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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
MINOR I. DOE, et al.;
Plaintiffs,
v.
SCHOOL BOARD FOR SANTA
ROSA COUNTY, FLORIDA; et al.;
Defendants.
/
No.: 3:08-cv-361 MCR/EMT
PLAINTIFFS’ RESPONSE TO
DEFENDANTS’ MOTIONS TO DISMISS
Come now Plaintiffs, by and through the undersigned counsel, and
respond to Defendants’ Motions to Dismiss (Docs. 19 and 20),1 and urge this
Honorable Court to deny these motions in their entirety, and argue as
follows:
INTRODUCTION
Over the past decade, the Santa Rosa County School Board has cultivated
a series of well-established, though unwritten, policies and customs aimed at
1 Defendant H. Frank Lay filed a motion to dismiss (Doc. 20) separate from the other
Defendants. (Doc. 19). In that motion, Lay adopted and incorporated the arguments of the
remaining Defendants’ motion to dismiss and supporting memorandum. Lay Mot. to
Dismiss, ¶4. Accordingly, this brief opposes both motions.
Page 2 of 25
promoting religion in District schools. Acting under the authority and
sanction granted by these District-wide policies and customs, officials across
the District have repeatedly subjected students, including Plaintiffs, to
religiously coercive activities and events. Hoping to portray the events at
Pace High as isolated incidents, Defendants have made multiple efforts to
exclude from this lawsuit the officially sponsored religious activities and
events at schools other than Pace High. First, Defendants argued that they
could not possibly respond in time to discovery meant to uncover evidence
of these activities. This Court alleviated that problem by granting
Defendants additional time to comply with Plaintiffs’ discovery requests.
Defendants also moved to strike particular paragraphs of the Complaint that
allege their own acknowledgement that these widespread policies or customs
exist within the District. Plaintiffs’ response to that motion, filed separately,
explains why Defendants’ request should be denied. Now, Defendants seek
to dismiss the case based on Plaintiffs’ purported lack of standing to
challenge events at schools other than Pace High. But there is one major
hitch: Defendants’ motion hinges on a mischaracterization of Plaintiffs’
Establishment Clause claim.
Page 3 of 25
Plaintiffs allege that the School District has established a series of
unwritten, District-wide policies or customs authorizing District schools and
school officials to 1) sponsor and promote prayer at school events, including
graduation; 2) organize, promote, and support religious baccalaureate
services; 3) hold school-sponsored activities at places of worship even when
alternative secular venues are available; and 4) proselytize students.
Plaintiffs further allege that the religious activities and events occurring at
Pace High take place pursuant to these District-wide policies or customs.
Accordingly, Plaintiffs challenge both the constitutionality of the District-
wide, unwritten policies generally, and as they are applied by school
officials at Pace High School.
Plaintiffs do not, as Defendants contend, allege personal injury from, or
seek to challenge, specific applications of these policies or customs at
District schools other than at Pace High. Nor do Plaintiffs seek to assert
claims on behalf of students enrolled at those other schools. Nevertheless,
as explained below, the promotion of religion at other District schools is
central to Plaintiffs’ claim; it evinces the existence of the unwritten, District-
wide policies or customs implemented at Pace High, and it is probative of
the general content, parameters, and application of these policies.
Page 4 of 25
Moreover, Defendants’ campaign to cordon off religious activities at
other District schools from those at Pace High reveals a disregard for, or
misunderstanding of, the fundamental nature of Establishment Clause law:
As the Court of Appeals for the Eleventh Circuit has put it, “the devil is in
the details.” Selman v. Cobb County Sch. Dist., 449 F.3d. 1320, 1322 (11th
Cir. 2006). Thus, even if Plaintiffs were to forgo their broader challenge to
the District-wide policies or customs that authorized the particular violations
at Pace High, the religious activities at other District schools would still be
relevant to Plaintiffs’ claim because they shed light on the purpose, history,
and context associated with the events at Pace High.
