The opinion of the court was delivered by: Norman A. Mordue, Chief Judge
MEMORANDUM-DECISION AND ORDER
Plaintiffs Robert Kiesinger and Ronald Russell filed this action against defendants Mexico Academy and Central School, the Mexico Academy School Board, and Robert DiFlorio, Superintendent ("defendants" or "Mexico Academy"), pursuant to 42 U.S.C. § 1983 on the grounds that defendants violated the Establishment Clause and their First Amendment right to Freedom of Speech and Free Exercise of Religion when they removed or excluded plaintiffs' bricks, which contained inscriptions referring to Jesus, from the brick walkway in front of the Mexico Academy High School in Mexico, New York. Plaintiffs also assert that defendants violated their rights under Art. 1, § 3 of the New York Constitution. Presently before the Court are the parties' motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.*fn1 Plaintiffs, alternatively, seek a preliminary injunction.*fn2
The facts, unless otherwise noted, are undisputed. During the 1996-1997 school year, the Class of 1999, Superintendent Michael Havens, and the School Board, commenced a plan to sell bricks to Mexico Academy community members to raise money to fund both the Class of 1999's senior class trip to Disney World and the construction of a 2,000 square feet walkway in front of the high school. No obscene or vulgar messages were permitted. Superintendent Havens stated that "love interest" messages were also prohibited. Mexico Academy issued two order forms and advertisements which described the project. 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 $25.00.
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 Example 3
Jane Doe Jane Doe Jane Doe
Class of 1976 I made it! Riley At the time of purchase, individuals could select where in the walkway they wished their bricks to be placed.
Plaintiff Ronald Russell, pastor of the Mexico Church of God, purchased five bricks through his son, who was a member of the Class of 1999. These bricks were inscribed: "Jesus Saves!, Joshua Russell", "Ye Must Be Born Again, Jesus Christ", "Jesus Christ The Only Way!, Rev. Ron Russell", "Jesus Loves You, Susie Russell", and "Jesus Christ is Lord, Rev. Ron Russell". Plaintiffs' Exhibit Q, p. 43. According to Mexico Academy, Mr. Russell purchased two additional bricks inscribed "Jesus Saves" and "Ye Must Be Born Again!". Defendants' Exhibit E. Plaintiff Robert Kiesinger purchased a brick inscribed "Jesus Saves, John 3:16". Id. at p. 38. Two other individuals purchased bricks which were later removed, but neither is a party to this action.*fn3
There are 1,736 bricks in the walkway. Most are inscribed with an individual's name and the year of their class, but many contained other expressions:
"College of New Rochelle, Dream Think Become" Exhibit Q at p. 4; "Daemen College Tradition Vision -- Success" Exhibit Q at p. 4; "Samuel Carioti, Class of 1991, To Be or Not To Be" Exhibit Q at p. 3; "Never Drive Your Angels Faster Than Can Fly, Kellogg Memorials Est. 1898" Exhibit Q at p. 13; "Marilyn Laws, If You Think You Can You Can" at Exhibit Q at p. 40; "A Wild Life is Not Without Wildlife, Tye@Class of 1985" Exhibit Q at p. 36; ""Fred H. Williams, class-49, Semper Fi" Exhibit Q at p. 42; "Oscar Cronk 60, 'Where Angels Feared.'" Exhibit Q at p. 39. "Love Your Daughter, Kaitlyn" Exhibit Q at p. 2; "Welcome to America, RoseAnn-Citizen 97, We Love You!" Exhibit Q at p. 19; "David J. Knopp Best Son
Ever!, I Love You, Mom" Exhibit Q at p. 13; "Lillian Duger, From your girl, I Love You!" Exhibit Q at p. 5; "Howard R. McLymond, Class of 1951, Happy Father's Day" Exhibit Q at p. 25; "To My Girls Nicole & Kristin, Love you Dad" Exhibit Q at p. 26; "Ken-Dol Douglas, In Loving Memory of My Wife Dolores" Exhibit Q at p. 32; "Dedicated in Honor of My Dad, James R. McElravy" Exhibit Q at p. 43. "Go Yanks-Dolphins, Heat-Marlins-Canes, Panthers-Orangemen" Exhibit Q at p. 34. "James Gracey, Class of 1988, Amazing Grace" Exhibit Q at p. 9; "In God We Trust, The Roaricks', George Lona Mike" Exhibit Q at p. 29; "Rev. Myma Foster, and John Methodist Church Mexico NY" Exhibit Q at p. 33; "George M. Wise, Class of 1948, Praise God" Exhibit Q at p.28; "God Bless You, FR Wirkes, St. Mary Church".
