# Petition for Writ of Certiorarim — Sherman v. Community Consolidated School District 21 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2135%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorarim - **Published:** January 1, 1993 - **Citation:** 508 U.S. 950 ## Text Wapreme Court, WS. FILED 99-1377 || sore | GOFFIGE -OF - THE CLERK IN THE Supreme Court of the United States OCTOBER TERM, 1992 ROBERT IAN SHERMAN, and RICHARD HARRY SHERMAN, a4 minor. Petitioners, V. COMMUNITY CONSOLIDATED SCHOOL DISTRICT 21 OF WHEELING TOWNSHIP, LLOYD DESCARPENTRIF (SCHOOL DISTRICT SUPERINTENDENT), DR. FERNE GARRETT (PRINCIPAL OF RILEY SCHOOL), Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT PETITION FOR WRIT OF CERTIORARI RICHARD GROSSMAN Counsel of Record Dannen, Crane, Heyman & Simon 135 S. LaSalle Suite 1540 Chicago, Illinois 60602 (312) 641-6777 Fax —- (312) 641-7114 Attorney for Petitioners: Robert lan Sherman, and Richard Harry Sherman i QUESTIONS PRESENTED FOR REVIEW 1. Did the court below err in holding that Lemon v. Kurtz- man, 403 U.S. 602 (1971), no icnger supplies the calculus appli- cable to Establishment Clause cases (i.e. that Lee v. Weisman, 505 U.S. , 120 L. Ed 2d 467 (1992), “concluded without renewing Lemon's lease”)? 2. Did the court below err in adopting the doctrine of “cere- monial deism” in place of the Lemon v. Kurtzman analysis? 3. Did the court below correctly conclude that the Illinois Pledge Law is ambiguous, or did the court, contrary to this Court’s precedents, rewrite an unambiguous statute and con- strue it as non-mandatory in order to save it? 4. Whether or not Illinois law provides for mandatory recital of the Pledge of Allegiance, is the Pledge Law unconstitutional under the principles enunciated in Lee v. Weisman? il LIST OF ALL PARTIES ROBERT IAN SHERMAN (for himself and as natural guardian of Richard Harry Sherman) RICHARD HARRY SHERMAN, a minor, Petitioners and Plaintiffs below. COMMUNITY CONSOLIDATED SCHOOL DISTRICT 21 OF WHEELING TOWNSHIP, LLOYD DESCARPENTRIE (SCHOOL DISTRICT SUPERINTENDENT), DR. FERNE GARRETT (PRINCIPAL OF RILEY SCHOOL), Respondents and Defendants below. iil TABLE OF CONTENTS QUESTIONS PRESENTED ................... i Mame Sr OR PARTIES ....................., ii 1. THE DECISION OF THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT CONFLICTS WITH THE APPLICABLE DECISIONS OF THIS COURT THE SEVENTH CIRCUIT ERRED BY REPLACING THE TRI-PARTITE ANALYSIS OF LEMON V. KURTZMAN WITH THE DOCTRINE OF CEREMONIAL DEISM. 8 THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT VIOLATED THIS COURT’S PRECEDENTS BY REWRITING AN UNAMBIGUOUS STATUTE IN ORDER TO SAVE IT. 12 THE SEVENTH CIRCUIT’S FAILURE TO CONSIDER THE SPECIAL ELEMENTARY SCHOOL CONTEXT OF THIS CASE PUTS ITS RULING IN CONFLICT WITH TWO DECADES OF THIS COURT’S ~ ESTABLISHMENT CLAUSE JURISPRUDENCE. 14 ie tere 17 APPENDICES Judgment of Seventh Circuit Court of Appeals Appendix A Order of U.S. District Court [REY Bit BOWES «a6 oe eee heen ees Appendix B Order of U.S. District Court fo & ee ee re ee ae Appendix C Order of U.S. District Court (gee. | re re rere ee oe Appendix D Vv TABLE OF AUTHORITIES CASES PAGE(S) Abbington School District vs. Scherapp, 374 U.S. 203, 303-04 (1963).........0.0.., 5 County of Allegheny vs. ACLU, 492 U.S. ee 8 1] Edwards v. Aguillard, 482 U.S. 578, (1987) . 11 Grand Rapids School District v. Bell, 473 Us PUREED ok vee ccescekbecesen 7, 8, 16 Houston v. Hill, 482 U.S. 451, 468 (1987) .. 14 Hutto v. Davis, 454 U.S. 370 375 (1982) ... 7 Lee vs. Weisman, 505 U.S. , 120 L.Ed.2d oishh, ‘ome LEE EE Ree eee pe 5, 7-10, 14-17 Lemon vs. Kurtzman, 403 U.S. 602 (1971). . passim Lynch vs. Donnelly, 465 U.S. 668, 716 ES tae ahaa e ye haa cee es eee. 5 Marsh v. Chambers, 463 U.S. 783 (1983). . . 5, 14 McCollum v. Board of Education, 333 U.S. MER 64 en a eevee epee 10 Sherman v. Community Consolidated School District 21 of Wheeling Township, 980 F.2d i oS a: en rare J Ip Oe Me be 1D West Virginia State Board of Education vs. Barnette, 319 U.S. 624 (1943) ......... 5, 12, 14 OPINIONS BELOW UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION 714 F. Supp 932 (N.D. Ill. 1989): (The District Court’s denial of Defendant’s motion to dis- miss appears as Appendix D herein). 745 F. Supp 1371 (N.D. Ill. 1990): (The District Court’s ruling on Defendants’ motion to dis- miss the first amended complaint appears as Appendix C herein). 758 F. Supp 1244 (N.D. Ill. 1991): (The District Court’s grant of summary judgment for Defendants appears as Appendix B herein). UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT $80 F. 2d 437 (7th Cir. 1992): (The opinion by the Seventh Circuit Court of Appeals affirming the District Court’s grant of summary judgment for Defendants appears as Appendix A herein). 2 JURISDICTION The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1254(1) on the grounds that the United States Court of Appeals for the Seventh Circuit has decided a federal question in a way that conflicts with applicable decisions of this Court, and that the case presents an important question of federal law which has not been, but should be, decided by this Court. The final judgment of the United States Court of Appeals for the Seventh Circuit was, entered November 20, 1992. This petition for certiorari is filed within 90 days of that date. 3 CONSTITUTIONAL PROVISIONS CONSTITUTION OF THE UNITED STATES FIRST AMENDMENT The First Amendment to the Constitution of the United States provides in pertinent part: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. FOURTEENTH AMENDMENT Section 1 of the Fourteenth Amendment to the Constitu- tion of the United States provides in pertinent part: No State shall make or enforce any law which shal! abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the !aws. STATE LAW PROV!SIONS The “Illinois Pledge Law”, 105 ILCS 5/27-3, provides, in pertinent part that: “The Pledge of Allegiance shall be recited each school day by pupils in elementary educational institutions supported or maintained in whole or in part by public funds.” 4 STATEMENT OF THE CASE In late 1988, Plaintiffs filed a two-count complaint in the United States District Court in Chicago, against certain Illinois school officials alleging violations of the First and Fourteenth Amendments. Specifically, Plaintiffs contended that the “Illinois Pledge Law”, 105 ILCS 5/27-3, was unconstitutional on its face, as it appeared to require public elementary school students in Illinois to recite the Pledge of Allegiance, thereby violating the Free Exercise Clause. Plaintiffs also claimed that the teacher-led recital of the Pledge (which, since 1954, has contained the phrase, “One Nation under God”’) created a symbolic unity of government and religion in the presence of particularly impres- sionable youngsters, and therefore violated the Establishment Clause (and the Equal Protection Clause). The action was brought pursuant to 42 USC § 1983, and 28 U.S.C. §§ 1331 and 1343 (3) were asserted as jurisdictional bases. In the District Court, Defendants filed a motion to dismiss which was denied. Sherman v. Community Consolidated School District 21 of Wheeling Township, (hereafter Sherman), 714 F. Supp. 932 (N.D. Ill 1989). The complaint was amended, how- ever, and Defendants urged another motion to dismiss, which was similarly denied. Sherman, 745 F. Supp 1371 (1990). Defend- ants next made motions for summary judgments which were granted. Sherman, 758 F. Supp 1244 (1991). The District Court held that even though the Pledge statute used the words “shall be recited each school day”, the use of the word “shall” was “unfortunate”. 758 F. Supp at 1249. The Court went on to hold that the statute did not say “all” students shall say the Pledge. Therefore, the statute did not compel Plaintiff to say anything. In the absence of compulsion, the Court refused to find a Free Exercise Clause violation. With reference to Plaintiffs’ Establish- ment Clause claim, the Court found that the Pledge Statute passed constitutional muster under the three part test of Lemmon vs. Kurtzman, 403 U.S. 602 (1971). The Court also disposed of Plaintiffs’ Equal Protection claim. 5 Plaintiffs appealed and the United States Court of Appeals for the Seventh Circuit rendered its opinion on November 20, 1992. The Court of Appeals affirmed the District Court's grant of summary judgment, finding that neither the Illinois Pledge Statute nor the practices of the Wheeling School District violated the Free Exercise or Establishment Clauses. More spe- cifically, the Court held that the Pledge Statute was ambiguous and that the phrase “shall be recited each school day by pupils” should be read “shall be recited each school day by ‘willing’ pupils.” Sherman 980 F.2d at 442-43. Therefore, the statute was not compulsory, and the Free Exercise Clause was not violated. The Court acknowledged the possibility that the rationale of West Virginia State Board of Education vs. Bamette, 319 U.S. 624 (1943), combined with the school prayer cases recognizing that recitation by a teacher or rabbi of unwelcome words is coercion. might make the Pledge unconstitutional in the setting of this case. Sherman, 980 F.2d at 444. But ultimately, the Court relied on school authorities’ inherent power to prescribe the curricu- lum in finding no Free Exercise Clause violation. In its decision regarding the Establishment Clause, the Court determined that it would not employ Lemon vs. Kurtzman, 403 U.S. 602 (1971), to this case, as “its status as a general purpose tool for administering the establishment Clause is in doubt”, and Lee vs. Weisman, 505 U.S. ___, 120 L.Ed.2d 467 (1992), “concluded without renewing Lemon’s lease”. Sherman, 980 F. 2d at 445. Rather, the Court of Appeals applied the theory of “Ceremonial Deism” to analyze the question posed by this case. That is, the Court examined what it regarded as the original intent of the Framers concerning references to the Deity, and concluded that the Founding Fathers did not consider such refer- ences violations of the Establishment Clause. The Court also relied on Justice Brennan’s formulation of the theory of “cere- monial deism” in such cases as Abbington School District vs. Schempp, 374 U.S. 203, 303-04 (1963); Marsh vs. Chambers, 463 U.S. 783, 818 (1983); (dissenting opinion); and Lynch vs. Don- nelly, 465 U.S. 668, 716 (1984), (dissenting opinion), and dicta in 6 the opinions of various members of this Court approving the Pledge. Finally, the Court of Appeals ruled that the Eleventh Amendment protected the Attorney General of Illinois from suit in this case. The Court affirmed the District court’s judgment in all other respects. ~ Argument for Granting The Writ 1. THE DECISION OF THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT CONFLICTS WITH THE APPLICABLE DECISIONS OF THIS COURT In Grand Rapids School District v. Ball, 473 U.S. 373 (1985), this Court declared: “We have particularly relied on Lemon [vs. Kurtzman, 403 U.S. 602 (1971)] in every case involving the sensi- tive relationship between government and religion in the education of our children” 473 USS. at 383. Below, the Seventh Circuit not only refused to apply Lemon, it effectively announced Lemon's demise. Reviewing all of the opinions in Lee v. Weisman, 505 U.S. —_, 120 L.Ed.2d 467 (1992), this Court’s most recent pronouncement on the Establishment Clause, the Court of Appeals was able to hold that “Lee concluded without renewing Lemon's lease’. Sher- man vs. Community Consolidated School District 21 of Wheeling Township, 980 F.2d 437, 445 (7th Cir. 1992). Noting that the author of the majority opinion in Lee had previously disparaged Lemon, and that the four justices in dissent proposed jettisoning Lemon forthwith, the Seventh Circuit concluded that Lemon's “status as a general purpose tool for administering the establish- ment clause is in doubt” 980 F. 2d at 445. The Court of Appeals then compounded that doubt by treating Lemon as if it were no longer good law. Said the court: In light of the doubt surrounding Lemon ... we are not disposed to resolve this case by parsing Lemon.” 980 F.2d at 445. It is, of course, axiomatic that until this Court overrules its own precedents they must be adhered to by lower courts. Hutto v. Davis, 454 U.S. 370, 375 (1982) (“[U]nless we wish anarchy to prevail within the federal judicial system, a precedent of this 8 Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be.”). Any fair reading of Lee v. Weisman, supra, reveals that it was not an overruling of Lemon. Indeed, the majority in Lee specifically declined the invitation by petitioners and the United States in that case to reconsider Lemon. 505 U.S. at ___, 120 L.Ed.2d at 480. The Seventh Circuit’s premature burial of Lemon is thus error calling for correction by this Court through issuance of a writ of certiorari. The error is all the more egregious because this case involves particularly impressionable youngsters. (The minor Plaintiff in this case was in the first grade when this action commenced). As noted above, this Court has applied Lemon in every Case involving the sensitive relationship between govern- ment and religion in education. Grand Rapids, supra, 473 U.S. at 383. The Seventh Circuit’s failure to apply Lemon here repre- sents a significant and dangerous departure from precedent, which justifies the issuance of a writ of certiorari. 