Opposition Brief — LeVake v. Independent School District No. 656

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No. ()/ - ol

In the

Supreme Court of the United States

RODNEY LEVAKE,

Petitioner,

¥,

INDEPENDENT SCHOOL DISTRICT NO. 656, ET AL.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE OF MINNESOTA

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Kay Nord Hunt

Counsel of Record

Ehrich L. Koch

LOMMEN, NELSON, COLE &

STAGEBERG, P.A.

1800 IDS Center

80 South Eighth Street

Minneapolis, MN 55402

(612) 339-8131

| Attorneys for Respondents

2001 - Bachman Legal Printing & (612) 339-9518 @ 1-800-715-3582 @ Fax (612) 337-8053

QUESTION PRESENTED:

In Minnesota, the Minnesota Legislature has vested

local school boards with the care, management and control of

the school district, including prescribing the curriculum.

Petitioner LeVake, a tenth grade biology teacher, was

reassigned by Respondent Independent School District No.

656 to teach ninth grade introduction to physical science when

he made it clear that he would not teach the required tenth

grade biology course curriculum in the manner established by

the School Board. The following question is presented:

Does LeVake, a teacher at a public secondary school,

have a constitutional right to decide and to control the

curricular decisions for his classroom?

TABLE OF CONTE

QUESTION PRESENTED ...............--.

Peles OP CONTIN os ee ii

TBs OF AUTHOMIES ... oc. x5 kee iii

STATUTES INVOLVED ....... PERN neo 1

STATEMENT OF THE CASE ....-...........- 6

Pe Te PN ks ek eee ek eee ee ee 6

1. Minnesota Law on Curriculum

Control and Development ............ 6

2. LeVake’s Acceptance of Tenth

Grade Biology Teaching Position ....... 8

3. LeVake’s Refusal to Teach Evolution..... 9

4. Meetings of School District Officials

With LeVake and Decision to Reassign ... 12

5. Result of Reassignmem ..........-.-- 17

B. Lava tO. osc eo Sees 17

REASONS WHY PETITION SHOULD BE DENIED . 18

CECI ak koe 8S SSS eee ee 23

ii

ac a i

AB H I

Statutes:

ee 17

ee ene eee oe Sy ae

I 16

Constitutions:

I 17

Pe I ee 17

Cases:

Banbury v. Omnitrition Int’l, Inc. .............. 11

533 N.W.2d 876 (Minn. Ct. App. 1995)

Board of Educ., Island Trees Union Free

Pe ee ee ae

457 U.S. 853 (1982)

I eg 20

482 U.S. 578 (1987) f

Epperson v. State of Arkansas ............. 19, 20

393 U.S. 97 (1968)

Keyishian v. Board of Regents of University of

ST SS aa ae 19, 20

385 U.S. 589 (1967)

Kirkland v. Northside Indep. School Dist. ...... ai: Za

890 F.2d 794 (S" Cir. 1989), cert. denied,

496 U.S. 926 (1990)

iil

603 F.2d 1271 (7th Cir. 1979), cert. denied,

444 U.S. 1026 (1980)

Tilton v. Richar

403 U.S. 672 (1971)

University of Pennsylvaniav. E.E.O.C. ..........

493 U.S. 182 (1990)

Webster v. New Lenox School Dist. No. 122.......

917 F.2d 1004 (7" Cir. 1990

Other Authorities:

Rosenberg, Notes & Comments, Monkey Business

and Unnatural Selection: Opening the Schoolhouse

Door to Religion by Discreditin Te f

Darwinism, 9 Journal of Law & Policy 611 (2001 ....

Uerling, Academic Freedom in K-12 Education,

79 Neb. L. Rev. 956 (2000)... . 2... 20 ee ee eeee

oe

20

19

20

21

STATUTES INVOLVED

Minn. Stat. § 123B.09, subd. 1. Boar» . * independent

school districts.

Subdivision 1. School board membership. The care,

management, and control of independent districts is vested in

a board of directors, to be known as the school board. The

term of office of a member shall be four years commencing on

the first Monday in January and until a successor qualifies.

The membership of the board shall consist of six elected

directors together with such ex officio member as may be

provided by law. The board may submit to the electors at any

school election the question whether the board shall consist of

seven members. If a majority of those voting on the

proposition favor a seven-member board, a seventh member

shall be elected at the next election of directors for a four-year

term and thereafter the board shall consist of seven members.

Those districts with a seven-member board may submit to the

electors at any school election at least 150 days before the

next election of three members of the board the question

whether the board shall consist of six members. If a majority

of those voting on the proposition favor a six-member board

instead of a seven-member board, two members instead of

three members shall be elected at the next election of the

board of directors and thereafter the board shall consist of six

members.

Minn. Stat. § 120B.11. School district process

Subdivision 1. Definitions. For the purposes of this section

and section 120B.10, the following terms have the meanings

given them. |

(a) "Instruction" means methods of providing learning

experiences that enables a student to meet graduation

standards.

(b) "Curriculum" means written plans for providing

students with learning experiences that lead to knowledge,

skills, and positive attitudes.

Subd. 2. Adopting policies. (a) A school board shall adopt

annually a written policy that includes the following:

(1) district goals for instruction and curriculum;

(2) aprocess for evaluating each student’s progress toward

meeting graduation standards and identifying the strengths and

weaknesses of instruction and curriculum affecting students’

progrfess;

(3) asystem for periodically reviewing all instructions and

curriculum;

(4) a plan for improving instruction and curriculum, and

(5) an instruction plan that includes education

effectiveness processes developed under section 122A.625 and

integrates instructions, curriculum, and technology.

Subd. 3. Instruction and curriculum advisory committee.

Each school board shall establish an instruction and

curriculum advisory committee to ensure active community

participation in all phases of planning and improving the

instruction and curriculum affecting state graduation

standards. A district advisory committee, to the extent

possible, shall reflect the diversity of the district and its

learning sites, and shall include teachers, parents, support

staff, pupils, and other community residents. The district may

2

establish building teams as subcommittees of the district

advisory committee under subdivision 4. The district

advisory committee shall recommend to the school board

districtwide education standards, assessments, and program

evaluations. Learning sites may expand upon district

evaluations of instruction, curriculum, assessments, or

programs. Whenever possible, parents and other community

residents shall comprise at least two-thirds of advisory

committee members.

Subd. 4. Building team. A school may establish a building

team to develop and implement an education effectiveness

plan to improve instruction and curriculum. The team shall

advise the board and the advisory committee about developing

an instruction and curriculum improvement plan that aligns

curriculum, assessment of student progress in meeting state

graduation standards, and instruction.

Subd. 5. Report. (a) By October 1 of each year, the school

board shall use standard statewide reporting procedures the

commissioner develops and adopt a report that includes the _

following:

(1) student performance goals for meeting state graduation

standards adopted for that year;

(2) results of local assessment data, and any additional test

data;

(3) the annual school district improvement plans;

(4) information about district and learning Site progress in

realizing previously adopted improvement plans; and

(5) the amount and type of revenue attributed to each

education site as defined in section 123B.04.

3

(b) The school board shall publish the report in the local

newspaper with the largest circulation in the district or by

mail. The board shall make a copy of the report available to

the public for inspection. The board shall send a copy of the

report to the commissioner of children, families, and learning

by October 15 of each year.

