohibiting Falyn

and other students from inviting the same speaker from the community to speak at the club on more

than one occasion. (Id. at 7-9).

At last years graduation ceremony for Pace High School students, school officialssilenced Plaintiff Mary E. Allen, the then-student body President and an outspoken Christian, and

prohibited her from addressing the students who elected her to lead them, even though every other

student body President in the prior three decades enjoyed that privilege. (Decl. of Mary E. Allen,

3-12, attached as Ex. 7). Defendant Wyrosdick specifically attributed his decision to silence Ms.

Allen to the Consent Decree. (Id. at 9). Mr. Wyrosdick claimed that the Consent Decree prohibited



9/30

5

Allen from speaking even though she was neutrally selected by her classmates, and even though the

votes cast by any teachers were also neutral and were inconsequential to her election. (Id. at 9-11).

Defendants hostility to religious expression and discussion extends far beyond students, to

parents and adult volunteers. For example, in their Policies, Defendants have interpreted and applied

the Consent Decree to prohibit volunteer parents or chaperones from enter[ing] into a dialogue with

students regarding religion, religious views or the like. (Decl. of Mary Katherine Beckham, 8 and

Ex. A, attached as Ex. 8; Decl. of Philip Hughes Moon, 8 and Ex. A, attached as Ex. 9). Plaintiff

Mary Katherine Beckham, whose daughter attends Pace High School, has been prohibited from

continuing her long-standing role as a parent volunteer and chaperone for the band, because she

refused to accept Defendants unconstitutionally broad mandate. (Beckham Decl. at 4-14).

Plaintiff Philip Hughes Moon, whose son attends Pace High School, has censored his speech out of

concern that the District will prohibit him from serving as a volunteer if he does not abide by its

Policies. (Moon Decl. at 4-14). Neither Beckham nor Moon desires to proselytize students or

otherwise indoctrinate them. (Beckham Decl. at 11; Moon Decl. at 10). Instead, they both wish to

exercise their freedom, as non-employees of the Defendants, to dialogue about religion or religious

beliefs when initiated and engaged by high school students who are mature enough to form and

articulate their own opinions and beliefs. (Beckham Decl. at 12; Moon Decl. at 11). According to

Defendants and their Policies, the Consent Decree bans even this type of religious dialogue,

lumping it in the same category with foul language. (Beckham Decl. at 13; Moon Decl. at 13).

Defendants have interfered with the interactions between teachers and parents, and

Defendants religiously-hostile Policies have harmed parent-teacher relationships. Defendants have

prohibited teachers from engaging in relationship-building dialogue with parents, including with

Plaintiff Beckham and Plaintiff Kristan Harley, that includes discussion of spiritual and religious

matters. (Beckham Decl. at 15-20; Decl. of Kristan Marie Harley, 6-12, attached as Ex. 10).

These discussions previously took place during non-instructional time, were initiated by Plaintiff



10/30

6

Beckham and Plaintiff Harley, and were instrumental in fostering positive parent-teacher

relationships that ultimately benefited the students. (Beckham Decl. at 17-18; Harley Decl. at 6-

7). Because of the Consent Decree and the Policies, teachers are now prohibited from engaging in

these conversations with parents, and the teachers either ignore the Parent Plaintiffs, or change the

subject, or flatly refuse to engage in those discussions. (Beckham Decl. at 19; Harley Decl. at 10).

Defendants have even gone so far as to prohibit teachers from replying directly to Plaintiff Harleys

emails whenever they contain even fleeting references to religious subjects or matters of faith.

(Harley Decl. at 11). Teachers either ignore Plaintiff Harleys emails, or respond with new emails

that do not include the subject matter of Plaintiff Harleys initial communication. (Id.) In either case,

communication has suffered between Plaintiff Harley and her daughters teachers. (Id.) Because of

these prohibitions and restrictions, parent-teacher relationships have suffered, to the detriment of the

students and the entire community. (Beckham Decl. at 20; Harley Decl. at 12).

Even more insidious has been Defendants hostility toward the private, off-the-clock

religious speech and expression of teachers and staff. Plaintiffs Robert John Metty, Jr., Gayle

Lindsey, Vicki L. Kirsch, Jessica M. Barnes, Denise L. Gibson, Deandrea K. Dawson, Martha

Gough, Kace Browning, Sheila Bozeman, Rebekah Nolan, Mittie J. Waller and Nancy B. Lay are

employed as teachers by Defendants. (Decl. of Robert John Metty, Jr., 3, attached as Ex. 11; Decl.

of Gayle Lindsey, 3, attached as Ex. 12; Decl. of Vicki L. Kirsch, 3, attached as Ex. 13; Decl. of

Jessica M. Barnes, 3, attached as Ex. 14; Decl. of Denise L. Gibson, 3, attached as Ex. 15; Decl.

of Deandrea K. Dawson, 3, attached as Ex. 16; Decl. of Martha Gough, 3, attached as Ex. 17;

Decl. of Kace Browning, 3, attached as Ex. 18; Decl. of Sheila Bozeman, 3, attached as Ex. 19;

Decl. of Rebekah Nolan, 3, attached as Ex. 20; Decl. of Mittie J. Waller, 3, attached as Ex. 21;

Decl. of Nancy B. Lay, 3, attached as Ex. 22). Collectively, these Plaintiffs shall be referred to

herein as the Educator Plaintiffs. Plaintiff Michelle Winkler is employed as a clerical assistant by

Defendants. (Decl. of Michelle Winkler, 3, attached as Ex. 23).



