Rogers et al v. Mulholland et al

Filing 51

DECISION AND ORDER: Plaintiffs have failed to carry their burden of proving that the City of Pawtucket has offended Constitutional protections. For the reasons set forth in the attached Order, the Clerk is directed to enter judgment in favor of Defendants. So Ordered by Chief Judge Mary M. Lisi on 5/4/2012. (Duhamel, John)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

MARGARET ROGERS; MARGARET ROGERS as parent
and next friend of Gwendolyn Rogers; KATHLEEN CHURCH;
KATHLEEN CHURCH as parent and next friend of Kary Church
.and Keith Church; COLLEEN ARNESON; COLLEEN ARNESON as
parent and next friend of Tayla Arneson and Kyle Arneson;
ANA DESAUTEL; ANA DESAUTEL as parent and next
friend of Cassandra Desautel; JOANNE BONOLLO; JOANNE
BONOLLO as parent and.next friend of Destiny Bonollo and Allison
Bonollo; AMY BREAULT ZOLT; AMY BREAULT ZOLT
as parent and next friend of Erik Breault, Max Breault, and
Tyler Breault; LINDA GHAZAL; LINDA GHAZAL as parent
and next friend of Tabatha Ghazal and Adam Ghazal,
Plaintiffs,

v.

C.A. No. 09-493 ML

WilLIAM D. MULHOLLAND, in his capacity as Superintendent
of the Parks and Recreation Division for the City of Pawtucket;
DONALD R. GREBIEN, in his capacity as Mayor of the City of
Pawtucket; and ROBERT HOWE, in his capacity as Director of
Public Works,
Defendants.

DECISION AND ORDER
Plaintiffs bring this action under 42 U.S.C. § 1983 seeking injunctive and declaratory
relief. Plaintiffs contend that Defendants have violated the First, Fifth, and Fourteenth
Amendments of the United States Constitution and Article I, Sections 2 and 3 of the Rhode
Island Constitution by preferentially allocating permits for the use of publicly owned and
maintained athletic fields to private religious schools. The action was tried by the Court sitting
without a jury and the parties have submitted post-trial memoranda. The Court's fmdings of fact

1

and conclusions of law are set forth below.
I. Background

Pawtucket is a city of approximately nine square miles with approximately 70,000
residents. The City has three public high schools: William E. Tolman ("Tolman"), Charles E.
Shea ("Shea"), and Jacqueline Walsh School for the Performing Arts ("Walsh"); 1 two private
Catholic high schools: St. Raphael Academy ("SRA"), and Bishop Keough High School
("Keough"); three public junior high schools: Samuel Slater ("Slater"), Joseph Jenks ("Jenks")
and Lyman Goff ("Goff"); and three private Catholic elementary/junior high schools
(kindergarten through eighth grade): St. Cecilia's, St. Theresa's and Woodlawn Catholic
Regional. Plaintiffs are City residents and the parents of children who attend or have attended
City public schools.
The schools (both public and private) within the City, for the most part, do not have
athletic fields on their grounds; therefore athletic teams fielded by the schools must share use of
City-owned and maintained fields. In some circumstances, student-athletes must travel several
miles to get to the fields they are assigned for their "home" games and practices. The City does
not generally provide transportation to home games or practices for public school students. The
matter before the Court primarily concerns the City's fall football and soccer field permitting
policies.
Each year, several months before the fall athletic season, the athletic directors at Tolman,

1

Walsh does not have an independent athletic program. Students attending Walsh may participate in either
Tolman or Shea athletic programs depending upon the school district in which they reside. The City also has a
number of public charter schools. Students at public charter high schools are also allowed to participate in either
Tolman or Shea athletic programs depending upon the school district in which they reside.

2

Shea, SRA, and Keough submit requests for permits to use particular fields, on specific days and
times, for their school's soccer and/or football teams' games and practices. The athletic directors
at both Tolman and Shea also submit the field permit requests for the public junior high schools.
Because of the younger age of junior high student-athletes, it is the practice of the public school
athletic directors to schedule junior high games and practices immediately after school at a field
that is within close proximity to the school. John Scanlon, Jr. ("Scanlon"), the Athletic Director
at Tolman, testified, however, that "high school games get preference" in scheduling and that
there is a "pecking order in ... school sports in general. The pecking order ... is high school
first, junior high second. That's in the budgeting process all the way up to the scheduling
process." December 19, 2011, Transcript at 52, 77.
A school may field multiple teams in a single sport. For example, Tolman maintains a
boys varsity and a junior varsity soccer team and a girls varsity soccer team. Tolman also fields a
freshman, a junior varsity, and a varsity football team. Goff maintains both a girls and a boys
soccer team while Slater and Jenks each maintain a co-ed soccer team. The athletic fields that
are pertinent to this matter are: Fairlawn Veteran's Park, Max Read Field, McKinnon/Alves
Soccer Complex, Pariseau Field, O'Brien Field, Coutu Field, and Tomlinson Complex. 2 In 2011,
the City budgeted approximately $40,000 to $50,000 for maintenance and supplies (exclusive of
labor costs) for upkeep of City athletic facilities. 3
Up until 2010, the City did not have written policies governing the field permitting
process. William Mulholland, ("Mulholland"), the Superintendent of Parks and Recreation for

2

The Court took a view of all of the fields except for Coutu Field.