(c) The title of the report shall contain the name and

number of the school district and read "Annual Report on

Curriculum, Instruction, and Student Performance." The

report must include at least the following information about

advisory committee membership: :

(1) the namie of each committee member and the date

when that member’s term expires;

(2) the method and criteria the school board uses to select

committee members; and

(3) the date by which a community resident must apply to

next serve on the comm:ttee.

Subd. 6. Student evaluation. The school board annually

shall provide high school graduates or GED recipients who

receive a diploma or its equivalent from the school district

with an opportunity to report to the board the following:

(1) the quality of district instruction, curriculum, and

services;

(2) the quality of district delivery of instruction,

curriculum, and services;

(3) the utility of district facilities; and

(4) the effectiveness of district administration.

4

Subd. 7. Periodic report. Each school district shall

periodically ask affected constituencies about their level of

satisfaction with school. The district shall include the results

of this evaluation in the report required under subdivision 5.

Subd. 8. Biennial evaluation; assessment program. At

least once every two years, the district report shall include an

evaluation of the district testing programs, according to the

following:

(1) written objectives of the assessment program;

(2) names of tests and grade levels tested;

(3) use of test results; and

(4) implementation of an assurance of mastery program.

T F THE E

1. Minnesota Law on Curriculum

Control and Development.

Under Minnesota law, the care, management and

control of a school district is vested in the local school board.

Minn. Stat. § 123B.09, subd. 1. By statute, school boards are

charged with the duty of managing the schools of their

district, including prescribing textbooks and courses of study.

Id., subd. 8. School boards must annually adopt a written

policy that includes the district’s goals for instruction and

curriculum; a system for periodically reviewing all instruction

and curriculum; a plan for improving instruction and

curriculum; and an instruction plan which integrates

instruction, curriculum and technology. Minn. Stat.

§ 120B.11, subd. 2. “Curriculum” is defined by statute as

written plans for providing students with learning experiences

that lead to knowledge, skills and positive attitudes. ; *

subd. 1(b). It is differentiated from "instruction" which is the

method of providing learning experiences that enable a student

to meet graduation standards. Id., subd. 1(1)(a).

Pursuant to Minn. Stat. § 120B.11, subd. 3, each

school board must establish an instruction and curriculum

advisory committee to ensure active community participation

in all phases of planning and improving the instruction and

curriculum affecting state graduation standards. The statute

provides:

A district advisory committee, to the extent

possible, should reflect the diversity of the

district and its learning sites, and shall include

teachers, parents, support staff, pupils and

6

other community residents. ... Whenever

possible, parents and other community

residents shall comprise at least two-thirds of

advisory committee members.

Id. Every school board is required to publish its “annual

report on curriculum, instruction and student performance."

Id., subd. 5.

In accord with Minnesota _ statutes,

Respondent/Defendant Independent School District No. 656’s

(School District) School Board followed the statutorily

mandated curriculum adoption process and adopted a

curriculum. The School District teachers are part of both the

curriculum adoption process and the curriculum review

process. (Dixon Depo., pp. 20-21.)

As adopted by the School District’s School Board, the

teaching of evolution is a required part of the tenth grade

biology curriculum. The required textbook is "Biology:

Visualizing Life," which contains three chapters -- 9, 10 and

11 -- dealing with aspects of evolution. This textbook is the

curriculum.’ (Dixon Depo., p. 20.) In order to ensure that

each student gets the same basic educational experience, this

curriculum is required to be taught by each tenth grade

biology teacher. (Dixon Depo., p. 24.) Accordingly, all

tenth grade biology teachers must cover Chapter 9 while

Chapters 10 and 11 were optional. With regard to Chapter 9,

' In LeVake’s appendix [App.] to his petition at 49a-

52a, he presents to this Court only the course syllabus, not the

curriculum. As LeVake is well aware, the syllabus is not part

of the curriculum adopted by the School Board. (Defendants’

Supplemental Response to Request for Production of

Documents dated 4/4/00.)

the required lab activity is the "peppered moth."

(Respondents’ Appendix [A] 1.)

2. LeVake’s Acceptance of Tenth Grade

Biology Teaching Position.

LeVake is a teacher who has been employed by the

School District since 1984. (LeVake Depo., p. 92.) In the

summer of 1997, LeVake was offered the tenth grade biology

teaching position because a teacher was retiring. (LeVake

Depo., pp. 96-97.) Before accepting the position, LeVake

discussed the course with Ken Hubert, co-chairman of the

high school science department, and Respondent/Defendant

Dave Johnson (Mr. Johnson), the high school principal.

(LeVake Depo., p. 98.) LeVake also talked to Dave Wieber,

the other co-chairman of the high school science department.

(Wieber Depo., p. 9.) Mr. Wieber explained to LeVake what

the biology curriculum entailed and that all teachers were

expected to follow it. (id.)

LeVake has acknowledged that evolution is the

framework and foundation of modern biology. (LeVake

Depo., pp. 45-48.) In LeVake’s own post-secondary formal

science education, LeVake was taught that evolution is the ~

accepted framework of modern biology. (Id.) LeVake,

however, has come to the conclusion that evolution is, for the

most part, factually unsupportable. (LeVake Depo., p. fk)

LeVake acknowledges his criticisms of evolution were not

presented to him in his own formal science educational

training but are the result of his hobby of reading articles that

are critical of evolution. (LeVake Depo., pp. 45-47.)

LeVake was unaware of any public educational institution that

presents his criticisms of biology and evolution. (LeVake

Depo., p. 47.)

LeVake admits that he understood before he accepted

the position that it was important that all tenth grade biology

teachers cover the same materials and he knew that Chapter

9 was one of the required chapters to be taught. (LeVake

Depo., p. 107.) LeVake admits that he also was told ana that

he understood that the theory of evolution was part of the

Minnesota standards for education. (LeVake Depo., p. 64.)

LeVake also knew that the required biology textbook more

than likely did not contain the criticisms of evolution he

wanted to teach. (LeVake Depo., pp. 100-01.) LeVake had

reservations about teaching evolution. (LeVake Depo., pp.

64, 71.) Nonetheless, he accepted the position and did not tell

anyone at the School District that he had such reservations

about the curriculum. He did not approach the School

District’s curriculum advisory committee and present to it his

concerns with the curriculum. (LeVake Depo., pp. 100-01.)

De LeVake’s Refusal to Teach

Evolution.

Before LeVake taught each chapter of the biology

textbook, LeVake would prepare an outline for that chapter.

? One article has since described LeVake’s criticisms

as a repackaged version of creationism, noting that the books

LeVake cites have been rejected by the National Academy of

Sciences as well as by most prominent scientific publications.

Rosenberg, Notes & Comments, Monkey Business and

Unnatural Selection: Opening the Schoolhouse Door _to

Religion by Discrediting the Tenets of Darwinism, 9 Journal

of Law & Policy 611, 682 (2001).

9

LeVake did not prepare outlines for the three chapters

addressing evolution. (LeVake Depo., p. 108.)

In the spring, Mr. Hubert, a co-chair of the high

school science department, observed that while both he and

Mr. Koehler, the other tenth grade biology teacher, had

already covered Chapter 9 on evolution, LeVake appeared to

have skipped it. (Hubert Depo., p. 17.) Mr. Hubert was sure

that LeVake was not teaching evolution. (Hubert Depo., p.

16.)

Mr. Hubert, as co-chairman of the science department,

asked LeVake how he was going to handle the topic of

evolution. (LeVake Depo., p. 64.) In response, LeVake

admits that he told Mr. Hubert that he could not teach

evolution. (Id.) LeVake described his conversation with Mr.