11/30

7

The Educator Plaintiffs, Ms. Winkler, and many of their colleagues have been silenced,

chilled or otherwise adversely affected by Defendants Policies and the Consent Decree in the

exercise of their First Amendment freedoms. Each of them received a copy of the Consent Decree

from their employer, along with a memorandum instructing them to abide by it under pain of

discipline, termination, fines, penalties and sanctions. (Employee Plaintiffs Declarations at 5;

Complaint at Ex. B). Each of them was warned that they could be punished in this manner for either

intentional or unintentional violations of the Consent Decree, and that they would not be defended by

their employer against accusations of such violations. (Id.) And each of them is keenly aware that

within the last year, three of their colleagues (including Plaintiff Michelle Winkler and Plaintiff

Nancy Lays husband) have had to answer to civil and criminal contempt charges as a result of

various acts of religious expression. (Lindsey, Kirsch, Barnes, Gibson, Dawson, Gough, Browning,

Bozeman, Nolan, Waller and Lay Declarations at 10-12).

None of the Educator Plaintiffs wish to test the limits of their constitutional liberties through

conduct or speech that may expose them to the type of sanctions threatened by their employer or

faced by their colleagues. (Id.) They have resolved doubts as to what they can or cannot do in favor

of self-censorship, and have either voluntarily given up altogether religious speech and expression in

which they previously engaged, or severely limited it to avoid punishment or the threat of

punishment. (Id.) A complete list of activities and conduct in which the Educator Plaintiffs and Ms.

Winkler engaged in the past, and which they would engage in but for the prohibitions contained in

Defendants Policies and the Consent Decree, is included on pages 12 through 16 of the Complaint

filed in this action, and in the Educator Plaintiffs and Ms. Winklers Declarations (Exhibits 11-23),

all of which are incorporated by reference herein pursuant to Fed.R.Civ.P. 10(c).

The Consent Decree and Defendants Policies also require Educator Plaintiffs and Ms.

Winkler, under pain of discipline or contempt, to engage in conduct they do not wish to engage in.



12/30

8

(See Complaint, 61-62; Lay, Lindsey, Kirsch, Gibson, Dawson, Gough, Browning, Bozeman,

Nolan and Waller Declarations at 9; Metty Decl. at 12-17, incorporated by reference herein).

The Consent Decree and Policies also place many restrictions on Educator Plaintiffs ability

to attend privately-sponsored religious baccalaureate services even when they take place outside of

school hours and in a house of worship. For example, Plaintiff Metty has attended several privately-

sponsored religious baccalaureate services in the past, to support graduating students from Pace High

School, and plans to do so again in the future. (Metty Decl. at 8). He is particularly looking forward

to the baccalaureate service in early June 2010, because he has a daughter who is a senior at Pace

High School. (Id.). His freedom to sit with whomever he wants, including fellow teachers, and to

wear whatever he wants, including a graduation gown, at privately-sponsored, voluntary, religious

baccalaureate services held outside of school hours at a house of worship, is very important to him.

(Id. at 9). His wife is also a teacher at Pace High School, as are many of his good friends. (Id.) He

wants to be able to sit with them, or with anyone else he chooses. (Id.) He also wants to be able to be

recognized as a teacher for his contribution to the success of the graduating seniors. (Id.)

Plaintiff Metty has advised Defendant Superintendent and School Board attorney, Mr. Paul

Green, that he intends to attend this years privately-sponsored baccalaureate service for Pace High

School Seniors, and that he plans to sit where he wants, with whomever he wants within the house of

worship that hosts the event. (Id. at 10). He also advised them that he plans to wear whatever he

wants at the baccalaureate service, including attire that may identify him as a teacher. (Id.) Defendant

Superintendent and Mr. Green warned Plaintiff Metty that if he does any of the above, he will violate

the Policies and the Consent Decree, and will be subject to discipline and contempt sanctions. (Id.)

Defendants Policies and the Consent Decree prohibited Plaintiff Gough and Plaintiff

Browning from planning and organizing, during their private, off-the-clock time on campus,

baccalaureate activities for Pace High students. (Browning Decl. at 8(k); Gough Decl. at 8(f)).

Defendants have even gone so far as to prohibit one employee from playing the piano at a privately-



13/30

9

sponsored, religious baccalaureate service, even though the teacher would have played the piano

outside of school hours, in her private, off-the-clock time, and even though the event was sponsored

by the church where that teacher was a member and regularly played the piano at church services!

(Decl. of James T. Waters, Jr., 10, attached as Ex. 24). And, Defendants prohibited another teacher

from coordinating and leading a private, religious baccalaureate service sponsored by her own

church, even though that teacher would have coordinated and led the privately-sponsored event in her

private, off-the-clock time, outside of school hours. (Id. at 9). Attorney Green warned this teacher

that if she assisted with the privately-sponsored event, she would ride with Frank Lay to see Judge

Rodgers, referring to Plaintiff Nancy B. Lays husband who was at that time being criminally

prosecuted for a prayer said at a school event. (Id.)

Defendants Policies and the Consent Decree have also had wide ranging impact in the

community at large. Plaintiff James T. Waters, a youth minister who organizes private religious

baccalaureates, was left without a coordinator and without a piano player at last years baccalaureate

service for Milton High School students, because Defendants prohibited his own church members

from assisting or participating in the event on the members own time simply because those members

were also school employees. (Waters Decl. at 3, 8-10).