FACTS
Plaintiffs, who are students at Pace High School in the School District of
Santa Rosa County, Fla., filed this action in August 2008 against Defendants
School Board for Santa Rosa County, Superintendent John Rogers, and Pace
High Principal H. Frank Lay in order to put an end to Defendants’ repeated
and ongoing violations of Plaintiffs’ Establishment Clause rights. See
generally Compl. (Doc.1). Plaintiffs allege that Defendants have
maintained, over the past decade, a series of well-established policies or
customs promoting religion. Id. ¶ 21. In particular, Plaintiffs allege that
Page 5 of 25
Defendants have established policies or customs that authorize and
encourage 1) prayer at school events; 2) school-sponsored religious
baccalaureate services; 3) conduct of school events at places of worship; and
4) school officials’ proselytizing of students in class and during
extracurricular activities. Id. Plaintiffs further allege that these policies or
customs are District-wide, as evidenced by the myriad incidents cited in the
Complaint. See id., ¶¶ 23-30, 40-43, 45-52, 53-58. Plaintiffs also set forth
in the Complaint specific examples of school officials’ application of these
District-wide policies at Pace High, including the incorporation of prayer
into graduation ceremonies (id. ¶ 29), school sponsorship of baccalaureate
services (id. ¶ 42), the selection of a religious venue to host a student-awards
ceremony (id. ¶ 51), and faculty proselytizing of students during
extracurricular-club meetings and in the school parking lot (id. ¶¶ 53-57).
Plaintiffs allege particularized injuries proximately caused by
Defendants’ policies or customs and their application at Pace High,
including: (1) personal offense because the policies or customs “promote
religious beliefs to which [Plaintiffs] do[ ] not subscribe and thereby fail to
respect [Plaintiffs’] and others’ religious choices and beliefs (id. ¶¶ 11, 16);
and (2) religious coercion through various applications of Defendants’
Page 6 of 25
policies or customs at Pace High, such as holding school events in places of
worship. Id. ¶ ¶ 11, 16. Plaintiffs ask the court to declare the District’s
policies or customs unconstitutional and to permanently enjoin their
enforcement. Id. p. 30.
LEGAL STANDARD
“A motion to dismiss does not test the merits of a case, but only requires
that the plaintiff’s factual allegations, when assumed to be true, must be
enough to raise a right to relief above the speculative level.” Young
Apartments, Inc. v. Town of Jupiter, 529 F.3d 1027, 1037 (11th Cir. 2008)
(internal quotation/citation omitted). Thus, for purposes of a motion to
dismiss, all factual allegations made in the Complaint must be accepted as
true and construed in the light most favorable to Plaintiffs. Id.
Under Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), and its
progeny, to establish standing in federal court pursuant to Article III, a
plaintiff must demonstrate three points. See DiMaio v. Democratic Nat’l
Comm., 520 F.3d 1299, 1301-02 (11th Cir.2008). First, he must have
suffered an injury in fact, which is concrete and particularized, and actual or
imminent. Lujan, 504 U.S. at 560. “At the pleading stage, general factual
allegations of injury resulting from the defendant’s conduct may suffice, for
Page 7 of 25
on a motion to dismiss we ‘presum[e] that general allegations embrace those
specific facts that are necessary to support the claim.’” Id. at 561 (quoting
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990)). Second, there
must be a causal connection between the plaintiff’s injury and the conduct
he challenges. Id. at 560. Third, the plaintiff must properly allege that his
injury will be redressed by a favorable decision of the court. Id. at 561.
ARGUMENT
I. Plaintiffs Have Standing to Challenge Both the School-Sponsored
Religious Events at Pace High and the District-Wide Policies
Authorizing and Encouraging Those Activities.
Plaintiffs’ allegations are sufficient, at this stage in the litigation, to meet
Lujan’s three-prong test. Plaintiffs allege that they have suffered (and will
continue to suffer) injuries in fact, which are concrete and particularized and
actual or imminent. See Compl. (Doc. 1) ¶¶ 11, 16; Lujan, 504 U.S. at 560.
Though, in a effort to shield their religious activities at other schools from
this Court’s scrutiny, Defendants mischaracterize these injuries as narrow in
scope and limited to their conduct at Pace High, Plaintiffs’ alleged harm is
much more expansive, as explained below: Plaintiffs have been injured by
both the religious activities at Pace High and the District-wide policy
authorizing those activities. Plaintiffs further allege a causal connection
Page 8 of 25
between these injuries and the challenged District-wide policies and customs
promoting religion, as well as the application of those policies at Pace High,
and that these injuries will be redressed by a favorable decision of this
Court. See Compl. (Doc. 1) ¶¶ 11, 16 72-80; Lujan, 504 U.S. at 560.
