Opinion

K.K. v. Comer

Court: District Court, E.D. Tennessee
Filed: Nov 5, 2021
Cited by: 0 cases
Authority: More cited than 29.6%

rejecting an Establishment Clause claim where there was a forum at a university that was “already available to other groups.”

How later courts described this case

rejecting an Establishment Clause claim where there was a forum at a university that was “already available to other groups.”
“[Plaintiff’s] complaint is fatally deficient on at least the first and second elements; it simply does not set forth any facts that suggest the Sheriff or County had notice of recurring violations, or even the mistreatment of [Plaintiff] himself.”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

K.K. and K.K., as parents, guardians, and )

Next friends to A.K., a minor, )

)

Plaintiff, )

)

v. ) No. 3:20-CV-96-DCP

)

CHUCK COMER, et al., )

)

Defendants. )

MEMORANDUM OPINION

This case is before the undersigned pursuant to 28 U.S.C. § 636(c), Rule 73 of the Federal

Rules of Civil Procedure, and the consent of the parties, for all further proceedings, including entry

of judgment. [Doc. 30].

Now before the Court is Defendant Knox County Board of Education’s Motion to Dismiss

for Failure to State a Claim [Doc. 46] and Defendant Chuck Comer’s Motion to Dismiss for

Qualified Immunity. [Doc. 47]. Plaintiff filed an omnibus response in opposition to both motions

[Doc. 50] as well as a supplement to the response. [Doc. 52]. Defendants subsequently replied to

Plaintiff’s omnibus motion. [Doc. 54]. Accordingly, for the reasons more fully explained below,

the Court finds Defendants’ Motions [Docs. 46, 47] well taken, and they will be GRANTED.

I. BACKGROUND

The Complaint [Doc. 1] in this matter was filed on March 4, 2020, and it was later amended

[Doc. 43] on December 23, 2020. Specifically, the First Amended Complaint (“Amended

Complaint”) seeks relief for various violations of the First Amendment pursuant to 42 U.S.C. §

1983 against Defendant Chuck Comer (“Comer”), individually, and against Defendant Knox

County Board of Education (“KCBOE”). Plaintiff asserts that Defendant Comer has violated the

Establishment Clause of the First Amendment through his actions. Additionally, Plaintiff asserts

that Defendant KCBOE has maintained a policy, practice, and custom of permitting its employee,

Defendant Comer, to unconstitutionally proselytize to students as a condition precedent to

allowing such students to participate in a school-sponsored basketball program [id. at ¶ 29] and

has failed to train its employees regarding the mandates of the First Amendment. [Id. at ¶ 36].

Plaintiff alleges that Defendant KCBOE’s failure to train shows that it was deliberately indifferent

to Plaintiff’s rights, “thereby showing the necessary policy or custom to establish § 1983 liability.”

[Id. at ¶ 37].

K.K. and K.K. are the mothers of Plaintiff A.K., a minor who was a student at West Valley

Middle School that is operated by Defendant KCBOE. [Doc. 43 at ¶¶ 7, 8]. The Amended

Complaint alleges that Defendant Comer was employed by Defendant KCBOE as a physical

education and wellness teacher at West Valley Middle School at all times relevant to the Amended

Complaint. [Id. at ¶ 9]. The Amended Complaint states that Defendant Comer, with the

knowledge and acquiescence of Defendant KCBOE, maintained a “school-sponsored basketball

program” at West Valley Middle School. [Id. at ¶ 10]. The Amended Complaint specifies that

David Claxton [“Principal Claxton”], the principal of West Valley Middle School, had been aware

of the school-sponsored basketball program for the entirety of his eight (8) years working at West

Valley Middle School. [Id. at ¶ 11].

The Amended Complaint alleges that a condition precedent existed requiring that students

wishing to participate in the school-sponsored basketball program must also participate in West

Valley Middle School’s Teens for Christ Club. [Id. at ¶ 12]. The Amended Complaint purports

to assert that Defendant Comer “lured” middle-school students into the Teens for Christ Club by

informing students that they were simply participating in a school-sponsored basketball program.

