United States District Court, Northern District of New York
February 15, 2002
PAUL ANDERSON,[FN1] ROBERT KIESINGER, AND RONALD RUSSELL, PLAINTIFFS,
MEXICO ACADEMY AND CENTRAL SCHOOL, THE SCHOOL BOARD OF THE MEXICO ACADEMY AND CENTRAL SCHOOL, IN THEIR RESPECTIVE OFFICIAL CAPACITIES, ROBERT DIFLORIO, THE SCHOOL SUPERINTENDENT OF THE MEXICO ACADEMY AND CENTRAL SCHOOL, IN HIS OFFICIAL CAPACITY, DEFENDANTS.
The opinion of the court was delivered by: Norman A. Mordue, United States District Judge.
MEMORANDUM-DECISION AND ORDER
Plaintiffs Robert Kiesinger and Ronald Russell filed a lawsuit in the
above captioned matter bringing five causes of action against defendants
Mexico Academy and Central School, School Board of the Mexico Academy and
Central School, and Robert DiFlorio, Superintendent of Mexico Academy and
Central School (collectively "defendants" or "Mexico Academy"), pursuant
to 42 U.S.C. § 1983 and 1988, and Art. 1, § 3 of the New York
Constitution. Each cause of action stems from defendants' alleged
exclusion of plaintiffs' bricks from the brick walkway in front of the
Mexico Academy high school on the basis that the inscriptions on their
bricks violated the Establishment Clause because they contained Christian
messages and/or referred to "Jesus." In their first cause of action
plaintiffs aver defendants violated their First Amendment right to Freedom
of Speech. Second, plaintiffs contend defendants violated the
Establishment Clause of the First Amendment by exhibiting "hostility"
toward religion. Third, plaintiffs assert defendants' actions violated
their First Amendment right of Free Exercise of religion. Fourth,
plaintiffs assert defendants have violated their rights under Art. 1,
§ 3 of the New York Constitution. Finally, plaintiffs seek attorneys'
fees. Presently before the Court is plaintiffs' motion for entry of a
preliminary injunction against Mexico Academy in accordance with
Fed.R.Civ.P. 65 directing Mexico Academy to place plaintiffs' bricks back
in the walkway in front of the Mexico Academy High School, and for
attorneys' fees and costs incurred in connection with this motion.
For the reasons stated in the following text, the Court holds that
plaintiffs have not submitted evidence demonstrating a clear or
substantial likelihood of success on the merits, and as such, they are
not entitled to injunctive relief at this stage of the litigation.
According to the parties' submissions: During the 1996-1997 school
year, the class of 1999 and Superintendent Havens
and the Mexico Academy school board commenced a plan to sell bricks to
Mexico Academy community members in an effort to raise money for the
class of 1999's senior class trip. See Aff. J. Russell. The bricks
were sold for $25 and then later $30 a piece. See Aff. Havens. The
bricks could be inscribed with up to three lines of text. See Def's
Exh. A. No obscene or vulgar messages were permitted. See Aff. J.
Russell. After the bricks were inscribed they were to be placed in a
walkway to be constructed in front of the Mexico Academy high school.
See Aff. Huff. At the time of purchase, individuals were given the
opportunity to select where in the walkway they wished their bricks to
be placed. See Def's Exh.
At least one of the plaintiffs in this action purchased bricks that
contained inscriptions referring to "Jesus." See Aff. R. Russell. A
brick inscribed "God Bless You/Father Wirkes/St. Mary's Church" was also
purchased, though not by a party to this action. See id. After the bricks
were placed in the walkway, Mexico Academy began receiving complaints
from community members who were concerned about bricks which made
"specific references to a Christian God." See Aff. Havens.
Additionally, Mexico Academy received inquiries from the office of United
States Senator Charles Schumer about the bricks referring to "Jesus."
Id. In an attempt to quell the complaints, Mexico Academy placed a
disclaimer in the walkway that read:
The messages on this walk are personal expressions and
contributions of the individuals of Mexico Academy and
Central School community.
Aff. R. Russell. The disclaimer, however, did not lessen the
complaints. See Aff. Havens. Thereafter, defendants' obtained a legal
opinion with regard to the bricks at issue, and were advised that while
the law was unsettled, it appeared that bricks which made reference to a
particular God, suggesting the exclusion of others, offended New York
Education Law § 414 and the United States Constitution. See id.
Consequently, in February 2000, the Mexico Academy school board voted to
remove the bricks which made specific reference to a "Christian God."
Aff. Havens. Believing "God" to be "a universal term," Mexico Academy
did not remove the brick inscribed "God Bless You/Father Wirkes/St.
Mary's Church." Id. The Mexico Academy school board and Superintendent
Havens determined "not to permit any religious or political expressions"
on the bricks. Id. Thereafter, an individual seeking to purchase a
brick, with the inscription "Keep Abortion Legal," was turned away. Id.
