Liberty Counsel, Motion For Preliminary Injunction

Case 3:10-cv-00142-MCR-MD Document 12 Filed 05/30/10 Page 1 of 30
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA
(PENSACOLA DIVISION)
Mary E. Allen, Gayle Lindsey, Vicki L. Kirsch, )

Jessica M. Barnes, Denise L. Gibson, Robert )
John Metty, Jr., Deandrea K. Dawson, Martha )
Gough, Kace Browning, Sheila Bozeman, )
Rebekah Nolan, Mittie J. Waller, Michelle )
Winkler, Nancy B. Lay, Mark Hinote and )
Deborah Hinote, as parents and next friends of )
H.H., a minor, Kristan Harley, individually and)
as parent and next friend of S.M.H. and H.J.H.,)
minors, Falyn Martin, Chaz Riley, Philip Hughes)
Moon, Mary Katherine Beckham, Joseph A. ) Civil Action No. :
Rogers and James T. Waters, ) 3:10-CV-00142-MCR-MD
)
Plaintiffs, ) Judge M. CASEY RODGERS
)
v. )
) ORAL ARGUMENT REQUESTED
School Board for Santa Rosa County, Florida, )
and Tim Wyrosdick, in his official capacity as )
Superintendent, Santa Rosa County School )
District, )
)
Defendants. )
)
PLAINTIFFS' MOTION FOR A PRELIMINARY

INJUNCTION AND REQUEST FOR HEARING
WITH INCORPORATED MEMORANDUM OF LAW IN SUPPORT
Pursuant to Rule 65(a) of the Federal Rules of Civil Procedure, Plaintiffs, MARY E. ALLEN,
GAYLE LINDSEY, VICKI L. KIRSCH, JESSICA M. BARNES, DENISE L. GIBSON, ROBERT
JOHN METTY, JR., DEANDREA K. DAWSON, MARTHA GOUGH, KACE BROWNING,
SHEILA BOZEMAN, REBEKAH NOLAN, MITTIE J. WALLER, MICHELLE WINKLER,
NANCY B. LAY, MARK HINOTE and DEBORAH HINOTE, as parents and next friends of H.H., a
minor, KRISTAN HARLEY, individually and as parent and next friend of S.M.H. and H.J.H.,
minors, FALYN MARTIN, CHAZ RILEY, PHILIP HUGHES MOON, MARY KATHERINE
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BECKHAM, JOSEPH A. ROGERS and JAMES T. WATERS, (collectively, Plaintiffs), by and
through counsel, move this Court to enter a Preliminary Injunction enjoining Defendants, SCHOOL
BOARD FOR SANTA ROSA COUNTY, FLORIDA and TIM WYROSDICK, in his official
capacity as SUPERINTENDENT, SANTA ROSA COUNTY SCHOOL DISTRICT (collectively
Defendants), from enforcing against Plaintiffs the policies Defendants consented to by virtue of
entering into a Consent Decree and Order, which was subsequently entered by the United States
District Court for the Northern District of Florida on May 6, 2009 (hereinafter Consent Decree), as
well as the policies and guidelines Defendants adopted to implement the Consent Decree (hereinafter
Policies), and from violating Plaintiffs rights to freedom of speech, freedom of association, equal
protection, and free exercise of religion guaranteed by the First and Fourteenth Amendments to the
United States Constitution, and from violating the Establishment Clause contained in the First
Amendment to the United States Constitution.
In support of this motion, Plaintiffs state as follows:
1. This is a civil action in which Plaintiffs seek Preliminary and Permanent Injunctive
Relief enjoining Defendants, their agents, servants and employees and those acting in active concert
with them, from enforcing Defendants Policies and the Consent Decree, and from violating
Plaintiffs rights to freedom of speech, freedom of association, equal protection, and free exercise of
religion guaranteed by the First and Fourteenth Amendments to the United States Constitution, and
from violating the Establishment Clause contained in the First Amendment to the United States
Constitution.
2. Plaintiffs also pray for Declaratory Judgment to determine the constitutionality of
Defendants Policies and the Consent Decree, facially and as applied to Plaintiffs, and to declare
them unconstitutional.
3. Plaintiffs also seek damages.
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4. An actual controversy exists between the parties involving substantial constitutional
issues in that the challenged Policies and the Consent Decree, on their face and as applied, violate the
United States Constitution.
5. Rule 65 of the Federal Rules of Civil Procedure authorizes this Court to grant
preliminary injunctive relief.
6. Plaintiffs are likely to succeed on the merits. The constitutional protections they
invoke are not novel or complex, but firmly entrenched in First Amendment jurisprudence. As a
matter of well-established First Amendment law, for instance, Defendants cannot ban God Bless
within Santa Rosa Schools, dictate what teachers may wear and where they may sit at private
religious events in houses of worship, ban volunteers from even discussing religion at school events,
and inhibit or restrict the non-disruptive religious expression and exercise of teachers and students
during non-instructional time, when other subjects or forms of expression are permissible.
7. Plaintiffs face a substantial threat of irreparable harm if this Court does not intervene
and does not grant an injunction. Plaintiffs constitutional rights have already been infringed by
Defendants Policies and the Consent Decree. These harms continue to this day and, absent an
injunction by this Court, will increase and be made worse. Every day that Plaintiffs are subjected to
the unconstitutional Policies and Consent Decree is another day of irreparable harm because
Plaintiffs constitutional rights are being violated. This harm is immediate and irreparable.
8. Any harm to Defendants is minimal, but the harm to Plaintiffs is irreparable and
immediate. Defendants have no legal interest in applying and enforcing unconstitutional Policies or
an unconstitutional Consent Decree. They have no legal interest in banning God Bless within Santa
Rosa Schools, or dictating what teachers may wear and where they may sit at private religious events
in houses of worship, or banning volunteers from even discussing religion at school events, or
inhibiting or restricting the non-disruptive religious expression and exercise of teachers and students
during non-instructional time, when other subjects or forms of expression are permissible.
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9. Moreover, no significant harm will be visited upon Defendants or any other third
party by a temporary stay on the enforcement of the Consent Decree and Policies emanating from it,
pending the merits resolution of this action, because the Consent Decree is irreversibly moot and
therefore unenforceable by any court, since both anonymous student plaintiffs that obtained the
Consent Decree have graduated from Defendants schools.
10. An injunction requiring Defendants to abide by the Constitution in order to protect
Plaintiffs constitutional freedoms is within the public interest. The protection of cherished
constitutional liberties is always in the public interest.
11. Plaintiffs respectfully request expedited consideration of, and a hearing on, this
Motion at the Courts earliest possible availability, because Plaintiffs continually face the loss of
their constitutional rights. Plaintiffs suggest that oral argument on this case is necessary in order to
fully apprise the Court of the facts and the law with regard to these important issues.
WHEREFORE, Plaintiffs respectfully request that this Court enter a Preliminary Injunction
enjoining the Defendants from enforcing their unconstitutional Policies and the Consent Decree
against Plaintiffs, pending the merits resolution of this action, and waiving any bond or alternatively
imposing only a nominal bond.
Respectfully submitted,
/s/ Horatio G. Mihet___________________

