Sherman v. Community Consol. School Dist. 21

• Decision Date: 12 May 1989
• Docket Number: No. 88 C 9205.,88 C 9205.
• Citation: 714 F. Supp. 932
• Parties: Robert SHERMAN, for himself and as natural guardian for his son, Richard Sherman, and the Society of Separationists, Inc., Plaintiffs, v. COMMUNITY CONSOLIDATED SCHOOL DISTRICT 21 OF WHEELING TOWNSHIP, School District Superintendent Lloyd Descarpentrie, and Principal Ferne Garrett, Defendants.
• Court: U.S. District Court — Northern District of Illinois

714 F. Supp. 932

Robert SHERMAN, for himself and as natural guardian for his son, Richard Sherman, and the Society of Separationists, Inc., Plaintiffs,

v.

COMMUNITY CONSOLIDATED SCHOOL DISTRICT 21 OF WHEELING TOWNSHIP, School District Superintendent Lloyd Descarpentrie, and Principal Ferne Garrett, Defendants.

No. 88 C 9205.

United States District Court, N.D. Illinois, E.D.

May 12, 1989.

MEMORANDUM OPINION AND ORDER

ANN C. WILLIAMS, District Judge.

The plaintiffs Robert Sherman, for himself and as natural guardian for his son, Richard Sherman, and the Society of Separationists, Inc. bring this complaint pursuant to 42 U.S.C. § 1983 alleging that the defendants Community Consolidated School District 21 of Wheeling Township, School District Superintendant Lloyd Descarpentrie, and Principal Ferne Garrett violated their rights under the First and Fourteenth Amendments. The plaintiffs also challenge the constitutionality of Ill.Rev.Stat. ch. 122, ¶ 27-3 (1980). The defendants move to dismiss the plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The defendants' motion is denied for the following reasons.

I

Rule 12(b)(6)

When ruling on this motion, pursuant to Federal Rule of Civil Procedure 12(b)(6), the court will "take the allegations in the complaint to be true and view them, along with the reasonable inferences to be drawn from them, in the light most favorable to the plaintiffs." Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir.1985), cert. denied, 475 U.S. 1047, 106 S.Ct. 1265, 89 L.Ed.2d 574 (1986). A complaint should be dismissed only when "it appears beyond doubt that the plaintiff is unable to prove any set of facts which would entitle plaintiff to relief." Id. In addition, a "court must construe pro se pleadings liberally, and mere vagueness or lack of detail does not constitute sufficient grounds for a motion to dismiss."¹ Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir.1985); Cain v. Lane, 857 F.2d 1139, 1142 (7th Cir.1988) (pro se complaints must be read liberally). Finally, the court notes that "in `complex cases involving fundamental rights and important questions of public policy, such peremptory treatment as dismissal is rarely appropriate.'" DeMallory v. Cullen, 855 F.2d 442, 445 (7th Cir. 1988), quoting Rutan v. Republican Party of Illinois, 848 F.2d 1396, 1414 (7th Cir. 1988) (Ripple, J., concurring in part, dissenting in part).

II Facts

The pertinent facts as alleged in the complaint are as follows. Richard Sherman is a first grade student at James Whitcomb Riley Public Elementary School. At 9:05 a.m. Principal Garrett "addresses all classrooms on an intercom system telling them to:

Please rise for the all-school pledge. I pledge allegiance to the flag of the United States of America and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all.

Richard is publically asked to stand, put one hand over his heart, and perform this ceremony. Complaint, ¶ 5. The Shermans, who are practicing atheists, are members of the Society of Separationists. The Society is a Maryland corporation licensed to do business in Illinois. The Society "has played a historical role in Church/State separation, government-coerced observances and other United States Constitutional issues for many years." Id. at ¶ 4.

III Standing

The defendants move to dismiss the complaint on a variety of grounds. The defendants first contend that the Society does not have standing to pursue this action as a party plaintiff on its own behalf.² They are correct. The Society itself is not in a position to assert those rights, claimed to be constitutionally protected, which the statute curtails. Cf. N.A.A.C.P. v. Button, 371 U.S. 415, 428, 83 S.Ct. 328, 335, 9 L.Ed.2d 405 (1963). The Society, therefore, does not suffer the actual or threatened injury required to make out a case or controversy between itself and the defendants within the meaning of Article III. See Valley Forge Christian College v. Americans United For Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982); FMC Corp. v. Boesky, 852 F.2d 981, 987 (7th Cir.1988). However, the above conclusion does not foreclose the possibility that the Society may be able to bring suit on behalf of its members injured by the challenged conduct. The Society may bring suit on behalf of its members if

(a) its membership would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977); Freedom From Religion Foundation, Inc. v. Zielke, 845 F.2d 1463, 1467 (7th Cir. 1988).