2. THE SEVENTH CIRCUIT ERRED BY REPLACING THE TRI-PARTITE ANALYSIS OF LEMON Ki KURTZMAN WITH THE DOCTRINE OF CEREMONIAL DEISM Just as problematic as the Court of Appeals’ failure to apply Lemon, is the adequacy of the analytic framework the Court employed in its stead: “ceremonial deism’’. According to the Court of Appeals, under the doctrine of “ceremonial deism” a practice will pass constitutional muster if the Founders sanc- tioned its use. 980 F.2d at 445. In support of its conclusion that the Founders did not regard ceremonial invocations of God as “establishment”, the Court cited the Declaration of Indepen- dence, the Gettysburg Address, and the tradition of presidential thanksgiving proclamations, all of which contain references to the Deity. But the perils and inconsistencies of this mode of constitutional analysis were limned by Justice Souter in Lee. For instance, Justice Souter observed that although Presi- dents Washington and Adams “unapologetically marked days of ee | 9 ‘public thanksgiving and prayer’”’ Thomas Jefferson (whose views were relied upon by the Seventh Circuit in support of its conclusion) steadfastly refused to do so during his presidency. 505 U.S. at —___, 120 L.Ed.2d at 505. And James Madison, perhaps the first among equals as a Founder, initially refused to issue such proclamations, then grudgingly did so, only to recant later in life, describing his issuance of the proclamations as “backsliding”. 505 U.S. at ___, 120 L.Ed.2d at 505. Stull more, Madison consistently maintained that public expenditures for military chaplains constituted “establishment” while that prac- tice has been upheld by this Court and other courts. 505 U.S. at ___, 120 L.Ed.2d at 505. Ultimately, Justice Souter concluded that: ai . these practices prove, at best, that the Framers simply did not share a common understanding of the Establishment Clause, and, at worst, that they, like other politicians, could raise constitutional ideals one day and turn their backs on them the next” 505 U.S. at —___, 120 L.Ed.2d at 505-06. Clearly, the Founders lacked the uniformity of intent neces- sary to support the Seventh Circuit’s new theory of Establish- ment Clause jurisprudence. Moreover, even it could be said that the Framers shared a uniform view of these matters, 18th Cen- tury practice should not foreclose further constitutional analysis. As Justice Souter observed: Ten years aiter proposing the First Amendment, Con- gress passed the Alien and Sedition Acts, measures patently unconstitutional by modern standards. If the early Congress’s political actions were determinative, and not merely relevant, evidence of constitutional meaning, we would have to gut our current First Amendment doctrine to make room for political censorship. 505 U.S. at ___, 120 L.Ed.2d at 506. a eae etnies rT 10 | Putting aside the flaws in the doctrine of “ceremonial deism”’ as propounded by the Seventh Circuit, and assuming that this Court were inclined to accept the theory as a permissible means of constitutional adjudication, still this Court should issue a writ of certiorari to review the decision below. That is because even if this Court is ready to permit “ceremonial deism”’ to become part of this Nation’s Establishment Clause jurispru- dence for the first time, it should not do so in a case involving school children. If there is anything that has been consistent about this Court’s Establishment Clause rulings it is the Court’s commit- ment to heightened scrutiny in the elementary school context. To wit: [This] Court has been particularly vigilant in monitor- ing compliance with the Establishment Clause in ele- mentary and secondary schools. Families entrust public schools with the education of their children, but condi- tion their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family. Students in such institutions are impressionable and their attendance is involuntary. [citations omitted] .... The State exerts great authority and coercive power through mandatory attendance requirements, and because of the students’ emulation of teachers as role models and the children’s susceptibility to peer pres sure. [citations omitted]... . Furthermore, “[t]he public school is at once the symbol of our democracy and the most pervasive means for promoting our common destiny. In no activity of the State is it more vital to keep out divisive forces than in its schools . . . ”, citing, McCollum y. Board of Educa- tion, 333 U.S. 203, 231. | 1] Consequently, the court has been required often to invalidate statutes which advance religion in public ele- mentary and secondary schools.” Edwards v. Aguillard, 482 U.S. 578. 584-85 (1987). Thus, even if the doctrine of “ceremonial deism’” could justify approval of the Pledge in adult settings, the elementary school context of this case raises different concerns. As the Court observed in County of Allegheny vs. ACLU, 492 U.S. 573, 620 Fn. 69: ** . . . [t]his is not to say that the combined display of a Christmas tree and a menorah is constitutional wher- ever it may be located on government property. For example, when located in a public school, such a dis- play might raise additional constitutional considera- tions. Cf. Edwards v. Aguillard, 482 U.S., at 583-584.(Establishment Clause must be applied with special sensitivity in the public school context).” The minor Plaintiff in this case was in first grade at the outset of this litigation. Under Illinois law, the Pledge “shall be recited each school day.” 105 ILCS 5/27-3. In the Pledge, God equals country (“one Nation under God”). There is no require- ment in the statute that a teacher leading recital of the Pledge explain to his or her impressionable young charges that “God” in the Pledge does not really mean the “God” that is worshipped on Sundays or Sabbath or other days, but is, rather, the (nonreli- gious?) God referred to by the Founders. It is hard enough for adults to grasp this distinction, but to ask youngsters in first grade to perceive it borders on the absurd. In any event, the Seventh Circuit gave absolutely no consid- eration to the special elementary school context of this case. Even if the Court of Appeals was correct in refusing to apply Lemon here, it should not have discarded more than thirty years of this Court’s precedents manifesting an extraordinary solici- tude for particularly impressionable school children. Accord- ingly, Petitioners urge this Court to issue a writ of certiorari to ile 12 review the decision of the Court of Appeals for the Seventh Circuit, which is premised on the dubious theory of “ceremonial deism’’, and which is in conflict with the tenor of most of this Court’s Establishment Clause jurisprudence. a THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT VIOLATED THIS COURT’S PRECEDENTS BY REWRITING AN UNAMBIGUOUS STATUTE IN ORDER TO SAVE IT The Court of Appeals found that there was no coercion present in this case and therefore no Free Exercise Clause viola- tion. In order to reach this conclusion the court was required to construe the language of the Illinois Pledge Statute, 105 ILCS 5/27-3. The portion of that statute at issue is the following sentence: “The Pledge of Allegiance shall be recited each school day by pupils in elementary educational institutions supported or maintained in whole or in part by public funds” Petitioners contended below, and contend here, that this statute is singularly unambiguous and compulsory. As such, it would certainly be unconstitutional on its face under West Vir- ginia State Board of Education v. Barnette, 319 U.S. 624 (1943), as the Court of Appeals admitted. 980 F. 2d at 442. Petitioners based their argument on the fact that the statute uses the word “shall” and provides no hint of exception, melioration or accom- modation in its language. Petitioners insisted below, and insist here, that if a sign says “cars shall turn left at the next intersec- tion” that it does not mean that some cars may turn left at the next intersection, or that only willing cars shall turn left. Yet that is precisely the interpretation supplied by the Court of Appeals in this case. | 13 The Seventh Circuit’s justification for its reading of the statute is hardly cogent. It begins by describing the problem straightforwardly enough: what paragraphs 27-3 says is that the Pledge ‘shall be recited each school day by pupils’ in public schools.” 980 F. 2d at 442. The court then asks a series of questions: “Some pupils? Willing pupils? All pupils? It does not specify.” 980 F. 2d at 442. These questions ignore the fact that the statute does a good job of specifying exactly who is required to recite the Pledge: “pupils in public [elementary] schools”. There is no more reason to ask which pupils are required to recite under the statute than there would be to ask which cars are required to turn under Petitioners’ hypothetical. The court acknowledged that if all pupils are required to recite the Pledge the statute would be unconstitutional under Barnette. 980 F. 2d at 442. It then observed that if the statute means “willing” pupils the constitutional barriers evaporate. 980 F. 2d 442. Having asked questions suggesting that the statute was ambiguous, the court had no problem invoking the time-honored principle of law requiring the resolution of Statutory ambiguities in favor of the interpretation that would save the statute. The court thus construed the statute to mean that only “willing” pupils need recite the Pledge. No amount of ratiocination can mask the fact that the statute as written is plain and unambiguous. What it requires is recitation of the Pledge by all pupils in pubic elementary schools. Although the Court of Appeals disavowed an intent to “rewrite the statute in order to save it”, that is precisely what it did. Its 14 construction of the statute was illogical,-arbitrary and in conflict with this Court’s precedents. Where the language of a statute is plain and its meaning unambiguous it is not susceptible to a limiting construction. Houston v. Hill, 482 U.S. 451, 468 (1987). The Seventh Circuit’s ipse dixit assertion of ambiguity is insuffi- cient to save the statute. Assuming, however, that the Court of Appeals correctly decided the question whether the statute is mandatory vel non, the question remains whether, under other precedents of this Court, notably Lee v. Weisman, supra, the minor petitioner was subjected to other forms of compulsion sufficient to require reversal of the Appellate Court’s opinion. It is to that question Petitioners now turn. 4. THE SEVENTH CIRCUIT’S FAILURE TO CONSIDER THE SPECIAL ELEMENTARY SCHOOL CONTEXT OF THIS CASE PUTS ITS RULING IN CONFLICT WITH TWO DECADES OF THIS COURT’S ESTABLISHMENT CLAUSE JURISPRUDENCE The question of federal law posed by this case is an impor- tant one left open in Lee v. Weisman, supra, and should be decided by this Court. What is the constitutionality of formulaic civic rituals which invoke the Deity, such as the Pledge of Alle- giance? In Barnette, supra, this Court decided that no one can be forced to recite the Pledge. That much is clear. But there has been no (post-Lemon) case on any level of the federal judiciary (other than the case sub judice) testing the validity of the revised (“under God’’) version of the Pledge. This case squarely presents the question. Its answer has baffled no less an historic figure than Justice Brennan, who, in Marsh v. Chambers, 463 U.S. 783 (1983) opined that “I frankly do not know what should be the proper disposition of features of our public life such as ‘God save the United States and this Honorable court’, ‘In God We Trust’ [and] ‘One Nation Under God’. . . ” 463 U.S. at 818, (dissenting opinion). Resolution of the issue by this Court would not only ee | 15 provide an answer to an important question of federal law, but would also more generally help define the proper boundaries of the Establishment Clause. The Court of Appeals found the Pledge constitutional over the objections of a dissenting youngster and in the schoolhouse setting. Petitioners submit that the Seventh Circuit’s ruling con- flicts with the principles of law enunciated in Lee v. Weisman. In Lee, this Court began its analysis, as the court below should have, with an acknowledgement that “there are height- ened concerns with protecting freedom of conscience from sub- tle coercive pressure in the elementary and secondary public schools [citations omitted]”. 505 U.S. at ___., 120 L.Ed.2d at 484. The Court found that school control of the graduation ceremony places pubic pressure, as well as peer pressure, on the attending students to participate or maintain respectful silence. id at 484. This pressure, the Court held, “though subtle and indirect can be as real as any overt compulsion” [d. at 484. Significantly, the focus of the Court’s opinion was on the “school-age children who objected”. Id at 483. The Court deter- mined that the social and peer pressure to participate in a state- led group exercise with religious overtones was constitutionally intolerable. It declared: “Tt is of little comfort to a dissenter [ | to be told that for her the act of standing or remaining in silence signifies mere respect rather than participation. What matters is that, given our social conventions, a reasonable dis- senter in this milieu could believe that the group exer- cise signified her own participation or approval of it. Finding no violation under these circumstances would place objectors in the dilemma of participating, with all that implies, or protesting. We do not address whether that choice is acceptable if the affected citizens are 16 mature adults, but we think the State may not, consis- tent with the Establishment Clause, place primary and secondary school children in this position. 