J.S. v. Holly Area Sch.

• Decision Date: 26 October 2010
• Docket Number: Case No. 09–14225.
• Citation: J.S. v. Holly Area Sch., 749 F.Supp.2d 614 (E.D. Mich. 2010)
• Parties: J.S., a minor, by his Next Friend, Katharine Smith, and Katharine Smith, Plaintiffs,v.HOLLY AREA SCHOOLS, Tony Mayhew, and Kent Barnes, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

749 F.Supp.2d 614

J.S., a minor, by his Next Friend, Katharine Smith, and Katharine Smith, Plaintiffs,

v.HOLLY AREA SCHOOLS, Tony Mayhew, and Kent Barnes, Defendants.

Case No. 09–14225.

United States District Court, E.D. Michigan, Southern Division.

Oct. 26, 2010.

David A. Cortman, Alliance Defense Fund, Lawrenceville, GA, Joel J. Kirkpatrick, Kirkpatrick Law Offices, Farmington Hills, MI, for Plaintiffs.John L. Miller, Timothy J. Mullins, Giarmarco, Mullins & Horton, P.C., Troy, MI, for Defendants.

OPINION AND ORDER REGARDING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

GERALD E. ROSEN, Chief Judge.

I. INTRODUCTION

Plaintiff Katharine Smith, individually and as next friend and mother of Plaintiff J.S., a grade school student, commenced this action in this Court on October 28, 2009, challenging the constitutionality of Defendant Holly Area Schools' policies regarding the distribution of religious materials by students and parents. The president of the Holly School Board, Tony Mayhew, and the superintendent of the Holly Area Schools, Kent Barnes, also have been named as Defendants. Plaintiffs' claims rest principally upon allegations that Defendants engaged in impermissible viewpoint discrimination by preventing Plaintiff J.S. and his mother from distributing invitations or flyers promoting religious activities at any time or in any place or manner during the school day.

Through the present motion, filed on March 22, 2010, Plaintiffs seek preliminary injunctive relief as to three aspects of the Defendant school district's policies regarding the distribution of materials. First, Plaintiffs request that Defendants be preliminarily enjoined from preventing J.S. from distributing religious flyers to fellow students during non-instructional time. Next, Plaintiffs seek an order granting Mrs. Smith access to a so-called “flyer forum,” through which outside organizations submit flyers to the school for distribution to students. Finally, Plaintiffs request that the Court declare a Holly Area Schools policy, Policy 9370, unconstitutional on its face.

On July 30, 2010, the Court held a hearing on Plaintiffs' motion. As discussed below, it became evident from the parties' briefing on this motion, as well as through the statements of counsel at the July 30 hearing, that certain aspects of Plaintiffs' request for preliminary injunctive relief may have been mooted or otherwise affected by subsequent developments—including, most prominently, the Defendant school district's purported decision to close its “flyer forum.” Accordingly, the Court held Plaintiffs' motion in abeyance, and invited the parties to negotiate an amicable resolution to their remaining disputes. The parties have since reported, however, that they were unable to resolve their differences, and they have submitted proposed findings of facts and conclusions of law as to the matters that remain for the Court's determination.

Having reviewed the parties' briefs in support of and opposition to Plaintiffs' motion, as well as the parties' post-hearing submissions, the Court is now prepared to decide the aspects of Plaintiffs' motion that remain in dispute. This opinion sets forth the Court's rulings on these matters.

II. FACTUAL BACKGROUND

A. The Parties

At the time of the initial incidents giving rise to this suit, Plaintiff J.S. was a second grade student at Patterson Elementary School, a public school operated by the Defendant Holly Area Schools. Plaintiff Katharine Smith is J.S.'s mother. In the brief in support of their present motion, Plaintiffs describe themselves as “Bible-believing Christians who, pursuant to their sincerely held religious beliefs, desire to share their faith with Patterson students and their parents.” (Plaintiffs' Motion, Br. in Support at 4.)

Apart from the Defendant school district, Plaintiffs have named two district officials as Defendants. First, Defendant Tony Mayhew is the president of the Defendant district's school board, and he has been named in his official capacity only. Next, Defendant Kent Barnes is the superintendent of the Defendant Holly Area Schools, and he has been named in both his official and individual capacities.

