Case 3:05-cv-02623-FLW-TJB Document 54 Filed 12/11/2006 Page 1 of 26� [FOR PUBLICATION] [35, 36] UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY __________________________________________ : O.T., a minor child, by and through her next : friends, ROBERT T. TURTON and MARYANN : TURTON, : : Civil Action No. 05-2623 (FLW) : Plaintiffs, : : : v. : OPINION : FRENCHTOWN ELEMENTARY SCHOOL : DISTRICT BOARD OF EDUCATION et al., : : : Defendants. : __________________________________________ APPEARANCES: For Plaintiff, O.T., by and through her parents, Robert T. and Mary Ann Turton Demetrios K. Stratis, Esq. Law Offices of Demetrios K. Stratis Wayne, NJ 07470 Jeffrey A. Shafer, Esq., Jeremy D. Tedesco, Esq., Benjamin W. Bull, Esq., Gary S. McCaleb, Esq., and David A Cortman, Esq. Alliance Defense Fund For Defendant, Frenchtown Elementary School District Board of Education Ruseell Weiss, Jr., Esq. Parker McCay, PA Lawrenceville, NJ 08648 1 Case 3:05-cv-02623-FLW-TJB Document 54 Filed 12/11/2006 Page 2 of 26� As amicus curiae on behalf of Plaintiff: Jennifer A. Klear, Esq. and Edward Barocas, Esq. American Civil Liberties Union of New Jersey Newark, NJ 07102 Wan J. Kim, Esq., Eric Treene, Esq., Javier M. Guzman Esq., and Andrew R. Cogar, Esq. U.S. Department of Justice Washington, D.C. 20530 WOLFSON, United States District Judge Presently before the Court are cross-motions for Summary Judgment by (i) Plaintiff, O.T., a student1 at Frenchtown Elementary School, by and through her parents, Robert T. Turton and Maryann Turton, and (ii) by Defendant2 , the Frenchtown Elementary School District Board of Education (“the Board”). In addition, the American Civil Liberties Union (“ACLU”) of New Jersey and the Department of Justice filed Briefs as Amicus Curiae in support of Plaintiff’s Motion for Summary Judgment. Plaintiff contends that the Board violated her constitutional rights when it refused to allow her to perform the song “Awesome God” in an after-hours school- wide talent show. Defendant refutes that contention and argues, further, that allowing Plaintiff to perform “Awesome God” would have amounted to a violation of the Establishment Clause. The Court has considered the moving, opposition and reply papers of the parties, and the briefs of the Amici, and for the reasons stated in the opinion below, Plaintiff’s Motion for Summary Judgment 1 Plaintiff was in second grade at the time of the May 2005 talent show at issue here. 2 The Complaint originally named Catherine Lent (“Lent”), President of Frenchtown Board of Education, and Joyce Brennan (“Brennan”), Superintendent of Frenchtown School District and Principal of Frenchtown Elementary School, as individual Defendants in the instant matter. However, on June 19, 2006, Plaintiff filed an unopposed Motion to Dismiss the Individual Claims against Lent and Brennan which this Court granted on November 21, 2006. Thus, the only remaining defendant is the Frenchtown Elementary School District Board of Education. 2 Case 3:05-cv-02623-FLW-TJB Document 54 Filed 12/11/2006 Page 3 of 26� is granted and Defendant’s Motion for Summary Judgment is denied. I. Background The Frenchtown School District is comprised of a single building housing an elementary school with students ranging from pre-kindergarten through eighth grade. Plaintiff’s Statements of Undisputed Material Facts (“Pl’s Fact St.”) ¶ 1; Defendant’s Statement of Undisputed Material Facts (“Def’s Fact St.”) ¶ 5. Since 2000, Frenchtown Elementary School (“Frenchtown Elementary” or “Frenchtown School”) has hosted at least four after-school talent shows in which students from kindergarten through eighth grade, as well as some adults3 , were invited to showcase their talents and skills. Id. ¶ 2; id. ¶ 27. The talent shows have featured a wide range of acts including poetry readings, the performance of theatrical works and the performance of songs written by students and musicians including Nirvana, Stevie Nicks, Johnny Cash, LeAnn Rimes and Bon Jovi. Pl’s Fact St. ¶ 18. In 2005, the talent show – known as “Frenchtown Idol” – was scheduled to be held on May 20 at 7:00 p.m. in the auditorium of Frenchtown Elementary School. Def’s Fact St. ¶ 6. Frenchtown Idol was organized and run by Erica Bruner (“Bruner”), Frenchtown Elementary’s music teacher. Id. ¶ 7. Students were invited to choose an act they wished to perform and were required to develop, choreograph and practice their performances at home. Pl’s Fact St. ¶¶ 33 & 34. Participation in the talent show was entirely voluntary, and the school did not grade the 3Indeed, the Master of Ceremonies for the 2005 talent show was Reverend Dan Baker (“Baker”), a pastor who lives in the Frenchtown community. Pl’s Fact. St. ¶ 21. During the talent show, Baker performed vignettes, told jokes and entertained the audience between the performances. Id. ¶ 22. Moreover, talent shows in previous years had also featured performances with students and adults. Id. ¶¶ 24-27. 