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«SCOTT LANE, on his own behalf and on NUMBER: behalf of his minor children, S.L. and M.L.; AND SHARON LANE, on her own behalf JUDGE: and on behalf of ...»

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Graham, 449 U.S. 39, 42 (1980), “[t]his is not a case in which the [challenged materials] are integrated into the school curriculum, where [they] may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like.” Rather, like the Ten Commandments plaques at issue in Stone, Defendants’ use of religious iconography and messages in this manner does not serve any “educational function.” See id. at 41-42 (holding that “[t]he pre–eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature”); see also Washegesic v. Bloomingdale Pub. Sch., 33 F.3d 679, 683 (6th Cir. 1994) (finding that public school had no secular purpose for display of Jesus portrait).

Because Defendants’ cannot evince a primarily secular purpose for their repeated efforts to promote and inculcate Christianity, they fail the first prong of the Lemon test.

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Even if Defendants could identify a predominantly secular purpose behind their longstanding custom, policy, and practice of promoting and inculcating Christian beliefs, the State “cannot employ a religious means to serve otherwise legitimate secular interests.” See Treen, 653 F.2d at 901; see also Holloman, 370 F.3d at 1283 (rejecting teacher’s claim that inclass prayer was permissible way of teaching compassion in connection with character education instruction because prayer “is not within the range of tools among which teachers are empowered to select in furtherance of their pedagogical duties”). Regardless of the asserted purpose, “[g]overnment unconstitutionally endorses religion whenever it appears to take a position on questions of religious belief or makes adherence to a religion relevant in any way to a person’s standing in the political community.” Ingebretsen, 88 F.3d at 280 (internal quotation marks omitted). Because public-school promotion of religious messages and activities announces to those who do not follow the school’s favored faith that they are second-class citizens, “outsiders, [who are] not full members of the political community,” it fails the endorsement test. Santa Fe, 530 U.S. at 309, The Supreme Court’s decision in Santa Fe provides a model for this Court’s analysis under the endorsement test. There, the Court took into account the history of the challenged policy and, importantly, the context in which the approved prayers would take place. Student prayer givers were selected pursuant to an official school policy. Santa Fe, 530 U.S. at 306. The policy, “by its terms, invite[d] and encourage[d] religious messages.” Id. The religious messages were then delivered via the school’s public-address system “to a large audience assembled as part of a regularly scheduled, school-sponsored function conducted on school property.” Id. at 307. Under these circumstances, the Court determined that, “[r]egardless of the listener’s support for, or objection to, the message, an objective Santa Fe High School student will unquestionably perceive the inevitable pregame prayer as stamped with her school’s seal of approval.” Id. at 308.

In light of Santa Fe’s clear holding, there can be no doubt that Sabine Parish’s practice of incorporating prayers into class and school events has the effect of endorsing and advancing religion in violation of the Establishment Clause. Whether led by school officials themselves, invited guests, or designated students, Defendants’ prayers would be perceived by any objective student as stamped with the imprimatur of the School District. See id.; see also Jager, 862 F.2d at 831 (“When a religious invocation is given via a sound system controlled by school principals and the religious invocation occurs at a school-sponsored event at a school-owned facility, the conclusion is inescapable that the religious invocation conveys a message that the school endorses the religious invocation.”).

Defendants’ proselytizing, moreover, also clearly violates Lemon’s second prong and the endorsement test. Contrary to Superintendent Ebarb’s claim, supra p. 5, school officials, such as Defendant Roark, do not have the right to preach to students or teach religious tenets as truth.