Defendants concede, as they must, that Plaintiffs have standing to
challenge events at Pace High School. Mot. to Dismiss (Doc. 19) at 10 n.3
(“For the purposes of this motion only, Defendants concede Does I and II
have standing to assert claims regarding past and future school sponsored
activities at Pace High School.”). As a result of Pace High’s inclusion of
prayer at school events (such as graduation), sponsoring religious
baccalaureate services, holding school-sponsored activities at places of
worship, and proselytizing students, Plaintiffs were “subjected to
unwelcome religious exercises or were forced to assume special burdens to
avoid them.” See Valley Forge Christian Coll. v. Americans United for
Separation of Church & State, Inc., 454 U.S. 464, 487 n.22 (1982).
Defendants’ actions thus caused Plaintiffs “serious constitutional injury” —
in the form of religious coercion — that can only be redressed by this Court.
See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 313 (2000).
Page 9 of 25
But Plaintiffs’ injuries do not end there. The harm inflicted on Plaintiffs
arises not only from the actual implementation at Pace High of the District-
wide policies or customs, but from the existence of those broader policies or
customs in the first place because they were established with the purpose of
promoting religion District-wide, including at Pace High. As the Supreme
Court explained in Santa Fe, “the mere passage by the District of a policy
that has the purpose and perception of government establishment of
religion” imposes on students a “different, yet equally important,
constitutional injur[y].” Id. at 314. This injury is tied to the message of
religious endorsement (and religious favoritism) conveyed to students by the
act of establishing a policy or custom that promotes and encourages religious
exercise or other religious views. Id. at 316 (“the simple enactment of this
policy, with the purpose and perception of school endorsement of student
prayer, was a constitutional violation”). Specifically, the series of District-
wide policies and customs promoting religion communicate to Plaintiffs that
they — nonadherents to the District’s preferred religious views — are
“outsiders, not full members of the political community,” while their
classmates and others who adhere to the District’s chosen faith are “insiders,
favored members of the political community.” Id. at 309-10 (internal
Page 10 of 25
quotations/citations omitted); see also Lee v. Weisman, 505 U.S. 577, 604-
05 (Blackmun, J., concurring) (“The Establishment Clause proscribes public
schools from conveying or attempting to convey a message that religion or a
particular religious belief is favored or preferred, even if the schools do not
actually impose pressure upon a student to participate in a religious
activity.”) (internal quotations/citations omitted).
The injury inflicted by this impermissible message is distinct from the
harm caused by the religiously coercive events at Pace High, as the Supreme
Court recognized in Santa Fe. See Santa Fe, 530 U.S. 313-14. Indeed,
Plaintiffs’ injury in this respect would be redressable, regardless whether
school officials are successful in implementing the District’s policies or
customs at Pace High, because “[g]overnment efforts to endorse religion
cannot evade constitutional reproach based solely on the remote possibility
that those attempts may fail.” Id. at 316 (holding that “even if no Santa Fe
High School Student were ever to offer a religious message [in accordance
with challenged policy], the October policy fails a facial challenge because
the attempt by the District to encourage prayer is also at issue”).
Accordingly, simply enjoining Defendants from applying their
unconstitutional policies to Pace High students would not fully redress the
Page 11 of 25
particularized harm suffered by Plaintiffs; more is required. That the
remedy requested — a declaration that the District-wide policies or customs
are unconstitutional and an injunction barring their enforcement — also
would also cure the injury suffered by students at other schools surely does
not deprive Plaintiffs of standing to mount such a challenge on their own
behalves. Accordingly, Defendants’ motion to dismiss must be denied.
II. Religious Activities at Other District Schools Are Relevant to
Plaintiffs’ Establishment Clause Claim.
As explained above, Defendants’ mischaracterization of Plaintiffs’
Establishment Clause claim notwithstanding, Plaintiffs have standing (and
make sufficient allegations in their Complaint) to challenge both the school-
sponsored religious events at Pace High and the District-wide policies and
customs authorizing those activities. Plaintiffs need make no further
showing at this point in the litigation to proceed with their case. See Lujan,
504 U.S. at 561. Because Plaintiffs challenge the broader, District-wide
policies and customs promoting religion and authorizing the religious
activities and events at Pace High, and in light of the searching factual
inquiry and fact-sensitive analysis demanded by Establishment Clause law,
evidence of school-sponsored religious events and activities at District
Page 12 of 25
schools other than Pace High are likely to be critical elements of Plaintiffs’
case.
A. Religious Activities at Other Schools Are Highly Probative
of District-Wide Policies Promoting Religion.
