Freedom From Religion Found. v. Concord Cmty. Sch.
| Decision Date | 06 March 2017 |
| Docket Number | Case No. 3:15–CV–463 JD |
| Citation | 240 F.Supp.3d 914 |
| Parties | FREEDOM FROM RELIGION FOUNDATION, et al., Plaintiffs, v. CONCORD COMMUNITY SCHOOLS, Defendant. |
| Court | U.S. District Court — Northern District of Indiana |
Daniel I. Mach, PHV, Pro Hac Vice, Heather L. Weaver, PHV, Washington, DC, Gavin M. Rose, ACLU of Indiana, Indianapolis, IN, Ryan D. Jayne, PHV, Samuel T. Grover, PHV, Pro Hac Vice, Madison, WI, for Plaintiff.
Timothy S. Shelly, Warrick and Boyn LLP, Elkhart, IN, Anthony W. Overholt, Thomas E. Wheeler, II, Frost Brown Todd LLC, Indianapolis, IN, for Defendant.
This matter is again before the Court on the parties' cross-motions for summary judgment. The Plaintiffs contend that a living nativity scene that Concord High School has long presented as the finale to its annual Christmas Spectacular violates the Establishment Clause. After the Plaintiffs filed this suit, the School proposed some changes for its upcoming shows in December 2015, but the Court found that even with those changes, the proposed show was still likely to violate the Establishment Clause, so the Court entered a preliminary injunction against performing a live nativity scene as part of the 2015 Christmas Spectacular. The School complied with that injunction, and the Court previously found that the show the School actually presented in 2015 did not violate the Establishment Clause. What remains of this case is the Plaintiffs' challenge to the version of the Christmas Spectacular that the School performed in 2014, and to the modified version of the show that the School proposed to present in 2015, prior to the issuance of the injunction. For the reasons that follow, the Court finds that the Plaintiffs' challenge to those shows is not moot; finds that those two versions of the Christmas Spectacular violated the Establishment Clause; and awards the Plaintiffs nominal damages and a declaratory judgment.
In its previous orders, the Court has described at length each of the versions of the Christmas Spectacular at issue in this case. Freedom From Religion Found. v. Concord Cmty. Schs. , 207 F.Supp.3d 862 (N.D. Ind. 2016) ; Freedom From Religion Found. v. Concord Cmty. Schs. , 148 F.Supp.3d 727 (N.D. Ind. 2015). [DE 40 p. 2–6; DE 62 p. 2–8]. Those facts are undisputed, and the Court will not repeat them here. The parties have filed cross-motions for summary judgment. In its previous order on those motions, the Court held that the version of the Christmas Spectacular that the School actually presented in 2015 did not violate the Establishment Clause. The Court did not reach the merits of the Plaintiffs' challenge to the 2014 show or the proposed–2015 show, though, because the School asserted for the first time in its surreply that the Plaintiffs' challenge to those shows was moot. Specifically, the School argued that it had decided not to present those versions of the show again, so the Plaintiffs' requests for a declaratory judgment and a permanent injunction were mooted by its voluntary cessation of the challenged conduct. The School cited no evidence in support of its assertion, though, so the Court directed it to file a supplemental brief with any evidence and argument in support of its position on this issue. In that same order, the Court also directed the Plaintiffs to file a supplemental brief that identified and justified the specific injunction they sought. The parties have now submitted and responded to those respective supplements, so the motions for summary judgment are again ripe for ruling.
On summary judgment, the moving party bears the burden of demonstrating that there "is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A "material" fact is one identified by the substantive law as affecting the outcome of the suit. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A "genuine issue" exists with respect to any material fact when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. Where a factual record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial, and summary judgment should be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing Bank of Ariz. v. Cities Servs. Co. , 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968) ). In determining whether a genuine issue of material fact exists, this Court must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in that party's favor. Jackson v. Kotter , 541 F.3d 688, 697 (7th Cir. 2008) ; King v. Preferred Tech. Grp. , 166 F.3d 887, 890 (7th Cir. 1999). However, the non-moving party cannot simply rest on the allegations contained in its pleadings, but must present sufficient evidence to show the existence of each element of its case on which it will bear the burden at trial. Celotex Corp. v. Catrett , 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Robin v. Espo Eng'g Corp. , 200 F.3d 1081, 1088 (7th Cir. 2000).