[Id. at ¶ 13]. The Amended Complaint alleges Defendant Comer would then reveal that in order

to participate in the school-sponsored basketball program, they would be forced to also participate

in the Teens for Christ Club. [Id. at ¶ 14]. The Amended Complaint specifies that “for each

instance of participation by students in Defendants’ school-sponsored basketball program . . . the

students were required to be present early in the morning before school at a lecture hall to listen to

Comer read from and interpret the Bible for approximately 30 minutes.” [Id. at ¶ 15]. The

Amended Complaint states that if students declined to participate in the Teens for Christ Club,

they were subsequently barred from participating in the school-sponsored basketball program. [Id.

at ¶ 16].

The Amended Complaint alleges that during the 2019–2020 academic year, A.K. learned

about the school-sponsored basketball program but was initially unaware that participation in the

Teens for Christ Club was a condition precedent, and A.K. became aware of the condition only

after attempting to participate in the basketball program. [Id. at ¶¶ 17, 18]. The Amended

Complaint states that K.K. and K.K. are the “married, interracial, lesbian parents of A.K,” [id. at

¶ 8], and alleges that during Defendant Comer’s preaching sessions, he would single out LGBTQ

issues and their relation to sin. [Id. at ¶ 19]. The Amended Complaint provides that during one of

the preaching sessions, Defendant Comer distributed a copy of Romans 1:26-27—a passage from

the Bible allegedly condemning homosexuality—to A.K. [Id. at ¶ 20]. The Amended Complaint

states that A.K. then reported to K.K. and K.K. that Defendants were coercing A.K. to endure

Defendant Comer’s religious teaching, including the aforementioned harassment based on A.K.’s

parents’ sexual orientation, as a condition precedent to A.K.’s participation in the school-

sponsored basketball program. [Id. at ¶ 21]. K.K. and K.K. were “offended by such outrageous

and clearly unconstitutional actions by Defendants.” [Id.].

The Amended Complaint asserts that—based on information provided to K.K. and K.K.

by Assistant Principal Matt Patillo—Principal Claxton and Defendant KCBOE have been aware

of and have acquiesced to Defendant Comer leading the school-sponsored basketball program at

West Valley Middle School for no less than eight (8) years while using it as a pretext to recruit

students to the Teens for Christ Club. [Id. at ¶ 22].

II. STANDARD OF REVIEW

Defendants filed both Motions pursuant to Federal Rule of Civil Procedure 12(b)(6). On a

Rule 12(b)(6) motion, the Court considers not whether the plaintiff will ultimately prevail, but

whether the facts permit the court to infer “more than the mere possibility of misconduct.” Id. at

679. For purposes of this determination, the Court construes the complaint in the light most

favorable to the plaintiff and assumes the veracity of all well-pleaded factual allegations in the

complaint. Thurman v. Pfizer, Inc., 484 F.3d 855, 859 (6th Cir. 2007). This assumption of

veracity, however, does not extend to bare assertions of legal conclusions, Iqbal, 556 U.S. at 679,

nor is the Court “bound to accept as true a legal conclusion couched as a factual allegation.”

Papasan v. Allain, 478 U.S. 265, 286 (1986).

After sorting the factual allegations from the legal conclusions, the Court next considers

whether the factual allegations, if true, would support a claim entitling the plaintiff to relief.

Thurman, 484 F.3d at 859. This factual matter must “state a claim to relief that is plausible on its

face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Plausibility “is not akin to a

‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted

unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). “[W]here the well-

pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the

complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679

(quoting Fed. R. Civ. P. 8(a)(2)).

III. ANALYSIS

Accordingly, the Court has considered the parties’ positions as detailed below, and for the

following reasons, the Court finds Defendants’ Motions [Docs. 46, 47] well taken, and they will

be GRANTED. As a threshold matter, the Court has construed Plaintiff’s Amended Complaint

[Doc. 43] as challenging the constitutionality of the alleged condition precedent to participating in

the “school-sponsored basketball program” and not the Teens for Christ Club itself or its practices.

Viewing the Amended Complaint in the light most favorable to Plaintiff, Plaintiff has not directly

challenged the constitutionality of the Teens for Christ Club. Thus, the Court has limited its

analysis for purposes of the instant Motions accordingly and has not directly addressed the

constitutionality of the Teens for Christ Club or its practices because Plaintiff has not raised such

challenges.1

A. Sufficiency of Plaintiff’s Allegations as to Counts Two and Three of the

Amended Complaint

Defendant KCBOE challenges Counts Two and Three of the Amended Complaint.