In September 2000, plaintiffs Robert Kiesinger and Ronald Russell filed
the instant action seeking declaratory and injunctive relief. Presently
before the Court is plaintiffs' motion for a preliminary injunction
directing defendants to place their bricks in the Mexico Academy
B. Evidentiary Submissions
In support of their motion, plaintiffs have submitted: affidavits from
plaintiff Ronald Russell, and former Mexico Academy students: Crystal
Huff, Tiffany Henderson and Joshua Russell; two exhibits; and a newspaper
article describing the present controversy.
a. Ronald Russell
In his affidavit, plaintiff Ronald Russell avers the following: He is
a member of the Mexico community and resides within the Mexico school
district. Mexico Academy students offered him the opportunity to
purchase bricks that would be placed in the front walkway of Mexico
Academy and inscribed with the message of his choice. Mr. Russell bought
five bricks which were
inscribed with Christian messages, including, "Jesus Saves," "Jesus is
Lord," and "You must be born again," and placed in the walkway. In a
letter dated March 8, 2000, Superintendent Havens wrote Mr. Russell
explaining that his bricks had been removed from the walkway:
I am writing you regarding the bricks you purchased
for the front of the high school. The bricks are
inscribed "Jesus saves", "Ye must be born again Jesus
Christ", Jesus Christ the only way!", "Jesus loves
you", "Jesus Christ is lord", "Jesus saves", and "Ye
must be born again". As you might be aware there has
been a fairly vocal complaint about bricks which
contain the word "Jesus". As a result of that
continuing complaint and a resulting inquiry from
Senator Schumer's office we asked our attorneys about
our legal right to keep the bricks as part of our
We have been informed that bricks which promote a
particular religion cannot legally be part of the
sidewalk. Bricks which speak about God are acceptable
since they do not refer to a particular religion.
Bricks such as yours, which include the word Jesus,
are prohibited in publicly funded schools since they
promote a particular religion (Christianity).
I regretfully inform you that we have therefore
reluctantly removed your bricks. I apologize for any
distress this causes you. I hope you understand that
as school officials we swear an oath to obey the
Constitution and the current laws of the land. Our
counsel tells us that the Supreme Court's current
interpretation of separation of Church and State
prohibits us from keeping your bricks.
We would be happy to reinscribe your bricks or return
your money. Enclosed is a new form and stamped
envelope. Please let me know which you prefer.
Again I am sorry to have to inform you of this matter.
Pltf.'s Ex. A. Mr. Russell asserts that although his bricks were
removed, other bricks with religious messages were allowed to remain in
the walkway, including the brick inscribed "God Bless You/Father
Wirkes/St. Mary Church." Mr. Russell avers that after removing his
bricks, the Mexico Academy school board adopted a policy prohibiting
placement of bricks in the walkway which contain "religious messages."
b. Robert Kiesinger
In their complaint, plaintiffs state that in 1998 plaintiff Robert
Kiesinger bought a brick inscribed "Jesus Saves/John 3:16." The
complaint states that when Mr. Kiesinger purchased the brick he indicated
that he wished it to be placed near the front of the walkway,
nonetheless, it was placed in an area not plainly visible at the edge of
some shrubbery. Mr. Kiesinger allegedly complained and his brick was
c. Crystal Huff
Crystal Huff attests that in 1996, she was a member of the Mexico
Academy Class of 1999, and the student government. Ms. Huff avers that
in the "fall of 1996, the class government proposed a plan to sell bricks
to the community to create a brick walkway in front of the school." As a
member of the student government Ms. Huff worked with class officers "in
an effort to devise and to implement a plan to sell the bricks." Ms.
Huff avers that because the student government "wanted the community to
be more than just financial supporters of the walkway," it proposed to
allow "the community to express themselves on the brick by inscribing
messages." Ms. Huff asserts that after discussing the types of
inscriptions that would be permissible, and more specifically, whether
"religious, political, and controversial expression would be allowed on
the bricks," the student government "decided to forbid only inscriptions
that were obscene or vulgar." Ms. Huff contends that the student
government's "overseers," identified as Mr. Borrowman and Ms. Duger,
approved the plan, which was next submitted and approved by Superintendent
Havens and the Mexico Academy school board. Ms. Huff asserts that after
obtaining approval, the class of 1999 assembled and the "class leaders
explained that the bricks could be sold to community members for $30 and
could be inscribed with the messages of purchaser's choice except that no
obscene or vulgar expression would be allowed."
d. Tiffany Henderson and Joshua Russell
Tiffany Henderson and Joshua Russell, both members of the Class of
1999, have submitted identical affidavits. They aver that the class of
1999 class officers worked on a project to raise funds for their senior
class trip by selling bricks to the community that would be used "to
construct a brick walkway at the front entrance of the school." Ms.
Henderson and Joshua Russell assert that class leaders explained at a
class assembly that the bricks would be sold for $30 and inscribed with a
message of the purchaser's choice except that "no obscene or vulgar
expression would be allowed." Ms. Henderson and Joshua Russell further
aver that during the assembly, at which Mr. Borrowman and Ms. Duger were
present, "at least one student specifically asked if there were any
limitations placed upon the inscriptions. The class officers explained
that there were no limitations on expression, but the inscriptions could
not be vulgar or obscene."
In opposition, defendants have submitted affidavits from Scott Covell,
who has been the Assistant Superintendent for Business for the Mexico
Central School District since April 1997, and Michael Lee Havens, who was
Superintendent of Schools for the Mexico Central School District between
1995 and June 2000, as well as several exhibits.
a. Scott Covell
Mr. Covell avers that it has always been Mexico Academy's policy and
practice to regulate expression on school property,*fn3 to wit: Mexico
Academy has always banned
the use of school facilities for the purpose of religious services and/or
instruction before, during or after school hours; regulated teachers'
expression; and edited the content of student newspapers and
publications; and never maintained its property as an open forum for
"unrestricted expression." Further, Mr. Covell asserts that
Mexico Academy's decision to ban all religious and political expression
is consistent with its overall intent to maintain a limited public
b. Michael Lee Havens
Superintendent Havens agrees that Mexico Academy prohibited vulgar and
obscene inscriptions, and asserts that "love interest" messages were also
prohibited. Superintendent Havens takes issue with plaintiffs' claim that
the bricks were intended for unlimited expression averring that he and
the Mexico Academy School Board set policy, not the student government,
and that the bricks were intended to be commemorative in nature, e.g.,
they were to "commemorate students who had graduated from the school,
businesses that had supported the school district, and organizations
which had been vital to the school community's growth and development."
