Reply Brief — Caleigh Wood, Petitioner v. Evelyn Arnold, et al.

No. 18-1438

In the

Supreme Court of the United States

__________________

CALEIGH WOOD,

Petitioner,

v.

EVELYN ARNOLD; SHANNON MORRIS,

Respondents.

__________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

__________________

REPLY BRIEF FOR PETITIONER

__________________

Richard Thompson

Counsel of Record

THOMAS MORE LAW CENTER

24 Frank Lloyd Wright Drive

P.O. Box 393

Ann Arbor, MI 48106

(734) 827-2001

rthompson@thomasmore.org

Counsel for Petitioner

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . ii

REPLY BRIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I. Respondents’ Arguments Underscore the Need

for this Court’s Review. . . . . . . . . . . . . . . . . . . . . 1

A. Review is Necessary to Clarify how the

Lemon test should be applied to

Establishment Clause Violations in the

Public-School Setting. . . . . . . . . . . . . . . . . . . . 2

B. Review is Necessary to Clarify the effect of

Am. Legion v. Am. Humanist Ass’n. . . . . . . . . 7

II. This Case Presents an Important Legal Conflict

and is an Ideal Vehicle to Review Current First

Amendment Law in Need of Clarification. . . . . . 9

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

ii

TABLE OF AUTHORITIES

CASES

Am. Legion v. Am. Humanist Ass’n,

139 S. Ct. 2067 (2019). . . . . . . . . . . . . . . . . . . . 7, 8

Edwards v. Aguillard,

482 U.S. 578 (1987). . . . . . . . . . . . . . . . . . . . 5, 7, 9

Engel v. Vitale,

370 U.S. 421 (1962). . . . . . . . . . . . . . . . . . . . . . . . 7

Everson v. Board of Ed. of Ewing,

330 U.S. 1 (1947). . . . . . . . . . . . . . . . . . . . . . . . . . 6

Johnson v. Poway Unified Sch. Dist.,

658 F.3d 954 (9th Cir. 2011). . . . . . . . . . . . . . . . . 7

Kitzmiller v. Dover Area Sch. Dist.,

400 F. Supp. 2d 707 (M.D. Pa. 2005) . . . . . . . . . . 7

Lee v. Weisman,

505 U.S. 577 (1992). . . . . . . . . . . . . . . . . . . . . . 6, 8

Lemon v. Kurtzman,

403 U.S. 602 (1971). . . . . . . . . . . . . . . . . . . passim

Marsh v. Chambers,

463 U.S. 783 (1983). . . . . . . . . . . . . . . . . . . . . . . . 4

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574 (1986). . . . . . . . . . . . . . . . . . . . . . . . 9

McCreary Cty., Ky. v. Am. Civil Liberties Union of

Ky., 545 U.S. 844 (2005) . . . . . . . . . . . . . . . . . . . . 4

iii

Nampa Classical Acad. v. Goesling,

714 F. Supp. 2d 1079 (D. Idaho 2010), aff’d,

447 F. App’x 776 (9th Cir. 2011) . . . . . . . . . . . . . 7

Santa Fe Indep. Sch. Dist. v. Doe,

530 U.S. 290 (2000). . . . . . . . . . . . . . . . . . . . . . . . 7

Sch. Dist. of Abington Twp., Pa. v. Schempp,

374 U.S. 203 (1963). . . . . . . . . . . . . . . . . . . . . . 4, 6

Selman v. Cobb Co. Bd. of Educ.,

390 F. Supp. 2d 1286 (N.D. Ga. 2005), vacated

and remanded, 449 F.3d 1320 (11th Cir. 2006). . 7

Stone v. Graham,

449 U.S. 39 (1980). . . . . . . . . . . . . . . . . . . . . . . . . 6

Wallace v. Jaffree,

472 U.S. 38 (1985). . . . . . . . . . . . . . . . . . . . . . . . . 6

W. Virginia State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943). . . . . . . . . . . . . . . . . . . . 2, 5, 6

RULES

Fed. R. Civ. P. 56(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 9

1

REPLY BRIEF

Students within our nation’s public schools deserve

religious tolerance and the breathing space of

pluralism. And the First Amendment guarantees both.

Respondents argue that public schools have the right

to teach students that one religious sect is stronger

than another and to require that students scribe a

religious, doctrinal conversion creed as part of a World

History course needed for high school graduation.