There is a ‘“difference between teaching about religion, which is acceptable, and teaching religion, which is not.’” Roberts v. Madigan, 921 F.2d 1047, 1055 (10th Cir. 1990) (quoting district court opinion with approval). While teachers and school officials enjoy the full range of religious-liberty rights in their personal capacities, they are not entitled to use their government positions to promote and impose their personal religious beliefs on students. See, e.g., Grossman v. S. Shore Pub. Sch. Dist., 507 F.3d 1097, 1099 (7th Cir. 2007) (“Teachers and other public school employees have no right to make the promotion of religion a part of their job description and by doing so precipitate a possible violation of the First Amendment’s [E]stablishment [C]lause.”); Helland v. S. Bend Cmty. Sch. Corp., 93 F.3d 327, 329, 331 n.2 (7th Cir. 1996) (holding that public-school district had properly dismissed substitute teacher for, among other infractions, “the unconstitutional interjection of religion” into classes “by reading the Bible aloud to middle and high school students, distributing Biblical pamphlets, and professing his belief in the Biblical version of creation in a fifth grade science class”); Williams v. Vidmar, 367 F. Supp.

2d 1265, 1275 (N.D. Cal. 2005) (“In the view of the Court, there is a well-defined difference between being an elementary school teacher who is an avowed Christian, which Williams is free to be, and expressing the Christian faith in the classroom.”).

When school staff cross the constitutional line, as they have here, by proselytizing students and subjecting them to religious indoctrination, or inviting others into school to do the same, the courts have stepped in to stop the unlawful activities. See, e.g., Porter, 370 F.3d at 563 (permitting Bible ministry members to come onto school property to teach courses during the school day that treated the Bible as “literal truth” conveyed “a clear message of state endorsement of religion – Christianity in particular – to an objective observer”); Hall v. Bd. of Sch. Comm’rs, 656 F.2d 999, 1001-03 (5th Cir. 1981) (ruling that Bible literature course taught from “a fundamentalist, evangelical, protestant perspective” could not pass constitutional muster); S.D. v. St. Johns Cnty. Sch. Dist., 632 F. Supp. 2d 1085, 1095 (M.D. Fla. 2009) (holding that school’s selection of a “a patently religious and proselytizing” song to be performed by third-graders during an end-of-year assembly failed the endorsement test); Herdahl, 933 F. Supp.

at 593-99 (ruling that a public-school course teaching the Bible as truth and teacher’s screening of religious videotapes explaining the “real” reasons for Christmas and Easter holidays “constitute[d] impermissible religious instruction and endorsement of religion by a public official”).

Lastly, when public schools display pictures of Jesus, Bible verses, and other posters and items encouraging students to engage in religious exercise or adopt particular religious beliefs, it sends an unconstitutional message of religious endorsement to students and families. See, e.g., Roberts, 921 F.2d at 1049, 1051, 1057 (holding that teacher’s display of poster stating, “You have only to open your eyes to see the hand of God,” along with other religious activities, “had the primary effect of communicating a message of endorsement of a religion to the impressionable ten-, eleven-, and twelve-year-old children in his class”); Ahlquist v. City of Cranston ex rel. Strom, 840 F.Supp.2d 507, 521-23 (D.R.I. 2012) (holding that display of prayer banner in public-school cafeteria violated Lemon’s effects prong and the endorsement test); cf.

Doe v. Harlan Cnty. Sch. Dist., 96 F. Supp. 2d 667, 679 (E.D. Ky. 2000) (enjoining display of Ten Commandments in public school). Holding a school’s display of a portrait of Jesus

unconstitutional, for instance, the Sixth Circuit explained:

Though the portrait, like school prayers and other sectarian religious rituals and symbols, may seem “de minimis” to the great majority, particularly those raised in the Christian faith and those who do not care about religion, a few see it as a governmental statement favoring one religious group and downplaying others. It is the rights of these few that the Establishment Clause protects in this case.

Washegesic, 33 F.3d at 684.