B. J.S.'s Attempt to Give Sealed Invitations to His Classmates

The first incident giving rise to this suit occurred in June 2009, when Plaintiff J.S. brought 25 sealed envelopes to school and attempted to distribute them to his classmates. These sealed envelopes contained invitations to a youth summer camp held at Cornerstone Church, a church attended by Plaintiffs and located in Highland, Michigan. ( See Plaintiffs' Motion, Ex. 3.) Along with flyers that briefly summarized this summer camp, Mrs. Smith enclosed a letter to parents in each envelope in which she described the camp in greater detail, recounted how much her children had enjoyed the camp in the past, and invited parents to contact her for further information. ( See id.) ¹

J.S. gave one of these envelopes to a classmate in the school hallway before class began. He then brought the remaining envelopes into his second grade classroom, and began placing them in “cubbyholes” that served as receptacles for distributing class and other materials to each student. Upon learning of this and being advised by J.S. that the envelopes contained invitations to a church function, J.S.'s teacher, Ms. King, ordered the child to stop distributing the flyers, removed the envelopes J.S. had already placed into the student cubbyholes, and told J.S. to return these envelopes to his backpack. According to the complaint, Ms. King advised J.S. that “anything that comes from a church cannot be distributed at all at school.” (Complaint at ¶ 65.)

C. Mrs. Smith's Communications with School Officials

After this incident in June of 2009, Mrs. Smith called the school principal, Dennis Inhulsen, and provided him with a copy of the materials that her son had sought to distribute to his classmates.² According to Mrs. Smith, the principal informed her “that J.S. could not hand out the invitation, or any other religious materials, in the hallways, cafeteria, or school grounds.” (Plaintiffs' Motion, Ex. 1, Katharine Smith Decl. at ¶ 9.)

During this discussion, Mr. Inhulsen described to Mrs. Smith the school's usual procedure for allowing outside individuals or groups to distribute materials to schoolchildren.³ According to Mrs. Smith, Mr. Inhulsen advised her that such an outside group or individual must first seek approval from his office. Once this approval was obtained, the materials would be forwarded to the teachers, who in turn would place the materials in the students' cubbyholes to be brought home at the end of the school day.⁴ When Mrs. Smith asked the principal to approve the distribution of the invitation to her church's youth summer camp through this “flyer forum,” Mr. Inhulsen responded that “this would not be possible because district policy prohibits the distribution of religious materials to students.” (Katharine Smith Decl. at ¶ 13.)

Mrs. Smith continued to follow up on this matter in August of 2009, sending Mr. Inhulsen an e-mail in which she inquired whether either she or J.S. could distribute invitations at school during non-instructional time, or whether these invitations could somehow be distributed through the flyer forum. On August 25, 2009, the principal responded by e-mail, explaining that no such option was available:

I am writing in response to your inquiry regarding the distribution of religious materials to children. It is my understanding of our board policy and school law that children or adults are not to distribute religious materials at school .... As an alternative to flyer distribution in classrooms we offer a central place for materials in our lobby area that adults can choose to read. We ask that a statement be placed reading “Not associated with Holly Area Schools” and that all materials must be reviewed through my office. We must make sure that materials are appropriate.

(Plaintiffs' Motion, Ex. 4, Inhulsen 8/24/2009 E-mail.) ⁵ Mr. Inhulsen closed his e-mail by assuring Mrs. Smith that “[a]ll of our policies are determined within legal limits and we use legal consultation in the process.” ( Id.)

In his e-mail to Mrs. Smith, Mr. Inhulsen stated that any further concerns should be addressed to the school superintendent, Defendant Kent Barnes, and the school board. In accordance with this direction, Mrs. Smith sent an e-mail to Mr. Barnes on August 25, 2009, suggesting various non-disruptive means through which her son could distribute invitations or religious flyers to his classmates either in or outside the classroom, and explaining that she was “in no way trying to interfere with the education of the students or trying to disrupt any instructional time.” (Plaintiffs' Motion, Ex. 5, Katharine Smith 8/25/2009 E-mail.) The superintendent responded to Mrs. Smith in an e-mail sent the next day:

While I understand that you are not wanting to disrupt the educational process, the fact remains that your child cannot distribute religious materials in the classroom. No other resolution exists. If he wants to verbally invite someone to your church or another activity during recess or on the bus, your child can do so. Please understand that classmates may not choose to listen to the invitation. If you wish to mail materials to other families, you most assuredly can do so. Distributing religious invitations/materials/explanations within the elementary school day is not appropriate. I contacted our legal firm as well to ensure my understanding is correct, and they agreed. It is not a matter of whether your child is standing or sitting in the classroom, hallway, or cafeteria. Simply stated, your request for your child to distribute religious materials/invitations to the classmates cannot be implemented.

Please note that flyers can be put in the office as other flyers, not throughout the building.

(Plaintiffs' Motion, Ex. 6, Barnes 8/26/200...