Case 3:10-cv-00142-MCR -MD Document 83 Filed 10/27/10 Page 1 of 24

UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION

MARY E. ALLEN, et al., CASE NO. 3:10-cv-142 MCR/MD

Plaintiffs,
v.

SCHOOL BOARD FOR SANTA ROSA

COUNTY, FLORIDA, et al.,

Defendants.
________________________________/

DOE PLAINTIFFS’ OPPOSITION TO ALLEN PLAINTIFFS’

MOTION FOR PRELIMINARY INJUNCTION

Plaintiffs in the case of Minor I Doe and Minor II Doe v. School Board for Santa

Rosa County, Fla., No. 3:08-cv-361 (N.D. Fla.) (“Does”) oppose the Allen Plaintiffs’

Renewed Motion for Preliminary Injunction, Docs. 12, 66, to the extent that the Allen

plaintiffs seek relief that is inconsistent with the Consent Decree entered in the Doe

litigation.1 In addition to the arguments and authorities set forth below, pursuant to

Federal Rule of Civil Procedure 10(c), the Does adopt and incorporate by reference

herein their Motion to Dismiss, Doc. 64.

Introduction

The Does oppose the Allen plaintiffs’ attempt to dismantle, vacate, or enjoin

enforcement of the Consent Decree, which, as this Court has repeatedly held, is fully

consistent with the First Amendment. See Minor I Doe v. Sch. Bd. for Santa Rosa

                                                            
1
The Does maintain that they have not been joined properly in this action, as the
Allen plaintiffs have not filed an amended complaint that names the Does as parties or
alleges specific claims against them. See Doc. 64 at 5-7. 

 
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County, 264 F.R.D. 670 (N.D. Fla. 2010);2 see also Consent Decree and Order, Doc. 94

at p. 2 (noting that “the Court’s role in adopting the parties’ Agreement is limited to

ensuring the Agreement comports with the U.S. Constitution,” and concluding that “the

entry of this Order comports with federal constitutional law”).

For the same reasons why the Allen Plaintiffs lack standing and fail to state

cognizable claims for relief inconsistent with the Consent Decree, see Does’ Mot. to

Dismiss (Doc. 64) at pp. 7-27, their motion for a preliminary injunction for relief

inconsistent with the Consent Decree must be denied. The Allen plaintiffs do not and

cannot meet the standard for obtaining injunctive relief, which requires them to show that

(1) they have a substantial likelihood of success on the merits; (2) they will suffer

irreparable injury unless an injunction issues; (3) the threatened injury to them outweighs

damage to the defendants; and (4) the injunction sought is not adverse to the public

interest. See KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1268 (11th Cir.

2006). “The burden of persuasion in all four of the requirements is at all times upon the

plaintiff[s].” United States v. Jefferson County, 720 F.2d 1511, 1519 (11th Cir. 1983).

Yet, the Allen Plaintiffs’ motion fails each of these prongs. Instead, like their Complaint,

it rests alternately on unnecessary self-imposed censorship, which is provoked by a

hyperbolic and unreasonable reading of the Consent Decree, and misguided claims to

engage, in their roles as School Officials, in activities and expression in which they have

no constitutional right to engage, and therefore, are properly restricted by the Consent
                                                            
2
Virtually all of the Allen plaintiffs’ claims based on strained readings of the
Consent Decree’s have been analyzed thoroughly and rejected by this Court in
connection with its denial of the motion to intervene filed by the Christian Educators
Association International (“CEAI”) in the Doe litigation. Minor I Doe v. Sch. Bd. for
Santa Rosa County, 264 F.R.D. 670 (N.D. Fla. 2010). 
2
 
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Decree as well as the Establishment Clause of the First Amendment. Among the four

groups of plaintiffs – employees, students, parents, and pastors – none has demonstrated a

substantial likelihood of success on the merits or an irreparable injury. Moreover, to the

extent that the Allen plaintiffs have suffered or will incur any injury at all, such

hypothetical injury is significantly outweighed by the harm that the School District, the

Does, and indeed, all students, parents, and community members, would endure as a

result of a preliminary injunction: the relief sought that is inconsistent with the Consent

Decree would rob the Does of the benefit of the bargain for which they contracted with

the School District and would prohibit the District from enforcing the Establishment

Clause’s clear mandate against public-school promotion of religion, returning the District

to its pre-Consent Decree days when such constitutional violations ran rampant.

I. The Employee-Plaintiffs Are Not Likely to Succeed on the Merits and

Cannot Establish Irreparable Injury Necessitating Relief Inconsistent with
the Consent Decree.

The employee-plaintiffs are School Officials,3 as defined by the Consent Decree,

who cannot establish a likelihood of success on the merits for the relief inconsistent with

the Consent Decree. They either (A) misread the Decree to prohibit speech or conduct

that is permissible, as illustrated by the fact that other employees have engaged in the

same activities without punishment or censure since the Consent Decree was entered, or

(B) have no constitutional right to do what they would like, i.e., use their positions as

School Officials in class or during School Events to promote their personal religious

views.
                                                            
3
The capitalization of some terms, such as “School Events,” denotes terms
defined by the Consent Decree. The employee-plaintiffs in this litigation are named, and
their claims are alleged in Doc. 1 at ¶¶ 58-71. 
3
 
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A. Employee-Plaintiffs Seek Relief to Permit Conduct That the Consent Decree

Does Not Prohibit.

