H.S. v. Huntington County Community School Corp., 1:08 CV 271.

• Decision Date: 19 March 2009
• Docket Number: No. 1:08 CV 271.,1:08 CV 271.
• Parties: H.S. on her own behalf and as parent and next friend of her minor child, J.S., Plaintiff, v. HUNTINGTON COUNTY COMMUNITY SCHOOL CORPORATION, Defendant.
• Court: U.S. District Court — Northern District of Indiana

616 F.Supp.2d 863

H.S. on her own behalf and as parent and next friend of her minor child, J.S., Plaintiff, v. HUNTINGTON COUNTY COMMUNITY SCHOOL CORPORATION, Defendant.

No. 1:08 CV 271.

United States District Court, N.D. Indiana, Fort Wayne Division.

March 19, 2009.

Jacquelyn E. Bowie-Suess, ACLU of Indiana, Indianapolis, IN, for Plaintiff.

Codie J. Ross, Linda A. Polley, Orfej P. Najdeski, Hunt Suedhoff Kalamaros LLP, Fort Wayne, IN, for Defendant.

OPINION and ORDER

JAMES T. MOODY, District Judge.

Plaintiff H.S., on her own behalf and as a parent of her child, J.S., has filed a complaint (DE # 9) and a motion for a preliminary injunction (DE # 13) against defendant Huntington County Community School Corporation. Defendant opposed the injunction (DE # 26), and moved to dismiss plaintiff's complaint (DE # 32). This court referred both of these matters to Magistrate Judge Cosbey for a report and recommendation (DE # 19; DE # 38), which the court issued after a hearing (DE # 48; DE # 50).

Defendant objects (DE # 52; DE # 53) to the report and recommendation, and plaintiff has responded (DE # 54). For the reasons explained below, the court will overrule defendant's objections and adopt the report and recommendation—thus denying the motion to dismiss, and granting, in part, the motion for a preliminary injunction.

I. BACKGROUND

Magistrate Judge Cosbey provided a thorough synopsis of the facts in his report and recommendation (DE # 50 at 4-9), and the parties submitted a stipulation of facts (DE # 46), so the court sees no need to exhaustively detail the events leading up to this lawsuit.

A. Relevant Facts

Plaintiff is a parent of J.S., a third grade student at Horace Mann Elementary school, which is a part of defendant Huntington County Community School Corporation. (DE # 46 at 1.) As allowed by Indiana state law, defendant operates a religious "time release" program, enabling children to leave their normal classroom routines and receive religious instruction during the school day. IND.CODE § 20-33-2-19; (DE # 46 at 1-2; DE # 50 at 4.) Under this law, defendant has promulgated a policy allowing students to participate in religious time release programs for no more than 120 minutes a week. (DE # 46 at 1.) In defendant's district, only one organization currently provides such instruction—the Associated Churches of Huntington County (ACHC). (Id. at 2; DE # 50 at 4.)

Logistically, ACHC's program consists of bringing a trailer to various elementary schools, where their employees escort students from the school doors to the trailer, deliver a 30 minute religious-themed lesson, and return them to the doors of the school. (DE # 46 at 2-3; DE # 50 at 4-5.) These sessions take place once a week. (DE # 46 at 2.) During the trips to Horace Mann, the trailer is parked in the front parking lot, roughly fifty feet from the school's front entrance, occupying several visitor parking spaces, and sitting within plain sight of one of the school's playgrounds. (DE # 50 at 5.) From the outside, the trailers display no religious iconography or markings. (Id.) Defendant sets no education guidelines or exercises any control over the content of ACHC's program whatsoever. (Id.) ACHC hires and employs its own teachers, and pays its own utility bills (at Horace Mann it plugs its trailer into an outside electrical outlet that is billed to ACHC directly). (Id. at 867-68; DE # 46 at 2-3.)

In order to participate in this program, defendant requires written permission slips, known as "request forms," from each student's parent. (DE # 46 at 2; DE # 50 at 6-7.) Students who do not provide a signed request form are kept in their normal classrooms while their participating classmates are released to ACHC's instructors. (DE # 46 at 3.) During this period, non-participating students do homework, read, or receive individual instruction. (Id.) In J.S.'s current grade, 97% of the students participate in ACHC's program. (DE # 50 at 4.)

In the Fall of 2008, J.S. was taken into the ACHC trailer and directly given a pamphlet advertising the program and containing a request form by an employee of ACHC, with the school's apparent consent and without plaintiff's permission. (DE # 46 at 3.) This practice has since stopped, and defendant claims it will now only distribute ACHC's information and request forms in the way that it distributes literature from any other outside group. (Id. at 3-4.)

