Introduction
The plaintiff, Marisa Bailey, respectfully moves for summary judgment. Summary judgment should be granted on count 1, her claim for violation of the Establishment Clause and on count 2, for her right to Free Exercise of Religion under the First Amendment of U.S. Constitution due to the actions of the defendant. Under the applicable constitutional tests, the undisputed facts compel a judgment as a matter of law for both counts.
Statement of Facts
For the purposes of this motion, the following facts are undisputed:
1. Marisa Bailey is a student in her senior year of attending the James River High School overseen by defendant, Rio Grand Unified School District (“the District”).
2. The Rio Grand Unified School District is a district of public schools.
Violation of the Establishment Clause
3. Prior to Miss Baily’s high school graduation her parents were notified by the District that student-led and student-initiated non-denominational prayers would be offered at the graduation ceremony.
4. School officials will be reviewing and approving the content of the prayers before the ceremony.
5. Attendance at graduation by graduating students is not required to receive a diploma.
Violation of Right to Free Exercise of Religion
6. Plaintiff Marisa Bailey is a devout Muslim and it is her sincere belief that she must wear an Islamic headscarf at all times.
7. The majority of the students at James River High School identify with the Christian religion.
8. Miss Bailey was prohibited by the District from wearing an Islam headscarf while on the school grounds of James River High School.
9. Miss Bailey objected, and this objection was accepted by the District as sincerely rooted in religious belief.
10. The basis for this prohibition is the proper application of the James River High School student dress code which prohibits the wearing of any clothing on the head.
11. This dress code has been applied to clothing related to other religions, gangs, rock bands, celebrities, and social causes if in violation of the code provisions.
11. Both parties agree that based on the applications on the record, the dress code has been applied even-handedly and neutrally.
Standard of Review
Summary judgment under Fed. R. Civ. P. 56 is proper when the motion and supporting papers reveal no issue of material fact and the undisputed facts support a finding for the moving party with a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(b). Once the burden of the moving party is met, the nonmoving party must argue in addition to the pleadings setting forth specific facts showing a genuine issue for trial. Becker v. Tenenbaum-Hill Associates, Inc., 914 F.2d 107, 110 (7th Cir.1990); Fed. R. Civ. P. 56(e). The record as a whole is considered, with all reasonable inferences favoring the party opposing summary judgment. Fisher v. Transco Services Milwaukee, Inc., 979 F.2d 1239, 1242 (7th Cir. 1992).
Only when “the evidence is such that a reasonable jury could return a verdict for the non-moving party” should a material fact be found. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). Importantly, the responsibility of the non-moving party is “more than simply show[ing] . . . some metaphysical doubt as to the material facts.” Matsushita Electric Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In particular, “[t]he mere existence of a scintilla of evidence in support of the [non-moving party’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252.
Argument
I. SUMMARY JUDGMENT SHOULD BE GRANTED AS TO COUNT 1 BECAUSE ANY PRAYERS PROVIDED AT THE GRADUATION CEREMONY WILL VIOLATE THE ESTABLISHMENT CLAUSE OF THE U.S. CONSTITUTION.
In 1992, the Supreme Court of the United States decided Lee v. Weisman, 505 U.S. 577, which upheld the validity of the test established in Lemon v. Kurtman, 403 U.S. 602 (1971), for determining whether prayers within a public school graduation ceremony runs afoul of the Establishment Clause of the U.S. Constitution. U.S. Const., amend. I. In order for a governmental action to not violate the Establishment Clause the Lemon test requires that governmental actions show sufficient secular purpose, must not either advance or promote religion, and there must not be too much government entanglement in the action. 403 U.S. at 612-13. The Lee Court found that a graduation ceremony prayer act, factually very much like the present case, could not satisfy these standards and therefore did violate the Establishment cause. Because the differences between Lee and the present case are inconsequential to the underlying constitutional considerations at play, this court is urged to follow this on point precedent.
If the situation in Lee failed to show sufficient secular purpose, the present facts also fail to show a sufficient secular purpose. Both cases involve graduation ceremonies at public schools and the recitation of relatively non-denominational statements called prayers. The one difference between Lee and the present case is that students, rather than a rabbi, will be presenting the prayers. Fact 3. However, it is the content of a message that carries it true purpose, not the person delivering the message. Because the two ceremonies have prayers of very similar content, they both fail to have enough secular purpose to pass the first prong of the Lemon test. Although this failure alone is sufficient to find a violation of the Establishment Clause, the remaining two prongs will also be discussed for completeness.