Waters usually rents Defendants public school facilities to conduct the private religious

baccalaureate services that he sponsors, on the same terms as are available to other groups in the

community. (Id. at 7). Since the principal attendees of the religious baccalaureate services

sponsored by Reverend Waters are students the high school students in whose honor the service is

being held the services are deemed school events by the Consent Decree and Defendants

Policies, such that no religious expression the very purpose of the events can be allowed to take

place. (Consent Decree at 3(g), 5(a)-(b); Waters Decl. at 16-17).

Rev. Joseph A. Rogers another Plaintiff minister who organizes private, religious

baccalaureate services in his own church for students of his local high school has also been



14/30

10

hampered by Defendants Policies and the Consent Decree. (Decl. of Joseph A. Rogers, 3-8,

attached as Ex. 25). He too was unable to enlist volunteers from his own church and community to

assist him with the baccalaureate service, because those individuals who happened to be employed by

Defendants were prohibited from assisting him, even on their own, off-the-clock time. (Id. at 8).

In addition, both Waters and Rogers have been hampered by the seating and clothing

prohibitions for private baccalaureate events contained in the Consent Decree and Defendants

Policies. (Waters Decl. at 11-12; Rogers Decl. at 9-16). Both ministers desire to be able to

publicly recognize and thank teachers for their devotion to the students, as part of the private,

religious baccalaureate services they sponsor. (Waters Decl. at 11; Rogers Decl. at 9). Both

believe that the best way to accomplish this is to seat the teachers together, in one bloc, just as the

students are seated. (Id.) Both ministers were disheartened to learn, at last years services, that

teachers were prohibited by Defendants and the Consent Decree from seating together or

coordinating their attire (for example by wearing academic robes or regalia), and both were hindered

in carrying out their religious calling as a result. (Waters Decl. at 12; Rogers Decl. at 10).

Defendants Policies and the Consent Decree interfere with the rights of Waters in other

respects besides baccalaureate services. Rev. Waters has conducted, and wishes to conduct in the

future, private, religious programs for students in his community. (Waters Decl. at 21). He has

used, and desires to continue to use, school facilities to offer these voluntary programs outside of

school hours, on the same terms as other community members and groups. (Id. at 23). However,

since the principal attendees of these programs are students, the Consent Decree and Defendants

Policies consider them to be "school events," such that no religious activities the very purpose of

the programs can be allowed to take place. (Id. at 27). On their face, the Consent Decree and

Defendants Policies interfere with Reverend Waters right to organize and conduct these programs.

(Id.)



15/30

11

ARGUMENT

Courts may grant a preliminary injunction where, as here, Plaintiffs show that: (A) they have

a substantial likelihood of success on the merits; (B) they will suffer irreparable injury unless the

injunction issues; (C) the threatened injury to the Plaintiffs outweighs whatever damage the proposed

injunction may cause the Defendants; and (D) if issued, the injunction would not be adverse to the

public interest. KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1268 (11th Cir. 2006); Citizens

for Police Accountability Political Committee v. Browning, 572 F.3d 1213, 1217 (11th Cir. 2009).

I. PLAINTIFFS HAVE A SUBSTANTIAL LIKELIHOOD OF SUCCESS.A. Defendants Policies Are Unconstitutional.Plaintiffs are likely to prevail on the merits, because the Consent Decree and Defendants

Policies are clearly unconstitutional. Santa Rosa County is the only county in the Land of the Free

where students like Chaz Riley, teachers and even the President a non-student third party under

the Consent Decree have to change the ending of their speeches, because Defendants and the

Consent Decree define God Bless as a prayer and ban its utterance (along with similar phrases).

(See Prepared Remarks of President Barack Obama, www.whitehouse.gov/mediaresources

/preparedschoolremarks (last accessed on May 20, 2010) (ending speech with Thank You, God

Bless You, and God Bless America).

Defendants ban of God Bless and other similar phrases and speech, along with their

outright ban on all religious dialogue by parent volunteers, and their lumping of religious speech

and expression in the same category as foul language and profanities, is unconstitutional:

private religious speech, far from being a First Amendment orphan, is as fullyprotected under the Free Speech Clause as secular private expression. Indeed, in

Anglo-American history, at least, government suppression of speech has so

commonly been directed precisely at religious speech that a free-speech clause

without religion would be Hamlet without the prince.



16/30

12

Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995).1

Defendants attempts to interfere with and dictate the seating arrangement and attire at

privately-sponsored, religious baccalaureate services, even those that take place inside a church,

violate the frees speech rights of Plaintiffs. The same is true regarding the prohibition on prayer at

voluntary, privately-sponsored religious programs for students within privately-rented school

facilities, which Defendants and the Consent Decree regard as school events because the principal

attendees are students. Good News Club v. Milford Central School, 533 U.S. 98, 112 (2001) (speech

discussing otherwise permissible subjects cannot be excluded from a limited public forum on the

ground that the subject is discussed from a religious viewpoint). And Defendants interference with

voluntary, student-led and student-initiated prayer and religious discourse, such as in the case of

Chaz Riley, H.J.H., S.M.H., H.H. or Falyn Martin, is unconstitutional, because it is well established

that students do not shed their Constitutional rights at the school house gate. Tinker v. Des Moines

Indep. Sch. Dist., 593 U.S. 503, 511 (1969) (holding that students may not be regarded as closed-

circuit recipients of only that which the State chooses to communicate. students are entitled to

freedom of expression of their views.)