505 US. at , 120 L.Ed.2d at 484-85. These principles apply with equal force to the instant case. Here, a first grader was put to the terrible choice of resisting the considerable social and peer pressure to participate in a group exercise (standing with hand over heart and saying the Pledge) or “giving in” and reciting a slogan (“One Nation Under God”) which is anathema to his “religious” beliefs. The choice is every bit as unacceptable in this case as it was in Lee, perhaps more so, in light of the very tender years of the minor Petitioner. It should not matter that the group activity was denomi- nated a “prayer” in Lee whereas here it is “only” the Pledge. A slogan repugnant to one’s religious beliefs that one is forced to utter or be ostracized is no more palatable if buried in a patriotic exercise than it is in a formal prayer. Moreover, the Establish- ment Clause reaches beyond state sponsorship of “prayer’’. In Grand Rapids School District v. Ball, 473 U.S. 373, 389 (1985), this Court declared that: “Our cases have recognized that the Establishment Clause guards against more than direct, state-funded efforts to indoctrinate youngsters in specific religious beliefs. Government promotes religion as effectively when it fosters a close identification of its powers and responsibilities with those of any — or ail — religious denominations as when it attempts to inculcate specific religious doctrines. If this identification conveys a mes- sage of government cndorsement of disapproval of religion, a core purpose of the Establishment Clause is violated.” What is the Pledge but a grand declaration that this Nation, that the flag, that patriotism, are all inextricably intertwined with the belief in God? It is simply disingenuous to suggest that no one is harmed because, after all, it is “only” the benign and a ee 17 patriotic Pledge of Allegiance. Nor can it seriously be asserted that first graders have the facility to perceive the subtle distinc- tions between “patriotic” endorsement of God, said to be per- mitted by the Founders, and outright (and unconstitutional) endorsement of God. Whatever merits ‘““ceremonial deism” may have as a rationale for escaping the strictures of the Establish- ment Clause in an adult setting, surely the doctrine has no place in the schoolhouse, and especially not in the first grade. Under the principles adhered to by this Court for over two decades, beginning with Lemon v. Kurtzman, supra, and culmi- nating in Lee v. Weisman, the Pledge is clearly an unconstitu- tional symbolic union of God and State which conveys an unmistakable impression of government endorsement of religion over non-religion. Additionally, as explained by this court in Lee, the state-ordered group recital of the Pledge places the minor Petitioner here in the untenable position of succumbing to peer pressure or facing certain ostracism. The decision of the Seventh Circuit below fails to respect this court’s precedents preventing such results, and should be reviewed by writ of certiorari. CONCLUSION Petitioners urge this Court to issue a writ of certiorari to the United States Court of Appeals for the Seventh Circuit to ensure lower court obedience to this Court’s precedents, to protect Lemon v. Kurtzman and its progeny, and because this case presents an important federal question which has not been, but should be, decided by this Court. Respectfully submitted, RICHARD GROSSMAN Counsel of Record Dannen, Crane, Heyman & Simon 135 S. LaSalle Suite 1540 Chicago, Illinois 60603 (312) 641-6777 February 18, 1993 A-1 APPENDIX A In the United States Court of Appeals Hor the Seventh Circuit No. 91-1684 ROBERT IAN SHERMAN, for himself and as natural guardian for RICHARD HARRY SHERMAN, a minor son, Plaintiffs-Appellants, v. COMMUNITY CONSOLIDATED SCHOOL DISTRICT 21 OF WHEELING TOWNSHIP, et al., Defendants-Appellees. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 88 C 9205—Ann Claire Williams, Judge. ARGUED JANUARY 24, 1992—DeciDED NoveMBER 20, 1992 Before CUMMINGS, EASTERBROOK, and MANION, Circuit Judges. EASTERBROOK, Circuit Judge. “{N]o official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943). A state therefore may not compel any person to recite the Pledge of Allegiance to the flag. On similar grounds, Wooley v. Maynard, 430 U.S. 705 (1977), adds that a state may not compel any person to display its slogan. Does it follow that a pupil who objects 2 No. 91-1684 to the content of the Pledge may prevent teachers and other pupils from reciting it in his presence? We conclude that schools may lead the Pledge of Allegiance daily, so long as pupils are free not to participate. I In 1979 Illinois enacted this statute: ‘The Pledge of Al- legiance shall be recited each school day by pupils in ele- mentary educational institutions supported or maintained in whole or in part by public funds.” Ill. Rev. Stat. ch. 122 427-3. We held in Palmer v. Board of Education, 603 F.2d 1271 (7th Cir. 1979), that states may require teachers to lead the Pledge and otherwise communicate patriotic values to their students. The right of the school board to decide what the pupils are taught implies a correspond- ing right to require teachers to act accordingly. See also Webster v. New Lenox School District, 917 F.2d 1004 (7th Cir. 1990). Richard Sherman, who attends elementary school in Wheeling Township, Ilinois, and his father Robert chal- lenge the premise of Palmer that schools may employ a curriculum including the Pledge of Allegiance among its exercises. Since 1954 the Pledge has included the words “under God,” 68 Stat. 249, which the Shermans contend violates the establishment and free exercise clauses of the first amendment. The full Pledge is: “I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, in- divisible, with liberty and justice for all.” 36 U.S.C. §172. The district court’s first opinion, 714 F. Supp. 932 (N.D. Ill. 1989), concluded that the Shermans have standing to challenge the recitation of the Pledge but expressed doubt that a third plaintiff—the Society of Separationists, Inc., a group of atheists of which Sherman pére is president—is entitled to litigate. The court denied defendants’ motion to dismiss but invited plaintiffs to amend their complaint. Following the amendment, the court dismissed the So- ciety as a party. 745 F. Supp. 1371 (1990). The Society has not appealed, so we do not mention it again. The new A-3 No. 91-1684 3 complaint added the Attorney General of Illinois as a de- fendant. The Attorney General reiterated the contention that the Shermans lack standing; the court disagreed. The Attorney General also contended that the district court should abstain and that the challenge is unripe because Richard has not been penalized for his refusal to recite the Pledge. The court rejected both arguments. It did not address the Attorney General’s submission that the elev- enth amendment bars a suit against that office (the Sher. mans did not name the incumbent as a party in his per- sonal capacity). A third opinion, 758 F. Supp. 1244 (1991), granted the defendants’ motions for summary judgment. The court held that the state’s pledge law satisfies all three elements of the approach to the establishment clause in Lemon v. Kurtzman, 403 U.S. 602 (1971): it has a secular purpose, does not advance religion, and does not entangle the gov- ernment in religion. Coerced readings of the Pledge would pose difficulties under the free speech and free exercise clauses, but the court concluded that the statute is not coercive as written or in application. Although {27-3 says that the Pledge “‘shall be recited each school day by pupils”, it does not say by ail pupils, and the absence of any pen- alty implies that the pupils are entitled to keep silent. Affidavits from the superintendent of schools, the princi- pal of Richard’s school, and Richard’s first grade teacher all stated that no pupil was compelled to recite the Pledge, to stand during the Pledge or place his hand over his heart, or to leave if he would not join in, and that no one was penalized in any way for remaining silent and seated. Contrast Lipp v. Morris, 579 F.2d 834 (3d Cir. 1978) (an obligation to stand at attention while other stu- dents recite the Pledge is forbidden compulsion); Goetz v. Ansell, 477 F.2d 636 (2d Cir. 1973) (same). Any peer pressure to conform that Richard may have experienced, the court believed, does not justify silencing pupils who are willing to recite the Pledge. A-4 4 No. 91-1684 II Defendants renew their jurisdictiorial arguments. The Shermans disdained to address them, asserting that only defendants who file cross-appeals may contest the jurisdic- tion of the district court. The Shermans overlook the en- during principle that judges must consider jurisdiction as the first order of business, and that parties must help the courts do so. Philbrook v. Glodgett, 421 U.S. 707, 720-22 (1975); Fusan v. Steinberg, 419 U.S. 379, 387 n.12 (1975); id. at 390-91 (Burger, C.J., concurring). Nothing can justify adjudication of a suit in which the plaintiff lacks standing or there is some other obstacle to justiciability. Defen- dants fulfilled their duties to the court, while the lawyer representing the plaintiffs slighted his. The eleventh amendment deprives federal courts of ju- risdiction to consider most suits against states. State agen- cies or officials sued in their official capacity are “‘the state” for this purpose, Will v. Michigan Department of State Police, 491 U.S. 58 (1989); Kentucky v. Graham, 473 U.S. 159 (1985), unless the plaintiff satisfies the require- ments of Ex parte Young, 209 U.S. 123 (1908). See also Hafer v. Melo, 112 S. Ct. 358 (1991). Plaintiffs sued the Attorney General of Illinois in his official capacity only, seeking both damages and a declaratory judgment that 427-3 violates the Constitution. The eleventh amendment cleanly bars the award of damages in an official-capacity suit. Whether it also bars declaratory relief depends on the theory of liability. Plaintiffs have not articulated any theory under which E'x parte Young supports a suit against the Attorney General, who has never threatened the Sher- mans with prosecution and as far as we can tell has no authority to do so. (States’ Attorneys, elected in each county, are the public prosecutors in Illinois. Paragraph 27-3 does not prescribe a penalty, so these officials also have nothing to do with the subject.) Plaintiffs apparent- ly named the office of the Attorney General in an effort to obtain a judgment binding the State of Illinois as an entity, a step that Congress did not authorize when enact- ing 42 U.S.C. §1983 and that the eleventh amendment A-5 No. 91-1684 5 does not permit in the absence of such authorization. See Fitzpatrick v. Bitzer, 427 U.S. 445 ( 1976). The Attorney General must be dismissed as a party. Defendants’ other jurisdictional objections have less punch. Richard Sherman, obliged by the school-attendance laws to be present during the Pledge and the potential object of coercion to participate, has standing to challenge the statute. Abington School District v. Schempp, 374 U.S. 203, 224 n.9 (1963). His father has derivative standing as his guardian. The subject is ripe for adjudication. The Pledge law is on the books, being enforced at Richard’s school by daily recitation. That school officials do not com- pel Richard to participate may bear on the merits but does not make the subject less appropriate for decision. Cf. Lee v. Weisman, 112 S. Ct. 2649 (1992) (adjudicating a challenge to a prayer at a high school graduation, with no Justice doubting justiciability). Doctrines that counsel abstention do not imply that the court lacks subject-matter jurisdiction. The defendants’ contention that the district court should have abstained while awaiting clarification of the meaning of the state’s law, if accepted, would require us to alter its judgment. To obtain such an alteration, the defendants needed to file appeals of their own. Federal Energy Administration, v. Algonquin SNG, Inc., 426 U.S. 548, 560 n.11 ( 1976). See Robert L. Stern, When to Cross-Appeal or Cross-Petition— Certainty or Confusion?, 87 Harv. L. Rev. 763 (1974). Now that the case has reached our court, certification to the Supreme Court of Illinois would be the best way to find out whether the state’s law requires each pupil to recite the Pledge of Allegiance. Houston v. Hill. 432 U.S. 451, 470-71 (1987). None of the parties has asked us to seek the views of the Supreme Court of Illinois. We could do so on our own, but the reason the district judge gave for not abstaining is an equally cogent reason for our not certifying: “{?Naintiffs maintain that having the Pledge led by the pzincipal daily is inherently coercive and therefore violative of plaintiffs’ rights. Thus, even if 5 No. 91-1684 an Illinois court interprets the statute to exempt children who cannot say the Pledge for religious or political rea- sons, the court would still have to resolve the question of whether school officials’ leading of the Pledge, pursuant to the statute, results in unconstitutional coercion.” 