David M. Corry Mathew D. Staver
Florida Bar No. 861308 Florida Bar No.
LIBERTY COUNSEL Anita L. Staver
PO Box 11108 Florida Bar No.
Lynchburg, VA 24506-1108 Horatio G. Mihet
434-592-7000 Telephone Florida Bar No.
434-592-7700 Facsimile LIBERTY COUNSEL
court@lc.org PO Box 540774
Orlando, FL 32854-0774
800-671-1776 Telephone
407-875-0770 Facsimile
ATTORNEYS FOR PLAINTIFFS court@lc.org
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MEMORANDUM OF LAW
INTRODUCTION
This action brings before the Court twenty-four (24) individuals teachers, staff, students, a
former student, parents, volunteers, and clergy whose First Amendment rights have been, and are
being, violated by the Consent Decree (Consent Decree) (attached as Ex. 1) entered by this Court
on May 6, 2009 in Minor I Doe, et al. v. School Board for Santa Rosa County, et al., Case No. 3:08-
CV-00361-MCR-EMT (the ACLU Action). The so-called common sense interpretation and
application of the Consent Decree promised by Defendant School Board for Santa Rosa County
(School Board or the District), through its Superintendent, Defendant Timothy S. Wyrosdick
(Superintendent or Wyrosdick), (collectively, Defendants), has resulted in breathtaking
incursions into Plaintiffs sacred freedoms of speech, association, religion and equal protection, all of
which are guaranteed by the United States Constitution.
The Consent Decree and Defendants policies emanating from it (Policy or Policies)
have banned God Bless in the schools of Santa Rosa County, and Defendants have censored
students, including Plaintiff Chaz Riley, from using those words. The Consent Decree and Policies
have banned parent volunteers, including Plaintiffs Mary Katherine Beckham and Philip Hughes
Moon, from even discussing or enter[ing] into a dialogue with students regarding religion,
regardless of how academic such dialogue is, who initiates it, and its educational value. The same
Consent Decree and Policies have interfered with the rights of teachers, including many of the
Plaintiffs, to attend and participate in privately-sponsored, religious baccalaureate services held
outside of school hours in houses of worship or privately-rented facilities, and have interfered with
the rights of private citizens, including Plaintiffs Joseph A. Rogers and James T. Waters, to organize
and hold such services. Because of the Consent Decree and Policies, one former student, Plaintiff
Mary E. Allen, was silenced at her graduation, even though she earned the right to address her
colleagues as every other student body President had done at her school in the prior three decades.
And, the Consent Decree and Policies preclude teachers and staff, including many of the Plaintiffs,
from having inspirational materials on tangible school property (such as their desks), or reading such
materials during non-instructional time, or engaging in any other kind of religious discussion or
observance with other consenting adults during non-instructional time.
Plaintiffs seek to invalidate the Consent Decree, facially and as applied to them, and to enjoin
Defendants from further enforcement and application of their unconstitutional Policies. Because
Plaintiffs have suffered and continue to suffer irreparable harm every day the Consent Decree and
Defendants Policies are in effect, Plaintiffs now respectfully request that the Court enter a
Preliminary Injunction and Declaration precluding further enforcement of the Consent Decree and
Defendants Policies, pending the resolution of Plaintiffs claims on the merits.
BACKGROUND FACTS
The vagueness, overbreadth and other constitutional flaws of the Consent Decree are fully
documented and explained in the ACLU Action by the attempted Intervenor therein, Christian
Educators Association International (CEAI), including in its Written Closing Argument on
Intervention. (ACLU Action, dkt. 227, pp. 11-21). For the sake of brevity, Plaintiffs herein will not
rehash that explanation, but adopt it as their own and incorporate it by reference pursuant to
Fed.R.Civ.P. 10(c).
The School Board has interpreted and applied the Consent Decree to cover all religious
speech, such as the all-American expression God Bless. Plaintiff Chaz Riley is a student at Milton
High School, where he serves as the student body President. (Decl. of Chaz Riley, 3, attached as
Ex. 2). At the request of school officials, Chaz authored a welcome back letter for his classmates,
for inclusion in the agenda planners distributed to Milton High School students in August 2009. (Id.
at 4). Chaz ended the message with Good luck and God Bless. (Id. at 5-6 and Ex. A). He
clearly used God Bless not as a communication with a deity, but as a wishful expression of
goodwill, using words commonly employed by many Americans (including the President) at the end
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of a communication or conversation. (Id. at 7). School officials prohibited Chaz from uttering the
words God Bless, because, after obtaining the professional advice of their attorney, they
concluded that God Bless would be prohibited by the Order because it falls within the definition
of prayer in paragraph 3(b) of the Consent Decree. (Id. at 9 and Exhibit B). School officials,
following advice of their attorney, further concluded that the Consent Decree prohibited Chaz from
closing with God Bless because it prohibited offering a prayer. (Id.). Thus, Chaz Rileys remarks
were censored. (Id. at 10-11 and Ex. C).
Consistent with the Consent Decree, Defendants have shown clear hostility to voluntary,
student-led religious speech and expression in many other instances:
Chaz was threatened not to engage in voluntary, student-initiated and student-led
prayer at last years graduation exercises, which he attended as a student government leader, under
pain of immediate ejection from the ceremony and subsequent discipline. (Id. at 14-15).
H.J.H., a minor Plaintiff and student at Thomas L. Sims Middle School, and her class
mates were threatened with discipline by school officials for their voluntary, student-led and student-
initiated recitation of a Bible verse before eating their lunch at school, during non-instructional time
when they were otherwise free to discuss other subjects out loud. (Decl. of H.J.H., 10-16, attached
as Ex. 3). The threat was sufficient to deter further participation in this voluntary activity, and
immediately and effectively shut down this and other forms of student religious expression. (Id. at
16-18).
S.M.H., another minor Plaintiff and a student at Pace High School, was stripped of
her role as student chaplain for her student band colleagues, even though her fellow students decided
on their own to have that position, and to elect her to serve them in that position, by leading
voluntary, student-led and student-initiated prayers and devotions during free time before band
events. (Decl. of S.M.H., 9-14, attached as Ex. 4).
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H.H., another minor Plaintiff and student at Pace High School, S.M.H. and Falyn V.
Martin, a student over the age of eighteen at Pace High School, have all witnessed and experienced
first hand the Districts hostility to voluntary, student-led and student-initiated prayers, devotions and
religious discussions during non-instructional time. (S.M.H. Decl. at 15-16; Decl. of H.H., 10-
16, attached as Ex. 5; Decl. of Falyn V. Martin, 10-11, attached as Ex. 6). School officials have
created an environment that is hostile to voluntary, student-led and student-initiated religious
expression. (Id.) As a result, students now either forego such expression or feel rushed, hurried and
hushed, as if they are doing something illicit. (Id.)
Falyn Martins participation in First Priority, a voluntary Christian student club at
Pace High School, has also been hampered by Defendants application of the Consent Decree.
(Martin Decl. at 5-9). School officials have interfered with Falyns and other students ability to
organize and conduct First Priority activities and events: (a) by prohibiting teachers and staff from
speaking at such events, even when invited to do so by students during non-school hours; (b) by
prohibiting otherwise willing teachers and staff from acting in an advisory capacity to the club during
off-duty hours, in the same way that other teachers do for other clubs; and (c) by prohibiting Falyn
and other students from inviting the same speaker from the community to speak at the club on more
than one occasion. (Id. at 7-9).
At last years graduation ceremony for Pace High School students, school officials
silenced Plaintiff Mary E. Allen, the then-student body President and an outspoken Christian, and
prohibited her from addressing the students who elected her to lead them, even though every other
student body President in the prior three decades enjoyed that privilege. (Decl. of Mary E. Allen,
3-12, attached as Ex. 7). Defendant Wyrosdick specifically attributed his decision to silence Ms.
Allen to the Consent Decree. (Id. at 9). Mr. Wyrosdick claimed that the Consent Decree prohibited
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Allen from speaking even though she was neutrally selected by her classmates, and even though the
votes cast by any teachers were also neutral and were inconsequential to her election. (Id. at 9-11).
Defendants hostility to religious expression and discussion extends far beyond students, to
parents and adult volunteers. For example, in their Policies, Defendants have interpreted and applied
the Consent Decree to prohibit volunteer parents or chaperones from enter[ing] into a dialogue with
students regarding religion, religious views or the like. (Decl. of Mary Katherine Beckham, 8 and
Ex. A, attached as Ex. 8; Decl. of Philip Hughes Moon, 8 and Ex. A, attached as Ex. 9). Plaintiff
Mary Katherine Beckham, whose daughter attends Pace High School, has been prohibited from
continuing her long-standing role as a parent volunteer and chaperone for the band, because she
refused to accept Defendants unconstitutionally broad mandate. (Beckham Decl. at 4-14).
Plaintiff Philip Hughes Moon, whose son attends Pace High School, has censored his speech out of
concern that the District will prohibit him from serving as a volunteer if he does not abide by its
Policies. (Moon Decl. at 4-14). Neither Beckham nor Moon desires to proselytize students or