The employee-plaintiffs are not likely to succeed on the merits in their attempt to

vacate the Consent Decree. The Consent Decree enjoins School Officials from praying in

their official position and promoting their religious beliefs to students “during or in

conjunction with a School Event.” Doc. 1-1 (“Consent Decree”) at ¶¶5, 8. What the

Decree does not prohibit, it permits, as authorized by law. Id. at ¶19; see Doe, 264

F.R.D. at 683 (“Importantly, the court also notes that the consent decree’s silence

regarding personal-capacity conduct is punctuated by its final phrase stating, if the

consent decree ‘does not expressly prohibit conduct, then it is permitted as authorized by

law.’”). In short, both private, non-official religious expression and “personal, non-

officially sanctioned prayer [are] beyond the realm of what is contemplated by the terms

of the consent decree.” Id. Nevertheless, the employee-plaintiffs seek to enjoin

enforcement of the Consent Decree based on a litany of imagined prohibitions. These

claims of prohibition and expressive chill are based on a reading of the Decree that is,

simply put, both inaccurate and unreasonable.

The Decree does not prohibit the majority of the speech or conduct for which

plaintiff-employees fear retribution, and their claims of irreparable injury thus ring

hollow, especially in light of the evidence produced by the School Board in opposition to

the motion for preliminary injunction. See Docs. 28 through 28-16. For example,

employee-plaintiff Lay avers that, because of the Decree, she has refrained from wearing

jewelry in the shape of a cross.4 But the Decree permits Lay to wear religious jewelry,

                                                            
4
See Doc. 12-22 at 3. 
4
 
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and many School Board employees have done so after entry of the Decree without

suffering adverse consequences.5

Other employee-plaintiffs claim that the Decree chills other forms of religious

expression, such as keeping a personal Bible, inspirational spiritual calendar, or

inspirational religious quotations in their desks to read to themselves during non-

instructional times.6 But again, the Decree does not prohibit this speech or conduct: the

Allen Plaintiffs persist in conflating official-capacity displays of religious symbols or

quotations, which are proscribed by the Decree (and the Establishment Clause), with

placing personal religious items within their personal areas out of students’ view, which

is not prohibited. As the Court has explained previously, “it is objectively unreasonable”

for school employees “to claim injury . . . based on their subjective belief they cannot

have small personal religious items in their personal area or a drawer.” See Doe, 264

F.R.D. at 685. Not only does the Decree not prohibit such conduct; consistent with the

Decree, school employees routinely keep personal religious items outside the view of

students without being punished.7

Likewise, plaintiff-employees’ proclaimed fears of retribution for uttering

statements such as “God Bless You,” in response to a colleague’s sneeze, “Bless You,” or

“I’m praying for you,” are simply unfounded and do not support the Allen plaintiffs’

motion to vacate the Decree. See Docs. 1 at 11, 12, 18; Doc. 12 at 3, 5, and exhibits to

Plaintiff’s Motion for Preliminary Injunction. The Consent Decree prohibits School
                                                            
5
See Doc. 1-1 at ¶8(e); Docs. 28-1 at 2; id. at 8; Doc. 28-2 at 1; id. at 7; id. at 9;
Doc. 28-3 at 2; id. at 6; id at 9.  
6
See, e.g., Docs. 12-12 at 2; 12-13 at 2; 12-14 at 2; 12-17 at 2; 12-18 at 2-3; 12-
19 at 2-3; 12-21 at 2; 12-22 at 2-3. 
7
See Docs. 28-1 at 2, 8; 28-2 at 1, 7, 9; 28-3 at 2, 9).  
5
 
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Officials from “promot[ing] their personal religious beliefs to students”8 in a school

setting and promoting or participating in official-capacity Prayer as part of a School

Event.9 Thus, the Allen plaintiffs cannot reasonably believe that the Decree prohibits

them from saying to colleagues the phrases listed above or other similar language. As the

Doe Court explained:

The members’ interpretation of “Prayer” as encompassing all speech at

school that touches on religion is strained beyond the import of the words
used in the consent decree. The consent decree plainly does not ban all
religious speech or discourse as prayer. It proscribes only school-
sponsored prayer, defined first and foremost as “a communication with a
deity.” (Doc. 94, at 2.) It then lists several types of prayer, which follow
the proviso that prayer includes but is “not limited to” the listed examples.
. . . The list of examples is therefore not meant to be exclusive or
exhaustive but neither does it render the word “prayer” all-encompassing
of all religious speech. There is a common aspect among the listed items;
each is a form of calling upon or communicating with a deity, and the
definition is thereby constrained to include only items similar in kind.

264 F.R.D. at 681-82 (emphasis added); see also id. at 685 (“it is objectively

unreasonable for the members to believe the consent decree requires them to censor and

exclude all reference to religion from personal conversation with colleagues or parents”).