3 Case 3:05-cv-02623-FLW-TJB Document 54 Filed 12/11/2006 Page 4 of 26� participants nor give the students credit for taking part in the performance. Id. ¶¶ 35-37. The Frenchtown School did, however, adopt various guidelines for the show including, in relevant part, the following: “(4) Materials, Costumes, and Acts must be “G-rated” (appropriate for all ages – nothing revealing, distracting, suggestive, depicting profanity, weapons, alcohol, drugs or illegal substances will be allowed.). . . (7) A copy of song lyrics (for any music used in your act) or skit must be reviewed by Miss Bruner. . . (9) No changes! Once you have been approved by the preview committee, you may not make any changes to your act.” Joint Exhibit (“Jt. Ex.”) 6. Moreover, all of the acts were subject to the review of a “preview committee” that was comprised of Bruner and two other teachers. Id., ex. 5. Any acts which Bruner or the preview committee felt were questionable were subject to the final approval of Brennan. Pl’s Fact St. ¶¶ 38, 40 & 41; Def’s Fact St. ¶ 11. In addition, the Frenchtown School was subject to policies enacted by the Board including Policy 6141.2 which provides “that no religious belief or nonbelief shall be promoted in the regular curriculum or in district-sponsored courses, programs or activities and none shall be disparaged.” Jt. Ex. 82. In accordance with school procedure, Plaintiff completed a sign up form proposing to perform the song “Part of Your World” at the talent show. She was scheduled to perform this song for the preview committee on May 9, 2005. However, at the preview, Plaintiff advised Bruner that she had decided to sing “Awesome God” at the talent show instead of her original selection. Bruner, who was familiar with the song, advised Plaintiff that Brennan would have to review the song to ensure that such an overtly religious song was appropriate for a public elementary school. Bruner Dep., 27:17-22; 29:3-6. During her deposition, Bruner admitted that the religious content of Plaintiff’s song was the only reason she asked Brennan to review it. Id. 4 Case 3:05-cv-02623-FLW-TJB Document 54 Filed 12/11/2006 Page 5 of 26� 29:3-6. Indeed, Bruner was asked whether “there any other reasons outside of the religious content of the song that you brought it to Joyce’s attention?” In response, Bruner answered “No.” Id. On May 10, 2005, Brennan reviewed the lyrics of “Awesome God” and determined that it was inappropriate for the Talent Show because of its “overtly religious message and proselytizing nature.” Jt. Ex.3 ¶ 15; Def’s Fact. St. ¶ 2.4 Moreover, Brennan noted that “the song is not merely a statement of religious beliefs. Instead, the song is a pronouncement to all about the wisdom, power and magnificence of God, and of the need to follow the teachings of God. . . .In 4Importantly, Defendant argues that Brennan’s decision to reject “Awesome God” was primarily based on violent imagery contained in the song. Def’s Brief for Summary Judgment (“Def’s SJ Br.”) at 12. However, Defendant’s certifications and depositions do not, in fact, support its position that violent imagery caused Brennan to reject this song. For example, Brennan explains: I thought of the word proselytizing because that’s how it felt to me. . .It was a song that was directing other people to believe what the person who was singing it. . .When I saw our God, again, that was my first indication that it wasn’t just her God. It was our God and maybe, you know, my God isn’t her God. “There is thunder in His footsteps and lightning in His fists” that was another thing that bothered me a bit because, again, I try to envision little ones hearing this and asking their parent. “And the Lord wasn’t joking when He kicked ‘em out of Eden. It wasn’t for no reason that He shed his blood.” All of these words to me were inappropriate. As evidenced by the above testimony, Brennan does not suggest that she was concerned with the violent imagery in the song as opposed to its religious content. Indeed, Brennan’s testimony is primarily focused on the religious nature of the lyrics. Moreover, Brennan’s certification identifies only the “overtly religious message and proselytizing nature” as her reason for not allowing Plaintiff to perform “Awesome God” at the talent show. Jt. Ex. 3 ¶15. Finally, this after-the-fact justification is clearly refuted by the Board’s letter of May 13, 2005, see infra at 6, which explained that the Board would not permit Plaintiff to sing “Awesome God” because of its religious content and prayer-like qualities. Pl’s Compl.