HARLESS BY HARLESS v. Darr

• Decision Date: 27 February 1996
• Docket Number: No. IP 94-498-C-T/G.,IP 94-498-C-T/G.
• Citation: 937 F. Supp. 1339
• Parties: Bryan HARLESS by his parent and natural guardian William HARLESS, Plaintiffs, v. Linda DARR, individually and in her official capacity as a teacher for the Franklin Township Community School Corporation, et al., Defendants.
• Court: U.S. District Court — Southern District of Indiana

937 F. Supp. 1339

Bryan HARLESS by his parent and natural guardian William HARLESS, Plaintiffs, v. Linda DARR, individually and in her official capacity as a teacher for the Franklin Township Community School Corporation, et al., Defendants.

No. IP 94-498-C-T/G.

United States District Court, S.D. Indiana, Indianapolis Division.

February 27, 1996.

COPYRIGHT MATERIAL OMITTED

Edward S. Adams, Indianapolis, IN, for Plaintiffs.

David R. Day, Johnson Smith Pence Densborn Wright & Heath, Indianapolis, IN and John A. Kitley Jr., Beech Grove, IN, for Defendants.

ENTRY ON PARTIES' CROSS-MOTIONS FOR SUMMARY JUDGMENT

TINDER, District Judge.

This matter comes before the court on the Parties' Cross-Motions for Summary Judgment. For the reasons set forth below, the court will GRANT in part the motion for summary judgment. As set out below and in its Notice of Briefing Schedule, the court orders additional briefing on the issue of whether Franklin Township Community School Corporation's current policy on distributing literature ("the current policy") constitutes a prior restraint under the First Amendment of the United States Constitution. The court defers its disposition of the Plaintiffs' state law claims pending resolution of the remaining federal claim. The Parties should note that final judgment, pursuant to FED.R.CIV.P. 58, will not be entered as to any claim in this case until resolution of the remaining claims.

I. BACKGROUND FACTS AND PROCEDURAL HISTORY

At the time that he filed this Complaint, Bryan Harless ("Bryan") was a first-grader at Adams Elementary School in the Franklin Township Community School Corporation ("Franklin.") Sometime in November, 1993, Bryan's teacher, Linda Darr, ("Darr"), learned that Bryan had been distributing religious tracts to other first-grade students in his class. Bryan had distributed the leaflets while the students were in their classroom, preparing to go to the lunch room. (Darr. Dep. at 5.) The lunch hour had not yet begun. (Id.) During the lunch hour, Darr consulted with Karen Schuldt, ("Schuldt"), the Principal of Adams Elementary School. Schuldt told Darr that as far as she knew, it was not okay for Bryan to distribute the leaflets, but that she would check into it. (Darr Dep. at 6.) After lunch, Darr explained to Bryan that he could not pass out the tracts, and she asked the first-graders to give the tracts back to Bryan. She then asked Bryan to put the tracts back into his school bag, which he did. (Darr Dep. at 6.) Schuldt then called Bryan into the hallway and "asked him not to pass out the literature." (Schuldt Dep. at 6.)

About two weeks later,¹ Bryan again passed out literature in the classroom at the same time, just before the lunch period. (Darr. Dep. at 10-11.) According to Darr, the children "had just had their restroom break ... and were coming into the classroom" where they "were getting ready to make the lunch line." (Darr Dep. at 11.) Darr testified that the children were not at break at this time, but were forming a lunch line, and that teachers "have certain expectations for listening and following directions" at this time. (Darr. Dep. at 11.) Darr testified that in neither instance did she consider Bryan's distributing the leaflets as "disruptive," though she said the leafletting "interrupted" the process of quieting the children and getting them into line. During this second incident, however, Darr said nothing to Bryan; she mentioned the incident to Schuldt.² Darr testified that Schuldt had instructed her to let Schuldt know if Bryan distributed literature, but that Schuldt did not advise her to take any other specific action if Darr observed Bryan distributing literature. (Darr Dep. at 15.) Schuldt testified that after this second incident, she called Bryan into her office and spoke with him about other ways in which he could "witness at school other than passing out Christian tracts...." (Schuldt Dep. at 8.)