Respondents’ contentions, and the holding of the

Fourth Circuit, are fundamentally incompatible with

the Constitution and this Court’s precedent. No case,

no authority, no law grants public school officials this

sort of unbridled, unchecked power over students’

religious formation or personal ideologies.

Respondents’ interpretation of the Lemon test and its

denigration of individual rights are untenable, and only

this Court can clarify the proper application of the

Establishment Clause and the compelled speech

doctrine for our public schools.

I. Respondents’ Arguments Underscore the Need

for this Court’s Review.

Respondents begin their opposition by embracing an

extreme reading of this Court’s First Amendment

jurisprudence in the public school context by declaring,

“[d]ecades ago this Court made clear that public school

authorities, not the courts, are charged with the

responsibility of deciding what speech is appropriate in

the classroom.” Resp. 1. Respondents’ claim is bold

and blithely wrong. School officials, of course, are not

the sole arbiters of First Amendment freedoms in the

public schools. All state officials, including state

2

officials employed within our public schools, must act

under the color of state law. See, e.g., W. Virginia State

Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943) (“The

Fourteenth Amendment, as now applied to the States,

protects the citizen against the State itself and all of its

creatures—Boards of Education not excepted. These

have, of course, important, delicate, and highly

discretionary functions, but none that they may not

perform within the limits of the Bill of Rights. That

they are educating the young for citizenship is reason

for scrupulous protection of Constitutional freedoms of

the individual, if we are not to strangle the free mind

at its source and teach youth to discount important

principles of our government as mere platitudes.”). And

considering the actions taken by the school against the

Petitioner in this case, school officials do need guidance

and explanation from the Court to ascertain what

actions run afoul to the First Amendment as it pertains

to the treatment of religion in the public-school setting.

Respondents’ arguments only emphasize the conflict

between the Fourth Circuit’s opinion and this Court’s

Establishment Clause jurisprudence.

A. Review is Necessary to Clarify how the

Lemon test should be applied to

Establishment Clause Violations in the

Public-School Setting.

Respondents argue that the Fourth Circuit correctly

applied the Lemon test by focusing on the context of

this case. Lemon v. Kurtzman, 403 U.S. 602 (1971);

Resp. 13. Respondents, however, avoid addressing the

undisputed facts of this case: Respondents required

Petitioner to enroll in World History to fulfill a

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graduation requirement. Pet. App. 3-4a. As part of the

required course, Respondents taught Petitioner that

“Most Muslim’s [sic] faith is stronger than the average

Christian,” Pet. App. 4a, 72a. Respondents’ own

content specialist, Jack Tuttle, reviewed the lesson and

found the statement “inappropriate.” Pet. App. 4a.

Respondents claim to have fulfilled the secular

purpose prong of the Lemon test because this

statement “was presented as part of an academic unit

exploring Islam’s influence on Middle Eastern political

entities.” Resp. 6. Yet, there is no explanation for

what secular purpose the specific statement (“Most

Muslim’s [sic] faith is stronger than the average

Christian,” Pet. App. 4a, 72a) would serve or share

with Respondents’ purported purpose. Further, the

Fourth Circuit held that this statement appeared to

have a secular purpose “on its face”—therefore

implying no meaningful constitutional analysis of the

statement’s context ever took place. Pet. App. 11-12.

Respondents also required Petitioner to study and

acquaint herself well enough to the shahada, the

Muslim conversion creed, to successfully reiterate the

creed to fill in the missing words of the religious

doctrine as part of a class assignment. Pet. App. 4-5a.

Petitioner, a Christian, objected to writing the shahada

because it states “There is no god but Allah and

Muhammad is the messenger of Allah,” and Petitioner

sincerely believes that it is a sin to profess, by word or

in writing, that there is any other god except the

Christian God. Pet. App. 5a-7a, see also Pet. App. 4a7a, 55a-58a. Respondents refused to excuse Petitioner

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from the assignment and gave Petitioner a lower grade

in the course. Pet. App. 5a, 23a, 55a-62a.

Respondents argue this requirement served a

secular purpose because it pertained to “the history of

Islam, ‘beliefs and practices’ of Muslims, and links

between Islam, Judaism, and Christianity.” Resp. 6-7.

But again, Respondents do not explain how or why.

Further, these purported goals would be far better

accomplished by learning relevant information on those

subjects, not simply reciting and reiterating the text of

the Shahada. The Islamic doctrinal conversion creed

is by its very nature religious. Marsh v. Chambers, 463

U.S. 783, 797-98 (1983) (“prayer is by definition

religious”) (opinion of Brennan, J.); Sch. Dist. of

Abington Twp., Pa. v. Schempp, 374 U.S. 203, 224

(1963) (“But even if its purpose is not strictly religious,

it is sought to be accomplished through readings,

without comment, from the Bible.”).

