Fleming v. Jefferson County School Dist. No. R-1, Civ.A. 99-D-1932.

• Court: United States District Courts. 10th Circuit. United States District Court of Colorado
• Citation: 170 F.Supp.2d 1094
• Docket Number: No. Civ.A. 99-D-1932.,Civ.A. 99-D-1932.
• Parties: Donald F. FLEMING, Deidra A. Fleming, Lisa M. Maurer, Brian E. Rohrbough, Susan A. Petrone, Richard P. Petrone (individually), and Nicole M. Petrone, a minor child, by and through her father and next friend Richard P. Petrone, Plaintiffs, v. JEFFERSON COUNTY SCHOOL DISTRICT NO. R-1, a Colorado Quasi-Municipal Corporation, and Jon DeStefano, individually and in his official capacity, Defendants.
• Decision Date: 01 November 2001

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170 F.Supp.2d 1094 Donald F. FLEMING, Deidra A. Fleming, Lisa M. Maurer, Brian E. Rohrbough, Susan A. Petrone, Richard P. Petrone (individually), and Nicole M. Petrone, a minor child, by and through her father and next friend Richard P. Petrone, Plaintiffs,
v.
JEFFERSON COUNTY SCHOOL DISTRICT NO. R-1, a Colorado Quasi-Municipal Corporation, and Jon DeStefano, individually and in his official capacity, Defendants. No. Civ.A. 99-D-1932. United States District Court, D. Colorado. November 1, 2001.

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COPYRIGHT MATERIAL OMITTED

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Barry K. Arrington, Arrington & Associates, PC, Lakewood, CO, James P. Rouse, Sr., Rouse & Associates, P.C., Englewood, CO, for plaintiffs.

Alexander Halpern, W. Stuart Stuller, Caplan & Earnest, LLC, Boulder, CO, for defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

DANIEL, District Judge.

I. INTRODUCTION

This case is brought pursuant to 42 U.S.C. §§ 1983 and 1988 for an alleged violation of Plaintiffs' constitutional rights arising from Defendants' refusal to allow Plaintiffs to honor their slain children and/or friends in a public forum at Columbine High School by painting tiles that have a religious content and/or that have the date April 20, 1993. Plaintiffs seek declaratory and injunctive relief and their attorneys' fee.

Specifically, Plaintiffs seek: (1) declaratory and injunctive relief in connection with Defendants' alleged violation of the Free Speech Clause of the First Amendment; (2) declaratory and injunctive relief in connection with Defendants' alleged violation of Plaintiffs' free speech rights under the Colorado Constitution; (3) declaratory and injunctive relief in connection with Defendants' alleged violation of the Establishment Clause of the First Amendment; and (4) costs and attorneys fees under 42 U.S.C. § 1988. The injunctive relief sought by Plaintiffs is an order requiring Defendants to mount Plaintiffs' tiles that were painted and previously refused on the walls of Columbine High School. Plaintiffs also ask that Defendants be required to provide another tile

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session whereby Plaintiffs can paint the tiles they were not allowed to paint, and for these new tiles to be mounted on the walls of Columbine High School.

Defendants filed a motion to dismiss the complaint, which the Court denied. The parties also filed cross motions for summary judgment, which the Court denied. After a five-day trial, the Court makes the following Findings of Fact, Conclusions of Law and Order.

II. FINDINGS OF FACT

1. Plaintiffs Diedra A. Fleming (hereinafter referred to as "Mrs. Fleming") and Donald F. Fleming (hereinafter referred to as "Mr. Fleming") are residents of Jefferson County, Colorado. Their daughter, Kelly Fleming, was a student at Columbine High School (hereinafter referred to as "CHS").

2. Plaintiff Lisa M. Maurer (n/k/a Lisa Rohrbough) (hereinafter referred to as "Mrs. Rohrbough") was at the time of the tile painting which is the subject of this lawsuit a friend of Plaintiff Brian E. Rohrbough (hereinafter referred to as "Mr. Rohrbough") and was also a friend of Mr. Rohrbough's son, Daniel Rohrbough. Subsequent to the filing of this case, she married Mr. Rohrbough. Mr. Rohrbough is a resident of Jefferson County, Colorado. His son, Daniel Rohrbough, was a student at CHS.

3. Plaintiff Susan A. Petrone (hereinafter referred to as "Mrs. Petrone") was the mother of Daniel Rohrbough. Plaintiff Richard P. Petrone (hereinafter referred to as "Mr. Petrone"), is Mrs. Petrone's current husband. The Petrones are residents of Jefferson County, Colorado. Plaintiff Nicole M. Petrone (hereinafter referred to as "Ms. Petrone") was at all times pertinent hereto a minor child, a resident of Jefferson County, Colorado, and a student at CHS. Ms. Petrone was the step-sister of Daniel Rohrbough, and her father is Mr. Petrone.