Teachers also do not shed their rights at the schoolhouse gate. Tinker, 593 U.S. at 511. The

Educator Plaintiffs will be able to establish that the Policies and the Consent Decree are

unconstitutional because they fail to differentiate between teachers as state actors and private

individuals, lumping all of their activities at broadly-defined school events in the category of

official conduct. See e.g., Wigg v. Sioux Falls Sch. Dist. 4-5, 382 F.3d 807 (8th Cir. 2004) (Religion

1Indeed, fifteen years ago the Supreme Court lamented the day when religious speech would be lumped

in and banned along with profanities and other indecencies: It will be a sad day when this Court casts

piety in with pornography, and finds the First Amendment more hospitable to private expletives than to

private prayers. This would be merely bizarre were religious speech simply as protected by the

Constitution as other forms of private speech; but it is outright perverse when one considers that private

religious expression receives preferential treatment under the Free Exercise Clause. Capitol Square, 515

U.S. at 760.



17/30

13

Policy preventing [school board] employees from participating in religious-based activities is

viewpoint discriminatory and, thus, per se unconstitutional); Bd. of Ed. of Westside Cmty. Sch.

(Dist.66) v. Mergens, 496 U.S. 226, 250 (1990) (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). Restrictions or outright

prohibitions on playing the piano at, leading or participating in, or the seating arrangements and attire

at, privately-sponsored, religious events that teachers attend on their own time, outside of school

hours, in private facilities, cannot survive constitutional muster. Wigg, 382 F.3d at 815 (Even

private speech occurring at school-related functions is constitutionally protected, therefore private

speech occurring at non-school functions held on school grounds must necessarily be afforded those

same protections).

These are not novel or complex concepts that require protracted litigation to resolve. They

are firmly established, bedrock constitutional principles that heretofore are widely recognized.

B. Defendants Policies Are Vague And Conflict With The Consent Decree.Defendants Policies are also unconstitutional because they are impermissibly vague, both on

their face and in the context of the Consent Decree. For example, Defendants purport to tell the

Educator Plaintiffs that they actually can engage in certain activities prohibited by the Consent

Decree. Item 1 on Defendants Policy Regarding Schools and Religious Allowances tells educators

that they can display personal items of religious significance on the Districts tangible property, as

long as these items are not oversized or prominent. (Complaint Ex. C at 1). Defendants do not

define oversized, so the Educator Plaintiffs have no idea how large a Bible or how large a

devotional book Defendants purport to allow on the employees desks. (Id.) Moreover, the Consent

Decree at Paragraph 8(e) categorically prohibits the display of any religious symbol, regardless of

size or prominence, in the absence of an articulated nonreligious pedagogical reason. (Ex. 1 at 7).

This contradiction exacerbates the vagueness already found on the face of the Policy, to the point that



18/30

14

the Educator Plaintiffs are left clueless as to what they can or cannot do.

Defendants Policy likewise tells Educator Plaintiffs that they can use the poem Trees by

Joyce Kilmer as a literary work, but prohibits them from expound[ing] on God. (Complaint Ex. C,

at Item 28). This places teachers in a quandary, because the last line of the poem states that Only

God can make a Tree. (Id.) Can they answer questions from students about what the writer meant?

How much discussion about God is permitted before it becomes expounding. None? A little? An

entire class period? The same problem is caused by Defendants instruction that Educator Plaintiffs

may say I am blessed in casual conversation, such as when asked the question How are you, but

they cannot elaborate on the connotation of being blessed. (Complaint Ex. C at Item 35). How

much discussion of the responders good disposition on a particular day is permissible before it

becomes an elaboration on the state of being blessed? And why does it matter at all, if the Consent

Decree supposedly does not prohibit casual conversation between grown adults? The Educator

Plaintiffs are left in the dark, and they are instead choosing to cleanse their speech entirely of these

remarks.

C. The Consent Decree Itself is Unconstitutional.Defendants widespread violations of Plaintiffs constitutional rights are neither accidental

nor infrequent. Defendants conduct and unconstitutional Policies are enabled by the overbroad and

vague Consent Decree.

1. The Consent Decree is Unconstitutionally Overbroad.The Eleventh Circuit has held that in a facial overbreadth challenge, the facts of the

challenging party's case are irrelevant. Sentinel Communications Co. v. Watts, 936 F.2d 1189, 1197

(11th Cir. 1991) (emphasis added). Facial challenges to overly broad statutes are allowed not

primarily for the benefit of the litigant, but for the benefit of society to prevent the statute from

chilling the First Amendment rights of other parties not before the court. Secretary of State of Md. v.

Joseph H. Munson Co., Inc., 467 U.S. 947, 956-958 (1984). Therefore, in the First Amendment



19/30

15

context, plaintiffs can challenge the constitutionality of a statute that has not been unconstitutionally

applied to them. That is, plaintiffs can challenge a statute as overbroad even if their particular

conduct is not constitutionally protected.Bischoff, 222 F.3d at 883 (emphasis added) (citing Joseph

H. Munson Co., 467 U.S. at 955-57;National Council for Improved Health v. Shalala, 122 F.3d 878,

882-83 (10th Cir.1997); andBordell v. General Electric Co., 922 F.2d 1057, 1060-61 (2d Cir.1991)).

In Sentinel Communications, a newspaper vendor was allowed to facially challenge a

licensing scheme even though it was not adversely affected by it. 936 F.2d at 1197. In the same way,

Plaintiff Waters, for example, can facially challenge the prohibition on Prayer at his school

events events that he privately sponsors, such as baccalaureates and after-school programs, which

are nevertheless deemed to be School Events because their principal attendees are students even

if he has not yet been adversely affected by these restrictions.Id.