¶¶ 49-52; Def’s Ans. ¶¶49-52. No other reason for the Board’s decision was given. Thus, based upon the undisputed record, the Court finds that violent imagery was not a factor in Brennan’s or the Board’s decision and I will not consider it in deciding the matter before me. 5 Case 3:05-cv-02623-FLW-TJB Document 54 Filed 12/11/2006 Page 6 of 26� my view, this song is the musical equivalent of a spoken prayer and constitutes a form of proselytizing.” Jt. Ex. 3 at ¶¶12,13 &15. Thereafter, Bruner told Plaintiff that she would not be permitted to sing “Awesome God” at the talent show and she provided Plaintiff with two books of songs from which she could select a replacement. Def’s Fact St. ¶ 23. Furthermore, Plaintiff’s mother (“Mrs. Turton”) discussed the rejection of the song with Brennan who suggested that Plaintiff select another song – even one with religious content – to perform at the talent show if she so desired. Id. ¶ 25. In addition, Brennan told Mrs. Turton that she would discuss the issue at the Frenchtown Elementary School Board meeting that was to be held later that evening. Accordinly, Mrs. Turton attended the Board meeting that night and provided the Board with information regarding the First Amendment’s protections of private religious speech. Pl’s Compl. ¶ 43; Def’s Ans. ¶ 43. Following the presentation, the Board told Mrs. Turton that it would contact its attorney for advice and that Brennan would inform Mrs. Turton of the Board’s decision by May 13, 2005. Id. ¶ 45; id. ¶ 45. On May 13, 2005, Brennan read Mrs. Turton a three page letter from the Board’s attorney which expressed the basis for the Board’s decision that O.T. would not be permitted to sing “Awesome God” at the talent show because of its religious content and because the song was the equivalent of a prayer. Id. ¶¶ 49-51; id. ¶¶ 49-51. Thereafter, the Turtons received a letter indicating that the Board’s attorney had affirmed Brennan and the Board’s decision to refuse to allow Plaintiff to sing “Awesome God” at the talent show. Id. ¶ 57; id. ¶ 57. Subsequently, on May 16, 2005, Plaintiff’s counsel sent a letter to Brennan and Lent notifying them of a potential violation of Plaintiff’s constitutional rights. Id. ¶ 59; id. ¶ 59. Brennan responded with a letter to Plaintiff’s counsel stating that “[b]ased on advice from our attorney. . . 6 Case 3:05-cv-02623-FLW-TJB Document 54 Filed 12/11/2006 Page 7 of 26� we cannot comply with your demand to allow [Plaintiff] to sing “Awesome God” at our school’s talent show on Friday, May 20, 2005.” Id. ¶ 60; id. ¶ 60. On May 20, 2005, Plaintiff filed the instant Complaint alleging a violation of her First Amendment constitutional rights made applicable to the Defendant pursuant to 42 U.S.C. §19835 . Following discovery, Plaintiff and Defendant filed simultaneous motions for Summary Judgment on May 26, 2006. Plaintiff contends that Frenchtown’s exclusion of “Awesome God” amounted to viewpoint discrimination and violated her First Amendment rights. In addition, Plaintiff alleges that Frenchtown’s action violated the Free Exercise Clause, the Equal Protection Clause and the Establishment Clause. Defendant, on the other hand, argues that Frenchtown’s action did not violate Plaintiff’s First Amendment rights because the decision to exclude “Awesome God” was related to the content of the song and not its viewpoint. Moreover, Defendant alleges that if Plaintiff had been allowed to perform “Awesome God,” the performance would have amounted to a violation of the Establishment Clause. II. Legal Standard Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A genuine issue of material fact is one that will 5 42 U.S.C. § 1983 provides a cause of action for a party seeking redress of a violation of federal constitutional rights by a person acting under color of state law. Pursuant to section 1983, “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory. . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” 7 Case 3:05-cv-02623-FLW-TJB Document 54 Filed 12/11/2006 Page 8 of 26� permit a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To show that a genuine issue of material fact exists, the nonmoving party may not rest upon mere allegations, but must present actual evidence in support thereof. Id. at 249 (citing First Nat'l Bank of Arizona v. Cities Svc. Co., 391 U.S. 253, 290 (1968)). In evaluating the evidence, the Court must view evidence and draw inferences “in the light most favorable to the party opposing the motion.” Waldorf v. Shuta, 896 F.2d 723, 728 (3d Cir. 1990) (quoting Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976)). . III. Discussion 1. Free Speech The First Amendment to the Constitution provides that “Congress shall make no law. . . abridging the freedom of speech.” U.S. Const. amend. 