Smith, et al v. Jefferson Cty School, et al
Filing
131
ORDER denying (117 in case 3:03-cv-00593 and 78 in case 3:04-cv-00275) Defendants' Motion for Summary Judgment. Signed by District Judge Thomas W Phillips on February 21, 2013. Associated Cases: 3:03-cv-00593, 3:04-cv-00275 (AYB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
DAVID KUCERA and VICKIE F. FORGETY, )
)
Plaintiffs,
)
)
v.
)
)
JEFFERSON COUNTY BOARD OF
)
SCHOOL COMMISSIONERS, et al.,
)
)
Defendants.
)
No. 3:03-cv-593
(Phillips)
ORDER
I.
Introduction
This matter comes before the Court concerning the Defendants’ Motion for Summary
Judgment. [Doc. 117 & 78]. For the reasons that will follow, the Defendants’ Motion will be
DENIED.
II.
Statement of the Facts
For the 2002-2003 school year, Plaintiffs Vickie F. Forgety (“Forgety”), and David
Kucera (“Kucera”) were employed at the Jefferson County Alternative School. Forgety was a
tenured teacher and principle for the alternative school, and Kucera was a non-tenured teacher
with a contract for the 2002-2003 school year.
On June 26, 2003, the Jefferson County Board of Education (“Board”) met in special
-1-
session, and through their action closed the alternative school allegedly due to budgetary
concerns. Concurrently, plaintiffs’ positions were abolished by this action, and the plaintiffs
were thus dismissed as defined by Tenn. Code Ann. § 49-5-511(b). Forgety rejected two
teaching positions; requested that her name be placed on the “preferred rehire list” for an
administrative or principal position only; 1 drew unemployment for seven months; and ultimately
took the principal position in May of 2004 at New Market Elementary School. Kucera did not
continue employment with any school, but went back to a former job at Mountain View.
On or about July 10, 2003, the Board acted to contract with former Defendant Kingswood
School, Inc. (“Kingswood”) to provide alternative school services to Jefferson County students
for the 2003-2004 school year.
The Plaintiffs assert that Kingswood is a religious organization and that the Board cannot
contract for alternative school services with a religious organization. The Plaintiffs argue that
delegating the function of running an alternative school to Kingswood violates their First
Amendment rights under the Establishment Clause. The Defendants assert that Kingswood in not
solely a religious institution, but Kingswood maintains two distinct identities—a day program
that provides secular, alternative, educational services and a residential program that imparts
religious teachings.
The Plaintiffs initial complaint argued that, by contracting with Kingswood, the
Defendants violated the teachers’ 1) First Amendment Establishment Clause rights under the
U.S. Constitution and similar rights under article I, section 3 of the Tennessee Constitution; and
2) procedural and substantive due-process rights under the Fourteenth Amendment to the U.S.
1
Forgety never had an entitlement to an administrative position such as principle under the Teacher Tenure Act.
McKenna v. Summer County Board of Education, 574 S.W.2d 527, 530 (Tenn. 1978); Tenn. Code Ann. § 9-5511(b)(3).
-2-
Constitution and article I, section 8 of the Tennessee Constitution. On November 2, 2006 the
Court granted the Defendants’ Motion for Summary Judgment pursuant to a finding by the Court
that the Plaintiffs lacked standing, denied as moot the defendants’ claims of absolute and
qualified immunity, and dismissed the action without prejudice. [Doc. 76]. The Plaintiffs
appealed the Court’s finding to the Sixth Circuit Court of Appeals on December 4, 2006. [Doc.
79]. The Sixth Circuit affirmed the Court’s grant of summary judgment to the Board on the
teachers’ procedural and substantive due-process claims, found that the Board is entitled to
legislative immunity, reversed the Court’s finding that the Plaintiff’s lacked standing to bring
their Establishment Clause claims 2, and remanded this mater back to the Court for further
proceedings. [Doc. 82].
Consequently, the sole matter left for this Court to consider is whether the Board violated
the Establishment Clause of the U.S. Constitution when it contracted with Kingswood to provide
alternative school education for the district.
III.
