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Case 3:10-cv-00142-MCR -MD Document 82 Filed 10/25/10 Page 1 of 15



Mary E. Allen, et al., )

) Civil Action No. :
Plaintiffs, )
) 3:10-CV-00142-MCR-MD
v. )
School Board for Santa Rosa County, Florida, )
et al., )
Defendants. )


Having benefited from their own day in court, Defendants Minor I Doe and Minor II Doe

(the “Doe Defendants”) now seek to deny Plaintiffs that same right and benefit, and to avoid a

merits inquiry into the injustice and harms occasioned by their unconstitutional Consent Decree.

But the Doe Defendants merely present the same arguments for dismissal (albeit in more

abbreviated fashion), and therefore make the same errors, as their co-defendants School Board

and Superintendent. Plaintiffs have already exhaustively demonstrated why those arguments

must fail (dkts. 35 and 65). Plaintiffs therefore rely principally on and incorporate herein their

previous responses, and will instead focus only on the most significant errors made by the Doe

Defendants to show that their motion to dismiss must be denied.



The first argument advanced by Doe Defendants is also the most curious. In a motion to

dismiss filed in this case, Doe Defendants assert they are not proper defendants in this case.

That would, of course, render Doe Defendants’ motion a nullity, because putative defendants
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cannot loiter around the courthouse (or the electronic docket) and file motions to dismiss in cases

where they have not been made parties. The Court invited Doe Defendants to participate as

defendants in this case, and to defend a Consent Decree to which they are signatories. (Dkt. 45).

The Court ordered that Doe Defendants be served with the Summons and Complaint, imposed a

deadline for them to announce their decision, and stayed this action in the meantime. (Id.). The

Doe Defendants were in fact served (dkts. 46, 52-53), and they accepted the Court’s invitation to

join this action. (Dkt. 64). The Doe Defendants have aligned themselves with the other

defendants in this lawsuit to defend the Consent Decree against Plaintiffs’ constitutional

challenge, and have filed the instant motion to dismiss. (Id.).

The Doe Defendants seek to elevate form over substance by claiming that the Complaint

must be dismissed so that they can be named as defendants in an amended complaint. They are

already defendants. Their only rationale for dismissal is that they need to “understand the precise

nature of the claims against them.” (Dkt. 64 at 7). But Plaintiffs have no claims against Doe

Defendants, who no longer have any connection to Santa Rosa County schools. Plaintiffs’ only

claims are against the Consent Decree and against the School Board and Superintendent

Defendants for their unconstitutional interpretation and application of the Consent Decree. These

claims are set out in detail in the instant Complaint, with which Doe Defendants have been

formally served, and to which Doe Defendants have formally responded. Thus, an amended

complaint “naming” the Doe Defendants as defendants would look identical to the instant

Complaint, and would serve no purpose other than to further delay this action to the prejudice of


Neither of the two authorities containing the dicta cited by Doe Defendants support their

argument for dismissal, because neither English v. Seabord Coast Line R.R. Co., 465 F.2d 43 (5th

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Cir. 1972) nor Macklin v. Butler, 553 F.2d 525 (7th Cir. 1977) held that a district court may not

join defendants to an action. Like the mistaken defendants in another case, Doe Defendants thus

place the sole burden on the plaintiffs apparently without recognizing that … the
Court itself may join additional parties under Rules 19 and 21. Failure by the
plaintiffs to name possible Rule 19 parties in the original complaint does not
render the complaint defective warranting dismissal. Because the defendants
assert the absence of certain possible defendants as grounds for objecting to the
complaint rather than as a motion to join additional parties, the motion to dismiss
the complaint for the alleged failure to name as original parties additional possible
defendants is denied.

School Dist. of Kansas City, Mo. v. State of Mo., 460 F. Supp. 421, 442-43 (W.D. Mo. 1978)

(emphasis added) (disapproved on other grounds by Bd. of Educ. of City of Peoria, Sch. Dist. No.

150 v. Illinois Bd. of Educ., 810 F.2d 707 (7th Cir. 1987)).

Doe Defendants are now defendants in this action, and they are defending the Consent

Decree against the well-pled and well-known claims of Plaintiffs. 1 The Court should deny their

motion to dismiss.