Hubert as follows:

Q. Okay. And what conversation did you

have with [Mr. Hubert]?

A. Well, the essence of the conversation

was is that he asked me how I was

going to handle the topic of evolution.

His concern was it’s kind of --. he

wanted to be in line with the Minnesota

stands [sic] for education in the federal

goals 2000 things and they -- these

particular standards had indicated that

the student needs to have kind of a

working knowledge of evolution and he

wanted to know how I was going to

handle that.

Q. Okay. What did you tell him?

10

Well, it was a -- it was about a half

hour discussion but in essence I said to

him I can’t teach evolution. That’s

what I told him.

(LeVake Depo., p. 64.) Mr. Hubert recalled that LeVake told

him he "will not teach something that’s not true" and he

would "rather go back to farming before he would ever do

that."? (Hubert Depo., p. 26.)

LeVake, in the course of this litigation, has admitted

he skipped Chapters 10 and 11. LeVake testified that all he

had the students do with regard to Chapter 9 was the required

lab on the peppered moth.* (LeVake Depo., p. 108.)

LeVake has subsequently offered as his explanation for

his failure to teach evolution that the school year was short

and that he did not have time to cover those chapters.

(LeVake Depo., p. 116.) He later admitted that even though

the school year was shortened by a month, each class period

had been lengthened so that the seat time was almost identical

to a regular school year. (Id.)

> In his petition at page 5, LeVake now describes this

conversation with Mr. Hubert as one in which he "expressed

certain scientific doubts about aspects of Darwin’s theory to

fellow teacher Ken Hubert, in a private, casual conversation."

* LeVake later attempted to contradict his deposition

testimony with his affidavit testimony. Under Minnesota law,

such contradictory affidavit testimony is inadmissible.

Banbury v. Omnitrition Int’l, Inc., 533 N.W.2d 876, 881

(Minn. Ct. App. 1995). In his appendix to his petition at 34a-

38a, LeVake has presented to this Court only his inadmissible

affidavit testimony.

11

Fatal to LeVake’s explanation is testimony that at the

beginning of the school year LeVake told the students he

would not cover the chapters devoted to evolution. Mr.

Benbrooks, a special education paraprofessional aide, had the

duty of taking notes in LeVake’s class for a handicapped

special education student. He recalls LeVake told the class he

would not cover human reproduction, because that was

covered in another class the students were going to take, and

that he was not going to cover the theory of evolution.

According to Mr. Benbrooks, LeVake told the class he was

"strongly against the theory of evolution" and had "strong

beliefs that conflicted with evolution." (Benbrooks Aff.; A6.)

4. Meetings of School District Officials

With LeVake and Decision to

Reassign.

Based on Mr. Hubert’s conversation with LeVake, Mr.

Hubert approached Mr. Johnson, the high school principal,

about his concern that LeVake was not teaching evolution.

(Hubert Depo., pp. 16, 26.) He also informed

Respondent/Defendant Cheryl Freund (Ms. Freund), who was

responsible for the School District curriculum, of his concern.

(Freund Depo., pp. 9, 23.) LeVake, Mr. Hubert, Ms. Freund

and Mr. Johnson met on April 1, 1998. (Freund Depo., p.

34.) The purpose of the meeting was to discuss the School

District’s expectations on the teaching of the biology

curriculum and how LeVake was teaching evolution to his

biology class. (Freund Depo., p. 35; Johnson Depo., p. 26.) 3

At that meeting LeVake was told about their concern

that LeVake was avoiding the subject of evolution and was not

teaching the concept as required by the curriculum. (Johnson

Depo., p. 26.) LeVake did not deny he was avoiding the

subject of evolution with his students. (Johnson Depo., pp.

27-28.) LeVake then expressed his concerns about the theory

12

of evolution itself. (Johnson Depo., p. 28.) He talked about

the moth and presented a series of theories which he felt

refuted evolution. (Freund Depo., pp. 35-36.) LeVake stated

that he enjoyed reading as much as possible on the weaknesses

of evolution, that evolution was not a viable concept, that he

had difficulty with the theory, and there were many students

who were appreciative of knowing that they did not have to

learn about evolution. (Freund Depo., pp. 37-40; Hubert

Depo., p. 26.) LeVake stated he was teaching the weaknesses

of evolution because that was what inspired him. (Id.)

LeVake admits that at that meeting he never discussed

his religious beliefs. (LeVake Depo.. p. 137.) Ms. Freund

did ask LeVake if he mentioned the Bible or God in his class.

LeVake acknowledged that Ms. Freund properly asked such

questions to ensure he was not discussing religion in his class

or trying to convert the students to his way of thinking.

LeVake understood the reason for her questions and that they

were appropriate. (LeVake Depo., pp. 140-41.)

LeVake, Mr. Johnson, Ms. Freund and Mr. Hubert

met again on April 7, 1998, with the rest of the members of

the science department. (LeVake Depo., p. 141.) Again,

LeVake recalled there was no discussion of religion. (Le Vake

Depo., p. 143.) At that meeting, the science department

members reaffirmed that evolution was a basic tenet of

biology and part of the course curriculum for the tenth grade

course. (Freund Depo., pp. 48-49; Johnson Depo., pp. 34-

36.) The staff also emphasized that teaching evolution was

part of the state graduation standards, the National Standards

of the Teachers Association and the National Science

Frameworks and thus required to be taught. Concern was

also expressed about teaching pseudoscience. (Id.)

LeVake again told the group that he had concerns

about teaching the theory of evolution and was adamant that

13

he wanted to teach what he perceived as its weaknesses.

(Freund Depo., p. 49.) The responsibility for the decision to

have LeVake reassigned rested with Mr. Johnson, the high

school principal.’ (Dixon Depo., p. 16.) No decision was

made at that time to reassign LeVake. (Johnson Depo., p.

37.) Mr. Johnson instead asked LeVake to write a position

paper outlining how LeVake would balance the teaching of

evolution with his hobby of reading materials on the

weaknesses of the theory. (Johnson Depo., pp. 35-36.)

LeVake did prepare a position paper outlining his

position on teaching evolution. (App. 39a.) In his paper,

LeVake states that the "process of evolution itself is not only

impossible from a biochemical, anatomical, and physiological

standpoint, but the theory of evolution has no evidence to

show that it actually occurred." (Id. at 40a.) LeVake further

states that he "will teach should the department decide that it

is appropriate, the theory of evolution." He also states,

however, that he will "accompany that treatment of evolution

with an honest look at the difficulties and inconsistencies of

the theory .. ." (Id. at 45a.)

Mr. Johnson has explained that the reason for asking

LeVake to write a position paper was that he was trying to

. keep an open mind on the issue. (Johnson Depo., p. 36.) He

recognized that science is an area of inquiry and one is always

looking for new information and a new perspective on things.

> LeVake, in his petition, has referred to statements

made by Ms. Freund as to the reasons for his removal. As

the Minnesota Court of Appeals recognized and as the record

undisputedly established, Ms. Freund did not have the

authority to reassign LeVake. Thus it was only Johnson’s

reason for reassigning LeVake and Dixon’s reasons for

supporting the decision that are germane. (App. 8a.)

