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Marsh v. School Board of Marion Community Unit School Dist. Number 2

August 23, 2006

AMANDA MARSH, A MINOR CHILD, BY AND THROUGH HER FATHER AND NEXT FRIEND, ROBERT J. MARSH; AND ROBERT J. MARSH, INDIVIDUALLY AND AS NEXT FRIEND OF AMANDA MARSH, A MINOR CHILD, PLAINTIFFS,
v.
SCHOOL BOARD OF MARION COMMUNITY UNIT SCHOOL DISTRICT NUMBER 2, A BODY POLITIC AND CORPORATE, DEFENDANT.



The opinion of the court was delivered by: Foreman, District Judge

MEMORANDUM AND ORDER

Before the Court is defendant's motion for summary judgment (Doc. 82). Plaintiffs have filed a response (Doc. 91) and defendant has filed a reply (Doc. 92).

I. Background

In the beginning, plaintiff Amanda Marsh (Mandy) was a fourth-grade student at Washington Elementary School. By the time of the parties' instant pleadings, Mandy had become a sixth-grade student at Marion Junior High School. Both Washington Elementary Schools and Marion Junior High are public schools administered and operated by defendant. Mandy's father is plaintiff Dr. Robert J. Marsh.

Plaintiff Dr. Marsh and his family are former members of a Southern Baptist Church in Marion, Illinois, called the Cornerstone Community Church. (Doc. 90, Exh. E, p.46). In the words of Dr. Marsh's wife, (Dr. Jan Bowman-Marsh), the reason that the Marshes are no longer members of the Cornerstone Community Church is that they were "kicked out of there." (Doc. 82, Exh. D, p.40). Defendant's Superintendent, Dr. Wade Hudgens, happens to be a Deacon at the Second Baptist Church in Marion, Illinois. (Doc. 90, Exh. H, pp.159-160).

The genesis for this action concerns defendant-sponsored school assemblies that were held on November 17th and 18th, 2003. According to plaintiffs, Superintendent/Deacon Hudgens organized these assemblies so that the schools could feature an evangelical speaker named Dr. Ronnie Hill, pastor of Ronnie Hill Ministries, Fort Worth, Texas. In connection with the assemblies, student supporters of Dr. Hill were planning to distribute tickets to evening pizza parties that would be held at the Cornerstone Community Church. Prior to being fed, however, the students first had to listen to a sermon by Dr. Hill.

On Friday, November 14, 2003, plaintiffs filed a complaint, a motion for temporary restraining order, and an emergency motion for an immediate hearing seeking to enjoin defendant from allowing Dr. Hill or any other religious speaker to appear at the school assemblies. (Docs. 2,3,4). Later that day, and over the weekend, the parties worked together to reach an agreement as to how the school assemblies would be conducted so that all parties' interests would be met. On Monday morning, November 17, 2003, this Court reviewed, approved, and entered an Order designed to fulfill that purpose. (Doc. 7).

Under the Order, Dr. Hill was allowed to speak at the school assemblies, however, his presentation was limited to secular topics, such as encouraging teens to refrain from using drugs and alcohol. (Doc. 7). Furthermore, he was not allowed to advertise the pizza party or his evening appearances at the Cornerstone Community Church. Finally, the Order directed defendant to comply with its policy regarding the distribution of non-school sponsored materials. Specifically, defendant was ordered and directed to notify all staff and students at the beginning of the school days on November 17th and 18th, 2003, that there shall be no distribution on school premises for one hour prior and one hour after the school day of any non-school sponsored written materials, irrespective of content. The Order also stated that should any building administrator observe a violation of this directive, such materials were to be confiscated.

Despite efforts to resolve the controversy peaceably and without further ado, the situation appears to have risen into somewhat of a confused frenzy. Apparently, parents and students attempted to circumvent the Court's Order and distribute tickets to the pizza party. For example, Dr. Marsh testified that in the early morning on November 17, 2003, he observed parent-supporters of Dr. Hill walk onto school property holding pizza party tickets, presumably waiting to distribute them to students. (Doc. 90, Exh. E, pp.154-155). He also observed a parent walk onto Washington Elementary School property, and give tickets to a school bus driver. (Doc. 90, Exh. E, p.154). Mandy Marsh testified that one of her teachers told students that they could not pass out tickets during class time but that they could do so during the day, "in hallways on free time." (Doc. 90, Exh. G, pp.13-14). Ultimately, students scattered tickets onto desks and benches, and pinned tickets to their clothing and allowed other students to remove them. (Doc. 90, Exh. K, p.1). One of Mandy's friends handed her a ticket as she was walking through the hallway between class periods. (Doc. 82, Exh. C, pp.13-14).

