Hilsenrath v. SCHOOL DISTRICT OF THE CHATHAMS et al

Filing 22

OPINION. Signed by Judge Kevin McNulty on 6/13/18. (cm, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
LIBBY HILSENRATH,
on behalf of her minor child,

Civ. No. 18-966 (1(M)

Plaintiff,

OPINION

V.

SCHOOL DISTRICT OF THE
CHATHAMS;
BOARD OF EDUCATION OF SCHOOL
DISTRICT OF THE CHATHAMS;
MICHAEL LASUSA,
in his official capacity as the
Superintendent of the School
District of the Chathams;
KAREN CHASE,
in her official capacity as the
Assistant Superintendent of
Curriculum and Instruction at
the School District of the
Chathams;
JILL GIHORSKI,
in her official capacity as the
Principal of Chatham Middle
School;
STEVEN MAHER,
in his official capacity as the
Supervisor of Social Studies for
the School District of the
Chathams;
MEGAN KEOWN,
in her official capacity as a
Social Studies teacher for
Chatham Middle School;
CHRISTINE JAKOWSKI,
in her official capacity as a
Social Studies teacher for
Chatham Middle School;
Defendants.

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KEVIN MCNULTY, U.S.D.J.:

Before the Court is the defendants’ motion to dismiss the complaint for
failure to state a claim. See Fed. R. Civ. P. 12(b)(6). For the reasons stated
herein, the motion will be denied.
Introduction

The plaintiff, Libby Hilsenrath (on behalf of her child, C.H., a middle
school student), sues the Chatham School District and Board of Education, as
well as individual school administrators and teachers in their official capacities
only. She asserts a claim under 42 U.S.C.

§ 1983 that the school’s curriculum

violates the Establishment Clause of the First Amendment by promoting the
Islamic faith.
Plaintiffs position, if I may paraphrase it, is that the public schools may
not Constitutionally proselytize on behalf of a religion, but that the Chatham
schools have crossed that line here. In particular, the plaintiff alleges, C.H. has
been exposed to two videos and a worksheet that contain materials that
members of the Islamic faith use to express religious beliefs or proselytize
others.’ The Complaint begins with a quotation from those materials: “May God
help us all find the true faith, Islam. Ameen.” This is captioned as the Chatham
school authorities’ “call for the conversion of

7th

grade students.” Such

materials, the Complaint alleges, have a primary purpose of promoting and
advancing the Islamic religion. The Complaint also alleges that the curriculum
gives insufficient attention to the Christian and Jewish religions. The
Complaint primarily seeks declaratory and injunctive relief, but adds a prayer
for nominal damages, as well as costs and fees.
The defendants’ position, likewise paraphrased, is that world religions
have a profound influence on human affairs and are therefore an appropriate
She also alleges more indirect contact online with other materials. For now, it is
not necessary to look beyond the allegations regarding the two videos and the
worksheet.
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subject of secular study. The Chatham curriculum, in their view, does not
exceed proper bounds. The defendants have moved to dismiss the complaint,
stating that they have not promoted, endorsed, or proselytized on behalf of any
religion. Rather, say the defendants, the students study world religions as part
of their academic education in a class called World Cultures and Geography.
That yearlong class, they say, covers many areas of the world, and embraces
such subjects such as geography, trade, art, social, economic and political
structures, and everyday life, as well as religions and religious texts. Many
religions, they say, are covered, but to study them is not to endorse or promote
them. One unit of the class covers the Middle East and North Africa, and
materials concerning the Islamic faith, say defendants, are a necessary part of
that unit. They allege that the class has no parochial focus or agenda; the
materials regarding Islam, according to defendants, must be understood as but
one component of a comprehensive social studies curriculum.
I need not endorse either party’s position to recognize that there is a
dispute here which requires the development of a factual context. This
complaint, as complaints do, makes allegations which are yet untested by any
fact finder. The motion to dismiss, as such motions sometimes will, makes
other, also untested statements about the broader curriculum and the
educational process. No evidence, however, is yet before the court. Such
factual, context-dependent issues cannot be resolved at this very early stage of
the litigation.
Let me put it another way. As a lawsuit, this matter may present
controversial issues. As a motion to dismiss, it does not. There will be
opportunity enough to consider the substantive issues when evidence has been
developed in discovery and the facts have been developed. For now, I will deny
the motion to dismiss with minimal discussion.

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Discussion
Sufficiency of the allegations

1.