3

There are other athletic facilities in the City in addition to those noted.

3

the City, made the permitting decisions on a case-by-case basis. 4 His decisions were largely
governed by "grandfather rights," i.e., a school's historic use of a field. In making his decisions,
however, Mulholland also considered the proximity of a field to a school, the general condition
of the field, whether the school assigned the permit in the past took appropriate care of the field,
and the general adaptability of a field to the particular sport. In assigning fields for games, public
school games were given frrst preference. There was, however, no preferential assignment for
practices. When two or more schools requested the same field at the same time, Mulholland
sought the guidance of his supervisor, the Director of Public Works.
This dispute mainly concerns the permitting of O'Brien Field and Field 2 at
McKinnon/Alves Soccer Complex in the fall athletic season. O'Brien Field is adjacent to Jenks
and approximately one-tenth of a mile from SRA. For the most part, O'Brien Field is considered
a practice field for football or soccer. O'Brien Field was "reconstructed" in or about 2001. In
the reconstruction, the City added an irrigation system and turf, removed trees, installed banking,
and fenced the field. The work on the field was fmanced through a grant from the United States
Government. Prior to its reconstruction, however, the City permitted O'Brien Field to SRA for
football practice on a regular basis. Mulholland·estimated that, generally, the cost to the City to
maintain O'Brien Field on an annual basis (exclusive oflabor) was approximately $9,000.
From approximately 2001 to 2008, both Scanlon and SRA requested a permit for the use
of O'Brien Field during the fall season: SRA for football practice and Scanlon for public junior
high school soccer practices and games. Up until2007, SRA was granted the permit and
Scanlon's request was denied. Mulholland testified that, during this time, because both schools

~ulholland retired in June 2011.

4

requested the field at the same time, he sought guidance from the Director of Public Works and
was told to continue to issue the permit to SRA. Mulholland testified that, as an alternative to
O'Brien Field, the City offered Pariseau Field to Jenks. Mulholland testified that Pariseau Field
was within the same proximity that O'Brien Field was to Jenks; it had bleachers and restroom
facilities; and it was, generally, a better facility than O'Brien Field. Scanlon testified, however,
that in 2009 and 2010, because of a shortage of City workers, Pariseau Field was not
appropriately "lined" for soccer. In 2008, Jenks received the permit for O'Brien Field. SRA
received the permit for O'Brien Field in 2009 and 2010 and Jenks received the permit for
0 'Brien in 2011.
Generally, during the years pertinent to this matter, Shea had exclusive use of Max Read
Field for football practice and games. The record also reflects that Tolman was routinely
assigned Coutu Field for football practice. Coutu Field is located approximately 20 yards from
Tolman. Tolman and SRA played their home football games at Pariseau Field. If there was a
conflict in game times at Pariseau Field, Tolman received a preference and SRA was required to
reschedule its game.
McKinnon!Alves Soccer Complex is comprised of three soccer fields. Fields 1 and 3 are
located on the outside borders of the complex and field 2 is located between fields 1 and 3. The
fields are used for soccer practice and games. Field 2 is the least desirable field because it has
the greatest potential of interference from fields 1 and 3. Generally, during the 2001-2008 fall
seasons, the City public high and junior high schools shared fields 1 and 3 and SRA and Bishop
Keough shared field 2. Scanlon estimated that, generally; eight to ten public school teams shared
fields 1 and 3. Although Scanlon testified that he made "requests" for the permit for
5

McKinnon/Alves Field 2 prior to 2008, he did not specify in what years he requested the permit
for Field 2 before 2008. December 19, 2011 Transcript at 51.
Scanlon testified that, prior to the fall of 2008, he was not getting enough field
assignments for soccer practices. Scanlon stated that in order to provide adequate fields for
soccer practice he had to move the starting times for Tolman junior varsity and freshman football
home games to later in the afternoon at Pariseau Field. The Court agrees with Defendants'
contention that, at most, Scanlon would have to had delay the starting times of football games
between eight to ten times during the season.
In the fall of2008, Scanlon's request for McKinnon/Alves Field 2 was denied but his

request for 0 'Brien Field, for the first time, was granted. ·Although SRA received the permit for
McKinnon/Alves Field 2, Scanlon testified that "for the most part" he did not have any
scheduling problems. December 19, 2011, Transcript at 63. Scanlon testified that although he
preferred not to, he scheduled some public junior high soccer games at O'Brien Field. In the fall
of2008, instead of O'Brien Field, SRA received the permit to hold football practice at Pariseau
Field. After the 2008 season, however, Pariseau Field needed to be reconstructed as a result of
the heavy play it endured from high school football games and practices and City youth football
games. As a result, the City determined that Pariseau Field should not be used for football
practice. During the 2008 fall season, Scanlon and the SRA principal had an informal agreement,
whereby if the public schools were not using O'Brien Field, Scanlon would contact SRA and
notify SRA that it could use the field.
In or aboutSeptember2009, Scanlon forwarded a letter to the Pawtucket City Council"-

informing Council members that "obtaining space for soccer teams in the fall has been an
6

adventure." Plaintiffs' Exhibit 18. In the letter, Scanlon also stated that he "found it impossible
to accommodate the need for field space for the junior highO [schools]." Id. Scanlon noted that
he had ·requested the use of O'Brien Field in 2009 but that O'Brien was "given to [SRA] for
football practice." Id. At or about that time, Scanlon testified that Mulholland informed him that
as a result of budget cuts, the Tomlinson Complex could no longer be "lined" for soccer games.
Mulholland testified, however, that the City was offering alternatives to the Tomlinson Complex.
In 2009 Scanlon again requested permits for O'Brien and McKinnon/Alves Field 2.