otherwise indoctrinate them. (Beckham Decl. at 11; Moon Decl. at 10). Instead, they both wish to
exercise their freedom, as non-employees of the Defendants, to dialogue about religion or religious
beliefs when initiated and engaged by high school students who are mature enough to form and
articulate their own opinions and beliefs. (Beckham Decl. at 12; Moon Decl. at 11). According to
Defendants and their Policies, the Consent Decree bans even this type of religious dialogue,
lumping it in the same category with foul language. (Beckham Decl. at 13; Moon Decl. at 13).
Defendants have interfered with the interactions between teachers and parents, and
Defendants religiously-hostile Policies have harmed parent-teacher relationships. Defendants have
prohibited teachers from engaging in relationship-building dialogue with parents, including with
Plaintiff Beckham and Plaintiff Kristan Harley, that includes discussion of spiritual and religious
matters. (Beckham Decl. at 15-20; Decl. of Kristan Marie Harley, 6-12, attached as Ex. 10).
These discussions previously took place during non-instructional time, were initiated by Plaintiff
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Beckham and Plaintiff Harley, and were instrumental in fostering positive parent-teacher
relationships that ultimately benefited the students. (Beckham Decl. at 17-18; Harley Decl. at 6-
7). Because of the Consent Decree and the Policies, teachers are now prohibited from engaging in
these conversations with parents, and the teachers either ignore the Parent Plaintiffs, or change the
subject, or flatly refuse to engage in those discussions. (Beckham Decl. at 19; Harley Decl. at 10).
Defendants have even gone so far as to prohibit teachers from replying directly to Plaintiff Harleys
emails whenever they contain even fleeting references to religious subjects or matters of faith.
(Harley Decl. at 11). Teachers either ignore Plaintiff Harleys emails, or respond with new emails
that do not include the subject matter of Plaintiff Harleys initial communication. (Id.) In either case,
communication has suffered between Plaintiff Harley and her daughters teachers. (Id.) Because of
these prohibitions and restrictions, parent-teacher relationships have suffered, to the detriment of the
students and the entire community. (Beckham Decl. at 20; Harley Decl. at 12).
Even more insidious has been Defendants hostility toward the private, off-the-clock
religious speech and expression of teachers and staff. Plaintiffs Robert John Metty, Jr., Gayle
Lindsey, Vicki L. Kirsch, Jessica M. Barnes, Denise L. Gibson, Deandrea K. Dawson, Martha
Gough, Kace Browning, Sheila Bozeman, Rebekah Nolan, Mittie J. Waller and Nancy B. Lay are
employed as teachers by Defendants. (Decl. of Robert John Metty, Jr., 3, attached as Ex. 11; Decl.
of Gayle Lindsey, 3, attached as Ex. 12; Decl. of Vicki L. Kirsch, 3, attached as Ex. 13; Decl. of
Jessica M. Barnes, 3, attached as Ex. 14; Decl. of Denise L. Gibson, 3, attached as Ex. 15; Decl.
of Deandrea K. Dawson, 3, attached as Ex. 16; Decl. of Martha Gough, 3, attached as Ex. 17;
Decl. of Kace Browning, 3, attached as Ex. 18; Decl. of Sheila Bozeman, 3, attached as Ex. 19;
Decl. of Rebekah Nolan, 3, attached as Ex. 20; Decl. of Mittie J. Waller, 3, attached as Ex. 21;
Decl. of Nancy B. Lay, 3, attached as Ex. 22). Collectively, these Plaintiffs shall be referred to
herein as the Educator Plaintiffs. Plaintiff Michelle Winkler is employed as a clerical assistant by
Defendants. (Decl. of Michelle Winkler, 3, attached as Ex. 23).
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The Educator Plaintiffs, Ms. Winkler, and many of their colleagues have been silenced,
chilled or otherwise adversely affected by Defendants Policies and the Consent Decree in the
exercise of their First Amendment freedoms. Each of them received a copy of the Consent Decree
from their employer, along with a memorandum instructing them to abide by it under pain of
discipline, termination, fines, penalties and sanctions. (Employee Plaintiffs Declarations at 5;
Complaint at Ex. B). Each of them was warned that they could be punished in this manner for either
intentional or unintentional violations of the Consent Decree, and that they would not be defended by
their employer against accusations of such violations. (Id.) And each of them is keenly aware that
within the last year, three of their colleagues (including Plaintiff Michelle Winkler and Plaintiff
Nancy Lays husband) have had to answer to civil and criminal contempt charges as a result of
various acts of religious expression. (Lindsey, Kirsch, Barnes, Gibson, Dawson, Gough, Browning,
Bozeman, Nolan, Waller and Lay Declarations at 10-12).
None of the Educator Plaintiffs wish to test the limits of their constitutional liberties through
conduct or speech that may expose them to the type of sanctions threatened by their employer or
faced by their colleagues. (Id.) They have resolved doubts as to what they can or cannot do in favor
of self-censorship, and have either voluntarily given up altogether religious speech and expression in
which they previously engaged, or severely limited it to avoid punishment or the threat of
punishment. (Id.) A complete list of activities and conduct in which the Educator Plaintiffs and Ms.
Winkler engaged in the past, and which they would engage in but for the prohibitions contained in
Defendants Policies and the Consent Decree, is included on pages 12 through 16 of the Complaint
filed in this action, and in the Educator Plaintiffs and Ms. Winklers Declarations (Exhibits 11-23),
all of which are incorporated by reference herein pursuant to Fed.R.Civ.P. 10(c).
The Consent Decree and Defendants Policies also require Educator Plaintiffs and Ms.
Winkler, under pain of discipline or contempt, to engage in conduct they do not wish to engage in.
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(See Complaint, 61-62; Lay, Lindsey, Kirsch, Gibson, Dawson, Gough, Browning, Bozeman,
Nolan and Waller Declarations at 9; Metty Decl. at 12-17, incorporated by reference herein).
The Consent Decree and Policies also place many restrictions on Educator Plaintiffs ability
to attend privately-sponsored religious baccalaureate services even when they take place outside of
school hours and in a house of worship. For example, Plaintiff Metty has attended several privately-
sponsored religious baccalaureate services in the past, to support graduating students from Pace High
School, and plans to do so again in the future. (Metty Decl. at 8). He is particularly looking forward
to the baccalaureate service in early June 2010, because he has a daughter who is a senior at Pace
High School. (Id.). His freedom to sit with whomever he wants, including fellow teachers, and to
wear whatever he wants, including a graduation gown, at privately-sponsored, voluntary, religious
baccalaureate services held outside of school hours at a house of worship, is very important to him.
(Id. at 9). His wife is also a teacher at Pace High School, as are many of his good friends. (Id.) He
wants to be able to sit with them, or with anyone else he chooses. (Id.) He also wants to be able to be
recognized as a teacher for his contribution to the success of the graduating seniors. (Id.)
Plaintiff Metty has advised Defendant Superintendent and School Board attorney, Mr. Paul
Green, that he intends to attend this years privately-sponsored baccalaureate service for Pace High
School Seniors, and that he plans to sit where he wants, with whomever he wants within the house of
worship that hosts the event. (Id. at 10). He also advised them that he plans to wear whatever he
wants at the baccalaureate service, including attire that may identify him as a teacher. (Id.) Defendant
Superintendent and Mr. Green warned Plaintiff Metty that if he does any of the above, he will violate
the Policies and the Consent Decree, and will be subject to discipline and contempt sanctions. (Id.)
Defendants Policies and the Consent Decree prohibited Plaintiff Gough and Plaintiff
Browning from planning and organizing, during their private, off-the-clock time on campus,
baccalaureate activities for Pace High students. (Browning Decl. at 8(k); Gough Decl. at 8(f)).
Defendants have even gone so far as to prohibit one employee from playing the piano at a privately-
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sponsored, religious baccalaureate service, even though the teacher would have played the piano
outside of school hours, in her private, off-the-clock time, and even though the event was sponsored
by the church where that teacher was a member and regularly played the piano at church services!
(Decl. of James T. Waters, Jr., 10, attached as Ex. 24). And, Defendants prohibited another teacher
from coordinating and leading a private, religious baccalaureate service sponsored by her own
church, even though that teacher would have coordinated and led the privately-sponsored event in her
private, off-the-clock time, outside of school hours. (Id. at 9). Attorney Green warned this teacher
that if she assisted with the privately-sponsored event, she would ride with Frank Lay to see Judge
Rodgers, referring to Plaintiff Nancy B. Lays husband who was at that time being criminally
prosecuted for a prayer said at a school event. (Id.)
Defendants Policies and the Consent Decree have also had wide ranging impact in the
community at large. Plaintiff James T. Waters, a youth minister who organizes private religious
baccalaureates, was left without a coordinator and without a piano player at last years baccalaureate
service for Milton High School students, because Defendants prohibited his own church members
from assisting or participating in the event on the members own time simply because those members
were also school employees. (Waters Decl. at 3, 8-10).
Waters usually rents Defendants public school facilities to conduct the private religious
baccalaureate services that he sponsors, on the same terms as are available to other groups in the
community. (Id. at 7). Since the principal attendees of the religious baccalaureate services
sponsored by Reverend Waters are students the high school students in whose honor the service is
being held the services are deemed school events by the Consent Decree and Defendants
Policies, such that no religious expression the very purpose of the events can be allowed to take