One component of the defendants’ motion asserts that the Complaint
should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim upon which relief may be granted.
a.

The applicable standard of review

Rule 12(b)(6) provides for the dismissal of a complaint, in whole or in
part, if it fails to state a claim upon which relief can be granted. The defendant,
as the moving party, bears the burden of showing that no claim has been
stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a
Rule 12(b)(6) motion, a court must take the allegations of the complaint as true
and draw reasonable inferences in the light most favorable to the plaintiff.
Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (traditional
“reasonable inferences” principle not undermined by Twombly, see infra).
Federal Rule of Civil Procedure 8(a) does not require that a complaint
contain detailed factual allegations. Nevertheless, “a plaintiffs obligation to
provide the ‘grounds’ of his ‘entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Bell Ati. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the
complaint’s factual allegations must be sufficient to raise a plaintiffs right to
relief above a speculative level, so that a claim is “plausible on its face.” Id. at
570; see also Umland z.’. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008).
That facial-plausibility standard is met “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcrofl u. lqbal, 556 U.S. 662,
678 (2009) (citing Twombly, 550 U.S. at 556). While “[t]he plausibility standard
is not akin to a ‘probability requirement’.
possibility.” Iqbal, 556 U.S. at 678.

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.

.

it asks for more than a sheer

b. Analysis
The Establishment Clause of the First Amendment provides that
“Congress shall make no law respecting an establishment of religion
Const. amend.

1.2

“

U.S.

Both sides cite the familiar three-part test of Lemon v.

Kurtzman, 403 U.S. 602 (1971). Under that test, a challenged state practice
does not violate the Establishment Clause if (1) it has a secular purpose; (2) its
principal or primary effect neither advances nor inhibits religion; and (3) it does
not create an excessive entanglement of the government with religion.
The Complaint was obviously drafted with the Lemon test in mind. It
alleges that the course materials have no secular purpose, that they have the
principal purpose of advancing religion, and that they entangle the government
with the religion of Islam. (See Cplt.

¶

109, 110, 111) It alleges further

-“
.

that the course materials endorse and advocate, rather than merely teach
about, the Islamic faith. Whether those allegations can be sustained is a
question for another day, but they have been made.
Defendants respond that under the Len-ion regime, there is no blanket
prohibition on the presentation of information about religion in the context of a
an academic class. See Stone z.’. Graham, 449 U.S. 39, 42 (1980). The court,
they say, cannot take a single religious statement from the curriculum and
treat it as if it were the school authorities’ own statement of belief; it must view
the context and the totality of the circumstances to determine whether religion
is being endorsed or promoted. See, e.g., Def. Reply Brf. 5—6 (citing Elk Grove
Unified School Dist.

tO’.

Newdow, 542 U.S. 1, 40 (2004) (O’Connor, J., concurring

injudgment); ACLU v. BlackHorse Pike Reg’? SchoolBd., 84 F.3d 1471, 1485—
86 (3d Cir. 1996).

The guarantee against establishment of religion has long been incorporated via
the Fourteenth Amendment against action by the states. Everson a Board of
Education, 330 U.S. 1 (1947)
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b

So far, so good; citation of legal authority is fair game on a motion to
dismiss. But defendants’ motion falls afoul of the basic principle that the
Complaint’s allegations must be assumed to be true on a motion to dismiss.
Defendants attempt here to deny the plaintiffs allegations or supplement them
with allegations of their own. The videos on Islam, defendants emphasize,
occupied a small part of the school year. They were part of a curriculum that
covered many cultures and religions and would have been understood in that
context. This material, they say, could not be viewed as an endorsement of a
particular religious faith or a call to conversion.
The Complaint, however, alleges otherwise. However valid, or not, the
defendants’ arguments may turn out to be, they furnish no basis for dismissal
of the complaint. The information about the totality of the curriculum, for
example, does not appear on the face of the complaint. And the sensitive
balancing required by Lemon cannot be performed on the basis of mere
allegations. Such considerations are simply premature.
The case upon which the defendants primarily rely only underscores that
point. California Parents for Equalization of Educ. Materials v. Noonan, 600 F.
Supp. 2d 1088 (E.D. Cal. 2009), rejected a claim that a school textbook
presented Hinduism in a denigrating matter. It held that the information,
though religious in nature, was permissibly presented in the context of a
course on world history and geography. Noonan so held, however, on summary
judgment, with the benefit of a full factual record—not on a motion to dismiss.
For the foregoing reasons, the component of the defendants’ motion that
seeks to dismiss the Complaint for failure to state a claim is denied.
2. The six individual defendants in their official capacities
The motion also seeks dismissal of the complaint against the six
individual defendants. They are sued solely in their official capacities as school

