Standing in an Article III court can only be obtained by a plaintiff who files a complaint that demonstrates compliance with both constitutional and prudential requirements. See Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471, 102 S. Ct. 752, 758, 70 L. Ed. 2d 700 (1982). To meet the constitutional requirements, a party must "'show that [they] personally have suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,' . . . and that the injury 'fairly can be traced to the challenged action' and 'is likely to be redressed by a favorable decision[.]'" Id. at 472, 102 S. Ct. at 758 (citations omitted). Prudential principles also require that the plaintiff assert his own legal rights, the grievance be specific to plaintiff and not generalized, and the complaint fall within "the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Id. at 474-75, 102 S. Ct. at 760 (citing Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S. Ct. 827, 830, 25 L. Ed. 2d 184 (1970) (footnote omitted)).
C.H. has instituted this action in both her capacity as guardian ad litem of Z.H., and in an individual capacity. However, the right asserted against and relief requested from Commissioner Klagholz -- adoption of policy to prevent future violations of students' constitutional rights -- is not her own. As a result, C.H. does have standing to proceed with the suit against Commissioner Klagholz in her capacity as Z.H.'s guardian ad litem, but not in an individual capacity.
4. Abstention Doctrine
The State defendants urge this court to abstain from hearing the claims brought against them. Under the doctrine announced in Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), federal courts, based upon principles of comity, are required to abstain from hearing actions similar to those filed in state courts "in which important state interests are implicated, so long as the federal claimant has an opportunity to raise any constitutional claims [in the state proceeding.]" O'Neill v. City of Philadelphia, 32 F.3d 785, 789 (3d Cir. 1994), cert. denied, 514 U.S. 1015, 115 S. Ct. 1355, 131 L. Ed. 2d 213 (1995); see also Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 107 S. Ct. 1519, 95 L. Ed. 2d 1 (1987) (applying Younger in the civil context); Middlesex County Ethics Commission v. Garden State Bar Association, 457 U.S. 423, 102 S. Ct. 2515, 73 L. Ed. 2d 116 (1982) (applying Younger to administrative proceedings).
A party arguing in favor of Younger abstention must show: (1) that there are ongoing state judicial-type proceedings involving the federal claimant; (2) which implicate important state interests; and (3) which provide an adequate opportunity to present the federal claims. Middlesex County, 457 U.S. at 432, 102 S. Ct. at 2521. However, parallel actions may nonetheless be maintained "so long as the plaintiff does not seek relief in the federal court that would interfere with the state judicial process." Marks v. Stinson, 19 F.3d 873, 885 (3d Cir. 1994), cert. denied, 513 U.S. 1111, 115 S. Ct. 901, 130 L. Ed. 2d 785 (1995). In these circumstances, "the principles of comity underlying Younger abstention are not implicated." Gwynedd Properties, Inc. v. Lower Gwynedd Township, 970 F.2d 1195, 1201 (3d Cir. 1992).
The State defendants argue that the complaint should be dismissed because plaintiffs have a state administrative avenue available to seek redress, and because it is clear that the complaint implicates important state interests (plaintiffs are seeking the statewide adoption of policies which would allow the reading of secular-based materials in the public schools). However, there are no ongoing judicial-type proceedings which would implicate the principles of comity necessary for abstention under Younger. Contrary to the State defendant's assertion, the mere ability of a plaintiff to seek redress in an alternative forum is not sufficient.
Under the doctrine announced in Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098, 87 L. Ed. 1424 (1943),
where timely and adequate state-court review is available, a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies: (1) when there are "difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar"; or (2) where the "exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern."