place. (Consent Decree at 3(g), 5(a)-(b); Waters Decl. at 16-17).
Rev. Joseph A. Rogers another Plaintiff minister who organizes private, religious
baccalaureate services in his own church for students of his local high school has also been
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hampered by Defendants Policies and the Consent Decree. (Decl. of Joseph A. Rogers, 3-8,
attached as Ex. 25). He too was unable to enlist volunteers from his own church and community to
assist him with the baccalaureate service, because those individuals who happened to be employed by
Defendants were prohibited from assisting him, even on their own, off-the-clock time. (Id. at 8).
In addition, both Waters and Rogers have been hampered by the seating and clothing
prohibitions for private baccalaureate events contained in the Consent Decree and Defendants
Policies. (Waters Decl. at 11-12; Rogers Decl. at 9-16). Both ministers desire to be able to
publicly recognize and thank teachers for their devotion to the students, as part of the private,
religious baccalaureate services they sponsor. (Waters Decl. at 11; Rogers Decl. at 9). Both
believe that the best way to accomplish this is to seat the teachers together, in one bloc, just as the
students are seated. (Id.) Both ministers were disheartened to learn, at last years services, that
teachers were prohibited by Defendants and the Consent Decree from seating together or
coordinating their attire (for example by wearing academic robes or regalia), and both were hindered
in carrying out their religious calling as a result. (Waters Decl. at 12; Rogers Decl. at 10).
Defendants Policies and the Consent Decree interfere with the rights of Waters in other
respects besides baccalaureate services. Rev. Waters has conducted, and wishes to conduct in the
future, private, religious programs for students in his community. (Waters Decl. at 21). He has
used, and desires to continue to use, school facilities to offer these voluntary programs outside of
school hours, on the same terms as other community members and groups. (Id. at 23). However,
since the principal attendees of these programs are students, the Consent Decree and Defendants
Policies consider them to be "school events," such that no religious activities the very purpose of
the programs can be allowed to take place. (Id. at 27). On their face, the Consent Decree and
Defendants Policies interfere with Reverend Waters right to organize and conduct these programs.
(Id.)
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ARGUMENT
Courts may grant a preliminary injunction where, as here, Plaintiffs show that: (A) they have
a substantial likelihood of success on the merits; (B) they will suffer irreparable injury unless the
injunction issues; (C) the threatened injury to the Plaintiffs outweighs whatever damage the proposed
injunction may cause the Defendants; and (D) if issued, the injunction would not be adverse to the
public interest. KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1268 (11th Cir. 2006); Citizens
for Police Accountability Political Committee v. Browning, 572 F.3d 1213, 1217 (11th Cir. 2009).
I. PLAINTIFFS HAVE A SUBSTANTIAL LIKELIHOOD OF SUCCESS.
A. Defendants Policies Are Unconstitutional.
Plaintiffs are likely to prevail on the merits, because the Consent Decree and Defendants
Policies are clearly unconstitutional. Santa Rosa County is the only county in the Land of the Free
where students like Chaz Riley, teachers and even the President a non-student third party under
the Consent Decree have to change the ending of their speeches, because Defendants and the
Consent Decree define God Bless as a prayer and ban its utterance (along with similar phrases).
(See Prepared Remarks of President Barack Obama, www.whitehouse.gov/mediaresources
/preparedschoolremarks (last accessed on May 20, 2010) (ending speech with Thank You, God
Bless You, and God Bless America).
Defendants ban of God Bless and other similar phrases and speech, along with their
outright ban on all religious dialogue by parent volunteers, and their lumping of religious speech
and expression in the same category as foul language and profanities, is unconstitutional:
private religious speech, far from being a First Amendment orphan, is as fully
protected under the Free Speech Clause as secular private expression. Indeed, in
Anglo-American history, at least, government suppression of speech has so
commonly been directed precisely at religious speech that a free-speech clause
without religion would be Hamlet without the prince.
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Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995).1
Defendants attempts to interfere with and dictate the seating arrangement and attire at
privately-sponsored, religious baccalaureate services, even those that take place inside a church,
violate the frees speech rights of Plaintiffs. The same is true regarding the prohibition on prayer at
voluntary, privately-sponsored religious programs for students within privately-rented school
facilities, which Defendants and the Consent Decree regard as school events because the principal
attendees are students. Good News Club v. Milford Central School, 533 U.S. 98, 112 (2001) (speech
discussing otherwise permissible subjects cannot be excluded from a limited public forum on the
ground that the subject is discussed from a religious viewpoint). And Defendants interference with
voluntary, student-led and student-initiated prayer and religious discourse, such as in the case of
Chaz Riley, H.J.H., S.M.H., H.H. or Falyn Martin, is unconstitutional, because it is well established
that students do not shed their Constitutional rights at the school house gate. Tinker v. Des Moines
Indep. Sch. Dist., 593 U.S. 503, 511 (1969) (holding that students may not be regarded as closed-
circuit recipients of only that which the State chooses to communicate. students are entitled to
freedom of expression of their views.)
Teachers also do not shed their rights at the schoolhouse gate. Tinker, 593 U.S. at 511. The
Educator Plaintiffs will be able to establish that the Policies and the Consent Decree are
unconstitutional because they fail to differentiate between teachers as state actors and private
individuals, lumping all of their activities at broadly-defined school events in the category of
official conduct. See e.g., Wigg v. Sioux Falls Sch. Dist. 4-5, 382 F.3d 807 (8th Cir. 2004) (Religion
1
Indeed, fifteen years ago the Supreme Court lamented the day when religious speech would be lumped
in and banned along with profanities and other indecencies: It will be a sad day when this Court casts
piety in with pornography, and finds the First Amendment more hospitable to private expletives than to
private prayers. This would be merely bizarre were religious speech simply as protected by the
Constitution as other forms of private speech; but it is outright perverse when one considers that private
religious expression receives preferential treatment under the Free Exercise Clause. Capitol Square, 515
U.S. at 760.
12
Policy preventing [school board] employees from participating in religious-based activities is
viewpoint discriminatory and, thus, per se unconstitutional); Bd. of Ed. of Westside Cmty. Sch.
(Dist.66) v. Mergens, 496 U.S. 226, 250 (1990) (there is a crucial difference between government
speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing
religion, which the Free Speech and Free Exercise Clauses protect). Restrictions or outright
prohibitions on playing the piano at, leading or participating in, or the seating arrangements and attire
at, privately-sponsored, religious events that teachers attend on their own time, outside of school
hours, in private facilities, cannot survive constitutional muster. Wigg, 382 F.3d at 815 (Even
private speech occurring at school-related functions is constitutionally protected, therefore private
speech occurring at non-school functions held on school grounds must necessarily be afforded those
same protections).
These are not novel or complex concepts that require protracted litigation to resolve. They
are firmly established, bedrock constitutional principles that heretofore are widely recognized.
B. Defendants Policies Are Vague And Conflict With The Consent Decree.
Defendants Policies are also unconstitutional because they are impermissibly vague, both on
their face and in the context of the Consent Decree. For example, Defendants purport to tell the
Educator Plaintiffs that they actually can engage in certain activities prohibited by the Consent
Decree. Item 1 on Defendants Policy Regarding Schools and Religious Allowances tells educators
that they can display personal items of religious significance on the Districts tangible property, as
long as these items are not oversized or prominent. (Complaint Ex. C at 1). Defendants do not
define oversized, so the Educator Plaintiffs have no idea how large a Bible or how large a
devotional book Defendants purport to allow on the employees desks. (Id.) Moreover, the Consent
Decree at Paragraph 8(e) categorically prohibits the display of any religious symbol, regardless of
size or prominence, in the absence of an articulated nonreligious pedagogical reason. (Ex. 1 at 7).
This contradiction exacerbates the vagueness already found on the face of the Policy, to the point that
13
the Educator Plaintiffs are left clueless as to what they can or cannot do.
Defendants Policy likewise tells Educator Plaintiffs that they can use the poem Trees by
Joyce Kilmer as a literary work, but prohibits them from expound[ing] on God. (Complaint Ex. C,
at Item 28). This places teachers in a quandary, because the last line of the poem states that Only
God can make a Tree. (Id.) Can they answer questions from students about what the writer meant?
How much discussion about God is permitted before it becomes expounding. None? A little? An
entire class period? The same problem is caused by Defendants instruction that Educator Plaintiffs
may say I am blessed in casual conversation, such as when asked the question How are you, but
they cannot elaborate on the connotation of being blessed. (Complaint Ex. C at Item 35). How
much discussion of the responders good disposition on a particular day is permissible before it
becomes an elaboration on the state of being blessed? And why does it matter at all, if the Consent