745 F. Supp. at 1374. Circuit Rule 52 permits us to certify a question of state law only when the answer ‘“‘will con- trol the outcome” of the case. See also Rule 20 of the Rules of the Supreme Court of Illinois (certification autho- rized when the answer “may be determinative of the said cause”’). Although we could make the state court’s answer con- trolling by first deciding all of the Shermans’ constitution- al arguments, leaving only the meaning of state law un- resolved, such a course invites advisory adjudication. Thus the best course is to interpret the state law for ourselves. We cannot rewrite a law in order to “save” it, Houston, 482 U.S. at 468-69; K-S Pharmacies, Inc. v. American Home Products Corp., 962 F.2d 728, 730 (7th Cir. 1992); American Booksellers Ass’n v. Hudnut, 771 F.2d 323, 3382- 34 (7th Cir. 1985), affirmed without opinion, 475 U.S. 1001 (1986), but federal courts interpret state statutes in con- stitutional cases no less than in cases under the diversity jurisdiction. Planned Parenthood v. Casey, 112 S. Ct. 2791, 2822 (1992); Frisby v. Schultz, 487 U.S. 474, 483 (1988). No interpretation we announce will bind Illinois or other school districts, see Kucharek v. Hanaway, 902 F.2d 513, 517 (7th Cir. 1990), but it will control how Wheeling Township must treat Richard, which is all the Shermans are entitled to. Ill If Illinois requires every pupil to recite the Pledge, then Barnette scuttles the statute, and we need not consider whether “under God” distinguishes the Pledge from other patriotic exercises. Plaintiffs contend that the language of 427-3—“The Pledge of Allegiance shall be recited each school day by pupils in elementary educational institutions A-7 No. 91-1684 7 supported or maintained in whole or in part by public funds.”—is unambiguous and compulsory. Defendants persuaded the district court that the lack of a penalty for silence eliminates any compulsion, or at least shows that the state legislature did not mean to require children to recite the Pledge. True, there was a penalty (expulsion from school) in Bornstie Yet other cases deal- ing with readings, prayers, or periods of silence in the classroom thought the absence of a formal penalty irrele- vant. E.g., Engel v. Vitale, 370 U.S. 421 (1962); Abington School District v. Schempp, 374 U.S. 203 (1963); Wallace v. Jaffree, 472 U.S. 38 (1985); Lee v. Weisman, 112 S. Ct. 2649 (1992). Oliver Wendell Holmes looked to penalties in order to see how the law affected those who regard their own welfare exclusively. The Path of the Law, 10 Harv. L. Rev. 457, 460-61 (1897), reprinted in Collected Legal Papers 167, 173 (1920). Many people obey laws just because they represent the will of the majority expressed through democratic forms. See Kurowski v. Krajewski, 848 F.2d 767, 774-75 (7th Cir. 1988). They revere law for the sake of civility, harmony, and consideration of others— values that schools try to inculcate. More: penalties may be real (the displeasure of one’s teacher can be formidable) even though not administered by judges. How ironic if Richard Sherman’s first experience with law were to teach him that the legal sanction expresses the full meaning of a rule. Then the lesson of the Pledge of Allegiance would be cynicism rather than patriotism. Looking at the law through the lens of penalties is useful for many purposes, but not when the task is to teach civic virtue. What the law requires of principals, teachers, and pupils depends on the language it contains rather than the penal- ty it omits. And what 27-3 says is that the Pledge “shall be recited each school day by pupils” in public schools. Some pupils? Willing pupils? All pupils? It does not spe- cify. If it means “all pupils” then it is blatantly unconstitu- tional; if it means “willing pupils” then the most severe constitutional problem dissolves. When resolving statutory 8 No. 91-1684 ambiguities, the Supreme Court of Illinois adopts readings that save rather than destroy state laws. E.g., Country Mutual Insurance Co. v. Knight, 40 Ill. 2d 423, 240 N.E.2d 612 (1968). Given Barnette, which long predated enactment of this statute, it makes far more sense to interpolate ‘‘by willing pupils” than “by all pupils.” School administrators and teachers satisfy the “shall” ” requirement by leading the Pledge and ensuring that at least some pupils recite. Lead- ing the Pledge is not optional, see Palmer, but partici- pating is. This makes sense of the statute without imput- ing a flagrantly unconstitutional act to the State of Illinois. This understanding is consistent with the practice in the Wheeling schools. The superintendent of schools, the prin- cipal of Riley School (which Richard attends), and his first grade teacher when this suit began, all filed affidavits stating that neither Richard nor any other pupil is com- pelled to recite the Pledge, to place his hand over his heart, to stand, or to leave the room while others recite. Marilyn Barden, Richard’s teacher, averred that she brooks no hazing of those who decline to participate, and that she has never noticed any. The only contrary suggestion comes from Robert Sherman’s affidavit, which states: ‘“De- fendant Garrett, principal of the school attended by my son, asks my son to stand with one hand over his heart and participate with the other pupils in reciting the pledge.” But as this affidavit does not reflect personal knowledge-- Robert Sherman does not say that he has ever been in Richard’s class during the recitation or that he has heard principal Garrett make such a demand—the district court properly disregarded it. Robert does not even aver that his son told him this, and Richard did not file an affidavit of his own. Affidavits offered in opposition to motions for summary judgment “shall be made on personal knowledge {and] shall set forth such facts as would be admissible in evidence”. Fed. R. Civ. P. 56(e). The same defect prevents giving force to Robert Sherman’s assertion that Richard was hassled by other children on the playground because of his refusal to recite the Pledge. Children can be ex- ceedingly cruel to one another, but the rancor (not in any A-9 No. 91-1684 9 event attributable to the State of Illinois) must be estab- lished by admissible evidence. We have not overlooked some juicy tidbits of legislative history that plaintiffs proffer. Senator Netsch spoke against the adoption of 427-3, expressing a belief that the bill could not coexist with Barnette. Senator Knuppel replied: ‘“‘it amazes me that these people get up and read that kind of garbage that Jackson [Justice Robert Jackson, author of the majority opinion in Barnette] had there, his advise [sic] from the Supreme Court, I rate just about as highly as I do the advise [sic] from Congress.’”’ Senate Debates, 81st Illinois General Assembly, May 22, 1979, at 272. Sen- ator Lemke then called for the election of federal judges and added: ‘‘Maybe we ought to abolish the Supreme Court and have a dictatorship like in Russia because in Russia at least they say a pledge of allegiance to their own flag.” Ibid. It is hard to believe that an elected official of I]li- nois prefers totalitarian government to democracy under law just because dictatorships employ more patriotic slo- gans, which dictators may deem necessary to their suc- cess. That two state senators are able to bring obloquy upon themselves does not help us know whether 427-3 means ‘‘all pupils’ rather than “willing pupils”. Senator Nimrod, the bill’s sponsor, treated the recitation as non- compulsory. Jd. at 270-71. Statements on the floor of the state’s lower chamber may be read either way. These un- enlightening exchanges do not show that Illinois enacted a law that would be stillborn under Barnette. Notwithstanding the lack of penalties or efforts by teach- ers to induce pupils to recite, there remains social pres- sure to do so and a sense of exclusion when one’s beliefs enforce silence during a ceremony others welcome. When discussing the Pledge of Allegiance, four Justices remarked: “{I}t borders on sophistry to Suggest that the ‘reasonable’ atheist would not feel less than a ‘full membef(r] of the political community’ every time his fellow Americans re- cited, as part of their expression of patriotism and love for country, a phrase he believed to be false.” Allegheny County v. Pittsburgh ACLU, 492 U-S. 573, 673 (1989) ial A-10 10 No. 91-1684 (Kennedy, J., joined by Rehnquist, C.J., and White & Scalia, JJ.). Concerns of this kind, among others, led Jus- tice Kennedy (this time speaking for a majority in Lee v. Weisman) to treat prayer during a high school gradua- tion as a form of compulsion, even though the student may remain silent without overt penalty. Engel v. Vitale, 370 U.S. at 430-31, the first of the school-prayer cases, oe a similar conclusion. We have postponed to Part IV discussion the effect of ‘under God’’. But perhaps the rationale of Barnette, when joined with the school-prayer cases, equates sociai pressure with legal pressure. If as Barnette holds no state may require anyone to recite the Pledge, and if as the prayer cases hold the recitation by a teacher or rabbi of unwelcome words is coercion, then the Pledge of Allegiance becomes unconstitutional under all circumstances, just as no school may read from a holy scripture at the start of class. As an analogy this is sound. As an understanding of the first amendment it is defective—which was Justice Ken- nedy’s point in Allegheny. The religion clauses of the first amendment do not establish general rules about speech or schools; they call for religion to be treated different- ly. Recall that for now we are treating the Pledge as a patriotic expression, even though the objections to public patriotism may be religious (as they were in Barnette). Patriotism is an effort by the state to promote its own survival, and along the way to teach those virtues that justify its survival. Public schools help to transmit those virtues and values. Separation of church from state does not imply separation of state from state. Schools are en- titled to hold their causes and values out as worthy sub- jects of approval and adoption, to persuade even though they cannot compel, and even though those who resist persuasion may feel at odds with those who embrace the values they are taught. Consider what a general assimilation of religion to patri- otism and other values would mean for the public schools. The majority in Lee remarked, 112 S. Ct. at 2657: “By the time they are seniors, high school students no doubt A-11 No. 91-1684 11 have been required to attend classes and assemblies and to complete assignments exposing them to ideas they find distasteful or immoral or absurd or all of these.” They are required to read books promoting ideas they find wicked. Sometimes their creed may teach that reading such ma- terial is itself sinful. Canon law in the Roman Catholic Church, and equivalent rules of other religions, restricts the reading of books that misrepresent or undermine the faith. See Dede A. Burke, What is the Index? (1952). (The Catholic Church suspended publication of the Index Librorum Prohibitorum in 1966 but did not abolish the distinction between moral and immoral literature.) Cases arising out of religious beliefs that particular books should not be read include Mozert v. Hawkins County Board of Education, 827 F.2d 1058, 1061-62 (6th Cir. 1987), and Smith v. Mobile Board of School Commissioners, 827 F.2d 684 (11th Cir. 1987). See also Wisconsin. vy. Yoder, 406 U.S. 205 (1972). Students not only read books that question or conflict with their tenets but also write essays about them and take tests—questions for which their teachers prescribe right answers, which the students must give if they are to receive their degrees. The diversity of religious tenets in the United States ensures that anything a school teaches will offend the scruples and contradict the principles of some if not many persons. The problem extends past gov- ernment and literature t> the domain of science: the re- ligious debate about heliocentric astronomy is over, but religious debates about geology and evolution continue. An extension of the school-prayer cases could not stop with the Pledge of Allegiance. It would extend to the ks, essays, tests, and discussions in every classroom. A pupil who takes exception to the prescribed curriculum of the public schools—whether the textbooks or the class discussions or the civic ceremonies such as the Pledge of Allegiance—is asserting a right to accommodation of his political or religious beliefs. Humane government often calls for accommodation: programs such as tuition vouch- ers serve this interest without offending other constitu- tional norms. Witters v. Washington Department of Ser- A-12 12 No. 91-1684 vices for the Blind, 474 U.S. 481 (1986). See also Michael W. McConnell, The Selective Funding Problem: Abortions and Religious Schools, 104 Harv. L. Rev. 989 (1991). But see Zobrest v. Catalina Foothills School District, 963 F.2d 1190 (9th Cir. 1992), cert. granted, No. 92-94 (Oct. 5, 1992). Government nonetheless retains the right to set the cur- riculum in its own schools and insist that those who can- not accept the result exercise their right under Pierce v. Society of Sisters, 268 U.S. 510 (1925), and select private education at their own expense. The private market sup- ports a profusion of schools, many tailored to religious or cultural minorities, making the majoritarian curriculum of the public schools less oppressive. We agree with Judge Boggs that “school boards may set curricula bounded only by the Establishment Clause” even though pupils may find the books and classroom discourse offensive or im- moral. Mozert, 827 F.2d at 1080 (concurring opinion). By remaining neutral on religious issues, the state satisfies its duties under the free exercise clause. Employment Division v. Smith, 494 U.S. 872 (1990). All that remains is Barnette itself, and so long as the school does not com- pel pupils to espouse the content of the Pledge as their own belief, it may carry on with patriotic exercises. Ob- jection by the few does not reduce to silence the many who want to pledge allegiance to the flag ‘‘and to the Re- public for which it stands’’. IV All of this supposes that the Pledge is a secular rather than sectarian vow. Everything would be different if it were a prayer or other sign of religious devotion. Does “under God” make the Pledge a prayer, whose recitation violates the establishment clause of the first amendment? The district court trudged through the three elements identified by the Court in Lemon, concluding that the Pledge passes every test. Of course Lemon was not de- vised to identify prayer smuggled into civic exercises, and its status as a general-purpose tool for administering the A-13 No. 91-1684 13 establishment clause is in doubt. Rumblings of discontent are frequent. The Court heard Lee v. Weisman in large part to reconsider Lemon, and Lee concluded without re- newing Lemon’s lease. The majority opinion reserved deci- sion on the future of Lemon. 