Furthermore, current employees of the School Board aver that they and others regularly

engage in such extemporaneous expressions with each other without fear of retribution

and without any adverse consequences.10

Plaintiffs’ demands to vacate the Decree based on their unsubstantiated fears of

retribution for praying in their individual capacities with adult colleagues during non-

                                                            
8
Consent Decree at ¶ 8. 
9
Id. at ¶ 5. 
10
See, e.g., Docs. 28-1 at 4; 28-2 at 1, 4-5; 28-3 at 2, 4, 6, 9. 
6
 
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instructional time and outside the presence of students11 are also unfounded and do not

support their motion for a preliminary injunction. “Personal, non-officially sanctioned

prayer is beyond the realm of what is contemplated by the terms of the consent decree.”

Doe, 264 F.R.D. at 683. Thus, nothing in the Decree prohibits the employee-plaintiffs

from praying, either in solitude or with colleagues, outside the presence of students, or

discussing matters of faith or religion with faculty colleagues; they need not, for instance,

resort to doing so in closets, as they allege in the complaint (Doc. 1 at 11, 12, 18) or

motion for preliminary injunction (Doc. 12 at 3, 5, 6, 18, 20). The Allen plaintiffs’

beliefs otherwise are patently unreasonable. See Doe, 264 F.R.D. at 681 (“[A]ssertions of

fear and self-censorship are based on a misunderstanding and an isolated reading of

selected portions of the decree’s definitions of “Prayer,” “School Official,” and “School

Event,” taken out of context . . . .”). Their misinterpretations may not, therefore, serve as

the basis for a valid First Amendment claim. See id. at 680 (“The individual claiming a

chill on First Amendment speech rights must make an objective claim of chill through a

credible threat of penalty for exercising those rights.”) (citing Fla. Family Policy Council

v. Freeman, 561 F.3d 1246, 1253 (11th Cir. 2009), Am. Civil Liberties Union v. The Fla.

Bar, 999 F.2d 1486, 1492 n.13 (11th Cir. 1993)).

Indeed, even if the plaintiff-employees’ interpretations of the Consent Decree

were not so incongruous with its text and intent, the Allen plaintiffs still would not be

entitled to a preliminary injunction suspending enforcement of the Consent Decree, as

they cannot establish irreparable injury. Other School Officials are engaging in the same

                                                            
11
See, e.g., Docs. 12-12 at 3; 12-13 at 3; 12-14 at 3; 12-16 at 3; 12-17 at 3; 12-18
at 3; 12-19 at 2; 12-20 at 3; 12-21 at 3; 12-22 at 3; 12-23 at 1.  
7
 
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speech and conduct without fear or threat of punishment. For instance, eleven School

Officials have averred that, without fear of punishment or censorship, they engage in

discussions with their colleagues about religion and their churches or attend weekly

prayer or Bible study groups before school starts.12 Moreover, contrary to the employee-

plaintiffs’ claims that the Consent Decree compels them to censor student speech,

interferes with their interactions with parents, and forces them to prohibit parents from

praying over an injured player at an athletic competitions,13 the Decree does not reach

that conduct, and School Officials have repeatedly and consistently affirmed that no such

conduct or speech has been prohibited or punished. Accordingly, because the Allen

plaintiffs have not shown irreparable injury, their motion for preliminary injunctive relief

must be denied. See Siegel v. LePore, 234 F.3d 1363, 1176 (11th Cir. 2000) (holding

that, even if movant established likelihood of success on merits, failure to establish

irreparable injury “would, standing alone, make preliminary injunctive relief improper”).

B. Employee-Plaintiffs Seek to Enjoin Enforcement of the Consent Decree to

Permit Conduct That Is Barred By the Establishment Clause.

Employee-plaintiffs also ask this Court to vacate the Consent Decree so that they can

participate in overtly unconstitutional activities. As illustrated by this Court’s decision in

Doe, these claims are unlikely to succeed because plaintiffs “have no arguable

constitutionally protected right to engage in such conduct.” See 264 F.R.D. at 681.

                                                            
12
See, e.g., Docs. 28-1 at 4; 28-2 at 1, 4-5; 28-3 at 2, 4, 6, 9.
13
   See, e.g., Docs. 12-12 at 3; 12-13 at 3; 12-14 at 3; 12-16 at 3; 12-17 at 3; 12-18
at 3; 12-19 at 2; 12-20 at 3; 12-21 at 3; 12-22 at 3; 12-23 at 1.  
 
 

8
 
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1. Using the Bible as a Teaching Tool

Plaintiff Browning wishes to “[u]se the Bible as a teaching tool within accepted

curricular standards, to teach, for example, early American history, the literature of

various periods and cultures, and the historical and factual context and circumstances of

such literature.” Doc. 12-18 at 3. Plaintiff Dawson would like to “[u]se the Bible as a

teaching tool within accepted curricular standards, to teach, for example, early American

history, Social Darwinism, imperialism or the literature of various periods and cultures.”

Doc. 12-16 at 3.

