the school district incorporates by reference its previous

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

GREENVILLE DIVISION American Humanist Association, John Doe and Jane Doe, as parents and next friends of their minor child, Jill Doe, Plaintiffs, vs. Greenville County School District, Defendant.

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C.A. No. 6:13-cv-02471-BHH

POST-REMAND MEMORANDUM OF

LAW REGARDING PLAINTIFF’S MOTION FOR PERMANENT

INJUNCTION

I. INTRODUCTION

Defendant, Greenville County School District (“School District”) hereby submits this

Memorandum pursuant to the Court’s Order of December 12, 2017 regarding Plaintiff American

Humanist Association’s (“AHA”) “Prospective Prayer Claim,” following the unsuccessful

mediation of this case on January 30, 2018 and agreed-upon discovery by the parties pursuant to

orders dated February 2, 2018, and April 30, 2018. For the reasons set forth in this

Memorandum1, the School District’s position regarding student messages is constitutional not

only in theory, but in practice, and Plaintiff has not carried its burden of establishing the need for

permanent injunctive relief.

A. Supplemental Discovery

Following the unsuccessful mediation, the parties agreed to limit the parameters of

1 The School District incorporates by reference its previous arguments regarding the constitutionality of its position on student religious speech and submits that the Court’s May 18, 2015 Order properly denied Plaintiff’s motion for injunctive relief both “as written” and as implemented. Defendant is unaware of any subsequently decided authority that would suggest reconsideration of the legal underpinnings of Court’s May 18, 2015 Order. This Memorandum is submitted to address the Court’s Order of December 12, 2017 regarding implementation of the School District’s position on student religious speech.

6:13-cv-02471-BHH Date Filed 08/10/18 Entry Number 136 of 8

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supplemental discovery to the School District’s 2017 graduations and end-of-year programs for

all of the School District’s elementary, middle, and high schools. Discovery revealed that out of

94 end-of-year programs, 4 high school student graduation speakers included a prayer in their

remarks.2 (Def. Exh. 1 – Defendant’s Responses to Plaintiff AHA’s Supplemental Interrogatories

and Requests for Production Regarding 2017 Graduations). No middle or elementary school end

of year programs included a prayer of any kind. (Id.) The student religious messages were as

follows:

Greenville High School

Student offered a “Reflection” non-sectarian prayer that was reviewed by faculty

for time, grammar, and syntax but not edited for content. (Student Remarks, Def.

Exh. 2 (Bates No. 694); Warren Aff. ¶¶ 6-11.)

J.L. Mann High School

Student offered non-sectarian prayer reviewed by faculty for time, grammar, and

syntax but not edited for content. (Student Remarks, Def. Exh. 2 (Bates Nos. 618-

622.))

Greer High School

The senior class president gave a welcome message that included a brief prayer

that was not previously reviewed by a teacher or administrator or edited for

content. A copy of written materials was not retained. (Ludley Aff. ¶¶ 2-6.)

Berea High School

Student offered one-sentence closing prayer that was reviewed by faculty for

time, grammar, and syntax but not content. (Student Remarks, Def. Exh. 2 (Bates

2 A few other students made religious references in their remarks that would not constitute a “prayer” either in the Merriam-Webster sense or as defined by AHA. See Def. Exh. 1, Def. Exh. 2 (Bates Nos. 393-394; 831; 699; and 778-783).


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No. 402).

The School District also provided affidavits of administrators to address AHA’s

argument that inclusion in four written programs of a “please stand” asterisk for student remarks

was designed to encourage or sponsor student prayer. (ECF 115 p. 13-14.) Two of the high

schools included the asterisk because the brief student remarks were between the Alma Mater

and Recessional, for which the audience traditionally stands. (Imperiati Aff. ¶¶ 5-8; Watson Aff.

¶¶ 6-9). Berea High School included asterisks for the “Welcome” which was between the

Processional and the National Anthem, for which the audience is requested to stand, as well as

the “Closing Remarks,” which was between the Alma Mater and Recessional. (Noel Aff. ¶¶ 6-

10.) At Wade Hampton High School, the asterisk was a printing oversight. (Williams Aff. ¶¶ 6-

9.) The only prayer in 2017 that accompanied a “please stand” asterisk was the Berea High

School “Closing Remarks” sandwiched between the Alma Mater and Recessional. (Def. Exh. 3,

High School Graduation Programs.)3

B. Instruction and Training to School Administrators

The School District has provided training to its administrators and teachers regarding

permissible and impermissible religious speech at school events since before this lawsuit was

filed. See, e.g., Greenville County Schools, Public Schools and Religious Expression Guide for

GCS Employees, Prepared by General Counsel and Communications 8/29/2013 (Def. Exh. 4,

Communications to Principals and Employees.)