14

He wanted to see how LeVake was going to balance the

teaching of evolution with his stated hobby of looking at the

inconsistencies in the theory. (Id.) From the reading of

LeVake’s position paper, Mr. Johnson was concerned not

only with the amount of time that would be spent teaching

evolution’s inconsistencies as opposed to the theory itself but

also the "spin or the emphasis or the importance" placed on

the inconsistencies of the theory. Mr. Johnson was concerned

that the theory of evolution was not going to receive adequate

treatment as a unifying concept of biology versus an emphasis

being placed on its purported inconsistencies. (Johnson

Depo., pp. 57-58.) It was clear to Mr. Johnson that from

"everything taken in total" that "Rod [LeVake] was not going

to be able to hold back from teaching, spending a lot of time

or putting undue emphasis on the inconsistencies of

evolution." (Johnson Depo., pp. 58-59; Freund Depo., p.

63.) He reassigned LeVake to teach ninth grade introduction

to physical science. (LeVake Depo., pp. 154-55.)

LeVake asked the School District’s superintendent,

Respondent/Defendant Keith Dixon (Mr. Dixon), to review

Mr. Johnson’s decision to reassign him. (LeVake Depo., pp.

155-56.) After reviewing LeVake’s position paper and talking

to participants in the meetings including LeVake, Mr. Dixon

upheld Mr. Johnson’s decision to reassign. (Dixon Depo.,

pp. 22, 26.) In his letter to LeVake affirming the

reassignment decision, Mr. Dixon concurred that it was

appropriate to reassign LeVake because LeVake clearly had

demonstrated he could not teach the prescribed curriculum.

(Dixon Depo., pp. 29-32.) Mr. Dixon in his letter to LeVake

States:

You asserted to me that you believe that you

can teach the prescribed curriculum.

However, in your explanation, you continue to

justify why it is appropriate not to follow the

15

curriculum by pointing out the "discrepancies"

that you believe exist. These “discrepancies"

appear to be an itemization of your

disagreement with the curriculum.

You suggest that these "discrepancies" can be

passed on to students as “teaching them to

think for themselves." Your explanation

compels me to believe that you fundamentally

differ with the commonly held principles of the

curriculum as outlined. You have expressed

not only fundamental and extensive conflicts

with the curriculum, but more importantly,

have made it clear that you cannot teach the

curriculum. Rather, you propose to use the

curriculum as a basis for pointing out and

discussing both the extent of your

disagreement with the curriculum and why it is

that the curriculum is incorrect. Such an

approach cannot be said to constitute teaching

the Board of Education’s approved curriculum.

While you may be personally intrigued by the

discrepancies which you perceive and want to

pursue them on your own, the classroom is not

the appropriate forum in which to do so.

In a public school system, the prescribed

curriculum is the responsibility of the board of

education. And, while curriculum

development involves the staff, ultimately the

Board has the responsibility for adopting the

curriculum.

(A 8-9.)

16.

5. Result of Reassignment.

LeVake has acknowledged that his reassignment to

teach ninth grade science was not a demotion. (LeVake

Depo., pp. 95-96.) There have been no changes to his

teaching contract. LeVake admits he has not sustained any

personal monetary loss nor any loss of benefits. He has not

lost any seniority by his reassignment. (LeVake Depo., p.

169.) LeVake also admits that no one in the department has

treated him differently because of his reassignment. (LeVake

Depo., p. 170.)

B. LeVake’s Lawsuit.

LeVake’s sole intention in bringing this lawsuit is to

"have my biology teaching job back," including the right to

teach his criticisms of the theory of evolution. (LeVake

Depo., pp. 167-68.) LeVake sued Respondents under 42

U.S.C. § 1983, alleging First Amendment violations of the

Free Exercise of Religion Clause, the Establishment Clause

and the Free Speech Clause. LeVake also alleged a violation

of his academic freedom as a § 1983 cause of action. LeVake

asserted that Respondents denied him due process under the

federal and state Constitutions. He also alleged violation of

his free speech rights and his right to freedom of conscience

under the Minnesota State Constitution. (A 11.)

By summary judgment, the district court dismissed all

of LeVake’s claims with prejudice on the merits. (App. 12a.)

LeVake then appealed to the Minnesota Court of Appeals,

which affirmed the grant of summary judgment. (App. 2a.)

In affirming, the Court of Appeals states:

Because LeVake’s position paper and his

statement to Hubert made it clear that LeVake

would not teach the required course curriculum

17

in the manner established by the school board,

LeVake has not presented any genuine issue of

material fact regarding his free exercise, free

speech, and due process claims. Thus, the

district court did not err in granting

respondents’ motion for summary judgment.

(App. 11a.) The Minnesota Supreme Court denied LeVake’s

petition for further review. (App. 1a.)

RE N TITI H D BE DENIED

THE MINNESOTA COURTS’ DISMISSAL OF

LEVAKE’S ACTION IS IN ACCORD WITH THIS

COURT’S DECISIONS.

LeVake has, until seeking certiorari by this Court,

asserted that Respondents deprived him of his free exercise of

religion. Before this Court LeVake now limits his

constitutional claims to an alleged deprivation of his free

speech/academic freedom rights and claims he is a victim of

unconstitutional "viewpoint discrimination." LeVake argues

that certiorari is appropriate by using bits and pieces of prior

opinions of this Court unrelated to the real issue of this case

and claims that the decision below "conflicts squarely with

this Court’s case law," reflects "conflicts in the lower courts

on the issue of constitutional protection of classroom speech"

and "conflicts with this Court’s precedents regarding

viewpoint discrimination."

The real issue in this case is LeVake’s contention that

he has a First Amendment right to establish the curriculum to

be taught in his classroom and to teach what he wishes in

accord with his own personal views. This Court has never

recognized such a First Amendment right and the Minnesota

Court of Appeals decision dismissing LeVake’s constitutional

18

challenge is certainly not in conflict with this Court’s

decisions. LeVake’s petition should be denied.

Cases to which LeVake cites that have referred to a

First Amendment right of academic freedom have done so

generally in terms of the institution, not the individual. For

example, in Keyishian v. Board of Regents of University of

State of of N.Y., 385 U.S. 589 (1967), this Court considered

a renewed challenge to a New York statute and regulations

which were designed "to prevent the appointment or retention

of ‘subversive’ persons in state employment." Keyishian, 385

U.S. at 592. Keyishian involved the right of a professor to

speak and associate in his capacity as a private citizen and

thus is not germane to LeVake’s claim. Moreover, in the

course of reaching its conclusion that the provisions were

unconstitutionally vague, this Court discussed the detrimental

impact of such laws on academic freedom, which the Court

characterized as "a special concern of the First Amendment."

Id. at 603. The discussion by the Court indicates, however,

that it was not focusing on the individual rights of teachers,

but rather on the impact of the New York provisions on

schools as institutions. The vice of the New York provisions

was that they impinged upon the freedom of the University as

an institution. See University of Pennsylvania v. E.E.O.C.,

493 U.S. 182 (1990) (noting that Keyishian was a case

involving governmental infringement on the right of an

institution "to determine for itself on academic grounds who

may teach").

Significantly, this Court has never recognized, even at

the post-secondary level, that teachers possess a First

Amendment right of academic freedom to determine for

themselves the content of their course despite opportunities to

do so. For example, in Epperson v. State of Arkansas, 393

U.S. 97 (1968), a case relied on by LeVake, the Court

‘considered a challenge to a state law that prohibited the

19

teaching of evolution. The Court repeated its admonition in

Keyishian that "the First Amendment does not tolerate laws

that cast a pall of orthodoxy over the classroom." E .

