Morgan v. Plano Independent School Dist., 4:04cv447.
| Decision Date | 31 March 2009 |
| Docket Number | No. 4:04cv447.,4:04cv447. |
| Citation | 612 F.Supp.2d 750 |
| Parties | Jonathan MORGAN, et al., Plaintiffs, v. The PLANO INDEPENDENT SCHOOL DISTRICT, Lynn Swanson, individually and as principal of Thomas Elementary School, Lisa Long, individually and as principal of Wells Elementary School, Suzie Snyder, individually, Jaclyn T. Bomchill (a/k/a Jackie Bomchill), individually and as principal of Rasor Elementary School, John Beasley, individually, Carole Greisdorf, individually and as the Assistant Superintendent of the Plano Independent School District, and Doug Otto, individually and as the Superintendent of Plano Independent School District, Defendants. |
| Court | U.S. District Court — Eastern District of Texas |
Wm. Charles Bundren, Wm. Charles Bundren & Associates, Frisco, TX, Clyde Moody Siebman, Siebman Reynolds Burg & Phillips LLP, Sherman, TX, Hiram Stanley Sasser, III, Kelly Shackelford, Piano, TX, for Plaintiffs.
Charles Joseph Crawford, Richard Mercer Abernathy, Abernathy Roeder Boyd & Joplin, McKinney, TX, Thomas Phillip Brandt, Joshua Alan Skinner, Fanning Harper Martinson Brandt & Kutchin PC, Dallas, TX, Christopher Blewer Gilbert, Thompson & Horton LLP, Houston, TX, Jeffrey Carl Mateer, Lamberth Mateer, Rockwall, TX, for Defendants.
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in this action, this matter having been referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636. On February 27, 2009, the report of the Magistrate Judge was entered, containing proposed findings of fact and recommendations that Defendants' Motion to Dismiss based on Qualified Immunity (Dkt. 173) should be DNIED as to both Defendants Swanson and Bomchill.
The court, having made a de novo review of the objections raised by both the moving-Defendants (Dkt. 231) the non-moving Defendants (Dkt. 232), as well as Plaintiffs' responses (Dkts. 233 & 234) is of the opinion that the findings and conclusions of the Magistrate Judge are correct, and the objections are without merit. Therefore, the court hereby adopts the findings and conclusions of the Magistrate Judge as the findings and conclusions of this court, and Defendants' Motion to Dismiss based on Qualified Immunity (Dkt. 173) is DENIED.
IT IS SO ORDERED.
REPORT AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Defendants Lynn Swanson and Jackie Bomchill have filed a Motion to Dismiss based on Qualified Immunity (Dkt. 173). As fully set forth below, the Court recommends that the motion be DENIED.
Swanson was a principal at Thomas Elementary School in Plano, Texas from 2001-2003. The Wade and Morgan plaintiffs allege that Swanson practiced viewpoint discrimination by prohibiting the distribution of religious items at various "winter break" parties.1 The offending items included candy cane-shaped pens with an attached message regarding the religious origin of the candy cane. Other items prohibited were pencils with the message, "Jesus is the Reason for the Season."
Bomchill is a former principal at Rasor Elementary in Plano. Plaintiff Versher claims that Bomchill prevented her from distributing tickets to a religious drama at a local church. Versher also claims her "half-birthday" party celebration was dampened by Bomchill's prohibition of distribution of religious items both in the school cafeteria and on school property after class hours.
Rule 12(b)(6) provides that a party may move for dismissal of an action for failure to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). The Court must accept as true all wellpleaded facts contained in the plaintiffs complaint and view them in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.1996). In addition, all reasonable inferences are to be drawn in favor of the plaintiffs claims. Lowrey v. Texas A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir.1997). Dismissal for failure to state a claim does not require, however, an appearance that, beyond a doubt, the plaintiff can prove no set of facts in support of claim that would entitle him to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1968, 167 L.Ed.2d 929 (2007). Rather, to survive a 12(b)(6) motion to dismiss, a plaintiff must show, after adequately stating his claim, that it may be supported some set of facts consistent with the allegations in the complaint. Id.