Summary Judgment Analysis
1.
The Standard
Summary judgment is proper where no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). “The moving party
bears the initial burden of production.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
“After the moving party has met its burden, the burden shifts to the nonmoving party, who must
present some ‘specific facts showing that there is a genuine issue for trial.’” Jakubowski v. Christ
2
The Sixth Circuit found that the Plaintiffs have standing as municipal taxpayers.
-3-
Hosp., Inc., 627 F.3d 195, 200 (6th Cir. 2010 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)).
In evaluating a motion for summary judgment, the court must construe all reasonable
inferences in favor of the nonmoving party. Hamilton v. Starcom Mediavest Grp., Inc., 522 F.3d
623, 627 (6th Cir. 2008) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986)). The central issue is “whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party must prevail as a matter
of law. Anderson, 477 U.S. at 251-52. “[I]f the nonmoving party fails to make a sufficient
showing on an essential element of the case with respect to which the nonmovant has the burden,
the moving party is entitled to summary judgment as a matter of law.” Palmer v. Cacioppo, 429
Fed. App’x 491, 495 (6th Cir. 2011) (quoting Thompson v. Ashe, 250 F.3d 399, 405 (6th Cir.
2001)).
Here, as the Defendants filed the Motion for Summary Judgment, the Court will construe
all reasonable inferences in favor of the Plaintiffs; furthermore, the Defendants will need to
prove that there are no genuine issues of material fact and that the Defendants are entitled to
judgment as a matter of law. Id.
2.
Various Tests
The seminal Supreme Court case discussing the Establishment Clause is Lemon v.
Kurtzman, wherein the Supreme Court reasoned that the “three main evils against which the
Establishment Clause was intended to afford protection are sponsorship, financial support, and
active involvement of the sovereign in religious activity.” 403 U.S. 602 (U.S. 1971). Even so, the
-4-
Court does not call for total separation between church and state, for that is not possible in an
absolute sense and some relationship between government and religious organizations is
inevitable. Id.
When interpreting the Establishment Clause, the federal courts demonstrate a low degree
of homogeneity. In Utah Highway Patrol Ass’n v. Am. Atheists, Inc., Justice Clarence Thomas
writes a pointed critique of the inconsistency with which the Establishment Clause is scrutinized;
Justice Thomas writes,
Unsurprisingly, the Tenth Circuit relied on its own precedent, rather than on any of this
Court's cases, when it selected the Lemon/endorsement test as its governing analysis. Our
jurisprudence provides no principled basis by which a lower court could discern whether
Lemon/endorsement, or some other test, should apply in Establishment Clause cases.
Some of our cases have simply ignored the Lemon or Lemon/endorsement formulations.
See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 122 S. Ct. 2460, 153 L. Ed. 2d 604
(2002); Good News Club v. Milford Central School, 533 U.S. 98, 121 S. Ct. 2093, 150 L.
Ed. 2d 151 (2001); Marsh v. Chambers, 463 U.S. 783, 103 S. Ct. 3330, 77 L. Ed. 2d 1019
(1983). Other decisions have indicated that the Lemon/endorsement test is useful, but not
binding. Lynch v. Donnelly, 465 U.S. 668, 679, 104 S. Ct. 1355, 79 L. Ed. 2d 604 (1984)
(despite Lemon's usefulness, we are "unwillin[g] to be confined to any single test or
criterion in this sensitive area"); Hunt v. McNair, 413 U.S. 734, 741, 93 S. Ct. 2868, 37
L. Ed. 2d 923 (1973) (Lemon provides "no more than helpful signposts"). Most recently,
in Van Orden, 545 U.S. 677, 125 S. Ct. 2854, 162 L. Ed. 2d 607, a majority of the Court
declined to apply the Lemon/endorsement test in upholding a Ten Commandments
monument located on the grounds of a state capitol. Yet in another case decided the same
day, McCreary County v. American Civil Liberties Union of Ky., 545 U.S. 844, 859-866,
125 S. Ct. 2722, 162 L. Ed. 2d 729 (2005), the Court selected the Lemon/endorsement
test with nary a word of explanation and then declared a display of the Ten
Commandments in a courthouse to be unconstitutional. See also Van Orden, supra, at
692, 125 S. Ct. 2854, 162 L. Ed. 2d 607 (SCALIA, J., concurring) ("I join the opinion of
THE CHIEF JUSTICE because I think it accurately reflects our current Establishment
Clause jurisprudence--or at least the Establishment Clause jurisprudence we currently
apply some of the time"). Thus, the Lemon/endorsement test continues to "stal[k] our
Establishment Clause jurisprudence" like "some ghoul in a late-night horror movie that
repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and
buried." Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 398,
113 S. Ct. 2141, 124 L. Ed. 2d 352 (1993) (SCALIA, J., concurring in judgment)
-5-
132S. Ct. 12, 14-15 (2011) (Thomas, C, dissenting). Notwithstanding the apparent opacity of this
subject, this Court will apply a version of the Lemon Test that has been most recently sanctioned
by the Sixth Circuit.