393 U.S. at 105 (quoting Keyishian, 385 U.S. at 603), but

nevertheless declined to invalidate the statute on the basis that

it infringed the teacher’s right of academic freedom. Rather,

the Court held that the provision violated the Establishment

Clause. See id. at 106-09.

Almost 20 years later, the opportunity to create an

individual First Amendment right of academic freedom again

arose in Edwards v. Aguillard, 482 U.S. 578 (1987), another

case involving limitations on a public school teacher’s

authority to teach evolution and a case cited by LeVake. In

Edwards, a state statute required that instruction on evolution

be accompanied by teaching on creation science. As in

Epperson, this Court decided the case on Establishment

Clause grounds. See Edwards, 482 U.S. at 596-97. This

time, however, the court did not even mention academic

freedom as a relevant consideration in holding the statute

unconstitutional.

Instead, this Court has repeatedly held that "public

education in our nation is committed to the control of state

and local authorities." Epperson v. State of Arkansas, 393

U.S. at 104. As a result, local authorities have broad

discretion in choosing a suitable curriculum. See Edwards,

482 U.S. at 583; Webster v. New Lenox School Dist. No.

122, 917 F.2d 1004, 1007 (7" Cir. 1990).

As this Court has held, the government as educator is

subject to fewer strictures when operating an elementary and

secondary school system than when operating an institution of

higher learning. Cf. Tilton v. Richardson, 403 U.S. 672,

685-86 (1971) (opinion of Burger, C.J.). Elementary and

secondary schools are inculcative in nature. Unlike

20

universities, "elementary and secondary schools are not

designed for freewheeling inquiry; they are tailored to the

teaching of basic skills and ideas." Board of Educ., Island

Trees Union Free School Dist. No. 26 v. Pico, 457 U.S. 853,

915 (1982) (Rehnquist, J., dissenting).

No court has found that a public school teachers’ First

Amendment rights extend to choosing their own curriculum

in contravention of school policy or dictates. Uerling,

Academic Freedom in K-12 Education, 79 Neb. L. Rev. 956,

961 (2000). In disputes between school officials and teachers

arising over "academic freedom" in the classroom, the courts

have consistently supported the authority of school boards and

administrators to exercise control over teachers and their

teaching. As explained by the Seventh Circuit Court of

Appeals:

Parents have a vital interest in what their

children are taught. Their representatives have

in general prescribed a curriculum. There is a

compelling state interest in the choice and

adherence to a suitable curriculum for the

benefit of our young citizens in society. It

cannot be left to individual teachers to teach

what they please.

Palmer v. Board of Education of the City of Chicago, 603

F.2d 1271, 1274 (7" Cir. 1979), cert. denied, 444 U.S. 1026

(1980).

Contrary to LeVake’s contention, the First

Amendment simply does not require school districts to

abdicate control over public school curricula to the unfettered

discretion of individual teachers. Kirkland v. Northside

Indep. School Dist., 890 F.2d 794, 795 (5" Cir. 1989), cert.

denied, 496 U.S. 926 (1990). As the Fifth Circuit stated in

21

Kirkland, 890 F.2d at 801-02, "public school teachers are not

free, under the First Amendment, to arrogate control of

curricula. Parents, administrators, and elected officials also

have a legitimate role in the process of selecting material that

will advance educational goals, a role that cannot lightly be

assumed by teachers alone." Id. When an administrative

process is established to compile and amend officially

approved material with input from parents, administrators anu

educators, teachers must also respect that process. Id.

In Minnesota, the Legislature has vested local school

boards with the authority to establish an appropriate

curriculum. LeVake has disregarded the School District’s

administrative process and instead asserts that his personal

preferences and viewpoints override the dictates of the School

Board, its administrators and the parents of the School

District. This case presents not a matter of public concern but

rather an employment dispute. LeVake simply decided on his

own not to follow the curriculum. LeVake did so even

though he has acknowledged that evolution is the foundation

of modern biology and has acknowledged that he is required

to teach evolution both by the School District’s curriculum as

well as the graduation standards in Minnesota. Whereas all

other tenth grade biology students in the School District were

taught the foundations of modern biology, LeVake’s tenth

grade students, because of LeVake’s actions, were not. When

confronted with his failure to follow the curriculum, LeVake

declared to the co-chairman of the science department, "I

can’t teach evolution." Since that declaration, LeVake has

insisted on tailoring the curriculum so that his personai

disagreement with the curriculum could be presented to his

students as part of their course work.

If LeVake’s argument that every public school teacher

has a constitutional right to design, even in part, the content

of his class were accepted, the nation’s school boards would

22

be without the most basic authority to implement a uniform

curriculum. This Court has never held that under the First

Amendment, schools are the mere instruments of the

advancement of the individual agendas of its teachers. As the

Minnesota Court of Appeals correctly held, the School

District did not violate any constitutional right in its

reassignment of LeVake.

CONCLUSION

For these reasons, the petition for a writ of certiorari

should be denied.

LOMMEN, NELSON, COLE & STAGEBERG, P.A.

Kay Nord Hunt

Counsel of Record

Ehrich L. Koch

1800 IDS Center

80 South Eighth Street

Minneapolis, MN 55402

(612) 339-8131

Attorneys for Respondents

Dated: November 19, 2001

23

| INDEX TO APPENDIX

New Registration Guide for Biology

(Grades 10-11-12) ...-- eee reer errr rere Al

Affidavit of Joel Benbrooks dated

March 24, 2000... .- eee e cere rererecees A6

Correspondence from Keith M. Dixon,

Superintendent, to Rod LeVake dated

May 14, 1998 .....-- eee ee errr etre reeee A8

Complaint dated May 24, 1999 ......------+-: A ll

New Registration Guide page:

BIOLOGY (Grades 10-11-12)

Year long course. Semester one (A) should be taken before

semester two

Credit: one credit (1/2 credit per semester).

Course Description: Biology should be taken by all students.

Biology, along with 9th grade science, gives the student the

two science credits needed for graduation. Students taking

only one science class in Senior High School should take

Biology as a Junior. Students planning an taking chemistry

and physics should take Biology as a sophomore or in summer

school. Summer School Biology however, is taught at a faster

pace than a year long course, therefore students in summer

school should be average or above average ability in order to

be successful. Daily media topics such as genetic engineering,

gene splicing, micro-organisms, disease, pollution, heredity,

selective breeding, cells, body chemistry, fitness, growth,

reproduction, plants, food and medicine support the

importance of taking this course in order to be literate in

many aspects of science which are impacting our world today.

The learner will be able to:

' relate topics studied in Biology to the following

themes:

a. Energy and Life. Energy from the sun is passed

through all life by the processes of photosynthesis, respiration

and fermentation.

b. Scale and Structure. Living things are made of

atoms organized into cells and increasing levels of

complexity.

c. Stability. Living organisms maintain a constant

internal balance.

d. Evolution. Natural selection and mutations are

constantly causing changes in living things.

e. Patterns of Change. Cells grow and divide and

organisms go through development in an orderly way because

of instruction in the genetic material, the genes, which are

made of DNA.

f. Interacting Systems. Living things interact with

each other and their environment in complex and cooperative

ways which are often upset by human activities.

2 use most of the following process skills:

observing analyzing data relating

inferring evaluating identifying

design experiments demonstrate collect data

measure calculate compare &

contrast

classify model hypothesize

organize data predict state problems

3. use a variety of scientific instruments correctly and

safely.