After Mr. Kiesinger's brick was installed, Superintendent Havens received a telephone call from the high school assistant principal regarding whether Mr. Kiesinger's brick was "a problem." Superintendent Havens testified that he recalled being concerned about the separation of church and state and that he asked the assistant principal to move it to a more inconspicuous place. After speaking with counsel, Mr. Kiesinger's brick was moved to a "more prominent place". Superintendent Havens stated that he decided to keep Mr. Kiesinger's brick in the walkway because he was concerned that its removal "would cause real distress for the community".
Plaintiffs maintain that the controversy over their bricks stems from complaints by one community member, Elizabeth Passer. Ms. Passer complained that the bricks violated "separation of church and state" and that she was concerned about the "specific references to a Christian God". Superintendent Havens testified that he received complaints from other community members as well, including one from an individual who was concerned about people walking on bricks that said Jesus. Mexico Academy received an inquiry from the office of United States Senator Charles Schumer about the bricks referring to Jesus. In October 1998, in an attempt to quell the controversy, Mexico Academy passed a resolution to place the following inscription in the walkway: "The messages on this walk are personal expressions and contributions of the individuals of Mexico Academy and Central School community." Mexico Academy placed the 18" x 12" disclaimer in the front center of the walkway, approximately 10 feet from the school's entrance.
Despite the disclaimer, Ms. Passer continued to complain that the religious bricks were an endorsement of religion. On January 20, 2000, Mexico Academy wrote a letter to Ms. Passer stating:
This letter is in response to your letter . . . stating your feelings that some of the bricks in the High School walkway were objectionable to you because of a religious content. Furthermore, you stated that such bricks with a religious statement are "sending a message that anyone not of that belief system is not valued as much by the school district."
Your concerns were discussed in executive session in the Board meeting of January 13th. We discussed it in executive session because of our need to ask for legal counsel on this matter. After some discussion, and in consultation with the District's attorney, we decided to convey the following messages to you:
1. With all due respect, we do not agree with your feelings on this issue and do not wish to continue this debate with you. We have spent an inordinate amount of time on this issue over the past two years.
2. We stand by our previous decision and the [disclaimer] that was carved and placed into that walk . . . .
3. Please feel free to order bricks for this walkway that convey your celebration of our community and that represents your beliefs.
Your request for information on "purchase orders" regarding the bricks, under the Freedom of Information Act was handled by the District through the appropriate administrative process and persons responsible for answering such requests. Plaintiffs' Exhibit W.
The parties agree that Ms. Passer, unsatisfied with Mexico Academy's response, contacted the American Civil Liberties Union, which, in turn, threatened to sue Mexico Academy. Defendants contacted legal counsel who advised that bricks which referred to a particular God, suggesting the exclusion of others, offended N.Y. Educ. Law § 414 and the Constitution. On February 10, 2000, Mexico Academy passed a resolution "to have all bricks in the high school sidewalk removed if they contained any political or religious messages." Defendants removed those bricks which referred to a particular God, i.e., Jesus, but allowed bricks which referred to "God" to remain, since those bricks did not refer to a particular religion and "God" was a universal term.
In a letter dated March 8, 2000, the Superintendent wrote plaintiffs a letter explaining that their bricks had ...