Nor do Respondents ever explain why no other

religious sects were explored in any similar manner

during the World History course. The record fails to

show that when Christianity was studied that the

school children ever had to write out, for example, the

Apostle’s Creed or the Our Father, or that the same

treatment was given to Judaism. Respondents make

no effort to demonstrate how different religious sects

were treated equally in the World History class.

McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky.,

545 U.S. 844, 881 (2005) (declaring the importance of

treating different religious sects with neutrality for

purposes of the Establishment Clause). They can’t.

The record demonstrates that Respondents disparaged

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Christianity by claiming adherents to a differ religious

sect has stronger faith.

Instead, Respondents minimize the effect the

Respondents’ religious teachings and requirements had

on Petitioner and argue that this case is different from

this Court’s precedent on a superficial level. The

Fourth Circuit rests its opinion on the fact that the

Muslim faith was only studied for a period of five days.

Pet. App. 17. Yet, an Establishment Clause violation

can occur within the span of a week, if not in a

moment. Respondents reiterate unavailing arguments,

such as Petitioner experienced no coercion from being

required to complete the Shahada assignment because

she was not forced to stand up and recite the Shahada,

only write portions of the Shahada on a worksheet.1

However, this Court has never required for school

officials to force students to stand and recite religious

prayer or pledge one’s nationalism to find that the

school officials have gone too far. For example, in

Barnette, this Court’s holding did not hinge on whether

the students believed the words of the pledge and

meant them. Instead, this Court stated, “it is not clear

whether the regulation contemplates that pupils forego

any contrary convictions of their own and become

unwilling converts to the prescribed ceremony or

whether it will be acceptable if they simulate assent by

words without belief and by a gesture barren of

1

This Court has recognized that “[t]he State exerts great authority

and coercive power” over students in the public school system,

because, inter alia, pupils must respect mandatory attendance

requirements and are exposed to faculty as role models. Edwards

v. Aguillard, 482 U.S. 578, 584 (1987).

6

meaning.” W. Virginia State Bd. of Educ. v. Barnette,

319 U.S. 624, 633 (1943).2 And in Stone v. Graham, the

passive existence of the Ten Commandments on the

wall of the schoolhouse with no requirement from

school officials that the text even be read by students

was held to have violated the Establishment Clause.

449 U.S. 39, 41-42 (1980). In Wallace v. Jaffree, a

moment of passive silence was enough to violate the

Establishment Clause. 472 U.S. 38, 60-61 (1985). In

Schempp, the City of Baltimore regulation at issue

requiring students to read to themselves, without

comment, the Holy Bible or the Lord’s Prayer allowed

students to opt out of the exercise without penalty;

however, this Court still found the law violated the

Establishment Clause. Schempp, 374 U.S. at 203.

Indeed since Everson v. Board of Ed. of Ewing, 330

U.S. 1 (1947), nearly every case in this Court and in the

lower courts involving religious doctrine, observance,

discussion, or prayer in school has resulted in the

finding of an Establishment Clause violation and a

louder call for a distinct separation between church and

the public schools. See, e.g., Lee v. Weisman, 505 U.S.

2

Petitioner directs the Court to her compelled speech argument in

her Petition, pet. 13-16, and adds that the Barnette court

specifically warns about the negative societal effects that occur

with ignoring individual rights and pluralism by placing a greater

value on uniformity. W. Virginia State Bd. of Educ. v. Barnette,

319 U.S. 624, 641 (1943) (“As governmental pressure toward unity

becomes greater, so strife becomes more bitter as to whose unity

it shall be. Probably no deeper division of our people could proceed

from any provocation than from finding it necessary to choose what

doctrine and whose program public educational officials shall

compel youth to unite in embracing.).

7

577, 598-99 (1992); Engel v. Vitale, 370 U.S. 421, 42425 (1962); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S.

290 (2000); Edwards v. Aguillard, 482 U.S. 578, 593

(1987). And the lower courts have followed, even when

the religious material is part of the curriculum or

amounts to a passive display on school grounds. See,

e.g., Nampa Classical Acad. v. Goesling, 714 F. Supp.

