United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
DEGUILIO Judge United States District Court
matter is again before the Court on the parties'
cross-motions for summary judgment. The Plaintiffs contend
that a living nativity scene that Concord High School has
long presented as the finale to its annual Christmas
Spectacular violates the Establishment Clause. After the
Plaintiffs filed this suit, the School proposed some changes
for its upcoming shows in December 2015, but the Court found
that even with those changes, the proposed show was still
likely to violate the Establishment Clause, so the Court
entered a preliminary injunction against performing a live
nativity scene as part of the 2015 Christmas Spectacular. The
School complied with that injunction, and the Court
previously found that the show the School actually presented
in 2015 did not violate the Establishment Clause. What
remains of this case is the Plaintiffs' challenge to the
version of the Christmas Spectacular that the School
performed in 2014, and to the modified version of the show
that the School proposed to present in 2015, prior to the
issuance of the injunction. For the reasons that follow, the
Court finds that the Plaintiffs' challenge to those shows
is not moot; finds that those two versions of the Christmas
Spectacular violated the Establishment Clause; and awards the
Plaintiffs nominal damages and a declaratory judgment.
previous orders, the Court has described at length each of
the versions of the Christmas Spectacular at issue in this
case. Freedom From Religion Found. v. Concord Cmty.
Schs., No. 3:15-cv-463, 2016 WL 4798964 (N.D. Ind. Sept.
14, 2016); Freedom From Religion Found. v. Concord Cmty.
Schs., 148 F.Supp.3d 727 (N.D. Ind. 2015). [DE 40 p.
2-6; DE 62 p. 2-8]. Those facts are undisputed, and the Court
will not repeat them here. The parties have filed
cross-motions for summary judgment. In its previous order on
those motions, the Court held that the version of the
Christmas Spectacular that the School actually presented in
2015 did not violate the Establishment Clause. The Court did
not reach the merits of the Plaintiffs' challenge to the
2014 show or the proposed-2015 show, though, because the
School asserted for the first time in its surreply that the
Plaintiffs' challenge to those shows was moot.
Specifically, the School argued that it had decided not to
present those versions of the show again, so the
Plaintiffs' requests for a declaratory judgment and a
permanent injunction were mooted by its voluntary cessation
of the challenged conduct. The School cited no evidence in
support of its assertion, though, so the Court directed it to
file a supplemental brief with any evidence and argument in
support of its position on this issue. In that same order,
the Court also directed the Plaintiffs to file a supplemental
brief that identified and justified the specific injunction
they sought. The parties have now submitted and responded to
those respective supplements, so the motions for summary
judgment are again ripe for ruling.
STANDARD OF REVIEW
summary judgment, the moving party bears the burden of
demonstrating that there “is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). A
“material” fact is one identified by the
substantive law as affecting the outcome of the suit.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A “genuine issue” exists with respect to
any material fact when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Id. Where a factual record taken as a
whole could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial, and
summary judgment should be granted. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986) (citing Bank of Ariz. v. Cities Servs. Co.,
391 U.S. 253, 289 (1968)). In determining whether a genuine
issue of material fact exists, this Court must construe all
facts in the light most favorable to the non-moving party and
draw all reasonable and justifiable inferences in that
party's favor. Jackson v. Kotter, 541 F.3d 688,
697 (7th Cir. 2008); King v. Preferred Tech. Grp.,
166 F.3d 887, 890 (7th Cir. 1999). However, the non-moving
party cannot simply rest on the allegations contained in its
pleadings, but must present sufficient evidence to show the
existence of each element of its case on which it will bear
the burden at trial. Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986); Robin v. Espo Eng'g
Corp., 200 F.3d 1081, 1088 (7th Cir. 2000).
Plaintiffs assert that the Christmas Spectacular that the
School presented in 2014, and the show that it intended to
present in 2015 prior to the preliminary injunction, violated
the Establishment Clause. In its present filings, the School
does not defend either of these shows on the merits, but
instead raises a threshold argument that the Plaintiffs'
challenges to those shows are now moot. The Court addresses
the mootness argument first. Finding that these claims are
not moot, the Court then considers these claims on their
merits and then decides what remedies are appropriate.
School argues that the Court lacks jurisdiction to resolve
the Plaintiffs' challenges to the 2014 and proposed-2015
shows because those claims are now moot. It argues that it
has decided not to present those versions of the show in the
future, so there is no longer a case or controversy that
could justify awarding forward-looking relief (a declaratory
judgment and a permanent injunction). The School does not
suggest that it has enacted any formal policy or taken any
official action that would preclude presenting those shows in
the future. However, in its supplemental filing, it has
submitted an affidavit by its superintendent, John Trout, in
which he describes a decision the School has made not to
present those versions of the show. Mr. Trout notes that
following the 2015 shows, “the community, the School
Board, administrators, teachers, parents, and students
engaged in a variety of informal discussions regarding the
program on a going forward basis.” [DE 63-1 ¶ 5].
Mr. Trout describes these conversations as taking place
“at the local park, over the water cooler, and across
the fence, ” and he asserts that they “resulted
in what appeared to be a consensus that the program [as
actually presented in 2015] was a success and that the
changes should be made permanent.” Id.