As evidence of Mexico Academy's "commemorative intent" for the bricks,
Mexico Academy submitted copies of brick order forms and advertisements.
The first form introduced the brick sale as follows:
The Mexico High School Class of 1999 has undertaken
the reconstruction of the front sidewalk at the High
School. Plans are underway to re-pave the entire
sidewalk from Route 104 to the front steps of the High
School. The bricks are dark red to help bring back
the nostalgia of when the school was first built. It
is anticipated that the majority of the bricks will
have inscriptions on them of : alumni, present
students, community organizations, and area
businesses. The project will be funded primarily by
the sale of the bricks.
Each brick measures 4" by 8" and may contain up to
three lines of text. The bricks will be installed for
the beginning of the 1997 school year. You may
purchase a brick with your name inscribed with up to
14 characters in it, and have
it placed in the front of the High School for only
Def.'s Ex. A. The second form states in relevant part:
The Mexico Academy Educational Foundation will be
continuing the reconstruction of the front sidewalk at
the high school. This project was started by the
Class of 1999. The paving bricks, many of which are
individually engraved, have made a striking
improvement in an already beautiful building.
Engraved bricks can be purchased for $30 each by
completing the information at the bottom and on the
reverse side of this form. A personalized
"commemorative certificate" will be sent for each
brick purchased. The certificate is suitable for
framing and makes the inscribed bricks excellent
birthday, Christmas, or graduation gifts.
Become a permanent part of the Mexico district
community by purchasing a brick. Hurry before they
are all sold out!
Example 1 Example 2
Jane Doe Jane Doe Jane Doe
Class of 1976 I made it! Riley
Def.'s Ex. A.
Superintendent Havens states that Mexico Academy has always "employed a
policy of editing and limiting verbal and written expression in the
schoolhouse," and further, "[a]dult concerns, such as political party
affiliation, religious beliefs, and other matters which are involved in
this case were never a part of our contemplation." Superintendent Havens
asserts it was never Mexico Academy's "intention to fully open this forum
to allow full expression by any individual on any subject matter,
regardless of its content. At all times we reserved the right to
regulate expressions to include only appropriate ones for the school
setting where students of all faiths attend." Superintendent Havens
avers that of particular concern is the fact that not only high school
students, but middle and elementary students traverse the walkway at
Superintendent Havens asserts that Mexico Academy received several
complaints about bricks referring to "Jesus,"*fn4
was threatened by the
American Civil Liberties Union and a member of the Mexico community with
a lawsuit and that he was contacted by a representative from the office
of United States Senator Charles Schumer regarding the content of the
bricks and Mexico Academy's criteria for determining which inscriptions
were appropriate for display. Additionally, Superintendent Havens states
that the complaints continued even after Mexico Academy placed the above
described disclaimer in the walkway. Superintendent Havens avers that in
February 2000, out of "obligation" and pursuant to their responsibility
under New York Education Law § 414,*fn5
and the United States
Constitution, the Mexico Academy School Board voted to remove bricks
referring to "Jesus."
According to Superintendent Havens, following removal of the bricks
referring to "Jesus" Mexico Academy endeavored to close the previously
"limited open forum" by prohibiting political and religious
inscriptions. Superintendent Havens avers that the brick inscribed "God
Bless You/Fr. Wirkes/St. Mary's Church" was allowed to stay because it
was consistent with Mexico Academy's policy of religious neutrality, did
not identify any specific religion and was a "far cry from a Christian
message." Superintendent Havens states that in keeping with the policy
to prohibit religious and political inscriptions, Mexico Academy refused
to inscribe a brick with "Keep Abortion Legal." In his affidavit,
Superintendent Havens emphasizes Mexico Academy's "good faith" endeavors
"to navigate a course between allowing some expression in the limited
forum of a public school and not offending those who visited our school
either as students or as members of the community."
To obtain a preliminary injunction, the movant must demonstrate: (1) it
will suffer irreparable harm; and (2) either (a) a likelihood of success
on the merits; or (b) a sufficiently serious question that raises a fair
ground for litigation with the balance of hardships tipping decidedly in
its favor, to obtain a preliminary injunction. See Time Warner Cable v.
Bloomberg, L.P., 118 F.3d 917, 923 (2d Cir. 1997).
Generally, preliminary injunctions are prohibitory in nature, and act
to "maintain the status quo pending a trial on the merits." Tom Doherty
Assocs., Inc. v. Sabar Entm't Inc., 60 F.3d 27, 34 (2d Cir. 1995).
Where, however, the moving party seeks "(i) an injunction [that] will
alter, rather than maintain, the status quo, or (ii) an injunction [that]
will provide the movant with substantially all the relief sought and that
relief cannot be undone even if the defendant prevails at a trial on the
merits," the injunction is termed "mandatory." Id. at 33-34. To obtain
a mandatory injunction, the moving party must demonstrate a clear or
substantial likelihood of success on the merits, or that it will suffer
extreme or very serious damage if denied preliminary relief. See Id. at
34; see also Saratoga Bible Training Inst., Inc. v. Schuylerville Cent.
Sch. Dist., 18 F. Supp.2d 178, 183 (N.D.N.Y. 1998).
