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ANDERSON v. MEXICO ACADEMY AND CENTRAL SCHOOL

February 15, 2002

PAUL ANDERSON,[FN1] ROBERT KIESINGER, AND RONALD RUSSELL, PLAINTIFFS,
V.
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

I. INTRODUCTION

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.

II. BACKGROUND

A. Facts

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 walkway.

B. Evidentiary Submissions

1. Plaintiffs

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 sidewalk.
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 relocated.*fn2

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 them with 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."

2. Defendants

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


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