Trout further states that, in late December 2015, he met with
the school board to discuss their options relative to the
litigation and the future of the Christmas Spectacular. At
that time, a “consensus was reached that the changes
should be made permanent and that the School would not return
to performing the program as it had been done in 2014 and the
years preceding that time.” Id. ¶ 6. Mr.
Trout states that, as a result of this decision, the School
decided to make a Rule 68 offer of judgment, part of which
included a proposed injunction against presenting a living
nativity scene or having a faculty member recite the story of
Jesus' birth as it appears in the Bible. However, the
Plaintiffs did not accept the offer of judgment, so by its
own terms, and pursuant to Rule 68, the offer was withdrawn.
Mr. Trout states, though, that notwithstanding the withdrawal
of this offer, the School “made the decision to
permanently alter the program . . . and to perform the
program on an ongoing basis in a fashion largely similar to
the program performed in 2015 . . . .” Id.
School argues that, in light of this decision not to present
the 2014 and proposed-2015 versions of the show in the
future, the Plaintiffs' challenges to those shows are now
moot. Article III of the Constitution states that the power
of the federal courts extends to “cases” and
“controversies.” U.S. Const. art. III, § 2.
Thus, “[u]nder Article III, ‘cases that do not
involve actual, ongoing controversies are moot and must be
dismissed for lack of jurisdiction.'” Wisc.
Right to Life, Inc. v. Schober, 366 F.3d 485, 490-91
(7th Cir. 2004) (quoting Fed'n of Advert. Indus.
Representatives, Inc. v. City of Chi., 326 F.3d 924, 929
(7th Cir. 2003)). Mootness has been described as “the
doctrine of standing set in a time frame: The requisite
personal interest that must exist at the commencement of the
litigation (standing) must continue throughout its existence
(mootness).” Arizonans for Official English v.
Arizona, 520 U.S. 43, 68 n.2 (1997). That description is
imprecise, though, as there are some notable differences
between the two. Friends of the Earth v. Laidlaw Envtl.
Servs., 528 U.S. 167, 189-90 (2000) (noting that this
description of mootness “is not comprehensive”).
Unlike standing, on which a plaintiff bears the burden of
proof, the burden of proving that a controversy is moot lies
with the party asserting mootness, which is usually the
defendant. Laidlaw, 528 U.S. at 190;
Schober, 366 F.3d at 491. The Supreme Court has also
acknowledged that “there are circumstances in which the
prospect that a defendant will engage in (or resume) harmful
conduct may be too speculative to support standing, but not
too speculative to overcome mootness.”
Laidlaw, 528 U.S. at 190.
speaking, “‘a defendant's voluntary cessation
of a challenged practice does not deprive a federal court of
its power to determine the legality of the
practice.'” Laidlaw, 528 U.S. at 189
(quoting City of Mesquite v. Aladdin's Castle,
Inc., 455 U.S. 283, 289 (1983)); see also
Chi. United Indus., Ltd. v. City of Chi., 445 F.3d
940, 947 (7th Cir. 2006) (“It is true that the mere
cessation of the conduct sought to be enjoined does not moot
a suit to enjoin the conduct, lest dismissal of the suit
leave the defendant free to resume the conduct the next
day.”). Only when “subsequent events ma[ke] it
absolutely clear that the allegedly wrongful behavior could
not reasonably be expected to recur” will a case become
moot by voluntary cessation. Laidlaw, 528 U.S. at
189; accord Doe ex rel. Doe v. Elmbrook Sch. Dist.
(Elmbrook I), 658 F.3d 710, 719 (7th Cir. 2011),
adopted in pertinent part but overruled on other grounds
en banc, 687 F.3d 840, 842-43 (7th Cir. 2012). The
Supreme Court has described this burden of proof as
“stringent, ” “heavy, ” and
“formidable.” Laidlaw, 528 U.S. at
189-90. When the defendants are public officials, though,
courts “place greater stock in their acts of
self-correction, so long as they appear genuine.”
Schober, 366 F.3d at 492.
begin with, there is no dispute that the Plaintiffs'
challenges to these shows were live and justiciable at the
time they were filed. The School had presented roughly the
same living nativity scene as the conclusion of the Christmas
Spectacular for the last forty-five years. Prior to filing
suit, the Freedom From Religion Foundation also sent a letter
to the School, objecting that the show violated the
Establishment Clause, and the School responded with a defiant
statement that refused to accede to the Plaintiffs'
demands. Thus, at the time the Plaintiffs filed suit, a
controversy existed that gave the Plaintiffs standing to
assert their challenge to the show that was presented in 2014
and likely would have been presented into the future if not
for this litigation.
challenge to the proposed-2015 show was also live when it was
filed. The show that the School actually presented in 2015
differed from the version it proposed, but only because the
Court entered a preliminary injunction that compelled the
School to make those changes. The School's music director
also said prior to the preliminary injunction that he
intended for these changes to be permanent. In light of that,
and because the School changed that show only because it was
ordered by the Court to do so, a live controversy existed as
to the legality of the proposed-2015 show at the time the
Plaintiffs filed their ...