In this case, it is clear the parties assume plaintiffs' request for
injunctive relief should be assessed in light of the prohibitive
injunction standard. They assume incorrectly. While granting
plaintiffs' motion and entering an order directing defendants to place
plaintiffs' bricks back in the walkway would not, irrevocably, afford
plaintiffs all the relief to which they would be entitled after a trial on
the merits, since the bricks could again be removed, the Court finds that
such an order would alter
the status quo, by requiring defendants to replace plaintiffs' bricks and
disturb the walkway as it presently exists and as it existed prior to the
filing of this lawsuit.*fn6 Accordingly, before plaintiffs will
be entitled to mandatory injunctive relief, they must meet the higher
burden of proof and demonstrate a clear or substantial likelihood of
success on the merits. See id.
B. Irreparable Harm
Plaintiffs aver that defendants have engaged in viewpoint
discrimination in violation of the First Amendment by excluding their
bricks from the walkway. It is well settled that "`[t]he loss of First
Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury.'" Paulsen v. County of Nassau, 925 F.2d 65,
68 (2d Cir. 1991) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976));
accord New York Magazine v. Metropolitan Transp. Auth., 136 F.3d 123, 127
(2d Cir. 1998); Deeper Life Christian Fellowship, Inc. v. Board of
Educ., 852 F.2d 676, 679 (2d Cir. 1988). Therefore, if plaintiffs
sustain their allegation that Mexico Academy's exclusion of their bricks
from the walkway violates their First Amendment rights, they will have
established irreparable harm.
C. Clear or Substantial Likelihood of Success on the Merits
As discussed above, in their complaint, plaintiffs bring five causes of
action. It is manifest from a review of their moving papers, and in
particular, their first cause of action, however, that plaintiffs are
presently seeking injunctive relief under the Freedom of Speech Clause of
the First Amendment. The Court will therefore address only the arguments
plaintiffs have raised in the instant motion: first, that the
inscriptions on their bricks contain constitutionally protected speech;
second, that Mexico Academy designated the walkway for public
expression, yet excluded their bricks on the basis that they contained
inscriptions referencing Christianity thereby engaging in
unconstitutional viewpoint discrimination; and third, that Mexico
Academy's exclusionary actions were neither justified nor compelled by
the Establishment Clause.
1. Protected Speech
"[P]ictures, films, paintings, drawings, and engravings . . . have
First Amendment protection . . . ." Kaplan v. California, 413 U.S. 115,
119-20 (1973). Further, "private religious speech, far from being a
First Amendment orphan, is as fully protected under the Free Speech
Clause as secular private expression." Capitol Square Review and
Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995).
Plaintiff Russell avers in his affidavit that he purchased several
bricks displaying religious inscriptions, thus, assuming — without
deciding — that the speech is private, he has demonstrated a clear
or substantial likelihood that the inscriptions he selected are protected
by the Free Speech Clause of the First Amendment. Regarding plaintiff
Kiesinger's brick, however, Kiesinger offered no evidence, apart from an
assertion in the unverified complaint, showing the content of the
inscription on his purchased brick. Therefore, there is no evidence that
the inscription on Kiesinger's brick is protected by the First
Amendment. Even assuming, however, that Kiesinger's inscription is
protected speech, for the reasons below, plaintiffs' motion must still be
The parties agree that the forum at issue, e.g., the Mexico Academy
walkway, is private property. Thus, Mexico Academy, "like the private
owner of property, may legally preserve the property under its control
for the use to which it is dedicated." Lamb's Chapel v. Center Moriches
Union Free Sch. Dist., 508 U.S. 384, 390 (1993). This does not mean
however, that Mexico Academy may exclude speech from the walkway for any
reason. The extent to which defendants may limit access to the walkway
depends upon the nature of the forum. See Good News Club v. Milford
Cent. Sch., 121 S.Ct. 2093, 2099 (2001) ("[t]he standards that we apply
to determine whether a State has unconstitutionally excluded a private
speaker from use of a public forum depend on the nature of the forum.").
There are three different types of state fora: the traditional public
forum, the nonpublic forum, and the designated public forum and its
sub-category, the limited public forum. See Perry Ed. Ass'n v. Perry
Local Educator's Ass'n, 460 U.S. 37, 45-46 (1983); Bronx Household of
Faith v. Community Sch. Dist. NO. 10, 127 F.3d 207 (2d Cir. 1997).
Here, neither party suggests the Mexico Academy brick walkway is a
traditional public forum or a nonpublic forum. The parties join issue
over whether the Mexico Academy walkway is a designated or limited public
forum. The Court will center its discussion accordingly.
A designated public forum is defined as "property that would be a
nonpublic forum except for the fact that government has intentionally
opened it for use by the public for expressive activity." Travis v.
Owego-Apalachin Sch. Dist., 927 F.2d 688, 692 (2d Cir 1991) (citing
Cornelius v. NAACP Legal Def. & Educ. Fund., Inc., 473 U.S. 788, 802
(1985)); see also New York Magazine, 136 F.3d 123, 128 (2d Cir. 1998).
As in a nonpublic forum, in a designated public forum, the government
"may enforce a content-based exclusion only when the regulation is
necessary to serve a compelling state interest and is narrowly drawn to
achieve that end." Travis, 927 F.2d at 692 (internal quotations
omitted). Content-neutral time, place, and manner restrictions are
permissible in a designated public forum "only if the regulations are
narrowly tailored to serve a significant government interest and leave
open ample alternative channels of communications." Id. (internal
quotation and alteration omitted).