Moreover, where, as here, a facial overbreadth challenge is brought to a prior restraint on

speech, Plaintiffs need not show that the challenged provision is substantially overbroad:

Whatever the precise scope of the general rule may be, the Supreme Court and this

Court consistently have permitted facial challenges to prior restraints on speech

without requiring the plaintiff to show that there are no conceivable set of facts

where the application of the particular government regulation might or wouldbe constitutional.

U.S. v. Frandsen, 212 F.3d 1231, 1236 (11th Cir. 2000) (emphasis added).2

The Consent Decrees definition of Prayer includes any blessing or sermon. (Consent

Decree, Section 3(b)). Sermon, in turn, includes either religious discourse, or a speech on

conduct or duty. Merriam-Webster's Collegiate Dictionary, Eleventh Edition, www.merriam-

webster.com. Accordingly, the District is reasonably interpreting the Consent Decrees definition of

2 The Consent Decree is a prior restraint on speech because permanent injunctions i.e., court orders

that actually forbid speech activities are classic examples of prior restraints. Weaver v. Bonner, 309

F.3d 1312, 1323 (11th

Cir. 2002) (quoting Alexander v. United States, 509 U.S. 544, 550 (1993)). The

Consent Decree and Defendants Policies act as prior restraints in a number of ways, because they

prohibit speech based on its content (that is, religious content) prior to its occurrence.



20/30

16

Prayer, to include the words God Bless, and has banned that phrase and similar phrases from

educator emails and student speeches. The overbreadth of this proposition is breathtaking. God

Bless You is no longer an acceptable or legal way to end a student speech in Santa Rosa County. By

logical extension, God Bless America cannot be said or sung without violating (or at the very least,

the fear of violating) the Consent Decree. School officials cannot allow students to watch a speech or

address by the President of the United States, because he invariably concludes with God Bless You,

and God Bless America, which the District believes is a Prayer under the Consent Decree.

In addition, School Event is defined in the Consent Decree to include anything that takes

place on school grounds, since all such happenings, by definition, would be approved or

supervised by a School Official. (Consent Decree, Section 3(g)). Even after-school Good News

clubs come under this definition, because the Consent Decree does not apply only when the

principal attendees are not School District students. (Id.) (emphasis added). Since the principal

attendees of Good News clubs, or private baccalaureate services, or other private religious programs

for students are School District students, those events are School Events. (Id.) Prayer can

never take place at these School Events. The Consent Decree is therefore unconstitutionally

overbroad, because (1) it effectively bans Good News Clubs and other similar programs from

meeting in school facilities, in violation ofGood News Club v. Milford Central School, 533 U.S. 98

(2001); (2) it prohibits educators like Plaintiffs from speaking or praying at privately-sponsored,

religious baccalaureate services held in rented school facilities; and (3) it requires educators like

Plaintiffs to censor private speech at these private events.

The Consent Decrees definition of School Official, at Section 3(h), is overbroad because it

includes people that have nothing to do with the District, such as Plaintiff Winklers husband or

Plaintiff Kirschs daughter, simply because they might be acting in concert or privity with their

family members who happen to be School Officials.



21/30

17

Finally, the worst offender in the overbreadth category is the Consent Decrees definition of

Official Capacity, encompassed within the definition of School Official, at Section 3(h). Under

this Consent Decree, anytime a School Official is at a School Event, she is automatically present in

her official capacity, with no exceptions. When the expansive definition of Official Capacity is

combined with the expansive definition of School Event, the overbreadth error is compounded

exponentially. Anytime the Educator Plaintiffs are at a School Event, regardless of the time,

place or circumstances of their attendance, they are deemed to be there in their official

capacity, and therefore subject to the onerous restrictions of the Consent Decree. This encroachment

cannot survive constitutional scrutiny. See e.g., Wigg,382 F.3d at 815;Mergens, 496 U.S. at 250.

2. The Consent Decree is Unconstitutionally Vague.The Consent Decree at Section 3(b) defines Prayer as a communication with a deity,

including but not limited to, a devotional, benediction, invocation, the Lords Prayer, blessing,

reading from a sacred text (unless done as part of an authorized curriculum), sermon, or otherwise

calling upon a deity to offer guidance, assistance, or a blessing. (Ex. 1 at p. 2) (emphasis added).

What are the exact activities included in this definition? No one knows, because it is open-ended, and

therefore vague. It is clear that the definition encompasses a great deal more than the traditional

notion of prayer because it includes devotionals, reading from a sacred text, and sermons.

Does the definition also include colloquial invitations for blessings from God, such as God Bless

You, or God Bless America? The District thinks so, and has banned those words from educators

emails and student speeches. What else comes under the not limited to clause of this sweeping

definition? No one knows.

The First Amendment requires specificity and pinpoint accuracy. Carroll v. President and

Com'rs of Princess Anne, 393 U.S. 175, 183 (1968) (An order issued in the area of First

Amendment rights must be couched in the narrowest terms that will accomplish the pin-pointed

objective permitted by constitutional mandate and the essential needs of the public order.); see also



22/30

18

NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916 (1982) (even where the First Amendment

activity is intermixed with violentconduct precision of regulation is demanded) (quotingNAACP

v. Button, 371 U.S. 415, 438 (1963)).