New Orleans Public Service, Inc. v. Council of New Orleans, (NOPSI), 491 U.S. 350, 361, 109 S. Ct. 2506, 2514, 105 L. Ed. 2d 298 (1989). "The core of the Burford abstention doctrine . . . is that federal courts should avoid needless disruption of an important and complex state regulatory scheme." Lac D'Amiante du Quebec v. American Home Assurance Co., 864 F.2d 1033, 1038 (3d Cir. 1988); see also United Services Automobile Association v. Muir, 792 F.2d 356, 364 (3d Cir. 1986) ("Generally, Burford abstention is justified where a complex regulatory scheme is administered by a specialized state tribunal having exclusive jurisdiction."), cert. denied, 479 U.S. 1031, 107 S. Ct. 875, 93 L. Ed. 2d 830 (1987). Burford abstention is inapplicable in cases where such a regulatory scheme is lacking. See Felmeister v. Office of Attorney Ethics, 856 F.2d 529, 534-35 (3d Cir. 1988); Muir, 792 F.2d at 365.
The State defendants claim that the system of public education in New Jersey is "a highly regulated and complex administrative system" that would necessitate abstention under Burford. State Defs.' Br. at 24. However, while the Department of Education is a state-run system, the defendants have failed to show how it qualifies as a complex regulatory scheme. Significantly, the scenarios to which Burford normally applies concern far more complicated administrative and regulatory systems. See, e.g., General Glass Industries Corp. v. Monsour Medical Foundation, 973 F.2d 197, 201 (3d Cir. 1992) ("Pennsylvania has expressed its strong state interest in regulating insurance companies [liquidation procedures] through a complex regulatory scheme, known as the Insurance Department Act"); Lac D'Amiante du Quebec, 864 F.2d at 1045 (holding that New York's regulation of insolvent insurance companies was a detailed, complex scheme"); but see Felmeister v. Office of Attorney Ethics, 856 F.2d 529, 534 (3d Cir. 1988) (holding that Committee on Attorney Advertising that was reviewed by New Jersey Supreme Court did not present the "complex, technical, regulatory scheme to which the Burford abstention doctrine usually is applied.").
It is significant that the schemes that have traditionally compelled abstention under Burford, which were created and administered by complex statutes, are noticeably different from New Jersey's public school system. Moreover, "while Burford is concerned with protecting complex state administrative processes from undue federal interference, it does not require abstention whenever there exists such a process, or even in all cases where there is a 'potential for conflict with state regulatory law or policy.'" Motor Club of America v. Weatherford, 841 F. Supp. 610 (D.N.J. 1994) (quoting NOPSI, 491 U.S. 350, 362, 109 S. Ct. 2506, 105 L. Ed. 2d 298 (1989). For the above reasons, abstention under Burford is inappropriate.
Finally, the State defendants argue that plaintiffs' claims are not ripe for judicial review. According to the State defendants, the claim for relief is not appropriate for review as it "is unquestionably based on a contingency, because the federal claims they seek to assert arise only if it is determined that students have the right to present religious views in school assignments, and adoption of a rule or policy by the State defendants guaranteeing this right is necessary."
State Defs.' Br. at 25. They claim that this contingency renders the plaintiffs' potential remedy too remote and therefore beyond this court's jurisdiction.
"Ripeness prevents courts from 'entangling themselves in abstract disagreements.'" Presbytery of New Jersey of the Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1462 (3d Cir. 1994), cert. denied, U.S. , 117 S. Ct. 1334, 137 L. Ed. 2d 494 (1997) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148, 87 S. Ct. 1507, 1515, 18 L. Ed. 2d 681 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 105, 97 S. Ct. 980, 984, 51 L. Ed. 2d 192 (1977), and Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, 461 U.S. 190, 201, 103 S. Ct. 1713, 1720, 75 L. Ed. 2d 752 (1983)). "A federal court's jurisdiction therefore can be invoked only when the plaintiff himself has suffered 'some threatened or actual injury resulting from the putatively illegal action . . . .'" Presbytery of New Jersey, 40 F.3d at 1463 (quoting Warth v. Seldin, 422 U.S. 490, 499, 95 S. Ct. 2197, 2205, 45 L. Ed. 2d 343 (1975) (citation omitted)). Thus, the inquiry focuses on whether the plaintiffs have suffered some type of cognizable harm from the defendants' actions.
