Freedom from Religion Foundation v. Hanover School
| Decision Date | 30 September 2009 |
| Docket Number | Civil No. 07-cv-356-SM. |
| Parties | The FREEDOM FROM RELIGION FOUNDATION; Jan Doe and Pat Doe, Parents; DoeChild-1, DoeChild-2, and DoeChild-3, Minor Children, Plaintiffs, v. The HANOVER SCHOOL DISTRICT and The Dresden School District, Defendants. The United States of America, Intervenor. The State of New Hampshire, Intervenor. Anna Chobanian, John Chobanian, Kathryn Chobanian, Schuyler Cyrus, Elijah Cyrus, Rhys Cyrus, Austin Cyrus, Daniel Phan, Muriel Cyrus, Michael Chobanian, Margarethe Chobanian, Minh Phan, Suzu Phan, and the Knights of Columbus, Intervenors. |
| Court | U.S. District Court — District of New Hampshire |
Michael A. Newdow, Sacramento, CA, Rosanna T. Fox, O'Brien Law Firm, P.C., Manchester, NH, for Plaintiffs.
David H. Bradley, Stebbins Bradley Harvey Miller & Brooks Pa, Hanover, NH, for Defendants.
Gretchen Leah Witt, Nancy J. Smith, Office of Attorney General, Concord, NH, Eric B. Beckenhauer U.S. Dept of Justice, Eric C. Rassbach, Kevin J. Hasson, The Becket Fund for Religious Liberty, Theodore C. Hirt Washington, DC, Bradford T. Atwood, Clauson Atwood & Spaneas, Hanover, NH, for Intervenors.
The parties remaining as defendants in this case are the Hanover School District and the Dresden School District. All other individuals and institutions named in the caption of this order are intervenors and, as such, have the right to be heard on only two issues: the constitutionality of 4 U.S.C. § 4 (), and the constitutionality of N.H.REV.STAT. ANN. ("RSA") § 194:15-c ().
The school districts moved to dismiss the claims against them "for the reasons set forth in the Federal Government's Memorandum in Support of the Federal Defendants' Motion to Dismiss ... as to the constitutionality of 4 U.S.C. § 4 and the State of New Hampshire's Memorandum of Law in Support of Motion to dismiss ... as to the constitutionality of RSA 194:15-c." (Mot. to Dismiss (document no. 46), at 1-2.) Thereafter, plaintiffs filed their first amended complaint (document no. 52). The following facts are drawn from that complaint.
Jan Doe and Pat Doe ("the Doe parents") are the mother and father of DoeChild-1, DoeChild-2, and DoeChild-3 ("the Doe children"). At the time the complaint was filed, the eldest Doe child attended a middle school jointly administered by the Hanover and Dresden school districts. The two younger Doe children were enrolled in a public elementary school operated by the Hanover district.
Jan and Pat Doe describe themselves as atheist and agnostic, respectively. Both are members of the Freedom from Religion Foundation. Each of the Doe children is said to be either an atheist or an agnostic, and each is said to either deny or doubt the existence of God.
The Pledge of Allegiance ("Pledge") is routinely recited in the Doe childrens' classrooms, under the leadership of their teachers. As provided by Congress, the Pledge reads:
I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.
4 U.S.C. § 4. While the statute prescribes the text of the Pledge, and describes the preferred formalities attendant to its recitation, the statute includes no other mandate. That is, the statute does not compel recitation of the Pledge under any circumstances or by any person.
In New Hampshire, recitation of the Pledge in schools is governed by state law, which provides:
I. As a continuation of the policy of teaching our country's history to the elementary and secondary pupils of this state, this section shall be known as the New Hampshire School Patriot Act.
II. A school district shall authorize a period of time during the school day for the recitation of the pledge of allegiance.
Pupil participation in the recitation of the pledge of allegiance shall be voluntary.
III. Pupils not participating in the recitation of the pledge of allegiance may silently stand or remain seated but shall be required to respect the rights of those pupils electing to participate. If this paragraph shall be declared to be unconstitutional or otherwise invalid, the remaining paragraphs in this section shall not be affected, and shall continue in full force and effect.
