Weinbaum v. Las Cruces Public Schools

Decision Date09 November 2006
Docket NumberNo. CV 03-1043 RB/LAM.,CV 03-1043 RB/LAM.
Citation465 F.Supp.2d 1116
PartiesPaul F. WEINBAUM, Plaintiff, v. LAS CRUCES PUBLIC SCHOOLS, Charles Davis, Leonel Briseno, Gene Gant, John Schwebke, Sharon Wooden, as School Board Members of Las Cruces Public Schools, Defendants.
CourtU.S. District Court — District of New Mexico

Jesse V. Chavez, Mesilla Park, NM, Pro se.

Paul F. Weinbaum, Las Cruces, NM, Pro se.

William R. Babington, Jr., Holt Babington Mynatt, P.C., Las Cruces, NM, for Defendants.


BRACK, District Judge.

THIS MATTER comes before the Court on the parties' cross motions for summary judgment (Docs.32, 38). Jurisdiction arises under 28 U.S.C. § 1331 (2000) and 42 U.S.C. § 1983 (2000).

This case concerns whether—in Las Cruces, New Mexico—the Establishment Clause allows the display of three Latin crosses on public school property. See U.S. Const. amends. I, XIV. Because the Court finds that Las Cruces' name is widely understood in the community to mean "the crosses," and that the Establishment Clause's strictures are otherwise satisfied, Defendants' motion is granted as to Plaintiffs claims related to a sculpture and to Las Cruces Public Schools' Policy # 424, as written. See O'Connor v. Washburn Univ., 416 F.3d 1216, 1231 (10th Cir.2005). Defendants are not, however, entitled to summary judgment on Plaintiffs remaining claims: the record is inadequately developed. See Soc'y of Separationists v. Pleasant Grove City, 416 F.3d 1239, 1241 (10th Cir.2005); Foremaster v. City of St. George, 882 F.2d 1485, 1492 (10th Cir. 1989). Plaintiffs motion is denied.

I. Introduction.
A. The Parties.
1. Plaintiff Weinbaum.

Plaintiff Paul F. Weinbaum is a New Mexico resident and taxpayer who lives within the boundaries of the Las Cruces Public Schools ("LCPS").1 (Pretrial Order [Doc. 139] 5.) Plaintiff Weinbaum has a child enrolled in a LCPS school. (Id.)

2. Defendants Las Cruces Public Schools, Charles Davis, Leonel Briseno, Gene Gant, John Schwebke, and Sharon Wooden.

Defendant LCPS is a "governmental entity created by statute" and "governed by a[n] [elected] School Board." (Defs.' Mem. Supp. Summ. J. [Doc. 33] 2; Martinez Aff. ¶4.) It is the second largest school district in New Mexico, encompassing, inter loci the City of Las Cruces. See http://www. lcps.k12.nm.us/LCPS_Overview/index.shtml.

Defendants Davis, Briseno, Gant, Schwebke, and Wooden are Las Cruces School Board Members ("Board Members") who, together with the LCPS Superintendent, "are responsible for creating and enforcing [LCPS] school policies within the law."2 (Answer [Doc. 4] ¶7.) Defendant Board Members are sued in their official capacity. Hence, Plaintiff is "effectively suing the Las Cruces School Board in addition to [LCPS]." (Mem. Op. & Order [Doc. 22] 5 ("The Court notes that the Las Cruces School Board is an entity distinct from [LCPS].").)

B. The LCPS Emblem, Sculpture, and Policy # 424.

Plaintiff, suing under 42 U.S.C. § 1983, claims that Defendants' use of an emblem, the installation and display of a sculpture, and Defendants' Policy # 424 violate the Establishment Clause of the First Amendment.3

1. Emblem affixed to LCPS maintenance vehicles.

Plaintiffs first claim relates to an emblem affixed to Defendants' fleet of, approximately thirty five, maintenance vehicles.4 (PL's Supplemental Mem. Supp. Summ. J. [Doc. 76] 1; Wilson Dep. 25:1-S (estimating that LCPS owns "[a] couple hundred vehicles" total).) Defendants submit that the emblem has been used on LCPS maintenance vehicles since the early 1960s. (Pretrial Order [Doc. 139] 6; Defs.' Mem. Supp. Summ. J. [Doc. 33] 2 (citing Wilson Dep. 10:1-7).) They maintain that "[t]he origin of the emblem ... is unknown." (Defs.' Mem. Supp. Summ. J. [Doc. 33] 2 (citing Martinez Aff.).)

The circular emblem features a sunburst with three "Latin crosses." (PL.'s Mem. Supp. Summ. J. [Doc. 39] Ex. D.) The emblem's diameter is 12 inches. (Defs.' Reply PL.'s Resp. Defs.' Mem. Supp. Summ. J. [Doc. 41] 3 n. 1.) At its center, a blue sunburst is depicted. Inside the sunburst, there is a white circle containing three, centered, blue crosses. The white circle's diameter is 1.875 inches; the three crosses are not equal in size. (Id.) The largest cross is centered and flanked, on either side, by the two remaining crosses, which are equal in size.