On May 20, 2015, Doug Webb, General Counsel for the School District, forwarded

guidance to school administrators regarding speakers at school sponsored activities intended both

for speakers and administrators. (Id.) This guidance requires, in relevant part:

Neutrality toward religion

3 Woodmont High School’s salutation speaker thanked the Lord (as well as teachers and parents) in her welcoming remarks.


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Selection of speakers based on neutral criteria

No censorship based on content

Programs should not direct the audience to stand for any student message

On May 13, 2016, Mr. Webb reiterated the 2015 Guidance to all principals (Def. Exh. 4.)

The guidance was further reiterated through inclusion in student handbooks (Id.) and assistant

superintendent Mason Gary’s communication to principals in February 2018. (Def. Exh. 4.)

C. Response to AHA’s October 2016 Submissions After Remand

AHA’s submissions ostensibly offered to support its organizational standing argument

following remand from the Fourth Circuit painted a highly inaccurate picture of student religious

speech and the School District’s position regarding that speech following the Court’s Order of

May 2015. AHA’s most egregious stretch was an attempt to attribute to the School District the

inclusion of an “invocation” in the graduation program at Brashier Middle College Charter High

School, a charter high school not part of the School District. The School District was not

responsible for Brashier’s daily operation or for liability pursuant to South Carolina law under

the South Carolina Charter School Act. 4 (See ECF 115, p. 14; ECF 115-11).

Put in proper context and with full consideration of evidence from both parties, however,

AHA’s October 2016 submissions instead reveal the School District’s compliance with its stated

position and the Court’s 2015 order. First, because the School District has taken the position that

it will not issue a prior restraint upon religious speech of students selected to speak based upon

neutral criteria, it was to be expected that students at Greer High School, Greenville High

School, and Blue Ridge High School might choose to permissibly speak from a religious

perspective in their “Opening Remarks” or “Closing Remarks” in 2015 and 2016. In addition to

the four student speakers who included prayer in their remarks in 2017, other high school

4 Under the South Carolina Charter School Act, S.C. Code Ann. § 59-40-10, et seq., and specifically, S.C. Code Ann. § 59-40-50, charter schools are separate legal entities responsible for their own compliance with civil rights laws.


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graduation speakers personally chose to quote or included references to the following influences:

Steven Spielberg, Sam from Lord of the Rings, Buddha, Oprah Winfrey, Charles Dickens,

Malcom X, Albert Schweitzer, Nelson Mandela, Carl Jung, Winston Churchill, Neil Armstrong,

Diana Nyad, Tavis Smiley, Salomon Andree, Dr. Seuss, Walt Disney, Theodore Roosevelt,

Ronald Reagan, Hamilton (the musical), and Lilo and Stich. (Def. Exh. 2 – Student Speeches.)

Second, principals had been specifically advised to avoid any direction to the audience to

stand for student messages. (Def. Exh. 4.) As explained in the affidavits of the principals for

Berea, Blue Ridge, Woodmont, and Wade Hampton High Schools, the continuation of asterisks

in four schools directing the audience to stand for student speakers was a matter of logistics or

oversight rather than a covert attempt to encourage or sponsor student religious speech.5 AHA

can offer no evidence to the contrary. See Lynch v. Donnelly, 465 U.S. 668, 680 (1984)(Courts

should not infer impermissible religious motive in the absence of supporting factual allegations);

Mueller v. Allen, 463 U.S. 388, 394-95 1983)(Courts should not attribute unconstitutional

religious motivations to the government if there is a plausible secular purpose). Further, AHA

cannot identify any “Inspirational Reading” that has involved religious speech. In 2017, for

example, a Travelers Rest High School Student read a completely secular poem “The Bridge

Builder” by Will Allen Dromgoole. (Def. Exh. 2, Bates Nos. 759-760.)

Finally, AHA’s suggestion that the traditional graduation musical selection at Wade

Hampton High School of “The Lord Bless and Keep You” and other musical selections at other

schools create an unconstitutional endorsement of religion has been uniformly rejected by federal

courts. See, e.g., Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402, 407-408 (5th Cir. 1995);

Bauchman v. West High School, 132 F.3d 542, 553-555 (10th Cir. 1997), see also Freedom from

Religion Foundation, Inc. v. Concord Community Schools, 885 F.3d 1038, 1047-48 (7th Cir.

5 Only one “please stand” asterisk-denoted welcome or closing remarks actually coincided with a student who said a prayer in 2017.


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2018) (Religious songs in Christmas program not a violation of Establishment Clause, no

reasonable observer would perceive school endorsing of a religious message through traditional

choral music). Despite AHA’s continued attempts to broaden the scope of this case to include

anything remotely religious on any campus in the School District, Plaintiffs’ original 2013

injunction motion does not request the Court to enjoin anything other than prayers at school-

sponsored events.

II. ARGUMENT

The School District’s Position Regarding Student Religious Speech Is Constitutional As Applied, and the School District is Not Constitutionally Required To Prevent Student Speakers Selected Upon Neutral Criteria from Engaging in Religious Speech.

