M.B. ex rel. Martin v. Liverpool Central School

Decision Date30 March 2007
Docket NumberNo. 5:04-CV-1255.,5:04-CV-1255.
Citation487 F.Supp.2d 117
PartiesM.B., a minor child, by and through her mother and next friend Nicole MARTIN, Plaintiffs, v. LIVERPOOL CENTRAL SCHOOL DISTRICT, Defendant.
CourtU.S. District Court — Northern District of New York

Liberty Counsel, Maitland, FL (Mathew D. Stayer, of counsel), Liberty CounselVirginia Office, Lynchburg, VA (Erik W. Stanley, Rena M. Lindevaldsen, of counsel), for Plaintiffs.

Office of Frank W. Miller, East Syracuse, NY (Charles E. Symons, Frank W. Miller, of counsel), Evans Law Firm, Syracuse, NY (James P. Evans, of counsel), for Defendant.

MEMORANDUM-DECISION AND ORDER

MORDUE, Chief Judge.

I. INTRODUCTION

Plaintiff M.B., a minor, filed this action through her mother and next friend, plaintiff Nicole Martin ("plaintiffs"), against the Liverpool Central School District ("the District"), pursuant to 42 U.S.C. 1983. This action stems from the District's denial of M.B.'s request to distribute a "personal statement" flyer, concerning the impact Jesus Christ has had on her life, to some of her friends and classmates at Nate Perry Elementary School during non-instructional time. In the complaint, plaintiffs allege that the District's "actions and policy" violated M.B.'s First Amendment right to Freedom of Speech (First Cause of Action); the Equal Protection Clause under the Fourteenth Amendment (Second Cause of Action); and the Establishment Clause of the First Amendment (Third Cause of Action).

Presently before the Court are four motions: plaintiffs' motion for a preliminary injunction directing the District to allow M.B. to distribute her religious flyer (Dkt. no. 9); plaintiffs' motion to waive the posting of a security bond for any preliminary injunction (Dkt. no. 10); plaintiff's motion for summary judgment (Dkt. no. 23); and the. District's motion for summary judgment (Dkt. no. 25).

II. BACKGROUND

The facts in this case,1 unless otherwise noted, are undisputed. M.B., at the time of the filing of the motions for summary judgment, was a fifth grade student at Nate Perry Elementary School. In the Fall of 2003, while in third grade, M.B. handed out approximately 20 religious Halloween tracts to friends during lunchtime. One week later, M.B.'s teacher confronted M.B. with one of the Halloween tracts, and, after learning that M.B. had passed it out to her friends, M.B.'s teacher instructed her not to do so again, warning that she would "be in big trouble" if she did.

The following April, M.B.'s mother, Ms. Martin, gave M.B. tracts entitled "Cleo" and told M.B. she could bring them to school to give to her friends during recess or lunchtime. Cleo is a children's booklet that analogizes the recovery of a lost dog to Christian salvation, and had M.B.'s church's name stamped on the back. M.B. asked her teacher if it she could hand out the tracts. M.B.'s teacher asked to hold on to the tracts until lunch, but did not return them. Later that day, Ms. Martin received a telephone call from the school principal who stated that the District could not allow M.B. to promote her church to students, even during non-instructional time. The principal explained the District was concerned that if a student brought the tract home, the parents might assume that the District endorsed the tracts.

Ms. Martin testified that she met with the school principal the next day. The principal advised that M.B. would not be allowed to pass out the tracts. Ms. Martin inquired whether there was a school policy. The principal, who was new to the school, replied that she believed there was, but could not locate it. Ms. Martin told the principal that she was concerned that the District was violating M.B.'s free speech rights and right to express her religion. The principal responded that the District policy prohibited M.B. from passing out "this kind of thing" because of the separation between church and state. The principal also explained that because M.B.'s church's name was stamped on the back of the tract, it appeared that M.B. was trying to endorse her church to other students. Ms. Martin testified that she offered to provide tracts without the church's name stamped on the back, but that the principal responded "no, that's not even an issue." The principal advised Ms. Martin to contact the Superintendent of Elementary Education for more details.