To the extent that these plaintiffs wish to cite to the Bible as “authority for

historical or scientific fact,” Consent Decree at ¶ 8(c), the Consent Decree properly

prohibits such a use. Teaching the Bible as a source of truth or fact in a public school

violates the Establishment Clause. See, e.g., Edwards v. Aguillard, 482 U.S. 578, 592 n.

13 (1987) (striking down state statute authorizing teachers to “refer to the Bible and other

religious texts to support the creation-science theory”); Doe v. Porter, 370 F. 3d 558, 563

(6th Cir. 2004) (holding school district’s Bible Education Ministry class unconstitutional

because “the lesson plans here evidence an intention to teach the Bible as literal truth, and

to draw from its narratives certain theological propositions”); Gibson v. Lee County Sch.

Bd., 1 F.Supp.2d 1426, 1434 (M.D. Fla. 1998) (granting preliminary injunction against

school district’s Bible history class); Herdahl v. Pontotoc County Sch. Dist., 933 F. Supp.

582, 596-97 (N.D. Miss. 1996) (holding that public-school course teaching “the Bible not

as a work of fiction, but as a historic record, i.e., as a record of what actually occurred in

the past,” was “inherently religious instruction, rather than objective, secular education”).

9
 
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Moreover, although the School Board, consistent with the Consent Decree and the

First Amendment, could decide to approve a curriculum in which the Bible is “presented

objectively as part of a secular program of education,” School Bd. of Abington Twp. v.

Schempp, 374 U.S. 203, 225 (1963), the employee-plaintiffs have no individual or

independent right to teach whatever they choose. The classroom is neither a public

forum where teachers can express whatever views they wish nor a creative laboratory

where they can use whatever methods of teaching they want. See Mayer v. Monroe

County Comty. Sch. Corp., 474 F.3d 477, 480 (7th Cir. 2006) (“[T]he first amendment

does not entitle primary and secondary teachers, when conducting the education of

captive audiences, to cover topics, or advocate viewpoints, that depart from the

curriculum adopted by the school system”). Even if a curriculum that used the Bible

were objectively secular, it would still constitute government speech subject to the

School Board’s approval. See Downs v. L.A. Unified Sch. Dist., 228 F.3d 1003, 1015-16

(9th Cir. 2000) (holding that curriculum taught in public schools is government speech);

Nampa Classical Acad. v. Goesling, --- F.Supp.2d ---, 2010 WL 1977434 at *8 (D. Idaho

May 17, 2010) (concluding that teachers do not have a free-speech right to choose which

materials and sources to use in the classroom because school administrators are the

“speakers” in the context of setting schools’ curricula).

2. Praying in the Presence of, or With Students, at School Events

Plaintiff-employees also seek to vacate the Decree so that they may pray in the

presence of students,14 bow their heads in connection with student prayers,15 and pray

                                                            
14
See, e.g., Docs. 12-14 at 3; 12-18 at 3; 12-21 at 3; 12-23 at 2. 
10
 
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with students during non-instructional time at School Events.16 Given that School

Officials serve as role models,17 however, and in light of the School Board’s admitted

history of Establishment Clause abuses in the district, the Decree properly prohibits

School Officials from engaging in these activities. See Doe, 264 F.R.D. at 686 (“Where,

as here, there is an admitted history of Establishment Clause abuses in the school district,

the consent decree’s remedial injunctive provisions preventing a school official from

participating in his or her official capacity in “Prayer” at a “School Event” does not

arguably violate the teacher’s First Amendment rights.”), citing Borden v. Sch. Dist., 523

F.3d 153, 166 (3d Cir. 2008) (upholding school district policy prohibiting faculty

participation in student-initiated prayer and rejecting argument that school official has

free speech right to participate in or recognize student prayers by bowing his head and

taking a knee, particularly in light of history of Establishment Clause violations).

Moreover, kindergarteners taught by plaintiffs Waller and Bozeman and fifth

graders taught by plaintiff Nolan,18 “as elementary school students, have a heightened

susceptibility to pressures of conformity and possible ostracism.” See S.D. v. St. John’s

County Sch. Dist., 632 F. Supp.2d 1085, 1096-97 (M.D. Fla. 2009) (enjoining school

district from directing or causing public-school students to rehearse or perform sectarian

                                                                                                                                                                          
15
See, e.g., Docs. 12-12 at 3; 12-14 at 3; 12-16 at 3; 12-18 at 3; 12-19 at 3; 12-
20 at 3; 12-22 at 3. 
16
See, e.g., Docs. 12-16 at 3; 12-18 at 3. 
17
See Doe, 264 F.R.D. at 682 (noting that the “language [of Consent Decree]
understandably recognizes the importance of School Officials as role models and a source
of authority and discipline at school events”); see also id. at 678 (citing Superintendent’s
testimony that “students view teachers in a supervisory role, even at extracurricular
events, and, as such, teachers are expected to enforce the school’s code of conduct if
necessary at any extracurricular event they attend”). 
18
See Docs. 12-19 at 1; 12-21 at 1; Doc. 12-2- at 2. 
11
 