Encircling this symbol are two separate blue bands containing text. Immediately surrounding the center symbol is a blue band with thin, white, capital-letter text that reads: "FOR OFFICIAL USE ONLY." The first two words appear above the sunburst containing the crosses; the latter two words are situated below. The exterior blue band features larger capitalletter text that reads: "LAS CRUCES PUBLIC SCHOOLS." Like the arrangement of the "for official use only" text, the exterior band features the words "Las Cruces" above the sunburst containing the crosses and "public schools" below.

2. Sculpture at LCPS Sports Complex.

Plaintiff's second claim concerns a sculpture—depicting, inter alia, "three stylized crosses"-that is displayed at the LCPS Regional Sports Complex ("Sports Complex") in Las Cruces, New Mexico.5 (PL.'s Mem. Supp. Summ. J. [Doc. 39] 3.) The artwork was commissioned following a competitive design competition sponsored by the New Mexico Arts ("NM Arts") Art in Public Places Program and the LCPS Local Selection Committee ("LSC").6 (Id, Ex. L (NM Arts' Prospectus # 155).)

In Prospectus # 155, NM Arts and the LSC solicited proposals for a "three dimensional artwork designed to be placed on or near the exterior wall" of the new Sports Complex. (Id,; Bird Dep. 8:4-16.) The prospectus stated that, in addition to other requirements, submissions should incorporate the theme: "The Pursuit of Excellence." (PL.'s Mem. Supp. Summ. J. [Doc. 39] Ex. L (NM Arts' Prospectus # 155).) Prospectus # 155 noted that the piece of art selected would be situated on or near the "southernmost outer wall" and needed to be "easily seen from a distance of forty feet," but that the "style of artwork is open." (Id.)

Ultimately, the LSC selected artist Ruth Bird's sculpture, entitled "Unitas, Fortitudo, Excellentia," from among three finalists.7 (Id Ex. M (LCPS Press Release of 5/21/03).) Consistent with NM Arts policy, Bird submitted her proposal, along with "her resume and ... slides of her [previous] work." (Defs.' Mem. Supp. Summ. J. [Doc. 33] 4.) Bird's proposal comported with Prospectus # 155's specifications and application requirements and explained her submission in some detail. (Bird Aff. Ex. E (Bird Proposal).) NM Arts paid for the sculpture, which was dedicated on May 21, 2003.8 (Defs.' Resp. PL's Interrog. # 24 [Doc. 36].)

The sculpture features a "hot rolled mild steel" ring—that, in time, has developed a rusty patina—overlaid by three stainlesssteel stylized crosses. (Bird Aff. Ex. E (Bird Proposal).) The ring is 5.375 inches wide, has a diameter of 7.5 feet, and is severed in two places: at (approximately) the ten o'clock and two o'clock positions. The bottom portion of the ring is symmetrically inscribed with text that reads, in all-capital letter text, "UNITAS, FORTITUDO, EXCELLENTIA." (Id.) Bird explained that this phrase translates from the Latin to English as "unity, strength, and excellence." (Id.)

Overlaid on the ring are three vertical beams connected by a single horizontal beam. Placed slightly to the right of center, the longest vertical beam is 8.396 feet long. It extends slightly above and slightly below the 7.5 feet-diameter ring. To either side of this beam are two shorter vertical stainless steel beams, which are situated entirely within the circle. The left beam is 4.865 feet long; the bar to the right is 2.458 feet long. The cross beam— measuring 2.885 feet in length—bisects the three vertical beams. All four stainless steel beams are shiny and reflective.

Additionally, two explanatory plaques— located adjacent to Tashiro Road—accompany the artwork. Like the sculpture itself, the plaques are equipped with lights (presumably to make them visible after dark).9

The sculpture is mounted on the exterior, south wall of the football stadium. There is no pedestrian access to the sculpture from either the Sports Complex or Tashiro Road, approximately 100 feet away. The sculpture is fenced off so as to prevent pedestrian ingress/egress. Consequently, the thousands of fans who attend Sports Complex events do not have access to the sculpture. The Court and the parties were only able to access the sculpture after securing the assistance of a Sports Complex employee who unlocked the chain-link gate. Tashiro Road is a two-lane roadway, without curbs, gutters, or sidewalk. There is no vehicle pullout to allow for reflective viewing of the sculpture.

3. Policy #424.

Plaintiff's third claim is that LCPS Policy # 424, "Religion in the Schools," violates the Establishment Clause. (Pl.'s Supplemental Mem. Supp. Summ. J. [Doc. 76] 1.) Policy # 424 provides guidance to LCPS employees "on the topic of religion in schools." 10 (Pretrial Order [Doc. 139] 6.)

C. Plaintiffs Emblem, Sculpture, and Policy Claims.
1. Procedural Posture.

Plaintiff filed the instant case pro se on September 9, 2003. (Compl.1.) On May 14, 2003 and June 4, 2003, Defendants and Plaintiff filed their respective cross motions for summary judgment. Following a November 15, 2004 pretrial conference, the Court stayed this litigation pending the Supreme Court's ruling in ACLU of Ky. v. McCreary County, 354 F.3d 438 (6th Cir. 2003), cert. granted, 543 U.S. 924, 125 S.Ct. 310, 160 L.Ed.2d 221 (2004). (Order Staying Case [Doc. 62] 1 (explaining that the high court's anticipated decision might "clarify and refine" Establishment Clause analysis).)

The Supreme Court handed down its McCreary County v. ACLU of Ky., 545 U.S. 844, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005), decision on ...

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