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Freedom From Religion Foundation v. Concord Community Schools

United States District Court, N.D. Indiana, South Bend Division

March 6, 2017

FREEDOM FROM RELIGION FOUNDATION, et al., Plaintiffs,
v.
CONCORD COMMUNITY SCHOOLS, Defendant.

          OPINION AND ORDER

          JON E. DEGUILIO Judge United States District Court

         This 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.

         I. FACTUAL BACKGROUND

         In its 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.

         II. STANDARD OF REVIEW

         On 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).

         III. DISCUSSION

         The 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.

         A. Mootness

         The 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.

         Mr. 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. ¶ 9.

         The 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.

         Generally 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.

         To 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.

         The 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 ...


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