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song that that overtly endorsed a specific religious viewpoint). Younger students are

more impressionable and, therefore, “are reliant upon th[eir] teachers to reinforce positive

social, cultural, and scholastic behaviors.” Id. at 1097. They are also “extremely

sensitive to signs of disapproval and disappointment from the same teachers and their

classmates. The slightest hint that they are somehow different from their peers can be

very troubling.” Id. (citing Abington, 374 U.S. 203, 289 (1963)).19

3. Using the District’s Website and Email System to Broadcast Religious

Views

Plaintiff-employees Waller, Gough, and Lindsey seek to broadcast – either

through the school email system, or on the district’s teacher webpages – that they are

“religious person[s]” and “followers of Christ,” or to communicate that “God is in

control” or “God will take care of you.”20 However, when acting as School Board

employees, School Officials do not enjoy the full free-speech protections of the First

Amendment, and they are, therefore, not entitled to use the School Board’s email system

or website to promote their personal religious beliefs. See Gilder-Lucas v. Elmore

County Bd. of Educ., 186 Fed. Appx. 885 (11th Cir. 2006) (applying Garcetti v. Ceballos,

547 U.S. 410, 421 (2006) to conclude that a teacher’s speech was not protected by the

First Amendment because she spoke “pursuant to [her] official duties”; quoting Garcetti:

“We hold that when public employees make statements pursuant to their official duties,

                                                            
19
According to the principal of one District middle school, for instance, a Jewish
child was so ridiculed last year for not standing up and joining in student-led prayer that
the parents removed the child from the school for the remainder of the year. Doc. 29-1 at
6. The Principal advised the students that, while they certainly have a right to pray
voluntarily, they may not do so in a substantially disruptive manner, and that no student
could be harassed for not participating. Id. 
20
See Docs. 12-12 at 3, 12-17 at 3, 12-21 at 3. 
12
 
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the employees are not speaking as citizens for First Amendment purposes, and the

Constitution does not insulate their communications from employer discipline.”)).

Furthermore, religious views expressed through District-sponsored email or on the

District’s website are attributable to the School District for Establishment Clause

purposes. The webpages are hosted by the District and posted in connection with the

teachers’ official duties to serve the purpose of providing students with information

related to their classes, such as their teacher’s expectations, assignments, etc. And the

district retains ultimate control over their content. Thus, such religious expression would

send an impermissible message of endorsement in violation of the Establishment Clause.

See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 307, 308 (2000) (holding that prayer

at football games would be perceived “as stamped with [the] school’s seal of approval,”

in part, because “[t]he message is broadcast over the school's public address system,

which remains subject to the control of school officials”); see also Doe, 264 F.R.D. at

686 (“[A] school official has no right to violate the Establishment Clause or to use school

facilities for a private purpose absent permission from the school district. The school

district has a constitutional obligation to ensure that ‘subsidized teachers do not inculcate

religion.’”) (citing Lemon v. Kurtzman, 403 U.S. 602, 619 (1971)).

4. Attending Baccalaureate Services in an Official Capacity

Plaintiffs Metty, Lindsey, Barnes, Dawson, Gough, Browning, and Lay ask this

Court to vacate the Consent Decree insofar as it prohibits them from “[p]articipat[ing] in

privately-sponsored, voluntary, religious baccalaureate services . . . including praying out

loud, being recognized for their contributions as teachers, sitting with fellow educators

and wearing school colors or other educator attire, such as their college graduation

13
 
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gowns.”21 But the Decree expressly permits school employees to participate in

baccalaureate services in their personal capacity. See Consent Decree at ¶6(d)

(participation in Religious Services) and ¶3(c) (Religious Services include

baccalaureates). The decree only prohibits plaintiff-employees from holding themselves

out as participating in religious services in their official capacity, which is entirely

consistent with the School Board’s right, and indeed legal obligation, to ensure that its

employees avoid sending the message that the State endorses the religious service. See

id. at ¶6(d) (“School Officials collectively shall not conform their seating or dress so as to

designate their participation or attendance at a Religious Service is by virtue of their

official positions.”) (emphasis added).

5. Participating in Religious Student Clubs

Several plaintiff-employees ask this Court to vacate the Consent Decree so that

they may actively participate in meetings of religious student clubs during non-

instructional time at school. Yet, where such club activities fall under the aegis of the

Equal Access Act, the participation by teachers or other school employees is expressly

prohibited. See 20 U.S.C. § 4071(c)(3) (school officials should be “present at religious

meetings only in a nonparticipatory capacity”). See also Consent Decree ¶4 (“No

provision in this Order is intended to supplant or alter the rights afforded student clubs by

the Equal Access Act. School Officials shall comply with the Equal Access Act.”)

(citation omitted). And, of course, proselytizing students or participating in prayer with

them during student club meetings or other activities also runs afoul of the Establishment

                                                            
21
See Docs. 12-11 at 2-3; 12-12 at 3-4; 12-14 at 3; 12-16 at 3; 12-17 at 3-4; 12-
18 at 4; 12-22 at 3. 
14
 
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Clause. See, e.g., Borden, 523 F.3d at 166 (holding that public-school football coach

could not bow head or take a knee during students’ voluntary pregame prayer); Doe v.