4. CHS is located in Littleton, Colorado, in the Jefferson County School District R-1. CHS educates approximately 2000 students with a staff of 180 persons.

5. Defendant Jefferson County School District No. R-1 (hereinafter referred to as the "School District"), describes itself as a quasi-municipal corporation, and is a School District formed and organized pursuant to the laws of the state of Colorado. The School District operates numerous primary and secondary public schools in Jefferson County, Colorado. Among the schools operated by the School District is CHS.

6. Jon DeStefano (hereinafter individually referred to as "Mr. DeStefano"), Tori Merritts, David R. DiGiacomo, Debby Oberbeck, and Vince Chowdhury (hereinafter collectively referred to as the "School Board") were in April of 1999 and in the summer and the fall of 1999 the duly elected and acting School Board for the School District.¹ Mr. DeStefano, who is sued in his individual and his official capacity, was at all times material hereto the President of the School Board for the School District. Plaintiff asserts that Defendants Tori Merritts and Debby Oberbeck are sued in

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their official capacities only, notwithstanding the designations in the caption of the Complaint.

7. Daniel Rohrbough and Kelly Fleming were students at CHS in April of 1999.

8. On April 20, 1999, two CHS students, Eric Harris and Dylan Klebold, entered the premises of CHS and shot numerous students and teachers before committing suicide. Twelve students and one teacher were killed by the gunmen, including Daniel Rohrbough and Kelly Fleming. In addition, twenty-six other students were injured, some quite seriously.

9. Prior to the April 20, 1999 shootings at CHS, students had engaged in what has become known as the "tile project". The tile project consisted of the painting and preparation of ceramic tiles measuring approximately four inches by four inches. The finished tiles were placed on the walls of the school hallways, initially in the art wing and the main hallways. They were put up as a border strip five and one-half (5½) feet off the ground above the lockers.

10. The practice of painting ceramic tiles and affixing them as decorations on the walls at CHS began with a proposal made to the school administration in the fall of 1996 by two art teachers, Erin Yust-Brown and Barbara Hirokawa (hereinafter referred to as "Ms. Hirokawa").

11. The tile project was approved and glaze colors for decorating the tiles were prescribed. As initially implemented by the art teachers, tile decorations had to be abstract or nonobjective with no symbols or words. Tiles that did not comply with the guidelines as set by the art teachers or tiles which the teachers considered inappropriate or simply unattractive were washed off prior to glazing and reused.

12. The tiles drew the attention of teachers from other departments who also wished to brighten the appearance of the hallways outside their classrooms. As other classes began making tiles under the supervision of non-art teachers, some tiles began to include recognizable images related to the content of the classes, such as frogs, bugs, volcanoes, and lightning for earth science.

13. There was no requirement for artistic merit or ability in order to participate in this particular tile painting activity. There were approximately one hundred and fifty (150) tiles painted in connection with the above project.

14. Subsequent to the April 20, 1999 shootings at CHS, the Jefferson County Sheriff's Department sealed the school building with the students' personal belongings and the school's instructional materials inside. The student body from CHS attended classes at Chatfield High School.

15. The CHS students continued to paint tiles at Chatfield under the direction of teaching assistants outside the regular Columbine staff and parent helpers. The painting was done by the science department, which continued to paint recognizable subjects. Further, other CHS students attending Chatfield were allowed to paint tiles. The tiles which were painted contained Columbine ribbons (blue and silver ribbons in a loop in memory of those who died and were wounded), initials, Columbine flowers, tears, and broken hearts. About 1,000 tiles were done by students while attending Chatfield.

16. In June, 1999, the School District determined that the CHS building should be renovated and reopened. The prospect of reintroducing the students to the CHS building posed significant mental health challenges. School officials made a concerted effort to change the appearance of the building to avoid incorporating sensory

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cues that could reactivate memories of the attack.

17. In the summer of 1999, the tiles painted at Chatfield High School were installed in the hallways of CHS. These tiles were installed down the two north-south hallways at CHS.

18. In June or early July 1999, CHS librarian Elizabeth Keating (hereinafter referred to as "Ms. Keating") and Ms. Hirokawa proposed tile painting as an activity to assist in community healing by allowing the community to "retake" the school by participating in its restoration. They obtained approval from Barbara Monseu (hereinafter referred to as "Ms. Monseu"). Ms. Monseu was the area administrator responsible for three high schools (including CHS and Chatfield) and their feeder schools. Ms. Monseu was also the School Board's designated liaison to the families of shooting victims.

19. Thus, during the summer of 1999, the tile project continued, although the purpose of the project and the persons allowed to participate in the project changed from what the project had been before. Specifically, the purpose of the project changed from a student project supervised by teachers to a community healing process whereby certain members of the general public that included students, families and friends of students, alumni, rescue workers, health care professionals who treated the injured and other members of the community who were invited to express themselves regarding the shootings as part of the healing...