Griffith v. Caney Valley Public Schools et al
Filing
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OPINION AND ORDER by Chief Judge Gregory K Frizzell ; denying 3 Motion for Preliminary Injunction; accepting 19 Report and Recommendation (GKF1, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
HAYDEN GRIFFITH,
Plaintiff,
v.
CANEY VALLEY PUBLIC SCHOOLS,
RICK PETERS, CLINT SUMNER, JOE
LEWIS, JEANIE HUFFAKER, RON
PRUITT, and SUE P. WOODS,
Defendants.
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Case No. 15-CV-273-GKF-FHM
OPINION AND ORDER
Before the court is the Report and Recommendation of United States Magistrate Judge
Frank H. McCarthy [Dkt. #19], in which the Magistrate Judge recommends that the court deny
plaintiff Hayden Griffith’s Motion for Preliminary Injunction [Dkt. #3]. 1 Griffith has filed
Objections to the Report and Recommendation [Dkt. #20]. For the following reasons, the court
overrules Griffith’s objections, accepts the Magistrate Judge’s Report and Recommendation, and
denies Griffith’s Motion for Preliminary Injunction.
I.
Background
Griffith, a member of the Delaware Tribe and the Cherokee Nation, is a senior at Caney
Valley High School. She is scheduled to participate in a graduation ceremony on Thursday
evening, May 21, 2015. In recognition of her upcoming graduation, an elder of the Delaware
Tribe gave Griffith an eagle feather, an object which is sacred according to Griffith’s Native
American religious beliefs. As an expression of her beliefs, she wishes to attach the eagle feather
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Plaintiff filed her Complaint at 6:26 p.m. on Friday, May 15, 2015. The following Monday
morning, May 18, 2015, the court referred this matter to the Magistrate Judge for a hearing on
the Motion for Preliminary Injunction and a Report and Recommendation because the court is
currently presiding over a six-day criminal jury trial.
to her graduation cap during her graduation ceremony. But the school prohibits all students from
decorating their graduation caps, and has informed Griffith that she will not be permitted to
participate in the ceremony if she attaches the feather to her cap during the ceremony. The school
has offered to allow Griffith to wear the feather in her hair or on a necklace, or to carry the
feather during the ceremony, but Griffith maintains it would be disrespectful and inconsistent
with her religious beliefs not to wear the feather attached to the graduation cap.
Griffith contends that the school’s policy of prohibiting decorations on graduation caps
violates her rights under the First Amendment to the United States Constitution to free exercise
of religion and to free speech. She also contends that the policy violates her rights under the
Oklahoma Religious Freedom Act, Okla. Stat. tit. 51, § 251 et seq. (“ORFA”). She seeks a
preliminary injunction prohibiting the school from enforcing the policy, thereby permitting her to
wear the feather on her graduation cap during the graduation ceremony.
The Magistrate Judge held a hearing yesterday, May 19, 2015. Yesterday evening, he
issued his Report and Recommendation, in which he recommended that Griffith’s motion be
denied. Griffith filed her Objections to the Report and Recommendation this morning, and the
defendants filed their response early this afternoon.
II.
Standard of Review
This court must conduct a de novo review of the Magistrate Judge’s Report and
Recommendation. 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo
determination of those portions of the report or specified proposed findings or recommendations
to which objection is made.”); see also Northington v. Marin, 102 F.3d 1564, 1570 (10th Cir.
1996) (“De novo review is required after a party makes timely written objections to a
magistrate’s report. The district court must consider the actual testimony or other evidence in the
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record and not merely review the magistrate’s report and recommendations.”). The court may
“accept, reject, or modify the recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b).
III.
Discussion
A preliminary injunction is an extraordinary remedy; therefore, a movant’s right to relief
must be clear and unequivocal. Dominion Video Satellite, Inc., v. Echostar Satellite Corp., 269
F.3d 1149, 1154 (10th Cir. 2001). To obtain a preliminary injunction, the movant bears the
burden of showing: 1) a substantial likelihood of prevailing on the merits; 2) irreparable harm
unless the injunction is issued; 3) the threatened injury outweighs the harm that the preliminary
injunction may cause the opposing party; and 4) the injunction, if issued, will not adversely
affect the public interest. Fed. Lands Legal Consortium v. United States, 195 F.3d 1190, 1194
(10th Cir. 1999).