The second prong of the Lemon test requires that the action must not advance religion. 403 U.S. at 612. Despite the non-denominational nature of the message, the mere characterization of the statements as prayers is enough to trigger possible advancement of religion through their recitation. Again, it is immaterial to this determination that it would be students doing the recitation. Granted, a student prayer may be less effective on an audience than that provided by a religious professional, but the test does not require effective advancement, just advancement. As a result, the current factual pattern, as it did under Lee, fails the second prong of the Lemon test and violates the Establishment Clause.
Further, Lemon requires an assessment of the entanglement of the government in the action. 403 U.S.at 613. It should be noted that the Lee Court specifically called out the review of the prayers as an example of the government entanglement that the Constitution seeks to prevent, and such review by officials will be occurring under the present facts as well. The only difference is that students, rather than the school officials, motivated the inclusion of prayer in the ceremony. However, the impact of the review of governmental involvement overshadows this slight factual difference and the entanglement of the government with these prayers remains significant. Because of this significant governmental entanglement, the present situation also fails the third prong of the Lemon test.
Two other considerations of the Lee Court also provided a further support for the present factual pattern violating the Establishment Clause. The first of these is the lack of value in the “voluntary” nature of the ceremony for high school graduations, given the social importance of the event. 505 U.S. at 595. The second consideration is the coercion test. 505 U.S. at 592. The coercion test is based on the idea that prayer in public schools hold a particular risk of indirect coercion into religious activities, and this concern is also highly relevant to the present case. Therefore, these two Lee considerations and under the proper constitutional test provided by Lemon, the present undisputed facts support a finding of count 1 in favor of plaintiff as a matter of law.
II. COUNT 2 SHOULD BE DECIDED THROUGH SUMMARY JUDGMENT BECAUSE THE DISTRICT’S PROHIBITION OF MISS BAILEY’S WEARING A HEADSCARF VIOLATES HER RIGHT TO FREE EXERCISE OF RELIGION UNDER THE U.S. CONSTITUTION.
The Supreme Court case of Sherbert v. Verner states that anytime a governmental act imposes a substantial burden on the exercise of religion, the court should review that act under the strict scrutiny standard. 374 U.S. 398 (1963). In other words, the government must prove a compelling state interest and that it has pursued that interest in the least restrictive manner on religion. Sherbert, 374 U.S. at 403. Despite subsequent case law impacts on this case, this is the applicable standard, due to the enactment of the Religious Freedom Restoration Act by the Illinois legislature. 775 Ill. Comp. Stat. 35/10 (1998).
The present facts concede that Miss Bailey’s claim involves a sincere religious belief and because she cannot wear the headscarf during school hours, a large portion of her day, it must be concluded that the government action is a substantial burden upon that belief. Thus, the analysis moves to whether the James River High School survives strict scrutiny. The District has but one possible justification of its dress code could be interpreted as compelling: it is necessary for student discipline and safety such as in gang situations. This justification fails to be compelling under the present facts. There has been no showing or argument that the headscarf has any relationship to gangs, criminal activity, or other issues of student safety. Without some factual nexus between the banned action and the school’s alleged interest, the justification provided by the District cannot be judged as compelling.
Next, even if the court should find a compelling interest that the District is acting in furtherance of, the James River High School dress code is not the least restrictive or least burdensome to religion that could further that interest. A blanket ban on all headgear is sweeping. Restrictions related to safety could be more focused on those banning clothing articles that have had some direct connection to gangs, criminal activity, or reduced safety and avoids impacting religious garb, such as Miss Bailey’s headscarf. Thus, it appears that the present facts do not survive the strict scrutiny examination compelled by the Sherbert decision. Because of this failure, this court is urged to find the refusal to allow Miss Bailey wear her headscarf in school violates her Free Exercise of Religion rights.