112 S. Ct. at 2655. Three members of the majority signed an opinion employing Lemon, 112 S. Ct. at 2663-64 (Blackmun, J., joined by Stevens & O’Connor, JJ.), but one member of this group has expressed doubts. Aguilar v. Felton, 473 U.S. 402, 426-30 (1985) (O’Connor, J., dissenting). The author of the majority opinion in Lee has disparaged Lemon, see Al- legheny, 492 U.S. at 655-56 (opinion of Kennedy, J.). The fifth member of the majority in Lee wrote a concurring opinion that did not rely on or endorse Lemon. 112 S. Ct. at 2667-78 (Souter, J.). And four Justices proposed to jettison Lemon forthwith. 112 S. Ct. at 2685 (Scalia, J.. dissenting, joined by Rehnquist, C.J., and White & Thomas, JJ.). So we are not disposed to resolve this case by parsing Our approach is more direct. Must ceremonial references in civic life to a deity be understood as prayer, or support for all monotheistic religions, to the exclusion of atheists and those who worship multiple gods? You can’t under- stand a phrase such as “Congress shall make no law re- specting an establishment of religion” by syllogistic rea- soning. Words take their meaning from social as well as textual contexts, which is why “a page of history is worth a volume of logic.” New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921) (Holmes, J.). Unless we are to treat the founders of the United States as unable to understand their handiwork (or, worse, hypocrites about it), we must ask whether those present at the creation deemed cere- monial invocations of God as “establishment.” They did me “: Allegheny, 492 U.S. at 671-73 (opinion of Ken- nedy, J.). James Madison, the author of the first amendment, is- sued presidential proclamations of religious fasting and A-14 14 No. 91-1684 thanksgiving.! Thomas Jefferson, who refused on separa- tionist grounds to issue thanksgiving proclamations,? none- theless signed treaties sending ministers to the Indians.* The tradition of thanksgiving proclamations began with President Washington, who presided over the constitution- al convention.* From the outset, witnesses in our courts have taken oaths on the Bible, and sessions of court have opened with the cry “God save the United States and this honorable Court.” Jefferson’s Declaration of Indepen- dence contains multiple references to God (for example: ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.’’). When Madison 1 See Leonard W. Levy, The Establishment Clause: Religion and the First Amendment 100 (1986). In 1817, after leaving office, Mad- ison confessed that these proclamations violated the principles of separation for which he stood but pleaded “the legal aphorism de minimis non curat lex.” Elizabeth Fleet (ed.), Madison’s ‘Detached Memoranda”, 3 William & Mary Quarterly 534, 559 (1946), reprinted in Philip B. Kurland & Ralph Lerner (eds.), 5 The Founders’ Con- stitution 104 (1987). 2 See his letter to Rev. Samuel Miller, in 5 The Founders’ Con- stitution 98-99. 3 The treaties are collected in Robert L. Cord, Seperation of The court notes that there was much heated debate in the legislature over whether the statute as written would be violative of the Free Exercise Clause of the First Amendment because it could be interpreted to mandate the recital of the pledge. The court will discuss this issue when it addresses plaintiff's Free Exercise claim. However, the issue of compulsion is not relevant when deciding whether a statute has a secular purpose in compli- ance with the Establishment Clause. See Engel v. Vitale, 370 U.S. 421, 430 (1962) (“The Establishment Clause . . . is violated by the enactment of laws which establish an official religion whether these laws operate directly to coerce non-observing individuals or not.”). eee meets Droste 4 2 Z ; B-7 inhibits religion. As noted above, the primary effect of the stat- ute is to teach students about the principles under which our government operates and not to advance any particular religious beliefs. The recital of the pledge, like the singing of the National Anthem, “‘is not a religious but a patriotic ceremony, intended to inspire devotion to and love of country. Any religious references therein are incidental and expressive only of the faith which as a matter of historical fact has inspired the growth of the nation.” Sheldon, 221 F. Supp. at 774. Finally, the statute passes the third part of the Lemon test because it does not cause excessive entanglement of government with religion. The statute at issue in this case is a far cry from the statute which the Lemon Court held would create an excessive entanglement between church and state. In Lemon, the Court examined two state statutes which authorized using public funds to subsidize teachers who taught secular subjects in non-public schools. The Court found that the statutes would cause excessive entanglement with religion because the majority of the non- public schools which would receive the funds were parochial schools. Therefore, the state governments would have to con- stantly monitor the programs to insure that public funds were not being used for any religious purposes. In this case, the statute requires the teaching of secular subjects in public, non-parochial schools, so no entanglement with religion is involved. Based on this analysis, the court finds as a matter of law that the Illinois statute does not violate the Establishment Clause of the First Amendment. Free Exercise Although the court held in its previous opinion that “the failure of plaintiffs’ Establishment Clause claim [was] all but a foregone conclusion,” the court went on to find that plaintiffs had “stated a claim for violation of the Free Exercise Clause.” Sherman, 714 F. Supp. at 935, 937. The court found that the allegations in plaintiffs’ complaint that Richard Sherman was B-8 told to recite the pledge daily by his principal, that he was embar- rassed and faced sanctions when he refused, and that the lan- guage of the statute was mandatory were sufficient to state a claim that Richard Sherman was unconstitutionally coerced to recite the pledge. /d. at 935. It should be noted that the court gave plaintiffs’ complaint the “solicitude accorded to pro se pleadings” because plaintiffs drafted and filed their complaint before they obtained counsel. /d. at 933 n.1. Moreover, the court did not consider any other documents, such as the school defend- ants’ affidavits stating that Richard was free to remain seated during the pledge, because a court cannot consider documents eutside the pleadings on a motion to dismiss. In its second opin- ion in this cause, in which the court considered defendant Harti- gan’s motion to dismiss, the court reiterated its holding that plaintiffs’ complaint was sufficient to state a claim under the Free Exercise Clause. However, the court warned that “when the court considers the parties’ summary judgment motions, vague allegations of coercion, unsupported by competent affidavits, will not be sufficient to create a genuine issue of material fact.” Sherman, 745 F. Supp. at 1374, n.4.4 The court will now deter- mine whether there is a genuine issue of fact regarding plaintiffs’ Free Exercise claim. The parties agree that when school officials force public school students to recite or participate in the Pledge of Alle- giance, it violates the students’ rights under the Free Exercise Clause of the First Amendment. The Supreme Court so held in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), and many lower courts have reaffirmed this principle * After denying defendant Hartigan’s motion to dismiss, the court set a briefing schedule for defendant Hartigan’s motion for summary judgment. Thus, plaintiffs, having been warned about the importance of sufficient affidavits, could have submitted supplementary affidavits in response to defendant Hartigan’s motion for summary judgment. However, plaintiffs chose not to file any response to defendant Hartigan’s motion and instead relied on the briefs and affidavits previously filed in support of plaintiffs’ motion for summary judgment and in opposition to the school defendants’ motions. B-9 since Barnette was decided. See, e.g., Mozert v. Hawkins County Board of Education, 827 F.2d 1058, 1066 (6th Cir. 1987), cert. denied, 484 U.S. 1066 (1988); Lanner v. Wimmer, 662 F.2d 1349, 1354 (10th Cir. 1981); Lipp v. Morris, 579 F.2d 834, 835-36 (3d Cir. 1978); Goetz v. Ansell, 477 F.2d 636, 637-39 (2d Cir. 1973); Frain v. Baron, 307 F. Supp. 27, 31-34 (E.D.N.Y. 1969). However, the parties disagree about whether the Illinois pledge law, and the School defendants’ implementation of the law violate the principles enunciated in these cases. Plaintiffs maintain that the court should hold III. Rev. Stat. ch. 122, Para. 27-3 facially unconstitutional because the use of the word “shall” makes the statute coercive, regardless of whether the school defendants are applying the statute in a mandatory way. The court agrees that it was an unfortunate choice to use the word “shall” in the statute without explicitly creating an exception for conscientious objectors, however the use of the word “shall” alone does not necessitate declaring the statute to ve facially unconstitutional. The statute does not state that “all” students shall say the pledge, and therefore an excep- tion can be imp!ied for conscientious objectors. Moreover, the statute contains no penalty on its face. In fact, the sponsors of the law relied on the lack of a penalty when arguing that the law did not violate the principles enunciated in Barnette, supra. See Ill. Gen. Assembly, Senate Floor Debates, May 22, 1979, pp. 270-71; House Floor Debates, June 25, 1979, pp. 61, 64; June 30, 1979, pp. 60-61. Finally, the court does not find the statute facially unconstitutional because “plaintiffs must generally show that a Statute is unconstitutional as applied, not merely that it may be interpreted to authorize unconstitutional actions.” Van Zandt v. Thompson, 839 F.2d 1215, 1218 (7th Cir. 1988), citing, Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501-04 (1985). The court will now examine whether the statute is unconstitutional “as applied.” Defendant Hartigan states in his motion for summary judg- ment that “plaintiff Richard Sherman has never been in any way B-10 required, forced, or compelled to ‘stand during, recite or other- wise participate in the Pledge of Allegiance’ by his teacher or any employee of Community Consolidated School District 21 of Wheeling Township.” Hartigan’s Memo. in Support of Motion for Summary Judgment at 4. As evidence of this, defendant Hartigan cites to the affidavits of Superintendent Descarpentrie, Principal Garrett and Richard Sherman’s first grade teacher, Marilyn Barden. See School Defendants’ Response to Plaintiffs’ Motion for Summary Judgment, attached affidavits. All three affiants state that Richard Sherman was never required to par- ticipate in the daily pledge and that he was never punished or threatened with punishment because of his refusal to participate. Id. Robert Sherman attempts to rebut these affidavits with his own affidavit in which he states, ‘““Defendant Garrett, principal of the school attended by my son, asks my son to stand with one hand over his heart and participate with the other pupils in reciting the pledge.” Affidavit of Robert Sherman, Para. 5. How- ever, Mr. Sherman does not allege in his affidavit that this state- ment is based on personal knowledge, as is required by Fed. R. Civ. P. 56(e). He does not state that he attended his son’s school and saw Principal Garrett asking his son, in particular, to stand during the pledge. Without a properly supported affidavit, plain- tiff cannot create a genuine issue of material fact as to whether Principal Garrett, or any other school official directly forced his son to participate in the pledge. Not only does Mr. Sherman’s affidavit fail to create a genu- ine issue of material fact regarding direct