Three types of preliminary injunctions are specifically disfavored: (1) preliminary
injunctions that alter the status quo; (2) mandatory preliminary injunctions; and (3) preliminary
injunctions that afford the movant all the relief that it could recover at the conclusion of a full
trial on the merits. For these categories of disfavored preliminary injunctions, “the movant has a
heightened burden of showing that the traditional four factors weigh heavily and compellingly in
its favor before obtaining a preliminary injunction.” Fundamentalist Church of Jesus Christ of
Latter-Day Saints v. Horne, 698 F.3d 1295, 1301 (10th Cir. 2012) (quoting Dominion Video
Satellite, Inc., 269 F.3d at 1154–55). In his Report and Recommendation, the Magistrate Judge
determined that Griffith’s motion would involve each of these categories. [Dkt. #19, pp. 2–3].
Griffith did not object to this finding. Thus, the court finds that Griffith must meet this
heightened burden.
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A. Likelihood of Success on the Merits
i. Hybrid-Rights Theory
Griffith argues that, because she alleges both a free exercise claim and a free speech
claim, the court must apply a heightened level of scrutiny to the school’s policy prohibiting
decorations on graduation caps during the graduation ceremony. [Dkt. #20, p. 17]. Griffith’s
argument has its origins in Employment Div., Ore. Dept. of Human Res. v. Smith, 494 U.S. 872
(1990). Under Smith, when a person’s free exercise of religion is impaired by a neutral rule of
general applicability issued by a governmental entity, the court examines the rule under the
rational-basis review standard. See id. at 878 (“If prohibiting the exercise of religion . . . is not
the object of the [rule], but merely the incidental effect of a generally applicable and otherwise
valid provision, the First Amendment has not been offended.”); see also United States v.
Hardman, 297 F.3d 1116, 1126 (10th Cir. 2002) (“In effect, Smith creates a ‘safe harbor’—if the
law is ‘a valid and neutral law of general applicability,’ then it must simply be rationally related
to a legitimate government end.”). In declining to apply strict scrutiny to neutral rules of general
applicability, the Court distinguished some of its previous free exercise decisions, noting that in
those cases, the plaintiff had also asserted other constitutional claims, such as freedom of speech
and of the press. Id. at 882.
Some courts have interpreted this language in Smith as recognizing a “hybrid-rights”
theory, under which courts apply heightened scrutiny in cases where multiple constitutional
violations are asserted together. See, e.g., Miller v. Reed, 176 F.3d 1202, 1207–08 (9th Cir.
1999). The Supreme Court has not further articulated a hybrid-rights theory based on Smith, and
the significance of the language in Smith is uncertain. See Catholic Charities of Sacramento, Inc.
v. Superior Court, 85 P.3d 67, 88 (Cal. 2004); see also Parker v. Hurley, 514 F.3d 87, 97 (1st
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Cir. 2008) (“[w]hat the Court meant by its discussion of ‘hybrid situations’ in Smith has led to a
great deal of discussion and disagreement.”). But “[w]hatever the Smith hybrid-rights theory may
ultimately mean . . . it at least requires a colorable showing of infringement of recognized and
specific constitutional rights, rather than the mere invocation of a general right. . . .” Swanson v.
Guthrie Ind. Sch. Dist. No. I-L, 135 F.3d 694, 700 (10th Cir. 1998).
As discussed below, Griffith has not made a “colorable showing of infringement” of her
“recognized and specific constitutional right[]” to free speech under the First Amendment. Id.
Thus, the court thus need not apply heightened scrutiny to the school’s policy prohibiting
decorations on graduation caps based on a hybrid-rights theory.
ii. Free Exercise of Religion
To survive a constitutional challenge based on an alleged violation of the free exercise
clause of the First Amendment, “a law that is both neutral and generally applicable need only be
rationally related to a legitimate governmental interest.” Corder v. Lewis Palmer Sch. Dist. No.
38, 566 F.3d 1219, 1232 (10th Cir. 2009) (citing Grace United Methodist Church v. City of
Cheyenne, 451 F.3d 643, 649–50 (10th Cir. 2006)).
Here, the school’s policy prohibiting all decorations on graduation caps is a neutral policy
of general applicability. Furthermore, the school has a legitimate interest in maintaining the
formality of the graduation ceremony, and in demonstrating the unity of the graduating class. See
Corder, 566 F.3d at 1229 (“A graduation ceremony is an opportunity for the School District to
impart lessons on discipline, courtesy, and respect for authority.”); Bear v. Fleming, 714 F. Supp.
2d 972, 989 (D.S.D. 2010) (“The school board has a legitimate interest in honoring its graduating
seniors and preserving the unity of the class at this most auspicious event.”).