SRA, however, received the permits for O'Brien Field and McKinnon/Alves Field 2.
Mulholland informed Scanlon that Jenks could use Pariseau Field for soccer practice instead of
O'Brien Field. During this season, Keough requested a permit for McKinnon/Alves Field 3.
Keough was informed that it would have to compromise its request for McKinnon/Alves Field 3
to allow the scheduling of public high and junior high school soccer games because those games
received preferential treatment. Mulholland testified that Keough was informed that its team
could either play after the public school games or attempt to identify an alternative date. In
addition, Slater was granted the permit for soccer practice at Veteran's Park; Keough had access
to Veteran's Park for soccer practice only when Slater was not using that field.
Scanlon testified generally that he had difficulties scheduling practices and games in 2009
and that he had to move the starting times for some Tolman junior varsity and freshman football
games to later in the afternoon. During the 2009 season, no public school games were cancelled
but "some" public high school soccer practices were cancelled because, according to Scanlon,
there was no available field. December 19, 2011 Transcript-at 71. Scanlon; however, did not
quantify how many practices were cancelled. Scanlon asserted that had he been granted his

7

requests for O'Brien and McKinnon/Alves Field 2 he would have had adequate field space for all
public school teams. Notwithstanding the cooperative agreement reached concerning O'Brien
Field in 2008, in 2009, Scanlon did not contact the City or SRA to inquire whether the public
schools could use O'Brien Field when SRA was not using it.

In the spring of2010, the City adopted written policies governing the field permitting
process. After the policies were adopted, however, Mulholland continued to issue permits in the
same manner he did prior to the adoption of the policies. Mulholland testified, however, that he
believed the written policies, for the most part, codified the unwritten policies that had been in
effect prior to 2010.

In 2010, Scanlon again requested the permits for McKinnon/Alves Field 2 and O'Brien
Field. SRA, however, received the permits for both fields. Scanlon was granted the permit for
Pariseau Field in place of O'Brien Field. Scanlon testified that because he was not granted an
alternative field to McKinnon!Alves Field 2, a "number" of public school soccer practices were
cancelled. Transcript, December 19, 2011, at 76. Scanlon noted that "in some cases" when the
Tolman soccer team was assigned to Tomlinson Complex for practice "[p]arents weren't too
happy ... [a]nd in some cases they ... chose to cancel the practice rather than go that far away."
Id. at 77. 5 Once again, however, Scanlon did not quantify how many practices were cancelled.
Moreover, he did not explain whether the "number" of practices that were cancelled were
cancelled because no field was available or because a team chose not to travel to an available
field. Mulholland testified that he did not offer an alternative field to McKinnon/Alves Field 2 to
Scanlon because Scanlon· did not ask for one and because it was the first time Scanlon had

5

Tomlinson is approximately 2.4 miles from Tolman.

8

requested McKinnon/Alves Field 2. 6
In 2010, the City permitted McKinnon/Alves Field 3 for games but not practices.

Therefore, in the event a game had to be rescheduled because of inclement weather, Field 3 had
available dates to reschedule the games. Mulholland testified that, on occasion, Field 3 was
vacant and all schools were allowed to use the field without a permit.
In 2011, Scanlon received the permits for both O'Brien and McKinnon/Alves Field 2.

SRA and Keough played soccer games at McKinnon/Alves Field 2; however, to accommodate
public school teams assigned the same field, SRA and Keough games were assigned later starting
times. SRA was permitted Tomlinson Complex two to three days per week for football practice.
Practice at Tomlinson required SRA to transport the players to the field. For the 2011 fall
season, Scanlon testified that he had adequate field space for practices and games. In fact,
Scanlon did not use O'Brien Field on all the days it was permitted to Jenks. Again in 2011, the
City and Scanlon reached a cooperative agreement whereby Scanlon would notify the City if
Jenks was not using O'Brien Field and the City would notify SRA that SRA could use O'Brien
Field. In fact, the City actually permitted SRA the use of O'Brien Field on the days Jenks was
not using the field.
At some point in 2010, Christopher Crawley, the Assistant Superintendent ofParks and
Recreation, became responsible for issuing permits for use of the City's athletic fields. During
2010, the City began using a computer program in the permitting process. Crawley testified that
the computer program streamlined the permitting process and made it more detailed and
accurate:· Crawley, like Mulholland, testified that if two or more schools requested the same field

6

The record reflects that this was not the first time Scanlon requested McKinnon/Alves Field 2.