1. The First Amendment’s protection of speech encompasses religious, political and other types of speech. Widmar v. Vincent, 454 U.S. 263, 269 (1981). Moreover, the Supreme Court has held that students in public schools do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Sch. Dist., 393 U.S. 503, 506 (1969). Thus, it is well-established that free speech rights are implicated in public schools. Perry Educ. Association v. Perry Local Educators’ Association, 460 U.S. 37, 44-46 (1983). 2. Public Forum Analysis Although, as noted above, students retain some First Amendment rights in public schools, the extent of a particular person or entity’s right to free speech depends upon the nature of the 8 Case 3:05-cv-02623-FLW-TJB Document 54 Filed 12/11/2006 Page 9 of 26� government forum at issue. Perry Educ. Ass’n, 460 U.S. at 44-46; Child Evangelism Fellowship of New Jersey, Inc. v. Stafford Tp. School, 233 F.Supp.2d 647, 656 (D.N.J. 2002). Thus, the initial question before this Court is the type of forum created by the Frenchtown Elementary School talent show known as Frenchtown Idol. For First Amendment purposes, there are three types of forums: (1) traditional public forums, (2) nonpublic forums, and (3) designated public forums. Perry Educ. Ass’n, 460 U.S. at 45-46. On one end of the spectrum are traditional public forums such as parks and streets that “by long tradition. . . have been devoted to assembly and debate.” Id. at 45. Absent a compelling interest, speech in a public forum may not be regulated based upon content. Eichenlaub v. Township of Indiana, 385 F.3d 274, 280 (3d Cir. 2004). At the other end of the spectrum are closed or non-public forums, which are neither traditionally open to the public nor designated by the government as such. Perry Educ. Ass’n, 460 U.S. at 46. In non-public forums, the government may issue content-based regulations on expressive activity provided they are “reasonable in light of the purpose served by the forum and are viewpoint neutral.” Id. Finally, courts have recognized the existence of a third forum – the “limited” public forum – that is created when the government “intentionally open[s] a nontraditional public forum for public discourse.” Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802 (1985). A limited public forum is one “that the government opens to particular types of communicative activity, on the basis of subject matter or speaker identity.” Child Evangelism, 233 F.Supp. 2d 647 (D.N.J. 2002), aff’d, 386 F.3d 514(3d Cir. 2004); see also Good News Club v. Milford Cent. Sch., 533 U.S. 98, 107 (2001). The government’s ability to restrict a speaker’s access in a limited public forum is subject to the same scrutiny applicable in a non-public forum. Id. (citing 9 Case 3:05-cv-02623-FLW-TJB Document 54 Filed 12/11/2006 Page 10 of 26� Cornelius, 473 U.S. at 806). Thus, the government “may not exclude speech where its distinction is not reasonable in light of the purpose served by the forum. . .nor may it discriminate against speech on the basis of its viewpoint.” Child Evangelism, 386 F.3d at 516 (citations omitted). Elementary schools are not traditional public forums. Child Evangelism, 233 F.Supp. 2d 647; Perry Educ. Ass’n, 460 U.S. at 46-47. Therefore, the more difficult question for this Court is whether Frenchtown Idol remained a non-public forum or if it became a limited public forum by opening its doors for an after-school talent show. Plaintiff argues that Frenchtown Idol became, at least, a limited public forum when it opened a channel of communication for creative performances by students 6 . Defendant, on the other hand, argues that Frenchtown Idol remained a closed forum and that this Court must analyze it as such. Initially, in support of its argument, Defendant contends that the Supreme Court’s analysis in Hazelwood Sch. District v. Kuhlmeier, 484 U.S. 260 (1988), controls. In Hazelwood, the Court held that an official school newspaper produced by students in a journalism course could not properly be characterized as a forum for public expression. Id. at 267-69. The Hazelwood Court explained that “a school must be able to set high standards for the student speech that is disseminated under its auspices” and that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Id. at 271-72. With this in mind, Defendant alleges that Frenchtown Idol, like the newspaper in Hazelwood, can not be characterized a public forum. Instead, 6The Court notes that while the record establishes that past Frenchtown talent shows have included performances by some non-student adults, the only adult who participated in Frenchtown Idol in 2005 was Dan Baker who acted as the Master of Ceremonies. 10