4. identify characteristics of living things.

- 3 know that science has limitations in solving society's

problems.

A2

6. examine opportunities available in science related

careers.

Vs identify beneficial and harmful effects of viruses and

bacteria.

8. relate the dissection of an organism to human anatomy

and physiology.

BIOLOGY: VISUALIZING LIFE

Approximate schedule of chapters by semester and quarter.

Semester one(A):

13 chapters plus 2 optional

Ist quarter: Chapters 1, 2, 12, 13, 14, 3, 4

2nd quarter: Chapters 5, 6, 7, 8, 9, 15

Optional Chapters: 10, 11, and maybe 21, 22

Semester two (B)

12 chapters plus 4 chapters overview and 3 chapters

optional

3rd quarter: Chapters 16, 17, 18, 19, 20 overview of

23, 24, 25, 26

4th quarter: Chapters 27, 28, 29, 30, 31, 32, 33, pig

dissection,

Optional Chapters: 21, 22, 34

BIOLOGY Visualizing Life Lab Activities

Chp. 1 Stereomicroscope

Compound Microscope

A3

Chp.

Chp.

Chp.

Chp.

Chp.

Chp.

Chip.

Chp.

Chp.

Chp.

13

14

Acid Rain-Duckweed

Microscope

Living/Nonliving - see chapter 12 leaf litter lab

pH activity

Continue labs from Chp.2

Succession - Railroad Tracks

Comnpetition Seeds

Daphnia?

Microscopes

Cell Labs

pH

Diffusion/Dialysis starch

Agar Block

Potato/Carrot

Onion Slides/Mitosis

Enzymes/Liver, Hydrogen Peroxide, pH

Calories

Chromatography

Elodea?

Spontaneous Generation Demo

pH Demo

Probability - Gambling, MS, low level

Genetic Profile, p. 134

Meiosis - analogy 23 pair of shoes

Pedigrees

Protein Synthesis

DNA Fingerprinting

A4

en tn ee

E

'

3

él

ae

Chp. 9 Peppered Moth

Chp.15 Shark./Critter Keying

Taxonomic keys

ee ea “

AS

STATE OF MINNESOTA DISTRICT COURT

RICE COUNTY THIRD JUDICIAL DISTRICT

CASE TYPE: OTHER CIVIL

Rodney LeVake,

Civil File No. CX-99-793

Plaintiff,

AFFIDAVIT OF JOEL BENBROOKS

v.

Independent School District #656;

Keith Dixon, Superintendent;

Dave Johnson, Principal; and

Cheryl Freund, Curriculum Director,

Defendants.

STATE OF MINNESOTA _)

) ss.

COUNTY OF RICE )

Joel Benbrooks, being first duly sworn upon oath,

-deposes and states as follows:

‘ I was an employee of the Faribault school

district during the 1997/98 school year. I was a special

education paraprofessional aid. One of my duties was to take

notes for one of the District’s handicapped special education

students. I attended Rodney LeVake’s 1997/98 Faribault

Senior High School Biology class as a note-taker for this

student and was present for the class for both semesters as

taught by Mr. LeVake that year.

A6

<0 PRET ESE RAL SOLIDER AREOLA DOL ELIA LALLA IO GIELSLL LEN ALES POLLED LE

y R I thought Mr. LeVake was an excellent teacher.

I respect him, admire him a lot and consider him to be a

friend. In the biology class and as a coach, I could tell that he

cared about his students and noticed that he was well-liked by

his students. Students wanted to be in his classes.

P At the beginning of the first semester of the

1997/98 Biology class that Mr. LeVake taught, he reviewed

’ with the class what he was and was not going to cover in the

class. He told the class that he was not going to be covering

human reproduction because that was going to be covered in

another class the students were going to be taking. He also

told the class that he was not going to cover the section on the

theory of evolution. He said he was strongly against the

theory of evolution. He explained that he had strong beliefs

that conflicted with evolution. He also said that if he was not

allowed to also cover the criticisms and weaknesses in the

theory, then he was not going to cover evolution at all. To

me, personally, I saw nothing wrong with this.

FURTHER YOUR AFFIANT SAYETH NOT.

/s/

Joel Benbrooks

Subscribed and sworn to before me

this 24 day of March, 2000.

/s/ Sharon L. Gillen

Notary Public

{Seal}

A7

INDEPENDENT SCHOOL DISTRICT 656

FARIBAULT AREA PUBLIC SCHOOLS

P.O. BOX 618

2855 FIRST AVENUE N.W.

FARIBAULT, MINNESOTA 55021

(507) 334-2291

May 14, 1998

Mr. Rod LeVake

4400 240" Street West

Faribault, MN 55021

Dear Rod:

When we met on Tuesday, May 5, 1998, you asked

me to set forth in writing the results of your appeal to me

regarding your teaching assignment for the 1998-99 school

year at Faribault Senior High School.

Mr. Dave Johnson, Principal, with Mrs. Cheryl

Freund, Curriculum Director, informed you that you will be

reassigned from Biology to another science position. You are

requesting to remain in Biology.

As indicated by contract, Mr. Johnson has the

responsibility to determine teaching assignment for all staff.

I believe this to be a major responsibility of an administrator.

The District has the authority to place staff in a position we

believe is best for the staff metnber and results in the highest

learning for students. Great care, thought, and consideration

are given in these important decisions.

To reach their decision, Dave and Cheryl approached

your assignment in the manner I have described. They have

met with you personally, read your written views of this

A8

matter, and reviewed documentation from state and national

organizations regarding the content and teaching of Biology.

I also appreciate your willingness to interact with them

candidly regarding your feelings and views on this topic.

You asserted to me that you believe that you can teach

the prescribed curriculum. However, in your explanation, you

continue to justify why it is appropriate not to follow the

curriculum by pointing out the "discrepancies" that you

believe exist. These "discrepancies" appear to be an

itemization of your disagreement with the curriculum.

You suggest that these "discrepancies" can be passed

on to students as "teaching them to think for themselves."

Your explanation compels me to believe that you

fundamentally differ with the commonly held principles of the

curriculum as outlined. You have expressed not only

fundamental and extensive conflicts with the curriculum, but

more importantly, have made it clear that you cannot

teach the curriculum. Rather, you propose to use the

curriculum as a basis for pointing out and discussing both the

extent of your disagreement with the curriculum and why it is

that the curriculum is incorrect. Such an approach cannot be

said to constitute teaching the Board of Education's approved

curriculum. While you may be personally intrigued by the

discrepancies which you perceive and want to pursue them on

your own, the classroom is not the appropriate forum in

which to do so.

In a public school system, the prescribed curriculum

is the responsibility of the Board of Education. And, while

curriculum development involves the staff, ultimately, the

Board has the responsibility for adopting the curriculum.

Therefore, I am in support of Mr. Dave Johnson's re-

assignment for you.

A9

Sincerely,

s/s

Keith M. Dixon

Superintendent

CL:

Cheryl Freund, Executive Director, ESST

Dave Johnson, Principal, FSHS

Al10

STATE OF MINNESOTA DISTRICT COURT

RICE COUNTY THIRD JUDICIAL DISTRICT

CASE TYPE: OTHER CIVIL

RODNEY LEVAKE

Plaintiff, COMPLAINT

v. CIVIL FILE NO.

