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SHERMAN v. COMMUNITY CONSOL. SCH. DIST. 21 OF WHEE

February 28, 1991

ROBERT IAN SHERMAN, for himself and as natural guardian for RICHARD HARRY SHERMAN, a minor son, Plaintiffs,
v.
COMMUNITY CONSOLIDATED SCHOOL DISTRICT 21 OF WHEELING TOWNSHIP, LLOYD DESCARPENTRIE, School District Superintendent, and DR. FERNE GARRETT, Principal of Riley School, individually and as representatives of the STATE OF ILLINOIS, and NEIL F. HARTIGAN, Attorney General of the State of Illinois, Defendants


Ann Claire Williams, United States District Judge.


The opinion of the court was delivered by: WILLIAMS

ANN CLAIRE WILLIAMS, UNITED STATES DISTRICT JUDGE

 Plaintiffs Robert Sherman and his minor son Richard Sherman are atheists and they allege that the Illinois statute which provides for the daily recitation of the Pledge of Allegiance in public elementary schools *fn1" violates their rights under the First and Fourteenth Amendments to the Constitution. Mr. Sherman filed a two-count complaint against the school district in which his son's school is located, the school district superintendent, the principal of his son's school, and the Illinois Attorney General seeking to have the statute declared unconstitutional and requesting monetary damages from the defendants. *fn2" Mr. Sherman and defendant Attorney General Hartigan filed cross-motions for summary judgment regarding Counts I and II. Defendants School District 21, Superintendent Descarpentrie and Principal Garrett ("the school defendants") filed a motion to dismiss Count I and a motion for summary judgment on Count II. For the following reasons, the court denies the school defendants' motion to dismiss Count I, denies plaintiffs' motion for summary judgment on Counts I and II and grants defendant Hartigan's motion for summary judgment on Counts I and II. The granting of defendant Hartigan's motion for summary judgment renders moot the school defendants' motion for summary judgment on Count II.

 Motion to Dismiss Count I

 In Count I of the second amended complaint, plaintiffs seek a declaratory judgment that the Illinois pledge law is unconstitutional because it violates the Establishment Clause and the Free Exercise Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. In Count I plaintiffs also seek a permanent injunction against all defendants to "restrain[] defendants from compelling adherence to" the Illinois pledge law. Re-Amended Complaint, Count I, Prayer for Relief, para. 2. Defendants School District 21, Superintendent Lloyd Descarpentrie and Principal Ferne Garrett maintain that Count I should be dismissed against all the defendants except defendant Hartigan because defendant Hartigan is the only defendant with the authority to enforce the statute. See Motion to Dismiss Count I at 2. See also, Koehler v. Ogilvie, 53 F.R.D. 98, 102 (N.D. Ill. 1971) ("officers of a state who are clothed with some duty in regard to the enforcement of the laws of the state . . . may be enjoined by a federal court" from enforcing an unconstitutional statute), aff'd, 405 U.S. 906, 30 L. Ed. 2d 777, 92 S. Ct. 938 (1971).

 While the defendants are correct that the Attorney General or the State's Attorney are normally the officials charged with enforcing statutes, Mr. Sherman alleges in the complaint that defendants Garrett and Descarpentrie, on behalf of School District 21, enforce the pledge statute in his son's school. For example, Mr. Sherman alleges that Principal Garrett asks his son to participate in the daily pledge, that none of the defendants advise his son of his right not to participate, and that defendants Descarpentrie and Garrett have supervisory responsibilities and policymaking powers in the district and in his son's school. See Re-Amended Complaint, paras. 8, 11 and 23. On a motion to dismiss, the court is obligated to take the allegations in the complaint as true. Therefore, the court finds that based on plaintiffs' allegations that all defendants enforce the statute in issue, all defendants are properly named in Count I. The court denies the motion of School District 21 and defendants Descarpentrie and Garrett to dismiss Count I against them.

 Motions for Summary Judgment

 Federal Rule of Civil Procedure 56(c) provides that a motion for summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Plaintiffs and defendant Hartigan, by filing cross-motions for summary judgment, represent that there are no genuine issues of material fact for trial and that the issue of whether the Illinois pledge statute is constitutional can be decided by the court as a matter of law. As noted above, plaintiffs allege that the statute is unconstitutional because it violates the Establishment Clause and the Free Exercise Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The court will address each of these contentions in turn.

 Establishment Clause

 In its first opinion in this case, the court discussed the viability of plaintiffs' claim that the Illinois pledge statute violates the Establishment Clause of the First Amendment to the Constitution. See Sherman, 714 F. Supp. at 934-36. The court noted that a case from another circuit specifically held that the recital of the pledge of allegiance in a public school does not violate the Establishment Clause. See Smith v. Denny, 280 F. Supp. 651 (E. D. Ca. 1968), appeal dismissed, 417 F.2d 614 (9th Cir. 1969). The court also cited cases holding that neither the singing of the national anthem in public school nor the use of the motto "In God We Trust" on coins violates the Establishment Clause. See Sheldon v. Fannin, 221 F. Supp. 766 (D. Ariz. 1963); Aronow v. United States, 432 F.2d 242 (9th Cir. 1970); Hall v. Bradshaw, 630 F.2d 1018 (4th Cir. 1980) (in dicta the court stated that "references to the Deity in our ceremonies and on our coinage and seals do not violate the Establishment Clause because they merely reflect this fact of our history and no longer have any potentially entangling theological significance"), cert. denied, 450 U.S. 965, 67 L. Ed. 2d 613, 101 S. Ct. 1480 (1981). Finally, the court stated that although the U.S. Supreme Court has not expressly ruled on whether a pledge statute like the one adopted in Illinois violates the Establishment Clause, "the Court has expressed its implicit approval of the Pledge . . . ." Sherman, 714 F. Supp. at 936. Based on this review of the case law, the court stated that "the failure of the plaintiffs' Establishment Clause claim is all but a foregone conclusion." Id. at 935.

 However, the court did not dismiss plaintiffs' Establishment Clause claim pursuant to Fed. R. Civ. P. 12(b)(6) because to do so, the court would have had to examine documents outside the pleadings, and that is forbidden in the context of a motion to dismiss. Now that the court has been presented with motions for summary judgment, the court may look at documents outside the pleadings and perform the necessary analysis to decide whether the Illinois pledge statute violates the Establishment Clause of the First Amendment. In performing this analysis, the court will use the test developed in Lemon v. Kurtzman, 403 U.S. 602, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971), for determining whether a statute comports with the Establishment Clause. The three elements of the test are as follows:

 
First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster 'an excessive government entanglement with religion' [citations omitted].

 Id. at 612-13.

 The court finds that there are no genuine issues of material fact as to whether the Illinois pledge law passes all three prongs of the Lemon test. First, the legislature adopted the law for the secular purpose of instilling patriotic values in elementary school students. Plaintiffs point to the comments of one legislator to ...


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