The Consent Decrees definition of School Event at Section 3(g) is also vague. The term is

defined as any happening approved by a school official. What does that mean? Does it include

breaks? Lunch periods? Transition time between classes? Off-the-clock time before and after school

when educators have the approval of school officials to be on school grounds? Third party events

in rented campus facilities? The list of activities enumerated in this definition is plagued by the same

open-ended, vague descriptor, includes but is not limited to, such that no one but the drafters can

be certain of all activities and happenings that were intended to be School Events (and perhaps

even the drafters are not absolutely certain of its limits). A law is unconstitutionally vague if it

either forbids or requires the doing of an act in terms so vague that [persons] of common

intelligence must necessarily guess at its meaning and differ as to its application. Connally v.

General Const. Co., 269 U.S. 385, 391 (1926). The vagueness doctrine insures that all be informed

as to what the state commands or forbids.Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939). When

free speech is at stake, precision of drafting and clarity of purpose are essential. Erznoznik v. City

of Jacksonville, 422 U.S. 205, 212-13 (1975).

Section 3(h)s definition of School Officials opens the door for a long list of people and

entities to come under this definition, and then further includes all other persons or entities in active

concert or privity with them. Who does this include? Does it include Plaintiff Winklers husband,

who offered the prayer at an employee banquet in February 2009, even though he is not now, nor has

he ever been, employed by the District? Does it include Plaintiff Kirschs daughter, when the two of

them pray in the stands at her grandsons wrestling matches, even though there is no evidence that

Mrs. Kirschs daughter has any connection to the District? How can a School Official be an

entity? No one knows for certain.



23/30

19

D. Defendants Policies and the Consent Decree are Unconstitutional Viewpointand Content Restrictions.

The Supreme Court has consistently held that a government entity violates the First

Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an

otherwise includible subject. Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788,

806 (1985); see also Good News Club, 533 U.S. at 106 (The restriction must not discriminate

against speech on the basis of viewpoint); Adler v. Duval Co. Sch. Bd., 306 F.3d 1070, 1081 (11th

Cir. 2000) (en banc) (a government entity may not engage in viewpoint discrimination) (citing

Cornelius,473 U.S. at 806, and Perry Educ. Assn. v. Perry Local Educators Assn., 460 U.S. 37, 46

(1983)). The ban on viewpoint discrimination is a constant. Child Evangelism Fellowship of South

Carolina v. Anderson School District Five, 470 F.3d 1062, 1067 (4th Cir. 2006). Accordingly, the

nature of the forum in which the banned speech occurs (e.g., traditional, limited public or nonpublic)

is irrelevant in the context of viewpoint discrimination.Id.; Cornelius, 473 U.S. at 806 (Although a

speaker may be excluded from a nonpublic forum if he wishes to address a topic not encompassed

within the purpose of the forum, or if he is not a member of the class of speakers for whose benefit

the forum was created, the government violates the First Amendment when it denies access to a

speaker solely to suppress the point of view he espouses on an otherwise includible subject).

Here, Defendants and the Consent Decree impermissibly discriminate against Plaintiffs

religious viewpoints, by banning, for example, all religious dialogue between parent volunteers

and high school students on a field trip. If a student asks Plaintiff Moon or Plaintiff Beckham what

they think about the death penalty, they may discuss all kinds of opinions and facts (so long as they

are not profane), but Plaintiff Parents are prohibited from discussing what certain religions, such as

Islam or Christianity, teach about this subject, or what their own religious views are on the subject.

Similarly, parents and teachers may discuss all types of views and subjects in parent-teacher

conferences or email communications, but if a parent brings up a viewpoint grounded in religious



24/30

20

belief, the communication is either cut off or impeded by such restrictions as having to use a brand

new email to respond to an inquiry. Students who want to end their speeches with Good Luck are

left alone, while students who want to say God Bless are censored. Secular student clubs and non-

religious private groups are permitted to use district facilities to conduct their events, but private

religious programs whose principal attendees are students are considered School Events and

subject to a ban on prayer and all religious activity or discourse. These are classic types of viewpoint

discrimination, and are per se unconstitutional regardless of the forum in which they occur. See,

Good News Club, 533 U.S. at 106; Widmar v. Vincent, 454 U.S. 263 (1981) (finding that a

universitys exclusion of a student religious club from use of school facilities violated the right to

free speech and rejecting the universitys Establishment Clause defense); Lambs Chapel v. Center

Moriches Union Free School District, 508 U.S. 384 (1993) (finding unconstitutional denial of access

to a public school facility to show a film addressing the otherwise permissible subject matter of

family from a religious viewpoint).

Defendants Policies and the Consent Decree also are impermissible content-based

restrictions on Plaintiffs speech. It is axiomatic that the government may not regulate speech based

on its substantive content or the message it conveys. Rosenberger v. Rector & Visitors of the

University of Virginia, 515 U.S. 819, 828 (1995). See also, Perry, 460 U.S. at 45-46 n. 7; Widmar,

454 U.S. at 263. Regulations which permit the government to discriminate on the basis of the

content of the message cannot be tolerated under the First Amendment. Simon & Schuster, Inc. v.

Members of the New York State Crime Victims Board, 502 U.S. 105, 116 (1991). Defendants cannot

ban religious dialogue or discourse, especially during non-instructional time when other dialogue

and discourse is permissible, even if the Consent Decree purports to require them to do so. See id.

E. Defendants Policies and the Consent Decree Violate Equal Protection.In addition to viewpoint and content discrimination, Defendants Policies and the Consent

Decree violate Plaintiffs right to equal protection guaranteed by the Fourteenth Amendment. Equal



25/30

21

protection of the law essentially requires that all persons similarly situated should be treated alike.