In this case, the plaintiffs have sufficiently alleged an injury capable of redress. They assert that the policies and actions of the defendants have detrimentally affected them, and not that there exists the potential for future harm. Unlike Armstrong World Industries, Inc. v. Adams, 961 F.2d 405 (3d Cir. 1992)
and Presbytery of New Jersey, where the plaintiffs sought a declaratory judgment and/or an injunction against a statute not yet enforced, the plaintiffs here have sought redress as a result of the enforcement of allegedly unconstitutional policies and procedures. Consequently, the plaintiffs' claim will not be dismissed as unripe.
C. Merits of the Claims
1. Failure to State a Claim Under § 1983
The State defendants first argue that the complaint should be dismissed because it does not state a claim under 42 U.S.C. § 1983. That section provides, in pertinent part, that
every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
42 U.S.C. § 1983. Although the complaint clearly alleges deprivation of rights secured by the Constitution -- Free Exercise of Religion -- the State defendants claim that they were not acting under color of state law.
To determine if a challenged action was performed "under color of law," it must be determined "whether the state was sufficiently involved to treat that decisive conduct as state action."
McKeesport Hospital v. Accreditation Council for Graduate Medical Education, 24 F.3d 519, 524 (3d Cir. 1994). Here, the Medford defendants were employed by an arm of the state and worked within a state-funded school system. Obviously, the State defendants were employees of the state and their conduct was directly attributable to their employer. For the purposes of this motion, the plaintiffs have sufficiently alleged deprivations caused by the State defendants that, if true, could entitle the plaintiffs to relief. Under the present circumstances, both the Medford and the State defendants clearly acted under the color of state law.
2. First Amendment: Freedom of Expression
The plaintiffs claim that the Medford defendants denied Z.H. his constitutional right to freedom of expression when they changed the location of Z.H.'s poster of Jesus and when they "arbitrarily and unreasonably prohibit[ed] him from reading his proposed story to his classmates." Pls.' Br. at 6. In analyzing this claim, like all free speech claims, the first inquiry must be whether or not the activity was conducted in a public forum. This issue is decided easily, as the plaintiffs do not offer any evidence or deny that Z.H.'s school or classroom were not public forums, and this conclusion is consistent with case law.
Speech uttered in a non-public forum may be subject to time, place and manner regulations, and these regulations must be viewpoint-neutral and reasonably related to a legitimate governmental purpose.
In the context of the classroom, the inquiry is more specific: educators may "exercise editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns." Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 273, 108 S. Ct. 562, 571, 98 L. Ed. 2d 592 (1988).
The plaintiffs concede that this is the applicable standard, however, they contend that there were no legitimate pedagogical concerns in taking down Z.H.'s poster of Jesus and not allowing Z.H. to read the "Beginner's Bible" to his classmates.
Z.H. had no constitutional right to have the poster of Jesus displayed in any particular location; therefore, relocating the poster to a less conspicuous position on the wall was not a restriction on his speech. Even assuming arguendo that his freedom of speech was impinged, "content-based restrictions on speech need only be 'reasonable in light of the purpose served by the forum and . . . viewpoint neutral.'" Duran v. Nitsche, 780 F. Supp. 1048, 1052 (E.D. Pa. 1991).
The plaintiffs argue that the Medford defendants were not "viewpoint neutral" because they regulated Z.H.'s poster and book on the basis of their religious origin. However, "viewpoint neutral" does not mean that any regulation that touches upon the viewpoint of the speech is prohibited, but rather that regulations must be based solely on pedagogical concerns rather than a particular point of view. See Duran, 780 F. Supp. at 1052 ("In the educational setting, the standard for determining the reasonableness of a content-based restriction on school sponsored expressive activity in a non-public forum is whether the restriction is 'reasonably related to legitimate pedagogical concerns.'" (quoting Hazelwood, 484 U.S. at 273)).