Duncanville Indep. Sch. Dist.,70 F.3d 402, 406 (5th Cir. 1995) (holding that public-

school basketball coach could not participate in student prayers at games and practices);

Steele v. Van Buren Pub. Sch. Dist., 845 F.2d 1492, 1496 (8th Cir. 1988) (public-school

band teacher could not lead band in prayer before practice or rehearsals).

C. The Consent Decree is Neither Overbroad Nor Vague.

As the School Board correctly argues, see Doc. 28 at 9-10, the Allen plaintiffs

have “merely incorporated” the vagueness arguments made by CEAI in its failed motion

to intervene in the Doe litigation failing to specify, other than by the strained and rote

averments made in the employee-plaintiffs’ declarations, exactly what they do not

understand about the Consent Decree. Indeed, there can be no serious confusion: as this

Court held in Doe, “[b]ecause the consent decree at issue here includes express

definitions to guide the discretion of the School Board in its interpretation, and those

definitions expressly preclude only certain official capacity conduct, any void-for-

vagueness challenge regarding personal speech rights would be futile in this instance[.]”

264 F.R.D. at 687 n. 31 (emphasis added).

The plaintiff-employees also claim that the Consent Decree is overbroad because

it “automatically” deems them to act in their official capacity as School Officials at

School Events, when they are present in their individual capacities. But the simple fact

is that, to the extent the Consent Decree regulates employee expression and conduct that

would be perceived by a reasonable student observer as an official endorsement of

religion, it is necessary, as a matter of law, to ensure compliance with the Establishment

15
 
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Clause and thus cannot be overbroad. Religious expression by a School Official at a

School Event would create just such a perception.

II. The Remaining Plaintiffs’ Claims for Injunctive Relief Fail.

In addition to plaintiff-employees, who are School Officials, various students,

parents, and clergy seek to enjoin enforcement of the Consent Decree. None of their

claims is viable, as the Does argued throughout their Motion to Dismiss, see Doc. 64.

A. Student-Plaintiffs Are Not Likely to Succeed on the Merits.

Student-plaintiffs H.H., Allen, Martin, and Riley have graduated and thus have no

standing to seek injunctive relief. 22 Student-plaintiff S.M.H also is not entitled to enjoin

enforcement of the Consent Decree, as she has no right to insist that the school establish a

student-elected chaplain for the school band.23 Although student-plaintiff H.J.H., now

presumably a ninth-grader, may have a right to recite Bible verses in the cafeteria (Doc.

12-3 at 2), this is not proscribed by the Consent Decree. Therefore, redressing any injury

alleged by H.J.H. would not require relief inconsistent with the Consent Decree.

B. Parent-Plaintiffs Are Not Likely To Succeed on the Merits.

The conduct in which parent-plaintiffs Moon, Beckham, and Harley seek to

engage is either properly prohibited by the Consent Decree, where they are serving as

volunteer School Officials, or is not reached at all by the Consent Decree where they are

acting in their individual capacities as parents communicating with their children’s

teachers. Accordingly, they are not likely to succeed on the merits of their claims and are

not entitled to preliminary injunctive relief inconsistent with the Consent Decree.

                                                            
22
See Docs. 12-5; 12-6; 12-7; 28-8 at 4.  
23
See Doc. 12-4 at 1-3. 
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Plaintiff Moon formerly chaperoned the Pace High School band during various

trips and other School Events. If he were to resume chaperoning the band, and if a

student were to ask him a question about evolution, Plaintiff Moon would like to have a

discussion with the student that “likely will include the idea of a Creator.” Doc. 12-9 at

2-3. Similarly, Plaintiff Beckham would like to resume his chaperoning activities and,

like Plaintiff Moon, during the School Events he chaperones, espouse a variety of

opinions, including his religious views about capital punishment, abortion, assisted

suicide, infanticide, depression, anxiety, and the role of God in government and public

life. See Docs. 12-8; 12-9. Though these parents remain free as private citizens to

discuss all topics from a religious or secular point of view with their children and others

in their homes, churches, and elsewhere, the Decree properly prohibits them from

“express[ing] personal religious beliefs” or “encourag[ing] students to engage in religious

activity or attend a Religious Service” when they are acting as agents or representatives

of the School Board at School Events. Consent Decree at ¶8(b), (d), (e), (f). As

volunteer chaperones for official school activities, these parents’ actions are taken with

the authority and imprimatur of the school, and the parents must, accordingly, don the

cloak of religious neutrality required by the First Amendment during those school-

sponsored activities. See, e.g., Hazlewood School Dist. v. Kulmeier, 484 U.S. 260, 267

(1988).24

C. Pastor-Plaintiffs Are Not Entitled to Injunctive Relief.

The pastor-plaintiffs’ claims fall into three categories: (1) self-censorship and

chilling effects allegedly suffered by third parties; (2) “difficulties and problems”
                                                            
24
See Docs. 12-8 at 3-4; 12-10 at 2-4. 
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allegedly endured when planning past baccalaureate services in their churches without

the assistance of School Officials; and (3) fears of that those “difficulties” will recur.25

None of those claims is likely to succeed on the merits, and neither pastor has

demonstrated irreparable injury, as required to obtain a preliminary injunction.