coercion, but it also is insufficient to create a genuine issue of fact regarding indirect coercion. Mr. Sherman may not rest on the allegations of indi- rect coercion in his complaint, but must put forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e). Mr. Sherman states in his affidavit that his “son has been knocked down by other children who are angered at his opposi- tion to pledging” and that his son has suffered “embarrassment and humiliation . . . when the pledge ceremony is conducted.” eeee B-11 Affidavit of Robert Sherman, Paragraphs 8, 10. However, Mr. Sherman does not explain how he knows that the reason his son was knocked down was because of his refusal to recite the pledge — Mr. Sherman just expects the court to take his word for it. Similarly, Mr. Sherman does not state how he knows that his son feels embarrassed during the pledge ceremony. If Mr. Sher- man’s son told him that he was knocked down for not saying the pledge ceremony, Mr. Sherman should have so stated in his affidavit. Mr. Sherman should have also stated that his son is incompetent to make an affidavit on his own behalf and explain why. See, e.g., United States v. Jones, 482 F.2d 747, 752 (D.C. Cir. 1973) (test for competency of child witness depends upon intelli- gence of the child and whether the child understands the differ- ence between truth and falsehood). In short, Mr. Sherman’s affidavit, in its present form, does not create a genuine issue of material fact regarding whether Richard Sherman feels indirect coercion to recite the pledge. Moreover, even if Mr. Sherman had presented competent evidence that his son feels indirectly coerced by peer pressure to recite the pledge, it is doubtful that this would have been suffi- cient to prove a violation of Richard Sherman’s Free Exercise rights. This is because no other court has held that the mere recital of the pledge, without any direct coercion by school offi- cials, violates the First Amendment. In previous cases in which school pledge laws or policies were found to be unconstitutional, the school officials “punished” the children in some way for refusing to participate. See, e.g., Barnette, supra. (students who refused to participate in the pledge were expelled and both the students and their parents were subject to prosecution for the Student’s “unlawful absence’’); Lipp, supra. (student was “threatened” by school officials when she refused to stand dur- ing pledge); Goetz, Supra. (students opposed to pledge had to either stand in silence, leave the room, or face suspension); Banks v. Board of Public Instruction, 314 F. Supp. 285 (S.D. Fla. 1970) (student suspended for refusing to stand during pledge), vacated, 401 U.S. 988 (1971). In the case at bar, it is undisputed B-12 that Richard Sherman was not punished or threatened with pun- ishment by any school official for failing to participate in the pledge. At most, Richard faced indirect pressures because all the other children were conforming and saying the pledge and he was not. The court recognized in its first opinion that these indirect pressures can be compelling. As Justice Brennan stated in Abing- ton School District v. Schempp, 374 U.S. 203, 290 (1963), “(C]}hildren are disinclined at this age to step out of line or to flout ‘peergroup norms.’ ”’ However, Justice Brennan made this remark in the context of a case involving state laws which required reading passages from the Bible or the Lord’s Prayer at the beginning of each school day and these laws were found to violate the Establishment Clause. In contrast, reciting the pledge in public schools does not violate the Establishment Clause. Moreover, a state legislature is entitled to establish a curriculum for its schools which includes the teaching of the Pledge of Allegiance to those students who have no religious objections to reciting the pledge. In Palmer v. Board of Education of the City of Chicago, 603 F.2d 1271, 1274 (7th Cir. 1979), cert. denied, 444 U.S. 1026 (1980), the Seventh Circuit held that a public school teacher who was opposed to the pledge and other patriotic exer- cises on religious grounds could not “require others to submit to her views and to forego a portion of their education they would otherwise be entitled to enjoy.” Similarly, even if the Shermans _had made a proper showing regarding the peer pressure Richard no doubt feels, the court believes that that alone would not be a sufficient reason to deny the other children their right to learn how to participate in this patriotic exercise. For these reasons, the court grants defendant Hartigan’s motion for summary judg- ment regarding plaintiff's Free Exercise claim. Equal Protection Finally, the court finds that there is no genuine issue of fact regarding plaintiff's claim that the Illinois pledge statute violates the Equal Protection Clause of the Fourteenth Amendment and 0 Bide DOSE Alte atcille ki Bhat a 6 AO RR ORO on. EN pene tate TIDE A OMe NO AN bite hl Nhe d HO > nalie tee AS ches 2a SA. Ge Eee be RENE tet # ote ae EAI A me eine AD AL, IAA ttle a! wor a SOE ye Seve AS. B-13 the court grants defendant Hartigan’s motion for summary judg- ment on this claim as well. In order to determine whether a law is violative of the Equal Protection Clause, a court must first deter- mine what level of scrutiny to apply. See Faheem-El v. Klincar, 841 F.2d 712, 727 (7th Cir. 1988). If the law infringes on a fundamental right or discriminates on the basis of a suspect category, the law is reviewed under either a strict or intermediate scrutiny standard. /d. “If no fundamental rights or suspect cate- gories are involved, a court must simply determine whether the differential treatment of similarly situated individuals is ration- ally related to a legitimate state interest.” Jd. The court has already found that the statute does not violate the religion clauses of the First Amendment, so no fundamental right is involved. Also, the law does not discriminate on the basis of any Suspect category. Fherefore, the court must determine whether the law is rationally related to a legitimate state interest. As the court stated above, Ill. Rev. Stat. ch. 122, Para- graph 27-3 is rationally related to the legitimate state interest of instilling knowledge of and appreciation for patriotic values in public school students. As the Seventh Circuit stated in Palmer, 603 F.2d at 1274, “[t}here is a compelling state interest in the choice and adherence to a suitable curriculum for the benefit of our young citizens and society.” Learning the Pledge of Alle- giance can certainly be considered part of a “suitable curricu- lum” for students. Therefore, the court finds the pledge statute is rationally related to a legitimate state interest. Defendant Harti- gan’s motion for summary judgment on plaintiff's Equal Protec- tion Clause claim is granted. Conclusion For the aforementioned reasons, the court finds that all defendants were proper parties in Count I of the complaint. Therefore, the court denies the school defendants’ motion to dismiss Count I against them. The court further finds that there is NO genuine issue of material fact as to whether III. Rev. Stat. ch. 122, Paragraph 27-3 is constitutional under the First and B-14 Fourteenth Amendments to the Constitution. The court grants summary judgment in favor of all defendants and denies plain- tiffs’ motion for summary judgment. ENTER: Ann Claire Williams, Judge United States District Court Dated: February 28, 1991 PT A hl a alg li AI WA Die COs ht BPR ees ne! ie el A A lh. Sk hat BL RAD AAD Py tal ‘ C-1 APPENDIX C IN THE United States District Court for the Northern District of Jllinois “Eastern Division ROBERT IAN SHERMAN, for himself and as natural guardian for RICHARD HARRY SHERMAN, a minor son and the SOCIETY OF SEPARATIONISTS, INC., Plaintiffs, Vv. COMMUNITY CONSOLIDATED SCHOOL DISTRICT 21 OF WHEELING TOWNSHIP, LLOYD DESCARPENTRIE, School District Superintendent, and DR. FERNE GARRETT, Principal of Riley School, Individually and as representatives of the STATE OF ILLINOIS, and NEIL F. HARTIGAN, Attorney General of the State of Illinois, Defendants. No. 88 C 9205 t Hon. Ann C. Williams District Judge | | MEMORANDUM OPINION AND ORDER , Robert Sherman, on behalf of himself and his minor son, Richard, and the Society of Separationists, Inc. (“the Society’’) filed suit against Community Consolidated School District 21 of Wheeling Township, School District Superintendent Lloyd Descarpentrie, and Principal Ferne Garrett claiming that the daily recital of the Pledge of Allegiance at Richard’s public C-2 elementary school violates their rights under the First and Four- teenth Amendments. Specifically, because the Shermans and the members of the Society are atheists, they claim that the daily recital of the Pledge, which contains the words “under God”, in a public school, pursuant to an Illinois statute! is an unconstitu- tional establishment of religion and violates their rights to free expression and equal protection under the law. Defendants moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The court denied defendants’ motion to dismiss, holding that although plaintiffs probably would not pre- vail on their Establishment Clause claim, the plaintiffs’ com- plaint did state viable Free Exercise and Equal Protection claims.’ After the court’s ruling, plaintiffs filed a “re-amended”’ complaint in which plaintiffs added Illinois Attorney General Neil Hartigan as a defendant. Plaintiffs’ most recent complaint seeks a declaratory judgment that IIl.Rev.Stat. ch. 122, 1 27-3, which provides for daily recital of the Pledge, is unconstitutional and an injunction against its enforcement. Plaintiffs also seek money damages from each defendant for the alleged violation of plaintiffs’ constitutional rights and for the alleged emotional distress plaintiffs have suffered. Defendant Hartigan has filed a ! Tll.Rev.Stat. ch. 122, § 27-3 provides, “The Pledge of Allegiance shall be recited each school day by pupils in elementary educational institutions supported or maintained in whole or in part by public funds.” = See Sherman et al. v. Community Consolidated School District 21 of Wheeling Township, et al., 714 FSupp. 932, 936-37 (N.D.Ill. 1989). C-3 motion to dismiss the “re-amended” complaint pursuant to Fed- eral Rule of Civil Procedure 12(b)(1). For the following reasons, defendant’s motion to dismiss is denied. STANDING Defendant Hartigan argues that plaintiffs’ complaint should be dismissed because plaintiffs have not suffered “actual injury redressable by the court” and therefore they do not have standing to maintain their suit. See Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758-59, 70 L.Ed.2d 700 (1982), citing, Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 39, 96 S.Ct. 1917, 1924-25, 48 L.Ed.2d 450 (1976). In its previous opinion in this case, the court examined the Society’s standing to bring suit on behalf of its members and found that the original complaint did not sufficiently allege actual or threatened injury of any members other than the Shermans. The court therefore ordered the Society to supplement the amended complaint with factual allegations to support its standing to sue on behalf of its members. In the “re-amended complaint” plain- tiffs simply allege that “[t]here are other members of the Society residing in District 21 who are offended by the Districts’s prac- tice of enforcing IIIl.Rev.Stat. ch. 122, sec. 27-3”. Re-Amended Complaint, 1 4. The court finds this general allegation does not show any members other than the Shermans have suffered actual or threatened injuries, “other than the psychological conse- quence presumably produced by observation of conduct with which one disagrees.. That is not an injury sufficient tc confer >The Court notes that when ruling on a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(1), the court “is not bound to accept as true the allegations of the complaint which tend to establish jurisdiction where a party properly raises a factual question con- cerning the jurisdiction of the . . . court to proceed with the actions.” Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir. 1979). Instead, the court will “look beyond the jurisdictional allegations in the complaint and view whatever evidence has been submitted on the issue in determining whether in fact subject matter jurisdiction exists.” Jd. C-4 standing under Art. III. . . ” Valley Forge College, 454 US. at 485, 102 S.Ct. at 765. Therefore, the court holds the Society does not have standing to bring this suit on behalf of its members. Defendant Hartigan argues that the Shermans also have not alleged a concrete injury, apparently basing his argument on the affidavits submitted by defendants Descarpentrie and Gar- rett and Richard’s first grade teacher Marilyn Barden. All three affiants state that Richard Sherman was never punished or threatened with punishment for not participating in the Pledge. However, defendant Hartigan ignores this court’s previous state- ment that “school children are impressionable and often suscep- tible to social influence” and therefore they may feel coerced to recite the Pledge even if they are not punished or threatened with punishment. Sherman, 714 FSupp. at 936-37. Plaintiffs allege in the re-amended complaint and in Robert Sherman’s affidavit that Richard felt compelled to say the Pledge because of the embarrassment and loss of friends he suffered by refusing to participate in a ceremony led by his principal and participated in by all his classmates. See Re-Amended Complaint, 1 8, 11-13, 20 and Affidavit of Robert Sherman, 91 8, 10. These allegations may not ultimately constitute a violation of plaintiffs’ rights under the First and Fourteenth Amendments, but they are sufficient to confer standing on the Shermans to bring this action. RIPENESS Defendant Hartigan next argues that plaintiffs’ complaint should be dismissed because “‘plaintiffs’ claims are not ripe for adjudication.” Defendant Hartigan’s Memo at 6. Again relying on the affidavits stating that no school official has punished Richard for refusing to say the Pledge, defendant Hartigan con- cludes “[t}here is no ‘threat that the challenged law will be enforced against’ any of the plaintiffs.” Jd. This again ignores plaintiffs’ claim that defendants’ leading of the Pledge, pursuant to the statute, is a means of compelling recitation of the Pledge. This argument, even if it does not ultimately prevail, shows plain- tiffs’ claim are ripe for adjudication. C-5 ABSTENTION Finally, defendant Hartigan argues that this court should abstain from adjudicating plaintiffs’ claims because the statute at issue has not been interpreted by any Illinois court and a ruling by an Illinois court may modify or moot the constitutional issue plaintiffs pose. However, “[t]he doctrine of abstention, under which a District Court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow excep- tion to the duty of a District Court to adjudicate a controversy properly before it. Abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional cir- cumstances where the order of the parties to repair to the State court would clearly serve an important countervailing interest.” County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89, 79 S.Ct. 1060, 1063, 3 L.Ed.2d 1163 (1959). “The paradigm of the ‘special circumstances’ that makes abstention appropriate is a case where the challenged state statute is susceptible of a con- struction by the state judiciary that would avoid or modify the necessity of reaching a federal constitutiona! questions.” Bab- bitt v. United Farm Workers, 442 U.S. 289, 306, 99 S.Ct. 2301, 2313, 60 L.Ed.2d 895 (1979). Defendant Hartigan maintains that this case is appropriate for abstention because “‘an Illinois Court could very well deter- mine that the statutory provision is simply not mandatory, thereby avoiding a resolution of the constitutional questions plaintiffs raise.” Defendant Hartigan’s Memo at 13. The court disagrees that such a ruling by an Illinois court would obviate the need to decide the constitutional question posed by plaintiffs. According to the affidavits submitted by defendants, the statute currently is being applied in a non-mandatory way. Defendants are not openly forcing Richard Sherman to stand, recite or par- ticipate in the Pledge. Yet, as the court has noted several times, plaintiffs maintain that having the Pledge led by the principal daily is inherently coercive and therefore violative of plaintiffs’ rights. Thus, even if an Illinois court interprets the statute to C-6 exempt children who cannot say the Pledge for religious or polit- ical reasons, the court would still have to resolve the question of whether school officials’ leading of the Pledge, pursuant to the statute, results in unconstitutional coercion. Because abstention would not avoid the necessity of reaching the constitutional issue and would simply add delay to a case that has already been pending for almost two years, the court will not abstain from deciding plaintiffs’ claims. CONCLUSION For the aforementioned reasons, defendant Hartigan’s motion to dismiss is denied‘. A status hearing will be held on September 11, 1990 at 9:30 a.m. Ann C. Williams, District Judge Date: August 21, 1990 7 * The court notes that in finding plaintiffs’ allegations of coercion suffi- cient to defeat defendant’s motion to dismiss, the court construed plain- tiffs’ pro se complaint and affidavit quite liberally. See Cain v. Lane, 857 F.2d 1139, 1142 (7th Cir. 1988) (pro se complaints must be read liberally). However, when the court considers the parties’ summary judgment motions, vague allegations of coercion, unsupported by competent affida- vits, will not be sufficient to create a genuine issue of material fact. See Federal Rule of Civil Procedure 56(e). Summary judgment must be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The court did not issue a ruling on the summary judgment motions already filed because the court wishes to have all the summary judgment motions before it in order to decide them simultaneously. Therefore, the court orders defen- dant Hartigan to file a summary judgment motion by August 31, 1990. Plaintiffs’ response is due September 10, 1990 and defendant’s reply is due September 17, 1990. D-1 APPENDIX D IN THE United States District Court for the Northern District of Mllinois Eastern Division ROBERT SHERMAN, for himself and as natural guardian for his son, RICHARD SHERMAN, and the SOCIETY OF SEPARATIONISTS, INC., Plaintiffs, V. COMMUNITY CONSOLIDATED SCHOOL DISTRICT 21 OF WHEELING TOWNSHIP, School District Superintendent LLOYD DESCARPENTRIE, and Principal FERNE GARRETT, Defendants. | No. 88 C 9205 Judge Ann C. Williams MEMORANDUM OPINION AND ORDER The plaintiffs Robert Sherman, for himself and as natural guardian for his son, Richard Sherman, and the Society of Separationists, Inc. bring this complaint pursuant to 42 U.S.C. § 1983 alleging that the defendants community Consolidated School ™ strict 21 of Wheeling Township, School District Super- intendent Lloyd Descarpentrie, and Principal Ferne Garrett vio- lated their rights under the First and Fourteenth Amendments. The plaintiffs also challenge the constitutionality of Ill. Rev. Stat. ch. 122, p 27-3 (1980). The defendants move to dismiss the D-2 plaintiffs’ complaint pursuant to Federal Rule of Civil Proce- dure 12(b)(6). The defendants’ motion is denied for the follow- ing reasons. I RULE 12(B)(6) When ruling on this motion, pursuant to Federal Rule of Civil Procedure 12(b)(6), the court will “take the allegations in the complaint to be true and view them along with the reason- able inferences to be drawn from them in the light most favorable to the plaintiff[s].” Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1984), cert. denied, 475 U.S. 1047, 106 S.Ct. 1265, 89 L.Ed.2d 574 (1986). A complaint should be dismissed only when “it appears beyond doubt that the plaintiff is unable to prove any set of facts which would entitle plaintiff to relief.” Id. In addition, a “court must construe [pro se] pleading liberally, and mere vagueness or lack of detail does not constitute suffi- cient grounds for a motion to dismiss.””' Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir.1985); Cain v. Lane, 857 F.2d 1139, 1142 (7th Cir.1988) (pro se complaints must be read liberally). Finally, the court notes that “in ‘complex cases involving funda- mental rights and important questions of public policy, such peremptory treatment [as dismissal] is rarely appropriate.”’ DeMallory v. Cullen, 855 F.2d 442, 445 (7th Cir.1988), quoting Rutan v. Republican Party of Illinois, 848 F.2d 1396, 1414 (7th Cir.1988) (Ripple, J., concurring in part, dissenting in part). ! The plaintiffs were proceeding pro se when they drafted and filed their complaint. Although they have now obtained counsel, the initial complaint was not amended by counsel. Consequently, the court will continue to give the plaintiffs’ complaint the solicitude accorded to pro se pleading. D-3 II FACTS The pertinent facts as alleged in the complaint are as fol- lows. Richard Sherman is a first grade student at James Whit- comb Riley Public Elementary School. At 9:05 a.m. Principal Garrett “addresses all classrooms on an intercom system telling them to: Please rise for the all-school pledge. I pledge allegiance to the flag of the United States of America and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all. Richard is publically asked to stand, put one hand over his heart, and perform this ceremony. Complaint, p 5. The Shermans, who are practicing atheists, are members of the Society of Separa- tionists. The Society is a Maryland corporation licensed to do business in Illinois. The Society “has played a historical role in Church/State separation[,] government-coerced observances and other United State Constitutional issues for many years.” Id. at p 4. Ill STANDING The defendants move to dismiss the complaint on a variety of grounds. The defendants first contend the Society does not have standing to pursue this action as a party plaintiff on its own behalf.* They are correct. The society itself is not in a position to assert those rights, claimed to be constitutionally protected, which the statute curtails. Cf, N.A.A.C.P v. Button, 371 U.S. 415, 428, 83 S.Ct. 328, 335, 9 L.Ed.2d 405 (1963). The society, there- fore, does not suffer the actual or threatened injury required to ? When ruling on this motion to dismiss for want of standing, this court “must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). ~ D-4 « make out a case or controversy between itself and the defendants within the meaning of Article III. See Valley Forge Christian Col- lege v. Americans United For Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982); FMC Corp. v. Boesky, 852 F.2d 981, 987 (7th Cir.1988). However, the above conclusion does not foreclose the possibility that the Society may be able to bring suit on behalf of its members injured by the challenged conduct. The Society may bring suit on behalf of its members if (a) its membership would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977); Freedom From Religion Foundation, Inc. v. Zielke, 845 F.2d 1463, 1467 (7th Cir. 1988). Given the bare bones nature of the complaint, the court is unable to determine whether the Society has standing to pursue claims on behalf of its membership at this juncture. While it is clear that at least two members of the Society, the Shermans, would have standing to sue in their own right,’ they are already doing so. It is not clear whether any other Society members would have standing to sue as a consequence of suffering actual or threatened injuries. Cf O’Hair v. White, 675 F.2d 680, 691 (Sth Cir.1982) (Society has standing to sue under a claim where every member suffers an individual injury to a fundamental right). In addition, the plaintiffs request, among other things, damages for mental distress and humiliation and punitive damages. This type of relief requires the participation of the individuals who have been harmed. See Hunt, 432 U.S. at 333, 97 S.Ct. at 2434 (an 3 See School District of Abington Township v. Schempp, 374 U.S. 203, 224 n. 9, 83 S.Ct. 1560, 1572 n. 9, 10 L.Ed. 2d 844 (1963). a, pros D-5 association may properly pursue declaratory, injunctive, or some other form of prospective relief on behalf of its membership). The plaintiffs will be given twenty-one (21) days from the entry of this order to conform their complaint to this court’s ruling. The Society is directed to supplement the amended complaints with factual allegations pertinent to the Standing question. See Warth, 422 U.S. at 501, 95 S.Ct. at 2206. The court will determine whether the Society has standing to pursue this action on behalf of its members after the amended complaint is filed. IV ESTABLISHMENT CLAUSE The plaintiffs contend that Ill.Rev.Stat. ch. 122. p 27-3 vio- lates the Establishment Clause of the First Amendment.‘ The third clause of the statute provides that The Pledge of Allegiance shall be recited each school day by pupils in elementary educational institutions Supported or maintained in whole or in part by public funds. ll.Rev.Stat. ch. 122, p 27-3. “The Establishment Clause . _ . does not depend upon any showing of direct government com- pulsion and is violated by the enactment of laws which establish an Official religion whether these laws operate directly to coerce non-observing individuals or not.” Engel v. Vitale, 370 U.S. 421. 430, 82 S.Ct. 1261, 1267, 8 L.Ed.2d 601 (1962). In Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), the Supreme court developed a “three-prong test to determine * The first Amendment of the Constitution provides in pertinent part that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof: The Establishment and Free Exercise Clauses have been made a plicable P to the states through the Fourteenth Amendment. Abington, 374 U.S. at 214, 83 S.Ct. at 1567; Edwards v. Aguillard, 482 U.S. 578. 582 n. 3,1 at 2576 n. 3 (1987). 