The Sixth Circuit, as recently as August 1, 2012, reaffirmed its support for a form of the
Lemon Test, writing that, “Although it has lost some of its luster, the test from Lemon….as
refined by later Supreme Court opinions, 3 guides our Establishment Clause analysis.” Satawa v.
Macomb County Rd. Comm'n, 689 F.3d 506, 526 (6th Cir. Mich. 2012). In Satawa, the court
writes a slightly different version of the test. “Under today's Lemon Test, we ask: (1) whether the
government's predominant purpose was secular; (2) whether the government action has the
purpose or effect of endorsing religion, ibid., and (3) whether the action fosters an excessive
entanglement with religion. If we cannot answer ‘yes’ to the first question and ‘no’ to the second
two, the challenged action violates the Establishment Clause.” (Failure under any of Lemon's
three prongs deems governmental action violative of the Establishment Clause.) (internal
quotation marks and citations omitted)). Satawa v. Macomb County Rd. Comm'n, 689 F.3d 506,
526 (6th Cir. Mich. 2012); ACLU of Ohio Found., Inc. v. Ashbrook, 375 F.3d 484, 490 (6th Cir.
2004) (quoting Lemon, 403 U.S. at 612-13). See also McCreary Cnty. v. ACLU of KY., 545 U.S.
844, 859 (2005); Stone v. Graham, 449 U.S. 39, 40, 101 S. Ct. 192, 66 L. Ed. 2d 199 (1980);
ACLU v. McCreary Cnty., 607 F.3d 439, 445-46 (6th Cir. 2010) ("McCreary [***9] II"); ACLU
v. Mercer Cnty., 432 F.3d 624, 635 (6th Cir. 2005); ACLU v. McCreary Cnty., 354 F.3d 438, 446
(6th Cir. 2003) [**15] ("McCreary I"); Adland v. Russ, 307 F.3d 471, 478 (6th Cir. 2002);
3
The difficulty of applying Satawa, and many other cases, is that the phrase “as refined by later Supreme Court
opinions” assumes that there has been coherent evolution of the Lemon Test. To the contrary, this Court agrees with
Justices Thomas and Scalia that Establishment Clause jurisprudence has been haphazard.
-6-
Baker v. Adams Cnty., 310 F.3d 927, 929 (6th Cir. 2002); Washegesic v. Bloomingdale Pub.
Sch., 33 F.3d 679, 681-82 (6th Cir. 1994).
Since Satawa is the most recent form that the Lemon Test has taken, the Court will use
the contemporary language of Satawa in favor of the language used in the above-cited antecedent
cases, including most notably, Lemon itself. 4 Consequently, the question before the Court in the
instant matter is: (1) whether the Board’s predominant purpose was secular; (2) whether the
contract with Kingswood has the purpose or effect of endorsing religion; and, (3) whether
contracting with Kingswood fosters an excessive entanglement with religion. As this matter is
presently at the summary judgment stage, the Court shall construe all controverted facts in favor
of the nonmovant, and will grant the Defendants’ Motion only if there exists no genuine issues of
material fact.
3.