Though Plaintiffs neither challenge specific applications of the alleged
District-wide policies or customs at other schools nor assert claims on behalf
of students at other schools, Plaintiffs’ complaint properly alleges and cites
those policies or customs because events at those schools are relevant to
Plaintiffs’ Establishment Clause claim. Unless Defendants are willing to
admit that the school-sponsored religious activities at Pace High were
authorized by, and conducted in accordance with, unwritten, District-wide
policies or customs, Plaintiffs will be tasked with proving the existence and
parameters of these alleged policies or customs.2 Cf., e.g., Faustin, 423 F.3d
2 That the District’s policies or customs promoting religion are unwritten does
not insulate them from legal challenge. See Jones v. Salt Lake County, 503 F.3d 1147,
1159 n. 13 (10th
Cir. 2007) (holding that “the constitutionality of a [challenged] prison
regulation, whether written, unwritten, publicized or unpublicized, is governed by” the
same case law); Faustin v. City & County of Denver, 423 F.3d 1192, 2296 n. 1 (10th
Cir.
2005) (“Our precedent allows facial challenges to unwritten policies.”); Sentinal
Comm’ns Co. v. Watts, 936 F.2d 1189, 1197 (11th
Cir. 1991) (acknowledging that facial
challenges to unwritten policies, though disfavored, are permissible); Steele v. Van Buren
Pub. Sch. Dist., 845 F.2d 1492, 1495 (8th
Cir. 1988) (“Because informal practices of
governmental officials can be just as injurious as established policies, the custom or
policy need not have ‘received formal approval through . . . decisionmaking channels’ to
expose it to liability.”) (internal quotations/citation omitted); Adams v. Wellsburg, 2008
WL 2340374, at * 2 n. 4 (N.D. W. Va. June 6, 2008) (“Unwritten policies or procedures
can violate the First Amendment the same as written policies or procedures.”); see,e.g.,
Page 13 of 25
at 1196-97 (10th Cir. 2005) (noting that the “parties dispute the precise
parameters of [alleged] unwritten policy,” and concluding that plaintiff “has
offered no evidence to prove” that the scope of the policy was as broad as
alleged in the complaint); Adams, 2008 WL 2340374, at *4 (holding that
plaintiffs’ reliance solely on testimony from one deposition “to support their
argument regarding the existence of an unwritten policy” was insufficient to
establish existence of alleged policy); Mandal v. City of New York, 2006 WL
2959235, *6 (S.D. N.Y. Oct. 17, 2006) (ordering trial to determine whether
alleged unwritten policy existed in light of conflicting evidence); Case v.
Unified Sch. Dist. No. 233, 895 F. Supp. 1463, 1471 (D. Kan. 1995) (where
alleged policy was unwritten and defendants denied its existence, plaintiff
would have to establish its existence based on factual occurrences
surrounding other incidents); Ashby v. Isle of Wight County Sch. Bd., 354 F.
Supp. 2d 616, 627 (E.D. Va. 2004) (“there is no evidence to support a
finding that actions like the one [challenged] . . . are so pervasive throughout
the school district as to constitute a custom or usage”). This showing is not
only important to Plaintiffs’ general challenge to Defendants’ unwritten
Rothergy v. Gillespie County, 128 S. Ct. 2578, 2583 (2008) (challenging unwritten policy
of denying appointed counsel to indigent defendants out on bond until entry of
indictment); Johnson v. California, 543 US 499, 502 (2005) (ruling on constitutionality
of unwritten policy of racially segregating new prisoners).
Page 14 of 25
policies or customs promoting religion, but it is also may be required to hold
the School Board liable for the violations that have occurred at Pace High
School. See Monell v. N.Y. City Dep’t of Social Servs., 436 U.S. 658, 690-
91 (1978) (holding that local governmental bodies may only be held liable
for acts of their employees or agents where they embody an “execution of
[the] government’s policy or custom”).
Evidence of religious activities and events at other District schools will
be vital to Plaintiffs’ ability to show that the policies or customs alleged here
actually exist and to defining the exact parameters of those policies and
customs. See e.g., Denno v. Sch. Bd, 218 F.3d 1267, 1278 (11th
Cir. 2000)
(holding that plaintiff failed to establish, for Monell liability purposes, a
district-wide custom of banning the Confederate flag where he could not
point to any similar examples at his high school or “adduce evidence of
similar suspensions at other schools within the school district governed by
the board”) (emphasis added). For example, if schools throughout the
District routinely incorporate prayer into school events and activities, as
Plaintiffs allege, it will be apparent that the District does indeed have a
policy or custom of promoting and encouraging prayer, and that the events at
Page 15 of 25
Pace High (e.g., graduation prayer) are authorized by, and carried out
pursuant to, that policy or custom.