07 S.Ct. D-6 whether legislation comports with the Establishment Clause.” Edwards v. Aguillard, 482 U.S. 578, 583, 107 S.Ct. 2573, 2577, 96 L.Ed.2d 510 (1987). The Lemon test is as follows: First, the legislature must have adopted the law with a secular purpose. Second, the statute’s principal or pri- mary effect must be one that neither advances nor inhibits religion. Third, the statute must not result in an excessive entanglement of government with religion. Id., quoting Lemon, 403 U.S. at 612-13, 91 S.Ct. at 2111. The state’s action must satisfy each prong of the test. /d. The court cannot apply the Lemon test when resolving this motion to dismiss because an application of the test would involve the court’s consideration of matters outside of the plead- ing. See, e.g., Edwards, 482 U.S. at 587, 107 S.Ct. at 2579 (legisla- tive history is considered). However, the failure of the plaintiffs’ Establishment Clause claims is all but a foregone conclusion. Several courts have expressly found that the Pledge of Alle- giance may be recited in public schools without violating the Establishment clause. See Lanner v. Wimmer, 662 F.2d 1349, 1354 (10th Cir.1981) (“while public schools may conduct patriotic ceremonies such as the pledge of allegiance, they may not com- pel participation by children who object on free exercise grounds’’); Smith v. Denny, 280 F.Supp. 651, 653-54 (E.D.Ca.1968), appeal dismissed, 417 F.2d 614 (9th Cir.1969); Gavin v. Peoples Natural Gas Co., 464 F.Supp.622,627 (W.D.Pa.1979), vacated on other grounds, 613 F.2d 482 (3d Cir.1980) (citing Smith). In Smith, the court characterized the Pledge as a “patriotic exercise[! containing ancillary references to God.” Smith, 280 F.Supp. at 653. Other courts have found that the inclusion of the phrase “In God We Trust” on coinage and currency does not violate the Establishment Clause. See Aronow v. United States, 432 F.2d 242, 243 (9th Cir. 1970); Hall v. Bradshaw, 630 F.2d 1018, 1022 (4th Cir.1980), cert denied, 450 U.S. 965, 101 S.Ct. 1480, 67 L.Ed.2d 613 (1981) (“References to the Deity in our ceremonies and our ee ea ee a eae eee, pies 5 Nee UR tealla Pardes 20 as Abii Pay gene fahe ; : i ‘ D-7 coinage and seals do not violate the Establishment Clause because they merely reflect his fact of our history and no longer have any potentially entangling theological significance.”) in Aronow, the Ninth Circuit stated that [i]t is quite obvious that the national motto and slogan on coinage and currency ‘In God We Trust’ has nothing whatsoever to do with the establishment of religion. Its use is of a patriotic or ceremonial character and bears no true resemblance to government sponsorship of a religious exercise. Aronow, 432 F.2d at 243. Another court held that the singing of the National Anthem by public school children does not violate the Establishment Clause. Sheldon v. Fannin, 221 FSupp. 766, 774 (D.Ariz. 1963). In the course of resolving the issue, the court noted that [t]he singing of the National Anthem is not a religious but a patriotic ceremony, intended to inspire devotion to and love of country. Any religious references therein are incidental and expressive only of the faith which as a matter of historical fact has inspired the growth of the nation. Finally, although the Supreme Court has not expressly ruled on this question, the court has strongly intimated that the recitation of the Pledge by public school students does not vio- late the Establishment Clause. The Court has repeatedly noted that “[w]e are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 684, 96 L.Ed. 954 (1952); Lynch v. Donnelly, 465 U.S. 668, 675, 104 S.Ct. 1355, 1360, 79 L.Ed.2d 604 (1984). Moreover, “[t]here is an unbroken history of official acknowledgement by all three branches of government of the role of religion in Ameri- can life from at least 1789.” Lynch, 465 U.S. at 674, 104 S.Ct. at 1359. In Lynch, the Supreme court listed a series of constitution- ally permissible acknowledgement of the role of religion in American life. See Van Zandt v. Thompson, 839 F.2d 1214, 1221 D-8 (7th Cir.1988) (citing to Lynch, 465 U.S. at 676-78, 104 S.Ct. at 1360-62). The pledge was one of the acknowledgements listed. Lynch, 465 U.S. at 676, 104 S.Ct. at 1361. The Court explicitly noted how the Pledge incorporated the phrase “ore Nation Under God” and is “recited by many thousands of public school children — and adults — every year.” id. The court has expressed its implicit approval of the Pledge in other cases as well. See Engel, 370 U.S. at 435 n. 21, 82 S.Ct. at 1269 n. 21; Abington, 374 U.S. at 281, 303-04, 83 S.Ct. at 1614 (Brennan, J., concurring) (“The reference to divinity in the revised pledge of alle- giance...may merely recognize the historical fact that our Nation was believed to founded ‘under God.’ ’’) The plaintiffs attempt to rebut this array of cases by attack- ing the underlying reasoning of some of the decisions. The court is unpersuaded by their contentions. Furthermore, the plaintiffs have cited no other case law in support of their claimed Estab- lishment Clause violation. If the plaintiffs choose to press this claim in their amended complaint, the court will apply the Lemon test. V FREE EXERCISE CLAUSE The plaintiffs also contend that II!.Rev.Siat. ch. 122, 27-3 violates the Free Exercise Clause by compelling Richard Sher- man to recite the Pledge of Allegiance. The court finds that this claim is meritorious. “The Free Exercise Clause affords an indi- vidual protection from certain forms of government compul- sion.”’ Bowen v. Roy, 476 U.S. 693, 700, 106 S.Ct. 2147, 2152, 90 L.Ed.2d 735 (1986); Mozert v. Hawkins County Board of Educa- tion, 827 F.2d 1058, 1070 (6th Cir.1987), cert. denied. ___. US. , 108 S.Ct. 1029, 98 L.Ed.2d 993 (1988); see also Abington, 374 US. at 223, 83 S.Ct. at 1572 (Free Exercise Clause requires compulsion). In the seminal case West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), the Supreme Court found that the compulsory flag salute ™" D-9 and pledge required by local authorities was unconstitutional. The Court stated that [i]f there is any fixed star in our constitutional constel- lation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein.. Id. at 642, 63 S.Ct. at 1187. The local authorities “transcend[ed] constitutional limitations on their power” by imposing the compulsory flag salute and pledge. Jd. The holding in Barnette has been applied and reaf- firmed by numerous lower courts. See, e.g., Mozert, 827 F.2d at 1066; Lanner, 662 F.2d at 1354; Lipp v. Morris, 579 F.2d 843, 835-36 (3d Cir.1978); Goetz v. Ansell, 477 F.2d 636, 637-39 (2d Cir.1973); Frain v. Baron, 307 F.Supp. 27, 31-34 (E.D.N.Y.1969). The defendants do not, indeed cannot, challenge the above legal principles. Instead, they attempt to distinguish this case from Barnette on the grounds that Richard Sherman was not compelled to recite the Pledge. The defendants’ argument is flawed for several reasons. First, the factual allegations of the complaint are sufficient in themselves to suggest compulsion. Robert Sherman, a first grader, must attend school under Illinois law. He is told to stand, put one hand over his heart, and recite the Pledge by his principal each morning. As the Supreme Court has noted, school children are impressionable and often suscep- tible to social influence. See School District of the City of Grand Rapids v. Ball, 473 U.S. 373, 383, 105 S.Ct. 3216, 3222, 87 L.Ed.2d 267 (1985); Abington, 374 U.S. at 288-90, 291 n. 69, 83 S.Ct. at 1606-07, 1608 n. 69 (Brennan, J., concurring) (“i]t is also appar- ent that the susceptibility of school children to prestige sugges- tion and social influence within the school environment varies inversely with the age, grade level, and consequent degree of sophistication of the child.”) The command of his principal along with fears of “embarrassment, potential loss of business associa- tions (Robert), friends and other sanctions/penalties” compel D-10 Richard to recite the Pledge. Complaint, pp 7-9; see also Abing- ton, 374 U.S. at 290, 83 S.Ct. at 1607 (Brennan, J., concurring) (“even devout children may well avoid claiming their right and simply continue to participate in exercises distasteful to them because of an understandable reluctance to be stigmatized as atheist or nonconformists.’’) Moreover, the statute requires pupils to recite the Pledge in clear and unambiguous prose. Thus, the statutory terms are coercive. Cf, Bowen, 476 U.S. at 704, 106 S.Ct. at 2154 (statute that requires the submission of a social security number as a prerequisite for obtaining benefits is compulsive.) The defend- ants contend that the legislature’s failure to include sanctions for non-compliance renders the statue non-compulsive. The plain- tiffs, however, note that Illinois law allows school boards to suspend or expel pupils for misconduct. See Ill.Rev.Stat. ch. 122, p 10-22.6. While “misconduct” is not explicitly defined, the fail- ure to obey the express command of a state statute would seem to fall within any definition of the terms. As a result, it is conceiv- able that the younger Sherman could be punished under Illinois law for his failure to comply with the statute. The defendants also contend that Richard has always been free to remain seated quietly at his desk during the recitation of the Pledge. The court will not consider this assertion because it is, quite naturally, not included in the plaintiffs’ complaint. Furthermore, the statute by implication negates any such right. Consequently, the court finds that the plaintiffs have stated a claim for violation of the Free Exercise Clause. VI EQUAL PROTECTION CLAUSE The plaintiffs further challenge Ill.Rev.Stat. ch. 122, p 27-3 on the grounds that it violates the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause “pro- vides that no State shall ‘deny any person within its jurisdiction equal protection of the law.’” Faheem-El v. Klincar, 841 F.2d 712, D-11 727 (7th Cir.1988), quoting U.S. Const.Amend.XIV. When mak- ing its equal protection analysis, this court must first determine whether the state legislation “infringes upon a fundamental right or discriminates on the basis of a suspect category.” Jd. In this case, the plaintiffs assert that the statute infringes on their First Amendment rights. As stated above, the court has found that the challenged statute may violate the plaintiffs’ rights as guaranteed by the Free Exercise Clause. “When State laws impinge on per- sonal rights protected by the Constitution,” they may be “sus- tained only if they are suitably tailored to serve a compelling state interest.” Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985); Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 904, 906 n. 6, 106 S.Ct. 2317,2322, n. 6, 90 L.Ed.2d 899 (1986); Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 (1969); see also Salem Inn, Inc. v. Frank, 522 F.2d 1045, 1049 (2d Cir.1975) (Strict scrutiny applicable when an ordinance bur- dens First Amendment expression rights). Thus, the plaintiffs’ equal protection challenge may also be meritorious and will not be dismissed. Vil PUNITIVE DAMAGES The Defendants move to strike the plaintiffs’ prayer for punitive damages pursuant to Federal Rule of Civil Procedure 12(f). The defendants’ motion is granted for the following rea- sons. Under Illinois law, “punitive or exemplary damages may be awarded when torts are committed with fraud, actual malice, deliberate violence or oppression, or when the defendant acts willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others.” Kelsay v. Motorola, Inc., 74 Il].2d 172, 384 N.E.2d 353, 359 (IIl.1978). In addition, “the pre- liminary question of whether the facts of a particular case justify the imposition of punitive damages is properly on of law.” Jd.; West v. Western Casualty and Surety Co., 846 F.2d 387, 398 (7th Cir.1988). In this case, there are no allegations which indicate D-12 that the defendants acted in a sufficiently egregious manner as to warrant the imposition of punitive damages.’ Consequently, the plaintiffs’ prayer for punitive damages will be stricken. Vill QUALIFIED IMMUNITY The defendants Descarpentrie and Garrett also move for dismissal of the action against them in their individual capacities on the grounds that they are entitled to good faith immunity from liability. Qualified immunity, as an affirmative defense, will be an appropriate ground for dismissal if it “clearly appears on the face of the complaint.” Quiller v. Barclays American/Credit. Inc., 727 F.2d 1067, 1069 (11th Cir.1984), adhered to, 764 F.2d 1400 (11th Cir.1985) (en banc), cert. denied, 476 U.S. 1124, 106 S.Ct. 1992, 90 L.Ed.2d 673 (1986); Rakovich v. Wade, 850 F.2d 1180, 1204 (7th Cir.) (en banc), cert. denied, ____ U.S. ___., 109 S.Ct. 497, 102 L.Ed.2d 534 (1988) (qualified immunity is an affirmative defense). The defendants’ qualified immunity defense does not appear on the face of the complaint. Moreover, qualified immunity determinations are more appropriately made in the summary judgment context. Rakovich, 850 F.2d at 1205-06. Accordingly, the court will resolve the immunity issue in the context of the parties’ summary judgment motions. * The court notes that the defendant school district, a quasi-municipal corporation, would be immune from punitive damages in any event. Peo- ple v. Furman, 26 Ill.2d 334, 186 N.E.2d 262, 263 (Ill.1962) (School districts are quasi-municipal corporations); People v. Wood, 411 Ill. 514, 104 N.E.2d 800, 805 (II].1952) (same); People v. Deatherage, 401 Ill. 25, 81 N.E.2d 581, 592 (Ill. 1948) (“A school district is a quasi-municipal corporation, and analogous to any other municipal corporation created under legislative enablement laws.”) City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101 S.Ct. 2748, 2762, 69 L.Ed.2d 616 (1981) (Municipal corporations are immune from punitive damages). hits OV ec Soe ee SO eS ee eee D-13 CONCLUSION For the foregoing reasons, the court denies the defendants’ motion to dismigs. The plaintiffs are given twenty-one (21) days from the entry of this order to amend their complaint to supple- ment and focus their factual allegations. Ann C. Williams, District Judge May 12, 1989 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2135%3A1. Public record. Not legal advice.