INDEPENDENT SCHOOL DISTRICT

656, KEITH M. DIXON,

SUPERINTENDENT, FARIBAULT

SENIOR HIGH SCHOOL, DAVE

JOHNSON, PRINCIPAL, CHERYL

FREUND, CURRICULUM DIRECTOR

Defendants.

Plaintiff, Rodney LeVake, for his claim of relief

against defendants herein, states and alleges as follows:

INTRODUCTION

1. Plaintiff, Rodney LeVake (hereafter

"LeVake"), is a citizen of the United States and the State of

Minnesota. He was at all relevant times employed by the

defendant School District as a high school teacher at the

Faribault Senior High School.

2. Defendant Independent School District 656

(hereafter "The District"), is a school district organized

All

pursuant to Minnesota Statute 123 B.02 with general charge

of the business of the district including Faribault Senior High

School.

3. Defendant, Keith M. Dixon (hereafter "Dixon"

or "the Superintendent"), was at all relevant times the

Superintendent of Schools for Independent School District

656. Defendant Dixon is sued individually and in his official

capacity.

4. Defendant, Dave Johnson (hereafter "Johnson"

or "the Principal"), was at all relevant times the Principal of

Faribault Senior High School, Defendant Johnson is sued

individually and in his official capacity.

5. Defendant, Cheryl Freund (hereafter

"Freund"), was at all times relevant the Curriculum Director

for the Faribault Senior High School. Defendant Freund is

sued individually and in her official capacity.

6. Plaintiff, Rod LeVake, was employed by the

District as a biology teacher in the 1997-98 academic year.

LeVake was assigned to teach biology at the Faribault Senior

High School.

7. LeVake is a 1977 graduate of St. John's

University where he majored in natural science and social

science. In 1984, he received his master's degree in Biology

Education from Mankato State University. His assignment as a

biology teacher at Faribault was the realization of his long-

time career goal.

8. The textbook LeVake was assigned for his 10th

grade Biology class was entitled "Biology, Visualizing Life."

The book contains several chapters in which the theory of

evolution is mentioned. Section 10.1 of the textbook, entitled

Al2

"Origin of Life," contains the following statement: “In

principle, there care at least three ways life could have begun

... Extraterrestrial origin ... Creation ... Origin from nonliving

matter."

9. LeVake holds the view that the teaching of

evolution in high school should be accompanied by a critical

examination of the scientific arguments and evidence both for

and against the theory. He does not believe that belief in

evolution as an unquestionable fact is or should be a

requirement for teaching the subject of Biology. LeVake

expressed this view to colleagues on the Faribault High School

faculty at various times during the 1997-98 school year. At the

same time, he made it clear that he was not interested in teaching

creationism or creation science.

10. __ LeVake anticipated teaching a unit on evolution

during the academic year. Because of a shortening of the

school year LeVake's class never reached that section of the

textbook.

11. |Onor about April 2,1998, at about 7:15 AM,

with no prior notice, LeVake was summoned to a meeting

with the chairman of the science department and defendants

Freund and Johnson. The meeting consisted of a discussion of

LeVake's views on the theory of evolution and how it should

be taught. During this meeting, defendant Freund asked

LeVake whether or not his students knew he was a Christian.

Freund also asked LeVake whether he ever mentioned God or

the Bible in his science class. Plaintiff responded that he did

not.

12. Plaintiff's religious beliefs were well known to

the defendants. For several years, plaintiff has been called

upon to deliver a religious invocation at the high school

Al3

football banquet. He is active in his local church. He is known

as a person of conservative religious views.

13. On April 7, 1998, LeVake was summoned to

a meeting with the entire science department. Once again the

discussion centered around LeVake's views on the theory of

evolution and how it should be taught in high school. At the

conclusion of this meeting, defendant Johnson asked Le Vake

to write a brief position paper on what he questioned about

evolution and how he would teach the subject in the

classroom.

14. On April 15, 1998, LeVake distributed to

Freund, Johnson and other members of the science department

his "A position paper on the teaching of evolution." (Exhibit

A, attached)

15. Included in that paper were the following

statements by LeVake: “I will teach, should the department

decide that it is appropriate, the theory of evolution. I will

also accompany that treatment of evolution with an honest

look at the difficulties and inconsistencies of the theory

without turning my class into a religious one."

16. On April 29, 1998, plaintiff had another

meeting with defendants Freund and Johnson. The defendants

told plaintiff that they had decided that he would no longer be

assigned to teach biology at Faribault Senior High School but

would be reassigned to another science teaching position.

17. On April 30, 1998, LeVake told defendant

Johnson that he wished to appeal to defendant Dixon

regarding the reassignment. LeVake met with Dixon on May

5, 1998. At that meeting LeVake asked Dixon to set forth in

writing the results of his appeal.

Al4

18. On May 14, !998, defendant Dixon affirmed

defendant Johnson's reassignment of LeVake. In a letter to

LeVake of the same date, defendant Dixon stated "You...

have made it clear that you cannot teach the curriculum."

Dixon's letter completely ignored LeVake's repeated

assertions in both his position paper and conversations that he

could and would teach the theory of evolution if directed to do

so.

19. Since the events described above, LeVake has

been reassigned to a general science teaching position. Despite

the fact that LeVake is the only member of the school's

science department with a Masters degree in Biology

Education, the defendants will not allow him to teach Biology.

20. Shortly before LeVake was dismissed as a

biology teacher, defendant Freund spoke to a member of the

school board and told the board member that LeVake had a

deep internal conflict between his religious beliefs and

teaching evolution. Freund told the board member that,

because of this alleged conflict, the school would have to

remove LeVake as a biology teacher. Freund made these

statements despite knowing that LeVake had repeatedly

assured her and other school officials that no such conflict

existed, he could and would teach evolution, and that his

religious beliefs would not in anyway interfere with his ability

to teach evolution.

ALLEGATIONS OF LAW

21. |The Constitutions of the United States and the

State of Minnesota protect the rights of teachers to the free

exercise of religion and freedom of conscience. U.S. Const.

Amend. 1, 14; M.S.A. Const. Art. I § 16.

Al5

22. The Constitutions of the United States and the

State of Minnesota protect the rights of teachers to freedom of

speech and academic freedom. U.S. Const. Amend. 1, 14;

M.S.A. Const. Art. 1 §3.

23. The Constitutions of the United States and the

State of Minnesota prohibit the establishment of religion,

U.S. Const. Amend 1, 14, and interference with liberty of

conscience. M.S.A. Const. Art. I § 16.

24. The defendants, and each of them, are

"persons" for purposes of the claims of this complaint, as that

term is used in 42 U.S.C. § 1983,

25. Allof the conduct of the defendants as set forth

in this complaint constitutes conduct "under color of state

law" as that phrase is used in 42 U.S.C. § 1983.

26. — Allof the actions of the defendants as set forth

in this complaint were done pursuant to a state policy or

practice.

27. The rights of plaintiff LeVake to free exercise

of religion, freedom from discrimination in employment on

the basis of his religion, freedom of speech, academic

freedom and due process of law were clearly established at all

relevant times.

28. The defendants, acting individually and in

concert, and under color of state law are responsible for the

decision to deprive the plaintiff of the aforementioned

constitutional rights. This action is therefore brought against

the defendants in their individual and official capacities.