Plaintiffs stipulate that no Doe child has been compelled to recite the Pledge or its included phrase, "under God." (Plaintiffs do assert, however, that while the Doe children have not been compelled to recite the Pledge, they have been coerced.1) The Doe parents asked the principals of their childrens' schools to provide assurances that the Pledge would not be recited in their childrens' classes, but have received no such assurance.
Plaintiffs claim that by leading the Doe childrens' classes in reciting the Pledge of Allegiance in the manner prescribed by RSA 194:15-c, defendants have violated the rights of the Doe children under the Establishment Clause (Count I) and the Free Exercise Clause (Count II) of the United States Constitution; the rights of the Doe parents under the federal Free Exercise Clause (Count III); the rights of both the Doe children and their parents under the Due Process and Equal Protection Clauses of the United States Constitution (Count IV); and the Doe parents' federal constitutional rights of parenthood, as well as the Doe children's concomitant rights (Count V). Plaintiffs also assert that defendants have violated the rights of the Doe children and parents under Part I, Article 6, of the New Hampshire Constitution (Count VI); the Doe childrens' rights to the free exercise of religion, established by RSA 169-D:23 (Count VII); and the Doe parents' state rights of parenthood, as well as the associated rights of the Doe children (Count VIII). Finally, in Count IX, plaintiffs assert that "the use of a Pledge of Allegiance containing the words `under God' is void as against public policy." (First Am. Compl. ¶ 84.)
Plaintiffs ask the court to: (1) declare that, by having teachers lead students in reciting the Pledge of Allegiance, defendants have violated the various constitutional and statutory provisions identified above; (2) declare that RSA 194:15-c is void as against public policy; and (3) enjoin recitation of the Pledge of Allegiance in the public schools within defendants' jurisdictions.
As noted, the school districts filed a motion to dismiss plaintiffs' original complaint. Then, after plaintiffs filed their first amended complaint, the State of New Hampshire filed a supplemental memorandum supporting its earlier motion to dismiss, in which it addressed claims that were newly raised in plaintiffs' first amended complaint. The United States and the remaining intervenors filed renewed motions to dismiss in which they incorporated by reference arguments made in earlier dismissal motions, and added arguments to address claims raised for the first time in the first amended complaint. The school districts have not directly responded to the first amended complaint other than by assenting to its filing, but the parties all seem to be proceeding on the assumption that the school districts persist in their original motion to dismiss, as reiterated and embellished by the intervenors with respect to the amended complaint. The court will likewise construe the pending motions to dismiss as having been advanced by the school districts as well.
The United States says plaintiffs' claims amount to an "as applied" challenge to the federal Pledge statute, but that characterization seems inapt. The statute prescribes the content of the Pledge of Allegiance, but does not command any person to recite it, or to lead others in its recitation. Merely leading students in reciting the Pledge does not seem an "application" of the federal Pledge statute to the Doe children. Teachers leading students in a Pledge recital are actually complying with New Hampshire's Pledge statute. Accordingly, the constitutionality of 4 U.S.C. § 4 "as applied" is not at issue.
The State of New Hampshire stands on a different footing. Plaintiffs argue that the school districts violated their constitutional rights by leading the Pledge in classes in which the Doe children are enrolled. Because all appear to agree, as a factual matter, that the Doe children's teachers acted in compliance with the mandate of RSA 194:15-c, determining the constitutionality of the teachers' actions turns on the constitutionality of RSA 194:15-c. That is precisely the question the State of New Hampshire is entitled to address.
A motion to dismiss for "failure to state a claim upon which relief can be granted," FED.R.CIV.P. 12(b)(6), requires the court to conduct a limited inquiry, focusing not on "whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). "The motion [should] be granted unless the facts, evaluated in [a] plaintiff-friendly manner, contain enough meat to support a reasonable expectation that an actionable claim may exist." Andrew Robinson Int'l, Inc. v. Hartford Fire Ins. Co., 547 F.3d 48, 51 (1st Cir.2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Morales-Tañon v. P.R. Elec. Power Auth., 524 F.3d 15, 18 (1st Cir.2008)).
Count I
In Count I, plaintiffs claim that defendants violated the rights of the Doe children under the federal Establishment Clause by leading their classes in reciting the Pledge of Allegiance. Defendants move to dismiss, arguing principally that: (1) the Establishment Clause permits official acknowledgments of the nation's religious heritage and character; (2) the Pledge of Allegiance is a...
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