The sub-category of the designated forum, the "limited public forum,"
is private property opened by the state as a "`place or channel of
communication for use by the public at large for assembly and speech, for
use by certain speakers, or for the discussion of certain subjects.'"
Bronx Household of Faith, 127 F.3d at 211 (2d Cir. 1997) (quoting
Cornelius, 473 U.S. at 802). Unlike the designated public forum opened
for "indiscriminate public use for communicative purposes," (Lamb's
Chapel, 508 U.S. at 392) in a limited public forum "the State is not
required to and does not allow persons to engage in every type of
speech." Good News Club, 121 S.Ct. at 2100. Only speech within the genre
or subjects that the government has admitted to the limited public forum
are afforded constitutional protection. See Travis, 927 F.2d 692.
Indeed, "[t]he State may be justified `in reserving [its forum] for
certain groups or for the discussion of certain topics.'" Good News
Club, 121 S.Ct. at 2100 (quoting Rosenberger v. Rector and Visitors of
Univ. of Va., 515 U.S. 819, 829 (1995)).
Although the "government is free to impose a blanket exclusion on certain
types of speech," in a limited public forum, "once it allows expressive
activities of a certain genre, it may not selectively deny access for
other activities of that genre." Travis, 927 F.2d 692. The State's
restriction on speech in a limited public forum, "must not discriminate
against speech on the basis of viewpoint, and the restriction must be
`reasonable in light of the purpose served by the forum'". Good News
Club, 121 S.Ct. 2100 (internal citation omitted) (quoting Cornelius, 473
U.S. at 806).
Plaintiffs assert that defendants designated the Mexico Academy walkway
as an area for public expression by allowing community members to
purchase a brick that would be inscribed with the message of their choice
and placed in the walkway. In support of their assertion plaintiffs have
produced the following evidence: the disclaimer which Mexico Academy
placed in the walkway that characterizes the brick inscriptions as
"personal expressions" by individuals from the Mexico Academy community;
the alleged fact that Mexico Academy originally accepted plaintiff
Russell's proposed inscriptions as appropriate for the walkway as well as
the inscription "God Bless You/Father Wirkes/St. Mary's Church;" and the
unsupported averments and unidentified hearsay statements contained in
the Huff, Henderson and Joshua Russell affidavits that indicate that the
student government wanted to allow "the community to express themselves
on the brick by inscribing them with messages" and that the class
officers at one point told the Class of 1999 that "there were no
limitations on expression, but the inscriptions could not be vulgar or
Defendants assert that, as evidenced by the flyers advertising the
brick program, as well as their community use policy and Education Law
§ 414, the walkway was only open for the limited purpose of allowing
inscriptions commemorating the school, but further assert that even if
the walkway was initially open to expression, it was closed to political
and religious expression by Mexico Academy's enactment of a "new policy"
in February 2000.
Notwithstanding the above, the Court finds that it need not resolve the
highly factual forum inquiry (see Paulsen, 925 F.2d at 69) (". . . forum
analysis involves fact-specific concerns . . . ."); Deeper Life, 852 F.2d
at 680 ("A determination of the State's intent in creating a forum is a
fact-oriented inquiry . . . .")), because even construing the facts in
the light most favorable to defendants, and assuming the walkway is a
limited public forum as they suggest, plaintiffs have produced some
evidence which indicates that defendants discriminated against them on
the basis of their viewpoint because plaintiff's precluded speech is of
the same subject or genre as is presently in the walkway. See Good News
Club,121 S.Ct. at 2102 ("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."). Therefore,
plaintiff's have arguably established a clear or substantial likelihood of
success on the issue of viewpoint discrimination.
In Good News Club, the Supreme Court found that the defendant school
district had unconstitutionally discriminated against the plaintiffs, who
sought to hold an after school program teaching morals and values to
elementary school children from a Christian perspective, when it denied
them after-hours access to school property. See Good News Club, 121
S.Ct. at 2101. The Court held that because the school was a limited
public forum and allowed other organizations which also taught morals and
values, such as the Boy Scouts, to use school premises for their
programs, it discriminated against the plaintiffs on the basis of their
Christian viewpoint by denying them access to the premises. See id. In
Travis, the Second Circuit found that because the plaintiffs' program, a
fund-raiser with a religious theme, "was the same type as a previously
permitted use" of the school auditorium, a Christmas program, it did not
need to "address the question of whether the School District has created
only a limited public forum, rather than a designated public forum used
for indiscriminate expressive activity by the public at large . . .,"
Even if the forum was limited, [the plaintiffs] being
within the category for which use had been permitted,
could not be denied access absent a sufficient
constitutional justification. No such justification
has been proffered. Though occasional prior use might
not suffice to establish a designated public forum
open to all, such use will result in a forum
designated for the limited category exemplified by the
prior permitted use.
Travis, 927 F.2d at 692-93 (internal citation omitted).
In this case, even if the walkway was limited to use for commemorative
purposes and excludes religious speech, as defendants contend, because at
least one brick evincing a religious message, "God Bless You/Fr.
Wirkes/St. Mary's Church," was permitted, such use indicates that the
forum may be characterized as having been designated for the limited
category of deism, or inscriptions which refer to God.*fn7 Thus,
plaintiffs have presented evidence which indicates that Mexico Academy
excluded their bricks, which refer to "Jesus," on the basis that it is a
reference to a specific deity, an otherwise permissible category.