Analysis
The First Amendment to the United States Constitution provides that “Congress shall
make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”
U.S. Const. amend. I. This Amendment has been made applicable to the states by passage of the
Fourteenth Amendment. The Defendants request that the Court grant summary judgment
asserting that “Kingswood is a private, non-profit organization which provides two distinct
services—a non-sectarian, alternative educational service (‘day program’) for suspended or
expelled students and a residential placement service (‘residential program’) for displaced,
neglected, abused, and/or addicted children.” [Doc. 118 at 4]. The Plaintiffs central argument
slightly shifts the discussion of entanglement to a discussion of improper delegation. [Doc. 86].
4
The actual test used in Lemon was “First the statute must have a secular legislative purpose; second, its principal or
primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an
excessive government entanglement with religion." Lemon, 403 U.S. at 612-13
-7-
The Plaintiffs argue that governmental delegation to a religious entity violates the Establishment
Clause, even if there has been no religious teaching. [Doc. 86 at 5].
The Plaintiffs further assert that there is no meaningful distinction between Kingswood’s
day and residential programs. “the Defendant concedes that it delegated the administration of its
Alternative School to Kingswood Academy. It is likewise undisputed that Kingswood Academy
is a religious institution with a Christian mission.” [Doc 86 at 8]. In support of this charge, the
depositions of Chuck Cagle and Darrell M. Helton are cited. Id. In Mr. Helton’s deposition, he is
asked in reference to a fundraising letter sent by Kingswood to potential donors in 2006, “And in
it, let me just paraphrase this, Kingswood School is unique because we offer our children a
Christian environment of love and encouragement, is that correct?” Helton Depo., p. 9. Mr.
Helton responded affirmatively. Id. Later in the conversation, the questioner asks “And then
down in the last paragraph it says ‘we are a non-profit faith based ministry that operates on
private and corporate contributions.’ Is that correct?” Id. Mr. Helton responded, “That’s correct.”
Id. The deposition of Mr. Cagle asks “Are you aware that Kingsowood School is a Christian
academy?” Mr. Cagle replies, “Yes.” Cagle Depo., p. 27.
While the Court acknowledges that the portions of the depositions cited by the Plaintiff
do not establish that Kingswood is solely a religious entity, or that Kingswood’s residential and
day programs are not meaningfully distinct; nevertheless, the Plaintiffs have raised at least one
genuine issue of material fact; that is, whether Kingswood’s day and residential programs are
meaningfully distinct as to avoid the third, or excessive entanglement, prong of the Lemon Test.
The nature of the day program has been properly called into question. It is admitted by all
parties that the residential program maintains a religious character. From examining the record, it
-8-
is unclear whether the day program is actually a distinct enterprise. This Court, for the purposes
of summary judgment, will resolve all facts in favor of the nonmovant. Consequently, if the
Court accepts that there is no meaningful distinction between the admittedly religious residential
program and the day program 5, then the delegation 6 of governmental function to, and excessive
entanglement with, Kingswood Academy would be an unlawful violation of the Establishment
Clause as measured by the third 7 prong of the Lemon Test.
VII.
Conclusion
For the reasons stated herein, Defendants’ Motion for Summary Judgment [Doc. 117 &
78] is DENIED.
IT IS SO ORDERED.
ENTER:
s/ Thomas W. Phillips
United States District Judge
5
There is ample evidence on the record to support this assumption.
In a brief submitted to the Court amicus curiae, the Tennessee Education Association argues that “The Contract
between the Board and Kingswood was entered into by the Board without legislative authorization, without
authorization from the State Board of Education, and in violation of the plenary power over public education granted
to the state and the General Assembly under Article XI, Section 12 of the Tennessee Constitution and Tenn. Code
Ann. §§ 49-1-101 and 49-1-102.” Amicus Curiae Brief by Richard L. Colbert on behalf of Tennessee Education
Association at 3, Forgety v. Jefferson County School Board Commissioners et. al., 3:04-cv-275; 3:03-cv-593, Doc.
72.
7
It is possible that the relationship between the Board and Kingswood also violates the second prong of the Lemon
Test; however, this line of argument was not adequately briefed by either party.
6
-9-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?