Ashby v. Isle of Wight County School Bd.

Decision Date15 December 2004
Docket NumberNo. CIV.A. 2:03CV540.,CIV.A. 2:03CV540.
Citation354 F.Supp.2d 616
PartiesAnna ASHBY, Plaintiff, v. ISLE OF WIGHT COUNTY SCHOOL BOARD, Defendant.
CourtU.S. District Court — Eastern District of Virginia

Lanis Loretha Karnes, Karnes Legal Services, PC, Jackson, TN, for Plaintiff.

Robert William McFarland, Steven R. Zahn, McGuirewoods LLP, Norfolk, VA, for Defendant.

MEMORANDUM OPINION & ORDER

JACKSON, District Judge.

Before the Court is the Motion of Isle of Wight County School Board ("Defendant" or "Board") for Summary Judgment. Additionally before the Court is the Cross Motion of Anna Ashby ("Plaintiff") for Partial Summary Judgment.1 For the foregoing reasons, Defendant's Motion for Summary Judgment is GRANTED as to Plaintiff's federal claims, and Plaintiff's motion for Partial Summary Judgment is DENIED. Plaintiff's remaining claims are DISMISSED.

I. FACTUAL AND PROCEDURAL BACKGROUND

Windsor High School ("WHS") is a public high school in the district of Isle of Wight County Schools. The only other public high school in the district is Smithfield High School. (Final Pretrial Order ¶ A3.) William Owen ("Owen") served as principal of WHS during the 2002-03 school year. (Final Pretrial Order ¶ A5.) Dr. Michael McPherson ("McPherson") served as Superintendent of the Isle of Wight County Schools during the 2002-03 school year. (Final Pretrial Order ¶ A4.)

Defendant, Isle of Wight County School Board, serves as the local governing body for all schools in Isle of Wight County, Virginia. (Final Pretrial Order ¶ A1.) Defendant Board is a duly organized instrumentality of the Commonwealth of Virginia. (Final Pretrial Order ¶ A1.) During the 2002-03 school year, A. Gene Lowery ("Lowery"), Barbara B. Olin ("Olin"), George A. Bradby ("Bradby"), Pamela J. Edwards ("Edwards"), and Richard L. Peerey ("Peerey") served as members of the Board. (Final Pretrial Order ¶ A2.) H. Woodrow Crook ("Crook") served as the Attorney for the Board during this time. (Final Pretrial Order ¶ A6.)

Defendant adopted as part of its policies a resolution entitled "Religion in the Schools." (Appx. Pl. Br. Opp. Def. Mot. Summ. J. & Supp. Summ. J. at 292.) The policy reads:

In accordance with the mandate of the Constitution of the United States prohibiting the establishment of religion, it is the policy of this School Board that the Isle of Wight County Schools shall be neutral in matters of religion. This means the Isle of Wight County Schools:

— will assume no role or responsibility for the religious training of any student; and

— will in no way become involved in the religious belief, disbelief, or doubt of any student.

This requirement of neutrality need not preclude nor hinder the Isle of Wight County Schools in fulfilling their responsibility to educate students to be tolerant or respectful of religious diversity. The division also recognizes that one of its educational responsibilities is to advance the student's knowledge and appreciation of the role that religion has played in the social, cultural, and historical development of civilization.

Therefore, the division shall approach religion from an objective, curriculum-related perspective, encouraging all students and staff members to be aware of the diversity of beliefs and respectful of each other's religious and/or non-religious views. In that spirit of respect, students and staff members may be excused from participating in activities that are contrary to their religious beliefs unless there are clear issues of compelling public interest that would prevent it.

Isle of Wight County School Board, Religion in the Schools INDC (revised Aug. 9, 2001), in School Board Policy Manual, available at http:// www.iwcs.k12.va.us/policy/INDC.html (last modified Aug. 12, 2004).

Plaintiff considers herself a Christian by faith and is a member of the Franklin Church of God in Franklin, Virginia. (Pl. First Am. Compl. ¶ 8.) Plaintiff's father, Bishop James Ashby ("Bishop Ashby") is the pastor of this church. (Pl. First Am. Compl. ¶ 8.) Plaintiff asserts that sharing her faith with others is an integral part of her religious beliefs. (Pl. First Am. Compl. ¶ 8.)

A. Factual Background

During the 2002-03 school year, Plaintiff was a member of the senior class at Windsor High School. (Final Pretrial Order ¶ A9.) LuAnn Scott ("Scott"), an English teacher at WHS, served as the senior class sponsor for Plaintiff's class. (Final Pretrial Order ¶ A7.) Patricia Morgan ("Morgan") was the choral teacher at WHS. (Final Pretrial Order ¶ A8.) The parties dispute the sequence of events leading up to the graduation ceremony in 2003. The Court sets forth the relevant facts as asserted by the parties.