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Griffith contends that the policy is not rationally related to the school’s interest in
promoting unity, given that others students would be permitted to wear other regalia (such as
stoles from the National Honor Society) and in light of the school’s offer to allow her to wear the
feather in her hair or on a necklace, or to carry the feather. [Dkt. #20, p. 18]. But these other
regalia are permitted to allow recognition of the students’ accomplishments in school-sponsored
activities. See Bear, 714 F.Supp.2d at 989 (“The school board has a legitimate interest in
ensuring that the graduation exercises convey . . . messages that advance the mission and goals
of the school.”). Furthermore, none of these permitted variances to the graduation regalia are
worn on the cap. As the school Superintendent testified at the hearing before the Magistrate
Judge, the graduation caps are the most visible aspect of the graduation regalia to members of the
audience, who are seated above and behind the graduating class in the stands of the school’s
football stadium. The school’s policy prohibiting individual decorations of the graduation cap is
thus a rational means of displaying the unity of the graduating class. As such, Griffith has not
shown that the school’s policy is not rationally related to its legitimate interest in maintaining a
solemn and dignified atmosphere at its graduation ceremony, and conveying a message of unity
and discipline to its graduating class.
Griffith therefore fails to carry her burden of showing that she is likely to prevail on the
merits of her free exercise claim.
iii. Free Speech Claim
Students in public schools do not “shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate.” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266
(1988) (quoting Tinker v. Des Moines Independent School Dist., 393 U.S. 503, 506 (1969)).
However, the First Amendment rights of students in the public schools “are not automatically
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coextensive with the rights of adults in other settings,” id. (quoting Bethel School District No.
403 v. Fraser, 478 U.S. 675, 682 (1986)), and must be “applied in light of the special
characteristics of the school environment.” Id. (quoting Tinker, 393 U.S. at 506). In particular,
educators do not offend the First Amendment by exercising control over “the style and content of
student speech in school-sponsored expressive activities” that observers “might reasonably
perceive to bear the imprimatur of the school” “so long as their actions are reasonably related to
legitimate pedagogical concerns.” Corder, 566 F.3d at 1227, 1229 (quoting Hazlewood, 484 U.S.
at 271, 273).
Griffith contends that because the school permits certain forms of academic
recognition—such as National Honor Society stoles—during the graduation ceremony, the
ceremony is a limited public forum or a designated public forum, in which viewpoint
discrimination is not permitted. [Dkt. #20, p. 12]. But the ceremony may be deemed a public
forum only if school authorities have opened it “for indiscriminate use by the general public . . .
or by some segment of the public, such as student organizations.” Hazlewood, 484 U.S. at 267
(internal citations and quotation marks omitted). Here, the school does not “relinquish ultimate
control over the content and orderly progression of the proceedings” (Bear, 714 F.Supp.2d at
988) by giving limited recognition of individual academic achievement in school-sponsored
activities. In particular, the school does not relinquish control over the graduation caps, which
bear no individual decoration of any kind—including recognition of academic achievement.
Furthermore, given the degree of control the school exercises over the proceedings, observers
would reasonably perceive the expressions made through the students’ graduation regalia as
bearing the imprimatur of the school. As such, a graduation ceremony “is a school-sponsored
event, and, thus, the students’ speech . . . is school-sponsored speech” subject to restrictions that
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are reasonably related to legitimate pedagogical concerns. Id. (finding that a school’s
requirement that a student wear a cap and gown over traditional tribal clothing at a graduation
ceremony did not violate his First Amendment rights); see also Corder, 566 F.3d at 1229 (“[T]he
graduation ceremony was supervised by the school’s faculty and was clearly a school-sponsored
event.”).
For the reasons discussed above, Griffith has not shown that the school’s policy is not
rationally related to a legitimate pedagogical interest in maintaining the formality of the
graduation ceremony and in demonstrating the unity of the graduating class. She therefore fails
to carry her burden of showing she is likely to prevail on her free speech claim.
iv. Oklahoma Religious Freedom Act Claim
The ORFA provides that “[n]o governmental entity shall substantially burden a person’s
free exercise of religion unless it demonstrates that application of the burden to the person is:
1. Essential to further a compelling governmental interest; and 2. The least restrictive means of
furthering that compelling governmental interest.” Okla. Stat. tit. 51 § 253(B). “Substantially
burden,” as the term is used in the ORFA, means “to inhibit or curtail religiously motivated
practice.” Okla. Stat. tit. 51 § 252(7). 2
2
In her objection, Griffith argues that a substantial burden exists where the governmental entity
“prevents participation in conduct motivated by a sincerely held religious belief.” [Dkt. #20, p. 5
(quoting Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (10th Cir. 2010))]. In Abdulhaseeb, the
Tenth Circuit considered the meaning of the term “substantial burden” as used in the Religious
Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000cc-1(a). Unlike RFRA, however, the
Oklahoma Religious Freedom Act defines the term “substantially burden.” Compare Okla Stat.
tit. 51 § 252(7) with 42 U.S.C. §§ 2000bb-2, 2000cc-5.