Accordingly, it appears that plaintiffs demonstrated a clear or
substantial likelihood of success on the issue of viewpoint
3. Establishment Clause
This, however, does not end the Court's inquiry in light of the defense
that defendants have raised, specifically, that replacing plaintiffs'
violate the Establishment Clause by imparting on Mexico Academy the
appearance of endorsing one religion over another. Because plaintiffs
have not submitted evidence sufficient to show a clear or substantial
likelihood of success on this issue, their motion must be denied.
Plaintiffs argue defendants' discriminatory exclusion of their bricks
from the walkway was neither justified nor compelled by the Establishment
Clause. The Establishment Clause forbids government speech endorsing
religion, but is often an inadequate shield against Freedom of Speech
claims. See Good News Club, 121 S.Ct. 2093; Lamb's Chapel, 508 U.S. at
395. Indeed, it is unclear under the current state of the law whether a
governmental interest in avoiding an Establishment Clause violation
justifies viewpoint discrimination in the first place. See Good News
Club, 121 S.Ct. at 2103 (recognizing that "it is not clear whether a
State's interest in avoiding an Establishment Clause violation would
justify viewpoint discrimination" but finding that "[w]e need not,
however, confront the issue in this case, because we conclude that the
school has no valid Establishment Clause interest."). Assuming,
however, that it does, (see e.g., Fleming v. Jefferson County School
District No. R-1, No. Civ.A. 99-D-1932, 2001 WL 1359554, *19 (D.Colo.
Nov. 1, 2001) (noting that the Supreme Court "expressly decided in Good
News Club not to decide the issue . . ." but assuming that "the
government's interest in avoiding an Establishment Clause violation
justifies viewpoint discrimination," the court analyzed the defendant
school's Establishment Clause concerns)), plaintiffs must demonstrate a
clear likelihood that the Establishment Clause does not justify Mexico
Academy's exclusion of plaintiffs' bricks from the walkway.
Plaintiffs argue that permitting their bricks inscribed with religious
speech in the Mexico Academy walkway would demonstrate that defendants'
brick program exhibits neutrality, rather than hostility, toward religion
in compliance with the Establishment Clause. Plaintiffs further argue
that the presence of their bricks in the Mexico Academy walkway would
not, in any event, place upon defendants the impermissible appearance of
endorsing religion because the inscriptions contain private speech and
were displayed in a designated public forum.
In Good News Club, the Supreme Court emphasized that a "`significant
factor in upholding governmental programs in the face of Establishment
Clause attack is their neutrality towards religion.'" 121 S.Ct. at 2104
(quoting Rosenberger, 515 U.S. at 839) (emphasis in Good News Club). The
Court indicated that because the plaintiff religious club sought "nothing
more than to be treated neutrally and given access to speak about the
same topics as are other groups[,]" permitting the club "to speak on
school grounds would ensure neutrality, not threaten it . . . ." Id.
Here, plaintiffs' evidence shows that plaintiffs, who are concerned
that defendants' actions in removing their bricks exhibit hostility
toward religion rather than neutrality, seek reinstatement of their
bricks in the walkway to display inscriptions referring to the same topic
as contained in the inscription of at least one other brick presently in
the walkway. Accordingly, like the defendant school in Good News Club, it
would seem that Mexico Academy "faces an uphill battle in arguing that
the Establishment Clause compels it to exclude" plaintiffs' bricks. Id.
Turning to plaintiffs' assertion that the presence of their bricks
would not place
upon Mexico Academy the impermissible appearance of endorsing religion,
the Court notes that in support of their argument, plaintiffs rely
principally on the plurality opinion in Capitol Square, in which Justice
Scalia states there can be no "transferred endorsement" of religion by
the government when the speech at issue is private: "[r]eligious
expression cannot violate the Establishment Clause where it (1) is
purely private and (2) occurs in a traditional or designated
public forum, publicly announced and open to all on equal terms." Capitol
Square, 515 U.S. at 768, 770. Notwithstanding Mexico Academy's assertion
that the speech is not purely private, but school sponsored, and the lack
of proof on the issue of whether the Mexico Academy walkway is in fact a
designated public forum, the section on which plaintiffs rely and from
which the above-quoted statement was taken, was concurred with by only
three other Justices.*fn8 See id. at 757; see also Elewski v. City of
Syracuse, 123 F.3d 51 at 54 (2d Cir. 1997) (characterizing the concurring
opinions of Justices O'Connor and Souter in Capitol Square, rather than
Justice Scalia's opinion, as "outcome-determinative"). Moreover, the
Court's discussion in Good News Club, of the defendant school's fear that
students might think the school was endorsing religion in violation of
the Establishment Clause were they to permit the plaintiff religious
group to meet on school property, illustrates that the "endorsement test"
is relevant even when the speech at issue is not school sponsored.
Here, plaintiffs have not produced evidence from which the Court can
engage in the endorsement inquiry — a "highly fact-specific test"
— which requires the Court to ascertain whether "a reasonable
observer of the display in its particular context [would] perceive a
message of governmental endorsement or sponsorship of religion."
Elewski, 123 F.3d at 53; see County of Allegheny v. Greater Pittsburgh
ACLU, 492 U.S. 573, 593-93 (1989); see also Capitol Square, 515 U.S. 753
(1995). "[T]he endorsement inquiry is not about the perceptions of
particular individuals or saving isolated nonadherents from the discomfort
of viewing symbols of a faith to which they do not subscribe." Capitol
Square, 515 U.S. at 779 (O'CONNOR, J., concurring in part and concurring
in judgment). "It is for this reason that the reasonable observer in the
endorsement inquiry must be deemed aware of the history and context of
the community and forum in which the religious [speech takes place]."
Id. at 780.