In the years leading up to 2003, the WHS graduation ceremony usually included a small number of student speakers and singers. The general practice was that the valedictorian, the salutatorian, and the class officers would speak. (Dep. Morgan at 34-35; Dep. Owen at 41-43; Dep. Robertson at 14-15; Dep. Scott at 30-34.) If a song was sung, the school choir would sing it, although at least once a senior member of the choir sang a solo. (Dep. Owen at 56-57; Dep. Scott at 34.) Plaintiff alleges that in years prior to 2003, students had been allowed to volunteer to sing at the school's graduation exercises, and the songs were chosen by those students. (Pl. First Am. Compl. ¶ 9.) Defendant denies this practice ever occurred. (Def. First Am. Answer ¶ 9.)

The parties agree that some time in the spring of 2003, Plaintiff and a fellow student, Graylin Stokes ("Stokes"), volunteered to sing at the 2003 graduation ceremony. (Final Pretrial Order ¶ A10.) The parties disagree about whether the students were invited to volunteer or stepped forward of their own initiative, and to whom they first mentioned their interest. (Pl. First Am. Compl. ¶ 10; Aff. Stokes ¶¶ 4-6, 9; Dep. Owen at 31-32, 55-56; Dep. Pl. at 10-11, Ex. 2; Dep. Scott at 38, 44, 141-42.) Plaintiff became the primary contact with the teachers and administrators for she and Stokes. (Aff. Stokes ¶¶ 9-14.)

Plaintiff admits that she was never told that she and Stokes would sing at the graduation ceremony.2 (Dep. Pl. at 54.) Plaintiff and Plaintiff's Mother, Natalie Ashby ("Mrs.Ashby"), Morgan, Scott, and Owen had a series of discussions with each other about the potential performance of Plaintiff and Stokes at the graduation ceremony, although the depositions of each person reflect very different recollections of the events. (Aff. Mrs. Ashby ¶¶ 5-7; Dep. Morgan at 28, 37, 40-41, 67; Dep. Owen at 66, 68, 73; Dep. Pl. at 41-42, 46-47; Dep. Scott at 38-49.) Nor can the individuals involved come to agreement on exactly how and why the lyrics reached Owen. (Dep. Morgan at 28-31; Dep. Owen at 64-65, 72; Dep. Pl. at 46, 54; Dep. Scott at 51, 54-56.)

Regardless, at some point Principal Owen received a copy of the lyrics to "The Prayer," as performed by Celine Dion.3 The lyrics to "The Prayer," as provided by the Plaintiff to the school, are as follows:

I pray you'll be our eyes, and watch us where we go And help us to be wise in times when we don't know Let this be our prayer, when we lose our way Lead us to the place, guide us with your grace To a place where we'll be safe.

I pray we'll find your light, and hold it in your hearts When stars go out each night, remind us where you are Let this be our prayer, when shadows fill our day Help us find a place, guide us with your grace Give us faith so we'll be safe

A world where pain and sorrow will be ended And every heart that's broken will be mended And we'll remember we are all God's children Reaching out to touch you Reaching to the sky

We ask that life be kind, and watch us from above We hope each soul will find another soul to love Let this be our prayer, just like every child Who needs to find a place, guide us with your grace Give us faith so we'll be safe Needs to find a place, guide us with your grace Give us faith so we'll be safe.

(Pl. First Am. Compl. ¶ 13; Dep. Pl.Ex. 1.)4 Owen sent the lyrics to Superintendent McPherson. (Dep. Morgan at 30; Dep. Owen at 73.) There is some dispute as to the specific reasons why Owen sent the lyrics to McPherson,5 but there is agreement that Owen wanted advice on whether the song was appropriate for graduation given the perceivable religious overtones. (Aff. Stokes ¶ 16; Dep. McPherson at 87-89; Dep. Owen at 73, 76-85.) The advice of Crook and McPherson was that the song was not appropriate for graduation; the parties dispute whether Owen maintained any discretion to ignore this advice. (Pl. First Am. Compl. ¶ 15; Dep. McPherson at 24-25, 65-66; Dep. Owen at 78-80.)

At some later point, Owen, Scott, Morgan, or some combination of them told Plaintiff that she and Stokes would not be able to sing any song at graduation. (Dep. Morgan at 33; Dep. Owen at 66, 73, 85-91; Dep. Pl. at 47, 55-56; Dep. Scott at 68, 74-76, 84-93.) Plaintiff was encouraged to sing at the baccalaureate or another graduation-related activity. (Dep. Owen at 66, 73.) Owen claims that the reason Plaintiff could not sing was because of the time constraints on the ceremony.6 (Dep. Owen at 66, 73, 85-91.) Plaintiff testified that she was told that the singing had been cut because no one could make a decision on whether to include singing, and some decision had to be made, so the decision was not to include it. (Dep. Pl. at 55.) Plaintiff admits that it was her understanding that no decision had been made as to whether to include singing, not that a decision had been made to include singing, which was now being reversed. (Dep. Pl. at 56.)

When Plaintiff learned she would not be singing, Plaintiff called her mother, and Plaintiff told her mother that Plaintiff's song had been cut from the program. (Dep. Pl. at 47.) Mrs. Ashby claims that she then called Owen, who told Mrs. Ashby that the attorney, Crook, had advised the school the song would not be appropriate and that the song would...

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