Demmon v. Loudon County Public Schools

• Decision Date: 15 October 2004
• Docket Number: No. CIV.A. 1:03cv365.,CIV.A. 1:03cv365.
• Citation: 342 F.Supp.2d 474
• Court: U.S. District Court — Eastern District of Virginia
• Parties: John and Patti DEMMON, et al., Plaintiffs, v. LOUDOUN COUNTY PUBLIC SCHOOLS, et al., Defendants.

342 F.Supp.2d 474

John and Patti DEMMON, et al., Plaintiffs, v. LOUDOUN COUNTY PUBLIC SCHOOLS, et al., Defendants.

No. CIV.A. 1:03cv365.

United States District Court, E.D. Virginia, Alexandria Division.

October 15, 2004.

COPYRIGHT MATERIAL OMITTED

Charles Douglas Welty, C. Douglas Welty PC, Arlington, VA, for Plaintiffs.

E. William Chapman, Reed Smith LLP, Leesburg, VA, for Defendants.

AMENDED MEMORANDUM OPINION

CACHERIS, District Judge.

At issue in this case is whether a public school violates the Free Speech and Establishment Clauses of the United States and Virginia Constitutions when it removes bricks inscribed with the Latin cross, purchased by parents and relatives of school students and graduates, from the school's "walkway of fame," located on school property.

The Court holds that having created a limited public forum, the school engaged in impermissible viewpoint discrimination against expression with a religious viewpoint. For the reasons stated below, the Court will enter summary judgment in favor of the Plaintiffs.

I. Background

Beginning in 2001, a parent group associated with Loudoun County Public Schools, Parents Associated With the School ("PAWS"), initiated a fund-raising project through which PAWS solicited sales of engraved bricks that would create a "walkway of fame" on Potomac Falls High School property ("PFHS" or the "High School"). PAWS began developing the idea of a inscribed brick walkway as a fund-raiser during the 1999-2000 school year. (Slusher Aff. ¶¶ 7, 34.) During the 2000-01 school year, the president of PAWS approached Principal Griffith about the "walk of fame." (Slusher Aff. ¶ 10.) Principal Griffith and Assistant Superintendent of LCPS, Evan Mohler, approved the design, location, and proposed construction of the walkway as being acceptable from a site planning and engineering perspective. (PSMF ¶¶ 20-21.) PAWS oversaw the fund-raiser, including the following: advertising; processing the orders; collecting money; selecting symbols; and installing bricks. (Slusher Aff. ¶¶ 14, 15, 20, 24-27, 29, 30-33.) Defendant E Wayne Griffith ("Griffith") had the authority to approve additional symbols. (Griffith Dep. at 22-23.)

The walkway is located in a prominent area generally surrounding three flagpoles, near the main entrance of PFHS. (Pl. Stat. of Uncontested Material Facts ¶¶ 2-3 ("PSMF").) The walkway is accessible to the general public and is crossed by students, parents, school personnel, participants in school-sanctioned activities, and members of the public. (PSMF ¶ 4.) Students may walk over the bricks to get to the school, but can also easily avoid them.

The bricks were regular red pavers, etched with lasers to create the writing and symbols. (Def.Ex. 24.) The engraved bricks contain a variety of names, emblems, and slogans. (PSMF ¶ 9.) In addition to a written message, purchasers of bricks were permitted to select symbols from one of several lists published by PAWS for an additional charge of five dollars. (PSMF ¶ 22.) Some symbols were added and others were dropped from the published list of symbols from time to time at the request of PAWS. (PSMF ¶ 23.) The only religious symbol on any of the several lists published in the PAWS brochure or the PFHS newsletters was the Latin cross. (PSMF ¶ 24.) The manufacturer of the bricks offered a stock "clip art" library of symbols, including the Latin cross and a Star or David; the manufacturer could engrave special symbols, corporate logos and the like for an additional charge. (PSMF ¶ 25.) Some prospective brick purchasers requested of PAWS that different symbols (i.e. gymnastics, hockey, thespian masks, and lacrosse sticks) be made available for purchase; those symbols were approved and purchased. (PSMF ¶ 27.)

PAWS offered the option of placing symbols on the bricks in order to raise more money. PAWS solicited parents and family members of students to purchase bricks, which could be inscribed with a personalized message and/or certain symbols. (Def.Ex. 12-16.) Twenty-four symbols were available to be inscribed on the bricks, mainly symbols identified with school-sponsored extra-curricular activities (i.e., soccer, volleyball, music, and drama). (Def.Ex. 18, 19, 21.) The only religious symbol available was the Latin cross.¹

In January of 2003, Principal Griffith received a letter complaining about the bricks bearing the Latin cross in the walk of fame. (Griffith Dep. at 6-8.) After consulting with PAWS and counsel, the decision was made to remove the bricks inscribed with the Latin cross. In February 2003, Griffith, the Principal of PFHS, informed those persons who had purchased bricks inscribed with the Latin cross that such bricks had been removed from the "walkway of fame" due to potential legal problems associated with allowing religious symbols on school property. (Id. at 12-13.) Replacement bricks, containing only the student's name and year of graduation, were to be provided by the school. (Id.) Purchasers were also refunded the additional five dollars they had paid to have the symbol appear on their bricks.