9

at the same time he would bring that matter to the attention of his supervisor. Crawley testified
that he permitted games first and then practices. Crawley also testified that, in 2011, he adhered
to the written policies that the City adopted in 2010.
With the adoption of the written policies, the City also set a June 15 deadline for the
submission of permit requests for the fall season. For the 2011 season, Crawley received the
requests from the public schools by the June 15 deadline. Keough, however, did not forward its
request to Crawley until July 1, 2011. Before the deadline passed, however, Crawley noticed that
SRA had forwarded him an email requesting fields but SRA had not submitted the official permit
applications. Crawly contacted SRA and informed SRA administration that SRA needed to
submit the official applications. SRA, however, did not submit the official applications on a
timely basis. As late as September 6, 2011, however, Crawley was holding fields for SRA even
though Scanlon had filed timely permit requests requesting some of the same fields. Crawley
testified that this was an oversight on his part because he did not realize that SRA had not
forwarded him timely official permit applications. At some point after June 15, SRA submitted
.official permit applications. For the 2011 season, the City granted all timely filed permit
requests. Only after those permits were issued were permits issued to SRA and Keough for the
fields that remained available. According to Crawley, all schools had adequate field space for
games and practices during the 2011 season.
After football season is over, the City slice seeds O'Brien Field and locks it, thereby
restricting access to the field until the following late summer. Mulholland testified that, in the
past, the City permitted· 0 'Brien Field·in the spring for adult soccer but the City found that the ·
adult spring soccer did significant damage to the field and the City decided to stop permitting the

10

field for spring soccer. SRA and two public schools, however, have access to the field during the
time it is locked in order to use the field for physical education classes. Mulholland explained
that the slice seeding process is performed at all of the City football fields. Mulholland also
testified that other fields are locked at different times during the year. He explained that the City
locks the gate at Coutu Field during the winter months, however, the field has other access to it
because it includes a basketball court. The City locks Max Reed Field and the McKinnon/Alves
Soccer Complex for the entire season to prevent access without permits. He also testified that
although the City cannot lock Pariseau Field because it has a track, the City may close the field
for approximately one month on an annual basis.
Mulholland disputed Scanlon's assertion that he did not have enough field space for
public school teams. Mulholland stated that there were alternative fields available for use at the
times Scanlon asserted that he had insufficient field space. Mulholland testified that if Scanlon
believed he had insufficient field assignments it was his responsibility to request an alternative
field.

ll. Standing
Plaintiffs maintain that they have standing as municipal taxpayers. It is black letter law
that before this Court may consider the merits of any claim, the party seeking to invoke this
Court's jurisdiction must establish the requisite standing to bring suit. Whitmore v. Arkansas,
495 U.S. 149 (1990). In order to establish standing, Plaintiffs must demonstrate "a concrete and
particularized injury in fact, a causal connection that permits tracing the claimed injury to ...
[D]efendant[s'] ·actions, and a likelihood that prevailing in the action will afford-some redress for ··
the injury." Antilles Cement Corp. v. Fortuno, 670 F.3d 310,317 (1st Cir. 2012) (internal
11

quotation marks and citation omitted.).
The United States Supreme Court has recognized three types of taxpayer standing:
federal, state, and municipal. Smith v. Jefferson County Board of Commissioners, 641 F.3d 197
(6th Cir. 2011 ). As a general rule, a taxpayer complaining that the government has misspent tax
dollars lacks the "concrete and particularized" injury requirement to establish standing.
American Atheists, Inc. v. City of Detroit, 567 F.3d 278, 284 (6th Cir. 2009) (internal quotation
marks and citation omitted). Municipal taxpayers, however, are required to meet a somewhat
less rigorous injury standard. Smith, 641 F.3d 197. To establish the injury requirement, a
municipal taxpayer must establish that (1) she pays taxes to the relevant authority, and (2) tax
revenues are expended on the challenged practice. Pelphrey v. Cobb County, Ga., 547 F.3d 1263
(11th Cir. 2008); Ward v. Sante Fe Independent School District, 393 F.3d 599 (5th Cir. 2004);
see also Donnelly v. Lynch, 691 F.2d 1029, 1031 (1st Cir. 1982) (municipal taxpayers can
challenge "allegedly unconstitutional use of their tax dollars"), rev'd on other grounds, 465 U.S.
668 (1984).
Plaintiffs Margaret Rogers, Linda Ghazal and Ana Desautel each pay municipal property
taxes to the City and the Cizy expends tax revenue in administering the field permitting process
and in maintaining City athletic facilities. Plaintiffs Margaret Rogers, Linda Ghazal and Ana
Desautel meet the required injury in fact prong of the standing analysis.
Injury, however, is only part ofthe standing analysis. Plaintiffs must also establish that
the challenged action caused the injury and the injury would be redressed by a favorable decision
by the Court.

Antilles~

670 F.3d 310. There is a direct causal-connection between the City's

permitting policies and the purported injury, here the alleged misuse of public funds. Plaintiffs
12

seek declaratory and injunctive relief to end the City's allegedly discretionary pro-sectarian field
permitting policies. Thus, a favorable ruling in this matter would remedy Plaintiffs' alleged
injury. Plaintiffs Margaret Rogers, Linda Ghazal and Ana Desautel have municipal taxpayer
standing.