The next day, Ms. Martin contacted the secretary to the Superintendent of Elementary Education, who referred her to Kevin Nuzzo, the Assistant to the Superintendent of the Liverpool Central School District. Ms. Martin contacted Mr. Nuzzo the following week, explained the situation, and asked whether there was a school policy regarding "kids passing things out at school." Mr. Nuzzo replied that there was and that he would make it available to her. Ms. Martin testified that they talked about the "freedom of speech aspect" and that she suggested Mr. Nuzzo contact counsel to discuss this issue.

Ms. Martin testified that on or about April 23, 2004, she received a copy of the District's policy on the distribution of materials and a letter from Mr. Nuzzo dated April 20, 2004. The letter stated:

This letter will address your inquiry regarding your daughter's request to distribute certain religious material during lunch at Nate Perry Elementary School. As I indicated to you during our recent conversations, the District has a policy that addresses requests to distribute material in its schools. That Policy (No.: KFA-r) states, in relevant part:

Requests for school assistance with the distribution of literature which is not primarily of a proprietary nature and which may address student needs and/or interests shall be forwarded to the Assistant to the Superintendent of Schools with a copy of the item to be distributed not later than one week prior to the intended distribution date.

It requires the Assistant to the Super-intendent of Schools to review the literature and to advise the building principal and requester of the decision. If the requester wishes, it may appeal the determination to the Superintendent of Schools. I had offered to provide you with this policy earlier, and I enclose it now for your review.

I had also asked the District's counsel to consider this issue, setting aside the applicable policy. I am enclosing a copy of the letter that counsel provided in this regard.2 I would be happy to discuss the issue with you further, if you like, but I am not in a position to supplement or detract from counsel's opinion.

Verified Complaint, Ex. B. The policy, "KFA-r", which refers to "School-Community Relations" and "Special Interest Materials" provides:

Requests for school participation in the distribution of literature which is primarily of a proprietary nature and serving no school purpose, shall be denied.

Requests for school assistance with the distribution of literature which is not primarily of a proprietary nature and which may address students [sic] needs and/or interests shall be forwarded to the Assistant to the Superintendent of Schools with a copy of the time to be distributed not later than one week prior to the intended distribution date. Such requests shall include the name of the organization requesting permission to distribute literature and the designation of the intended recipients.

The Assistant to the Superintendent shall review the request to distribute literature to students. If authorization is granted, the Assistant to the Superintendent shall so inform building principals and the requester. If authorization is not granted, the Assistant to the. Superintendent shall advise the requester. The decision of the Assistant to the Superintendent may be appealed to the Superintendent of Schools whose decision shall be final.

Upon receipt of approval, the distributor shall bundle the literature to be distributed in bundles of thirty and deliver the bundles in appropriate quantity to the schools riot later than the day before the intended distribution to students. Distribution on the day requested is not guaranteed.

In an affidavit, Mr. Nuzzo explained the reasoning behind the policy:

As to the policy regarding the distribution of flyers from non-profit community based organizations, we have adopted this rule to' allow for the orderly distribution of these materials from community based groups. The student is not directly involved in the distribution. Often, however, the teachers distribute the flyers to each of the students in the classes on an equal basis. There is no individualized selection.

The materials in question are all examined by me, in advance, to ensure that they are appropriate flyers, containing no inappropriate language, or improper content. By allowing a routine, established distribution in class through the teacher, we avoid unnecessary con, troversy among students and also avoid a problem of the students throwing the materials away and creating litter. The students are expected to take these flyers home in their backpacks and present the materials to the parents. We do not permit, or allow, solicitation of students by these community based organizations within the school.

Nuzzo Aff. ¶ ¶ 10-11. Examples of flyers approved for distribution include flyers advertising Syracuse Children's Theathre classes and presentation of "the Dragonslayer", "Liverpool Central School. District Day with the SkyChiefs" baseball team, The Liverpool Village Merchants Village Historical Halloween Festival, and Christmas Calendar, "Laughing with US: Comedy and Disability Kids' CartoonFest", Town of Salina Winter Recess Activities, and The Golfers Dome Junior Golf Club Open House. Superintendent Matousek and Mr. Nuzzo testified that these flyers were approved because they bore some connection to school/community relations, furthered the District's goal of assisting families in providing activities so...

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