Plaintiff and her child object to defendant allowing ACHC to place its trailer on school property for the purpose of conducting its religious teachings during school hours. (DE # 46 at 5.) J.S. is legally obligated to attend Horace Mann by Indiana law, see IND.CODE §§ 20-33-2-4; 20-33-2-5; 20-26-11-2, plaintiff must go to her child's school to attend school functions as a parent, and her child encounters ACHC's trailer at school. (DE # 50 at 6-9.)

ACHC claims that there is no reasonable way to relocate the trailer off of Horace Mann's property and continue to run the program in its current time allotment, and thus contends that granting an injunction in this case would end the organization's program.¹ (DE # 46 at 5-6; DE # 50 at 9.)

B. Procedural Background

After filing and amending her complaint, plaintiff moved for a preliminary injunction, requesting that the court enjoin defendant from allowing any release time program to take place on school property during school hours and alleging that this practice violated the Establishment Clause of the First Amendment of the U.S. Constitution.² (DE # 13; DE # 14.) This court then referred the matter to Magistrate Judge Cosbey for a report and recommendation. (DE # 19.) Defendant responded to the injunction motion (DE # 26), as did ACHC itself (DE # 34) which was granted leave to file an amicus brief (DE # 28; DE # 33). Defendant then moved to dismiss the case, arguing that plaintiff had no standing to challenge its time release program. (DE # 32.) After this motion was fully briefed (DE # 43; DE # 47) and the parties presented a list of stipulated facts (DE # 46), the magistrate judge held a hearing on the motions, where both sides made legal arguments (DE # 48).

Magistrate Judge Cosbey then issued his report and recommendation, asserting that this court should deny defendant's motion to dismiss and grant plaintiff's motion for a preliminary injunction. (DE # 50). Defendant timely filed its objections to the report and recommendation (DE # 52; DE # 53), and plaintiff responded to those objections (DE # 54).

II. STANDARD OF REVIEW

When a party objects to a magistrate judge's report and recommendation, the district court "shall make a de novo determination of those portions of the report ... or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). The district court has discretion to "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.; FED. R. CIV. P. 72(b). As defendant appears to object to all of the core legal conclusions made by the report and recommendation (see DE # 52), the court will review Magistrate Judge Cosbey's report de novo. See 28 U.S.C. § 636(b)(1)(C).

III. DEFENDANT'S MOTION TO DISMISS: STANDING

Magistrate Judge Cosbey recommended that this court hold that plaintiff has standing to bring this suit, and thus deny defendant's motion to dismiss the case for lack of standing. (DE # 50 at 9-15.) In his analysis of the issue, he begins by reviewing contemporary law dealing with standing in Establishment law cases (id. at 869-71), before asserting that the standing issue "seemingly begins and ends with [McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948)] and [Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952)]," two cases challenging religious time release programs where the Supreme Court found parents had standing. (DE # 50 at 13.) In support of this conclusion, Magistrate Judge Cosbey also analogizes this case to some additional Establishment Clause cases where courts found plaintiffs had standing.³ (Id. at 871-73.)

Defendant objects, contending that McCollum and Zorach make only "a passing reference to the issue of standing." (DE # 53 at 4-5.) Further, defendant asserts that plaintiff has failed to meet its burden of showing "ongoing and irreparable injury," and contrasts plaintiff and J.S.'s viewing of ACHC's trailer with cases where the plaintiffs viewed obviously religious paraphernalia. (Id. at 4-8.) Plaintiff responds that the injury alleged in Zorach was, by any measure, far weaker and less distinct than the injury she and her child allegedly suffer. (DE # 54 at 2-4.) She also appears to allege that having to regularly confront the fact that defendant allows religious instruction to take place on school property during school hours, combined with the fact that Indiana law requires J.S. to attend the school, is the injury at issue, not viewing religious imagery or symbols. (Id. at 4.) Plaintiff has the burden of establishing standing. Plotkin v. Ryan, 239 F.3d 882, 885 (7th Cir.2001).

A. Applicability of McCollum and Zorach

To begin, the core of defendant's objection challenges the validity of the Supreme Court's holdings on standing in McCollum and Zorach. Defendant rightly notes that the court's language dealing with standing in those two cases is minimal. In McCollum, the court merely states, at the beginning of its opinion, that "[a] second ground for the [school board's] motion to dismiss is that the appellant lacks standing to maintain the action, a ground which is also without merit." McCollum, 333 U.S. at 206, 68 S.Ct. 461 (citing Coleman v. Miller, 307 U.S. 433, 443, 445, 464, 59 S.Ct. 972, 83 L.Ed. 1385 (1939)). In Zorach, the court limited its discussion of the issue to a footnote, stating: "No problem of this Court's jurisdiction is posed in this case since, unlike the appellants in Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96...