The opinion of the court was delivered by: Judge Robert W. Gettleman
MEMORANDUM OPINION AND ORDER
Plaintiff Dawn S. Sherman, a minor, through her father and next friend, Robert I. Sherman, has brought a first amended complaint against defendants Township High School District 214 ("District 214") and Dr. Christopher Koch, in his capacity as State Superintendent of Education ("Dr. Koch"). Plaintiff alleges that the Illinois "Silent Reflection and Student Prayer Act," 105 ILCS 20/1 (the "Act"), is unconstitutionally vague and violates her rights under the First Amendment's Establishment Clause.
The Act currently provides as follows:
In each public school classroom the teacher in charge shall observe a brief period of silence with the participation of all the pupils therein assembled at the opening of every school day. This period shall not be conducted as a religious exercise but shall be an opportunity for silent prayer or for silent reflection on the anticipated activities of the day. (Emphasis added.)
The present controversy arose from the amendment of the statute in October 2007 to change the Act to make the period of silence mandatory rather than voluntary by substituting the word "shall" in the first sentence for the word "may," as the statute had previously been worded. By Memorandum Opinion and Order dated November 15, 2007, this court issued a preliminary injunction against the named defendants. See 2007 WL 3446213. Thereafter, two parties were granted leave to appear as amici curiae: the ACLU of Illinois appeared for plaintiff, and the Alliance Defense Fund ("ADF") appeared on behalf of defendants. Two motions are currently pending before the court: the ADF's motion to dismiss the amended complaint for lack of Article III standing (which was joined by the defendants); and plaintiff's motion to certify bilateral classes for both plaintiff and defendants. For the reasons discussed below, the court denies the motion to dismiss and grants the motion for class certification.
ADF's motion is based on several erroneous propositions. First, the motion attacks Robert Sherman's standing, which ADF assumes was based on his status as a taxpayer. Mr. Sherman, however, is not and does not purport to be a plaintiff in this case, other than representing his minor daughter. It is her standing, not his, that is at issue.
ADF's attack on Dawn Sherman's standing is equally erroneous. ADF's argument is directed mainly to the merits of the case, rather than Ms. Sherman's standing. Such arguments are premature. ADF's other argument regarding Ms. Sherman, that her complaint does not "contain sufficient allegations of a concrete and particularized injury to meet Article III's requirements," ignores not only the complaint, but the statute and controlling case law as well. The complaint recites the statutory language noted above and alleges that both plaintiff, a high school freshman at District 214, and her father are atheists who are subject to the statute. The complaint further alleges that the Act violates the Establishment Clause, is unconstitutionally vague and overbroad, and subjects her and other students to a mandatory period of prayer. Although the complaint may lack other specifics regarding the nature of plaintiff's damages, it is sufficient notice pleading under Fed. R. Civ. P. 8, and it clearly establishes that she has standing to complain about the constitutionality of the Act.
The Act requires each classroom teacher in Illinois to "observe a brief period of silence with the participation of all the pupils therein assembled at the opening of every school day." Under the second sentence of the Act, students are required to decide to use the "moment of silence" as an "opportunity for silent prayer or for silent reflection on the anticipated activities of the day." It is the vagueness of these terms and the requirement that plaintiff, along with all other public school pupils in Illinois, must consider using the mandatory moment of silence for prayer that forms the basis of plaintiff's complaint. Put another way, the Act is directed specifically at plaintiff and her fellow pupils.
Beginning with School Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963), public school students like plaintiff have been accorded standing to challenge statutes like the Act that allegedly violate the Establishment Clause. See Lee v. Weisman, 505 U.S. 577 (1992); Sherman v. Comm. Consol. School Dist. 21 of Wheeling Twp., 980 F.2d 437 (7th Cir. 1992). The case on which ADF principally relies, Valley Forge College v. Americans United, 454 U.S. 464 (1982), is easily distinguished from this line of cases because the plaintiffs in that case did not allege that they were required to take part in mandatory prayer or other objectionable activity. In contrast, in the instant case Ms. Sherman's alleged injury is direct and personal. She clearly has standing as a plaintiff in this case. ADF's motion to dismiss is denied.
Motion for Bilateral Class Certification
Plaintiff asks the court to certify a plaintiff class comprising "all students in public schools in the State of Illinois, all of whom are subject to the daily 'period of silence' mandated by 105ILCS 20/1," represented by Dawn S. Sherman, and a defendant class comprising "all public school districts in the State of Illinois, all of which are required to implement the daily 'period of silence' mandated by 105 ILCS 20/1,"*fn1 represented by District 214.
Defendants and ADF oppose plaintiff's motion based largely--but not entirely--on objections to the proposed defendant class. Defendants and ADF argue that the defendant class fails to meet the prerequisites for class action established by Rule 23(a), and that it further fails to meet the requirements of Rule 23(b), which sets forth the circumstances in which class actions may properly be maintained. As to the Rule 23(a) requirements, defendant Koch (and apparently District 214 and ADF) concede that the defendant class meets the requirements of "numerosity" and "commonality," but they contend that the proposed defendant class does not meet the requirements of "typicality" and "adequacy of representation." Defendants and ADF also reject the ACLU's claim that the defendant class is appropriate for class certification under either Rule 23(b)(1) or 23(b)(2).*fn2
Defendants' objections to the proposed plaintiff class are narrower. District 214 does not appear to object to the plaintiff class, while Superintendent Koch objects only to the statewide scope of the class. ADF, for its part, asserts that the proposed plaintiff class does not meet the ...