In sum, no reasonable observer could miss Defendants’ clear preference for religion generally and Christianity specifically. Their activities have made Plaintiffs feel like outsiders and second-class citizens who are disfavored by school officials. That perception is only bolstered by Roark’s insulting and humiliating treatment of C.C. in front of his classmates, Ebarb’s and Wright’s public defense of Roark’s tactics, and Ebarb’s suggestion that C.C.’s parents change his faith or learn to tolerate their son’s mistreatment because they are “in the Bible Belt.”5 By officially condemning C.C.’s Buddhist faith and urging him to change his religious beliefs, Defendants have independently violated the Establishment Clause: When the State singles out one faith for disfavorable treatment, its conduct must be narrowly tailored to achieve a compelling governmental interest. See Awad v. Ziriax, 670 F.3d 1111, 1129-31 (10th Cir.

2012) (holding that Oklahoma’s condemnation of Sharia law violated the Establishment Clause).

Defendants can offer no legitimate reason, let alone a compelling one, for degrading the faith of a sixth-grade student in this manner.

3. Defendants’ religious activities excessively entangle school officials with religion.

Although the Court need not reach Lemon’s third prong given the District’s clear failure of the coercion, purpose, and effect/endorsement tests,6 Defendants’ religious practices also violate Lemon’s prohibition against excessive government entanglement. The Fifth Circuit held in Duncanville II that school officials’ leadership of or participation in student prayers “improperly entangles [the school] in religion and signals an unconstitutional endorsement of religion.” Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402, 406 (5th Cir. 1995). And in Treen, explaining that the challenged “statute itself makes inappropriate governmental involvement in religious affairs inevitable,” the court pointed out that, among other sources of entanglement, “[t]he morning exercises take place on school property during regular school hours”; teachers are required “to select among any student volunteers” or may pray themselves in the absence of volunteers; and teachers must monitor the prayer and enforce time limitations. 653 F.2d at 902.

As noted above, in teaching creationism in class, requiring professions of faith on exams, sponsoring prayers at school events, proselytizing students, displaying religious iconography, and engaging in other acts of religious inculcation, Defendants here have hopelessly entangled themselves with religion. See, e.g., Porter, 370 F.3d at 563-64 (finding entanglement, in part, because religious class took “place on school premises, during the school day, with the explicit sanction of the Board of Education”); Washegesic, 33 F.3d at 683 (holding that display of Jesus portrait improperly entangles government religion).

See Freiler, 185 F.3d at 343 (“Nothing in our Circuit’s case law requires that contested government action be examined under each Supreme Court-delineated test.”).



Where Establishment Clause plaintiffs have demonstrated that they are likely to succeed on the merits of their claim, the Fifth Circuit has found that they easily meet the other requirements for a preliminary injunction. In Ingebretsen, after ruling that the plaintiffs were likely to succeed in showing that the Mississippi School Prayer Statute violated the Establishment Clause, the Fifth Circuit quickly dispensed with the remaining factors, holding that (1) the “[l]oss of First Amendment freedoms, even for minimal periods of time, constitute[d] irreparable injury”; (2) “the threatened injury outweigh[ed] any damage the injunction might cause to Mississippi and its citizens”7; and (3) “the School Prayer Statute [was] unconstitutional so the public interest was not disserved by an injunction preventing its implementation.” 88 F.3d at 280. This Court should not hesitate to reach the same conclusion. See, e.g., Duncanville I, 994 F.2d at 166 (“Our decision on the remaining injunction factors... follows from the initial determination that [Plaintiffs] likely will succeed at trial. Assuming [Plaintiffs’] Establishment Clause rights have been infringed, the threat of irreparable injury to [Plaintiffs] and to the public interest that the clause purports to serve are adequately demonstrated.”).

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For the reasons set out above, this Court should issue the preliminary injunction as outlined in Plaintiffs’ Motion for Preliminary Injunction and Proposed Preliminary Injunction.

The Fifth Circuit rejected the State’s claim that enjoining the statute would have a chilling effect on students who would like to pray at school, explaining that “students continue to have exactly the same constitutional right to pray as they had before the statute was enjoined.

They can pray silently or in a non-disruptive manner whenever and wherever they want....” Ingebretsen, 88 F.3d at 280.

Respectfully Submitted, By: /s/ Justin Harrison Justin P. Harrison (La Bar No. 33575)

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