ill. The Claims
Plaintiffs raise four constitutional challenges to the City's field permitting policies.
Plaintiffs bring two federal claims: an Establishment Clause and an Equal Protection claim
pursuant to the First, Fifth and Fourteenth Amendments of the United States Constitution.
Plaintiffs also bring two state law claims: a Freedom of Religion and Equal Protection claim
pursuant to Article I, Sections 2 and 3 of the Rhode Island Constitution. Plaintiffs seek
declaratory and prospective injunctive relief and attorney's fees and costs.
Article I, Section 3 ofthe Rhode Island Constitution, titled "Freedom of[R]eligion," and
the First Amendment provide similar protections. In re Phillip S., 881 A.2d 931 (R.I. 2005);
Bowerman v. O'Connor, 104 R.I. 519, 521, 247 A.2d 82, 83 (1968) (Article I, Section 3 is not
"more restrictive" than the language of the First Amendment). Likewise, the "drafters of the
Rhode Island Constitution intended the Equal Protection Clause of the Rhode Island Constitution
[Article I, Section 2] to provide protection similar to the Equal Protection Clause of the
Fourteenth Amendment." Pawtucket Transfer Operations, LLC v. City of Pawtucket, 539 F.
Supp. 2d 513, 522 n.7 (D.R.I. 2008). Consequently, because an analysis ofthe federal claims
will be dispositive of the state law claims, the Court need only focus on Plaintiffs' federal

7

Neither party presented argument on the state law claims.

13

IV. The Establishment Clause
"The civil sword ... cannot rightfully act either in restraining the souls of the people
from worship or in constraining them to worship ...." Edward J. Eberle, Roger Williams' Gift:
Religious Freedom in Americ~ 4 Roger Williams U. L. Rev 425,457 n.l45 (1999). Under the
Establishment Clause "Congress shall make no law respecting an establishment of religion...."
U.S. Const. amend. 1. 8 "Although applicable originally only against the federal government, the
Establishment Clause was incorporated to apply to the states by the Fourteenth Amendment."
Freedom From Religion Foundation v. Hanover School District, 626 F.3d 1, 6-7 (1st Cir. 2010).
The defining principle of the First Amendment is that it "mandates government neutrality
between religion and religion, and between religion and nonreligion." McCreary County,
Kentucky v. ACLU of Kentucky, 545 U.S. 844, 860 (2005) (internal quotation marks and
citation omitted). "When the government acts with the ostensible and predominant purpose of
advancing religion, it violates the central Establishment Clause value of official religious
neutrality, there being no neutrality when the government's ostensible object is to take sides." Id.
Total separation between Church and State, however, is not possible in the strict or
absolute sense, nor is it required by the Constitution. See generally Lynch v. Donnelly, 465 U.S.

8

At the outset, the Court recognizes that case law scrutinizing challenged conduct and interpreting the
Establishment Clause is complex and generates "strong emotions." See generally Weisman v. Lee, 908 F.2d 1090,
1090 (1st Cir. 1990) (Bownes, J., concurring), aff'd, 505 U.S. 577 (1992); Ahlquist v. City of Cranston,_. F.
Supp. 2d _ _, _ _, 2012 WL 89965 at *11 (D.R.I. Jan. 11, 2012) (noting that "[t]hough the words [of the
Establishment Clause] are simple, their application to the circumstances of our evolving nation has been complex
and contentious"); Jeremy Patrick-Justice, Strict Scrutiny for Denominational Preferences: Larson in Retrospect, 8
N.Y. City L. Rev. 53, 53 n.l (2005) (the "[E]stablishment [C]lause is a perennially disputatious topic fraught with
emotion") (internal quotation marks and citation omitted); Jeffrey R. Wagner, A Survey of the Supreme Court's ...
Approach to the Establishment Clause in Light of Allegheny v. American Civil Liberties Union, 35 St. Louis U. L.J.
169, 203 (1990) (Establishment Clause cases primarily deal with an "emotional topic and polarized points of view").

14

668 (1984).
[R]ecognizing that this Nation's history has not been one of entirely sanitized
separation between Church and State, the Supreme Court has noted that it has
never been thought either possible or desirable to enforce a regime of total
separation. Thus, the principle is 'fixed' that a government program or law which
in some manner aids an institution with a religious affiliation does not, for that
· reason alone, violate the Establishment Clause.
Ehlers-Renzi v. Connelly School of the Holy Child, Inc., 224 F.3d 283, 287 (4th Cir. 2000)
(internal quotation marks and citations omitted). The line, however, between "neutrality and
permissible accommodation, on the one hand, and improper sponsorship or interference, on the
other, must be delicately drawn ... to prohibit" the establishment of religion. Id. at 287-88.
The Establishment Clause "serves not as a closed door, but as a judicious chaperone; it permits a
certain degree of impartial and friendly dialogue, but is swift to step in once that dialogue turns
stigmatic or coercive." Johnson v. Poway Unified School District, 658 F.3d 954, 971-72 (9th
Cir. 2011) (emphasis in original). Establishment Clause concerns "arise not when religion is
allowed by government to exist or even flourish, but when government sets a religious agenda or
becomes actively involved in religious activity." Boyajian v. Gatzunis, 212 F.3d 1, 10 (1st Cir.
2000).
In our modem, complex society, whose traditions and constitutional
underpinnings rest on and encourage diversity and pluralism in all areas, an
absolutist approach in applying the Establishment Clause is simplistic and has
been uniformly rejected by the [Supreme] Court. Instead, a court should
scrutinize challenged ... conduct to determine whether, in reality, it establishes f!
religion or religious faith, or tends to do so.
Americans United For Separation of Church and State v. Prison Fellowship Ministries, Inc., 509
F.3d 406, 423 (8th Cir. 2007) (emphasis in original) (quoting-Lynch, 465 U.S. at 678).
Given the complexity in comprehending and explaining the meaning of the ten words that
15