Doe Defendants present a conclusory and exceedingly brief argument that all Plaintiffs

lack standing to bring this action, but only discuss the Pastor Plaintiffs’ claims and one of the

dozens of claims brought by the Educator Plaintiffs. (Dkt. 64 at 7-8). In their one and one-half

page “argument” on standing, Doe Defendants do not even mention the Student Plaintiffs, the

Former Student Plaintiffs, the Parent Plaintiffs or any of the other dozens of claims brought by

the Educator Plaintiffs. (Id.). Thus, Doe Defendants do not explain how a parent, such as Mrs.

Beckham, who is being denied the right to volunteer at her child’s school on account of her

unwillingness to waive core constitutional rights, does not have standing to seek redress against

Plaintiffs in no way concede that Doe Defendant belong in this action, and Plaintiffs do not waive their
argument that Doe Defendants have no standing to defend the Consent Decree because they have
graduated. (Dkt. 35 at 3-12).
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the Consent Decree and School Board conduct responsible for that denial. (Id.). Nor do the Doe

Defendants explain how a student, such as H.J.H., does not have standing to challenge her

school’s prohibition of voluntary, non-disruptive, student-led and student-initiated religious

expression during non-instructional time. (Id.). Nor do the Doe Defendants explain how former

students lack standing to seek damages (nominal or actual) for their school’s unconstitutional

interpretation and application of an unconstitutional Consent Decree to deny them their First

Amendment rights. (Id.).

The sole argument on standing which Doe Defendants choose to develop so obviously

misses the mark that it can be dismissed out of hand. Doe Defendants maintain that Pastor

Plaintiffs do not have standing to sue because they have no “right to the unfettered assistance of

public school employees to plan and produce baccalaureate services.” (Dkt. 64 at 8). But Pastor

Plaintiffs seek no such “unfettered assistance.” They seek only the assistance and involvement of

private individuals who happen to be school employees, during the off-the-clock hours of those

employees, on time that belongs to the employees themselves, without interference from their

public employer. (Compl., ¶¶ 194-210). Pastor Plaintiffs allege that the Consent Decree prohibits

even this type of involvement and assistance, and set forth a multitude of facts showing that the

Consent Decree has actually been applied to prohibit piano players and event organizers from

off-duty involvement in baccalaureates solely because they happen to be school employees. (Id).

If the Doe Defendants claim that Pastor Plaintiffs are not entitled even to this type of assistance,

they certainly cite no support for such a breathtaking proposition. If they concede that Pastor

Plaintiffs are entitled to such assistance, the Doe Defendants do nothing to neutralize Pastor

Plaintiffs’ claims that they have been actually denied this assistance, and have been significantly

hampered in their efforts to organize baccalaureates, by the Consent Decree and the School

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Board and Superintendent Defendants. In either case, Pastor Plaintiffs’ claims must be decided

on their merits, after full discovery, and cannot be brushed away simply by mischaracterizing the

nature of those claims.

Doe Defendants also contend, in a mere one sentence utterly devoid of any authority, that

“Pastor Waters has no right to lead student groups on the premises of public schools within the

School District.” (Dkt. 64 at 8). The reason Doe Defendants do not offer any authority is because

the Supreme Court has held that a school district that opens up its facilities for private

community use cannot exclude from those facilities privately-sponsored, after-school religious

clubs or activities for students. See Good News Club v. Milford Central Sch. Dist., 533 U.S. 98

(2001) (Christian Good News Club cannot be banned from meeting on public school campus

open to other private secular groups); see also, Culbertson v. Oakridge Sch. Dist. No. 76, 258

F.3d 1061 (9th Cir. 2001) (public school may not ban the Christian Good News Club from

meeting immediately after school on an elementary school campus); Good News/Good Sports

Club v. Sch. Dist. of City of Ladue, 28 F.3d 1501 (8th Cir. 1994), cert. denied, 515 U.S. 1173

(1995) (same).