Specifically, Count Two alleges that Defendant KCBOE maintained a policy, practice, and custom

of permitting its employee, Defendant Comer, to proselytize to students as a condition precedent

to allow such students to participate in a school-sponsored basketball program. Count Three

1 The Equal Access Act of 1984 provides that school employees are permitted to be present

at a religious meeting held during noninstructional times, but school employees may only attend

in a nonparticipatory capacity. 20 U.S.C. §§ 4071(b) and (c)(3). However, the Amended

Complaint—even when construed in the light most favorable to Plaintiff—does not allege any

constitutional violations or violations of the Equal Access Act of 1984 with respect to the Teens

for Christ Club. Instead, Plaintiff’s arguments focus on the alleged condition precedent that

existed and barred Plaintiff’s participation in the “school-sponsored basketball program.” Thus,

and as mentioned above, the Court has not addressed any issues regarding the constitutional

validity of the Teens for Christ Club or its practices.

alleges that Defendant KCBOE failed to train its employees, including Defendant Comer,

regarding the mandates of the First Amendment.

With respect to Count Two, Defendant KCBOE argues that Plaintiff has “refused to amend

the complaint to clarify the facts supporting the conclusory allegations that Plaintiff participated

in or wanted to participate in a ‘school sponsored basketball program.’” [Doc. 46 at 1]. Defendant

KCBOE maintains that the phrase “school sponsored basketball program” is a legal conclusion

that must be ignored under Ashcroft v. Iqbal, 556 U.S. 662 (2009), and further, that it is insufficient

to plausibly overcome Defendant Comer’s defense of qualified immunity.2 Defendant KCBOE

also states that Plaintiff failed to allege facts to support the claim of a custom, practice or policy

of a final policymaker, which is a requirement to support a plausible claim under Monell v. Dep’t

of Soc. Servs., 436 U.S. 658 (1978).

In addition, Defendant KCBOE argues that Plaintiff’s allegation that “Principal Claxton

was aware of and approved of Comer’s actions for not less than eight (8) years prior to the events

giving rise to this action” is also insufficient. [Id. at ¶ 30]. Defendant KCBOE states as follows:

Other than conclusory allegations, there are no facts alleged

whatsoever from which the Court could find a ‘plausible’ claim that

KCBOE had customs, policies or practices that encouraged

Establishment Clause violations. There is no allegation that any

final policymaker, such as the School Board or the Superintendent

of Schools, was made aware of any unconstitutional policy or

practice and approved it.

[Doc. 46 at 2 (citing Monell, 436 U.S. at 694)].

2 Defendant KCBOE explains that it has requested for “Plaintiff’s counsel to remove or

clarify the misleading phrase ‘school sponsored basketball program’ from the First Amended

Complaint because Plaintiff never applied or sought to try out for the school sponsored TMSAA

basketball team.” [Id. at 1, n.1]. Defendant KCBOE argues that, instead, Defendant Comer simply

allowed voluntary participants of the Teens for Christ Club to shoot baskets in the gym before

school. [Id.]. Defendants state that if Plaintiffs do not withdraw the “misleading allegations,” then

they will seek fees and expenses pursuant to 28 U.S.C. § 1927. [Id.].

Defendant KCBOE stresses that Principal Claxton is not a final policymaker because

school principals have no final policymaking authority for a school district. Defendant KCBOE

argues that, in any case, even if “Principal Claxton was aware of and authorized an unconstitutional

policy or practice at one school, KCBOE is not liable under § 1983 for his conduct because

respondeat superior liability does not apply.” [Id. (citing Iqbal, 129 S. Ct. at 1948–49)]). Thus,

Defendant KCBOE states that Count Two of the Amended Complaint must be dismissed for failure

to state a claim.

In addition, Defendant KCBOE argues that Plaintiff’s Count Three allegations are

conclusory and insufficient. Defendant KCBOE specifically points to Plaintiff’s contention that

“KCBOE failed to train its employees, including Comer, regarding the mandates of the First

Amendment.” [Doc. 43 at ¶ 36]. Defendant KCBOE states that a Monell claim for failure to train

may be brought only when a plaintiff shows the following:

(1) that a training program is inadequate to the tasks that the officers

must perform; (2) that the inadequacy is the result of the

[municipality’s] deliberate indifference; and (3) that the inadequacy

is closely related to or actually caused [his] injury . . . . Finally, in

the context of a deliberate-indifference Monell claim, a plaintiff

must also show that the right underlying the failure-to-train claim is

clearly established.