City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 439 (1985). Content-based

restrictions also have been held to raise Fourteenth Amendment equal-protection concerns because,

in the course of regulating speech, such restrictions differentiate between types of speech. Burson v.

Freeman, 504 U.S. 191, 198 n.3 (1993). Free speech is among the fundamental personal rights and

liberties which [is] protected by the Fourteenth Amendment from invasion by state action."Lovell v.

Griffin, 303 U.S. 444, 450 (1938). Policies discriminating against "religious" speech or dialogue

classify individuals based upon the content of their speech. Such class-based discrimination violates

free speech and equal protection. See also Burlington Northern R. Co. v. Ford, 504 U.S. 648 (1992).

II. PLAINTIFFS ARE SUFFERING IRREPARABLE HARM.The Supreme Court has repeatedly held that [t]he loss of First Amendment freedoms, for

even minimal periods of time, unquestionably constitutes irreparable injury. Elrod v. Burns, 427

U.S. 347, 373 (1976). The First Amendment guarantee that the freedom of speech shall not be

abridged protects the free flow of ideas in a democratic society. When a citizen exercises her freedom

of speech, she is exercising a right that the Supreme Court has characterized as lying at the

foundation of free government by free men. Schneider v. New Jersey, 308 U.S. 147, 151 (1939).

The deprivation of such protected rights constitutes, a priori, irreparable harm and injury.

The constitutional right of free expression is ... intended to remove governmental restraints from the

arena of public discussion, putting the decision as to what views shall be voiced largely in the hands

of each of us in the belief that no other approach would comport with the premise of individual

dignity and choice upon which our political system rests. Simon & Schuster, 502 U.S. at 116

(quotingLeathers v. Medlock, 499 U.S. 439, 448-449(1991)).

Plaintiffs have suffered irreparable harm each day within the last academic year that they

have been subjected to Defendants Policies and the Consent Decree. Not being able to utter the



26/30

22

name of God in the public schools of Santa Rosa County, such as in God Bless, constitutes

grievous and irreparable harm for Plaintiffs and society at large. Being subject to any restrictions

within a privately-sponsored, religious service that takes place outside of school hours in a house

of worship or privately-rented facilities, constitutes grievous and irreparable harm for Plaintiffs

and society at large. Not being able to express religious views and convictions during non-

instructional time on campus or at school events, on the same terms that other views and subjects

can be discussed, constitutes grievous and irreparable harm for Plaintiffs and society at large.

Aware of the civil and criminal contempt proceedings that have already taken place

against school officials whose religious conduct and expression was alleged to violate certain

orders of this Court, Plaintiffs are self-censoring their religious speech and conduct every day.

They are either foregoing religious discourse or prayer altogether, or hiding in closets to do it, or,

in the case of Plaintiff Beckham, giving up volunteer opportunities in their community. With a

new school year fast approaching, and the return to school of students, teachers, staff and parent

volunteers, Plaintiffs should not have to endure the continued loss of their First Amendment rights

while the merits of their claims are litigated and decided. Swift action by this Court, and the granting

of the preliminary injunction sought herein, is the only means to avoid that irreparable harm from

being visited anew upon Plaintiffs.

III. THE BALANCE OF HARMS FAVORS PLAINTIFFS.A. Entering An Injunction Will Not Harm Defendants.There is no question that the balance of harms weighs heavily in Plaintiffs favor. Plaintiffs

will continue to be irreparably harmed. Defendants will not be harmed by the entry of the

Preliminary Injunction. Defendants have no legitimate interest in applying and enforcing

unconstitutional Policies or an unconstitutional Consent Decree.



27/30

23

B. Entering An Injunction Will Not Harm Anyone Because The Consent DecreeShould Be Vacated Anyway.

The Consent Decree should be vacated because the two anonymous plaintiffs for whose

benefit the Consent Decree was entered graduated on May 30, 2009, and no longer have a legal

interest in the Consent Decree, thereby rendering the Consent Decree irreversibly moot. See e.g.,

Adler v. Duval County School Board, 112 F.3d 1475, 1477-78 (11th Cir. 1997). An injunction in

favor of Plaintiffs will therefore not harm the Defendants.

The Courts recent conclusion in the ACLU Action (ACLU Action, dkt. 288) that the

Consent Decree can still be enforced is erroneous for four reasons. First, the Court was mistaken in

its determination that the judgment became final, with no appeal taken, prior to the alleged

graduation. (ACLU Action, dkt. 288 at 4-5) (emphasis added). The Consent Decree was entered in

the ACLU Action on May 6, 2009. (ACLU Action, dkt. 94). Judgment followed on May 11, 2009.

(ACLU Action, dkt. 96). The time for an appeal from that Judgment did not expire until June 10,

2009. Fed.R.App.P. 4(a)(1). But the Court lost jurisdiction of the ACLU Action on May 30, 2009,

the day both individual plaintiffs graduated. On June 1, 2009, the Court had an independent

obligation to sua sponte review its jurisdiction and dismiss the action as moot. United States v. Hays,

515 U.S. 737, 742 (1995) (federal courts are under an independent obligation to examine their own

jurisdiction). That duty continued on June 2, 3, 4, 5, 6, 7, 8, 9 and at least through June 10, 2009.

Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (holding that an actual case or controversy must exist

at all stages of litigation).

Second, the Courts independent obligation to sua sponte investigate its jurisdiction and

dismiss the ACLU Action as moot continued well beyond June 10, 2009:

Whatever effect the parties agreement (and the courts acquiescence therein) may

have had on the entry of the consent decree, our precedent makes clear that the

court remains under a continuing obligation to examine its jurisdiction where,

as here, the parties consent to the settlement of a case but leave for future

resolution the matter of attorneys fees.