B. Evidence of Religious Events and Activities at Other
Schools is Necessary to Conduct a Complete Establishment
Clause Analysis.
Even if Plaintiffs were somehow barred from mounting a challenge to the
District-wide policies or customs, the religious events at other District
schools remain relevant to the Court’s Establishment Clause analysis
because they shed light on the history and purpose of the events at Pace
High, and are part of the contextual background in which the Pace High
events must be assessed. Defendants’ efforts to exclude such events from
the scope of this case disregard a fundamental aspect of Establishment
Clause analysis: “the devil is in the details.” Selman, 449 F.3d. at 1322; see
McCreary County v. ACLU of Kentucky, 545 U.S. 844, 867 (2005) (“under
the Establishment Clause detail is key”); Glassroth v. Moore, 335 F.3d
1282, 1288 (11th Cir. 2003) (“Establishment Clause challenges are not
decided by bright-line rules, but on a case-by-case basis with the result
turning on the specific facts”). Thus, in reversing a district-court decision
that failed to heed this axiom, the Eleventh Circuit explained: “Facts and
Page 16 of 25
context are crucial and they, of course, must be determined from the
evidence.” Selman, 449 F.3d at 1332.
In Santa Fe, for example, though the challenged policy authorizing a
student referendum on student-led prayer at football games was passed in
1995, the Supreme Court conducted a searching inquiry of the school
district’s “long-established tradition of sanctioning student-led prayer at
varsity football games,” as well the context in which the policy arose. Santa
Fe, 530 U.S. at 315 (“We refuse to turn a blind eye to the context in which
this policy arise, and that context quells any doubt that this policy was
implemented with the purpose of endorsing school prayer”); see also Jager
v. Douglas County Sch. Dist., 862 F.2d 824, 831 (11th
Cir. 1989) (taking into
account history and context of pregame prayers at high school in finding
district’s prayer policy unconstitutional); Nartowicz v. Clayton County Sch.
Dist., 736 F.2d 646, 649 (11th
Cir. 1984) (weighing evidence of “district’s
apparent support of religious assemblies, religious signs, and announcements
of church sponsored activities via bulletin board and public address
systems,” in upholding district-court injunction barring meetings of teacher-
supervised religious club at a district junior-high school).
Page 17 of 25
The Santa Fe Court recognized that all of these factors affected students’
ultimate perception of the challenged policy and whether the policy
conveyed a message of religious endorsement to students. See Santa Fe,
530 U.S. at 315-16. Here, a reasonable, objective Pace High student would
assess the purpose and effect of the religious activities advanced at Pace
High through the historical and contextual filter of the District’s
longstanding support for and encouragement of similar religious activities
District-wide. In the Establishment Clause analysis, then, the events at Pace
High and at other District schools, are inextricably linked. Accordingly,
Plaintiffs must be permitted to investigate and gather evidence regarding
these events.
III. Plaintiffs Have Standing to Assert Their Florida Constitutional
Claim and This Court Should Exercise Supplemental Jurisdiction
Over That Claim.
The “No-Aid” provision of the Florida Constitution provides that “[n]o
revenue of the state or any political subdivision or agency thereof shall ever
be taken from the public treasury directly or indirectly in aid of any church,
sect, or religious denomination or in aid of any sectarian institution.” FLA.
CONST. art. I, §3, cl. 2. But as Plaintiffs allege in their Complaint,
Defendants have, in connection with their District-wide customs or policies
Page 18 of 25
promoting religion, expended governmental revenue (in the form of
employee time and program printing costs) in violation of this constitutional
prohibition. See Compl. (Doc. 1) ¶83. In particular, school officials used
employee time to orchestrate baccalaureate services and prayer at school
events to promote or showcase the faiths of sectarian institutions; and school
officials spent School Board revenue to print baccalaureate programs for the
religious services of various sectarian institutions. Id.; see also Compl.
(Doc. 1), Exs. 1-2, pp. 2-5, 10-21 (Central High and Jay High graduation
programs, which also the baccalaureate-service programs for those schools).