[Doc. 46 at 4] (quoting Rayfield v. City of Grand Rapids, 768 F. App’x 495, at 511 (6th Cir. 2019)).

Defendant KCBOE asserts that Plaintiff has failed to satisfy any of these requirements.

Specifically, Defendant KCBOE argues as follows:

[T]here are no facts alleged describing how Coach Comer and

Principal Claxton were trained, or how their training was inadequate

to meet the requirements of the Establishment Clause for training

teachers and principals. There is no pattern alleged of prior

Establishment Clause violations alleged from which KCBOE could

have been deliberately indifferent. There is no explanation how

KCBOE’s inadequate training caused an Establishment Clause

violation in this case. Finally, as argued by Defendant Comer in his

motion to dismiss, Defendant Comer did not violate the

Establishment Clause and any alleged violation was not clearly

established.

[Doc. 46 at 4–5].

Further, Defendant KCBOE argues that Plaintiff’s Amended Complaint does not allege

sufficient facts to constitute a plausible claim that KCBOE had notice from which it was

foreseeable that Defendant Comer would violate the Establishment Clause. Finally, Defendant

KCBOE contends that Plaintiff’s Amended Complaint fails because Plaintiff has not shown that

KCBOE has received more than the normal number of First Amendment complaints for a school

district the size of Knox County. Thus, Defendant KCBOE requests that the Court dismiss

Plaintiff’s Amended Complaint as to Counts Two and Three against it.

Plaintiff responds [Doc. 52] that the Amended Complaint alleges sufficient facts to render

it plausible that Defendant KCBOE violated the Establishment Clause of the First Amendment.

Plaintiff states that the specific facts alleged are “grounded in KCBOE’s own policies making it

plausible that KCBOE was aware ‘Teens for Christ’ was operating at West Valley Middle School,

thereby violating the Establishment Clause of the First Amendment.” [Id. at 13]. Plaintiff points

to KCBOE Policy I-221 which requires that every Knox County School have a web page on the

school district’s website; that all information must accurately reflect the mission, goals, policies,

and activities of the district; that the Director of Schools shall develop administrative procedures

for the development of web pages including content, quality, and consistency standards and shall

designate an individual(s) to be responsible for maintaining and monitoring the website activity;

that a school principal shall make such designation for individual school pages; and the Director

of Schools and school principal, respectively, are ultimately responsible for the accuracy and

appropriateness of information made available on the website and school pages. Plaintiff states

that the Court may take judicial notice that the KCBOE’s webpage for West Valley Middle School

includes reference to the fact Teens for Christ operates a program at the school. Thus, Plaintiff

responds that—because Principal Claxton and KCBOE’s Director of Schools are responsible for

the accuracy of this information—Defendant KCBOE was aware that Teens for Christ was

operating a program at West Valley Middle School, and Plaintiff has therefore alleged sufficient

facts that Defendant KCBOE maintained customs, policies, or practices that encouraged

Establishment Clause violations.

To support these arguments, Plaintiff states that the instant case is similar to Butler v. Smith

Cnty. Bd. of Educ., No. 2:19-CV-00091 (M.D. Tenn. Sept. 14, 2020), in which a Consent Order

and Decree was entered. Plaintiff says that the plaintiffs in Butler alleged that the Smith County

Board of Education maintained a “custom, policy, and practice of violating the Establishment

Clause by, among other actions, incorporating official prayer into school events . . . [and]

proselytizing [to] students[.]” [Doc. 52 at 14 (citing Butler, No. 2:19-CV-00091 at Page ID #:

299)]. Plaintiff argues that the Consent Order and Decree entered by the Middle District of

Tennessee in Butler provides rationale for this Court to deny Defendant KCBOE’s Motion to

Dismiss.

Defendant KCBOE replies [Doc. 54] that Plaintiff has not addressed the issues raised in

the Motion to Dismiss, including vicarious liability and respondeat superior providing no basis

for liability under § 1983 and Plaintiff’s apparent failure to show that a final policymaker

participated in the decisions in some manner or implicitly authorized, approved, or knowingly

acquiesced in unconstitutional conduct. Defendant KCBOE notes that its policies were not alleged

or addressed in the Amended Complaint, but even if they had been, Plaintiff has not shown how

“general policies about websites establish Monell liability under federal law for the conduct of

Defendant Comer and a school principal.” [Id. at 10]. Defendant KCBOE asserts that the

Amended Complaint does not allege widespread unconstitutional practices, and there are no

allegations that the Director of Schools knew about the Teens for Christ Club. Lastly, Defendant

KCBOE argues that the Consent Order and Decree in Butler adds nothing to the analysis in this

case.