29. The act of removing plaintiff from his position

as biology teacher was done pursuant to a policy of the

Al6

District to exclude persons whose religious beliefs conflict

with acceptance of evolution as an unquestionable fact from

teaching biology. Said policy is in clear violation of the

Establishment and Free Exercise Clauses of the First

Amendment of the U.S. Constitution and Article 1, paragraph

16 of the Minnesota Constitution.

30. In addition, or in the alternative, the actions of

the individual defendants, acting under color of state law, were

done pursuant to the individual defendants’ view that persons

whose religious beliefs are perceived by those defendants to

be in conflict with acceptance of evolution as an

unquestionable fact should be excluded from teaching biology.

Actions taken in furtherance of said view by persons acting

under color or state law are in violation of the Establishment

and Free Exercise Clauses of the First Amendment of the

U.S. Constitution and Article 1, paragraph 16 of the

Minnesota Constitution.

IR. ACTION

VIOLATION EDOM OF RELIGION

31. Plaintiff alleges and incorporates by reference

all the preceding paragraphs of this complaint,

32. | The defendants’ removal of plaintiff from his

position as biology teacher was based on plaintiff's religious

beliefs and/or the defendants' perception of plaintiff's

religious beliefs. Defendants' conduct therefore violated

plaintiff's federal constitutional right to the Free Exercise of

religion as guaranteed by the First and Fourteenth

Amendments and protected by 42 U.S.C. § 1983, by placing

an undue burden on plaintiffs exercise of his religion, by

discriminating against him in terms, conditions and privileges

of employment on the basis of his religion, and by singling

Al7

him out for disparate treatment on the basis of his religious

beliefs.

33. | Moreover, by conditioning plaintiff's ability to

pursue his chosen profession on his adherence or non-

adherence to certain religious or philosophical beliefs, the

defendants’ conduct violates the Establishment Clause of the

First Amendment.

WHEREFORE, plaintiff demands judgment in

accordance with the Prayer for Relief below.

SE E CT

VIOLATION OF E SPEECH RIGHTS

34 Plaintiff alleges and incorporates by reference

all the preceding paragraphs of this complaint.

35. The defendants' conduct in removing plaintiff

from his position as biology teacher because of his views on

the theory of evolution, and particularly his past expression of

those views violated plaintiff's federal constitutional right to

freedom of speech as guaranteed by the First and Fourteenth

Amendments and protected by 42 U.S.C. § 1983.

WHEREFORE, plaintiff demands judgment in

accordance with the Prayer for Relief below.

THIRD CAUSE OF ACTION

VIOLATION OF ACADEMIC FREEDOM

36. Plaintiff alleges and incorporates by reference

all the preceding paragraphs of this Complaint.

37. The defendants' conduct in removing plaintiff

from his position as biology teacher because of his views on

Al8

the theory of evolution, his past expression of those views and

his wish to express those views in the future in the classroom,

violated plaintiff's federal constitutional right to academic

freedom as guaranteed by the First and Fourteenth

Amendments and protected by 42 U.S.C. § 1983.

WHEREFORE, plaintiff demands judgment in

accordance with the Prayer for Relief below.

FOURTH CAUSE OF ACTION

VIOLATION OF STATE FREE SPEECH RIGHT

38. Plaintiff alleges and incorporates by reference

all the preceding paragraphs of this complaint.

39. The defendants' conduct in removing plaintiff

from his position as biology teacher because of his views on

the theory of evolution, and his past expression of those

views, violated plaintiff's right to freely speak, write and

publish his sentiments on all subjects as guaranteed by Article

1, Section 3 of the Constitution of the State of Minnesota.

WHEREFORE, plaintiff demands judgment in

accordance with the Prayer for Relief below.

FIFTH CAUSE OF ACTION

VIOLATION OF STATE RIGHT OF FREEDOM OF

CONSCIENCE

40. Plaintiff alleges and incorporates by reference

all the preceding paragraphs of this complaint.

41. The defendants’ conduct in removing plaintiff

from his position as biology teacher was based on plaintiff's

religious beliefs and/or defendants' perception of plaintiff's

religious beliefs. Defendants' conduct placed an undue burden

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on plaintiff's exercise of his religion, discriminated against

him in terms, conditions and privileges of employment on the

basis of his religion, and singled him out for disparate

treatment on the basis of his religious beliefs. Defendants'

conduct thus violated plaintiff's right of freedom of

conscience as guaranteed by Article 1, Section 16 of the

Constitution of the State of Minnesota.

WHEREFORE, plaintiff demands judgment in

accordance with the Prayer for Relief below.

SIXTH TION

VIOLATION OF RIGHT OF DUE PROCESS

42. Plaintiff alleges and incorporates by reference

all the preceding paragraphs of this Complaint.

43. The defendants’ conduct in removing plaintiff

from his position as a biology teacher was arbitrary,

capricious, unreasonable, discriminatory and unlawful and

deprived plaintiff of or interfered with, his rights as protected

by the Due Process clauses of the Fifth and Fourteenth

Amendments of the U.S. Constitution and Article 1, § 7 of

the Constitution of the State of Minnesota as protected by 42

U.S.C. § 1983.

DAMAGES

44. Asa direct and proximate result of the illegal

and unconstitutional acts of the defendants, plaintiff has

suffered and continues to suffer the loss of his federal and

state constitutional rights to free exercise of religion, freedom

of speech, academic freedom, freedom of conscience and due

process of law. Plaintiff has been hindered and prevented by

the defendants from pursuing his chosen career, has suffered

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embarrassment and humiliation, anguish and anxiety which

will continue unless the court grants the requested relief.

PRAYER FOR RELIEF

Based on the foregoing, plaintiff respectfully prays the

Court to grant judgment as follows:

A. That the Court enter a declaratory judgment

declaring that the District's policy, of excluding from biology

teaching positions persons whose religious beliefs conflict

with acceptance of evolution as an unquestionable fact, to be

unconstitutional and illegal under the United States and

Minnesota Constitution.

B. That the Court enter a declaratory judgment

declaring the action of the defendants in removing plaintiff as

biology teacher, to be illegal and unconstitutional.

c. That the Court order the defendants to

forthwith restore the plaintiff to his former position of biology

teacher.

D. That plaintiff receive compensatory damages in

an amount in excess of $50,000.00.

E. That the Court award plaintiff the reasonable

costs of this action.

F. That the Court award plaintiff reasonable

attorney's fees pursuant to 42 U.S.C. § 1988.

G. Such other relief as the Court deems just.

DEMAND FOR JURY TRIAL

Plaintiff, Rodney LeVake, demands a trial by jury on

all issues so triable.

Dated this 24" day of May, 1999.

/s/ /s/

Francis J. Manion Wayne B. Holstad

AMERICAN CENTER 3535 Vadnais Center Dr.

FOR LAW & JUSTICE- St. Paul, MN 55110

MIDWEST (651) 490-9078

6375 New Hope Road Bar #124461

New Hope, Ky 40052

(502) 549-7020

ACKNOWLEDGMENT

The undersigned hereby acknowledges that costs,

disbursements, and reasonable attorney and witness fees may

be awarded pursuant to Minn. Stat. § 549.21, subd. 2, to the

party against whom the allegations in this pleading are

asserted.

/s/ /s/

Francis J. Manion Wayne B. Holstad

AMERICAN CENTER 3535 Vadnais Center Dr.

FOR LAW & JUSTICE- St. Paul, MN 55110

MIDWEST (651) 490-9078

6375 New Hope Road Bar #124461

New Hope, Ky 40052

(502) 549-7020

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