In this case, as discussed above, the nature of the forum is in
dispute, and there is no evidence, with the exception of the brick
inscribed "God Bless You/Father Wirkes/St. Mary's Church" and the
showing context, to wit, the inscriptions amongst which
plaintiffs' bricks would be placed. See e.g., Elewski, 123 F.3d at 55
(addressing whether the context, in which the city owned creche was
placed, neutralized the message of governmental endorsement, the court
found that the reasonable observer would not perceive endorsement, but "a
celebration of the diversity of the holiday season, including traditional
religious and secular symbols of that season . . . ."). Further, the
evidence plaintiffs have produced suggests the circumstances of the
instant case are
distinguishable from those in Lamb's Chapel, and more recently in Good
News Club, where the Supreme Court held the defendant schools had no
valid Establishment Clause interest, and consequently, no justification
for violating the plaintiff religious groups' rights to Freedom of
In Lamb's Chapel, the Court found that because school "District
property had been repeatedly used by a wide variety of private
organizations," the plaintiff church group's showing of the film series
on school property would not be during school hours, would not have been
sponsored by the school, and would have been open to the public and not
just church members, the defendant school's Establishment Clause fears
were groundless as there was no "realistic danger that the community
would think that the [school] District was endorsing religion . . . and
any benefit to religion or to the Church would have been no more than
incidental." Lamb's Chapel, 508 U.S. at 395.
Likewise, in Good News Club, the Court found that the defendant
school's reliance on the Establishment Clause to exclude the plaintiff
religious club from meeting on school property was "unavailing" because
the school "made its [limited public] forum available to other
organizations," the meetings were "after school hours, not sponsored by
the school, and open to any student who obtained parental consent, not
just to Club members . . . .", school children were not allowed to loiter
outside classrooms after school hours, the meetings were held in a high
school room, the instructors were not school teachers and the club's
presence would "ensure neutrality, not threaten it". Good News Club, 121
S.Ct. 2103-2104. Moreover, in addressing "whether the community would
feel coercive pressure to engage in the Club's activities," the Court
determined that the "relevant community would be the parents, not the
elementary school children[,]" because it was the parents who would
"choose whether their children will attend the Good News Club meetings."
Id. at 2104. In sum, the Court found that the circumstances, did not
"support the theory that small children*fn10 would perceive
endorsement . . . ." Id. at 2106.
Here, the evidence indicates that plaintiffs' bricks, unlike the
religious groups in Lamb's Chapel and Good News Club, if permitted on
school property, would be present before, during and after school hours,
and would allegedly be visible to all who cross the walkway. Further,
unlike the students in Good News Club, who were required to obtain
parental consent before attending a meeting, there is no evidence that
Mexico Academy students, who are, in this case, part of the relevant
audience, need parental consent to cross the walkway and potentially view
plaintiffs' bricks. Indeed, the evidence suggests that the walkway is the
"main thoroughfare" to the Mexico Academy high school entrance. Thus,
the evidence presently before the court shows that the circumstances are
sufficiently distinguishable from those in Lamb's Chapel and Good News
Club, to foreclose the notion that there is a clear or substantial
likelihood that plaintiffs will prevail on the Establishment Clause
Accordingly, while the Court is cognizant of Good News Club, and
particularly its progeny, Fleming,*fn11
in light of Mexico Academy's
Establishment Clause concerns, the unsettled state of the law, and most
significantly, in the absence of competent admissible evidence, the Court
finds plaintiffs have not demonstrated, at this stage of the litigation,
a clear or substantial likelihood that they will prevail over defendants
on the Establishment Clause issue.
For the foregoing reasons the Court finds plaintiffs have not produced
evidence establishing a clear or substantial likelihood of success on the
merits which would warrant the issuance of a mandatory preliminary
injunction. Accordingly, it is hereby
ORDERED that plaintiffs' motion for a mandatory preliminary injunction
is DENIED in its entirety.
IT IS SO ORDERED.
*fn2 The Court notes that the record contains no affidavit or other
evidence from or regarding Mr. Kiesinger or his brick. The Court further
notes that the complaint is unverified.
*fn3 Mexico Academy's Community Use policy states in part:
School facilities may be used by community groups and
non-school organizations when such uses do not
interfere with school programs or activities. For
purposes of this policy, facility is designed to
include a school building, or school grounds,
including athletic fields. School District-sponsored
activities have priority over uses by community
groups, and non-school organizations on any given
date. It is understood by all applicants that School
District-sponsored activities may make it necessary to
cancel or postpone previously approved applications.
Community groups and non-school organizations shall
make application for the use of a District facility
directly to the Building Administrator. . . . Final
approval will be made by the Board of Education unless
said responsibility is delegated to the
Permissible Use of School Facilities
School facilities may be used for the following purposes:
a) for instruction in any branch of education,
learning, or the arts; b) for public library
purposes; c) for a social, civic or recreational
meeting or activity which is open to the general
public; d) for meetings and other uses pertaining to
the welfare of the community, and open to the general
public; e) for meetings, entertainment and other
occasions provided that:
1) The proceeds from any admissions are expended for
an educational or charitable purpose, and 2) such
meeting, entertainment or occasion is not under
the exclusive control of a religious sect or
denomination, or of a fraternal, secret or
exclusive society or organization other than
veterans of the United States military, Navy or
Marines or volunteer firefighters, ambulance
f) for classes of instruction for educationally
disabled minors operated by a private organization
approved by the Commissioner of Education; g) for
recreation, physical training, and athletics; h)
for child care services during non-school hours,
provided the cost of the care is not a School
District charge and is to be paid by the person
responsible for the support of the child, local
social services agency, or any other public or
private voluntary source. The terms and conditions
of such use shall be determined by the
Superintendent of Schools. i) for graduation
exercises held by not-for-profit elementary and
secondary schools, provided that no religious
service is performed.