1. The Pastor-Plaintiffs May Not Assert Claims on Behalf of Third-Party

School District Employees.

Based on Milton High teacher Carol Jones’s refusal “to be involved” in the

planning of a baccalaureate service, Milton employee Sheila Thompson’s purported

hesitation to play the piano at the same service,26 and the alleged fears of other teachers

“to stand and be recognized” at the religious services, see Docs. 12-24 at 4; 12-25 at 2-3,

pastor-plaintiffs argue that the Consent Decree should be vacated. But the pastor-

plaintiffs lack standing to assert claims on behalf of these employees. A plaintiff may

only assert the rights and interests of third parties if: “(1) the plaintiff has suffered an

injury in fact so as to have a sufficient concrete interest in the case; (2) the plaintiff has a

close relationship to the party; and (3) the third party faces an obstacle to protecting her

own interests.” Harris v. Evans, 20 F.3d 1118, 1122 (11th Cir. 1994). The pastor-

                                                            
25
Parent-plaintiffs Beckham and Harley also allege that the Consent Decree has
led to the deterioration of teacher-parent relationships because, in “routine discussions
and communications,” the teachers do not respond in kind to their religious greetings or
phrases. See Docs. 12-24; 12-25. The injury to the parent-plaintiffs in this regard is
entirely unclear. The Consent Decree does not prohibit these parents from including
religious content in their written or oral communications to teachers, nor does it prohibit
parents from discussing religious matters with teachers in their individual capacities. To
the extent that the parents claim they are entitled to receive religious communications
from public-school teachers acting and speaking in their official capacities, no such right
exists. 
26
Though Associate Pastor Waters alleges that School Board members told
Thompson not to play the piano at baccalaureate ceremony, see Doc. 12-24 at 3,
Thompson did so without incident or rebuke from the District. See Doc. 28-2 at 6, 
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plaintiffs have failed to meet this standard. For example, Jones and Thompson, as well as

any other District employee, are free to join as plaintiffs in this lawsuit, just like the

thirteen “employee-plaintiffs.” They have chosen not to do so, however, and plaintiffs

have not identified or provided evidence of any “obstacle” that would prevent these

employees from protecting their interests in this way.

2. The Pastor-Plaintiffs Lack standing to Assert the Claims Brought on Their

Own Behalf.

Moreover, with regard to the claims brought on their own behalf, the pastor-

plaintiffs also have failed to establish standing. As an initial matter, the conduct

identified by the Allen plaintiffs is not barred by the Consent Decree, provided that the

school employees do not to undertake these activities in their official capacities. Indeed,

though the plaintiff-pastors allege that it is “extremely difficult if not impossible for

Plaintiff Pastors to organize and conduct warm, joyous, efficient and effective

baccalaureate services for Santa Rosa County graduating seniors” and that the “success of

their events will again be diminished” next year, Docs. 12-24; 12-25, the baccalaureate

services have been held, without incident, since the Consent Decree was entered. See

Doc. 28 at 4-5. Thus, the plaintiff-pastors have not demonstrated any injury sufficient to

support standing for their baccalaureate-related claims, let alone the irreparable injury

required to obtain a preliminary injunction. See Lujan v. Defenders of Wildlife, 504 U.S.

555, 561(1992)  (“[T]he plaintiff must have suffered an ‘injury in fact’ - an invasion of a

legally-protected interest which is (a) concrete and particularized . . . and (b) actual or

imminent, not ‘conjectural’ or ‘hypothetical[.]’”) (internal citations/quotation marks

omitted).

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Furthermore, even if the Consent Decree did prohibit those activities, enjoining its

enforcement would not provide guaranteed redress of the pastor-plaintiffs’ alleged

injuries – difficulties and problems planning the baccalaureate service. Specifically, both

pastors seek to enjoin the Consent Decree on the ground that it hampers their churches’

ability to conduct baccalaureate services, even though the Consent Decree only governs

School Officials’ conduct in their official capacity. Doe, 264 F.R.D. at 681. Teachers and

other school employees may still decline to take part in the religious services or to engage

in certain conduct at the services for any number of reasons. Accordingly, because a

favorable decision for plaintiffs still would not remedy their alleged injury, they lack

standing to assert their claims. See Lujan, 504 U.S. at 561 (“[I]t must be likely, as

opposed to merely speculative, that the injury will be redressed by a favorable decision.”)

(internal quotation marks omitted).27

                                                            
27
  The pastors, who are not School Officials, do not allege, nor could they
establish, that the Consent Decree coerces them into violating their religious beliefs or
giving up religious practices or substantially burdens those practices. See, e.g., Lyng v.
Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 450 (1988) (government action -
building road across federal land traditionally used for religious worship - that had no
tendency to coerce individuals into acting contrary to their beliefs did not require a
compelling justification); Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S.
136, 144 (1987) (state’s refusal to grant unemployment compensation benefits to Seventh
Day Adventist fired for refusing to work on Sabbath unlawfully burdened claimant’s free
exercise of religion, as employee was “forced to choose between fidelity to religious
belief and continued employment”). The pastors’ claims of potential inconvenience in
planning future baccalaureates (the 2010 events have already been held, and claims as to
those past events are moot) do not spring from the Consent Decree nor from any conduct
of the Doe Plaintiffs, do not violate the First Amendment, and are not redressable by this
Court by injunction or other relief.
 