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officials, persons responsible for curriculum, and social studies teachers.3 The
Complaint essentially seeks injunctive or declaratory relief; although the
Complaint contains a prayer for nominal damages,4 the plaintiff disclaims any
intent to seek damages from the individual defendants. (ECF no. 9, P1. BrL at 6
(“Plaintiff does not seek money damages against the individual defendant in
their official capacities. Plaintiff does seek prospective injunctive relief against
the individual defendants in their official capacities.”))
The naming of individual defendants is perhaps best understood against
the background of a

§ 1983 action against the State. As defendants say, a §

1983 action against a person in his or her official capacity is, in substance, an
action against that person’s governmental employer. See Hafer u. Melo, 502
U.s. 21, 25 (1991); Kentucky v. Graham, 473 U.S. 159, 166 (1985). That

concept has bite in the context of a suit for damages against an employee of the
State; the result is that a State official defendant partakes of the State’s
immunity from suit. See Alabama v. Thigh, 438 U.S. 781 (1978). But where (as
here) injunctive relief is sought, it has long been held that a plaintiff may avoid
the Eleventh Amendment/immunity bar by bringing an action against an
individual State official. See Expafle Young, 209 U.S. 123 (1908). It is thus
common to see

§ 1983 actions against the State authorities pled as claims

against individuals in their official capacities for injunctive relief.
A local government, however, is not immune from suit under

§ 1983. See

generally McneIl u. Dep’t of Soc. Serus. Of New York, 436 U.S. 658 (1978)
(imposing liability for actions of employees pursuant to local policy or custom).
At the local level, then, there is no particular need to name individual officials
as defendants, especially in suits for injunctive relief. See Kentucky v. Graham,

Michael Lasusa is sued as School Superintendent; Karen Chase as Assistant
Superintendent in charge of curriculum; Jill Gihorski as principal of the middle
school; Steven Maher as supervisor of social studies for the district; and Megan Keown
and Christine Jakowski as social studies teachers in the middle school.
Traditionally, $1.00 or some similar sum as an acknowledgement of a violation
of rights that did not cause injun’. See Carey v. P(phus, 435 U.S. 247, 266 (1978)
3

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473 U.S. 159, 166—167 & n.14 (1985) (“There is no longer a need to bring

official-capacity actions against local government officials, for under Mondll,
supra, local government units can be sued directly for damages and injunctive
or declaratory relief’).
That is not to say, however, that the naming of a local official in his or
her official capacity is impermissible per se. Defendants cite Baez v. Lancaster
Cty., 487 F. Appx 30, 32 (3d Cir. 2012). There, however, the Court upheld a
grant of summary judgment with respect to a County jail warden, finding that
the claims against him were duplicative of those against his employer, the
County, which had already failed on summary judgment. It is possible, of
course, that a similar scenario could play out in this case, after discovery and
motions for summary judgment. Individual defendants may be redundant. But
that is different from saying that individuals cannot be named in a complaint in
their official capacities because the claim is really against their employer.
Pleading patterns die hard; this

§ 1983 action may simply be following

common practice in actions against the State. Plaintiffs papers convey the
sense that she regards the individual officials here as what securities lawyers
call “relief defendants,” i.e., persons whose presence is required for the
fashioning of complete relief should plaintiff prevail. I doubt that; if the
curriculum must be changed, an order directed to the local school authorities
should be sufficient. In response to any concerns, the court has the power to
fashion an injunction that is sufficient to bind teachers and other employees,
irrespective of the pleadings.
To simplify the administration of this case, I direct the parties to discuss
a reduction in the defendant roster at their upcoming conference before the
Magistrate Judge. They may wish to focus in particular on the necessity, and
the pedagogical ramifications, of retaining the two defendants who are middle
school social studies teachers. For now, I will deny this component of the
motion to dismiss without prejudice to renewal if and as appropriate.

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CONCLUSION
For the foregoing reasons, the defendants’ motion to dismiss the
complaint (ECF no. 5) is denied. A separate Order accompanies this Opinion.
Dated: June 13, 2018

KEVIN MCNULTY
United States District Judge

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