If the School District is trying to ensure student prayer is a regular fixture in graduation

or end of year programs, as AHA claims, it has failed miserably. Because the School District’s

position of neutrality and non-interference allows graduation speakers to say a prayer or speak

from a religious perspective if they choose, it is reasonable to expect that some graduation

speakers may decide to include a prayer or thank God in their remarks. The mere fact that a

student may choose to say a prayer is not evidence that he or she has been encouraged to say a

prayer, or that the School District has endorsed that student prayer, any more that it has endorsed

the words, theories, or politics of Malcom X, Dr. Seuss, Ronald Reagan, Steven Spielberg, Carl

Jung, or any other celebrity or historical figure referenced in a graduation speech. The

graduation speeches produced at Defendants’ Exhibit 2 paint the most accurate picture of the

amounts and types of religious speech versus secular topics and themes in graduations.

In Adler v. Duval County School Bd., 206 F.3d 1330 (11th Cir. 2001), which the Court

cited with approval in its May 2015 Order, the Eleventh Circuit noted and rejected Plaintiffs’

unsupported speculation that religious speech might sufficiently dominate the forum to render a

comparable graduation practice unconstitutional:

Appellants also assume that allowing the senior class to vote whether to have a graduation “message” unrestricted


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in content and to select an autonomous student speaker will have the effect of coercing any chosen speaker into placating the majority's religious sensibilities by offering a sectarian message of which the majority approves. This argument is highly remote and speculative. Even the scant record before us suggests an opposite conclusion. While ten of the graduation messages delivered pursuant to the policy involved some sort of religious content, the other seven Duval County graduations either had no student message or a wholly secular message.

Adler, 206 F.3d at 1083. The School District’s ratio of religious speech to secular speech

in end-of-year programs is miniscule compared to that described in Adler, further invalidating

Plaintiffs’ argument that the School District’s neutral position is constitutionally infirm as

applied. In 2017, no elementary or middle school student chosen to speak at an end of year

program gave a religious message. Out of approximately 68 high school student body presidents,

vice presidents, student council members, valedictorians, salutatorians, and other students

selected to speak upon neutral criteria in 2017, four (4) recited a prayer. (Def. Exh. 3 - 2017

graduation programs). There is simply no “cultural residue” of any sort that is tainting the School

District’s neutral stance toward student religious messages or producing an effect that would

suggest encouragement or endorsement of those messages.

Even if AHA could show the occurrence of an isolated outlier that had failed to honor the

instructions of the School District’s administration regarding student messages in all respects,

AHA has simply not proved any “custom or policy” of “wink and nod maneuvering” inconsistent

with the School District’s position that would entitle AHA to permanent injunctive relief against

the School District in this case. See Monell v. Department of Social Servs., 436 U.S. 658, 690–

91 (1978); Los Angeles Cty., Cal. v. Humphries, 562 U.S. 29, 30 (2010)(Monell’s custom or

policy requirement applies regardless of the relief sought by plaintiff for constitutional

violation); Wellington v. Daniels, 717 F.2d 932, 936 (4th Cir. 1983))(isolated incidents do not

establish a custom or policy sufficient to impose section 1983 liability on a public entity);


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Russell v. Town of Chesapeake, 817 F. Supp. 38, 42 (S.D.W. Va. 1993); Moss v. Spartanburg

Cty. Sch. Dist. No. 7, 775 F. Supp. 2d 858, 871 (D.S.C. 2011) (applying Monell custom or policy

requirement to Establishment Clause claim), aff'd sub nom. Moss v. Spartanburg Cty. Sch. Dist.

Seven, 683 F.3d 599 (4th Cir. 2012). Because AHA cannot establish a custom or policy

inconsistent with the School District’s stated position previously upheld by the Court, Monell

requires denial of AHA’s motion for permanent injunctive relief because it fails on the merits.

III. CONCLUSION

For the reasons stated in this Memorandum, the Court’s Order of May 18, 2015, and

Defendant’s prior filings, Plaintiff has not carried its heavy burden of establishing under eBay

Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006), that it is entitled to the permanent

injunctive relief it seeks. Accordingly, final judgment should be granted in favor of the School

District.

HALLIGAN MAHONEY WILLIAMS SMITH FAWLEY & REAGLE, PA

By: s/ Thomas K. Barlow Thomas K. Barlow, Fed. I.D. No. 7483 [email protected] John M. Reagle, Fed. I.D. No. 7723 [email protected] P.O. Box 11367 Columbia, South Carolina 29211 (803) 254-4035

R. Douglas Webb, Fed. I.D. No. 11491 General Counsel Greenville County School District P.O. Box 2848 Greenville, SC 29602

Attorneys for Defendant

August 10, 2018 Columbia, South Carolina


6:13-cv-02471-BHH Date Filed 08/10/18 Entry Number 136-1 Page 1 of 43

the school district incorporates by reference its previous

Documents