Pastor Waters alleges that Defendant School Board has opened its facilities for private

community use. (Compl. ¶¶ 191, 232). If true, which must be assumed for purposes of a motion

to dismiss, this would indeed give community members, including Pastor Waters, the “right to

lead student groups on the premises of public schools within the School District” in private,

religious after-school activities. This is what Pastor Waters wants to do. (Compl. ¶ 238). But the

Consent Decree classifies all such activities as School Events, even though they are privately-

sponsored, because they are principally attended by district students. (Compl. ¶ 239; Consent

Decree ¶ 3(g)). Because the Consent Decree bans “Prayer” at such “School Events,” it is in direct

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contravention of Good News Club, and therefore unconstitutional on its face. Pastor Waters has

standing to bring this challenge, because he is being adversely affected by the Consent Decree’s

unconstitutional prohibition.

The Court should not entertain Doe Defendants’ half-hearted and conclusory “efforts” to

deny all Plaintiffs their day in court, on the basis of only a couple of “examples” which

themselves clearly miss the mark. Plaintiffs have detailed the legal and factual bases for their

standing to bring this action (dkt. 35 at 18-43), and the Doe Defendants offer nothing in rebuttal.

The motion to dismiss should be denied.



Doe Defendants’ last argument – that Plaintiffs fail to state claims on which relief may be

granted – is rooted in a regurgitation of the Court’s order denying CEAI’s intervention into their

suit, which Doe Defendants seek to apply to these Plaintiffs in this action. (Dkt. 64 at 9-13). Doe

Defendants would thus have this Court ignore the myriad factual allegations adduced by

Plaintiffs regarding the unconstitutional effects of the Consent Decree which were not before

the Court in CEAI’s intervention action. (E.g., parents banned from volunteering at children’s

schools unless they agree not to engage in any “religious dialogue” or discussion “regarding

religion, religious views or the like;” pastors banned from leading private, after-school religious

activities for district students on same terms as other private individuals lead non-religious

activities; students banned from voluntary, student-led and student-initiated religious discourse

during non-instructional time; students banned from uttering such words as “God Bless;” and

many, many others). But the Court cannot ignore those well-pled factual allegations, and must

instead accept them as true. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft

v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Plaintiffs have demonstrated that applying the Court’s

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denial of CEAI’s intervention to this case, without the benefit of discovery and trial, would be

improper not only because of the new facts brought before the Court, but also because it would

violate the due process rights of all Plaintiffs, including twenty-one Plaintiffs that were never

before present before this Court. (Dkt. 35 at 12-17).

Doe Defendants purport to defend only the Consent Decree, and not any of their co-

defendants’ interpretations, applications and conduct in furtherance of the Consent Decree. (Dkt.

64 at 9, fn. 4). Thus, Doe Defendants apparently want to deprive their co-defendant School

Board and Superintendent of any excuse for their conduct in limiting the free expression of

Plaintiffs, even though in many cases that conduct was specifically attributed by the School

Board and Superintendent to the Consent Decree. (E.g., censorship of Chaz Riley’s address to

fellow students purportedly because “Good luck and God Bless” is a “Prayer” banned by

paragraphs 3(b) and 5(e) of the Consent Decree; banning of Mary Allen’s graduation speech

because it would purportedly violate the Consent Decree).

The Doe Defendants’ defense of the Consent Decree, however, is based either upon an

assault on the plain language of that instrument, or a mischaracterization of Plaintiffs’ claims.

For example, Doe Defendants accurately set out the Consent Decree’s prohibition on the

“display of religious symbols … on the classroom walls … on the classroom floor, or … on the

District’s tangible property,” but then claim, incredibly, that this provision does not facially ban

the display of a Bible or devotional book on a teacher’s desk, or the placement of an angel on a

“holiday” tree. (Dkt. 64 at 10). Although Doe Defendants do not explain their logic, the only

“logical” explanations would be either that a Bible, a devotional book or an angel are not

“religious symbols,” or that a teacher’s desk or a classroom “holiday” tree is not “the District’s

tangible property.” Both alternatives are implausible.