Decree supposedly does not prohibit casual conversation between grown adults? The Educator
Plaintiffs are left in the dark, and they are instead choosing to cleanse their speech entirely of these
remarks.
C. The Consent Decree Itself is Unconstitutional.
Defendants widespread violations of Plaintiffs constitutional rights are neither accidental
nor infrequent. Defendants conduct and unconstitutional Policies are enabled by the overbroad and
vague Consent Decree.
1. The Consent Decree is Unconstitutionally Overbroad.
The Eleventh Circuit has held that in a facial overbreadth challenge, the facts of the
challenging party's case are irrelevant. Sentinel Communications Co. v. Watts, 936 F.2d 1189, 1197
(11th Cir. 1991) (emphasis added). Facial challenges to overly broad statutes are allowed not
primarily for the benefit of the litigant, but for the benefit of society to prevent the statute from
chilling the First Amendment rights of other parties not before the court. Secretary of State of Md. v.
Joseph H. Munson Co., Inc., 467 U.S. 947, 956-958 (1984). Therefore, in the First Amendment
14
context, plaintiffs can challenge the constitutionality of a statute that has not been unconstitutionally
applied to them. That is, plaintiffs can challenge a statute as overbroad even if their particular
conduct is not constitutionally protected. Bischoff, 222 F.3d at 883 (emphasis added) (citing Joseph
H. Munson Co., 467 U.S. at 955-57; National Council for Improved Health v. Shalala, 122 F.3d 878,
882-83 (10th Cir.1997); and Bordell v. General Electric Co., 922 F.2d 1057, 1060-61 (2d Cir.1991)).
In Sentinel Communications, a newspaper vendor was allowed to facially challenge a
licensing scheme even though it was not adversely affected by it. 936 F.2d at 1197. In the same way,
Plaintiff Waters, for example, can facially challenge the prohibition on Prayer at his school
events events that he privately sponsors, such as baccalaureates and after-school programs, which
are nevertheless deemed to be School Events because their principal attendees are students even
if he has not yet been adversely affected by these restrictions. Id.
Moreover, where, as here, a facial overbreadth challenge is brought to a prior restraint on
speech, Plaintiffs need not show that the challenged provision is substantially overbroad:
Whatever the precise scope of the general rule may be, the Supreme Court and this
Court consistently have permitted facial challenges to prior restraints on speech
without requiring the plaintiff to show that there are no conceivable set of facts
where the application of the particular government regulation might or would
be constitutional.
U.S. v. Frandsen, 212 F.3d 1231, 1236 (11th Cir. 2000) (emphasis added).2
The Consent Decrees definition of Prayer includes any blessing or sermon. (Consent
Decree, Section 3(b)). Sermon, in turn, includes either religious discourse, or a speech on
conduct or duty. Merriam-Webster's Collegiate Dictionary, Eleventh Edition, www.merriam-
webster.com. Accordingly, the District is reasonably interpreting the Consent Decrees definition of
2
The Consent Decree is a prior restraint on speech because permanent injunctions i.e., court orders
that actually forbid speech activities are classic examples of prior restraints. Weaver v. Bonner, 309
F.3d 1312, 1323 (11th Cir. 2002) (quoting Alexander v. United States, 509 U.S. 544, 550 (1993)). The
Consent Decree and Defendants Policies act as prior restraints in a number of ways, because they
prohibit speech based on its content (that is, religious content) prior to its occurrence.
15
Prayer, to include the words God Bless, and has banned that phrase and similar phrases from
educator emails and student speeches. The overbreadth of this proposition is breathtaking. God
Bless You is no longer an acceptable or legal way to end a student speech in Santa Rosa County. By
logical extension, God Bless America cannot be said or sung without violating (or at the very least,
the fear of violating) the Consent Decree. School officials cannot allow students to watch a speech or
address by the President of the United States, because he invariably concludes with God Bless You,
and God Bless America, which the District believes is a Prayer under the Consent Decree.
In addition, School Event is defined in the Consent Decree to include anything that takes
place on school grounds, since all such happenings, by definition, would be approved or
supervised by a School Official. (Consent Decree, Section 3(g)). Even after-school Good News
clubs come under this definition, because the Consent Decree does not apply only when the
principal attendees are not School District students. (Id.) (emphasis added). Since the principal
attendees of Good News clubs, or private baccalaureate services, or other private religious programs
for students are School District students, those events are School Events. (Id.) Prayer can
never take place at these School Events. The Consent Decree is therefore unconstitutionally
overbroad, because (1) it effectively bans Good News Clubs and other similar programs from
meeting in school facilities, in violation of Good News Club v. Milford Central School, 533 U.S. 98
(2001); (2) it prohibits educators like Plaintiffs from speaking or praying at privately-sponsored,
religious baccalaureate services held in rented school facilities; and (3) it requires educators like
Plaintiffs to censor private speech at these private events.
The Consent Decrees definition of School Official, at Section 3(h), is overbroad because it
includes people that have nothing to do with the District, such as Plaintiff Winklers husband or
Plaintiff Kirschs daughter, simply because they might be acting in concert or privity with their
family members who happen to be School Officials.
16
Finally, the worst offender in the overbreadth category is the Consent Decrees definition of
Official Capacity, encompassed within the definition of School Official, at Section 3(h). Under
this Consent Decree, anytime a School Official is at a School Event, she is automatically present in
her official capacity, with no exceptions. When the expansive definition of Official Capacity is
combined with the expansive definition of School Event, the overbreadth error is compounded
exponentially. Anytime the Educator Plaintiffs are at a School Event, regardless of the time,
place or circumstances of their attendance, they are deemed to be there in their official
capacity, and therefore subject to the onerous restrictions of the Consent Decree. This encroachment
cannot survive constitutional scrutiny. See e.g., Wigg, 382 F.3d at 815; Mergens, 496 U.S. at 250.
2. The Consent Decree is Unconstitutionally Vague.
The Consent Decree at Section 3(b) defines Prayer as a communication with a deity,
including but not limited to, a devotional, benediction, invocation, the Lords Prayer, blessing,
reading from a sacred text (unless done as part of an authorized curriculum), sermon, or otherwise
calling upon a deity to offer guidance, assistance, or a blessing. (Ex. 1 at p. 2) (emphasis added).
What are the exact activities included in this definition? No one knows, because it is open-ended, and
therefore vague. It is clear that the definition encompasses a great deal more than the traditional
notion of prayer because it includes devotionals, reading from a sacred text, and sermons.
Does the definition also include colloquial invitations for blessings from God, such as God Bless
You, or God Bless America? The District thinks so, and has banned those words from educators
emails and student speeches. What else comes under the not limited to clause of this sweeping
definition? No one knows.
The First Amendment requires specificity and pinpoint accuracy. Carroll v. President and
Com'rs of Princess Anne, 393 U.S. 175, 183 (1968) (An order issued in the area of First
Amendment rights must be couched in the narrowest terms that will accomplish the pin-pointed
objective permitted by constitutional mandate and the essential needs of the public order.); see also
17
NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916 (1982) (even where the First Amendment
activity is intermixed with violent conduct precision of regulation is demanded) (quoting NAACP
v. Button, 371 U.S. 415, 438 (1963)).
The Consent Decrees definition of School Event at Section 3(g) is also vague. The term is
defined as any happening approved by a school official. What does that mean? Does it include
breaks? Lunch periods? Transition time between classes? Off-the-clock time before and after school
when educators have the approval of school officials to be on school grounds? Third party events
in rented campus facilities? The list of activities enumerated in this definition is plagued by the same
open-ended, vague descriptor, includes but is not limited to, such that no one but the drafters can
be certain of all activities and happenings that were intended to be School Events (and perhaps
even the drafters are not absolutely certain of its limits). A law is unconstitutionally vague if it
either forbids or requires the doing of an act in terms so vague that [persons] of common
intelligence must necessarily guess at its meaning and differ as to its application. Connally v.
General Const. Co., 269 U.S. 385, 391 (1926). The vagueness doctrine insures that all be informed
as to what the state commands or forbids. Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939). When
free speech is at stake, precision of drafting and clarity of purpose are essential. Erznoznik v. City
of Jacksonville, 422 U.S. 205, 212-13 (1975).
Section 3(h)s definition of School Officials opens the door for a long list of people and
entities to come under this definition, and then further includes all other persons or entities in active
concert or privity with them. Who does this include? Does it include Plaintiff Winklers husband,
who offered the prayer at an employee banquet in February 2009, even though he is not now, nor has
he ever been, employed by the District? Does it include Plaintiff Kirschs daughter, when the two of
them pray in the stands at her grandsons wrestling matches, even though there is no evidence that
Mrs. Kirschs daughter has any connection to the District? How can a School Official be an
entity? No one knows for certain.
18
D. Defendants Policies and the Consent Decree are Unconstitutional Viewpoint