On March 15, 1994, Bryan Harless filed this suit (by his father as next friend), naming as Defendants Franklin, Adams Elementary School,³ Darr, and Schuldt.⁴ Sometime after initiating this suit, Bryan again distributed religious tracts on the school bus. Schuldt again spoke with Bryan and asked him not to pass out tracts. (Schuldt Dep. at 20-23.) Schuldt never disciplined or sanctioned Bryan for passing out tracts at school or on the bus. (Schuldt Dep. at 22.) In May, 1994, Franklin adopted an official policy on distributing literature in schools.⁵ Following adoption of the policy, Bryan has distributed religious tracts in compliance with the policy without impediment. (Harless Dep. at 24.)

The Plaintiffs' Amended Complaint alleges that the Defendants abridged Bryan's rights of free speech and free exercise of religion under both the United States Constitution and the Constitution of the State of Indiana, and that the Defendants' actions violated the provisions of the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb et seq., and the provisions of 42 U.S.C. § 2000a-1 and 2000a-2, prohibiting discrimination on the basis of religion in public accommodations. The Plaintiffs challenge both the constitutionality of the current official policy, and the constitutionality of the Defendants' actions taken before Franklin adopted its official policy. The Plaintiffs seek damages, and declaratory and injunctive relief.

II. SUMMARY JUDGMENT STANDARD

The Seventh Circuit stated the standard for summary judgment in Howland v. Kilquist, 833 F.2d 639 (7th Cir.1987).

Fed.R.Civ.P. 56(c) provides that a district court shall grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." When the facts are disputed, the parties must produce proper documentary evidence to support their contentions, and may not rest on mere allegations in the pleadings, Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983), or upon conclusory statements in affidavits. First Commodity Traders v. Heinold Commodities, Inc., 766 F.2d 1007, 1011 (7th Cir.1985). In reviewing a grant of summary judgment, all reasonable inferences from the evidence presented must be drawn in favor of the opposing party. Matsushita Elecs. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).... The mere existence of a factual dispute will not bar summary judgment unless "the disputed fact is outcome determinative under governing law." Egger v. Phillips, 710 F.2d 292, 296 (7th Cir.) (en banc), cert. denied, 464 U.S. 918, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983).

Id. at 642.

The Supreme Court further clarified the scope of Federal Rule of Civil Procedure 56 in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In Celotex, the Court held that the initial burden is on the moving party to demonstrate "with or without affidavits" the absence of genuine issues of material fact and that, absent such material facts, judgment should be granted as a matter of law in the moving party's favor. 477 U.S. at 323, 106 S.Ct. at 2552-53. Once the moving party has met its burden, the opposing party must "go beyond the pleadings" and designate specific facts to support or defend each element of the claim, demonstrating a genuine issue for trial. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53; Becker v. Tenenbaum-Hill Assocs., Inc., 914 F.2d 107, 110 (7th Cir.1990). Not every factual dispute creates a barrier to summary judgment, "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.

Supplementing Rule 56, this district promulgated Local Rule 56.1 to establish procedures for summary judgment motions. Local Rule 56.1 requires the party moving for summary judgment to file a Statement of Material Facts and the party opposing the motion to file a Statement of Genuine Issues "setting forth ... all material facts as to which it is contended there exists a genuine issue necessary to be litigated." S.D.IND. L.R. 56.1. The effect of these requirements is apparent:

In determining the motion for summary judgment, the Court will assume that the facts as claimed and supported by admissible evidence by the moving party are admitted to exist without controversy, except to the extent that such facts are controverted in the "Statement of Genuine Issues" filed in opposition to the motion, as supported by the depositions, discovery responses, affidavits and other admissible evidence on file.

Id. Read together, Rule 56 and Local Rule 56.1 stand for the proposition that if the party opposing summary judgment fails to demonstrate the existence of a genuine issue of material fact, the facts offered by the movant, and contained in the record, are the basis of the summary judgment decision.

In this case, the Defendants have filed a statement of material facts pursuant to Local Rule 56.1. In response to Defendants' motion for summary judgment, the Plaintiffs filed an opposition brief, but Plaintiffs failed to provide the court with a Statement of Genuine Issues as required by the Local Rules. The consequence is that "the Court will assume that the facts as claimed and supported by admissible evidence by the moving party are admitted to exist without controversy...." S.D.Inc.L.R. 56.1. See Little v. Cox's Supermarkets, 71 F.3d 637, 640 (7th Cir.1995) (discussing application of Local Rule 56.1.)

III. DISCUSSION

A. Constitutionality of Current Official Policy

1. Free Speech Clause

The...