Given the bare bones nature of the complaint, the court is unable to determine whether the Society has standing to pursue claims on behalf of its membership at this juncture. While it is clear that at least two members of the Society, the Shermans, would have standing to sue in their own right,³ they are already doing so. It is not clear whether any other Society members would have standing to sue as a consequence of suffering actual or threatened injuries. Cf. O'Hair v. White, 675 F.2d 680, 691 (5th Cir.1982) (Society has standing to sue under a claim where every member suffers an individual injury to a fundamental right). In addition, the plaintiffs request, among other things, damages for mental distress and humiliation and punitive damages. This type of relief requires the participation of the individuals who have been harmed. See Hunt, 432 U.S. at 333, 97 S.Ct. at 2434 (an association may properly pursue declaratory, injunctive, or some other form of prospective relief on behalf of its membership). The plaintiffs will be given twenty-one (21) days from the entry of this order to conform their complaint to this court's ruling. The Society is directed to supplement the amended complaint with factual allegations pertinent to the standing question. See Warth, 422 U.S. at 501, 95 S.Ct. at 2206. The court will determine whether the Society has standing to pursue this action on behalf of its members after the amended complaint is filed.

IV Establishment Clause

The plaintiffs contend that Ill.Rev. Stat. ch. 122, ¶ 27-3 violates the Establishment Clause of the First Amendment.⁴ The third clause of the statute provides that

The Pledge of Allegiance shall be recited each school day by pupils in elementary educational institutions supported or maintained in whole or in part by public funds.

Ill.Rev.Stat. ch. 122, ¶ 27-3. "The Establishment Clause ... does not depend upon any showing of direct government compulsion and is violated by the enactment of laws which establish an official religion whether these laws operate directly to coerce nonobserving individuals or not." Engel v. Vitale, 370 U.S. 421, 430, 82 S.Ct. 1261, 1267, 8 L.Ed.2d 601 (1962). In Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), the Supreme Court developed a "three-prong test to determine whether legislation comports with the Establishment Clause." Edwards v. Aguillard, 482 U.S. 578, 583, 107 S.Ct. 2573, 2577, 96 L.Ed.2d 510 (1987). The Lemon test is as follows:

First, the legislature must have adopted the law with a secular purpose. Second, the statute's principal or primary effect must be one that neither advances nor inhibits religion. Third, the statute must not result in an excessive entanglement of government with religion.

Id., quoting Lemon, 403 U.S. at 612-13, 91 S.Ct. at 2111. The state's action must satisfy each prong of the test. Id.

The court cannot apply the Lemon test when resolving this motion to dismiss because an application of the test would involve the court's consideration of matters outside of the pleadings. See, e.g., Edwards, 482 U.S. at 587, 107 S.Ct. at 2579 (legislative history is considered). However, the failure of the plaintiffs' Establishment Clause claim is all but a foregone conclusion. Several courts have expressly found that the Pledge of Allegiance may be recited in public schools without violating the Establishment Clause. See Lanner v. Wimmer, 662 F.2d 1349, 1354 (10th Cir. 1981) ("while public schools may conduct patriotic ceremonies such as the pledge of allegiance, they may not compel participation by children who object on free exercise grounds"); Smith v. Denny, 280 F.Supp. 651, 653-54 (E.D.Ca.1968), appeal dismissed, 417 F.2d 614 (9th Cir.1969); Gavin v. Peoples Natural Gas Co., 464 F.Supp. 622, 627 (W.D.Pa.1979), vacated on other grounds, 613 F.2d 482 (3d Cir.1980) (citing Smith). In Smith, the court characterized the Pledge as a "patriotic exercise containing ancillary references to God." Smith, 280 F.Supp. at 653.

Other courts have found that the inclusion of the phrase "In God We Trust" on coinage and currency does not violate the Establishment Clause. See Aronow v. United States, 432 F.2d 242, 243 (9th Cir. 1970); Hall v. Bradshaw, 630 F.2d 1018, 1022 (4th Cir.1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1480, 67 L.Ed.2d 613 (1981) ("References to the Deity in our ceremonies and our coinage and seals do not violate the Establishment Clause because they merely reflect this fact of our history and no longer have any potentially entangling theological significance.") In Aronow, the Ninth Circuit stated that

it is quite obvious that the national motto and slogan on coinage and currency `In God We Trust' has nothing whatsoever to do with the establishment of religion. Its use is of a patriotic or ceremonial character and bears no true resemblance to government sponsorship of a religious exercise.

Aronow, 432 F.2d at 243. Another court held that the singing of the National Anthem by public school children does not violate the Establishment...