The Court finds Defendants’ arguments as to the insufficiency of Plaintiff’s allegations in

Counts Two and Three well taken. The Court agrees that Plaintiff has failed to address the issues

raised in Defendant KCBOE’s Motion to Dismiss and has ultimately failed to plead sufficient facts

to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.

The Supreme Court concluded in Monell “that a local government may not be sued under

§ 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a

government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts

may fairly be said to represent official policy, inflicts the injury that the government as an entity

is responsible under § 1983.” 436 U.S. at 694. Thus, for a municipality to be liable under § 1983,

the constitutional violation must have occurred as part of an official policy or custom. As well,

under Iqbal, “Government officials may not be held liable for the unconstitutional conduct of their

subordinate under a theory of respondeat superior.” 556 U.S. at 676. And finally, the Court also

agrees that for there to be liability under 42 U.S.C. § 1983, Plaintiff must show that a supervisory

official or final policymaker “at least implicitly authorized, approved or knowingly acquiesced in

the unconstitutional conduct of the offending subordinate.” Bellamy v. Bradley, 729 F.2d 416, 421

(6th Cir. 1984). Here, Plaintiff has failed to address these arguments raised by Defendant KCBOE.

Considering the Amended Complaint in the light most favorable to Plaintiff, the Court

finds that there are no factual allegations showing that KCBOE was implicitly authorizing,

approving, or knowingly acquiescing in any unconstitutional conduct at the school stemming from

a condition precedent barring certain students from participating in a school-sponsored basketball

program. Instead, Plaintiff alleges in Count Two that there is a possibility that Principal Claxton

and possibly other school officials knew of the existence of the “Teen for Christ” Club. The parties

dispute Principal Claxton’s status as a final policymaker for purposes of § 1983 liability.3 In any

case, the Court finds that this is a tangential issue and is not dispositive. The key issue is whether

a final policymaker, be it Principal Claxton or someone else, knew of any unconstitutional

customs, policies, or practices that encouraged Establishment Clause violations. As previously

stated, Plaintiff’s allegations only suggest that a policymaker was aware of the existence of the

Teens for Christ Club, but Plaintiff’s allegations do not go so far as to make it plausible that a final

policymaker was put on notice of ongoing unconstitutional conduct like the alleged condition

precedent. Accordingly, for the reasons explained above, the Court finds that Plaintiff’s Count

Two claim should be dismissed for failure to state a claim upon which relief may be granted.

As mentioned above, Count Three alleges that Defendant KCBOE failed to effectively

train employees regarding the mandates of the First Amendment and was deliberately indifferent.

The Court finds that Count Three of the Amended Complaint fails to allege sufficient facts to state

a plausible claim for relief. The Court finds the cases cited in Defendant KCBOE’s Motion are

relevant and instructive on this issue. For instance, in Rayfield v. City of Grand Rapids, the Sixth

3 The Court does not attempt to determine whether Principal Claxton would be a

policymaker for purposes of § 1983 liability in this case because that is not the key issue. However,

the Court notes, “[w]hether an official has final policymaking authority is a question of state law

for the court to decide. The Sixth Circuit has found that an official is a policymaker if the official’s

actions are ‘(1) final, (2) not reviewable, and (3) unconstrained by the existing policies and

practices of his supervisor[s],’ or where the official has been delegated ‘unfettered discretion.’ In

Tennessee, a principal is required to act ‘under the supervision of the director of schools and in

accordance with the written policies of the local board of education.’” See Doe v. Farmer, No.

3:06-0202, 2009 WL 3768906, at *12 (M.D. Tenn. Nov. 9, 2009) (internal citations omitted).

Circuit explained, “[a] Monell claim for failure to train may be brought ‘[o]nly where a

municipality’s failure to train its employees in a relevant respect evidences a “deliberate

indifference” to the rights of its inhabitants,’ thereby showing the necessary ‘policy or custom’ to

establish § 1983 liability.” 768 F. App’x 495, 510–11 (6th Cir. 2019) (quoting City of Canton v.