2d 1079, 1092–93 (D. Idaho 2010), aff’d, 447 F. App’x

776 (9th Cir. 2011); Selman v. Cobb Co. Bd. of Educ.,

390 F. Supp. 2d 1286 (N.D. Ga. 2005), vacated and

remanded, 449 F.3d 1320 (11th Cir. 2006); Kitzmiller

v. Dover Area Sch. Dist., 400 F. Supp. 2d 707 (M.D. Pa.

2005); Johnson v. Poway Unified Sch. Dist., 658 F.3d

954 (9th Cir. 2011).

Respondents quote the Fourth Circuit’s opinion that

the reasonable observer standard is simply “a matter

of common sense.” Resp. 7. But this is exactly what is

wrong with the Lemon test—it is an invitation to a

lower court judge to apply his or her “common sense”

standards to come to whatever conclusion meets his or

her subjective opinions and ideologies. What is

“common sense” to one court, the court next door will

be just as certain his or her “common sense” demands

an opposite finding.

B. Review is Necessary to Clarify the effect of

Am. Legion v. Am. Humanist Ass’n.

Respondents argue that their actions would be

found constitutional under the historical standard

forwarded by this Court’s recent opinion in Am. Legion

v. Am. Humanist Ass’n, 139 S. Ct. 2067 (2019). Again,

Respondents’ arguments are unavailing. Respondents

point to Justice Ginsburg’s dissent as evidence that

8

“when a public school history teacher discusses the

Protestant Reformation, the setting makes clear that

the teacher’s purpose is to educate, not to proselytize.”

Id. at 2107. But here the Court would have to leap to

the conclusion that when a history teacher teaches the

Protestant Reformation, it does not offend the

Constitution to also teach that most Protestants’ faith

is stronger than the faith of Catholics or Jews. Such

statements would not serve a pedagogical purpose, but

would constitute impermissible teaching, offensive to

our First Amendment freedoms. And that is the

situation before the Court in this Petition.

Additionally, the abandonment of the Lemon test in

the context of a governmental monument also calls into

question the future of the test in the context of

religious expression in the public school setting.

Several sitting Justices have voiced clear disdain with

the test, and the lower courts will need guidance

applying the Establishment Clause to these important

constitutional cases involving First Amendment

freedoms in the public schools. See, e.g., Am. Legion,

139 S. Ct. at 2101 (concurring, Gorsuch, J.) (“Lemon

was a misadventure.”); id. at 2093 (concurring,

Kavanaugh, J.) (“the Court has proscribed governmentsponsored prayer in public schools. The Court has done

so not because of Lemon, but because the Court

concluded that government-sponsored prayer in public

schools posed a risk of coercion of students. The

Court’s most prominent modern case on that subject,

Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120

L.Ed.2d 467 (1992), did not rely on Lemon. In short,

Lemon was not necessary to the Court’s decisions

holding government-sponsored school prayers

9

unconstitutional.”). Additionally, were the lower courts

to attempt to apply the historical approach to

Establishment Clause cases involving religious

expression in schools, it would result in further

inconsistent application of the First Amendment as

this Court has articulated that “a historical approach

is not useful in determining the proper roles of church

and state in public schools.” Edwards, 482 U.S. at 583

n.4.

II. This Case Presents an Important Legal

Conflict and is an Ideal Vehicle to Review

Current First Amendment Law in Need of

Clarification.

Respondents do not deny the importance of the

questions presented. Respondents attempt to detract

from the ideal nature of the Petition by asserting it

contains misrepresentations of the lower court record.

The argument is meritless, and presents no obstacle to

review. The petition accurately reflects the record on

appeal, and the factual record is contained in the

Petitioner’s appendix. See Pet. App. 1-6. There are no

factual disputes. And this case was decided on the

Respondents’ motion for summary judgment. Fed. R.

Civ. P. 56(c). As this Court has clarified, “[o]n

summary judgment the inferences to be drawn from

the underlying facts . . . must be viewed in the light

most favorable to the party opposing the motion.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986). Petitioner is the party opposing

the motion, and therefore entitled to a favorable

reading of the facts.

10

The Fourth Circuit’s opinion creates a conflict

between the lower courts’ and this Court’s precedent

and poses an important, purely legal question in an

area of First Amendment law that momentously needs

clarification from this Court.

CONCLUSION

For the foregoing reasons and those stated in the

Petition, certiorari should be granted.

Respectfully submitted,

Richard Thompson

Counsel of Record

THOMAS MORE LAW CENTER

24 Frank Lloyd Wright Drive

P.O. Box 393

Ann Arbor, MI 48106

(734) 827-2001

rthompson@thomasmore.org

Counsel for Petitioner