make up the Establishment Clause, and the countless ways in which Establishment Clause
challenges arise, the Supreme Court has not "set forth a one-size-fits-all test" to determine
whether or not governmental conduct runs afoul of the Establishment Clause. Newdow v.
Roberts, 603 F.3d 1002, 1017 (D.C. Cir. 2010) (Kavanaugh, J., concurring). The Supreme Court
has, however, espoused several methods of analysis to determine whether government conduct
offends the Establishment Clause. The Court's articulation and application of those standards
however, has lead lower courts to suggest that Establishment Clause jurisprudence is "muddled"
and in "hopeless disarray," Bauchman v. West High School, 132 F.3d 542, 551 (lOth Cir. 1997)
(internal quotation marks and citation omitted), "rife with confusion," Croft v. Perry, 624 F.3d
157, 165 (5th Cir. 2010) (internal quotation marks and citation omitted), and "convoluted,"
ACLU of Kentucky v. Grayson County, Kentucky, 591 F.3d 837, 845 (6th Cir. 2010); see also
Freedom From Religion Foundation v. Hanover School District, 665 F. Supp. 2d 58 (D.N.H.
2009), affd, 626 F.3d 1 (1st Cir. 2010) (noting at least six different Establishment Clause
approaches).
Fortunately, in Hanover School District, the First Circuit provided clear guidance to trial
courts who must decide Establishment Clause challenges. See Hanover School District, 626 F .3d
1. In Hanover School District, the First Circuit found that the Supreme Court had "articulated
three interrelated analytical approaches" to determine whether governmental conduct violates the
Establishment Clause: the Lemon test; the endorsement analysis; and the coercion analysis. Id. at
7. It goes without saying that Plaintiffs bear the burden of proving that the Defendants have
violated the Establishment Clause. American Atheists,
n.lO (lOth Cir. 2010).

16

Inc~· v.

Davenport, 63 7 Y3d -I 095, 1118

A. The Lemon Test

In Lemon v. Kurtzman, 403 U.S. 602 (1971), the United States Supreme Court set forth a
three-part test to apply in Establishment Clause cases. 9 To determine whether government
conduct violates the Establishment Clause under Lemon, courts consider (1) whether the conduct
has a secular purpose, (2) whether the conduct's principal or primary effect is one that neither
advances nor inhibits religion, and (3) whether the conduct fosters an excessive government
entanglement with religion. Hanover School District, 626 F .3d at 9. 10 Government conduct
violates the Establishment Clause if it fails to satisfy any of the Lemon prongs. Edwards v.
Aguillard, 482 U.S. 578, 583 (1987).
"The secular purpose prong of Lemon requires [the Court] to determine whether the
predominant purpose of the practice in question is secular." Weisman, 908 F.2d at 1094, affd,
505 U.S. 577 (1992); see also McCreary, 545 U.S. 844; ACLU ofKentucky v. Mercer County,
Kentucky, 432 F.3d 624, 630 n.5 (6th Cir. 2005). "The eyes that look to purpose belong to an
'objective observer"' and require no "judicial psychoanalysis .... " McCreary, 545 U.S. at 862.
The purpose test is "rarely ... determinative" in Establishment Clause challenges because
"government does not generally act unconstitutionally, with the predominant purpose of

9

Lemon bas not escaped criticism. See generally Hanover School District, 626 F.3d at 9 n.16 ("[a]lthougb
the Lemon analysis bas been often criticized .. the [Supreme] Court bas never expressly rejected it ...").
10

Some courts suggest that the second and third prongs of the Lemon test have been combined. See Bader
v. Wren, 532 F. Supp. 2d 308, 313 (D.N.H. 2008) (second and third factors "fused into one"). Other courts describe
the two factors as being "link[ed]," Skoros v. City ofNew York, 437 F.3d 1, 18 (2d Cir. 2006), or "often
interrelated." Midrasb Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1240 n.19 (11th Cir. 2004). The third
prong .of the Lemon test was "not at issue" in Hanover, howe:ver. the Hanover court listed the entanglement prong_ as
a separate factor of the Lemon test. Hanover School District 626 F.3d at 9. This Court does not wish to further
contribute to the confusion surrounding Establishment Clause jurisprudence and chooses the clearer route for the
reader; thus the Court will perform a separate analysis under all three of the Lemon prongs. See Ahlquist, _ F.
Supp. 2d at _ _, 2012 WL 89965 at *13 (performing a separate analysis under all three prongs).

17

advancing religion." Id. at 859, 863 (internal quotation marks and citation omitted). In those
instances where the United States Supreme Court has found an illegitimate purpose, "openly
available data supported a commonsense conclusion that a religious objective permeated the
government's action." Id. at 863 (emphasis added).
Plaintiffs argue that the City has violated the Establishment Clause by preferentially
allocating permits to religious schools. Plaintiffs aver that the manner in which the City permits
fields has both the purpose and effect of impermissibly aiding religious schools. The record,
however, does not support Plaintiffs claim of preferential allocation. The City's permitting
policies give first preference to the scheduling of public school games, thus both public high
school and junior high school games are permitted first and take precedence over the permitting
of private school games. Because Tolman and SRA play their home football games at Pariseau
Field, if there is a conflict in the scheduling of a game, Tolman, the public school, takes
precedence over SRA, the private school, and SRA has to reschedule its game. Likewise, in
2009, Keough had to compromise its request for McKinnon/Alves Field 3 when the City gave
first preference to the scheduling of public junior high and high school soccer games on Field 3.
The public school preference, however, goes beyond the scheduling of games. For example,
Slater receives the permit to hold soccer practice at Veteran's Park and Keough can only use the
field for soccer practice when Slater is not using it. Although SRA had exclusive use of O'Brien
Field prior to 2008 for football practice, for the past four years SRA has not had exclusive use of
O'Brien Field; in both 2008 and 2011 Jenks received the permit for O'Brien.
-· ·- The-court·need not complicate a simple analysis: the· City's permitting policies········ _.
implement the clearly secular purpose of allocating limited game and practice field space to all
18