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III. Vacating the Consent Decree is Contrary to the Public Interest.

Because the Allen plaintiffs have not established that they will suffer irreparable

injury without a preliminary injunction, they have not, of course, demonstrated that the

threatened injury outweighs whatever damage the proposed injunction may cause the

opposing party. See KH Outdoor, 458 F.3d at 1268; Jefferson County, 720 F.2d at 1519.

Here, any minimal injury evinced by the Allen plaintiffs surely does not outweigh the

harm that would be suffered by the Board and the Does and would also “‘upset the

delicate balance’ already achieved by the parties” that has allowed the school district to

return its focus on educating students. Cal. Dep’t of Toxic Substances Control v. Comm’l

Realty Projects, Inc., 309 F.3d 1113, 1119 (9th Cir. 2002). Quite the opposite – the

opposing parties would not only incur severe harm by being denied the benefit of their

long-negotiated bargain, but all students, parents, and the community would suffer, as the

Allen Plaintiffs seek, in many instances, to engage in the very unconstitutional conduct

that the Consent Decree was put in place to stop.

The Decree must be viewed in the context of the School District’s admitted,

longstanding policy and custom of permitting School Officials to engage in widespread

Establishment Clause violations by promoting, endorsing, or causing prayers or

devotionals during school-sponsored events; planning or promoting religious

baccalaureate services at schools; holding school-sponsored events at Religious Venues

when suitable district sites were available; and permitting School Officials to engage in

or sponsor prayer or otherwise promote their personal religious beliefs and proselytize to

students in class and during school-sponsored events and extracurricular activities.

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The parties painstakingly crafted the Consent Decree to address this broad range

of constitutional violations that had pervaded the School District for years, and this Court

has repeatedly ruled that the Decree is consistent with the First Amendment. Given the

School Board’s admitted long-standing history of First Amendment violations, this Court

“should be particularly cautious when contemplating relief that implicates public

interests.” Salazar v. Buono, 130 S. Ct. 1803, 1816 (2010).

Here, where the status quo – namely the continued enforcement of the Consent

Decree – prevents the District’s history of Establishment Clause violations from

repeating itself, enjoining enforcement of the Consent Decree would be contrary to the

public interest. Indeed, the District argues that “[i]f, as requested, this Court suspends

the provisions of the Consent Decree, the primary source for which the District currently

relies for its policies on matters within the School District, Defendants are frankly

concerned that Establishment Clause violations may occur within the District’s Schools.”

Doc. 28 at 20. The motion should be denied in its totality, as the relief sought is contrary

to law and against the public interest.

IV. The Consent Decree is Not Moot.

Plaintiffs’ claim that the Consent Decree should be vacated because they believe

the Does have graduated from high school and therefore have no standing to enforce it

should be dismissed because it is patently frivolous. Three plaintiffs in the instant case

raised this issue through CEAI in its litigation in the Doe case and the Court received

extensive briefing on the issue. Based upon the reasoning set forth in the Court’s May 6,

2010, Order in the CEAI litigation, the Does’ standing to enforce the terms of the

Consent Decree is beyond peradventure. See Doe, 264 F.R.D. 670.

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Conclusion.

Based on the foregoing arguments and authorities, the Doe Plaintiffs respectfully

request that this Court deny the Allen Plaintiffs’ Motion for Preliminary Injunction.

Electronically filed this 27th day of October, 2010.

Respectfully submitted,

s/ Maria Kayanan
Benjamin James Stevenson Maria Kayanan (Fla. Bar No.: 305601)
(Fla. Bar. No. 598909) mkayanan@aclufl.org
American Civil Liberties Union Found. Randall C. Marshall
of Florida (Fla. Bar No. 181765)
Post Office Box 12723 rmarshall@aclufl.org
Pensacola, FL 32591-2723 American Civil Liberties Union Found.
bstevenson@aclufl.org of Florida
Tel: 786.363.2738 4500 Biscayne Blvd., Suite 340
Fax: 786.363.1985 Miami, Florida 33137
Tel: 786.363.2707
Glenn M. Katon Fax: 786.363.1108
(Fla. Bar. No. 636894)
American Civil Liberties Union Found. Daniel Mach
of Florida (D.C. Bar No. 461652)
Post Office Box 18245 dmach@aclu.org
Tampa, FL 33679 Heather L. Weaver
gkaton@aclufl.org (D.C. Bar No. 495582)
Tel: 813.254.3314 hweaver@aclu.org
Fax: 813.254.0926 ACLU Program on Freedom of
Religion and Belief
915 15th Street, NW
Washington, DC 20005
Tel: 202.675.2330
Fax: 202.546.0738

COUNSEL FOR MINOR I DOE AND MINOR II DOE 

 

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Certificate of Service
I certify that the foregoing document is being filed electronically on October 27,
2010, using the Court’s ECF system, which automatically serves counsel of record
through electronic mail.
/s/ Maria Kayanan
Maria Kayanan
 

24