The opinion of the court was delivered by: Wolfson, United States District Judge
Presently before the Court are cross-motions for Summary Judgment by (i) Plaintiff, O.T., a student*fn1 at Frenchtown Elementary School, by and through her parents, Robert T. Turton and Maryann Turton, and (ii) by Defendant*fn2, the Frenchtown Elementary School District Board of Education ("the Board"). In addition, the American Civil Liberties Union ("ACLU") of New Jersey and the Department of Justice filed Briefs as Amicus Curiae in support of Plaintiff's Motion for Summary Judgment. Plaintiff contends that the Board violated her constitutional rights when it refused to allow her to perform the song "Awesome God" in an after-hours school-wide talent show. Defendant refutes that contention and argues, further, that allowing Plaintiff to perform "Awesome God" would have amounted to a violation of the Establishment Clause. The Court has considered the moving, opposition and reply papers of the parties, and the briefs of the Amici, and for the reasons stated in the opinion below, Plaintiff's Motion for Summary Judgment is granted and Defendant's Motion for Summary Judgment is denied.
The Frenchtown School District is comprised of a single building housing an elementary school with students ranging from pre-kindergarten through eighth grade. Plaintiff's Statements of Undisputed Material Facts ("Pl's Fact St.") ¶ 1; Defendant's Statement of Undisputed Material Facts ("Def's Fact St.") ¶ 5. Since 2000, Frenchtown Elementary School ("Frenchtown Elementary" or "Frenchtown School") has hosted at least four after-school talent shows in which students from kindergarten through eighth grade, as well as some adults*fn3, were invited to showcase their talents and skills. Id. ¶ 2; id. ¶ 27. The talent shows have featured a wide range of acts including poetry readings, the performance of theatrical works and the performance of songs written by students and musicians including Nirvana, Stevie Nicks, Johnny Cash, LeAnn Rimes and Bon Jovi. Pl's Fact St. ¶ 18.
In 2005, the talent show -- known as "Frenchtown Idol" -- was scheduled to be held on May 20 at 7:00 p.m. in the auditorium of Frenchtown Elementary School. Def's Fact St. ¶ 6. Frenchtown Idol was organized and run by Erica Bruner ("Bruner"), Frenchtown Elementary's music teacher. Id. ¶ 7. Students were invited to choose an act they wished to perform and were required to develop, choreograph and practice their performances at home. Pl's Fact St. ¶¶ 33 & 34. Participation in the talent show was entirely voluntary, and the school did not grade the participants nor give the students credit for taking part in the performance. Id. ¶¶ 35-37.
The Frenchtown School did, however, adopt various guidelines for the show including, in relevant part, the following: "(4) Materials, Costumes, and Acts must be "G-rated" (appropriate for all ages -- nothing revealing, distracting, suggestive, depicting profanity, weapons, alcohol, drugs or illegal substances will be allowed.). . . (7) A copy of song lyrics (for any music used in your act) or skit must be reviewed by Miss Bruner. . . (9) No changes! Once you have been approved by the preview committee, you may not make any changes to your act." Joint Exhibit ("Jt. Ex.") 6. Moreover, all of the acts were subject to the review of a "preview committee" that was comprised of Bruner and two other teachers. Id., ex. 5. Any acts which Bruner or the preview committee felt were questionable were subject to the final approval of Brennan. Pl's Fact St. ¶¶ 38, 40 & 41; Def's Fact St. ¶ 11. In addition, the Frenchtown School was subject to policies enacted by the Board including Policy 6141.2 which provides "that no religious belief or nonbelief shall be promoted in the regular curriculum or in district-sponsored courses, programs or activities and none shall be disparaged." Jt. Ex. 82.
In accordance with school procedure, Plaintiff completed a sign up form proposing to perform the song "Part of Your World" at the talent show. She was scheduled to perform this song for the preview committee on May 9, 2005. However, at the preview, Plaintiff advised Bruner that she had decided to sing "Awesome God" at the talent show instead of her original selection. Bruner, who was familiar with the song, advised Plaintiff that Brennan would have to review the song to ensure that such an overtly religious song was appropriate for a public elementary school. Bruner Dep., 27:17-22; 29:3-6. During her deposition, Bruner admitted that the religious content of Plaintiff's song was the only reason she asked Brennan to review it. Id. 29:3-6. Indeed, Bruner was asked whether "there any other reasons outside of the religious content of the song that you brought it to Joyce's attention?" In response, Bruner answered "No." Id.