28/30

24

DLil v. Best Western Encina Lodge & Suites, 538 F.3d 1031, 1036 (9th Cir. 2008) (emphasis added).

Here as inDLil, the Consent Decree was entered to resolve most of the issues in the ACLU Action,

but expressly left for future resolution the matter of attorney's fees. (ACLU Action, dkt. 94 at 13).

In fact, the matter of attorney's fees remained pending between the plaintiffs and Defendants in the

ACLU Action for almost five (5) months after the entry of the Consent Decree, and was not

ultimately resolved until September 28, 2009. (ACLU Action, dkt. 181). The Court had the duty to

investigate Plaintiffs status following their May 30, 2009 graduation, and to dismiss their case and

vacate the Consent Decree as moot because the Consent Decree was not a final order at the time it

became moot.

Third, the passage of time and Defendants decision not to appeal an otherwise moot order

did not relieve the Court of its independent duty to examine its jurisdiction and sua sponte to vacate

the Consent Decree as moot following the graduation of the two anonymous plaintiffs.Arizonans for

Official English v. Arizona, 520 U.S. 43 (1997). A final judgment must be dismissed as moot even

if the event triggering mootness occurs after the entry of final judgment, and even if no party to

the judgment appeals, where, as was the case in the ACLU Action, an intervenor attempts to

appear after the entry of the final judgment to challenge it, even if the intervenors standing is

doubtful. (Id. at 74-75) (unanimous Supreme Court vacates judgment of district court as moot, even

though the judgment became moot only two and a half months after it was entered and no party

appealed, because unsuccessful would-be intervenor who had doubtful and only arguable standing

to intervene subsequently challenged the judgment as moot).

Fourth, although parties to a consent decree are generally entitled to the benefit of their

bargain (ACLU Action, dkt. 288 at 5-6), parties cannot bargain amongst themselves to receive that

which the law cannot give them. A litigant cannot bargain away rights which the litigant never had

in the first place. Subject matter jurisdiction is not subject to waiver, and parties can neither concede

it nor contract with each other to confer it upon the Court. See e.g.,DLil, 538 F.3d at 1035 (even if



29/30

25

the consent decree did contain such a stipulation [for continued standing] it would be of no moment

[because] the question of standing is not subject to waiver) (Whether or not the parties raise the

issue, federal courts are required sua sponte to examine jurisdictional issues such as standing)

(emphasis in original);Hays, 515 U.S. at 742 (the question of standing is not subject to waiver).

The anonymous plaintiffs in the ACLU Action chose not to file their action as a class action,

either as a matter of strategy or as a matter of necessity because they could not meet the class action

requirements of Civil Rule 23. Having voluntarily proceeded as individual plaintiffs for almost one

year in the ACLU Action, the most injunctive relief that the two individual plaintiffs were entitled to

on May 6, 2009 was an injunction lasting approximately three weeks, until May 30, 2009, the date of

their graduation. The individual anonymous plaintiffs in the ACLU Action were powerless to

request, Defendants were powerless to give, and the Court was powerless to approve, an injunction

lasting indefinitely (or at least five years) following graduation, because graduation automatically

deprived the Court of subject-matter jurisdiction over any continuing injunctive relief.

Accordingly, no harm can or will be caused to Defendants or the anonymous plaintiffs in the

ACLU Action by the issuance of the preliminary injunction sought by Plaintiffs.

IV. THE REQUESTED INJUNCTION SERVES THE PUBLIC INTEREST.The protection of First Amendment rights is of the highest public interest. See Elrod, 427

U.S. at 373. Protecting First Amendment rights is ipso facto in the interest of the general public

because First Amendment rights are not private rights ... so much as they are the rights of the

general public ... for the benefits of all of us. Machesky v. Bizzell, 414 F.2d 283, 288-90 (5th Cir.

1969) (citing Time, Inc. v. Hill, 385 U.S. 374 (1967)); see also Bond v. Floyd, 385 U.S. 116 (1966).

Accordingly, granting the preliminary injunction sought herein will serve the interests of the public at

large.

CONCLUSION

For the foregoing reasons, Plaintiffs Motion for a Preliminary Injunction should be granted.



30/30

Respectfully submitted,

David M. Corry

Florida Bar No. 861308

LIBERTY COUNSEL

PO Box 11108

Lynchburg, VA 24506-1108



[email protected]

/s/ Horatio G. Mihet___________________

Mathew D. Staver

Florida Bar No.

Anita L. Staver

Florida Bar No.

Horatio G. Mihet

Florida Bar No.

LIBERTY COUNSEL

PO Box 540774

Orlando, FL 32854-0774



[email protected]

ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF CONFERRAL

Counsel for Plaintiffs hereby certifies that, consistent with N.D. Fla. Loc. R. 7.1(B), he has

conferred with opposing counsel regarding the contents of this motion in a good faith effort to

resolve by agreement the issues raised herein, but was unsuccessful. The School Board and

Superintendent oppose this motion.

/s/ Horatio G. Mihet_____________________

Horatio G. Mihet

One of the attorneys for Plaintiffs

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was filed electronically

with the Court this 30th day of May, 2010. Service will be effectuated upon all parties of record by

the Courts electronic notification system.

/s/ Horatio G. Mihet_____________________

Horatio G. Mihet

One of the attorneys for Plaintiffs


liberty counsel, motion for preliminary injunction

Documents