Both incidents -- relocating the poster of Jesus and disallowing Z.H. to read the "Beginner's Bible" to his class -- were reasonably related to legitimate pedagogical concerns. In fact, as the Medford defendants note, if the school had replaced the poster in a more prominent position because it depicted Jesus Christ, or even to counterbalance inferences of religious discrimination, the school could have run afoul of the Establishment Clause. See Washegesic v. Bloomingdale Public Schools, 33 F.3d 679 (6th Cir. 1994) (finding public school's display of portrait of Jesus violated Lemon test and Establishment Clause), cert. denied, 514 U.S. 1095, 115 S. Ct. 1822, 131 L. Ed. 2d 744; see also Roberts v. Madigan, 921 F.2d 1047 (10th Cir. 1990) (holding school's removal of Bible and other religiously oriented books from library and the school's forbidding teacher from reading Bible silently during class hours did not violate Establishment Clause or free speech rights of teacher), cert. denied, 505 U.S. 1218, 112 S. Ct. 3025, 120 L. Ed. 2d 896.
Furthermore, had the Medford defendants allowed Z.H. to read the "Beginner's Bible" to the rest of his first grade classmates, the possibility exists that they could have construed the presentation to be an endorsement of the Bible by the teacher. The plaintiffs note that the story Z.H. chose was fairly innocuous, and claim that "had Plaintiff's book had a different cover and had the characters had names like Joe and Ed, it is beyond issue that the plaintiff would have been allowed to read his story to the class." Pls.' Br. at 13-14. This is precisely true. Z.H. was not allowed to read the book to his classmates during class time because it was The Bible, a religious book that constitutes the very foundation for a number of, but obviously not all, religions.
It is irrelevant that the story had no overt religious theme; the speech was the book itself.
If Z.H.'s teacher were to praise him for completing his reading assignment skillfully, (i.e. by saying something like "very good"), it is not unlikely that a child in first grade could interpret that comment as an endorsement of the story and the book. See Medford Defs.' Br. at 21. Therefore, allowing Z.H. to read the "Beginner's Bible" only to his teacher was a proper accommodation of Z.H.'s right of free expression and the principle of separation of church and state.
3. First Amendment: Establishment Clause
In very strong terms, the plaintiffs claim that the Medford defendants' actions constituted "nothing short of religious cleansing." Pls.' Br. at 13. Moreover, they claim that the defendants have established a "religion of secularism" by their alleged hostility towards religion. The defendants, however, maintain that their actions were not motivated by any prejudice and that their actions were proper under Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971).
To be sure, "[a] proper respect for both the Free Exercise and the Establishment Clauses compels the State to pursue a course of 'neutrality' toward religion, . . . favoring neither one religion over others nor religious adherents collectively over nonadherents." Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687, 696, 114 S. Ct. 2481, 2487, 129 L. Ed. 2d 546 (1994) (internal citations omitted). To determine whether the practice violates the Establishment Clause, the practice must be analyzed under the three-part test elucidated by the United States Supreme Court in Lemon v. Kurtzman.
This test states that "a government practice regarding religion "will not offend 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." American Civil Liberties Union of New Jersey v. Black Horse Pike Regional Board of Education, 84 F.3d 1471, 1483 (3d Cir. 1996) (quoting Lemon, 403 U.S. at 612-13, 91 S. Ct. at 2111).
The Medford defendants concede that the poster was removed and relocated because it had a religious theme. Medford Defs.' Br. at 19. Nonetheless, the defendants' actions neither advanced nor inhibited religion, nor did the defendants create an excessive entanglement with religion. As mentioned above, Z.H. had no constitutional right to have his religious poster displayed prominently in his public school, therefore merely relocating it had no impact on his, or anyone else's religion. Furthermore, the defendants did not create or foster any sort of government involvement with religion by the simple act of relocating the poster.