As explained below, these expenditures caused injury to Plaintiffs, who,
therefore, have standing to bring their No Aid claim.
Furthermore, because Plaintiffs’ state claim is tied to their federal
claim by a common nucleus of facts, this Court is permitted to exercise
supplemental jurisdiction, and for the sake of judicial economy, should not
hesitate to do so. See Parker v. Scrap Metal Processors, Inc., 468 F.3d 733,
743 (11th Cir. 2006) (“The constitutional ‘case or controversy’ standard
confers supplemental jurisdiction over all state claims which arise out of a
common nucleus of operative fact with a substantial federal claim.”)
Page 19 of 25
A. Plaintiffs have Standing to Assert Their No Aid Claim
Defendants misstate the standard for standing in federal courts. Because
federal law governs the powers and jurisdiction of federal courts, it is federal
law, and not state law, that controls standing in this case. See Phillips
Petroleum Co. v. Shotts, 472 U.S. 797, 804 (1985) (“Standing to sue in any
Article III court is, of course, a federal question which does not depend [on
what would have been the party’s] standing in state court.”). Accordingly,
the same test set forth in Lujan and employed above regarding Plaintiffs’
standing to assert federal claims applies equally to their standing to assert
their state constitutional claim.
Plaintiffs have met their pleading burden under Lujan to establish
standing to bring their state constitutional claim. They have alleged a
concrete and particularized injury that is both actual and imminent: Because
Defendants have used revenue to pay for the printing of baccalaureate
programs and planning prayer at school functions, they have diverted these
limited funds from the District’s secular education benefiting Plaintiffs.
Compl. (Doc. 1) ¶ 84. They have alleged a causal connection between this
injury and the Defendants’ conduct: If Defendants had not used this revenue
to print baccalaureate programs and plan school prayer, Plaintiffs would
Page 20 of 25
have benefited from increased funding for their secular education. Id. And
they have alleged redressability: If the Court enjoins the Defendants,
Plaintiffs’ secular education will benefit. Id. at ¶ 85.
Defendants concede that Plaintiffs have standing to assert Florida
constitutional claims for violations occurring at Pace High. However, they
argue that Plaintiffs lack standing to challenge the improper expenditure of
revenues at schools other than Pace High because Plaintiffs are not enrolled
at those schools, and therefore, have no particularized injury resulting from
the School Board’s expenditure of District funds on religious activities at
those schools. See Mot. to Dismiss (Doc. 19) at 10 n. 3; id. at 14-15. But
Defendants’ argument does not follow when you consider the nature of
Plaintiffs’ alleged injury: When the School Board impermissibly diverts
limited District revenues to fund religious activities at any District school,
there are less funds to devote to secular education at all District schools,
including Pace High. Thus, Plaintiffs are injured by the District’s policies
permitting such spending, whether the funds support events at Pace High or
at some other District school. Plaintiffs, accordingly, have sufficiently
demonstrated standing at this stage in the litigation to continue pursuit of
their state constitutional claim.
Page 21 of 25
B. The Court Should Exercise Supplemental Jurisdiction Over
Plaintiffs’ State-Law Claim
Next, Defendants argue that the Court should decline to exercise
supplemental jurisdiction over Count II, alleging violations of the Florida
Constitution’s No-Aid Provision. Defs.’ Mot. to Dismiss (Doc. 19), pp. 15-
23; see also 28 U.S.C. §1367(c) (Supplemental Jurisdiction). Although
Defendants implicitly concede that the federal constitutional claim
predominates over the state constitutional claim, they nevertheless urge the
Court to decline exercising jurisdiction over the state claim on two bases —
that the state claim raises a “novel or complex issue of State law” (see 28
U.S.C. §1367(c)(1)), and that this case involves “exceptional circumstances”
(see 28 U.S.C. §1367(c)(4)). See Defs.’ Mot. to Dismiss (Doc. 19), pp. 15-
23. Both arguments fail.
Generally, district courts have jurisdiction over pendant state claims. 28
U.S.C. §1367(a); Palmer v. Hosp. Auth., 22 F.3d 1559, 1569 (11th Cir.
1994) (“Under the language of section 1367, whenever a federal court has
supplemental jurisdiction under section 1367(a), that jurisdiction should be
exercised unless section 1367(b) or (c) applies.”); see also United Mine
Workers v. Gibbs, 383 U.S. 715 (1966). Judicial economy is preserved by
the maintenance of a single action rather than two cases with substantially
Page 22 of 25
similar evidence being presented twice. See L.A. Draper & Son v.