junior high and high school students within the City. In Mueller v. Allen, 463 U.S. 388 (1983),
the United States Supreme Court upheld a state statute that allowed taxpayers to deduct expenses
incurred in providing tuition, textbooks and transportation for their children attending elementary
and secondary schools. The Mueller Court stressed that the deduction was available to "all
parents- whether their children attend public school or private ...." Id. at 398 (emphasis in
original). In the matter before this Court, "the class of beneficiaries include[s] all [junior high
and high] schoolchildren, those in publlc as well as those in private schools." Id. (internal
quotation marks and citation omitted). This is certainly not the case where the record supports a
"commonsense conclusion that a religious objective permeated the government's action."
McCreary, 545 U.S. at 863 (emphasis added). The City's permitting policies have a predominant
secular purpose.
Plaintiffs argue that the City's permitting policies impermissibly aid Catholic schools. 11
Under the second prong of Lemon, the government's conduct cannot have the "principal or
primary effect of endorsing" religion. Boyaiiru1, 212 F .3d at 6 (internal quotation marks and
citation omitted). For government conduct "to have forbidden 'effects' under Lemon, it must be
fair to say that the government itself has advanced religion through its own activities and
influence." Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day
Saints v. Amos, 483 U.S. 327, 337 (1987) (emphasis in original).
In determining effect, the Court must consider the context and circumstances of the
11

In essence, Plaintiffs argue that because the only private schools that benefit from the City's permitting
.... policies are Roman Catholic, the City has.violated the Establishment.Clause. Plaintiffs' argument ignores the_.
practical reality of the situation: the record reflects that the only private schools in the City are Roman Catholic.
Consequently, any benefit granted to all school children in the City could only benefit one type of private school, a
Catholic school. Other than Plaintiffs' conclusory argument, there is nothing in the record to suggest that the City
would not allow other private schools (if there were any in the City) to participate in the permitting process.

19

conduct. Hanover School District, 626 F.3d at 10. Here, Plaintiffs challenge the City's athletic
field permitting policies. The athletic events at the core of this matter, mainly football and soccer
games and practices, are wholly secular in nature and convey no religious message. There is no
evidence that the fields are used for anything other than a purely secular purpose. In fact, at oral
argument on the motion for summary judgment, Plaintiffs conceded that the athletic activities at
the heart of this matter are purely secular. The context and circumstances of the conduct promote
no religious message.
Plaintiffs argue that the City has granted religious schools field space at the expense of
public schools, thus assisting and endorsing the Catholic religion. The record, however, does not
support Plaintiffs' assertion. The Supreme Court has consistently rejected the premise that
conduct which in some manner aids an institution with a religious affiliation violates the
Establishment Clause. See Mueller, 463 U.S. at 393. It is "well-established" that a state may
reimburse parents for expenses associated with transporting their children to and from school and
that a state may loan secular textbooks to all schoolchildren within the state. Id. Some benefit
flowing from the government to religion is permissible, as "not every [practice] that confers an
indirect, remote or incidental benefit upon [religion] is, for that reason alone, constitutionally
invalid." Lynch, 465 U.S. at 683 (internal quotation marks and citation omitted).
The City's conduct makes City athletic facilities available to all students attending junior
high and high schools in the City. Ownership of the facilities remains with the City and no funds
are furnished to religious schools. See Board of Education of Central School District No. 1 v.
'Allen, 392 U.S: 236;· 243:.:44 (1968). Access tO" athletic facilities is "separate·and . ;-: · · -- · ···-·· ----- ··-· indisputably marked off :from ... religious function .... " Everson v. Board of Education of

20

Ewing TP., 330 U.S. 1, 18 (1947). "As with the public provision of police and fire protection,
sewage facilities, and streets and sidewalks [access to athletic facilities is] of some value to the
religious school, but [is] nevertheless not such support of a religious institution as to be a
prohibited establishment of religion within the meaning ofthe First Amendment." Allen, 392
U.S. at 242. The City's permitting policies are "free of religious trappings" and do not have the
principal or primary effect of advancing religion. McCarthy v. Hornbeck 590 F. Supp. 936, 942
(D. Md. 1984).