School facilities may not be used for a private or
commercial activity. The intent is to provide
community based program [sic] and be open to the
No outside organization or group may be allowed to
conduct religious services or religious instruction on
school premises before, during or after school hours.
However, the use of school premises by outside
organizations or groups after school for the purposes
of discussing secular subjects from a religious
viewpoint is permissible. Defs.' Ex. A.
Superintendent Havens asserts that the complaint(s) Mexico Academy
received from members of the community related to Paul Anderson's brick
in particular. It appears from the parties' submissions that Mr.
Anderson's brick was inscribed "Jesus Christ is Lord of this school." As
previously noted, Mr. Anderson withdrew from this action, therefore the
Court disregards all arguments and submissions insofar as they relate to
*fn5 Section 414 of the Education Law provides in relevant part:
Use of schoolhouse and grounds. Schoolhouses and the
grounds connected therewith and all property belonging
to the district shall be in the custody and under the
control and supervision of the trustees or board of
education of the district. The trustees or board of
education may adopt reasonable regulations for the use
of such schoolhouses, grounds or other property, all
portions thereof, when not in use for school purposes
or when the school is in use for school purposes if in
the opinion of the trustees or board of education use
will not be disruptive of normal school operations,
for such other public purposes as are herein
provided. . . . Such regulations shall provide for the
safety and security of the pupils and shall not
conflict with the provisions of this chapter and shall
conform to the purposes and intent of this section and
shall be subject to review on appeal to the
commissioner of education as provided by law. The
trustees or board of education of each district may,
subject to regulations adopted as above provided,
permit the use of the schoolhouse and rooms therein,
and the grounds and other property of the district,
when not in use for school purposes or when the school
is in use for school purposes if in the opinion of the
trustees or board of education use will not be
disruptive of normal school operations . . . .
N Y EDUC. LAW § 414 (McKinney 2000).
*fn6 Plaintiffs' bricks were removed in or about February 2000 and the
complaint was filed in September 2000, more than seven months after the
bricks had been removed.
*fn7 Mexico Academy asserts it enacted a "new policy" in February 2000,
prohibiting all political and religious inscriptions from the walkway.
Mexico Academy admits that thereafter, it excluded all bricks referring
to "Jesus" from the walkway, but permitted the brick inscribed "God Bless
You/Father Wirkes/St. Mary's Church" to remain. Mexico Academy seeks
to distinguish the inscription "God Bless You/Father Wirkes/St. Mary's
Church" from those referring to "Jesus" on the ground that the reference
to "God" is secular in nature, a "universal term" and "commonplace," and
therefore does not constitute an endorsement of any particular religion,
while "Jesus" is an "explicit religious reference to a particular God
suggesting the exclusion of others" offending Education Law § 414 and
the United States Constitution. Def.'s Mem. of Law, p. 3. In support of
their argument, defendants cite several cases in which Courts of Appeals
have found that the "national motto" "In God We Trust" did not constitute
a governmental endorsement of religion because the motto was a form of
"ceremonial deism." See Gaylor v. United States, 74 F.3d 214, 216 (10th
Cir. 1996) (holding that the primary effect of "In God we trust" is "not
to advance religion; instead, it is a form of `ceremonial deism' which
through historical usage and ubiquity cannot be reasonably understood to
convey government approval of religious belief."); Aronow v. United
States, 432 F.2d 242, 243 (9th Cir. 1970) (holding that "`In God We
Trust' has nothing whatsoever to do with the establishment of religion.
Its use is of a patriotic or ceremonial character and bears no true
resemblance to a governmental sponsorship of a religious exercise."). In
this case, Mexico Academy's assertion that the "God Bless You"
inscription is secular in nature because it is not identified with a
particular religion is belied by the fact that the inscription identifies
both the church and religious leader from which the message came.
*fn8 The section in Capitol Square, to which plaintiffs refer is joined
only by Chief Justice Renquist, Justice Kennedy, and Justice
*fn9 There is no evidence, however, of the size or precise location of
the disclaimer in comparison to the bricks in the walkway.
*fn10 The Supreme Court's decision in Good News Club calls into in
question the weight of Mexico Academy's fear regarding the
impressionability of young students who might view plaintiffs' bricks.
See Good News Club, 121 S.Ct. 2106 ("We cannot operate, as Milford would
have us do, under the assumption that any risk that small children would
perceive endorsement should counsel in favor of excluding the Club's
religious activity. We decline to employ Establishment Clause
jurisprudence using a modified heckler's veto, in which a group's
religious activity can be proscribed on the basis of what the youngest
members of the audience might misperceive.").
*fn11 In Fleming, after denying the defendant's motion to dismiss, and
the parties' cross-motions for summary judgment, a bench trial was held,
and the Court issued a decision finding that the defendant school
district violated the plaintiffs' First Amendment rights when it refused
to display tiles, which the plaintiffs had painted and which contained
religious messages, in a hallway inside Columbine High School. Fleming,
2001 WL 1359554. The plaintiffs along with students and other members of
the community had been invited to paint tiles as part of the healing
process and to honor slain children and friends following shootings at
Columbine High School. Id. at *3-6. The court found that the
"Defendants [were] not justified in relying on the Establishment Clause
to authorize the viewpoint discrimination that occurred in this case."
Id. at *19.