Four months later, on March 24, 2004, Dr. Marsh went to defendant's garbage dumpster and gathered five bags of trash. (Doc. 90, Exh. P, ¶ 1). Dr. Marsh's affidavit states that he gathered defendant's trash on a regular basis as part of a "regular investigative process" that was connected to his legal disputes with the Marion School Board and Superintendent/Deacon Hudgens. (Doc. 90, Exh. P, ¶ 1). After seizing the five bags of trash, Dr. Marsh secured them in his vehicle and executed his search at another location. (Doc. 90, Exh. P, ¶ 1).

After separating the wheat from the chaff, Dr. Marsh found one small bag of trash that contained various items such as phone messages and tobacco spit indicating that it came from Dr. Hudgens' office. (Doc. 90, Exh. P, p.2). After examining the contents of this bag, Dr. Marsh found a letter from Dr. Hudgens' legal counsel dated December 17, 2003. (Doc. 90, Exh. P, p.2). This letter is attached to Dr. Marsh's deposition as defendant's Exhibit 14. (Doc. 90, Exh. E, Def. Exh. 14).

Over a year and a-half later, on December 2, 2005, plaintiffs filed a second amended complaint. (Doc. 74). Plaintiffs' second amended complaint alleges that defendant violated their rights to free exercise of religion and to be free from unconstitutional establishment of religion under the First Amendment to the United States Constitution. Specifically, plaintiffs' second amended complaint alleges that over the last several years, defendant has intentionally sought to use the public schools to indoctrinate students with specific religious teachings of the Baptist faith by:

1) requiring teachers, or approving and encouraging the policy of requiring teachers, to disseminate religious materials in class and instruct students to either take them home or read them, or both;

2) favoring applicants for employment positions in the District on the basis of their religious faith or affiliation, and in particular, favoring applicants of the Baptist faith;

3) Encouraging, or acting in complicity, with teachers who impart religious teachings to public school students during classtime -- specifically, teachers at Marion Junior High School and Marion High School;

4) Encouraging, or acting in complicity, with teachers who knowingly plan School District-sponsored programs or events that subject public school students to religious teachings -- specifically including Marion Junior High School music teacher Armetta Belz, who organized a Summer theater program that included mandatory performances during a church service; and

5) Sponsoring a Teaching institute event, in February 2005, for District teachers in which a "Christian counselor," Kent Maddox, made a religious-oriented presentation that included quoting scripture.

(Doc. 74, p.3).

With regard to the Dr. Ronnie Hill assemblies, plaintiffs' second amended complaint alleges that defendant violated the Court's November 17, 2005 Order because:

1) Superintendent Hudgens failed to stop a parent from entering school property for the purpose of disseminating tickets to the church pizza party;

2) school officials failed to make the required public address announcements at the Marion Junior High and Marion High Schools;

3) school officials failed to stop the dissemination of pizza party tickets when students had pinned tickets to their clothing and allowed other students to remove them; and

4) school officials failed to stop the dissemination of pizza party tickets by a cafeteria worker who had pinned a ticket to her clothing.

(Doc. 74, p.7).

In sum, plaintiffs' second amended complaint alleges that defendant violated the First Amendment in five areas by:

1) approving the policy of requiring teachers to disseminate religious materials in class, with instructions to students;

2) favoring applicants for employment positions in the District on the basis of their religious faith or affiliation;

3) facilitating, orchestrating, committing resources to, and endorsing the assemblies featuring Dr. Hill; and failing to observe and enforce the terms of the Court's Order;

4) approving or encouraging the practice of public-school teachers imparting religious messages or teachings in class; and

5) approving or encouraging the practice of public-school students being coerced or pressured into hearing religious sermons at a church when participating in the public-school sponsored programs.

(Doc. 74, pp.7-8).

Plaintiffs request an injunction permanently enjoining defendant from engaging in these activities, as well as a declaration that defendant's actions violate the Establishment and Free Exercise Clauses of the First Amendment and the Due Process Clause of the Fourteenth Amendment. Finally, plaintiffs seek compensatory damages, other relief, attorneys fees and costs. Defendant's motion for summary judgment is discussed below.

II. Summary Judgment Standard

Summary judgment is granted when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. To determine whether there are any genuine issues of material fact, the Court examines the pleadings and the proof as presented in depositions, answers to interrogatories, admissions, and affidavits made a part of the record. First Bank & Trust v. Firstar Information Services, Corp., 276 F.3d 317 (7th Cir.2001). The court also draws all reasonable inferences from undisputed facts in favor of the non-moving parties and views the disputed evidence in the light most favorable to the non-moving parties. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

The non-moving parties, however, may not rest upon mere allegations in the pleadings or speculative affidavits. They must go beyond the pleadings and support their contentions with admissible evidence. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Only competing evidence regarding facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 249. If the non-moving parties would be unable to prove an element essential to their case, one on which they would bear the ...


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