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When they cannot assail the plain language of the Consent Decree, Doe Defendants

mischaracterize Plaintiffs’ claims to make them fit what Doe Defendants contend are legally

implausible claims, when in fact Plaintiffs assert altogether different claims grounded in firmly

established constitutional rights. For example, Doe Defendants continually assert that Educator

Plaintiffs wish to engage in religious expression in their official capacity, while on-the-clock,

and while representing their public school employer, when in fact the Educator Plaintiffs attack

the Consent Decree’s and their employer’s failure to recognize the difference between official

conduct and private-capacity conduct. The Educator Plaintiffs adduce numerous facts where the

School Board and Superintendent have actually banned or sharply interfered with private-

capacity conduct, during off-the-clock time, and have attributed their actions directly to the

Consent Decree (e.g., banning piano player from playing piano at privately-sponsored, evening

religious event held in a church; banning event coordinator from leading privately-sponsored,

evening religious event held in a church; threatening teacher not to sit with other colleagues at

evening religious event held in a church). These well-pled factual allegations must be accepted

as true, and the Court must consider (or re-consider) whether the “common sense” application of

the Consent Decree envisioned by the Court and promised by the Superintendent has, in fact,

materialized, or whether the terms of the Consent Decree that allow for these types of intrusions

to take place are indeed unconstitutional.

Moreover, although they say they are not defending their co-defendants’ policies and

conduct in furtherance of the Consent Decree, the Doe Defendants proceed to do precisely that

by arguing that Plaintiffs have not stated cognizable claims for relief in challenging that conduct.

(Dkt. 64 at 14-27). Doe Defendants contend, for example, that neither Chaz Riley nor the

Educator Plaintiffs can challenge the School Board’s cleansing of “God Bless” from their

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vocabulary, because “they have no free speech right” to utter those words. (Dkt. 64 at 19, 21).

Doe Defendants’ argument in this regard is instructive for three reasons.

First, Doe Defendants contend that words such as “God bless” do not “appear to

constitute ‘Prayer’ within the meaning of the Consent Decree.” (Dkt. 64 at 19). But the School

Board and Superintendent have reached exactly the opposite conclusion, namely, that even a

pedestrian reference to “God Bless” is a “Prayer” within paragraph 3(b) of the Consent Decree,

and therefore banned at all School Events and in all school communications under paragraph 5(e)

of the Consent Decree. 2 (Compl. at ¶¶ 100-102 and Exhibit E). Doe Defendants’ contrary

interpretation provides no comfort to Plaintiffs, because, while Doe Defendants have graduated

and moved on to other things, Plaintiffs (including Educator Plaintiffs and Student Plaintiffs) are

left to deal with the School Board’s application of the Consent Decree. After all, it is the School

Board and Superintendent who are charged with enforcing the Consent Decree against, and

reporting violations of, their employees. More significantly, the fact that the two parties who

drafted the Consent Decree (the Doe Defendants and the School Board/Superintendent)

can come to such divergent conclusions as to the meaning of “Prayer” and other terms in

that Consent Decree demonstrates that the instrument is anything but clear, and gives

substantial weight to Plaintiffs’ contention that it is unconstitutionally vague. If the drafters

of the Consent Decree themselves do not know what it means, how can Plaintiffs know, and how

Doe Defendants claim that Chaz Riley “does not indicate which provision of the Consent Decree he
believes prohibits him from using the phrase “God Bless.” (Dkt. 64 at 21, fn. 22). Doe Defendants have
apparently overlooked paragraphs 100-102 of the Complaint where Chaz Riley identifies precisely which
provisions of the Consent Decree (i.e., paragraphs 3(b) and 5(e)) were employed by the School Board to
censor him. Chaz Riley doesn’t have to guess which provisions of the Consent Decree are responsible for
the denial of his First Amendment rights because the School Board Defendant has told him exactly which
provisions of the Consent Decree it drafted ban “God Bless” in Santa Rosa Schools.
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can Plaintiffs be unreasonable in adopting the same interpretation as the entity charged with

enforcing the Decree and disciplining them?

Second, Doe Defendants’ argument reveals, for the first time, that the banning of “God

Bless” in Santa Rosa Schools was not accidental as a result of a misreading of the Consent

Decree, but was intentional as a result of Defendants’ erroneous belief that such phrases can be

legally purged in public schools. When CEAI forecasted in the intervention action that a logical

and literal application of the Consent Decree would lead to the banning of “God Bless America,”

one of our unofficial national anthems, or the banning of “God Bless” wishes after a student

sneezes, or the banning of President Obama’s speeches to schoolchildren which invariably end

with “God Bless You,” the Doe Defendants (as well as the School Board and Superintendent)

were quick to dismiss that interpretation of the Consent Decree as “hysteria,” and “hyperbole.”