Lemon's third prong requires that government conduct "avoid excessive governrrient
entanglement with religion." Ahlquist,_ F. Supp. 2d at _ _, 2012 WL 89965 at *12 (internal
quotation marks and citation omitted). "Entanglement must be 'excessive' before it runs afoul of
the Establishment Clause." Agostini v. Felton, 521 U.S. 203, 233 (1997) (emphasis added). To
"assess entanglement, [the United States Supreme Court] look[s] to the character and purposes of
the institutions that are benefited, the nature of the aid that the State provides, and the resulting
relationship between the government and religious authority." ld. at 232 (internal quotation
marks and citation omitted). Courts also consider whether the conduct (1) requires "pervasive
monitoring by public authorities" to protect against religious inculcation; (2) requires
"administrative cooperation" between the government and religious schools; and (3) creates
"political divisiveness." ld. at 233 (internal quotation marks and citation omitted). The last two
considerations, however, are insufficient by themselves to create excessive entanglement. ld. In
the fmal analysis, excessive entanglement requires more than mere interaction between church
and state:- ld:While it is obvious that the private schools that benefit from the City's permitting policies
21

are sectarian, the nature of the benefit is wholly secular and there is no "relationship" between
the City and religious authority. The permitting process requires minimal administrative
cooperation between the City and the religious schools. The interaction is limited to the
inevitable association necessary to request permits; that is, purely "ministerial or mechanical"
tasks wholly removed from religious matters. Members of Jamestown School Committee v.
Schmidt, 699 F.2d 1, 12 (1st Cir. 1983). This ministerial interaction certainly is not the
excessive entanglement with religion that the Establishment Clause prohibits.

B. The Endorsement Analysis
Under the "endorsement analysis, courts must consider whether the challenged
governmental action has the purpose or effect of endorsing, favoring, or promoting religion."
Hanover School District, 626 F.3d at 10. The Establishment Clause prohibits government from
"appearing to take a position on questions of religious belief' or "making adherence to a religion
relevant in any way to a person's standing in the political community." Id. (internal quotation
marks and citation omitted). A "practice in which the state is involved may not sendO the
ancillary message to members of the audience who are nonadherents that they are outsiders, not

full members of the political community, and an accompanying message to adherents that they
are insiders, favored members of the political community." Id. (internal quotation marks and
citation omitted).
Whether the City's conduct is or is not constitutional "does not tum on the subjective
feelings" of Plaintiffs. Id. at 11 (emphasis in original). In the endorsement analysis, the court
assumes the viewpoint of an "objective observer acquainted" with the situation. Id. (internal ·

22

quotation marks and citation omitted). 12 In essence, the analysis is distilled to whether a
reasonable observer, undertaking an objective inquiry, would conclude that the City's actions
have the effect 0f endorsing religion. ld. Thus, the Court is not required to ask
whether there is any person who could fmd an endorsement of religion, whether
some people may be offended by the [conduct], or whether some reasonable
person might think [the City] endorses religion. Rather, [the Court] considers
whether a reasonable observer ... aware of the history and context of the
community and forum in which the [challenged conduct occurs] would understand
it to endorse religion or ... one religion over another.
Skoros, 437 F.3d at 30 (emphasis in original and emphasis added) (internal quotation marks and
citations omitted.)
This Court's analysis turns on how a "reasonable and objective observer, fully aware of
the background and circumstances," would view the City's permitting procedures. Ahlquist,_
F. Supp. 2d at _ _, 2012 WL 89965 at *14. There is no evidence that the fields are used for
anything other than a purely secular purpose. The sectarian school students are receiving a
benefit available to all junior high and high school students in the City. Public schools receive
preferential assignments for all games. The Court concludes that a reasonable observer aware of
the relevant circumstances and context of the City's conduct would not perceive a message of
governmental endorsement or sponsorship of religion. 13
V. Equal Protection
Plaintiffs claim that the City's permitting policies violate Equal Protection because City

12

"Because it makes no difference to the outcome, [the_Court]need not.[mull] the nuances of which
observer is at play: for instance, whether the relevant observer is any adult, the parent, the student, the mature student
or the immature student." Hanover School District, 626 F.3d at 11 n.19.
13

Plaintiffs make no claim of coercion. Consequently, the Court need not perform a coercion analysis.

23

officials have unfettered discretion to grant or deny permits. 14 Plaintiffs do not develop their
equal protection argument. 15 "[I]ssues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived." United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990).
VI. Conclusion
Plaintiffs have failed to carry their burden of proving that the City has offended
Constitutional protections. For the reasons set forth, the Clerk is directed to enter judgment in
favor of Defendants.

SO ORDERED.

Is/ Mary M. Lisi
MaryM. Lisi
Chief United States District Judge
May4, 2012

14

Plaintiffs allege that the City has violated the Equal Protection Clause of the Fifth and Fourteenth
Amendments. The Court's approach to a Fifth Amendment Equal Protection claim is the same as the approach to a
Fourteenth Amendment Equal Protection Claim. United States v. Neto, 659 F.3d 194, 201 n.7 (1st Cir. 2011).
15

At the hearing on the motion for summary judgment the Court informed Plaintiffs that their papers did not
include a well-developed Equal Protection argument. Plaintiffs ignore the Court's warning at their own peril.
Plaintiffs "claiming an equal protection violation must first identify and relate specific instances where persons
_____ _ ___ . __
situated similarly.. in all.relevant.aspects were treated differently, instances which have the capacity_to demonstrate. _____ ... _
that [P]laintiffs were singled out for unlawful oppression." Ayala-Sepulveda v. Municipality of San German, 671
F.3d 24, 32 (1st Cir. 2012) (emphasis in original) (internal quotation marks and citation omitted). A similarly
situated person is one who is roughly equivalent to the plaintiff in all relevant respects. Clark v. Boscher, 514 F.3d
107 (1st Cir. 2008)

24