Neither did prohibiting Z.H. from reading the "Beginner's Bible" to his class violate the Establishment Clause. Z.H.'s teacher properly exercised her editorial control over the students' reading selections to ensure the material was appropriate for their educational level. This obviously concerns more than just determining whether or not the selection was grammatically correct or lewd, but deciding whether or not the themes the selection presented were suitable for a first-grade class. At this age, it is quite reasonable to assume that these children could have been easily confused whether or not Z.H.'s teacher merely let Z.H. read his book, or if she approved of its message. Presenting the book to the teacher for approval was part of the standard procedure of that class activity; consequently, the books that were allowed to be read were those approved of by the teacher. It is likely that some first-grade students would not fully understand all of the reasons why something could be unsuitable for use in a school activity and could instead believe that the books Ms. Oliva allowed to be read were those books that she liked or those with which she personally agreed.
Moreover, the plaintiffs have not shown how Z.H.'s teacher's actions advanced or inhibited religion in any sense. She never did or said anything regarding his faith. On the contrary, she let him read the "Bible" to himself during his free periods. Z.H. was merely forbidden from reading the book to his classmates during school hours, and this did not affect the practice of a tenant of his religion or his religion in general. Finally, no excessive entanglement was created by this act. Accordingly, the Medford defendants did not violate the Establishment Clause.
4. Injunctive Relief against the State Defendants
Plaintiffs demand that the State defendants implement a policy
wherein students may express their religious beliefs in the form of reports, homework, art work and other class work, free of discrimination based on the religious content of their submissions and a policy prohibiting teachers from modifying or excluding religious views from assignments when such religious views would otherwise be germane to the assignment.
Compl. at P 32.
This request is the product of false premises and exemplifies the continuing struggle to find a balance in ensuring students' rights to exercise their religion in our public schools without violating the historic separation of church and state. Public schools are not hostile toward religion. Any student who wishes to say grace over lunch or appeal for divine intervention during a test has that right. Students are also not precluded from expressing their religious views in assignments. Indeed, Z.H. was allowed to make a poster of Jesus, and was also allowed to read his "Beginner's Bible" as part of a school assignment. Furthermore, neither his poster nor his reading selection were altered in any way by his teacher or any other school official. Z.H. was just not permitted to express the religious beliefs contained in his work to his classmates through the medium of the public school. The school did not forbid him from practicing his religion, it merely chose to tread lightly around creating the impression that it endorsed his religious views.
It did so within the boundaries of the constitution.
Religious liberty as guaranteed in the Bill of Rights allows individuals to decide if they want to be religious and, if so, how to practice their religion free from coercion or control. The state defendants should not be asked to involve themselves in religious matters concerning its students. Far from protecting religious freedom, implementing the policy requested would endanger fundamental religious liberties.
For the foregoing reasons the motion of (1) defendants Medford Township Board of Education, Grace Oliva, Gail Pratt, and Patrick Johnson (the "Medford defendants"), and (2) defendants State of New Jersey Department of Education and Leo Klagholz, Commissioner of the State of New Jersey Department of Education (the "State defendants"), for judgment on the pleadings pursuant to FED. R. CIV. P. 12(c) is granted.
An appropriate order will be entered.
JOSEPH H. RODRIGUEZ
Dated: December 30, 1997
For the reasons set forth in this court's Opinion filed even date,
IT IS ORDERED on this 30th day of December, 1997, that the motion of (1) defendants Medford Township Board of Education, Grace Oliva, Gail Pratt, and Patrick Johnson (the "Medford defendants"), and (2) defendants State of New Jersey Department of Education and Leo Klagholz, Commissioner of the State of New Jersey Department of Education (the "State defendants"), for judgment on the pleadings pursuant to FED. R. CIV. P. 12(c) is GRANTED.
JOSEPH H. RODRIGUEZ