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.

SCHOOL BOARD FOR SANTA

ROSA COUNTY, FLORIDA; et al.;

Defendants.

/

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

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.

Page 2 of 25

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.

Page 3 of 25

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 District-

wide, 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, District-

wide 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. See

generally Compl. (Doc.1). 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).

Page 9 of 25

But Plaintiffs’ injuries do not end there. The harm inflicted on Plaintiffs

arises not only from the actual implementation at Pace High of the District-

wide 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 District-

wide 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.” Id. at 309-10 (internal

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quotations/citations omitted); see also Lee v. Weisman, 505 U.S. 577, 604-

05 (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 school-

sponsored 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

Page 12 of 25

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).

Page 14 of 25

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, 690-

91 (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 teacher-

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

Page 17 of 25

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

Page 18 of 25

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.”)

Page 19 of 25

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

Page 20 of 25

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.

Page 21 of 25

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. 15-

23; 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. 15-

23. 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

Page 22 of 25

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,

Page 23 of 25

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 civil-

rights 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.

Page 24 of 25

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

Page 25 of 25

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