and Content Restrictions.
The Supreme Court has consistently held that a government entity violates the First
Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an
otherwise includible subject. Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788,
806 (1985); see also Good News Club, 533 U.S. at 106 (The restriction must not discriminate
against speech on the basis of viewpoint); Adler v. Duval Co. Sch. Bd., 306 F.3d 1070, 1081 (11th
Cir. 2000) (en banc) (a government entity may not engage in viewpoint discrimination) (citing
Cornelius, 473 U.S. at 806, and Perry Educ. Assn. v. Perry Local Educators Assn., 460 U.S. 37, 46
(1983)). The ban on viewpoint discrimination is a constant. Child Evangelism Fellowship of South
Carolina v. Anderson School District Five, 470 F.3d 1062, 1067 (4th Cir. 2006). Accordingly, the
nature of the forum in which the banned speech occurs (e.g., traditional, limited public or nonpublic)
is irrelevant in the context of viewpoint discrimination. Id.; Cornelius, 473 U.S. at 806 (Although a
speaker may be excluded from a nonpublic forum if he wishes to address a topic not encompassed
within the purpose of the forum, or if he is not a member of the class of speakers for whose benefit
the forum was created, the government violates the First Amendment when it denies access to a
speaker solely to suppress the point of view he espouses on an otherwise includible subject).
Here, Defendants and the Consent Decree impermissibly discriminate against Plaintiffs
religious viewpoints, by banning, for example, all religious dialogue between parent volunteers
and high school students on a field trip. If a student asks Plaintiff Moon or Plaintiff Beckham what
they think about the death penalty, they may discuss all kinds of opinions and facts (so long as they
are not profane), but Plaintiff Parents are prohibited from discussing what certain religions, such as
Islam or Christianity, teach about this subject, or what their own religious views are on the subject.
Similarly, parents and teachers may discuss all types of views and subjects in parent-teacher
conferences or email communications, but if a parent brings up a viewpoint grounded in religious
19
belief, the communication is either cut off or impeded by such restrictions as having to use a brand
new email to respond to an inquiry. Students who want to end their speeches with Good Luck are
left alone, while students who want to say God Bless are censored. Secular student clubs and non-
religious private groups are permitted to use district facilities to conduct their events, but private
religious programs whose principal attendees are students are considered School Events and
subject to a ban on prayer and all religious activity or discourse. These are classic types of viewpoint
discrimination, and are per se unconstitutional regardless of the forum in which they occur. See,
Good News Club, 533 U.S. at 106; Widmar v. Vincent, 454 U.S. 263 (1981) (finding that a
universitys exclusion of a student religious club from use of school facilities violated the right to
free speech and rejecting the universitys Establishment Clause defense); Lambs Chapel v. Center
Moriches Union Free School District, 508 U.S. 384 (1993) (finding unconstitutional denial of access
to a public school facility to show a film addressing the otherwise permissible subject matter of
family from a religious viewpoint).
Defendants Policies and the Consent Decree also are impermissible content-based
restrictions on Plaintiffs speech. It is axiomatic that the government may not regulate speech based
on its substantive content or the message it conveys. Rosenberger v. Rector & Visitors of the
University of Virginia, 515 U.S. 819, 828 (1995). See also, Perry, 460 U.S. at 45-46 n. 7; Widmar,
454 U.S. at 263. Regulations which permit the government to discriminate on the basis of the
content of the message cannot be tolerated under the First Amendment. Simon & Schuster, Inc. v.
Members of the New York State Crime Victims Board, 502 U.S. 105, 116 (1991). Defendants cannot
ban religious dialogue or discourse, especially during non-instructional time when other dialogue
and discourse is permissible, even if the Consent Decree purports to require them to do so. See id.
E. Defendants Policies and the Consent Decree Violate Equal Protection.
In addition to viewpoint and content discrimination, Defendants Policies and the Consent
Decree violate Plaintiffs right to equal protection guaranteed by the Fourteenth Amendment. Equal
20
protection of the law essentially requires that all persons similarly situated should be treated alike.
City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 439 (1985). Content-based
restrictions also have been held to raise Fourteenth Amendment equal-protection concerns because,
in the course of regulating speech, such restrictions differentiate between types of speech. Burson v.
Freeman, 504 U.S. 191, 198 n.3 (1993). Free speech is among the fundamental personal rights and
liberties which [is] protected by the Fourteenth Amendment from invasion by state action." Lovell v.
Griffin, 303 U.S. 444, 450 (1938). Policies discriminating against "religious" speech or dialogue
classify individuals based upon the content of their speech. Such class-based discrimination violates
free speech and equal protection. See also Burlington Northern R. Co. v. Ford, 504 U.S. 648 (1992).
II. PLAINTIFFS ARE SUFFERING IRREPARABLE HARM.
The Supreme Court has repeatedly held that [t]he loss of First Amendment freedoms, for
even minimal periods of time, unquestionably constitutes irreparable injury. Elrod v. Burns, 427
U.S. 347, 373 (1976). The First Amendment guarantee that the freedom of speech shall not be
abridged protects the free flow of ideas in a democratic society. When a citizen exercises her freedom
of speech, she is exercising a right that the Supreme Court has characterized as lying at the
foundation of free government by free men. Schneider v. New Jersey, 308 U.S. 147, 151 (1939).
The deprivation of such protected rights constitutes, a priori, irreparable harm and injury.
The constitutional right of free expression is ... intended to remove governmental restraints from the
arena of public discussion, putting the decision as to what views shall be voiced largely in the hands
of each of us in the belief that no other approach would comport with the premise of individual
dignity and choice upon which our political system rests. Simon & Schuster, 502 U.S. at 116
(quoting Leathers v. Medlock, 499 U.S. 439, 448-449(1991)).
Plaintiffs have suffered irreparable harm each day within the last academic year that they
have been subjected to Defendants Policies and the Consent Decree. Not being able to utter the
21
name of God in the public schools of Santa Rosa County, such as in God Bless, constitutes
grievous and irreparable harm for Plaintiffs and society at large. Being subject to any restrictions
within a privately-sponsored, religious service that takes place outside of school hours in a house
of worship or privately-rented facilities, constitutes grievous and irreparable harm for Plaintiffs
and society at large. Not being able to express religious views and convictions during non-
instructional time on campus or at school events, on the same terms that other views and subjects
can be discussed, constitutes grievous and irreparable harm for Plaintiffs and society at large.
Aware of the civil and criminal contempt proceedings that have already taken place
against school officials whose religious conduct and expression was alleged to violate certain
orders of this Court, Plaintiffs are self-censoring their religious speech and conduct every day.
They are either foregoing religious discourse or prayer altogether, or hiding in closets to do it, or,
in the case of Plaintiff Beckham, giving up volunteer opportunities in their community. With a
new school year fast approaching, and the return to school of students, teachers, staff and parent
volunteers, Plaintiffs should not have to endure the continued loss of their First Amendment rights
while the merits of their claims are litigated and decided. Swift action by this Court, and the granting
of the preliminary injunction sought herein, is the only means to avoid that irreparable harm from
being visited anew upon Plaintiffs.
III. THE BALANCE OF HARMS FAVORS PLAINTIFFS.
A. Entering An Injunction Will Not Harm Defendants.
There is no question that the balance of harms weighs heavily in Plaintiffs favor. Plaintiffs
will continue to be irreparably harmed. Defendants will not be harmed by the entry of the
Preliminary Injunction. Defendants have no legitimate interest in applying and enforcing
unconstitutional Policies or an unconstitutional Consent Decree.
22
B. Entering An Injunction Will Not Harm Anyone Because The Consent Decree
Should Be Vacated Anyway.
The Consent Decree should be vacated because the two anonymous plaintiffs for whose
benefit the Consent Decree was entered graduated on May 30, 2009, and no longer have a legal
interest in the Consent Decree, thereby rendering the Consent Decree irreversibly moot. See e.g.,
Adler v. Duval County School Board, 112 F.3d 1475, 1477-78 (11th Cir. 1997). An injunction in
favor of Plaintiffs will therefore not harm the Defendants.
The Courts recent conclusion in the ACLU Action (ACLU Action, dkt. 288) that the
Consent Decree can still be enforced is erroneous for four reasons. First, the Court was mistaken in
its determination that the judgment became final, with no appeal taken, prior to the alleged
graduation. (ACLU Action, dkt. 288 at 4-5) (emphasis added). The Consent Decree was entered in
the ACLU Action on May 6, 2009. (ACLU Action, dkt. 94). Judgment followed on May 11, 2009.
(ACLU Action, dkt. 96). The time for an appeal from that Judgment did not expire until June 10,
2009. Fed.R.App.P. 4(a)(1). But the Court lost jurisdiction of the ACLU Action on May 30, 2009,
the day both individual plaintiffs graduated. On June 1, 2009, the Court had an independent
obligation to sua sponte review its jurisdiction and dismiss the action as moot. United States v. Hays,
515 U.S. 737, 742 (1995) (federal courts are under an independent obligation to examine their own
jurisdiction). That duty continued on June 2, 3, 4, 5, 6, 7, 8, 9 and at least through June 10, 2009.
Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (holding that an actual case or controversy must exist
at all stages of litigation).
Second, the Courts independent obligation to sua sponte investigate its jurisdiction and
dismiss the ACLU Action as moot continued well beyond June 10, 2009:
Whatever effect the parties agreement (and the courts acquiescence therein) may
have had on the entry of the consent decree, our precedent makes clear that the
court remains under a continuing obligation to examine its jurisdiction where,
as here, the parties consent to the settlement of a case but leave for future
resolution the matter of attorneys fees.
23
DLil v. Best Western Encina Lodge & Suites, 538 F.3d 1031, 1036 (9th Cir. 2008) (emphasis added).
Here as in DLil, the Consent Decree was entered to resolve most of the issues in the ACLU Action,
but expressly left for future resolution the matter of attorney's fees. (ACLU Action, dkt. 94 at 13).
In fact, the matter of attorney's fees remained pending between the plaintiffs and Defendants in the
ACLU Action for almost five (5) months after the entry of the Consent Decree, and was not
ultimately resolved until September 28, 2009. (ACLU Action, dkt. 181). The Court had the duty to
investigate Plaintiffs status following their May 30, 2009 graduation, and to dismiss their case and
vacate the Consent Decree as moot because the Consent Decree was not a final order at the time it
became moot.
Third, the passage of time and Defendants decision not to appeal an otherwise moot order
did not relieve the Court of its independent duty to examine its jurisdiction and sua sponte to vacate
the Consent Decree as moot following the graduation of the two anonymous plaintiffs. Arizonans for
Official English v. Arizona, 520 U.S. 43 (1997). A final judgment must be dismissed as moot even
if the event triggering mootness occurs after the entry of final judgment, and even if no party to
the judgment appeals, where, as was the case in the ACLU Action, an intervenor attempts to
appear after the entry of the final judgment to challenge it, even if the intervenors standing is
doubtful. (Id. at 74-75) (unanimous Supreme Court vacates judgment of district court as moot, even
though the judgment became moot only two and a half months after it was entered and no party
appealed, because unsuccessful would-be intervenor who had doubtful and only arguable standing
to intervene subsequently challenged the judgment as moot).
Fourth, although parties to a consent decree are generally entitled to the benefit of their
bargain (ACLU Action, dkt. 288 at 5-6), parties cannot bargain amongst themselves to receive that
which the law cannot give them. A litigant cannot bargain away rights which the litigant never had
in the first place. Subject matter jurisdiction is not subject to waiver, and parties can neither concede
it nor contract with each other to confer it upon the Court. See e.g., DLil, 538 F.3d at 1035 (even if
24
the consent decree did contain such a stipulation [for continued standing] it would be of no moment
[because] the question of standing is not subject to waiver) (Whether or not the parties raise the
issue, federal courts are required sua sponte to examine jurisdictional issues such as standing)
(emphasis in original); Hays, 515 U.S. at 742 (the question of standing is not subject to waiver).
The anonymous plaintiffs in the ACLU Action chose not to file their action as a class action,
either as a matter of strategy or as a matter of necessity because they could not meet the class action
requirements of Civil Rule 23. Having voluntarily proceeded as individual plaintiffs for almost one
year in the ACLU Action, the most injunctive relief that the two individual plaintiffs were entitled to
on May 6, 2009 was an injunction lasting approximately three weeks, until May 30, 2009, the date of
their graduation. The individual anonymous plaintiffs in the ACLU Action were powerless to
request, Defendants were powerless to give, and the Court was powerless to approve, an injunction
lasting indefinitely (or at least five years) following graduation, because graduation automatically
deprived the Court of subject-matter jurisdiction over any continuing injunctive relief.
Accordingly, no harm can or will be caused to Defendants or the anonymous plaintiffs in the
ACLU Action by the issuance of the preliminary injunction sought by Plaintiffs.
IV. THE REQUESTED INJUNCTION SERVES THE PUBLIC INTEREST.
The protection of First Amendment rights is of the highest public interest. See Elrod, 427
U.S. at 373. Protecting First Amendment rights is ipso facto in the interest of the general public
because First Amendment rights are not private rights ... so much as they are the rights of the
general public ... for the benefits of all of us. Machesky v. Bizzell, 414 F.2d 283, 288-90 (5th Cir.
1969) (citing Time, Inc. v. Hill, 385 U.S. 374 (1967)); see also Bond v. Floyd, 385 U.S. 116 (1966).
Accordingly, granting the preliminary injunction sought herein will serve the interests of the public at
large.
CONCLUSION
For the foregoing reasons, Plaintiffs Motion for a Preliminary Injunction should be granted.
25
Respectfully submitted,
David M. Corry /s/ Horatio G. Mihet___________________