Plaintiffs John and Patti Demmon ("the Demmons"), Roger Marcum ("Marcum"), Terri Nickerson ("Nickerson"), and Christa Robinson ("Robinson") are parents of current or former PFHS students who purchased bricks inscribed with the Latin cross through the PAWS fund-raiser. Those bricks were all removed in February 2003. Plaintiffs Alan and Karen Hansen and their son Jonathan Hansen (collectively, the "Hansens"), would like to purchase a brick with Jonathan's name and a Latin cross on it during the upcoming 2003-04 school year. (Compl. ¶ 3.14.)

The Latin cross is no longer permitted to be inscribed on the bricks. Under a new school board policy implemented on March 25, 2003, bricks and other permanent attachments to school property are "limited to no more than the name of the student or staff member and the class, grade, or year of which that student or staff person is a member." (Def.Ex. 2.)

On March 24, 2003, Plaintiffs filed suit in this Court against Defendants Loudoun County Public Schools and the Loudoun County School Board, the governing body of PFHS, (collectively, the "School"); Dr. Edgar Hatrick ("Hatrick"), the Superintendent of the School; Griffith; and certain John Doe Individuals, Governmental Entities, and Corporations. Plaintiffs allege that Defendants' conduct in removing the bricks inscribed with the Latin cross and eliminating the Latin cross as an available symbol for inscription on the bricks was in violation of 42 U.S.C. § 1983, specifically that, under color of state law, Defendants violated Plaintiffs' rights under the (I) Free Speech Clause of the United States Constitution; (II) Free Speech Clause of the Virginia Constitution; (III) Establishment Clause of the United States Constitution; (IV) Establishment Clause of the Virginia Constitution; (V) Free Exercise Clause of the United States Constitution; and (VI) Free Exercise Clause of the Virginia Constitution. Plaintiffs sought declaratory relief and immediate return of the bricks inscribed with the Latin cross to the "walkway of fame."

On April 18, 2003, the named Defendants filed a motion to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court granted the Defendants' motion as to Plaintiff's free exercise claim, but refused to dismiss the counts alleging violations of the freedom of speech and establishment clauses. The parties have subsequently filed cross-motions for summary judgment. They agreed during their final pre-trial conference that this matter can be resolved as a matter of law on summary judgment. The Court fully agrees, as the relevant material facts are not in dispute. These cross-motions for summary judgment are currently before the Court.

II. Standard of Review

Summary judgment is appropriate only if the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Evans v. Technologies Applications & Serv., Co., 80 F.3d 954, 958-59 (4th Cir.1996) (citations omitted). In reviewing the record on summary judgment, "the court must draw any inferences in the light most favorable to the non-movant" and "determine whether the record taken as a whole could lead a reasonable trier of fact to find for the non-movant." Brock v. Entre Computer Ctrs., 933 F.2d 1253, 1259 (4th Cir.1991) (citations omitted).

The very existence of a scintilla of evidence or of unsubstantiated conclusory allegations, however, is insufficient to avoid summary judgment. Anderson, 477 U.S. at 248-52, 106 S.Ct. 2505. Rather, the Court must determine whether the record as a whole could lead a reasonable trier of fact to find for the non-movant. Id. at 248, 106 S.Ct. 2505.

III. Analysis

The Court will address the following issues in turn: (1) whether the cause of action is moot, because the Defendants have closed the forum; (2) did the removal of the bricks violate Plaintiffs' freedom of speech rights; (3) whether the removal of the bricks constituted a violation of the Establishment Clause.

A. Mootness

Defendants contend that this case is moot, because they have closed the "walk of fame" as a forum for any expressive activity. Defendants argue that they have implemented a policy that restricts bricks and other permanent attachments to school property to "the name of the student or staff members and the class, grade, or year of which that student or staff person is a member." (Def. Stat. of Undisputed Mat. Facts ¶ 34 ("DSMF").)

The mootness doctrine is primarily a function of the Article III "case or controversy" limitation on the jurisdiction of the Federal courts. American Legion Post 7 of Durham, N.C. v. City of Durham, 239 F.3d 601, 605 (4th Cir.2001). Federal courts may only hear present, live controversies...