The Plaintiffs assert that the Christmas Spectacular that the School presented in 2014, and the show that it intended to present in 2015 prior to the preliminary injunction, violated the Establishment Clause. In its present filings, the School does not defend either of these shows on the merits, but instead raises a threshold argument that the Plaintiffs' challenges to those shows are now moot. The Court addresses the mootness argument first. Finding that these claims are not moot, the Court then considers these claims on their merits and then decides what remedies are appropriate.
The School argues that the Court lacks jurisdiction to resolve the Plaintiffs' challenges to the 2014 and proposed–2015 shows because those claims are now moot. It argues that it has decided not to present those versions of the show in the future, so there is no longer a case or controversy that could justify awarding forward-looking relief (a declaratory judgment and a permanent injunction). The School does not suggest that it has enacted any formal policy or taken any official action that would preclude presenting those shows in the future. However, in its supplemental filing, it has submitted an affidavit by its superintendent, John Trout, in which he describes a decision the School has made not to present those versions of the show. Mr. Trout notes that following the 2015 shows, "the community, the School Board, administrators, teachers, parents, and students engaged in a variety of informal discussions regarding the program on a going forward basis." [DE 63–1 ¶ 5]. Mr. Trout describes these conversations as taking place "at the local park, over the water cooler, and across the fence," and he asserts that they "resulted in what appeared to be a consensus that the program [as actually presented in 2015] was a success and that the changes should be made permanent." Id.
Mr. Trout further states that, in late December 2015, he met with the school board to discuss their options relative to the litigation and the future of the Christmas Spectacular. At that time, a "consensus was reached that the changes should be made permanent and that the School would not return to performing the program as it had been done in 2014 and the years preceding that time." Id. ¶ 6. Mr. Trout states that, as a result of this decision, the School decided to make a Rule 68 offer of judgment, part of which included a proposed injunction against presenting a living nativity scene or having a faculty member recite the story of Jesus' birth as it appears in the Bible. However, the Plaintiffs did not accept the offer of judgment, so by its own terms, and pursuant to Rule 68, the offer was withdrawn. Mr. Trout states, though, that notwithstanding the withdrawal of this offer, the School "made the decision to permanently alter the program ... and to perform the program on an ongoing basis in a fashion largely similar to the program performed in 2015...." Id. ¶ 9.
The School argues that, in light of this decision not to present the 2014 and proposed–2015 versions of the show in the future, the Plaintiffs' challenges to those shows are now moot. Article III of the Constitution states that the power of the federal courts extends to "cases" and "controversies." U.S. Const. art. III, § 2. Thus, "[u]nder Article III, ‘cases that do not involve actual, ongoing controversies are moot and must be dismissed for lack of jurisdiction.’ " Wisc. Right to Life, Inc. v. Schober , 366 F.3d 485, 490–91 (7th Cir. 2004) . Mootness has been described as "the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)." Arizonans for Official English v. Arizona , 520 U.S. 43, 68 n.2, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). That description is imprecise, though, as there are some notable differences between the two. Friends of the Earth v. Laidlaw Envtl. Servs. , 528 U.S. 167, 189–90, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (). Unlike standing, on which a plaintiff bears the burden of proof, the burden of proving that a controversy is moot lies with the party asserting mootness, which is usually the defendant. Laidlaw , 528 U.S. at 190, 120 S.Ct. 693 ; Schober , 366 F.3d at 491. The Supreme Court has also acknowledged that "there are circumstances in which the prospect that a defendant will engage in (or resume) harmful conduct may be too speculative to...
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