Response In Opposition To Motion To Dismiss Complaint

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION MINOR I. DOE, et al.; Plaintiffs, v.

No.: 3:08-cv-361 MCR/EMT

SCHOOL BOARD FOR SANTA ROSA COUNTY, FLORIDA; et al.; Defendants. / 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.

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.

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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 Districtwide, 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, Districtwide policies or customs implemented at Pace High, and it is probative of the general content, parameters, and application of these policies.

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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. generally Compl. (Doc.1).

See

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

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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’

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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

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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

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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).

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But Plaintiffs’ injuries do not end there. The harm inflicted on Plaintiffs arises not only from the actual implementation at Pace High of the Districtwide 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 Districtwide 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.”

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Id. at 309-10 (internal

quotations/citations omitted); see also Lee v. Weisman, 505 U.S. 577, 60405 (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

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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 schoolsponsored 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

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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.,

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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).

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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, 69091 (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

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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

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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 teachersupervised religious club at a district junior-high school).

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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

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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.”)

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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

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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.

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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. 1523; 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. 1523. 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

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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,

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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 civilrights 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.

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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) [email protected] Daniel Mach (D.C. Bar No.: 461652) [email protected] 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 [email protected] 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 [email protected] Tel: 813.254.0925 Fax: 813.254.0926 Randall C. Marshall (Fla. Bar No.: 181765) [email protected] Maria Kayanan (Fla. Bar No.: 305601) [email protected] 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

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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

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