Harris, 489 U.S. 378, 389 (1989)). Further, Rayfield provides a list of requirements that plaintiffs

who bring claims based on failure to train and deliberate indifference must show to state a

successful § 1983 cause of action:

(1) that a training program is inadequate to the tasks that the officers

must perform; (2) that the inadequacy is the result of the

[municipality’s] deliberate indifference; and (3) that the inadequacy

is closely related to or actually caused [his] injury . . . . Finally, in

the context of a deliberate-indifference Monell claim, a plaintiff

must also show that the right underlying the failure-to-train claim is

clearly established.

Id. at 511.

In the present matter, the Court finds that Plaintiff has failed to plead sufficient facts to

meet any of these requirements. Plaintiff has not alleged any facts regarding KCBOE’s training

programs, so it is impossible to determine whether they would be inadequate to the tasks. In

addition, Plaintiff has not pleaded any facts to indicate a pattern by Defendant KCBOE

demonstrating deliberate indifference as to constitutional violations occurring at West Valley

Middle School or any other Knox County schools. Lastly, Plaintiff fails to show the third

requirement because, again, no facts were pleaded regarding KCBOE’s training policies or

practices.

“A municipality’s culpability for a deprivation of rights is at its most tenuous where a claim

turns on a failure to train.” Connick v. Thompson, 563 U.S. 51, 61 (2011) (citing Oklahoma City

v. Tuttle, 471 U.S. 808, 822–23 (1985) (plurality opinion)). Connick also provides that “‘deliberate

indifference’ is a strength standard of fault, requiring proof that a municipal actor disregarded a

known or obvious consequence of his action.” Id. (quoting Bd of Comm’rs of Bryan Cty. v. Brown,

520 U.S. 397, 410 (1997)). As discussed earlier, Plaintiff has—at most—only pleaded that

Principal Claxton and possible other KCBOE officials knew that the Teens for Christ Club existed.

Plaintiff has not pleaded any facts to suggest that a final policymaker was aware of any ongoing

constitutional violations, especially any that may have resulted from inadequate training. See

Nouri v. County of Oakland, 615 F. App’x 291, 296 (6th Cir. 2015) (“[Plaintiff’s] complaint is

fatally deficient on at least the first and second elements; it simply does not set forth any facts that

suggest the Sheriff or County had notice of recurring violations, or even the mistreatment of

[Plaintiff] himself.”). Further, the Court agrees with Defendants and finds that the Consent Order

and Decree from Butler is not helpful as the parties simply entered into a settlement agreement.

Given the above, the Court finds that Count Three of the Amended Complaint also fails to

plead sufficient factual allegations to state a plausible claim for relief. Thus, the Court will dismiss

Count Three for failure to state a claim upon which relief may be granted.

B. Sufficiency of Plaintiff’s Count One Allegations and Defendant Comer’s

Qualified Immunity Defense

Defendant Comer challenges the sufficiency of Count One of the Amended Complaint,

which alleges that he violated the Establishment Clause by proselytizing to students as a condition

precedent to participation in school-sponsored activities. In addition, Defendant Comer raises a

qualified immunity defense. Defendant Comer argues that Plaintiff has failed to meet the burden

of pleading sufficient facts and circumstances to plausibly allege the violation of a clearly

established right. Specifically, Defendant Comer argues as follows:

“[I]t is clearly established that a program mandating that all students

read the Bible during class in a public school would violate the

Establishment Clause. Sc. Dist. Of Abington Twp. v. Schempp, 374

U.S. 203, 205 (1963). In Lamb’s Chapel v. Center Moriches Union

Free Sch. Dist., 508 U.S. 384, 395 (1993), however, the Court

rejected an Establishment Clause challenge to a policy allowing use

of school facilities, and held that because religious and secular

organizations would have equal access ‘there would have been no

realistic danger that the community would think that the [School]

District was endorsing religion or any particular creed.’

[Doc. 47 at 4–5]. Defendant Comer states that it is clear from caselaw that “if a public school has

a policy granting access to school facilities during non-school hours for non-religious clubs and

groups, it must make the same facilities available for religious clubs and groups; and it cannot

censure the speech of participants in the religious clubs based upon the content.” [Id. at 6–7 (citing

Good News Club v. Milford Cent. Sch., 533 U.S. 98, 102 (2001); Agema v. City of Allegan, 826

F.3d 326, 336 (6th Cir. 2016))].