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In Steele v. Guilfoyle, 76 P.3d 99 (Okla. Civ. App. 2003), 3 the Oklahoma Court of Civil
Appeals stated that a governmental entity substantially burdens a plaintiff’s free exercise of
religion under any of three circumstances:
1. where it “[s]ignificantly inhibit[s] or constrain[s] conduct or expression that
manifests some central tenet of a [person’s] individual beliefs”;
2. where it “meaningfully curtail[s] a [person’s] ability to express adherence to
his or her faith;” or
3. where it denies “reasonable opportunities to engage in those activities that are
fundamental to a [person’s] religion.”
Id. at 102 (quoting Werner v. McCotter, 49 F.3d 1476, 1480 (10th Cir. 1995), cert denied 515
U.S. 1166 (1995)). A governmental entity’s action “does not substantially burden religious
activity when it merely has an incidental effect that makes it more difficult to practice the
religion.” Id. (citing Lyng v. Northwestern Indian Cemetery Protective Ass’n, 485 U.S. 439, 450–
51 (1988)). 4
Here, Griffith testified that her religion does not require her to attach the eagle feather to
her cap at the graduation ceremony. She also testified that wearing the feather shows her respect
for God and for the tribal elder who gave the feather to her, but that failing to attach the feather
to her cap would not result in any religious detriment to her. Thus, attaching the feather to her
graduation cap would be a personal expression of religious significance to Griffith, but it is not a
3
As an opinion of the Oklahoma Court of Civil Appeals which has not been approved by the
majority of the justices of the Oklahoma Supreme Court for publication in the official reporter,
Steele does not constitute binding precedent, though it is persuasive authority. 20 Okla. Stat. tit.
20, § 30.5; Oklahoma Supreme Court Rule 1.200(d)(2).
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Griffith contends that the Magistrate Judge’s reliance on Lyng is misplaced, as the case was
decided prior to the enactment of RFRA. [Dkt. #20, pp. 7–8]. But the Magistrate Judge’s reliance
was placed on Steele, which in turn cited Lyng. More importantly, the purpose of RFRA was “to
bring Free Exercise jurisprudence back to the test established before Smith. There is no
indication Congress meant to alter any other aspect of pre-Smith jurisprudence.” Hobby Lobby
Stores, Inc. v. Sebelius, 723 F.3d 1114, 1133 (10th Cir. 2013), aff’d sub nom. Burwell v. Hobby
Lobby Stores, Inc., 134 S. Ct. 2751 (2014).
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religiously motivated “practice” (Okla. Stat. tit. 51 § 252(7)), or an activity that is “fundamental”
to her religion (Steele, 76 P.3d at 102). Nor does the policy prohibiting decorations on graduation
caps during the ceremony “meaningfully curtail” her ability to express adherence to her faith.
Steele, 76 P.3d at 102. The policy does not prevent Griffith from attaching the feather to her cap
at any time other than the graduation ceremony. She may attach it to her cap it up until she enters
the graduation ceremony, and she may affix the feather to her cap immediately after the
ceremony. The school superintendent also offered to re-pose for the professional photographer
with Griffith wearing her feather on her cap after the ceremony. In sum, Griffith may display the
feather as she wishes throughout her celebration of her graduation, other than during the
graduation ceremony with her fellow classmates.
Griffith has not shown that the school’s policy substantially burdens her free exercise of
religion. Thus, Griffith does not meet her burden of showing a substantial likelihood of
prevailing on the merits on her ORFA claim.
B. Irreparable Harm, Balancing of the Harms, and Public Interest
Having failed to demonstrate a violation of the ORFA or of her rights to free speech or
the free exercise of religion, Griffith fails to carry her burden of showing she will suffer
irreparable harm if an injunction is not issued, or that the threatened injury would outweigh the
harm an injunction may cause. Fed. Lands Legal Consortium, 195 F.3d at 1194. Furthermore, the
public interest weighs heavily in favor of school’s stated interest in maintaining the uniformity
and formality of the graduation ceremony for all students. Id. Thus, Griffith does not meet her
“heightened burden of showing that the traditional four factors weigh heavily and compellingly
in [her] favor.” Fundamentalist Church of Jesus Christ of Latter-Day Saints, 698 F.3d at 1301.
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IV.
Conclusion
For the foregoing reasons, Griffith’s objections [Dkt. #20] to the Report and
Recommendation is overruled, and the court accepts the Magistrate Judge’s recommended
disposition. Griffith’s Motion for Preliminary Injunction [Dkt. #3] is denied.
IT IS SO ORDERED this 20th day of May, 2015.
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