Shumway v. Albany County School Dist. No. One
| Decision Date | 09 June 1993 |
| Docket Number | No. 93-CV-0153J.,93-CV-0153J. |
| Citation | 826 F. Supp. 1320 |
| Parties | Joe SHUMWAY, Joe Shumway as next friend for Samuel Shumway, James Hollon, James Hollon and Jane Hollon as next friends for Annie Hollon, Jerry Johnson, Jerry Johnson as next friend for Chariti Johnson, Duane King, and Katrina King, Plaintiffs, v. The ALBANY COUNTY SCHOOL DISTRICT NO. ONE BOARD OF EDUCATION, Head, Superintendent, Albany County School District No. One and Charles Ksir, Jim Kyritsis, Randy Anderson, Susan McCormack, Cheryl Schroeder, Mary Burman, Debbie Emerson, Robin Kempert, and Clarence Unruh, members of Albany County School District No. One Board of Education, Defendants. |
| Court | U.S. District Court — District of Wyoming |
Frederic C. Reed, Cheyenne, WY, Tracy L. Winn, Nat. Legal Foundation, Virginia Beach, VI, for plaintiffs.
Yvonne Wade Nagel, Horace M. MacMillan, II, Becky N. Klemt, Paul D. Schierer, Pence & MacMillan, Laramie, WY, for defendants.
The plaintiffs' Motion for Preliminary Injunction came on for hearing on May 25, 1993. The Court, having considered the motion and the opposition filed thereto, the arguments of counsel, and being fully advised in the premises, FINDS and ORDERS as follows:
Background
The complaint filed by the plaintiffs in this case asserts claims for violation of plaintiffs' civil rights by the Albany County School District No. One Board of Education, pursuant to 42 U.S.C. § 1983.1 Plaintiffs seek declaratory and injunctive relief against the Board's discriminatory exclusion of a group of graduating seniors and parents of graduating seniors of Laramie High School from public facilities, contrary to the Board's policy of free and open access providing for the use of such facilities by the public. Plaintiffs allege the Board refused to permit a group of parents and graduating seniors to rent the Laramie High gymnasium for a baccalaureate ceremony on May 27, 1993. The baccalaureate ceremony to be held by plaintiffs was to be privately sponsored, open to the public and completely unrelated to any school or state activities. Participation in the baccalaureate ceremony by graduating students was to be completely voluntary.
Plaintiffs contend they were given verbal approval to use the high school gymnasium for their privately sponsored baccalaureate ceremony. The record before the Court also reflects that a facility use request, dated February 4, 1993, for use of the gymnasium was prepared by the assistant principal at Laramie High School. Plaintiffs' Exhibit 3. After receiving verbal authorization for use of the gymnasium, senior class officers contacted Jostens, the company printing the graduation announcements for 1993, to add the baccalaureate ceremony to the graduation announcement, advising of the place, date and time for the baccalaureate ceremony. The addition to the graduation announcement also stated that the baccalaureate ceremony was "sponsored by the community." No separate announcement was prepared for the baccalaureate ceremony.
Subsequently, the Board decided not to rent the gymnasium to the group requesting its use for the baccalaureate ceremony. The Board's decision was based upon an informal letter opinion, dated March 22, 1993, prepared by the Wyoming Attorney General's office and directed to the Wyoming Superintendent of Public Instruction. It appears that letter opinion had been made available to school boards around the state of Wyoming.
The Attorney General letter opinion responded to the following three questions in the negative:
The authoring senior assistant attorney general cited Lee v. Weisman, ___ U.S. ___, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992), as primary authority for her conclusions.
On April 1, 1993 the Board's attorney, Hoke MacMillan, wrote to Dr. Head, Superintendent of Schools for Albany County School District No. 1, regarding the March 22, 1993 Attorney General opinion. On that same day, students requested that the baccalaureate issue be placed on the School Board's agenda for the next Board meeting. On April 28, 1993, at the Board's meeting, a petition signed by a number of individuals was presented to the Board by the Laramie Graduation Association. The petitioners again requested to rent the LHS Gymnasium for their 1993 baccalaureate service. At the meeting, the Board determined that it could not rent the gymnasium based upon the Wyoming Attorney General's opinion as well as the recommendation of the Board's attorney. The decision not to rent the gymnasium to the group for baccalaureate was confirmed by the Board with a letter dated April 30, 1993 to Paula Trujillo, Senior Class President, signed by Dr. Charles Ksir, President of the Board of Education.