Conclusion
Summary judgment should be granted because under the undisputed facts and based on the applicable constitutional tests, prayers to be offered in the graduation of the James River High School will violate the Establishment Clause and Marisa Bailey’s right to Free Exercise of Religion has been violated by the application of the school’s dress code to her wearing an Islamic headscarf. Accordingly, plaintiff is properly afforded a judgment as a matter of law on both counts, making entry of an order of summary judgment the proper step. Accordingly, entry of such an order by this court is respectfully requested.
Memorandum of Law
Statement of Facts: Marisa Bailey is a student at the James River High School within the Rio Grand Unified School District (“the District”), a public school district. During the planning of her high school graduation her parents were notified by the District that student led and student-initiated non-denominational prayers, first reviewed by school officials, would be offered at the graduation ceremony. Attendance at the ceremony is not required. Miss Bailey has challenged the expression of prayers at a public school event as violating the Establishment Clause of the U.S. Constitution (U.S. Const., amend I).
In a separate issue, Marisa, a devout Muslim, has been prohibited from wearing her Islamic headscarf under the James River High School student dress code that prohibits wearing any clothing on the head. The school refuses to provide exception in this case. Otherwise, the dress code has been found to be even-handed and neutrally applied. Miss Bailey has asserted that her right to Free Exercise of Religion (U.S. Const., amend I) has been violated through the prohibition of her wearing her headscarf at school.
Question Presented: What cases support the District’s position on the
Establishment Clause Challenge and the Free Exercise of Religion Challenge brought under the First Amendment and what counterarguments are available in response?
Brief Answer: For the first claim, the District will distinguish this case on its facts from Lee v. Weisman, 505 U.S. 577 (1992), and argue that the distinguishing facts compel a different answer to the Lemon test. Lemon v. Kurtman, 403 U.S. 602 (1971). We can argue these factual differences are not dispositive and Lee is the controlling case, compelling the same finding under Lemon’s considerations.
For the second, the District will rely on Reynolds v. United States, 98 U.S. 145 (1878), Employment Division of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), two cases which upheld governmental restrictions of religious practices despite Free Exercise claims. We can argue that the “vital public priorities” behind these restrictions, directed to polygamy and illegal drug use, are absent in this case. The District should find other less restrictive means of keeping school order than the dress code that improperly prohibits free exercise of religion.
Discussion: Miss Bailey’s Establishment Clause challenge shares many key facts with the case of Lee v. Weisman, 505 U.S. 577 (1992) which upheld the validity of the test established in Lemon v. Kurtman, 403 U.S. 602 (1971) to these situations and found the graduation ceremony prayer in that case unconstitutional. The District is likely to try to distinguish Lee by pointing to factual differences. The primary difference is that in Lee, a rabbi was leading the prayers, while in this case students will be leading the prayer. A second difference is that the prayers are student-initiated rather than school administration-initiated, as in Lee.
Adapted for this case, the Lemon test states that the government action must have secular purpose, must not have the primary effect of advancing religion, and there must not be excessive governmental entanglement in the acts. Id. The District will argue that having students present the prayers increases its secular purpose, reduces the advancement of religion, and lessens the governmental entanglement. In this way, they will assert the Lemon test is met and the action is constitutional.
An important counter to this position is that other issues underlying the Lee decision, specifically, the coercion of students to be respectful and silent during the prayer, remain no matter who is leading the prayers. Further, review of the prayers by school officials, a fact present in both the this case and in Lee, means the student-initiated aspects of this case are going to be touched by state review, making this a factual difference that is insufficient to compel a different result under Lemon.
Miss Bailey’s Free Exercise violation claim will likely be countered by two cases upholding prohibitions of religious activities by the state: Reynolds v. United States, 98 U.S. 145 (1878), and Employment Division of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). The District will argue that these cases establish a long-held ability of the government to ban religious minority groups’ distinctive practices to take into account public priorities forwarded by the underlying laws. Further, it will point to the facially neutral application of this rule to all religions. However, we can argue that the public interest in banning polygamy and the use of illegal drugs is not as high as the public interest in this case, given the comparative lesser overarching impact of school dress codes on the public.
Conclusion: In Miss Bailey’s constitutional challenges to the actions of the District under the Establishment Clause and the Right to Free Exercise of Religion under the First Amendment, there exists factual distinctions and specific cases that can be offered to counter her claims. However, as outlined in this memorandum, there are strong arguments that can be offered to counter these distinctions and cases.