Wheelabrator-Frye, Inc., 735 F.2d 414 (11th Cir. 1984) (ruling that judicial
economy weighs in favor of one action when the “same witnesses would
have to introduce virtually identical testimony in a duplicative state
proceeding”).
For the sake of judicial economy, the Court should exercise jurisdiction
over the pendent state claim. The No-Aid provision is neither novel nor
unique to Florida. Over thirty states have a similar no-aid provision in their
constitutions. See Remarks by the President at White House Summit on
Inner-City Children and Faith-Based Schools, Business Wire, Apr. 24,
2008, available at http://findarticles.com/p/articles/mi_m0EIN/is_2008_
April_24/ai_n25355916/pg_3. Moreover, as U.S. Supreme Court Chief
Justice Rehnquist explained in Locke v. Davey, 540 U.S. 712 (2004),
although a state may add a no-aid provision to its state establishment clause,
“the interest [the state] seeks to further is scarcely novel.” See id. at 722
(emphasis added).
Moreover, a body of state case law will guide this court in ruling on this
claim, as it has done for the Middle District of Florida, which has already
ruled on Florida’s No Aid provision. See e.g., Konikov v. Orange County,
Page 23 of 25
302 F.Supp.2d 1328, 1351 (M.D. Fla. 2004); see also Nohrr v. Brevard
County Educ. Facilities Auth., 247 So. 2d 304 (Fla. 1971); Johnson v.
Presbyterian Homes of the Synod of Fla., Inc., 239 So. 2d 256 (Fla. 1970);
Koerner v. Borck, 100 So. 2d 398 (Fla. 1958); Bush v. Holmes, 886 So. 2d
340 (Fla. 1st DCA 2004); Rice v. State, 754 So. 2d 881, 883 (Fla. 5th DCA
2000); Silver Rose Entm’t, Inc. v. Clay County, 646 So. 2d 246, 251 (Fla. 1st
DCA 1994).
Finally, no “exceptional circumstances” prevent the Court from ruling on
this claim. While the Defendants raise concerns about pending state actions
and intrusion into the operation of local government (see Mot. to Dismiss
(Doc. 19) at 22-23), there are no pending state actions between these parties
and Congress’s implied mandate to federal courts in the context of civil-
rights cases is to bring local government into line with the U.S. Constitution.
(See 28 U.S.C. §1343(a)(3) (providing jurisdiction to federal courts to hear
matters involving the deprivation of constitutional rights by state actors).
Defendants’ cited exceptions to the exercise of supplemental jurisdiction
are simply inapplicable here. For the sake of judicial economy, the Court
should exercise supplemental jurisdiction over the pendent state claim.
Page 24 of 25
CONCLUSION
For all the foregoing reasons, this Court should deny Defendants
Motion to Dismiss in its entirety.
RESPECTFULLY SUBMITTED,
s/ Heather L. Weaver
Heather L. Weaver (D.C. Bar No.:
495582)
Daniel Mach (D.C. Bar No.:
461652)
ACLU Program on Freedom of
Religion and Belief
915 15th Street, NW
Washington, DC 20005
Tel: 202.675.2330
Fax: 202.546.0738
Benjamin James Stevenson (Fla.
Bar. No. 598909)
American Civil Liberties Union
Found. of Florida
Post Office Box 12723
Pensacola, FL 32591-2723
Tel: 786.363.2738
Fax: 786.363.1985
Glenn M. Katon (Fla. Bar. No.
636894)
American Civil Liberties Union
Found. of Florida
Post Office Box 18245
Tampa, FL 33679
Tel: 813.254.0925
Fax: 813.254.0926
Randall C. Marshall (Fla. Bar No.:
181765)
Maria Kayanan (Fla. Bar No.:
305601)
American Civil Liberties Union
Found. of Florida
4500 Biscayne Blvd., Suite 340
Miami, Florida 33137
Tel: 786.363.2707
Fax: 786.363.1108
Counsel for Plaintiffs
Page 25 of 25
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I electronically filed today the foregoing
with the Clerk of the Court using the CM/ECF system, which will send
notification of such filing to all persons registered for this case, including the
Defendants’ counsel.
Dated: November 3, 2008.
/s/ Heather L. Weaver
Heather L. Weaver