Doe Defendants have now come full circle to argue – incredibly – that neither Chaz Riley nor

teachers have any right to say “God Bless” at school. (Dkt. 64 at 19, 21).

Third, Doe Defendants’ argument demonstrates a serious misunderstanding of precedent.

Doe Defendants contend that teachers and students can and should be banned from uttering “God

Bless” at school because their words would amount to government speech in a non-public forum.

(Dkt. 64 at 19, 21). Whether or not that is, in fact, the case will depend on several factual

circumstances which the Court cannot decide on a motion to dismiss, such as whether the speech

is compulsory or voluntary, curricular or extra-curricular, and reasonably attributable to

individual speakers or the school. See public fora discussion at dkt. 35, pp. 44-52; see also,

Westfield High Sch. L.I.F.E. Club v. City of Westfield, 249 F. Supp. 2d 98, 117-18 (D. Mass.

2003). But even if the Court concludes (after discovery and merits litigation) that Chaz Riley was

engaged in government speech within a non-public forum when he wanted to end his address

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with “God Bless,” or that teachers are speaking for the government when they wish blessings

upon a sneezing student (which Plaintiffs in no way concede is the case), by no means does it

follow (as Doe Defendants contend) that “the school may limit or eliminate at its discretion”

students’ and teachers’ ability to greet each other with “God Bless.”

Government does not have the authority to arbitrarily and capriciously censor speech,

even in a non-public government forum. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273-

276 (1988) (holding that school boards may exercise “editorial control over the style and content

of student speech in school-sponsored expressive activities so long as their actions are

reasonably related to legitimate pedagogical concerns”) (emphasis added). Speech restrictions

in non-public government fora must still be reasonable and viewpoint neutral. Id.; see also,

Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 806 (1985) (“Control

over access to a nonpublic forum can be based on subject matter and speaker identity so long as

the distinctions drawn are reasonable in light of the purpose served by the forum and are

viewpoint neutral”); Planned Parenthood of S. Nevada, Inc. v. Clark County Sch. Dist., 941 F.2d

817, 829-30 (9th Cir. 1991) (school board exclusion of Planned Parenthood advertisements from

student publication was reasonable because material was improper for maturity level of students

and educational mission of school board); Romano v. Harrington, 725 F. Supp. 687 (E.D.N.Y.

1989) (genuine issues of material fact precluded summary judgment on whether school board

could punish publication in school newspaper of student article opposing Martin Luther King, Jr.

federal holiday).

While government might arguably have a reasonable and legitimate interest in precluding

students from ending a speech with “Vote Republican!” or “U.S. Out of Afghanistan!” (the

examples proffered by Doe Defendants), government cannot reasonably preclude students and

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teachers from borrowing the words of our unofficial national anthem, our national motto or our

President, and using those words to greet one another in ways that cannot possibly be construed

to establish or advance a religion.

[W]hen censorship of a school-sponsored publication has no valid educational

purpose, the First Amendment is directly implicated and requires judicial
intervention. Substantial deference to educational decisions does not require a
wholesale abandonment of First Amendment principles simply because the
medium for the student's expression is funded by a school board. The holding
in Hazelwood must be understood in the context of the Court's preceding decision
in Tinker v. Des Moines Independent Community School District, 393 U.S. 503,
89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Students in the public schools do not
“shed their constitutional rights to freedom of speech or expression at the
schoolhouse gate.” They cannot be punished merely for expressing their personal
views on the school premises-whether “in the cafeteria, or on the playing field, or
on the campus during the authorized hours,”-unless school authorities have reason
to believe that such expression will “substantially interfere with the work of the
school or impinge upon the rights of other students.

Desilets on Behalf of Desilets v. Clearview Reg'l Bd. of Educ., 630 A.2d 333, 338-39 (N.J. Super.