The issue as to whether these two individuals enjoy qualified immunity mandates a two-step analysis. First, it must be determined whether a constitutional right has been violated on the facts alleged. McClendon v. City of Columbia, 305 F.3d 314, 322-23 (5th Cir.2002) (en banc). If so, the next inquiry is whether the right was clearly established. Ultimately, the individuals are entitled to qualified immunity if their conduct was objectively reasonable in light of the legal rules that were clearly established at the time of their actions. Id. at 323. Therefore, Defendants' conduct is examined as alleged in the complaint. Id.
Plaintiffs allege that the actions of Defendants here violate their rights to free speech, free exercise of religion, and violate the Establishment Clause. Public officials acting within the scope of their official duties enjoy the protection of qualified immunity to the extent their conduct does not violate clearly established constitutional rights. Chiu v. Plano Indep. Sch. Dist, 339 F.3d 273, 279 (5th Cir.2003).
As a preliminary matter, the Court notes that it has already ruled on Swanson's Motion to Dismiss. The motion was denied (see Dkt. 151). Although Swanson alleges that this Motion addresses the Second Amended Complaint, nothing new is presented except Swanson's novel and specious argument that elementary students have no constitutional rights in the area of free speech. The Court has examined its prior reasoning as to Swanson and finds absolutely no reason to change its ruling as to Swanson. Therefore, in light of its prior ruling, Swanson's motion to dismiss should be DENIED.
This leaves for the Court the resolution of Defendants' motion to dismiss as to Jackie Bomchill. Defendants, without hesitation, assert that the United States Constitution does not prohibit viewpoint discrimination against religious speech in elementary schools. Or, conversely, under Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988), schools are free to practice religious viewpoint discrimination when elementary school children are involved.2 In support of this argument, Defendants assert that no Supreme Court or Fifth Circuit case has addressed this specific issue, and, relying on other non-binding circuit cases, request that the Court specifically adopt this premise. Without so much as a cite, Defendants also invoke the name of the founding fathers and assert that they would recoil at the notion that reading, writing, and arithmetic have given way to children determining what messages can be delivered. Of course, Defendants offer the Court no guidance on what course of action the founding fathers would have envisioned.3 As noted in footnote 3, reference to God in a colonial classroom would be a familiar refrain to the founding fathers, in no way meriting latter day constitutional reprobation. The Court finds no historical basis for Defendants' position in regard to the founding fathers.
Defendants also argue that there can be no constitutional violation, since prohibition of viewpoint discrimination has never been extended to the elementary school setting. This is not correct. In Good News Club v. Milford Cent. Sch., 533 U.S. 98, 115, 121 S.Ct. 2093, 2104, 150 L.Ed.2d 151 (2001), the Supreme Court specifically stated that private religious conduct during non-school hours was not foreclosed merely because it takes place on school premises where elementary school children may be present. Although Milford dealt with an after-hours program and not with conduct during school hours, the Court did not seem persuaded by the argument that elementary children should be treated differently.
Defendants rely on a recent decision from the Sixth Circuit. In Curry ex rel Curry v. Hensiner, 513 F.3d 570 (6th Cir. 2008), a fifth grade student participated in the school's Classroom City. The student and his mother came up with the idea of selling Christmas tree ornaments in the shape of candy canes. The student's father created cards explaining the religious significance of the candy cane. When the student's partner entrepreneur in the exercise learned that Curry was selling candy canes, he informed Curry that "(n)obody wants to hear about Jesus." As the Sixth Circuit notes, Curry's partner decided to make his own products for sale, "resulting in his (Curry's partner) bearing the burden of both constructing the storefront and making a product for sale." Curry, 513 F.3d at 575. Curry was permitted to sell the ornaments, but only without the attached card. The Court notes that Curry received an "A" for the exercise.4
The Court held that the Hazelwood standard applied, since Classroom City was a curriculum activity. As such, the Court held that school-sponsored speech is subject to greater control by school authorities than speech not so sponsored. Id. at 577 (citing Hazelwood, 484 U.S. at 271, 108 S.Ct. 562). The Sixth Circuit went on to observe that the school was within its right to prevent the sale of the candy cane product with the accompanying card to avoid subjecting young children to an unsolicited religious promotional message that might conflict with what they are taught at home, and as such, was a valid educational purpose. Id. at 579.
This Court does not read Curry as broadly as that advocated by the Defendants. Curry recognizes that, for...
To continue reading
Request your trial