Defendant Comer maintains that Plaintiff’s Amended Complaint has failed to plead several

facts that are necessary for this Court to properly analyze Plaintiff’s Establishment Clause claim

and Defendant Comer’s qualified immunity defense. Defendant Comer explains that “when a

complaint omits facts that, if they existed, would clearly dominate the case, it seems fair to assume

that those facts do not exist.” [Id. (quoting Camp v. Knox County, No. 3:14-CV-257-PLR-HBG,

2015 U.S. Dist. LEXIS 12715, *14–15 (E.D. Tenn. Feb. 3, 2015))]. Further, Defendant Comer

states that “[t]he First Amended Complaint fails to overcome Defendant Comer’s qualified

immunity defense because it fails to plausibly allege sufficient facts and circumstances for the

Court to determine that the particularized right at issue was ‘clearly established.’” [Id. at 7].

Specifically, and similar to Defendant KCBOE’s argument, Defendant Comer argues that

Plaintiff’s allegation that Plaintiff participated in or attempted to participate in a “school-sponsored

basketball program” is conclusory and insufficient. Next, Defendant Comer argues that the

Amended Complaint fails to allege whether West Valley Middle School had a policy granting

equal access to school facilities during non-school hours for religious and non-religious clubs and

groups. Defendant Comer argues, “It has been clearly established that religious clubs can use

recreational facilities in a public school gymnasium during non-school hours.” [Id. (citing Good

New Club, 533 U.S. at 102)]. Defendant points out that Plaintiff has pleaded no facts indicating

that other non-religious clubs had previously asked for and been denied use of the school

gymnasium to shoot baskets before school, nor does the Amended Complaint allege that Plaintiff

joined, sought to join, or formed a non-religious or non-Christian club that was denied similar

access to the school’s gym before school. Thus, Defendant Comer explains that this Court must

assume that he was following a West Valley Middle School policy permitting equal access to all

clubs and groups—religious or not—to shoot baskets in the gymnasium during non-school hours.

[Id. at 7–8].

Defendant Comer also states that Plaintiff has “essentially [admitted] that the ‘basketball

program’ was a component of the ‘Teens for Christ’ club” because “[o]nly after [Plaintiff]

attempted to participate in the school-sponsored basketball program did [Plaintiff] learn that

listening to Comer’s sermons was a condition precedent to participating in said school-sponsored

basketball program.” [Id. at 8 (citing [Doc. 43 at ¶ 18])]. Thus, Defendant Comer argues that the

Court must assume that he was reading from the Bible and proselytizing to voluntary participants

of the Teens for Christ Club and simply allowed those participants to shoot basketballs in the

gymnasium before school. Lastly, Defendant Comer asserts that while he was allegedly reading

from the Bible to the voluntary participants, he was lawfully exercising his own First Amendment

rights and that he could not be censured by Defendant KCBOE based upon the content of his

speech without violating his rights. Therefore, Defendant Comer states that this Court must also

assume that he was lawfully exercising his own First Amendment Rights because Plaintiff has

failed to allege the essential facts to evaluate Defendant Comer’s qualified immunity defense.

Plaintiff responds [Doc. 52] that Defendant Comer’s Motion should be denied because he

is not, in fact, immune from suit in this action for his alleged violations of the Establishment

Clause. Plaintiff argues that Defendant Comer incorrectly states that the basketball program at

issue was not “school sponsored,” as evidenced by KCBOE’s own policies. Plaintiff points to

KCBOE Policy I-170, which provides as follows:

1. Only clubs or student activities approved by the principal will

be considered as school sponsored and allowed to operate using

the name of the Board of Education or the School’s name. Non-

school sponsored clubs or student activities shall not conduct

their activities on school property without prior permission from

the principal.

2. All school sponsored clubs/student activities must have a

faculty sponsor in order to be approved as school sponsored.

3. All student activities/clubs, to include their scheduled meeting

times, whether before, during, or after school hours, must have

the approval of the principal.

4. Student activities/clubs occurring before or after regularly

scheduled school hours, must be made known to the principal.

Given that policy, Plaintiff proffers that the basketball program is “by definition ‘school