On May 10, 2005, Brennan reviewed the lyrics of "Awesome God" and determined that it was inappropriate for the Talent Show because of its "overtly religious message and proselytizing nature." Jt. Ex.3 ¶ 15; Def's Fact. St. ¶ 2.*fn4 Moreover, Brennan noted that "the song is not merely a statement of religious beliefs. Instead, the song is a pronouncement to all about the wisdom, power and magnificence of God, and of the need to follow the teachings of God. . . .In my view, this song is the musical equivalent of a spoken prayer and constitutes a form of proselytizing." Jt. Ex. 3 at ¶¶12,13 &15. Thereafter, Bruner told Plaintiff that she would not be permitted to sing "Awesome God" at the talent show and she provided Plaintiff with two books of songs from which she could select a replacement. Def's Fact St. ¶ 23. Furthermore, Plaintiff's mother ("Mrs. Turton") discussed the rejection of the song with Brennan who suggested that Plaintiff select another song -- even one with religious content -- to perform at the talent show if she so desired. Id. ¶ 25.
In addition, Brennan told Mrs. Turton that she would discuss the issue at the Frenchtown Elementary School Board meeting that was to be held later that evening. Accordinly, Mrs. Turton attended the Board meeting that night and provided the Board with information regarding the First Amendment's protections of private religious speech. Pl's Compl. ¶ 43; Def's Ans. ¶ 43. Following the presentation, the Board told Mrs. Turton that it would contact its attorney for advice and that Brennan would inform Mrs. Turton of the Board's decision by May 13, 2005. Id. ¶ 45; id. ¶ 45. On May 13, 2005, Brennan read Mrs. Turton a three page letter from the Board's attorney which expressed the basis for the Board's decision that O.T. would not be permitted to sing "Awesome God" at the talent show because of its religious content and because the song was the equivalent of a prayer. Id. ¶¶ 49-51; id. ¶¶ 49-51. Thereafter, the Turtons received a letter indicating that the Board's attorney had affirmed Brennan and the Board's decision to refuse to allow Plaintiff to sing "Awesome God" at the talent show. Id. ¶ 57; id. ¶ 57. Subsequently, on May 16, 2005, Plaintiff's counsel sent a letter to Brennan and Lent notifying them of a potential violation of Plaintiff's constitutional rights. Id. ¶ 59; id. ¶ 59. Brennan responded with a letter to Plaintiff's counsel stating that "[b]ased on advice from our attorney. . . we cannot comply with your demand to allow [Plaintiff] to sing "Awesome God" at our school's talent show on Friday, May 20, 2005." Id. ¶ 60; id. ¶ 60.
On May 20, 2005, Plaintiff filed the instant Complaint alleging a violation of her First Amendment constitutional rights made applicable to the Defendant pursuant to 42 U.S.C. §1983*fn5. Following discovery, Plaintiff and Defendant filed simultaneous motions for Summary Judgment on May 26, 2006. Plaintiff contends that Frenchtown's exclusion of "Awesome God" amounted to viewpoint discrimination and violated her First Amendment rights. In addition, Plaintiff alleges that Frenchtown's action violated the Free Exercise Clause, the Equal Protection Clause and the Establishment Clause. Defendant, on the other hand, argues that Frenchtown's action did not violate Plaintiff's First Amendment rights because the decision to exclude "Awesome God" was related to the content of the song and not its viewpoint. Moreover, Defendant alleges that if Plaintiff had been allowed to perform "Awesome God," the performance would have amounted to a violation of the Establishment Clause.
Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A genuine issue of material fact is one that will permit a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To show that a genuine issue of material fact exists, the nonmoving party may not rest upon mere allegations, but must present actual evidence in support thereof. Id. at 249 (citing First Nat'l Bank of Arizona v. Cities Svc. Co., 391 U.S. 253, 290 (1968)). In evaluating the evidence, the Court must view evidence and draw inferences "in the light most favorable to the party opposing the motion." Waldorf v. Shuta, 896 F.2d 723, 728 (3d Cir. 1990) (quoting Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976)).
The First Amendment to the Constitution provides that "Congress shall make no law. . . abridging the freedom of speech." U.S. Const. amend. 1. The First Amendment's protection of speech encompasses religious, political and other types of speech. Widmar v. Vincent, 454 U.S. 263, 269 (1981). Moreover, the Supreme Court has held that students in public schools do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines Sch. Dist., 393 U.S. 503, 506 (1969). Thus, it is well-established that ...