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ANDERSON v. MEXICO ACADEMY AND CENTRAL SCHOOL
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.
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.
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."
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
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.
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