Florida Bar No. 861308 Mathew D. Staver
LIBERTY COUNSEL Florida Bar No.
PO Box 11108 Anita L. Staver
Lynchburg, VA 24506-1108 Florida Bar No.
434-592-7000 Telephone Horatio G. Mihet
434-592-7700 Facsimile Florida Bar No.
court@lc.org LIBERTY COUNSEL
PO Box 540774
Orlando, FL 32854-0774
800-671-1776 Telephone
407-875-0770 Facsimile
court@lc.org
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF CONFERRAL
Counsel for Plaintiffs hereby certifies that, consistent with N.D. Fla. Loc. R. 7.1(B), he has
conferred with opposing counsel regarding the contents of this motion in a good faith effort to
resolve by agreement the issues raised herein, but was unsuccessful. The School Board and
Superintendent oppose this motion.
/s/ Horatio G. Mihet_____________________
Horatio G. Mihet
One of the attorneys for Plaintiffs
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was filed electronically
with the Court this 30th day of May, 2010. Service will be effectuated upon all parties of record by
the Courts electronic notification system.
/s/ Horatio G. Mihet_____________________
Horatio G. Mihet
One of the attorneys for Plaintiffs

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Case 3:10-cv-00142-MCR-MD Document 12 Filed 05/30/10 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT

Mary E. Allen, Gayle Lindsey, Vicki L. Kirsch, )

PLAINTIFFS' MOTION FOR A PRELIMINARY

GAYLE LINDSEY, VICKI L. KIRSCH, JESSICA M. BARNES, DENISE L. GIBSON, ROBERT

JOHN METTY, JR., DEANDREA K. DAWSON, MARTHA GOUGH, KACE BROWNING,

SHEILA BOZEMAN, REBEKAH NOLAN, MITTIE J. WALLER, MICHELLE WINKLER,

BECKHAM, JOSEPH A. ROGERS and JAMES T. WATERS, (collectively, Plaintiffs), by and

capacity as SUPERINTENDENT, SANTA ROSA COUNTY SCHOOL DISTRICT (collectively

Amendment to the United States Constitution.

In support of this motion, Plaintiffs state as follows:

2. Plaintiffs also pray for Declaratory Judgment to determine the constitutionality of

3. Plaintiffs also seek damages.

4. An actual controversy exists between the parties involving substantial constitutional

United States Constitution.

preliminary injunctive relief.

Consent Decree have graduated from Defendants schools.

10. An injunction requiring Defendants to abide by the Constitution in order to protect

constitutional liberties is always in the public interest.

imposing only a nominal bond.

/s/ Horatio G. Mihet___________________

(Superintendent or Wyrosdick), (collectively, Defendants), has resulted in breathtaking

which are guaranteed by the United States Constitution.

Plaintiffs, to attend and participate in privately-sponsored, religious baccalaureate services held

observance with other consenting adults during non-instructional time.

Defendants Policies, pending the resolution of Plaintiffs claims on the merits.

Educators Association International (CEAI), including in its Written Closing Argument on

were censored. (Id. at 10-11 and Ex. C).

student-led religious speech and expression in many other instances:

Chaz was threatened not to engage in voluntary, student-initiated and student-led

events. (Decl. of S.M.H., 9-14, attached as Ex. 4).

created an environment that is hostile to voluntary, student-led and student-initiated religious

hushed, as if they are doing something illicit. (Id.)

Falyn Martins participation in First Priority, a voluntary Christian student club at

than one occasion. (Id. at 7-9).

refused to accept Defendants unconstitutionally broad mandate. (Beckham Decl. at 4-14).

Defendants religiously-hostile Policies have harmed parent-teacher relationships. Defendants have

Defendants. (Decl. of Michelle Winkler, 3, attached as Ex. 23).

discipline, termination, fines, penalties and sanctions. (Employee Plaintiffs Declarations at 5;

Bozeman, Nolan, Waller and Lay Declarations at 10-12).

all of which are incorporated by reference herein pursuant to Fed.R.Civ.P. 10(c).

wear whatever he wants, including a graduation gown, at privately-sponsored, voluntary, religious

prosecuted for a prayer said at a school event. (Id.)

were also school employees. (Waters Decl. at 3, 8-10).

place. (Consent Decree at 3(g), 5(a)-(b); Waters Decl. at 16-17).

I. PLAINTIFFS HAVE A SUBSTANTIAL LIKELIHOOD OF SUCCESS.

A. Defendants Policies Are Unconstitutional.

(See Prepared Remarks of President Barack Obama, www.whitehouse.gov/mediaresources

Bless You, and God Bless America).

voluntary, privately-sponsored religious programs for students within privately-rented school

freedom of expression of their views.)

Policy preventing [school board] employees from participating in religious-based activities is

private speech occurring at school-related functions is constitutionally protected, therefore private

C. The Consent Decree Itself is Unconstitutional.

Defendants widespread violations of Plaintiffs constitutional rights are neither accidental

vague Consent Decree.

1. The Consent Decree is Unconstitutionally Overbroad.

In Sentinel Communications, a newspaper vendor was allowed to facially challenge a

if he has not yet been adversely affected by these restrictions. Id.

Moreover, where, as here, a facial overbreadth challenge is brought to a prior restraint on

conduct or duty. Merriam-Webster's Collegiate Dictionary, Eleventh Edition, www.merriam-

Plaintiffs to censor private speech at these private events.