Pounds v. Katy Indep. Sch. Dist.

Citation730 F.Supp.2d 636
Decision Date30 July 2010
Docket NumberCivil Action No. H-06-0527
PartiesBlake POUNDS, et al., Plaintiff, v. KATY INDEPENDENT SCHOOL DISTRICT, et al., Defendants.
CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas

Hiram S. Sasser, III, Plano, TX, James Michael Johnson, J. Michael Johnson, Alliance Defense Fund, Shreveport, LA, John Dixon Walker, Attorney at Law, The Woodlands, TX, William Charles Bundren, WM Charles Bundren & Associates, Frisco, TX, James Spencer, Akin Gump et al., Houston, TX, for Plaintiffs.

MEMORANDUM AND ORDER

LEE H. ROSENTHAL, District Judge.

This case again requires analysis of the delicate balance that public school administrators must strike between protecting the First Amendment right to free speech and avoiding endorsing religion in violation of the Establishment Clause. The many cases and the large body of literature on this set of issues demonstrate the lack of adequate guidance to enable teachers and principals to determine whether the decisions they make comply with constitutional standards.1 As this case demonstrates, decisions in such seemingly innocuous and benign activities as elementary school parties and fundraisers for elementary school art classes too often lead to protracted litigation.

The plaintiffs in this case are parents of students at Pattison Elementary School in the Katy Independent School District (the "KISD"), the remaining defendant. Since this case was filed in 2006, the claims have been steadily whittled down by this court's orders and the parties' agreements. On December 30, 2009, this court issued a Memorandum and Order addressing-on stipulated facts-the only two remaining claims. (Docket Entry No. 58). The first was an as-applied challenge to the time, place, and manner restrictions the schoolplaced on student-to-student distribution of nonschool literature, including religious literature, on the Pattison Elementary School campus. This court held that as a matter of law, the KISD's restrictions were constitutional. The second issue was the plaintiffs' challenge to the school's blacking out one of twelve preset messages on an order form sent home with the children as a fundraising project. The form allowed parents to order from a third-party vendor holiday cards featuring their child's artwork, accompanied by one of the preset messages. The only preset message the school blacked out was a quote from the New Testament. The other messages sounded more secular themes of the holiday season. The parties stipulated that the KISD blacked out this one message "because of its particular religious viewpoint" in an effort to "avoid violating the Establishment Clause." (Docket Entry No. 50, Ex. B at 4). This court granted summary judgment to the school district, finding that no violation of the Establishment Clause was presented. (Docket Entry No. 59).

The plaintiffs have moved for reconsideration of the second part of the December 30 opinion, on the holiday art-card order form. The plaintiffs do not dispute this court's conclusion as to the Establishment Clause but argue that they did not claim a violation of that Clause. Instead, the plaintiffs argue that the KISD's admitted viewpoint discrimination in blacking out the one explicitly religious message violated their First Amendment free speech rights and was not justified by the District's desire to avoid violating the Establishment Clause. (Docket Entry No. 60). The KISD has responded. (Docket Entry No. 61).

Based on a careful review of the reconsideration motion and response; the summary judgment motions, responses, and replies; the summary judgment record; and the applicable law, this court grants the plaintiffs' motion for reconsideration and analyzes the First Amendment claim. Having done so, this court concludes that the speech is subject to First Amendment review; that the admitted viewpoint discrimination violated the First Amendment; and the asserted justification-avoiding a possible violation of the Establishment Clause-does not absolve the constitutional violation. The plaintiffs are ordered to submit an amended final judgment no later than August 20, 2010. The reasons for this ruling are explained below.

I. The Summary Judgment Record

To raise funds to buy supplies for art classes, Pattison Elementary made student artwork available for parents and friends to purchase as "art holiday cards" through a company called "Its My Artwork" (sic). The KISD sent the company's order form, with the name "Pattison Elementary" and the names of the art teachers written at the top, home with the children. The parents completed the form and wrote a check to Pattison Elementary to order cards. The completed cards had nothing that indicated any connection to the school or the KISD. The cards were intended to be sent by the parents to whomever they chose, not by the school.

The parties stipulated to the following facts:

• As part of the card ordering process, the students created their own artwork. The students['] own expression and artwork was printed in the holiday cards so that the students created personalized holiday cards. Various messages were available on the order from for the students to choose to accompany their personalized holiday artwork expression.
• The fundraiser was sponsored by Pattison Elementary.
• The purpose of the fundraiser was to raise money to purchase additional supplies for art class.
• The blacked out box ("Box F") on the fundraiser order form originally read "And she shall bring forth a son, and thou shalt call his name Jesus; for He shall save his people from their sins.-Matthew 1:21."
• The District blacked out Block F because of its particular religious viewpoint. School officials blacked out Box F because it was the only box that referenced a specific deity and a specific religious quote from a religious book, and the District was trying to avoid violating the Establishment Clause.

( Id., Ex. B at 4).