On May 12, 1993, Dr. Head was sent a letter (via facsimile transmission) by the National Legal Foundation, acting at the request of a committee of parents and graduating seniors. That letter urged the Board to reconsider and reverse its decision not to rent the gymnasium to the baccalaureate group. The Board did not reverse its decision, and this suit was subsequently filed on May 20, 1993. The group sponsoring the baccalaureate service did make alternative arrangements for holding the baccalaureate service, in the event they were unable to use the LHS gymnasium. The plaintiffs' preference was, however, to hold the baccalaureate service in the gymnasium, rather than in their alternate site, the Arts and Sciences auditorium on the University of Wyoming campus in Laramie, Wyoming. Plainly, the baccalaureate service would take place on May 27, 1993 in one location or the other, regardless of the outcome of the instant litigation.
Plaintiffs' complaint asserts claims against the defendants for various violations of the United States Constitution, including the first and fourteenth amendment protections of their rights of free speech, assembly, free exercise of religion and equal protection under the law. At the hearing on the preliminary injunction, it was demonstrated that the Board's policy with respect to the use of school facilities was one of equal access to all community groups prior to the time of plaintiffs' request for use of the Laramie High gymnasium. School facilities in Albany County had been made available in the past to a wide variety of groups in the community.2 As is apparent, the community has been encouraged to make use of school district facilities for many different purposes.
Plaintiffs reason that, once the Board had made public school facilities such as the gymnasium available for indiscriminate use by the general public, so long as that use did not interfere with the school's educational program, the gymnasium became a designated public forum. Plaintiffs argue that the Board cannot exclude otherwise eligible individuals or groups from such a designated public forum unless there is a compelling state interest or reason for the state's content-based exclusions from the use of that forum.
The Board has responded to the plaintiffs' assertions by arguing that the Board has a legitimate interest in avoiding an Establishment Clause violation. The Board also argues that the plaintiffs failed to show any irreparable harm if their baccalaureate service was not permitted to be held at the gymnasium, because alternative arrangements had been made to hold the service elsewhere if plaintiffs were unable to secure the use of the gymnasium. The Board argues that the dictates of Lee v. Weisman, ___ U.S. ___, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992), require the Board to avoid the perception of a state created orthodoxy and that it must avoid any activity which bears the imprint of a state established religion.
The Board also questioned whether student participation in the baccalaureate service was truly, voluntary. The Board noted in its presentation at the hearing that many indicia of state involvement in the baccalaureate ceremony were present. These indicia included the graduation announcement itself, participation of the school orchestra and choir in the ceremony, a letter from the school principal to students and parents containing information regarding the baccalaureate ceremony, and the fact that nearly seventy five percent of the students were expected to attend the baccalaureate service. The Board contends this large number of participating graduating students was of such a magnitude that it was dubious whether participation was meaningfully voluntary. The Board also alleged that teachers had required students in the orchestra and choir to participate in baccalaureate, under penalty of a failing grade if the student did not do so, assertions which are contested by plaintiffs. The totality of these factors, the Board argues, indicates that the only way that state sponsorship or endorsement of religion can be avoided is by requiring the baccalaureate service to be held in some location other than Laramie High gymnasium.
A movant seeking issuance of a preliminary injunction in the Tenth Circuit must demonstrate:
(1) substantial likelihood that the movant will eventually prevail on the merits; (2) a showing that the movant will suffer irreparable injury unless the injunction issues; (3) proof that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) a showing that the injunction, if issued, would not be adverse to the public interest.
Hartford House, Ltd. v. Hallmark Cards, Inc., 846 F.2d 1268, 1270 (10th Cir.1988), cert. denied, 488 U.S. 908, 109 S.Ct. 260, 102 L.Ed.2d 248 (1988) (citing Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir.1980)). When the last three...
To continue reading
Request your trial
-
Proposed Guidelines for Student Religious Speech and Observance in Public Schools - Jay Alan Sekulow
...policy does not violate the Establishment Clause. See Lamb's Chapel, 113 S. Ct. at 2141; Shumway v. Albany County Sch. Dist. No. 1, 826 F. Supp. 1320 (D. Wyo. 1993); Randall v. Pegan, 765 F. Supp. 793 (W.D. N.Y. 1991); Verbena United Methodist Church v. Chilton County, 765 F. Supp. 704 (M.D......