Ct. App. Div. 1993) (aff'd, 137 N.J. 585, 647 A.2d 150 (1994)) (holding that school board’s

censorship of student’s R-rated movie reviews in school publication was not reasonable and

violated student’s First Amendment rights).

At the very least, if this Court is inclined to conclude otherwise and enshrine Doe

Defendants’ chilling view of the public square into the law of the land in Santa Rosa County, it

should not do so at the motion to dismiss stage, without the benefit of a full merits inquiry.

Desilets, 630 A.2d at 338 (“The curtailment of cherished First Amendment rights mandates

careful analysis of the reasons given for the censorship in light of the facts of this case to

determine if there is any valid educational purpose to support the censorship”) (emphasis added).

Ultimately, Doe Defendants are confused about the stage of these proceedings, and seek

to put Plaintiffs to the proof of their factual allegations, when in fact the well-pled factual

allegations themselves are sufficient to move the case from the pleading stage to discovery and

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merits determination. Twombly, 550 U.S. at 555; Iqbal, 129 S.Ct. at 1949. Thus, under Twombly

and Iqbal:

• Plaintiffs have stated free speech claims upon which relief can be granted because they

have alleged facts which, accepted as true, demonstrate that the Consent Decree and the

School Board and Superintendent Defendants have interfered with Plaintiffs’ free speech


• Plaintiffs have stated free association claims upon which relief can be granted because

they have alleged facts which, accepted as true, demonstrate that the Consent Decree and

the School Board and Superintendent Defendants have curtailed the rights of teachers,

students, parents and community members to associate privately during off-school, off-

duty hours to pursue “a wide variety of political, social, economic, educational, religious,

and cultural ends.” Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984).

• Plaintiffs have stated Equal Protection claims upon which relief can be granted because

they have alleged facts which, accepted as true, demonstrate that the Consent Decree and

the School Board and Superintendent Defendants have treated more favorably, and do not

ban from their fora, those who speak on otherwise permissible subjects from a non-

religious viewpoint. Jones v. Ray, 279 F.3d 944, 946 (11th Cir. 2001).

• Plaintiffs have stated Free Exercise of Religion claims upon which relief can be granted

because they have alleged facts which, accepted as true, demonstrate that the Consent

Decree is not only not neutral towards religion (as Doe Defendants acknowledge), but

also is not narrowly tailored to serve any compelling government interest. First Assembly

of God of Naples v. Collier County, 20 F.3d 419, 423 (11th Cir. 1994) (holding that if a

law is not neutral toward religion it must be narrowly tailored to serve a compelling

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government interest). No compelling government interest is served, including deference

to the Establishment Clause, in banning privately-sponsored religious after-school

activities held in privately-rented school facilities solely because the principal attendees

are school district students. Good News Club., 533 U.S. at 113-19.

• Finally, Plaintiffs have stated Establishment Clause claims upon which relief can be

granted because they have alleged facts which, accepted as true, demonstrate that the

Consent Decree and the School Board and Superintendent principally and primarily

inhibit religion by, inter alia, precluding piano players and event organizers from

participating in private church services held off-school grounds during off-school hours,

and by interfering with pastors’ rights to conduct private church services “in the precise

manner that they prefer” (Sch. Bd. Mot. to Dismiss, dkt. 23 at 20). See Lemon v.

Kurtzman, 403 U.S. 602, 612-13 (1971) (statute that has principal or primary effect of

inhibiting religion violates Establishment Clause).


For these reasons, the Doe Defendants’ Motion to Dismiss should be denied.

Respectfully submitted,

David M. Corry /s/ Horatio G. Mihet___________________

Florida Bar No. 861308 Mathew D. Staver
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. LIBERTY COUNSEL
PO Box 540774
Orlando, FL 32854-0774
800-671-1776 Telephone
407-875-0770 Facsimile

Case 3:10-cv-00142-MCR -MD Document 82 Filed 10/25/10 Page 15 of 15


I HEREBY CERTIFY that a true and correct copy of the foregoing was filed

electronically with the Court this 25th day of October, 2010. Service will be effectuated upon all

parties of record by the Court’s electronic notification system.

/s/ Horatio G. Mihet_____________________

Horatio G. Mihet, Esq.
One of the attorneys for Plaintiffs