The company-supplied order form with Box F redacted is part of the record. At the top are three blank lines. "Pattison Elem." is handwritten in the line marked "School/Organization." The line for "Artist's name" is blank. Under "Teacher/Other contact," someone wrote by hand the names "Jennifer Walker" and "Sandy Hill," who were Pattison Elementary's art teachers. ( Id., Ex. K). The order form contains text stating in part: "This year we are taking orders for Note Cards, Holiday Cards, and Bookmarkers as part of our annual fundraising activities. Its My Artwork (sic) will make these unique items from this child's personal artwork." ( Id., Ex. K (emphasis removed)). The URL for the company's website is included. Checks were to be made payable to "your school or organization." ( Id.). The vendor, Its My Artwork, apparently provided this service to many schools and organizations, using the same form with the same preset text.2

After the KISD marked through the Box F message, the preset messages from which the purchaser could choose were:

• Wishing you a Merry Christmas and a Happy New Year
• Peace on Earth/Let it begin in our hearts.
• May your holiday spirit last forever. Happy Holidays!
• The gift of love-the gift of peace-the gift of happiness. May these be yours at Christmas.
• Christmas is for children! Fortunately there's a little child in all of us! Have a very Merry Christmas
• May the lights of Chanukah/Fill your home with joy!
• Happy Chanukah
• Happy Chanukah! May the peace and joy of the season be with you and yours.
Feliz Navidad y Prospero Año Nuevo
• May the ancestors bless you with a deep sense of heritage; Best Wishes for Kwanzaa
• Happy Kwanzaa/Celebrate Family, Community and Culture

( Id.).

Both parties moved for summary judgment on the constitutionality of theschool's decision to black out Box F. This court granted the KISD's motion and denied the plaintiffs' motion on that issue, finding no Establishment Clause violation. The plaintiffs have moved for reconsideration, (Docket Entry No. 60), and the KISD has responded, (Docket Entry No. 61). The plaintiffs' motion for reconsideration argues that the proper analysis is under the First Amendment free speech clause, and challenges the very brief statement in footnote 9 of the December 30, 2009 Memorandum and Order that the art card order forms were government speech, not private speech.

The parties' briefing on the reconsideration motion has sharpened the issues implicated by art card fundraiser. The plaintiffs contend that the art-card program is private speech, not government speech or school-sponsored speech governed by Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988). The KISD urges this court to focus on the order form and hold that it was government speech. Neither party argues that Hazelwood readily or fully applies to this case but they disagree as to whether Hazelwood would permit the school's decision to black out Box F. Finally, the parties dispute whether a government interest in avoiding an Establishment Clause violation can justify restricting speech on the basis of the viewpoint it expresses and, if so, whether such a justification was present here. These issues are analyzed below.

II. The Legal Standard
A. Motions for Reconsideration

The Federal Rules of Civil Procedure do not specifically provide for motions for reconsideration. Shepherd v. International Paper Co., 372 F.3d 326, 328 (5th Cir.2004); see also St. Paul Mercury Ins. Co. v. Fair Grounds Corp., 123 F.3d 336, 339 (5th Cir.1997). Reconsideration motions are generally analyzed under the standards for a motion to alter or amend judgment under Rule 59(e) or a motion for relief from a judgment or order under Rule 60(b). Hamilton Plaintiffs v. Williams Plaintiffs, 147 F.3d 367, 371 n. 10 (5th Cir.1998). Rule 59(e) governs when the reconsideration motion is filed within 28 days of the challenged order or when the motion seeks reconsideration of an interlocutory order. Steadfast Ins. Co. v. SMX 98, Inc., No. 06-2736, 2009 WL 3190452 (S.D.Tex. ...

To continue reading

Request your trial
7 cases
  • Morgan v. Swanson
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 27 Septiembre 2011
    ...the First Amendment. See Morgan v. Plano Indep. Sch. Dist., 589 F.3d 740, 745 (5th Cir. 2009) ; see also Pounds v. Katy Indep. Sch. Dist., 730 F. Supp. 2d 636, 639 (S.D. Tex. 2010) (rejecting a school's effort to remove a religious Christmas card option from the choices available to element......
  • Morgan v. Swanson
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 29 Septiembre 2011
    ...by the First Amendment. See Morgan v. Plano Indep. Sch. Dist., 589 F.3d 740, 745 (5th Cir.2009); see also Pounds v. Katy Indep. Sch. Dist., 730 F.Supp.2d 636, 639 (S.D.Tex.2010) (rejecting a school's effort to remove a religious Christmas card option from the choices available to elementary......
  • Matthews ex rel. M.M. v. Kountze Indep. Sch. Dist., 14–0453
    • United States
    • Texas Supreme Court
    • 29 Enero 2016
    ...this point).• An elementary school in Katy allowed parents to purchase student artwork as "holiday cards." Pounds v. Katy Indep. Sch. Dist., 730 F.Supp.2d 636, 639–40 (S.D.Tex.2010). Citing Establishment Clause concerns, school officials blacked out the only card on the order form referenci......
  • BMC Software, Inc. v. Int'l Bus. Machs. Corp.
    • United States
    • U.S. District Court — Southern District of Texas
    • 9 Agosto 2022
    ... ... e.g. , Pounds v. Katy Indep. Sch. Dist. , 730 ... F.Supp.2d 636, ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT