Case 5:11-cv-00422-FB Document 136 Filed 02/09/12 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DMSION

CHRISTA SCHULTZ and DANNY SCHULTZ, both lndivid ually and as Parents and Guardians of Minor Child C.S., a Minor (CORWYN SCHULTZ, now an Adult and Formerly a Student in the Medina Valley Independent School District); and TREVOR SCHULTZ, Individually,
Plaintiffs,
v.
MEDINA VALLEY INDEPENDENT SCHOOL DISTRICT,
Defendant.

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FEB - 9 2012

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OPINION AND ORDER OF THE COURT CONCERNING JOINT MOTION TO APPROVE SETTLEMENT AND ENTER CONSENT DECREE

Before the Court is a proposed Settlement Agreement and Release Arising During Mediation ("Agreement") for review and approval or disapproval which, if approved by the Court, will bring this litigation to a close and establish rules under which the parties can operate as they peacefully move on

with their lives and educate students of the Medina Valley Independent School District. What This Case Has Not Been About
The right to pray.

Any American can pray, silently or verbally, seven days a week, twenty four hours a day, in private as Jesus taught1 or in large public events as Mohammed instructed.2

1 Matthew 6:5-8 ("and when you pray, do not be like the hypocrites, for they love to pray standing in the synagogues and on the street comers to be seen by others.... But when you pray, go into your room, close the door and pray.... And when you pray, do not keep on babbling like pagans, for they think they will be heard because of their many words.").
2 Quran 2:43 ("You shall observe the Contact Prayers and give the obligatory charity, and bow down withthose who bow down."). Muslims are obligated to attend the mosque at least once a week and other prayers may be said alone, but all prayer is always more acceptable to God in community. See PAUL GRIEVE, A BRIEF GUIDE TO ISLAM: FAITH, RELIGION, POLITICS (Carroll and Graf2006). Daily prayers within fixed times are done "with the entire brotherhood and sisterhood of believers facing towards Mecca from all around the world, following the same ·prescribed fonnula." Id

Case 5:11-cv-00422-FB Document 136 Filed 02/09/12 Page 2 of 3 The Real Issue

Does the United States Constitution allow a government entity elected by the majority to use its

power to tax and its agents and employees to support and promote a particular religious viewpoint not held

by a minority?

* * * * * * * * * *

The Court is aware that counsel, the mediator and parties have spent countless hours seeking

resolution. To the extent these issues may arise in other school districts and others may find guidance from

this matter, the Agreement of the parties is set forth in Appendix I.

For those who choose to enlighten themselves on why separation of church and state has been an

issue of great debate and importance in American history, Appendix II follows Appendix I.

The Court has thoroughly reviewed the proposed Agreement and finds it achieves reasonable

balance between competing First Amendment rights offree speech for student speakers and freedom from

government endorsement of a particular religious belief.

Accordingly, and with gratitude to all who have worked to find a fair and just compromise, the

attached Settlement Agreement and Release Arising During Mediation ("Agreement") is APPROVED.

The settlement memorialized in today's Order signifies a bright point in our nation's long and

difficult effort to harmonize the competing interests written into the First Amendment. Although this pursuit is far from over, "[l]et us realize the arc ofthe moral universe is long, but it bends towardjustice."3

While the Court will retain jurisdiction for a period of ten years, as set forth in ~ 1.1 of the

Agreement, the Court is confident the parties in their spiritual journey will be tolerant of the beliefs of

others and abide by the standards they have set for themselves. All things work together for good.4

3 MARTIN LUTHER KING, JR., A TESTAMENT OF HOPE: THE ESSENTIAL WRITINGS AND SPEECHES OF MARTIN LUTHER KING, JR. 252 (James Melvin Washington, ed. 1990).
4 Romans 8:28.
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Case 5:11-cv-00422-FB Document 136 Filed 02/09/12 Page 3 of 3 The Agreement is entered as a final judgment, resolving any and a ll claims set forth in Plaintiffs'

Complai nt and First Amended Complaint, pursuant to Federal Rules of Civil Procedure 54 and 58.

Motions pending with the Co urt are DISMISSED as MOOT. The tria l set for March 5, 2012, is

CANCELLED. This case is A DMINISTRATIVELY CLOSED subj ect to reinstatement if necessary.

It is so ORDERED.

_2 SIGNED this

...c
day of February, 20 12.

FRED BIERY CHIEF UNITED ST

A PERSONAL STATEMENT

During the course of this liti gation, many have played a part:

To the United States Marshal Service and local police who have provided heightened security:

Thank you.

To those Christians who have venomously and vom itously cursed the Court fami ly and threatened

bodi ly harm and assassination: In Hi s name, I forgive you.

To those who have prayed for my death: Your prayers will someday be answered, as inevitability

trumps probabil ity.

To those in the executive and legislative branches of government who have demagogued this case

for their own political goals: You should be ashamed of yourselves.

To the lawyers who have advocated professionally and respectfully for their clients ' respective

positions: Bless you.

_2_ SIGNED this

~y of February, 201 2 .

~ REO BIERY CHIEF UNITED ST~ ~ S DISTRICT JUDGE
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Case 5:11-cv-00422-FB Document 136-2 Filed 02/09/12 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CHRISTA SCHULTZ and DANNY SCHULTZ, both Individually and as Parents and Guardians of Minor Child C.S., a Minor (CORWYN SCHULTZ, now an Adult and Formerly a Student in the Medina Valley Independent School District); and TREVOR SCHULTZ, Individually,
Plaintiffs,
v.
MEDINA VALLEY INDEPENDENT SCHOOL DISTRICT,
Defendant.

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CIVIL ACTION NO. SA-11-CA-422-FB

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APPENDIX II

An Ironic Venue for Separation of Church and State Litigation

Henri Castro, a man of Jewish descent whose family converted to Catholicism, was

instrumental in the emigration of Alsatians from Europe to the United States. 1

Alsace, a small geographic region with its own unique language and religious diversity,2 was long fought over by Germany and France.3 There being no independent constitutional judicial

system to protect the rights of the Alsatian minority from the imposition of German or French

BRYAN EDWARD STONE. THE CHOSEN FOLKS: JEWS ON THE FRONTIERS OF TEXAS 33 (Univ. of Tex. Press 2010) (explaining how Henri Castro, an "Alsatian descendant ofJewish converts to Catholicism ... established a settler colony and the town of Castroville near San Antonio"); BOBBY D. WEAVER, CASTRO'S COLONY: EMPRESARIO DEVELOPMENT IN TEXAS, 1842-1865 (TAMU Press 1985) (explaining how Castro secured colonization grants and recruited Europeans to immigrate to Texas).
2 JAMES MINAHAN, ONE EUROPE, MANY NATIONS: A HISTORICAL DICTIONARY OF EUROPEAN NATIONAL GROUPS, 37-38 (Greenwood Press 2000).
3 STEFAN WOLFF, DISPUTED TERRITORIES: THE TRANSNATIONAL DYNAMICS OF ETHNIC CONFLICT SETTLEMENT
39 (Berghahn Books 2004).

Case 5:11-cv-00422-FB Document 136-2 Filed 02/09/12 Page 2 of 18 government rule, the Alsatians chose freedom from the majority by coming to America,4 some of them settling in Castroville in the Medina Valley ofTexas.5
See Robert Weinland, D 'Alsace en Lorraine, Histoires de Families: Emigration, http://www.robert-weinland.org/emig.php?lang=en (last visited Jan. 2, 2012) (many Alsatian Protestants found asylum in the English colonies). Additionally, some Alsatian Lutherans suffered religious persecution by France and subsequently emigrated to Louisiana in 1750. Id.
5 NATALIE 0RNISH, PIONEER JEWISH TEXANS 49 (TAMU Press 2011) ("Instead ... of continuing to submit to silence, oppression, and crushing, in this antiquated Europe ... it appeared to us certain that the best thing we could do ... was to transport ourselves to America.") See also Wayne M. Ahr "Henri Castro and Castroville" in THE FRENCH IN TEXAS 128 (Francois Lagarde, ed. 2003) ("Castroville [has] preserved and nurtured their Alsatian dialect, their predominant Catholicism, and many oftheir traditions."). Alsatian colonists who came to Texas brought with them their combined French and German heritage, which made "a distinct impression on area ... religion." Castroville, Texas, www.texasescapes.com/TexasHillCountryTowns/CastrovilleTexas/CastrovilleTx.htm (last visited Jan. 4, 20 12).
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Diversity of Homo Sapien Religious and Life After Death Beliefs Eternity is a Long Time
Though most of the seven billion Homo sapieni have no knowledge they are traveling 66,000 miles per hour around the sun,7 they have evolved over several million years to be the only species which knows it will die.
Not wanting their existence to end, Homo sapiens developed a multitude of theories and hopes, encompassed in thousands of religions,8 of how they can avoid simply returning to the Earth from whence they and other species came. Or, as the country western song says: "Everybody wanna go to heaven, but nobody wanna go now."9 In the past 10,000 years of human societal development, those belief systems have included the multiple gods of the ancient Romans, Greeks and Egyptians, the monotheism of the Abrahamic religions of Judaism, Christianity and Islam, the reincarnation beliefs ofBuddhism, and the various religious beliefs and practices of the Shintoists, Hindus, Maya, Aztecs and Incas, to name but a few.
Some monopolistically believe theirs is the one and only true religion and path to eternal life. On the other hand, some Homo sapiens, known as Atheists, believe they know the only truth: That
6 United Nations Population Fund, State of World Population 2011: People and Possibilities in a World of7 Billion (Oct. 26, 2011), available at http://foweb.unfjm.org/SWP2011/reports/EN-SWOP2011-FINAL.pdf.
7 EDMUND LEDGER, THE SUN: ITS PLANETS AND THEIR SATELLITES 57 (Hazell, Watson and Viney 1882). 8 LEWIS M. HOPFE AND MARKR. WOODWARD, RELIGIONS OF THE WORLD 11 (Prentice Hall, 7th ed. 1998)("1n the long period of human life on earth, there have been thousands of religions."); ENCYCLOPEDIA OF AMERICAN RELIGIONS (J. Gordon Melton, ed. 7th ed. 2002) (presenting coverage of more than 2,500 North American religious groups in the U.S. and Canada); Adherents.com: National & World Religion Statistics-Church Statistics-World Religions, www.adherents.com (last visited on Jan. 5, 2012) (collecting "statistics for over 4,200 religions, churches, denominations, religious bodies, faith groups, tribes, cultures, movements, ultimate concerns, etc."). 9 KENNY CHESNEY, EVERYBODY WANTS TO Go TO HEAVEN (BNA Records 2008).
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there is nothingness after physical death. 10 Still others postulate a parallel universe. 11 And those
called Agnostics do not claim to know what happens after the final breath is expelled. 12
Grace and Torture
While religious institutions bestow many blessings and try to alleviate suffering, those acts
of Grace are newtralized by religious Homo sapiens who exhibit an historical and continuing
pernicious and pervasive tendency to kill other humans and confiscate the property of those,
sometimes even within the same religion, who do not believe as they do. Christians slaughtered
other Christians. 13 In Europe, the blood of Irish Protestants and Catholics flowed freely. 14 Similar
10 Stephen Hawking, British physicist and author, dismisses belief in God and an afterlife. Ian Sample, Stephen Hawking: "There is no Heaven: It's a Fairy Story," THE GUARDIAN (May 15, 2011) ("I regard the brain as a computer which will stop working when its components fail. There is no heaven or afterlife for broken down computers; that is a fairy story for people afraid of the dark."). Some Atheists do, however, believe in an afterlife. DAVID STAUME, THE ATHEIST AFTERLIFE: THE ODDS OF AN AFTERLIFE REASONABLE. THE ODDS OF MEETING Goo THERE: NIL 159-60 (Agio 2009) ("being an atheist or rationalist does not prohibit belief in the possibility of an afterlife. . .. [A]n afterlife can be removed from its religious context and examined on its own merit").
11 MICHAEL B. MENSKY, CONSCIOUSNESS AND QUANTUM MECHANICS: LiFE IN PARALLEL WORLDS 179-80 (World Scientific Publishing Co. 2010) ("when the consciousness of man being turned-off, his soul obtains access to parallel worlds").
12 See ANTHONY KENNY, THE UNKNOWN Goo 9 (Continuum 2004).
13 See generally CROSS, CROWN & COMMUNITY: RELIGION GOVERNMENT AND CULTURE IN EARLY MODERN ENGLAND 1400-1800 (David J.B. Trim & Peter J. Balderstone, eds. 2004); PERSECUTION AND PLURALISM: CALVINISTS AND RELIGIOUS MINORITIES IN EARLY MODERN EUROPE 1550-1700 (Richard Bonney & David J. B. Trim, eds. 2006). See also David J.B. Trim, The Christian Persecutory Impulse: Part One in a Series, LIBERTY, January/February 2011 (exploring the history ofpersecution of Christians by Christians); David J.B. Trim, The Christian Persecutory Impulse: The Medieval Not Quite Reformed: Part Two in a Series, LIBERTY, March/April 2011; David J.B. Trim, The Christian Persecutory Impulse: Tough Love: Part Three in a Series, LIBERTY, May/June 2011; David J.B. Trim, The Christian Persecutory Impulse: The Emergence of Toleration: Part Four in a Series, LIBERTY, July/August 2011; David J.B. Trim, The Christian Persecutory Impulse: Reformation, Tolerance, and Persecution, LIBERTY, November/December 2011.
14 MARTIN N. MARGER, RACE AND ETHNIC RELATIONS: AMERICAN AND GLOBAL PERSPECTIVES 477-78 (Wadsworth, 9th ed. 2011) (describing incidents of sectarian violence between Catholics and Protestants in Ireland in the 1970's and 1980's); RICHARD ENGLISH, IRISH FREEDOM: THE HISTORY OF NATIONALISM IN IRELAND 63 (Macmillan 2008) ("Political violence between Protestant and Catholic abounded in early and mid-seventeenth century Europe, [including] ... the massacres of Irish Protestants by Irish Catholics in 1641 ... [and] slaughter of thousands of Protestants by Catholics in Magdeburg in 1631 ").
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conflict between Protestants and Catholics existed in the United States as well. 15 In colonial Salem,
Massachusetts, Christians savagely punished women accused of being witches. 16 Other Christians
rejected the Church of Jesus Christ ofLatter-Day Saints as cultists, using brute force against them. 17
Radical Islamic Sunni and Shiites create chaos within their culture. 18 Christians attempted to
exterminate Jews. 19 Some Muslims view non-Muslims as infidels.Z° Christians crusaded against
15 JAY P. DOLAN, THE IRISH AMERICANS: A HISTORY 61 (Bloomsbury Press 2008) (describing outbreaks ofriots and mob violence against Catholics in Boston, New York, and Philadelphia in the 1830's and 1840's).
16 The role of religion in the Salem witch trials has been described as follows:
[W]ithout religion these charges would never have been filed, much less acted on. Without a belief in the devil as a genuine corrupting force, no one would have believed in witches. Religion also influenced the trials in that the judges looked to the ministers for guidance, since the judges had no previous experience with witchcraft.... [The trials became] one ofthe largest outbreaks ofreligiously related legal prosecution in American history, with nearly a score executed, five score jailed, and another ten score accused.
SCOTT A. MERRIMAN, RELIGION AND THE LAW IN AMERICA: AN ENCYCLOPEDIA OF PERSONAL BELIEF AND PUBLIC POLICY 448 (ABC-CLIO, Inc. 2007).
17 Richard L. Bushman, Mormon Persecutions in Missouri, 1883, 3 BYU STUDIES 11 ( 1961) (describing mob violence against Mormons in Missouri). See also RICHARD ABANES, INSIDE TODAy's MORMONISM 253 (Harvest House 2004) ("Most mainstream Christian denominations ... are united in their outright rejection of Mormonism."); RICHARD LYMAN BUSHMAN, MORMONISM: A VERY SHORT INTRODUCTION 2 (Oxford Univ. Press 2008) ("Frequently Mormonism is labeled a cult rather than a church. Some say it is not Christian.").
18 Peter Lyon, Islam, in CONFLICT BETWEEN INDIA AND PAKISTAN: AN ENCYCLOPEDIA 86 (ABC-CLIO, Inc. 2008) (describing bloody conflict between extremist Sunni and Shia Muslim groups).
19 ROBERT MICHAEL, HOLY HATRED: CHRISTIANITY, ANTISEMITISM, AND THE HOLOCAUST 3 (Palgrave MacMillan, 1st ed. 2006) ("During the Holocaust, ... most Christian Churches and most Christians ... stood by in silence, or collaborated, when Jews were taken away by other Christians to be tortured and murdered."); WILLIAM NICHOLLS, CHRISTIAN ANTISEMITISM: A HISTORY OF HATE 225 (Rowman & Littlefield Publishers 1993) (In the Middle Ages, "Jews were massacred and tortured, and soon whole Jewish populations were expelled from countries where they had long resided.").
20 PATRICIA CRONE, Goo's RULE: GOVERNMENT AND ISLAM: SIX CENTURIES OF MEDIEVAL ISLAMIC POLITICAL THOUGHT 358 (Columbia Univ. Press 2004) ("Humans were divided in Muslims and infidels.... A Muslim was someone who surrendered to God and lived as His servant in a society based on His law. Infidels were rebels against God whose societies could never be more than the robbers' nests with which St. Augustine had compared kingdoms devoid of justice."); Ronald A. Pachence, Infidels, in AN INTRODUCTORYDICTIONARYOFTHEOLOGY AND RELIGIOUS STUDIES 630 (Orlando 0. Espin and James B. Nickoloff, eds. 2007) ("today, some Muslim extremists apply the term infidel to all non-Muslims, especially those living in the Western world").
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Muslims.21 Conflict between Orthodox Jews and secular Jews in Israel begets harsh and uncivil acts. 22
Even poor old Abraham was ostracized by his own family for believing in one God and rejecting the multiple gods of his fathers.Z3 His descendants, the cousins Moses, Jesus and Mohammed, would be perplexed by the blood spilled by their followers against each other.
21 KAREN ARMSTRONG, ISLAM: A SHORT HISTORY 93-95 (Modem Library 2000) ("[l]n July 1099, .. the Christian Crusaders from western Europe attacked Jerusalem, ... [and] massacred its inhabitants.... The Crusades were disgraceful ... [and] devastating for the Muslims of the Near East.").
22 OREN YIFTACHEL, ETHNOCRACY: LAND AND IDENTITY POLITICS IN ISRAELIPALESTINE 118 (Univ. of Pennsylvania Press, 2006) ("During the 1990s, greater tensions surfaced between Orthodox and secular Jews [in Israel] . . . . [F]or most Orthodox individuals, the Jewish nature of the state is clearly superior to its Western or democratic orientation [and] Orthodox parties support the increasing imposition of religious (Halacha) rule in Israel."). See also Joel Greenberg, Religious Limits on Women Spur Controversy in Israel, WASH. POST (December 27, 2011), www.washingtonpost. com/world/middle_east/rei igious-Jimits-on-women-spur-controversy-in-israel/20 11 I 12/27/glQ Ag8INLP_story.html ("A community of 86,000 ... Beit Shemesh has a growing ultra-Orthodox population. The town has become a cauldron of tension ... [because of] Israeli media reports about ultra-Orthodox Jews in the town who .. . hounded local religious schoolgirls, spitting and hurling abuse at them for what they deemed insufficiently modest dress.").
23 Quran 19: 43-48 ("He (the father) said: 'Do you reject my gods, 0 Abraham? If you stop not (this), I will indeed stone you. So get away from me safely before I punish you.' Abraham said: 'Peace be on you! I will ask Forgiveness of my Lord for you. Verily! He is unto me, Ever Most Gracious. And I shall tum away from you and from those whom you invoke besides Allah."'). Abraham's parents "were likely to have been worshipers of the moon-god Sin and his daughter Inanna, the patron deities of the city ofUr. ... [T]he family names show a fairly standard homage to the Akkadian/Sumerian pantheon ... [including] the goddess Ningal [and] Sin's daughter Malkatu." SUSAN WISE BAUER, THE HISTORY OF THE ANCIENT WORLD: FROM THE EARLIEST ACCOUNTS TO THE FALL OF ROME 128 (W. W. Norton & Company 2007).
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The American Colonial Reli1!ivus Experience
The Alsatians who immigrated to the Medina Valley were neither the first nor the last group
to come to America in search of freedom from government controlled religion. Before them came
the Pilgrims persecuted by the government-controlled Church of England,24 the French Protestant
Huguenots persecuted by the French Catholic government of Louis XIV,25 and the European Jews
persecuted by European Christian governments.Z6
They voted with their feet for separation of church and state by coming to the new world.
But old practices die hard, and the American colonists themselves established official government
religions.Z7 For instance, the Rhode Island Charter of 1663 promised to "preserve unto [its
inhabitants] that liberty in the true Christian faith and worship ofGod."28 Other Rhode Island laws
24 BERKIN ET AL., MAKING AMERICA: A HISTORY OF THE UNITED STATES VOLUME 1: TO 1877 62 (Wadsworth, 6th ed. 2011) (describing Pilgrim voyage to America in search of religious freedom); SMITH BURNHAM, OUR BEGINNINGS IN EUROPE AND AMERICA: HOW CIVILIZATION GREW IN THE OLD WORLD AND CAME TO THE NEW 293-94 (John C. Winston Co. 1936) (explaining Pilgrims who became the first settlers in New England were Separatists driven to America by the persecution ofthe English government based on the Separatists' refusal to join the Church ofEngland).
25 JACKSON J. SPIELVOGEL, WESTERN CIVILIZATION SINCE 1300 456 (Wadsworth, 8th ed. 2011) ("In October 1685, Louis issued the Edict ofFontainebleu, ... provid[ing] for the destruction of Huguenot churches and the closing of Protestant schools. It is estimated that 200,000 Huguenots defied the prohibition against their leaving France and sought asylum in England, the United Provinces, and the German states."); See also Bertrand Van Ruymbeke, From Ethnicity to Assimilation: The Huguenots and the American Immigration Histmy Paradigm, in FROM STRANGERS TO CITIZENS: THE INTEGRATION OF IMMIGRANT COMMUNITIES IN BRITAIN IRELAND AND COLONIAL AMERICA, 1550-1750 332 (Randolph Vigne and Charles Littleton, eds. 2001).
26 ANTI-IMMIGRATION INTHEUNITEDSTATES: ANHISTORICALENCYCLOPEDIA295 (Kathleen Arnold, ed. 2011) ("The history of Jewish immigration to the United States highlights America's legacy as a safe haven for the oppressed from around the world .... Jews were among the earliest European settlers to arrive in North America during the 17th century."); JAMES S. OLSON AND HEATHER OLSON BEAL, THE ETHNIC DIMENSION IN AMERICAN HISTORY (WileyBlackwell, 4th ed. 201 0) ("Toward the end ofthe seventeenth century, groups ofpersecuted Ashkenazi Jews immigrated from central and eastern Europe.... Some came to America, and by 1776 nearly 3,000 Jews resided in the colonies.").
27 See RUSSELL FREEDMAN, IN DEFENSE OF LIBERTY: THE STORY OF AMERICA'S BILL OF RIGHTS 26 (Holiday House 2003) ("Many [early Americans] sailed to the New World to escape religious persecution in the Old.... And yet ... [m]ost of the early colonies established official government-sponsored churches, which all residents were required by law to support and attend.").
28 SHELDON J. GODFREY & JUDITH C. GODFREY, SEARCH OUT THE LAND: THE JEWS AND THE GROWTH OF EQUALITY IN BRITISH COLONIAL AMERICA, 1740-1867 47 (McGill Queens Univ. Press 1995) ("[t]he Rhode Island charter of 1663 ... made the colony undeniably Christian.").
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restricted admission to the colony to those professing the Christian religion.29 Similar laws existed
in Massachusetts30 and New York. 31 In Virginia in 1776, although it was declared "all men are
equally entitled to the free exercise of religion, according to the dictates of conscience," it was also
declared that "it is the mutual duty of all to practice Christian forbearance, love, and charity towards
each other."32 In Maryland, which was originally settled as a safe haven for Catholics, a Protestant
majority became dominant and persecuted and marginalized Catholic residents. 33 Seventh-Day
Adventists were similarly persecuted by the majority for their beliefs. 34
Recognizing the danger ofthe integration of church and state, Reverend Isaac Backus wrote
in 1773:
[W]here [church and state] and the weapons which belong to them are well distinguished and improved according to the true nature and end oftheir institutions, the effects are happy, and they do not at all interfere with each other. But where they have been confounded together no tongue nor pen can fully describe the mischiefs that have ensued of which the Holy Ghost gave early and plain warnings. 35
29 Jd.
30 The 1780 Massachusetts Constitution required certain public officeholders to recite an oath "declar[ing] [they] believe the Christian religion, and have a firm persuasion of its truth." FRANCIS NEWTON THORPE, THE FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS, AND OTHER ORGANIC LAWS OF THE STATES, TERRITORIES, AND COLONIES NOW OR HERETOFORE FORMING THE UNITED STATES OF AMERICA 1908 (Washington Government Printing 1909).
31 The 1777 New York State Constitution guaranteed free exercise of religion, but its laws required an oath for government office that excluded Roman Catholics. CONSTITUTIONAL DEBATES ON FREEDOM OF RELIGION 30 (John J. Patrick and Gerald P. Long, eds. 1999).
32 THE FOUNDING FATHERS AND THE DEBATE OVER RELIGION IN REVOLUTIONARY AMERICA: A HISTORY IN DOCUMENTS 60 (Matthew L. Harris and Thomas S. Kidd, eds. 20 12) (citing the Virginia Declaration of Rights of 1776).
33 "The colonial history of Maryland is one of religious unrest between Catholics and Protestants. While the colony was settled as a safe haven for English Catholics, Protestants made up a large number of the initial settlers and soon were a majority." ENCYCLOPEDIA OF RELIGION IN AMERICAN POLITICS 155 (Jeffrey D. Schultz, et al., eds. 1999). When Protestants "took control of the colony, [they] disenfranchised Catholics." Jd. See also THE ENDURING VISION: A HISTORY OF THE AMERICAN PEOPLE VOLUME I: TO 1877 55 (Boyer et al., eds. 20 II).
34 Ronald Lawson, Tensions, Religious Freedom, and the Courts: The Seventh-day Adventist Experience, in RELIGION AND SOCIAL POLICY 73 (Paula D. Nesbitt, ed. 2001 ).
35 Rev. Isaac Backus, An Appeal to the Public for Religious Liberty, 1773, in READINGS IN BAPTIST HISTORY: FOUR CENTURIES OF SELECTED DOCUMENTS 19 (Joseph Early, Jr., ed. 2008).
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One picture from the modern era speaks silently and poignantly ofthe danger ofmajoritarian government and religion joining hands:36
If government-run public schools also joined hands with religion and had the power to impose religious views, questions arise: Which holy books and prayers would be preferred? The Torah? The Book of Mormon? The Catholic Bible? The New Testament? The Bible as edited by Thomas Jefferson?37 The Koran? Would Christians be required to face Mecca or observe Hebrew prayer? Would Jews and Muslims be obligated to stand and recite the Lord's Prayer?
One need only look at the states of Israel and Iran to see the conflicts which arise when government and religion become closely intertwined.38
36 David J.B. Trim, The Christian Persecutory Impulse: Reformation, Tolerance, and Persecution, LiBERTY, November/December 2011 (citing BPK Art Resources New York) (depicting Hitler greeting Reich Bishop Ludwig Mi.iller and Abbott Albanus Schachleitner as honorary guests at the "Reich Party Rally for Unity and Strength" in 1934).
37 THOMAS JEFFERSON, THE JEFFERSON BIBLE: THE LiFE AND MORALS OF JESUS OF NAZARETH: EXTRACTED TEXTUALLY FROM THE GOSPELS, TOGETHER WITH A COMPARISON OF HIS DOCTRINES WITH THOSE OF OTHERS (N.D. Thompson Publishing Co. 1902).
38 See generally S.I. Strong, Law and Religion in Israel and Iran: How the Integration ofSecular and Spiritual Laws Affects Human Rights and the Potentia/for Violence, 19 MICH. J. INT'LJ. 109 (1997).
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The Debate Continues Through American Historv
"Leave the matter ofreligion to the family altar, the church, and the private school, supported entirely by private contribution. Keep the church and state forever separate."
-President Ulysses S. Grant39
"80 percent of the American people want Bible readings and prayer in the schools ... Why should the majority be so severely penalized by the protests of a handful?"
-Reverend Billy Graham40
"Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?"
-Supreme Court Justice Sandra Day O'Connor41
"God and the ten commandments and school prayer have all been expelled from the public schools. Pass a constitutional amendment to allow voluntary prayer."
-Presidential Candidate Pat Buchanan42
"I'm a Catholic and I hope a devout one, but I think that the public school classroom is no place for me to try and impose my world formula for prayer on children who don't share it, and for that very reason, I don't want my children in a public school classroom to be exposed to someone else's religion or formula."
-Senator Philip A. Hart (D-Michigan)43
39 PHILIP HAMBURGER, SEPARATIONOFCHURCHANDSTATE322 (Harvard Univ. Press 2004) (quoting President Ulysses S. Grant's 1875 speech given "to rally his troops for the coming election [and warn] of the danger of a second civil war").
40 Billy Graham Voices Shock Over Decision, N.Y. TIMES, June 18, 1963, at 17. 41 McCreary Cnty., Ky. v. Am. Civil Liberties Union ofKy., 545 U.S. 844, 882 (2005) (O'Connor, J., concurring). 42 Pat Buchanan, Remarks at Bob Jones University (Sept. 18, 2000), available at Pat Buchanan on Education, http://www.issues2000.org/Celeb/Pat_Buchanan_Education.htm (last visited on Jan. 3, 2012). 43 R. MURRAY THOMAS, GOD IN THE CLASSROOM: RELIGION AND AMERICA'S PUBLIC SCHOOLS 125 (Praeger Publishers 2007) (quoting Senator Phillip A. Hart).
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"We can change education in America if you put Christian principles in and Christian pedagogy in."
-Reverend Pat Robertson44 "When the government puts its imprimatur on a particular religion, it conveys a message of exclusion to all those who do not adhere to the favored beliefs. A government cannot be premised on the belief that all persons are created equal when it asserts that God prefers some."
-Supreme Court Justice Harry Blackman45 "As many ofyou know, I strongly support an amendment that will permit our children to hold prayer in our schools. The amendment would allow communities to determine for themselves whether voluntary prayer should be permitted in their public schools."
-President Ronald Reagan46
44 JAMES W. FRASER, BETWEEN CHURCH AND STATE: RELIGION AND PUBLIC EDUCATION IN AMULTICULTURAL AMERICA 187 (Palgrave MacMillan 2000) (quoting Pat Robertson on The 700 Club).
45 Lee v. Weisman, 505 U.S. 577, 606-07 (1992) (Blackmun, J., concurring). 46 Ronald Reagan, Radio Address to the Nation on Domestic Social Issues (Jan. 22, 1983), available at Ronald Reagan Presidential Library Archives, http://www.reagan.utexas.edu/archives/speeches/1983/12283a.htm (last visited Jan. 20, 20 12).
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The United States Has No King: The People Are Sovereign
The Constitution invokes, and is based upon, the people as having ultimate sovereignty and power over the three branches ofgovernment through the electoral and amendment processes vested in them. That power, for example, has been exercised to allow women to vote, to prohibit, and then allow, liquor and to limit the President of the United States to two terms. 47
The people could exercise that same power to amend the Constitution to favor a particular
religion, to turn the United States into a religious state such as Israel or Iran or to suppress religion as in the Soviet Union,48 China49 or Cambodia under the Khmer Rouge. 5°
Thus far, that power has not been exercised in such a manner, and this Court's obligation is to follow the Constitution as written, as intended by the Framers and as interpreted by the Supreme
Court of the United States.
47 U.S. CONST. amend. XIX ("The right of citizens ofthe United States to vote shall not be denied or abridged by the United States or by any State on account of sex."); id. at amend. XVIII (prohibiting "manufacture, sale, or transportation of intoxicating liquors"); id. at amend. XXI (repealing amend. XVIII); id. at amend. XXII (setting term limits for persons elected to the office of the President).
48 See Generally CHRISTOPHER MARSH, RELIGION AND THE STATE IN RUSSIA AND CHINA: SUPPRESSION, SURVIVAL, AND REVIVAL (Continuum Int'l Publishing 2011). See also RELIGIOUS POLICY IN THE SOVIET UNION 4 (Sabrina Petra Ramet, ed. 1993) ("A fundamental tenet of Marxism-Leninism is that religion will ultimately disappear. If it began to seem unlikely to do so, the authorities would naturally adopt measures to promote its disappearance, since its continued presence was a rebuke to the claims of the ideology.").
49 FENNNANG YANG, RELIGION IN CHINA: SURVIVAL & REVIVAL UNDER COMMUNIST RULE 6 (Oxford Univ. Press 20 II) ("China went even further, experimenting with a ban on all religions for more than a decade. Despite the best efforts of the Party-state, religion survived. The Chinese government has also failed to keep religion at a reduced level during the reform era since 1979. All kinds of religions are thriving in China today.").
50 Jeffrey Haynes, Conflict, Conflict Resolution and Peace-Building: The Role ofReligion in Mozambique, Nigeria and Cambodia, Vol. 47, No. I COMMONWEALTH AND COMP. POL. 52, 68 (2009) (explaining how the Khmer Rouge regime of the 1970's "tried energetically to exterminate religion in the country ... while killing millions of Cambodians as a central facet of state policy.").
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Original Intent of the Framers of the United States Constitution
Reasonable minds differ on the Constitution as a living, evolving document or one to be interpreted strictly as the Framers originally intended.51 Some issues not foreseen by the leaders of an agrarian slave holding nation do not lend themselves to providing insight into the intent of those authors.
Religion though and its relationship to government was one on which the Founders did speak clearly. Having witnessed and learned from the bloodshed and persecution ofEuropean church-state partnerships the Founders wrote:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.52
Known as the Father of the Constitution, James Madison expressed his intent this way:
Whilst we assert for ourselves a freedom to embrace, to profess, and to observe the religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offense against God, not against man.53
In an 1802 letter to members of the Danbury Baptist Association, Thomas Jefferson wrote:
Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that
51 Considering the Role ofJudges Under the Constitution ofthe United States: Hearing Before the Sen. Comm. on the Judiciary, 112th Cong. 20-21 (20 11) (statements of Supreme Court Justices Scalia and Breyer).
52 U.S. CONST. amend. I. 53 James Madison, Memorial and Remonstrance Against Religious Assessments, in THE AMERICAN CONSTITUTIONAL EXPERIENCE: SELECTED READINGS & SUPREME COURT OPINIONS 151 (Curry et al., eds. 2000).
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their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church and State. Adhering to this expression of the supreme will of the nation in behalfofthe rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties. 54
Mr. Jefferson reaffirmed his intent in an 1822 letter: "And a strong proof of the solidity of
the primitive faith, is its restoration, as soon as a nation arises which vindicates to itselfthe freedom
of religious opinion, and its external divorce from the civil authority."55
Similarly, in 1817, John Adams wrote to Thomas Jefferson, warning of the dangers of state
religion:
Oh! Lord! Do you think a Protestant Popedom is annihilated in America? Do you recollect, or have you ever attended to the ecclesiastical strifes in Maryland Pennsylvania, New York, and every part of New England? What a mercy it is that these People cannot whip and crop, and pillory and roast, as yet in the U.S.! Ifthey could they would. . . . Quakers, Anabaptists, Moravians, Swedenborgians, Methodists, Unitarians, Nothingarians in all Europe are employing underhand means to propagate their sectarian Systems in these States.
The multitude and diversity of them, you will say, is our security against them all. God grant it. But if we consider that the Presbyterians and Methodists are far more numerous and the most likely to unite; let a George Whitefield arise, with a military cast, like Mahomet, or Loyola, and what will become of all the other Sects who can never unite?56
Benjamin Franklin also expressed a desire for separation ofchurch and state, writing in 1780:
54 THE WRITINGS OF THOMAS JEFFERSON: BEING HIS AUTOBIOGRAPHY, CORRESPONDENCE, REPORTS, MESSAGES, ADDRESSES, AND OTHER WRITINGS, OFFICIAL AND PRIVATE VOL. VIII 113 (H.A. Washington, ed. 1854).
55 THE LiFE AND SELECTED WRITINGS OF THOMAS JEFFERSON 703 (Adrienne Koch & William Peden, eds. 1972).
56 THE WRITINGS OF THOMAS JEFFERSON: BEING HIS AUTOBIOGRAPHY, CORRESPONDENCE, REPORTS,
MESSAGES, ADDRESSES, AND OTHER WRITINGS, OFFICIAL AND PRIVATE VOL. VII 69 (H.A. Washington, ed. 1854).
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When a Religion is good, I conceive that it will support itself; and, when it cannot support itself, and God does not take care to support, so that its Professors are oblig' d to call for the help of the Civil Power, it is a sign, I apprehend, of its being a bad one. But I shall be out of my Depth, ifl wade any deeper in Theology.57
Thomas Paine likewise called for this separation, explaining "To God, and not to man, are all men accountable on the score of religion."58 To Paine, "[p]ersecution is not an original feature in any religion; but it is always the strongly-marked feature of all law-religions, or religions established by law."59
The Framers' own religious beliefs were quite diverse. According to Arthur Schlesinger, Jr.:
George Washington was a nominal Anglican who rarely stayed for Communion. John Adams was a Unitarian, which Trinitarians abhorred as heresy. Thomas Jefferson, denounced as an [A]theist, was actually a [D]eist who detested organized religion and who produced an expurgated version of the New Testament with the miracles eliminated. Jefferson and James Madison, a nominal Episcopalian, were the architects ofthe Virginia Statute of Religious Freedom. James Monroe was another Virginia Episcopalian. John Quincy Adams was another Massachusetts Unitarian.60
57 THE PAPERS OF BENJAMIN FRANKLIN 389-90 (Barbara Oberg, ed. 1997). 58 ALFRED OWEN ALDRIDGE, THOMAS PAINE'S AMERICAN IDEOLOGY 87 (Associated Univ. Press 1984) (describing Thomas Paine's address as "a fundamental statement on the doctrine ofthe separation of church and state"). 59 THOMASPAINE,R!GHTSOFMAN: BEING AN ANSWER TOMR. BURKE'SATTACKONTHEFRENCHREVOLUTION VoL. I81 (J.S. Jordan 1791). 60 JAMES LARUE, THE NEW INQUISITION: UNDERSTANDING AND MANAGING INTELLECTUAL FREEDOM CHALLENGES 9 (Libraries Unlimited 2007) (citing Arthur Schlesinger, Jr.). See also Separation ofChurch and State, http://www.theocracywatch.org/separation_church_state2.htm (last visited on Jan. 3, 2012).
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American Legal History
The United States Supreme Court recently surveyed significant historical events relevant to
the development of First Amendment jurisprudence in our country, noting that "[c]ontroversy between church and state ... is hardly new."61 Indeed, legal controversy concerning the promotion
and support of a particular religious viewpoint in public schools dates back to as early as 1890, when
the Wisconsin Supreme Court grappled with the issue of whether public school teachers should be
permitted to read to students from the Bible as a textbook. State ex rel. Weiss v. Dist. Bd., 44 N.W.
967 (1890). In concluding that such reading of the Bible was prohibited, the court wrote:
The priceless truths of the Bible are best taught to our youth in the church, the Sabbath and parochial schools, the social religious meetings, and, above all, by parents in the home circle. There, these truths may be explained and enforced, the spiritual welfare ofthe child guarded and protected, and his spiritual nature directed and cultivated, in accordance with the dictates of the parental conscience. The constitution does not interfere with such teaching and culture. It only banishes theological polemics from the district schools. It does this, not because of any hostility to religion, but because the people who adopted it believed that the public good would thereby be promoted, and they so declared in the preamble. Religion teaches obedience to law, and flourishes best where good government prevails. The constitutional prohibition was adopted in the interests of good government; and it argues but little faith in the vitality and power of religion to predict disaster to its progress because a constitutional provision, enacted for such a purpose, is faithfully executed.
!d. at 976.
Though the court's holding in Weiss was based on the Wisconsin state constitution, the
underlying principles espoused in that early decision remained relevant in later federal cases
challenging religious practices in public schools. The early 1960's brought two landmark
61 See Hosanna-Tabor Evangelical Lutheran Church and Sch. v. EEOC, 132 S. Ct. 694, 702-704 (2012) (describing religious controversy pertaining to the Magna Carta, the English monarchy, the escape of Puritans to New England, religious establishment in the colonies, and the drafting of the First Amendment).
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Establishment Clause decisions by the Supreme Court ofthe United States. First, in 1962, the Court held a public school district's practice ofdaily classroom invocation ofGod's blessings as prescribed in a prayer promulgated by its Board of Regents was an impermissible use of the public school system inconsistent with the Establishment Clause. Engel v. Vitale, 370 U.S. 421,424-425 (1962). Then, in 1963, when parents like Madalyn Murray O'Hair62 objected to a public school's practice of requiring Bible reading at the opening ofthe school day and recitation of the Lord's Prayer by the students in unison, the Court held such practices violated the Establishment Clause. Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203,223 (1963).
In the half century that has passed since these important decisions, the Supreme Court ofthe United States and the Court of Appeals for the Fifth Circuit have attempted to more clearly define the contours of the Establishment Clause as it relates to prayer in public schools, and more specifically, as it relates to prayer at graduation. In Lee v. Weisman, 505 U.S. 577, 587, (1992), the Court granted permanent injunctive relief to prevent the inclusion of clergy-led invocations in the form of prayer in graduation ceremonies of city public schools. That same year, the Court of Appeals for the Fifth Circuit held student-led prayer that was approved by a vote ofthe students and was non-sectarian and non-proselytizing was permissible at high school graduation ceremonies. Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963, 969 (5th Cir. 1992). Other Fifth Circuit cases relied on Jones for similar holdings. See Ingebretsen on BehalfofIngebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274 (5th Cir. 1996). However, in Santa Fe Independent School District v. Doe, 530 U.S. 290, 310-12 (2000), the Supreme Court granted injunctive reliefto prevent the inclusion of
62 Madalyn Murray O'Hair was the leader of the American Atheist movement. JAMES S. OLSON, HISTORICAL DICTIONARY OF THE 1960s 349 (Greenwood Publishing 1999). She opposed the practice ofmandatory prayers in public schools, and in the 1962 case of Engel v. Vitale, "the Supreme Court essentially agreed with O'H[air]'s position." !d. The "decision ... made Madalyn Murray [O'Hair], in the words ofone journalist,' [t]he most hated woman in America."' !d. See also BRYAN F. LEBEAU, THE ATHEIST: MADALYN MURRAY 0'HAIR2 (N.Y.U. Press 2003) ("O'Hair became American [A]theism's leading proponent, educator, spokesperson, and symbol.").
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student-led prayer invocations before football games at Texas public schools. Sante Fe has been interpreted as implicitly overruling the Fifth Circuit's Jones decision to the extent that it approves a majoritarian election on prayer. See Does 1-7 v. Round Rock Indep. Sch. Dist., 540 F. Supp. 2d 735, 747-50 (W.D. Tex.-2007) (Sparks, J).
Courts outside of the Fifth Circuit have provided further guidance. See ACLU ofN.J v. Black Horse Pike Reg'[ Bd. ofEduc., 84 F.3d 1471, 1488 (3d Cir. 1996) (en bane) (invalidating school policy under which prayers could be given at graduations if approved by student vote); Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1101-03 (9th Cir. 2000) (ruling that sectarian and proselytizing valedictory speech at graduation would violate the Establishment Clause); Lassonde v. Pleasanton Unified Sch. Dist., 320 F.3d 979, 983-85 (9th Cir. 2003) (ruling that school could not constitutionally allow student who was selected as graduation speaker based on his academic standing to give proselytizing religious speech at graduation); Deveney v. Bd. ofEduc. ofCnty. of Kanawha, 231 F. Supp. 2d 483,485-88 (S:D. W.VA. 2002) (issuing TRO against offering of prayer by student at graduation pursuant to vote of student class officers); Skarin v. Woodbine Cmty. Sch., 204 F. Supp. 2d 1195, 1198 (S.D. Iowa 2002) (issuing injunction prohibiting school choir from singing Lord's Prayer at graduation ceremony); Appenheimer v. Sch. Bd., No. 01-1226, 2001 WL 1885834, at *6-9 (C.D. Ill. May 24, 2001) (issuing TRO against offering of prayer by student at graduation pursuant to vote of senior class student board).
With appreciation to Court staffJoani Sullivan, Liane Noble and Scott Becker for their research, suggestions and implementation,
ATES DISTRICT JUDGE February 9, 2012
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

Christa Schultz, Danny Schultz, Trevor Schultz, Corwyn Schultz, and Pat Doe,
Plaintiffs,
v.
Medina Valley Independent School District,
Defendant.

Civil Action No. SA-11-CA-0422-FB
Chief Judge Fred Biery Magistrate Judge Pamela A. Mathy

First Amended Complaint 1. For years, the Medina Valley Independent School District has unlawfully promoted religion generally and Christianity specifically at school and schoolsponsored activities and events. 2. Religion has been promoted by individuals at all levels of the School District’s hierarchy—from top administrators to the principal to teachers and coaches and even school aides. Religion is promoted in the classroom and over the loudspeaker; at athletic practices and academic award ceremonies; in individual encounters and at large public events. 3. The incorporation of prayers and religious doctrine at Medina Valley High School is systemic. The School principal often makes religious statements during the morning announcements. As class begins, teachers sometimes read Bible verses; crosses
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and other religious icons adorn many classroom walls. At practices and before games, coaches lead student athletes in prayers. And attendees at major school events— including football games and graduation ceremonies—are exposed to prayers and other overtly religious messages; some from students handpicked by the school to deliver Invocations and Benedictions (or their equivalents), and others by school or invited members of the state government.
4. These practices have persisted for years and have survived multiple complaints from several of the Plaintiffs. Rather than address the Plaintiffs’ concerns, the School District has retaliated against them. Most notably, the repeated expressions of concern by Plaintiff Corwyn Schultz, a recent graduate of Medina Valley High School, were met with counseling referrals, discipline, and even more religious remarks. Corwyn, moreover, was ultimately compelled to skip his own commencement, rather than attend a prayer-filled event that “resembled a revival as much as a small town graduation.” Craig Kapitan, Medina Valley Graduates Hear Prayers Aplenty, (June 4, 2011, 11:54 p.m.), http://www.mysanantonio.com/news/education/article/Medina-Valleygraduates-hear-prayers-aplenty-1410195.php.
5. Even after the filing of this lawsuit and the resulting public attention, the School District has not changed its ways. Crosses and Bible verses, among other things, still adorn the school walls. The principal still makes religious remarks over the loudspeaker. Absent the Court’s intervention, graduation will continue to resemble a
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church service. As a result, the Plaintiffs—a current student joined by two former students and their parents—seek to redress these past, present, and future harms.
Jurisdiction and Venue 6. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343. 7. The Court has the authority to grant declaratory relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. 8. Venue is proper in this Court under 28 U.S.C. § 1391(b).
Parties A. The Plaintiffs
9. The Plaintiffs are Christa and Danny Schultz, their children Trevor and Corwyn Schultz, and current Medina Valley High School student Pat Doe (who is seeking leave to proceed anonymously). Each Plaintiff has been injured by the School District’s policy and custom of unconstitutional promotion of religion in the past, and each Plaintiff faces a concrete risk of such injuries in the future.
10. Christa & Danny Schultz. Christa and Danny Schultz reside in the Medina Valley Independent School District. They consider themselves to be Agnostic and do not subscribe to any religion. Their son Trevor attended Medina Valley High School from 2006 until 2009; their son Corwyn attended Medina Valley Middle School from 2006 until 2007 and attended Medina Valley High School from 2007 until 2011.
11. Christa and Danny Schultz were exposed to unwelcome prayers and religious messages, from both students and the School principal, when they attended the
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graduation ceremony of a family friend at Medina Valley High School in 2008. They were again exposed to unwelcome prayers and religious messages, from both students and an invited state legislator, when they attended the graduation ceremony of their son Trevor in 2009.
12. Along with their son Corwyn, Christa and Danny reluctantly declined to attend Corwyn’s 2011 graduation because multiple prayers were to be presented. They both plan to attend the Medina Valley High School graduation ceremonies in 2012, 2013, and 2014 to support family friends and close friends of Corwyn.
13. Christa and Danny also experienced unwanted prayers when attending Medina Valley High School home football games to watch their son Corwyn play in the marching band in fall 2007 and 2008. Danny Schultz also experienced unwanted prayers when he attended several home football games in 2009. Along with his son Corwyn, Danny plans to attend home football games in Fall 2011 and in future football seasons.
14. Christa and Danny Schultz object to and are offended by the District’s custom and practice of presenting school-sponsored prayers at school events, including before sporting events and at graduation; they also objected to and were offended by the District’s custom and practice of promoting religion—in the presence of their children, Trevor and Corwyn—during morning announcements, in classrooms, and at athletic practices and extracurricular activities.
15. These practices demean and exclude their religious beliefs, fail to respect others’ beliefs and religions as mandated by their personal beliefs, reflect a disregard of
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the boundary between church and state that is necessary in a pluralistic society, coercively expose them and their children to publicly-sponsored religious exercises and pressure them to participate in religious exercises, and impeded their ability to direct and control the religious upbringing of their children free from governmental intrusion or interference.
16. Trevor Schultz. Trevor Schultz attended Medina Valley High School from fall 2006 until his graduation in June 2009. Although he no longer resides within the boundaries of the Medina Valley Independent School District, he continues to live in the State of Texas. Like his parents, Trevor is religiously Agnostic.
17. Trevor encountered prayers and religious messages and icons while attending classes and events at Medina Valley High School. In addition, Trevor was repeatedly exposed to and coerced to participate in prayers as a member of the school’s soccer team. Finally, Trevor attended his own Medina Valley High School graduation ceremony in 2009, and also attended graduation ceremonies in 2008 and 2011. At each graduation ceremony, he was exposed to multiple prayers and religious messages presented as part of the official program.
18. Trevor intends to join his family in attending Medina Valley High School graduation ceremonies 2012, 2013, and 2014, to support friends of the family and several of his brother Corwyn’s close friends.
19. Trevor is deeply offended by these school-sponsored prayers and efforts to promote religion. These customs and practices demean and exclude his religious beliefs,
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fail to respect others’ beliefs and religions as mandated by his own personal beliefs, reflect a disregard of the boundary between church and state that is necessary in a pluralistic society, and coercively expose him to publicly-sponsored religious exercises.
20. Corwyn Schultz. Corwyn Schultz attended Medina Valley Middle School from 2006 until 2007 and Medina Valley High School from 2007 until his graduation in June 2011. When this suit was filed, Corwyn proceeded, under the initials C.S., through his parents Christa and Danny Schultz as next friends. Corwyn Schultz has since turned 18, so he now brings suit in his own right, without his parents as his representatives.
21. Corwyn, like his parents and brother, is religiously Agnostic. He attended his brother Trevor’s graduation ceremony in 2009, where he was exposed to unwelcome prayers. He repeatedly heard prayers presented before sporting events, including football games, and was required to stand for those prayers in fall 2007 and fall 2008 as a member of the marching band. He repeatedly heard the Medina Valley High School principal deliver prayers over the school’s public-address system; encountered religious messages from teachers and other school staff on multiple occasions, and saw a variety of religious icons and messages displayed in classrooms and throughout the school. When he complained to school officials about these practices, he was disciplined. Finally, Corwyn wanted to attend his own graduation ceremony in June 2011, but reluctantly declined to do so because the ceremony would (and did) feature multiple prayers.
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22. Corwyn plans to attend the Medina Valley High School graduation ceremonies in 2012, 2013, and 2014 to support family friends and several of his close friends. He also plans to attend Medina Valley High School football games during Fall 2011 as well as in future seasons.
23. Corwyn objects to and is offended by the School District’s school-sponsored prayers and promotion of religion, because the practices demean and exclude his religious beliefs, fail to respect others’ beliefs and religions as mandated by his personal beliefs, reflect a disregard of the boundary between church and state that is necessary in a pluralistic society, and coercively expose him to publicly sponsored religious exercises. In addition, the religious environment at Medina Valley High School—and the retaliation he experienced after raising concerns with School District officials— caused Corwyn to suffer from stress, anxiety, insomnia, stomach cramps, and nausea.
24. [Redacted] 25. [Redacted] 26. [Redacted] B. The Defendant 27. Plaintiffs bring this action against the Trustees of Medina Valley Independent School District, a corporate body that is amenable to suit under Texas law and that may sue—and be sued—in the name of Medina Valley Independent School District. See Tex. Educ. Code Ann. § 11.151(a); San Antonio Indep. Sch. Dist. v. McKinney, 936 S.W.2d 279,
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283 (Tex. 1996) (“an independent school district is . . . amenable to suit in federal court under the Eleventh Amendment to the United States Constitution”).
28. The School District has “the primary responsibility for implementing the state’s system of public education” within its geographic borders. Tex. Educ. Code Ann. § 11.002. It thus has “the exclusive power and duty to govern and oversee the management of the public schools of the district,” including the authority to “adopt rules and bylaws necessary to carry out” those duties. Id. § 11.151(b), (d). This statutory authority enables the School District to institute and implement the school-sponsored prayer practices, policies, and customs that the Plaintiffs challenge in this case.
General Allegations 29. It is and has been the policy and custom of the School District to promote religion at school and school-sponsored activities and events. Religion has been promoted by those at all levels of the School District hierarchy, from the administration to the principal to coaches and teachers to school aides and employees. It has persisted for years, in a variety of curricular and extracurricular settings, and despite efforts by Plaintiffs and others to change these practices. It continues to this day, and absent the Court’s intervention it will proceed in the future. A. Religious Remarks During School Announcements 30. [Redacted] 31. After the Pledge of Allegiance and the regular moment of silence, Principal Tyler often makes religious statements—such as asking for God’s blessing—over the
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school’s loudspeaker during the morning announcements. These statements, which have taken place up to several times a week, began when Mr. Tyler arrived as Medina Valley High School Principal in fall 2007 and continued through October 2008.
32. After Christa, Danny, and Corwyn Schultz complained to School District officials about Mr. Tyler’s religious remarks, Mr. Tyler refrained from delivering them for just over a year. But Mr. Tyler resumed his religious remarks, with roughly the same frequency as before, in February 2010.
33. When Christa and Danny Schultz renewed their concerns about these religious remarks, Assistant Superintendent Chris Martinez stated that, “[a]fter consulting with our school district’s legal representation, it was found that saying the word ‘God’ or the phrase ‘God Bless Them’ does not constitute an open prayer.” Mr. Martinez later stated that Mr. Tyler has the “right as the principal to address the students in a way that he felt was appropriate.”
34. Backed by the School District, Mr. Tyler’s religious remarks have continued. For instance, on September 12, 2011, he introduced the moment of silence by asking students to “pray for our soldiers” and stated “God Bless America.” B. Promotion of Religion in the Classroom and During the School Day.
35. The promotion of religion continues throughout the school day. Students are often exposed to prayers and other religious communications from teachers and other staff. For instance, Plaintiffs have encountered the following remarks and practices:
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36. During the 2006–07 school year, the teacher of Corwyn Schultz’s leadership class at Medina Valley Middle School repeatedly referenced religion as part of class assignments. Danny and Christa Schultz ultimately asked the school to transfer Corwyn out of the class because its religious content had become so pervasive.
37. During the 2007–08 school year, Corwyn Schultz was asked about his religion by Officer Sides, the school’s uniformed police officer. After learning that Corwyn was not a Christian, Officer Sides gave Corwyn a pamphlet containing information on why one should love Jesus. Indeed, Officer Sides had a stack of Christian pamphlets that could be seen in his office by students in the library, including Trevor Schultz.
38. Towards the end of the 2008–09 school year, teacher Nicol Houston prayed for Trevor Schultz’s class and read from the Bible. Ms. Houston had engaged in similar conduct with a prior year’s class as well.
39. During the 2009–10 school year, teacher Patti Maldonado assured Corwyn Schultz’s class, in response to a question about whether students could be disciplined for saying “Merry Christmas,” that she was a Christian.
40. In February 2010, Attendance Clerk Christine Willing told Corwyn that she would “pray for [him]” because he was wearing a President Obama t-shirt.
41. During the 2010–11 school year, Ms. Wolfshohl answered “loves you” after a student in Corwyn Schultz’s class said “Jesus, Jesus.”
42. In Corwyn Schultz’s class in March 2011, Ms. Griggs asked students to pray for her during her class because she was suffering from a headache.
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43. [Redacted] 44. [Redacted] 45. [Redacted] 46. On information and belief, teachers have told students that they will “pray for you” and, when separating a male and female student engaging in a public display of affection, to “Make sure to leave a little room for Jesus between you.” C. Display of Religious Icons and Texts at School. 47. In addition to experiencing repeated prayers and religious remarks by School District officials and employees, students are also regularly confronted with religious displays, icons, and symbols around the school. 48. A cross greets students on the school’s front desk. Multiple teachers have crosses on the walls of their classrooms; at least one teacher has a cross on the wall behind her desk. 49. Also on display are many religious texts. A verse from the book of Matthew hangs on the filing cabinet in the nurse’s office, and is visible to students when they enter. Ms. Houston displays a Bible in her classroom. 50. Former Vice-Principal Turcato likewise displayed a sign in his office window, with the text facing a school hallway regularly used by students, quoting Proverbs 3:5, “Trust in the Lord with all your Heart.” See Ex. 1. 51. Religious icons are also displayed by School District administration. For instance, when Danny and Christa Schultz met with Assistant Superintendent Martinez
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in winter or spring 2010, they saw a cross prominently displayed on his wall. That cross was still on display in summer 2011, when Mr. Martinez gave an interview to a television reporter about this case. See Ex. 2. D. Prayer at Extracurricular Activities, Awards Ceremonies, and Athletic Events
52. The School District’s promotion of religion continues during after-school activities.
53. Pre-game Prayer Circles. Coaches regularly lead members of the Medina Valley sports teams in group prayer. For instance, during Trevor Schultz’s three years on the soccer team, Coach Nathan Payne chose a student to lead the team in the Lord’s Prayer before every game; Coach Payne participated in the prayer circle as well.
54. The women’s soccer coach similarly directs the team before each game to stand in a circle, join hands, and recite a prayer together; the team typically recites the Lord’s Prayer; and the coach participates in the prayer circle.
55. [Redacted] 56. Coach Womack, who coaches the women’s basketball team, asked the team to choose a regular pregame ritual. When a team member suggested a prayer circle during which the team would recite the Lord’s Prayer, Coach Womack made participation in that ritual mandatory. 57. For at least the past four years, the volleyball team has formed a prayer circle and recited the Lord’s Prayer before each game. Coaches Griggs and Houston often participate in these prayers.
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58. Fellowship of Christian Athletes. The Medina Valley High School Fellowship of Christian Athletes is a religious club for students, but faculty and administration officials frequently participate in and sometimes lead its meetings or prayers.
59. Principal Tyler and Vice Principal Turcato have regularly attended Fellowship meetings. Principal Tyler led the students in prayer on at least one occasion; on another occasion, Vice Principal Turcato gave a speech describing his conversion to Christianity. Many coaches and teachers also regularly attend Fellowship meetings and participate in the prayers.
60. In the fall of 2006, Coach Payne encouraged members of the Medina Valley High School soccer team, including Trevor Schultz, to attend a Fellowship meeting. Coach Payne suggested that the team needed to make a “good showing” at the meeting. Trevor felt pressured to and did in fact attend the meeting; several faculty members attended as well and appeared to participate in the prayers.
61. Invocations at Football Games. Prayers are delivered over the loudspeaker at all or nearly all Medina Valley High School football games. Every year, the School District selects the Student Council Vice-President to deliver this prayer.
62. For instance, Kallisyn Gouard, the 2010–11 Student Council Vice President, was told by School officials that delivering an Invocation at home football games was a part of her Student Council responsibilities. Ms. Gouard looked up the definition of “invocation” in the dictionary and determined that it required a prayer. As a result, Ms.
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Gouard gave a Christian prayer before every home football game at Medina Valley High School during the 2010 season. See Ex. 3 (text of 2010 football-game prayers).
63. As a member of the marching band during fall 2007 and fall 2008, Corwyn Schultz was repeatedly required to stand at attention during the Invocation at Medina Valley High School home football games. If Corwyn refused, the band’s student leaders forced him to do pushups or other physical tasks.
64. Invocations at Other School Board Meetings and Other Administration-Sponsored Events. Many other events have featured Invocations or other official prayers. The School District selects students to deliver prayers at National Honor Society events and scholarship ceremonies. Prayers have also taken place before softball and basketball games and have regularly taken place before public meetings of the School District’s Board of Trustees.
65. Starting no later than January 2009 until at least May 2011, nearly every public meeting of the School District’s Board of Trustees began with a prayer. Most of these prayers were delivered by Michael Nesbit, first as principal of the Medina Valley Middle School and then as the School District’s Assistant Superintendent. Others were delivered by the School District’s Superintendent James Stansberry.
66. Beginning in at least 2007 and continuing until at least 2010, the Medina Valley Chamber of Commerce held a New Teacher Luncheon for incoming teachers at Medina Valley Independent School District schools and nearby St. Louis Catholic School. See Ex. 4 (New Teacher Luncheon website). Superintendent James Stansberry and Assistant
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Superintendent Chris Martinez spoke at the 2010 event; Mr. Martinez also led portions of the program. Id. A local pastor led attendees in a prayer. Id. E. Retaliation Against Those Who Express Concerns About the School District’s
Unlawful Promotion of Religion. 67. In light of the religious environment created and condoned by the School District, most students are unlikely to express concerns to School District officials about the promotion of religion. When Corwyn Schultz tried to do so, retaliation was prompt. 68. In October 2008, Corwyn Schultz filed a complaint against Principal Tyler because of his ongoing practice of making religious statements during the morning announcements. After Corwyn did so, school officials referred him to a school counselor. When Christa and Danny Schultz asked why their son had been sent to counseling, they were told that both the reason for counseling and the identity of school official who made the referral, was “confidential.” Had his parents not complained to the school, Corwyn would likely have been required to attend weekly counseling sessions as a result of his complaint against Mr. Tyler. 69. After Christa and Danny Schultz repeatedly complained to School District officials, Principal Tyler eventually apologized to Corwyn and, for a time, stopped making religious statements over the morning announcements. 70. That changed, however, when Corwyn expressed additional concerns about the promotion of religion at school. In early February of 2010, Attendance Clerk Christine Willing told Corwyn that she would “pray for [him]” because he was wearing a President Obama t-shirt.
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71. When Corwyn complained to Mr. Tyler about Ms. Willing’s remark, Mr. Tyler dismissed his concerns. Rather than try to learn what happened or address the situation, Mr. Tyler told Corwyn to return to his office only after highlighting the portion of the student handbook that Corwyn believed had been violated by Ms. Willing. Christa Schultz then contacted Mr. Tyler, and likewise received little assistance from him; she then contacted an Assistant Principal, who proved more responsive.
72. Within a few days of Corwyn’s complaint, however, Mr. Tyler resumed delivering prayers and other Christian messages during school announcements.
73. On February 18, 2010, Corwyn returned to Mr. Tyler’s office, attempting again to address Ms. Willing’s remark and also to express his concerns about the resumption of Mr. Tyler’s religious announcements. As soon as he arrived, Mr. Tyler gave him Saturday detention for violating the dress code by having a hole in his jeans. This immediate detention was contrary to the School’s policy, which provided that “[i]f the principal or designee determines that a student's dress or grooming violates the dress code, the student shall be given an opportunity to correct the problem at school” before receiving detention or suspension. After issuing the Saturday detention, Mr. Tyler stood close to Corwyn and yelled at him that he did not have “a law degree, a college degree, or even a high-school diploma.” He then ordered Corwyn to leave his office.
74. After he learned about the retaliation against Corwyn, Danny Schultz attended a meeting with Mr. Tyler. At the meeting, Mr. Tyler compared Corwyn’s complaints
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about the promotion of religion at school to personal attacks—stating that, “when I’m cut, I bleed red.”
75. Mr. Tyler refused to rescind the Saturday detention or stop praying or delivering religious remarks over the loudspeaker. The Assistant Superintendent also refused to either undo the detention or end Mr. Tyler’s prayers and religious remarks, which persisted through Corwyn’s junior and senior years. F. Promotion of Religion at Graduation Ceremonies.
76. As it does during the school day, at extracurricular practices and activities, and at football games and other public events, the School District promotes religion at the annual Medina Valley High School graduation ceremony.
77. [Redacted] 78. These graduation ceremonies bear the School District’s stamp. School officials select and make available the venue, provide the sound system through which remarks are delivered, determine the order of the events, and otherwise orchestrate the presentations. The School District plans the ceremony, conditions attendance at graduation on participation in multiple rehearsals, and this year even overruled the senior class’s choice of a graduation song. 79. The School District’s control extends to graduation speakers. Its policies limit the opportunity to “the top three academically ranked graduates, the class president, and student council officers.” The School District reviews and approves all student remarks. Before 2011, each year’s graduation program designated one student speech as
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the “Invocation” and another as the “Benediction”; the original 2011 program bore the same designation, but on the eve of graduation the School District renamed these prayers as the “Opening Remarks” and “Closing Remarks.” The School District provides the current year’s speakers with the texts of the prior year’s speeches, many of which were prayers. And during the presentation of the prayers, school officials stand and bow their heads.
80. After Christa and Danny Schultz expressed their concerns about the graduation format to Assistant Superintendent Martinez, the Assistant Superintendent reiterated the School District’s control over and endorsement of the contents of graduation ceremonies:
While you may respectfully disagree with the format or religious portions of our district ceremonies, they are overseen and supported by our Board of Trustees. We have faith and belief that these elected officials represent the values and standards of our community. With that being said, there are no plans to change or sway from the current graduation format that has traditionally been used. Ex. 5 (Email from C. Martinez to D. Schultz). 81. The 2008 Graduation Ceremony. Christa, Danny, Trevor, and Corwyn Schultz all attended the 2008 Medina Valley High School graduation ceremony to support a family friend. The ceremony featured an Invocation and a Benediction, both of which were prayers and both of which were listed in the program. The 2008 graduation ceremony also featured an explicitly Christian speech by the Principal, Mr. Tyler. 82. The 2009 Graduation Ceremony. Christa and Danny, along with Corwyn, attended the graduation of their son Trevor in 2009. As in 2008, the ceremony featured
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an Invocation and Benediction; as in 2008, the Invocation and Benediction were listed in the program and consisted entirely of prayers. Ex. 6 (2009 graduation program).
83. The students who gave these prayers asked the audience to stand and pray. When Christa and Danny Schultz elected to remain seated during the prayer, other audience members glared and pointed at them and whispered to each other in attempt to determine which graduate Christa and Danny were related to. One person, who had been sitting near the Schultz family, moved several rows away.
84. In addition to the Invocation and Benediction, the graduation ceremony featured a speech by State Representative Tracey King, who on information and belief was invited to speak by the School District. Representative King’s remarks were overtly Christian.
85. The Schultz Family Challenges the Promotion of Religion at the 2011 Graduation Ceremony. After unsuccessfully attempting—for over a year—to persuade the School District to design a more inclusive program for the 2011 graduation, the Schultz family received confirmation from the School District, in late May 2011, that Corwyn’s graduation ceremony would feature prayers. On May 26, 2011, the Schultz family filed this lawsuit and sought, along with other retrospective and prospective relief, a preliminary injunction against prayers at the June 4, 2011 graduation ceremony.
86. In response to the lawsuit, the School District made clear to its employees that the School District endorsed the years-long practice of including prayers at graduation: “[T]raditionally, our student speakers have chosen to speak words that greatly reflect
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our community standards, beliefs and values. We are proud of them and the words they have spoken for the past 50 years.” Ex. 7 (Email from C. Martinez to MVISD District Staff).
87. On June 1, 2011, this Court issued a preliminary injunction and temporary restraining order preventing any student speaker at the scheduled June 4, 2011 graduation ceremony from leading the audience in prayer. The injunction specifically allowed student speakers to make statements about their own religious beliefs.
88. Reaction to this Court’s ruling was fierce. Local residents vowed to disrupt the graduation ceremony by praying loudly. See Jack Dennis, Students to Pray at Medina Graduation Despite Judge’s Ruling Citizens Say, Examiner.com (June 1, 2011), http://www.examiner.com/military-families-in-san-antonio/students-to-pray-atmedina-graduation-despite-judge-s-ruling-citizens-say. A Kansas religious group announced that it would bus protestors to the ceremony. See Perry Against Judge’s Prayer Ruling, KCENTV.com (June 3, 2011 5:41 p.m.) http://www.kcentv.com/story/ 14836684/perry-against-judges-prayer-ruling. The group America Guarding Against Political Extortion (“AGAPE”)—which describes itself as “very, very Christian”—held a rally outside of the 2011 graduation ceremony; its members were greeted and thanked for their efforts by the Superintendent’s wife. Ann Work, Local Group Blasts Judge, Times Record News (June 19, 2011) http://m.timesrecordnews.com/news/2011/jun/19/ local-group-blasts-judge/.
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89. At the graduation rehearsal held on June 1, 2011, Assistant Superintendent Chris Martinez read this Court’s order aloud to students and parents. After doing so, he bowed his head, said a prayer, and made the sign of the cross—all in full view of the entire senior class.
90. On June 3, 2011, following the School District’s appeal, the U.S. Court of Appeals for the Fifth Circuit overturned this Court’s order, pointing to the “incomplete factual record at this preliminary injunction stage.” Schultz v. Medina Valley Independent School District, No. 11-50486 (5th Cir. June 3, 2011). As a result, the School District proceeded with its plans to present multiple prayers at the next day’s ceremony.
91. The 2011 Graduation Ceremony. The School District-designated participants did not hold back. Prayers came from multiple students and the invited member of the state legislature. Prayers and religious messages were so prevalent that the ceremony “resembled a revival as much as a small town graduation.” Craig Kapitan, Medina Valley Graduates Hear Prayers Aplenty, (June 4, 2011, 11:54 p.m.) http://www.mysanantonio.com/news/education/article/Medina-Valley-graduateshear-prayers-aplenty-1410195.php.
92. Brooke Petty had been selected by the School District to deliver the Invocation; after the lawsuit was filed, the School District renamed the Invocation as the “Opening Remarks.” Despite the name change, her remarks—which had been reviewed and approved by the School District—consisted entirely of an extended prayer:
Those who wish will you please pray with me. Dear Lord, as we begin this evening’s graduation ceremony, we want to give you the glory. We
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are so very thankful that you have given us this time to celebrate. We know that we would not be here without your blessing. We ask your blessing on all whom have contributed to making this evening possible. Those who have encouraged, taught, nurtured and prayed for us, that we could be at this place today. We give thanks for our proud parents, and grandparents. We give thanks for our teachers and coaches, four our school administrators, and for our faithful friends and family. Strengthen our faith lord, so that in adversity we can remain true to you. We ask that you guide us all in the paths of love, peace, kindness, and self control. We pray that these graduates will go out into this world loving their neighbors and working towards the good of all. In your name we pray. Amen.
93. During this prayer, all attending School District administrators and a majority
of the majority of the audience stood. The prayer was greeted by shouts of “Amen” as
well as loud cheering and applause from the audience.
94. Class President Alicia Guerin then delivered her speech, concluding with the
refrain “God Bless America. God Bless Texas. And God Bless the Class of 2011.”
95. At the conclusion of his remarks, salutatorian David Wurzbach introduced the
valedictorian, Angela Hildenbrand. Wurzbach told the audience that Hildenbrand
“walks in Christ, and her heart is as pure as it was when she was walking through the
halls of St. Louis [Catholic School] with me back in the day.”
96. At the conclusion of her remarks, Hildenbrand asked the audience to stand as
she delivered a lengthy prayer:
Lord I thank you so much for the blessing of this day. And I just thank you for the amazing group of people that you surrounded me with. God I thank you for the support of our whole entire community though this case hearing and also for Erin and all of the people at the Liberty Institute and my parents who’ve helped get me through the last couple of days. Lord I just thank you so much for your presence in our lives through these eighteen years, and I just praise you for your incredible faithfulness
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through all adversity and all joy. God I thank you for the men and women who have given their lives helping to give us and protect the freedom we have today, and I ask you to please keep your hand of guidance on all of them past, present, and future military. God I thank you just so much for the freedom to be here today, and most of all I thank you for loving us first.
God, I ask that you please keep each of us safe and well, as we all go our separate ways, and I can’t wait to see where you’ll be leading each of us. I ask that you ask us all to remember where we come from, and to know where we stand. God I thank you for the gift of your Son and for the forgiveness that surpasses all understanding, and most of all I think you for your great love for us, and our great nation and where we are free. And it’s in Jesus’ name I pray. Amen.
The crowd responded by shouting “Amen.” 97. A few days before the ceremony, Hildenbrand had attempted to intervene in
this case before the U.S. Court of Appeals for the Fifth Circuit and argued that she had a First Amendment right to pray in her graduation speech. She did not tell the Fifth
Circuit, however, that the final draft of her speech—which had already been submitted
to and approved by the School District—contained no prayer. Indeed, Hildenbrand’s purported desire to deliver a prayer at graduation came only after this Court had
prohibited the School District from allowing prayers at graduation. This was a flagrant attempt to manufacture standing—which she otherwise would have lacked—for the
purpose of intervening in the case at the eleventh hour. 98. The School District knew that Hildenbrand’s stated desire to present a prayer
was a ruse, because the School District had previously approved the final draft of Hildenbrand’s prayer-free remarks. But the School District neither prohibited
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Hildenbrand from modifying her remarks post-approval nor alerted the Fifth Circuit that Hildenbrand’s supposed interest in the case was manufactured.
99. Following Hildenbrand’s speech and prayer, the audience heard a religionheavy speech from State Representative John Garza, who had been invited to speak by the Superintendent. Among many other references to religion generally and Christianity specifically, Representative Garza thanked the Superintendent for “his stand that he’s chosen to take to defend our rights as citizens and as a community to exercise and declare our belief in faith and prayer”; told the audience that, “I see his [God’s] very government established in here, in you, his people,” and observed that, “It’s almost humorous that we were almost mandated today not to pray, by our own courts. The Judge of all judges commands us to pray.”
100. Kallisyn Gouard was selected to deliver the Benediction, which the School District renamed as “Closing Remarks” a few days before graduation. Gouard understood that by selecting her to deliver the Benediction, the School District wanted her to deliver a prayer. Likewise, Gouard saw no significance in the decision to rename the Benediction as “Closing Remarks”: she believed that the latter was simply another name for the former.
101. Like the Invocation-turned-Opening, the Benediction-turned-Closing was submitted to and approved by the School District. And like the Invocation-turnedOpening, the Benediction-turned-Closing consisted entirely of a prayer:
Those who wish, please pray with me. Dear heavenly father, thank you for bringing all of us here tonight with our family and friends. We thank
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you for the many blessings you have given us during the past 18 years and the many blessings to come. As we look forward to our future, we ask you for your guidance and love, to lead and protect us. Second Corinthians, chapter 12, verse 9 and 10 says “he said to me, my grace is sufficient for you, for my power is made perfect in weakness, so I will boast all the more gladly of my weaknesses, so that the power of Christ may dwell in me. Therefore, I am content with weaknesses, insults, hardships, persecutions, and calamities for the sake of Christ. Forever, when I am weak, I am strong.”
We have overcome so much in our lives, we just ask that you walk with us as we continue into this pivotal part in our lives. As we came together as a class and community tonight, please watch over everyone here, and those who could not be with us, and lead us all on your path. We are all so grateful for all the opportunities that we have been given, and help us to make the most of every chance that we have. Lord, help us all to remain diligent in our faith, and have courage to stand up when no one else will, and the strength to carry on even when all the odds are stacked against us. We ask you to protect everyone on our journeys home. In Jesus’ name we pray.
102. As with the other prayers, the audience greeted this prayer cheering, applause,
and enthusiastic shouts of “amen.”
G. The School District’s Purported Concern with Student Expression.
103. After the Plaintiffs brought this lawsuit in May 2011, the School District began
to argue that Plaintiffs were seeking to interfere with student expression. Among other
things, the School District has invoked its student-expression policy, which purports to
require the School District to select student speakers by lottery after soliciting
volunteers.
104. Many of the School District’s practices, of course, involve remarks by School
District officials and employees, not by students. Even as to students, however, the
School District handpicks the student speakers who deliver prayers. On information
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and belief, few students—including students actually selected to speak at events—have heard of the School District soliciting or randomly choosing among volunteer speakers.
105. At football games, for instance, the opening remarks for the entire season are delivered by just one student—a member of the student council selected by the School District. And far from allowing the student to choose the topic of presentation, the School District tells the selected student to deliver the Invocation. The student selected to deliver the 2010 Invocation at football games looked up the term in the dictionary and concluded that the School District was asking her to deliver a prayer before each game. At the 2011 senior awards ceremony, the School District likewise selected the opening student speaker and designated his remarks as the Invocation. Ex. 8 (2011 senior awards program).
106. The School District similarly directed the content of certain graduation speeches by officially naming them Invocation and Benediction. Although in 2011 the District changed the names to “opening remarks” and “closing remarks,” this change came at the eleventh hour—after the student remarks had been drafted and approved by the District—and only after the Schultz family filed suit. And students, including the student who was selected to deliver the Benediction, recognized that “opening remarks” and “closing remarks” were merely Invocation and Benediction by another name.
107. Whatever they were called, the Invocation-turned-Opening and Benedictionturned-Closing were guided by the School District in a manner that invited prayers. For
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instance, under the School District’s policy, graduation speeches must “relate[] to the purpose of the graduation ceremony and to the purpose of marking the opening and closing of the event; honoring the occasion, the participants, and those in attendance; bringing the audience to order; and focusing the audience on the purpose of the event.” And the School District distributes, to each year’s speakers, copies of the previous year’s remarks, many if not most of which contain prayers.
108. The School District reviews student graduation speeches in advance, and students are permitted to deliver only remarks that the District approved. The School District itself recognizes the impact of this procedure: “A student is not using his or her own words when the student is reading or performing from an approved script, is delivering a message that has been approved in advance or otherwise supervised by school officials, or is making brief introductions or announcements.” Medina Valley Independent School District policy on Student Expression, Policy # 163908, FNA (local) (emphasis added).
109. The School District also typically omitted the disclaimer required by its own policies. “[A]t each event in which a student shall deliver an introduction, a disclaimer shall be stated in written or oral form, or both.” Id. The School District never issued a written or oral disclaimer at football games, or at any other awards or athletic ceremonies in which prayers were delivered by students. Nor did the School District do so at graduations, until this year’s ceremony, and then only in response to the Schultz family’s lawsuit. Even when the School District added a disclaimer in 2011—after this
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lawsuit highlighted that the required disclaimers were missing—it did so grudgingly. The Superintendent, who read the disclaimer, announced that there was a “little statement” that he “ha[d] to make.”
110. For similar reasons, the School District has failed to comply with the Texas Religious Viewpoint Antidiscrimination Act, Tex. Educ. Code Ann. §§ 25.151 et. seq. Among other things, the School District has failed to comply with the Act’s disclaimer provisions, id. § 25.152(b), and the School District’s limitations on the content of student speeches exceed those contemplated by the Act, id. § 25.152(a)(3) (2011).
111. In short, the School District’s purported concern with student expression is a creature of litigation, not an actual policy or practice. Moreover, the religious environment created and condoned by the School District not only informs how a reasonable observer would perceive prayers delivered by students at school events, but also increases the likelihood that students will deliver prayers in the first place.
Claim for Relief: Violation of First Amendment 112. Paragraphs 1 through 111 above are incorporated as if fully set forth here. 113. The First Amendment to the United States Constitution provides, in relevant part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.” 114. The First Amendment applies with full force and effect to the acts of local public-school officials through the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.
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115. As part of its policy and custom, the Medina Valley Independent School District has violated and continues to violate Plaintiffs’ rights under the Establishment Clause. The primary purpose of the conduct described above has been, and continues to be, to promote and advance religion. The School District’s course of conduct has had and continues to have the effect of advancing and endorsing religion. To the extent that the School District’s conduct involves school officials in drafting, editing, or revising prayers, the School District’s conduct excessively entangles government with religion. And the School District’s conduct coercively exposes students, teachers, parents, and others to unwanted religious activity and expression.
116. The School District’s customs and policies have also violated the fundamental constitutional right of parents to control the religious upbringing of their own children, free from governmental intrusion or interference.
117. In light of these violations, Plaintiffs are entitled to remedies under 42 U.S.C. § 1983. Through the conduct described above, Defendants have harmed Plaintiffs, are continuing to harm Plaintiffs, and will inflict future harm upon Plaintiffs, who are therefore entitled to the remedies set forth in the Prayer for Relief below.
Prayer for Relief 118. Paragraphs 1 through 117 above are incorporated as if fully set forth here. A. Declaratory Judgment 119. An actual controversy exists between the parties as to whether Defendant’s conduct has violated and continues to violate the First Amendment. Accordingly,
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Plaintiffs respectfully request a declaratory judgment that the School District has violated, and is continuing to violate, the U.S. Constitution by engaging in the following course of conduct: presenting, sponsoring, encouraging, inviting, or coercing prayers at school and school-sponsored activities and events; displaying and permitting the display of crosses and other religious icons; and retaliating against students who complain about the unlawful promotion of religion or who decline to participate in religious prayers, practices, or rituals. B. Permanent Injunction
120. Plaintiffs have no adequate remedy at law. Defendant’s violations of the First Amendment to the U.S. Constitution have inflicted, and will continue to inflict, irreparable harm upon Plaintiffs.
121. Plaintiffs therefore respectfully request a permanent injunction that (1) prohibits the School District and its officials from presenting, sponsoring, encouraging, coercing or inviting prayers at school or during school-sponsored activities and events; (2) prohibits the School District from displaying crosses and the other types of religious icons described above in ¶¶ 48–51 at Medina Valley High School; and (3) requires the School District to train its employees about legal restrictions on the display of crosses and religious icons, promotion of religion as part of academic instruction, and retaliation against students who complain about the improper promotion of religion or who decline to participate in prayers or other religious practices or rituals.
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C. Nominal Damages 122. Plaintiffs request nominal damages of one dollar to each Plaintiff against the
Defendant for the harm that Plaintiffs have suffered due to the School District’s past violations of the First Amendment and the violations that continue or occur after the filing of this Complaint. D. Attorneys’ Fees and Costs
123. Plaintiffs request an order awarding them the costs of this action, including attorneys’ fees, under 42 U.S.C. § 1988 and 28 U.S.C. § 2412. E. Other Relief
124. Plaintiffs request any other relief that the Court deems just and proper.

Respectfully submitted,

Donald H. Flanary, III (Bar No. 24045877) GOLDSTEIN, GOLDSTEIN & HILLEY 310 South St. Mary’s Street, Suite 2900 San Antonio, Texas 78205 (210) 226-1463 (210) 226-8367 donflanary@hotmail.com

/s/ Gregory M. Lipper ________________________ Ayesha N. Khan (pro hac vice) Gregory M. Lipper (pro hac vice) AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE 1301 K Street NW, Suite 850 Washington, DC 20005 (202) 466-3234 (202) 898-0955 (fax) khan@au.org | lipper@au.org

October 5, 2011

Counsel for Plaintiffs

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 </s> Case 5:11-cv-00422-FB Document 18 Filed 06/01/11 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CHRISTA SCHULTZ and DANNY

)

SCHULTZ, both Individually and as

)

Parents and Guardians of Minor Child

)

C.S., a Student in the Medina Valley

)

Independent School District; C.S., a Minor, )

Individually, by his Next Friends

)

CHRISTINA SCHULTZ and DANNY

)

SCHULTZ; and TREVOR SCHULTZ

)

Individually,

)

)

Plaintiffs,

)

)

vs.

)

)

MEDINA VALLEY INDEPENDENT

)

SCHOOL DISTRICT,

)

)

Defendant.

)

CIVIL ACTION NO. SA-11-CA-422-FB

AMENDED ORDER ON PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Plaintiffs have filed a Motion for a Temporary Restraining Order and a Preliminary Injunction

to enjoin Defendant Medina Valley Independent School District from including a prayer at the June 4,

2011 graduation ceremony of Medina Valley High School. The Court has considered the arguments

and papers in support thereof and opposition thereto. The Court finds: 1. Plaintiffs are likely to succeed on the merits of their claim that the inclusion of prayers

at Medina Valley High School graduation ceremonies violates the Establishment Clause of the First

Amendment to the U.S. Constitution.

2. Plaintiffs will suffer irreparable harm if the prayers are not enjoined.

3. The harm Plaintiffs will suffer if injunctive relief is denied substantially outweighs any harm that the School District will suffer if the injunction is granted.

Case 5:11-cv-00422-FB Document 18 Filed 06/01/11 Page 2 of 4
4. The public interest supports issuance of injunctive relief. This Court is bound to follow case law of the Supreme Court of the United States and the Fifth Circuit Court of Appeals: Lee v. Weisman, 505 U.S. 577, 587, (1992) (granting permanent injunctive relief to prevent inclusion of clergy-led invocations in form of prayer in graduation ceremonies of city public schools); Santa Fe Independent School District v. Doe, 530 U.S. 290, 310-12 (2000) (granting injunctive relief granted to prevent inclusion of student-led prayer invocations before football games of Texas public schools); Meltzer v. Board of Public Instruction, 577 F.2d 311, 314 ( see also ACLU of New Jersey v. Black Horse Pike Regional Board of Education, 84 F.3d 1471, 1488 (3d Cir. 1996) (en banc) (invalidating school policy under which prayers could be given at graduations if approved by student vote); Cole v. Oroville Union High School District, 228 F.3d 1092, 1101-03 (9th Cir. 2000) (allowing student selected by student vote to give invocation at graduation would violate Establishment Clause); Lassonde v. Pleasanton Unified School District, 320 F.3d 979, 983-85 (9th Cir. 2003) (ruling that school could not constitutionally allow student who was selected as graduation speaker based on his academic standing to give proselytizing religious speech at graduation); Does 1-7 v. Round Rock Independent School District, 540 F. Supp. 2d 735, 747-50 (W.D. Tex. 2007) (Sparks, J) (finding Santa Fe overruled earlier Fifth Circuit decision allowing student-led prayers at public school graduations, Jones v. Clear Creek Independent School District, 977 F.2d 963, 969 (5th Cir. 1992)); Deveney v. Board of Education, 231 F. Supp. 2d 483, 485-88 (S.D. W.VA. 2002) (issuing TRO against offering of prayer by student at graduation pursuant to vote of student class officers); Skarin v. Woodbine Community School, 204 F. Supp. 2d 1195, 1198 (S.D. Iowa 2002) (issuing injunction prohibiting school choir from singing Lord’s Prayer at graduation ceremony); Appenheimer v. School Board, No. 01-1226, 2001 WL 1885834, at *6-9 (C.D. Ill. May 24, 2001) (issuing TRO against offering of prayer
2

Case 5:11-cv-00422-FB Document 18 Filed 06/01/11 Page 3 of 4
by student at graduation pursuant to vote of senior class student board). Accordingly, it is hereby ORDERED that the Medina Valley Independent School District and
its officials, agents, servants, and employees, as well as all persons acting in concert with them, are prohibited from allowing a prayer (as defined in paragraph (b) below) to be included in the June 4, 2011 graduation ceremony for Medina Valley High School. More specifically:
(a) The District shall remove the terms “invocation” and “benediction” from the program of ceremonies for the graduation exercises. These terms shall be replaced with “opening remarks” and “closing remarks.”
(b) The District, through its officials, shall instruct the students previously selected to deliver the “invocation” and “benediction” to modify their remarks to be statements of their own beliefs as opposed to leading the audience in prayer. These students, and all other persons scheduled to speak during the graduation ceremony, shall be instructed not to present a prayer, to wit, they shall be instructed that they may not ask audience members to “stand,” “join in prayer,” or “bow their heads,” they may not end their remarks with “amen” or “in [a deity’s name] we pray,” and they shall not otherwise deliver a message that would commonly be understood to be a prayer, nor use the word “prayer” unless it is used in the student’s expression of the student’s personal belief, as opposed to encouraging others who may not believe in the concept of prayer to join in and believe the same concept. The students may in stating their own personal beliefs speak through conduct such as kneeling to face Mecca, the wearing of a yarmulke or hijab or making the sign of the cross.
(c) The District, through its officials, shall review, and make any necessary changes to, the
3

Case 5:11-cv-00422-FB Document 18 Filed 06/01/11 Page 4 of 4 students’ revised remarks to ensure that those remarks comply with this Order, and shall instruct the students that they must not deviate from the approved remarks in making their presentations.
Because this suit seeks to enforce fundamental constitutional norms, it is further ORDERED that the security requirement of Federal Rule of Civil Procedure 65(c) is waived, and that this injunctive order shall be effective immediately and shall be enforced by incarceration or other sanctions for contempt of Court if not obeyed by District official and their agents.
It is so ORDERED. SIGNED this 1st day of June, 2011.
_____________________________________ FRED BIERY CHIEF UNITED STATES DISTRICT JUDGE
4

 </s> Case: 11-50486 Document: 00511498424 Page: 1 Date Filed: 06/03/2011
IN THE UNITED STATES COURT OF APPEALS 
 FOR THE FIFTH CIRCUIT 

No. 11-50486
CHRISTA SCHULTZ, Individually and as parents and Guardians of minor child, C.S., a student in the Medina Valley Independent School District; DANNY SCHULTZ, individually and as parents and Guardians of minor child, C.S., a student in the Medina Valley Independent School District; TREVOR SCHULTZ, Individually,
Plaintiffs-Appellees v. MEDINA VALLEY INDEPENDENT SCHOOL DISTRICT,
Defendant-Appellant
Appeal from the United States District Court for the Western District of Texas
Before DAVIS, SMITH and SOUTHWICK, Circuit Judges. PER CURIAM:
On this incomplete record at this preliminary injunction stage ofthe case, we are not persuaded that plaintiffs have shown that they are substantially like· ly to prevail on the merits, particularly on the issue that the individual prayers or other remarks to be given by students at graduation are, in fact, school­ sponsored. We also observe in particular that the plaintiffs' motion may be root­ ed at least in part in circumstances that no longer exist. For example, the school has apparently abandoned including the words "invocation" and "benediction"

Case: 11-50486 Document: 00511498424 Page: 2 Date Filed: 06/03/2011
No. 11-50486 on the program. The motion also did not expressly address the involvement of the valedictorian in the graduation ceremony.
IT IS THEREFORE ORDERED that the emergency motion of the appel­ lants to dissolve the temporary restraining order and preliminary injunction is GRANTED; accordingly the temporary restraining order and preliminary injunc­ tion entered by the district court are DISSOLVED, and the case is REMANDED to the district court for possible further proceedings.
IT IS FURTHER ORDERED that the opposed motion of Angela Hilden­ brand to intervene is DENIED without prejudice. She is hereby permitted to proceed as amicus curiae.
IT IS FURTHER ORDERED that the opposed motion of Angela Hilden­ brand for relief from temporary restraining order and preliminary injunction is DENIED as moot.
2 


Case: 11-50486 Document: 00511498428 Page: 1 Date Filed: 06/03/2011

LYLE W. CAYCE CLERK

United States Court of Appeals FIFTH CIRCUIT OFFICE OF THE CLERK

TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130

June 03, 2011

Mr. William Putnicki Western District of Texas, San Antonio United States District Court 655 E. Durango Boulevard Suite G65 San Antonio, TX 78206
No. 11-50486, Christa Schultz, et al v. Medina Valley Indep Sch Dist
USDC No. 5:11-CV-422
Enclosed is a copy of the judgment issued as the mandate.
Sincerely,
LYLE W. CAYCE, Clerk

By:_________________________ Mary C. Stewart, Deputy Clerk 504-310-7694
cc w/encl: Mr. Adam Warren Aston Honorable Samuel Fred Biery Jr. Mr. Donald H. Flanary III Ms. Ayesha N. Khan Mr. Kelly J. Shackelford Mr. Joe Ruben Tanguma II Mr. Donald Craig Wood

 </s> Case 5:11-cv-00422-FB Document 31 Filed 07/11/11 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

CHRISTA SCHULTZ and DANNY

)

FflED

SCHULTZ, both Individually and as

)

Parents and Guardians of Minor Child

)

C.S., a Student in the Medina Valley

)

Independent School District; C.S., a Minor, )

Individually, by his Next Friends

)

JUL ll 2011
~~~,~~~·&;.
1¥--·

CHRISTINA SCHULTZ and DANNY

)

SCHULTZ; and TREVOR SCHULTZ

)

Individually,

)

)

Plaintiffs,

)

)

vs.

)

CIVIL ACTION NO. SA-11-CA-422-FB

)

MEDINA VALLEY INDEPENDENT

)

SCHOOL DISTRICT,

)

)

Defendant.

)

ADVISORY AND ORDER CONCERNING PROCEDURES TO REACH RESOLUTION OF THE MERITS OF THIS CASE

The judicial branch ofgovernment is the designated umpire in the American rule

oflaw system. While it will not please everyone in a particular dispute, and at times will

please no one, the alternative is anarchy.

As the Court reviews the parties' proposed scheduling recommendations, they

may want to consider and compare other public policy cases from this Court which

achieved final resolution ofthe controversies, but did so using different procedures.

J. P. Flores v. City of Boerne was a case addressing the constitutionality of the

Religious Freedom Restoration Act ("RFRA"). 877 F. Supp. 355 (W.D. Tex. 1995).

Case 5:11-cv-00422-FB Document 31 Filed 07/11/11 Page 2 of 5
In the trial court, the Honorable Lucius D. Bunton, III entered judgment for the city, determining that Congress had exceeded the scope ofits enforcement power under § 5 of the Fourteenth Amendment in enacting the RFRA. The Fifth Circuit Court of Appeals reversed, finding the RFRA to be constitutional. Flores v. City ofBoerne, 73 F.3d 1352 (5th Cir. 1996). The United States Supreme Court reversed the court of appeals and affirmed Chief Judge Bunton's initial decision. City of Boerne v. Flores, 521 U.S. 507 (1997). Following such affirmance, the parties negotiated an agreement to their dispute. However, having chosen the longer and more expensive path ofjudicial process, the resolution which could have been reached in 1994 was attained three years later at a reported cost of$265,000 and no doubt considerable divisiveness within the community.
In contrast, Margo Neff. et al. v. VIA Metropolitan Transit Authority and City of San Antonio, Civil Action No. SA-94-CA-691-FB, and San Antonio Hispanic Police Officers' Association v. City of San Antonio, 188 F.R.D. 433 (W.D. Tex. 1999), presented to the Court issues involving the Americans With Disabilities Act and the anti-discrimination provisions ofTitle VII respectively. In those cases, the parties chose the judicial process of resolving their matter sooner and less expensively before engaging in full blown l~tigation which would have taken several years and tens, ifnot hundreds, ofthousands of dollars.
2

Case 5:11-cv-00422-FB Document 31 Filed 07/11/11 Page 3 of 5
The parties here are approaching the fork in the road of deciding which judicial path they will take. Statistically, the road less traveled is the longer and more expensive, as most folks have more productive things to do than be tied up in court and better ways
to spend limited funds. The adults on both sides not only have a responsibility to teach, but also are
stewards of financial resources best used for education of children, as opposed to litigation among adults. And, of course, examples set by adults tend to be followed by
children. To the extent the parties have chosen litigation thus far, both sides can claim
prevailing points: 1. Counsel for plaintiffs asked the Court to prohibit student speakers from making the Sign ofthe Cross. The Court ruled against the plaintiffs based on a speaker's First Amendment right to express personal beliefs whether by words or physical expression. Plaintiffs did not appeal that ruling.
2. Defendant had planned to use public tax dollars to print the words "Invocation" and "Benediction" in a school district (i.e., government) document. The Court found this to be a violation of the constitutional concept ofagovernmental entity not establishing or favoring religion. (The Establishment Clause). Defendant did not ask the Fifth Circuit Court of Appeals to undo that ruling.
What remains, perhaps among other issues, is whether a speaker at a taxpayer funded event can ask others to join in expressing the speaker's same religious beliefs
even though others may not so believe.
3

Case 5:11-cv-00422-FB Document 31 Filed 07/11/11 Page 4 of 5

Having resolved two major issues, the parties may see an opportunity to conclude

the matter, not only sooner and less expensively, but as a teachable moment and

example for the district's children of how people of opposing views can listen to one

another and resolve disagreements peaceably.

To achieve the path of less time and expense will require both sides to make a

good faith effort to enter into a spirit ofcompromise with the assistance ofcounsel. The

Court is advised that a long time member of the Bar of this Court and who is an Elder

of a conservative Christian denomination, and who has now entered a second career

with a Master ofDivinity degree, has volunteered to be ofassistance ifthe parties wish

to try to be reconciled to each other and put the interests of education ofstudents first.

While plaintiffs appear to be non-religious and some on the defense side appear

quite religious, both sides in making their decision may want to consider teachings

which have stood the test of time, but are not always lived by:

Isaiah:

Come let us reason together. (Isaiah 1:18).

Moses conveying God's message: The sins of the father shall be visited upon the children. (Exodus 20:5).

Jesus:

Love your neighbor as yourself. (Matthew 22:29).

St. Paul:

All things work together for good. (Romans 8:28).

4

Case 5:11-cv-00422-FB Document 31 Filed 07/11/11 Page 5 of 5
Accordingly, each party shall file with the Clerk of Court on or before 5 p.m. on July 21, 2011, a statement ofwhich judicial process road that particular party chooses: to attempt sooner and less expensive resolution or proceed immediately to longer and more expensive litigation.
It is so ORDERED.
~
_jj_ Signed this day of July, 2011.
FRED BIERY ClllEF UNITED ST
5

 </s> Case 5:11-cv-00422-FB Document 98 Filed 12/09/11 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CHRISTA SCHULTZ, et al

§

§

Plaintiffs

§

§

vs.

§

§

MEDINA VALLEY INDEPENDENT §

SCHOOL DISTRICT

§

§

Defendant

§

CIVIL ACTION NO. 5:11-CV-422

DEFENDANT'S SECOND MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES Defendant Medina Valley Independent School District ("Medina Valley

ISD," "MVISD," "School District" or "the District") and files its Second Motion to Dismiss for

Lack of Subject-Matter Jurisdiction, and in support of such would show the following:

I. STATEMENT OF THE CASE AND RELEVANT PROCEDURAL BACKGROUND

I. Plaintiffs Christa Schultz, Darmy Schultz, Trevor Schultz, and Corwyn Schultz

(hereinafter collectively referred to as "Plaintiffs") have sued Medina Valley Independent School

District, alleging that the District has violated their First Amendment Constitutional rights. (Dkt.

Nos. 1, 75). Specifically, Plaintiffs claim that the District has violated the Establishment Clause

by permitting student speakers at graduation and football games to pray during their remarks.

(Dkt. No. 75 at ~~3, 115.) Additionally, Plaintiffs allege that school employees have prayed with

students at school, made religious remarks at school, and/or had crosses or other religious

symbols in their classrooms in violation of the Establishment Clause. (ld) Plaintiffs seek

injunctive relief, declaratory relief, nominal damages, and attorneys' fees. (/d at ~~119-124.)

1

Case 5:11-cv-00422-FB Document 98 Filed 12/09/11 Page 2 of 22
Defendant asserts that Plaintiffs lack standing on all of their equitable claims and their nominal damage claims for which they lack injury in fact, as set out in more detail infra. 2. On September 6, 2011, Defendant filed its Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction, asserting that the Schultz Plaintiffs lacked standing to pursue their claims for prospective, injunctive relief because no one in their family is currently a student in the District. (Dkt. No. 43). On November 2, 2011, the Court denied the Motion to Dismiss as moot, not specifically ruling on the merits of the Motion, but instead granting Plaintiffs' Motion to Amend their Complaint, in which they added a new plaintiff to the case. (Dkt. No. 71). The Court denied the Motion as moot, "because Defendant's Motion to Dismiss is based on the original complaint which has now been superceded." (Id.) In light of the fact that the Court has not yet considered Defendant's Motion to Dismiss on the merits, Pat Doe has withdrawn from the case, 1 and new discovery shows Plaintiffs lack standing on many of their claims, Defendant files this Second Motion to Dismiss and respectfully requests that the Court dismiss Plaintiffs' equitable claims, declaratory relief claims, and nominal damage claims for which they lack injury in fact, as set out infra, for lack of subject matter jurisdiction. Pursuant to Local Rule CV-7 (c), attached to this Second Motion to Dismiss and incorporated by reference for all purposes is Appendix: Defendant's Summary of Material Facts and its attached evidentiary exhibits.
II. STANDARD OF REVIEW AND BURDEN OF PROOF 3. Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Federal courts "possess only that power authorized by Congress and statute, which is not to be expanded by judicial decree. It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." I d. (internal citations omitted). A lawsuit must be therefore dismissed if
I Pat Doe withdrew from the case on December 5, 2011. (Dkt. No. 92).
2

Case 5:11-cv-00422-FB Document 98 Filed 12/09/11 Page 3 of 22
"the court lacks the statutory or constitutional power to adjudicate the case." Home Builders Ass 'n. of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5'h Cir. 1998). In considering a Rule 12(b)(l) motion, the "district court has the power to dismiss for lack of subject-matter jurisdiction on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Freeman v. United States, 556 F.3d 326, 334 (5'h Cir. 2009), cert denied, 130 S. Ct. 154 (2009). 4. When a Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction is filed, the party seeking to litigate in federal court bears the burden of establishing jurisdiction. Spencer v. Kemna, 523 U.S. 1, 7 (1998); Lujan v. Deftnders of Wildlife, 504 U.S. 555, 561 (1992); Ramming v. United States, 281 F.3d 158, 161 (5'11 Cir. 2001), cert. denied, 536 U.S. 960 (2002). The Fifth Circuit distinguishes between "facial" and "factual" attacks to subject-matter jurisdiction. Patterson v. Weinberger, 644 F.2d 521, 523 (5'h Cir. 1981). A facial attack is presented when no extrinsic evidence accompanies the Rule 12(b)(1) motion. !d. Under such circumstances, the district court is simply required to evaluate the sufficiency of the allegations in the complaint as they are presumed to be true and determine whether those allegations convey jurisdiction. !d. A factual attack occurs when a 12(b)(l) motion denies or controverts the plaintiffs allegations of jurisdiction with the presentation of affidavits, testimony, or other evidentiary materials, requiring the plaintiff to prove the existence of the subject-matter jurisdiction by a preponderance of the evidence. !d.; see also Irwin v. Veterans Admin., 874 F.2d 1092, 1096 (5'11 Cir. 1989), aff'd. sub. nom., Irwin v. Dep't. of Veteran Affairs, 498 U.S. 89 (1991). When a factual attack is made upon federal jurisdiction, no presumptive truthfulness attaches to the plaintiffs jurisdictional allegations, and the district court is free to weigh the
3

Case 5:11-cv-00422-FB Document 98 Filed 12/09/11 Page 4 of 22
evidence and satisfy itself as to the existence of its power to hear the case. Evans v. Tubbe, 657 F.2d 661, 663 (5th Cir. 1981 ). If there are any facts in dispute between the parties, the district court must likewise resolve those disputed facts without giving a presumption of truthfulness to a plaintiffs allegations. Vantage Trailers, Inc. v. Beall Corp., 567 F.3d 745, 748 (5'h Cir. 2009); Williamson v. Tucker, 645 F.2d 404,413 (5'h Cir. 1981), cert. denied, 454 U.S. 897 (1981). 5. Plaintiffs bear the burden of proof to establish that a live case or controversy exists to convey Article III jurisdiction upon the Court. Mississippi St. Democratic Party v. Barbour, 529 F.3d 538, 545 (5th Cir. 2008). Article III jurisdiction "carmot be inferred argumentatively from averments in the pleadings," but rather must "affirmatively appear in the record;" "it is the burden of the party who seeks the exercise of jurisdiction in his favor clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." Lujan, 504 U.S. at 560; FWIPBS, Inc. v. City ofDallas, 493 U.S. 215, 231 (1990). In the case at hand, as set out in more detail below, none of the Plaintiffs are students in the District. Therefore, the Court must dismiss Plaintiffs' equitable claims in this lawsuit for lack of subject-matter jurisdiction. Additionally, Plaintiffs allege constitutional violations by the District, many of which they did not personally experience or otherwise observe. As a result, the Court must dismiss Plaintiffs' claims for which no injury fact exists.
III. ARGUMENT AND AUTHORITIES No case or controversy exists that would impart the Court with Article III jurisdiction. 6. Under Article III of the United States Constitution, a federal court cannot consider the merits of a case unless it presents an actual "case" or "controversy." U.S. CONST. ART. III, § 2; Camreta v. Greene, 113 S. Ct. 2020, 2028-2029 (2011). Litigants must demonstrate a "personal stake" in the suit. Camreta, 113 S. Ct. at 2028, quoting Summers v. Earth Island Institute, 555
4

Case 5:11-cv-00422-FB Document 98 Filed 12/09/11 Page 5 of 22
U.S. 488 (2009). An actual, live case or controversy must exist at every stage in the judicial process. Motient Corp. v. Dondero, 529 F.3d 532, 537 (5th Cir. 2008). The limiting principles of the case or controversy requirements are standing, ripeness, and mootness. Article III requires that a party present a dispute ripe for judicial review, and have standing both at the commencement and throughout the duration of the litigation. Camreta, 113 S. Ct. at 2028; Arizonans for Official English v. Arizona, 520 U.S. 43,67 (1997); Allen v. Wright, 468 U.S. 737, 750 (1984). To establish Article III jurisdiction in this case, Plaintiffs must show that they present a case ripe for dispute and that they have standing. As set out below, Plaintiffs carmot meet this burden, requiring that their claims for equitable relief and their claims for which they have no injury-in-fact be dismissed for lack ofjurisdiction.
A. Plaintiffs' claims for equitable or injunctive reliefare moot. 7. Mootness is described as the doctrine of standing, set in a time frame: "The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)." United States Parol Comm 'n v. Geraghty, 445 U.S. 388, 397 (1980); Pederson v. Louisiana St. Univ., 213 F.3d 858, 869 (5th Cir. 2000); Motient Cmp., 529 F.3d at 537. If a case has been rendered moot, a federal court has no constitutional authority to resolve the issues presented. Environmental Conservation Org. v. City of Dallas, 529 F.3d 519, 525-26 (5'h Cir. 2008), cert. denied, 129 S. Ct. 418 (2008). A case becomes moot when there are no longer adverse parties with sufficient legal interests to maintain jurisdiction or when the parties lack a legally cognizable interest in the outcome. In re Scruggs, 392 F.3d 124, 128 (5'h Cir. 2004). 8. As the Supreme Court has noted, "it is not enough that a dispute was very much alive when the suit was filed. . . . The parties must continue to have a personal stake in the outcome of
5

Case 5:11-cv-00422-FB Document 98 Filed 12/09/11 Page 6 of 22
the lawsuit." Lewis v. Continental. Bank Corp., 494 U.S. 472, 477-78 (1990). Article III requires that the expression of judicial views be a byproduct of the need to actually decide the case in order to resolve a concrete controversy. Alliance to End Repression v. City of Chicago, 820 F.2d 873, 876 (ih Cir. 1987). The fact that a party may want to litigate to acquire a desired judicial opinion does not establish a real controversy; if this were enough to keep a case alive, an advisory opinion would be its own justification. See id. As the Seventh Circuit stated, "[d]efendants, like the courts, have an interest in peace; once there is no more dispute, there is no case. Both the parties and the courts may save the costs of litigation." !d. 9. Justiciability must be analyzed separately on the issues of money damages and the propriety of equitable relief. Pederson, 213 F.3d at 874. Allegations of past exposure to illegal conduct are not, standing alone, sufficient to a present case or controversy bestowing continuing jurisdiction upon a court so as to preclude dismissal for mootness; equitable remedies are available only to counter a real and immediate threat the plaintiff will be wronged again. Carter v. Orleans Parish Pub. Schs., 725 F.2d 261, 263 (5111 Cir. 1984). "Federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them." Pederson, 213 F.3d at 874. 10. In cases involving students suing their schools, the students' graduation typically renders their case moot. See Cole v. Oroville Union High Sch. District, 228 F.3d 1092, 1098 (91h Cir. 2000), cert. denied, 532 U.S. 905 (2001); Pederson, 213 F.3d at 874; Doe v. Madison Sch. District No. 321, 177 F.3d 789, 798 (9th Cir. 1999); see also Camreta, 113 S. Ct. at 2034 (Plaintiff-student's moving to another state, out of school's attendance boundaries, and being months from her high school graduation rendered her case against her former school for Fourth Amendment violations moot). Indeed, the Fifth Circuit noted, "[a]s is so often the case in suits
6

Case 5:11-cv-00422-FB Document 98 Filed 12/09/11 Page 7 of 22
for injunctive relief brought by students, graduation or impending graduation renders their claims for injunctive relief moot." Pederson, 213 F.3d at 874; see also Cole, 328 F.3d at 1098 ("It is well-settled that once a student graduates, he no longer has a live case or controversy justifying declaratory and injunctive relief against a school's action or policy.") "When subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur," there is no longer a live controversy. Camreta, 113 S. Ct. at 2034 (quoting United States v. Concentrated Phosphate Export Assn., Inc. 393 U.S. 199, 203 (1968)). Even if a school were to resume its alleged illegal activity, the plaintiff-students who have graduated would be unaffected since they no longer attend the school; therefore, injunctive and declaratory relief as to graduated students is rendered moot. Pederson, 213 F.3d at 874; see Doe, 177 F.3d at 798. 11. An exception to this mootness doctrine is the "capable of repetition, yet evading review" exception. Cole, 228 F.3d at 1098; Doe, 177 F.3d at 798. This exception only applies when (1) the challenged action is too short in duration to be fully litigated before cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again. Cole, 228 F.3d at 1098; Doe, 177 F.3d at 798. Students who have graduated often do not meet this exception. See Cole, 228 F.3d at 1098; Doe, 177 F.3d at 798. Although graduation prayer cases are "difficult to litigate fully, such challenges are not 'so inherently limited in duration that the action will become moot before the completion of appellate review."' Additionally, because students do not graduate from high school twice, the student will not be compelled to attend another graduation at his high school and thus has no reasonable expectation of being exposed to the same allegedly impermissible actions again. Doe, 177 F.3d at 798-99. 12. In Doe v. Madison School District, a case on point from the Ninth Circuit, two families sued the school district, bringing First Amendment challenges to the school district's allowing
7

Case 5:11-cv-00422-FB Document 98 Filed 12/09/11 Page 8 of 22
prayers at its graduation ceremonies. Doe, 177 F.3d at 792. However, one of the studentplaintiffs graduated from high school while the case was pending. !d. at 798. The court found that the student's graduation rendered his claims for equitable and declaratory relief moot and further held that no mootness exception applied. !d. Citing a litany of other cases that demonstrate graduation cases can be fully litigated, the court noted that although graduation prayer cases can be difficult to fully litigate, they are not inherently incapable of evading review. !d. Additionally, the court found that once a student graduates, he is no longer compelled to attend his high school's future graduation ceremonies. !d. at 798-99. Consequently, the comi held that the graduated student's equitable relief and declaratory relief claims were moot. !d. 13. In Pederson v. Louisiana State University, the student-plaintiffs brought suit against the university under Title IX for alleged discrimination in intercollegiate athletic facilities and competitions, seeking declaratory, injunctive, and monetary relief. Pederson, 213 F.3d at 864. While the case was pending, some of the student-plaintiffs graduated. !d. at 874. The Fifth Circuit held that the graduated student-plaintiffs' claims for injunctive relief were rendered moot by their graduation. !d. Even if the university were to resume its alleged discriminatory activity, the student-plaintiffs would be unaffected, having graduated. !d. at 875. 14. Mere intention to attend future school events does not confer standing. Injuries that are speculative and may never occur are not appropriate for judicial review. See United Transp. Union v. Foster, 205 F.3d 851, 857 (S'h Cir. 2000). A claim is not ripe for review if it "rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." Staley v. Harris County, Tex., 485 F. 3d 305, 309 (S'h Cir. 2007), cert. denied, 552 U.S. 1038 (2007); United States v. Carmichael, 343 F.3d 756, 761 (S'h Cir. 2003), cert. denied, 540 U.S. 1136 (2004); Texas v. United States, 523 U.S. 296, 300 (1998). Indeed, a "bare statement of
8

Case 5:11-cv-00422-FB Document 98 Filed 12/09/11 Page 9 of 22
intention is insufficient to escape mootness." Fox. v. Board of Trustees of the State ofN.Y., 42 F.3d 135, 143 (2d Cir. 1994), cert. denied, 515 U.S. 1169 (1995). In Fox, the student-plaintiffs had graduated from the university during the pendency of their lawsuit, in which they were seeking an injunction against the university to permit them to engage in commercial sales demonstrations from the dorm rooms. Jd at 137-139. The graduated student-plaintiffs attempted to overcome the mootness caused by their graduation by proffering affidavits indicating they planned or intended to take additional courses at the university and expressing their intention to return to campus. Jd at 143. The Second Circuit held that the graduated students' claims were moot due to their graduation and that their statement of intent to take more courses at the university was insufficient to overcome mootness. Jd 15. In the present case, Plaintiffs seek injunctive relief, requesting an injunction that prohibits the District from "presenting, sponsoring, encouraging, coercing, or inviting prayers at school or during school-sponsored activities and events," prohibits the display of any cross or other religious icon, and requires the District to train its employees about legal restrictions concerning religious expression and retaliation. (Dkt. No. 75 at 33 ~121). However, as set out in the Appendix: Evidentiary Smnmary of Material Facts, none of the Plaintiffs attends Medina Valley ISD schools. Both Plaintiff Trevor Schultz and Corwyn Schultz have graduated. Consequently, as established by Fifth Circuit and Ninth Circuit precedent, Plaintiffs' claims for injunctive relief and declaratory relief are rendered moot. Because their equitable and declaratory relief claims are moot, the Court lacks subject matter jurisdiction and must dismiss Plaintiffs' equitable and declaratory relief claims.2
2 In Does 1-7 v. Round Rock Independent School District, the Court dismissed the equitable relief claims brought by student-plaintiffs, leaving only the issue of nominal damages. Does 1-7, 540 F.Supp.2d 735, 746 (W.D. Tex. 2007). However, the Court noted, "Nominal damages were not intended to thwart the doctrines ofmootness and ripeness... . The Court is not inclined to give an advisory opinion so thinly veiled by the concept of nominal damages." 1d. at
9

Case 5:11-cv-00422-FB Document 98 Filed 12/09/11 Page 10 of 22
B. Plaintiffs do not have standing. 16. Under Article III, a plaintiff must have standing to sue. Raines v. Byrd, 521 U.S. 811, 818 (1997). Standing requires a plaintiff to demonstrate that they have suffered: (i) an injury in fact; (ii) that is fairly traceable to the defendant's actions; and (iii) that will likely be redressed by a favorable decision. Camreta, 113 S. Ct. at 2028; Lujan, 504 U.S. at 560-61; Public Citizen, Inc. v. Bomer, 274 F.3d 212, 217 (5th Cir. 2001). The requirement to satisfy these Article III requirements is not optional; those who do not meet each element "may not litigate as suitors in the courts of the United States." Valley Forge Christian College v. Americans United for Separation ofChurch and State, 454 U.S. 464,475-76 (1982).
1. Plaintiffs cannot manufacture standingfor future, hypothetical claims 17. An injury in fact is an invasion of a legally protected interest which is concrete and particularized, and actual or imminent, not conjectural or hypothetical. Lujan, 504 U.S. at 560; Association of Community Orgs. for Reform v. Fowler, 178 F.3d 350, 358 (5th Cir. 1999). The Supreme Court has emphasized that the injury must be concrete in both a qualitative and temporal sense. Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). The alleged injury must be distinct and palpable, as opposed to merely abstract. Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 2206 (1975). An appearance or belief of future impropriety is insufficient to establish an injury in fact to convey standing. Henderson v. Stalder, 287 F.3d 374, 379 (5th Cir. 2002), cert. denied, 537 U.S. 1048 (2002). A threatened injury must be "certainly impending" to constitute an injury in fact. Babbit v. Farm Workers, 442 U.S. 289, 298 (1979). 18. In Cole v. Oroville Union High School District, the Ninth Circuit held that the students and parents who were suing the school to enjoin the school from prohibiting sectarian speeches
746-47. Although the Court allowed the case to proceed for the determination of nominal damages, the Court stated that it had "serious concerns that litigating the sole remaining issue of a few dollars in nominal damages is a poor use of time and resources....," and strongly encouraged settlement. !d. at 750.
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Case 5:11-cv-00422-FB Document 98 Filed 12/09/11 Page 11 of 22
and prayers at future graduation ceremonies lacked standing because injury at future graduation ceremonies was highly "speculative." Cole, 228 F.3d at 1100. To attain injunctive relief, plaintiffs must be able to demonstrate a real or immediate threat of an irreparable injury. !d. The type of speeches that may or may not be given at future graduations "depends upon the highly speculative assumption that a student seeking to give a sectarian speech or prayer will be chosen" as a speaker. Id. As a result of the speculative nature of the plaintiffs' claims concerning future graduation prayers, the Court held that the student-plaintiffs and their families lacked standing to bring claims concerning future graduations. !d. 19. In the case at bar, to the extent Plaintiffs are seeking an injunction for alleged future constitutional violations, such as "prayers at school or during school-sponsored activities and events," Plaintiffs do not have standing to bring such claims as such claims are conjectural and hypothetical at best. (See Dkt. No. 75 at 33 ~121). Plaintiffs' belief in future impropriety is insufficient to convey standing on that issue. See Henderson, 287 F.3d at 379. Plaintiffs do not have standing to bring claims for any hypothetical future alleged constitutional violations. As a result, this Court must dismiss Plaintiffs' claims for equitable and declaratory relief. 20. Additionally, plaintiffs are not permitted to flagrantly attempt to manufacture standing when none exists. See Alabama Freethought Ass'n v. Moore, 893 F. Supp. 1522, 1536, 1536 n.26 (N.D. Ala. 1995) (holding plaintiff did not have standing to pursue Establishment Clause claims when plaintiff voluntarily attended jury organizing session in which judge began session with prayer and had Ten Commandments displayed); see also Lujan, 504 U.S. at 564-65 n.2 (finding plaintiff did not have standing due partly to fact that "acts necessary to make the injury happen are at least partly within the plaintiffs own control.") In Alabama Freethought Association, the court noted that one of the plaintiffs in the case voluntarily attended a jury
11

Case 5:11-cv-00422-FB Document 98 Filed 12/09/11 Page 12 of 22
session so that she would be able to testify to what she observed the judge doing in the courtroom. 893 F. Supp. at 1527 n.13. The plaintiff in question did not go to that courtroom on a regular basis. Id at 1528. The court found that a plaintiff's "voluntary exposure to defendant's conduct ... does nothing to fulfill [standing] requirements." !d. at 1536. The court further commented:
This court cannot understand how voluntary exposure to purportedly offensive conduct can establish standing to obtain an injunction barring such conduct. To recognize standing in such circumstances would be to allow a plaintiff to "manufacture" her standing. Such a clever machination (or is it masochism), if recognized as legitimate, would make a mockery of the longstanding judicial interpretation of Article III's "case or controversy" requirement. !d. at 1536 n.26 (citations omitted). 21. Here, as in Alabama Freethought Association, Danny and Christa have attempted to manufacture standing by voluntarily attending a football game for the sole purpose of videotaping a student's opening remarks. (See Appendix at ~11.) They stayed only for the remarks and then immediately left, before the game had even started. In the last five years, they had attended pre-game ceremonies, at most, four to five times. !d. In fact, neither Danny nor Christa had attended any Medina Valley High School football game in the prior two school years, other than to pick Corwyn up at one game in 2009. Id However, once Defendant's Motion to Dismiss was filed, pointing out Plaintiffs' lack of standing, Darmy and Christa began alleging that they plan to go to football games and then show up at one - but only for the pregame portion of the game to tape the student's remarks- when they hadn't been to a game in two years. !d. In fact, Christa couldn't even recall which teams were playing. (Ex. A3 at 77:2-5.) As in Alabama Freethought Association, Plaintiffs are attempting impermissibly to manufacture standing when none exists.
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Case 5:11-cv-00422-FB Document 98 Filed 12/09/11 Page 13 of 22
2. Plaintiffs have no injury in fact on most of their claims for nominal damages for alleged past constitutional violations
22. As set out in the Appendix: Evidentiary Summary of Material Facts, Plaintiffs have alleged many constitutional violations, many of which they did not personally experience or otherwise witness. However, the Supreme Court requires an injury in fact for standing, that is, an injury that is concrete and particularized, and actual or imminent. Lujan, 504 U.S. at 560; Whitmore, 495 U.S. at 155; Fowler, 178 F.3d at 358. Standing to bring Establishment Clause claims cannot be based on abstract knowledge that Constitutional violations may have occurred to others, but not to Plaintiffs personally. See Doe v. Tangipahoa Parish Sch. Bd, 494 F.3d 494, 497 (51h Cir. 2007); see also Valley Forge Christian College v. Americans United for Separation o.fChurch and State, 454 U.S. 464, 474-75 (1982). The Plaintiffs must prove they were exposed to, and therefore injured by, alleged Constitutional violations. !d. Here, even assuming Plaintiffs' allegations as true, which Defendant denies, Plaintiffs admittedly were not exposed to and did not otherwise suffer actual injury from any of the following alleged violations:
a. Prayer at Board meetings. (Dkt. No. 75 at ,,64-65). None of the Plaintiffs attended any School Board meetings. (Ex. AI (Deposition of Corwyn Schultz) at 98:7-10; Ex. A3 (Deposition of Christa Schultz) at 102:19-21; Ex. A4 (Deposition of Danny Schultz) at 64:10-18; see Ex. B at 9-12 (Response to Interrogatory No. 9)(Plaintiffs' did not list any religious remarks at Board meetings in their discovery responses concerning all statements "religious in nature" by school officials or employees).
b. Prayer or religious remarks at Fellowship of Christian Athlete meetings or events. (Dkt. No. 75 at ,,58-59). Plaintiffs Christa, Danny, and Corwyn Schultz did not attend any Fellowship of Christian Athlete ("FCA") meetings. (Ex. AI at 97:9-
13

Case 5:11-cv-00422-FB Document 98 Filed 12/09/11 Page 14 of 22
11; Ex. A3 at 103:15-17; Ex. A4 at 61 at 16-19.) Of the one to two FCA meetings that Plaintiff Trevor Schultz attended, he does not recall any school employee or official praying or otherwise giving religious remarks. (Ex. A2 at 37:13-25). c. Sch()larship or award ceremonies. (Dkt. No. 75 at ~~2, 64). Plaintiff Corwyn Schultz did not attend any scholarship or award ceremonies at Medina Valley ISD. (Ex. AI: at 97:12-15). Plaintiffs Trevor and Danny Schultz indicated that they attended at least one scholarship and awards ceremony at Medina Valley High School, but neither recalls any religious remarks being made at that ceremony. (Ex. A2 at 53:4-7, 17-18; 54:13-15; A4 at 63:7-9; 64:2-4). Christa Schultz attended one awards ceremony at Medina Valley High School around 2007 in which she claims Mr. Toby Tyler, the then incoming principal of Medina Valley High School, gave remarks in which he may have mentioned the word "God," but she cannot recall with certainty what Mr. Tyler may have said. (Ex. A3 at 48:4-13; 49:15-22; 50:4-16; 66:23-25). d. Faculty Convocation meetings or faculty meetings. Plaintiffs did not attend any Faculty Convocation meetings at Medina Valley ISD. (Ex. A3 at 102:22-23; Ex. A4 at 64:19-24; see Ex. Bat 9-12 (Response to Interrogatory No.9). e. New teacher luncheon. (Dkt. No. 75 at ~66). Although Plaintiffs' allege constitutional violations of the Medina Valley Chamber of Connnerce's hosting a new teacher luncheon for both Medina Valley ISD teachers and a local religious school, Plaintiffs admit they have no personal knowledge concerning any Chamber of Commerce new teacher luncheon. (Ex. AI at 175:7-12; Ex. A3 at 156:6-25, !57: 1; see Ex. Bat 9-12(Response to Interrogatory No.9)). Christa Shultz admitted that she
14

Case 5:11-cv-00422-FB Document 98 Filed 12/09/11 Page 15 of 22
did not attend the new teacher luncheon. (Ex. A3 at 156:6-8). f. National Honor Society events. (Dkt. No. 75 at ~64). Corwyn has never attended a
National Honor Society event. (Ex. AI at 174:5-7). When asked at their depositions and in written discovery about all of the alleged religious remarks or speech that Plaintiffs heard at school events whether by employees or students, no Plaintiff identified any National Honor Society event that they attended in which prayer or other religious remarks were made. (Ex. AI at 55:5-13, 67:8-13, 79:3-16, 82:20-25, 83:1-3, 151:3-6; Ex. A2 at 40:20-24, 38:9-15; Ex. A3 at 68:21-25, 69:1; Ex. A4 at 75:1-4; Ex. Bat 9-12 (Response to Interrogatory No.9)). g. Tennis, Volleyball, Basketball, Softball, Women's Soccer teams and games. (Dkt. No. 75 at ~~54, 56, 57, 64). Neither Corwyn nor Trevor Schultz participated in MVISD tennis, volleyball, basketball, softball, or women's soccer teams. (Ex. AI at 97:16-17; 173:17-22; Ex. A2 at 54: 19-22). Indeed, Trevor is the only Plaintiff to have participated in sports, and he only played on the boys' soccer team. (Ex. A2 at 54:19-22; A3 at 105:8-11). Corwyn did not witness any prayers at tennis, basketball or soccer games. (Ex. AI at 170:1-3; 173:17-19; 174:1-4). Other than boys' soccer and football games, Trevor did not witness any prayers at other athletic events. (Ex. A2 at 38:9-15; 40:20-24). Christa Schultz saw the soccer team huddle together but did not hear what was said during the huddle and could not see whether an employee was participating with the students. (Ex. A3 at 104:3-25). Danny Schultz did not witness prayers by the soccer team. (Ex. A4 at 20:23-25, 21:1). Other than Trevor's personal experience with his own soccer team and the Plaintiffs' attendance at football games, no Plaintiff identified any sporting event that they attended in which
15

Case 5:11-cv-00422-FB Document 98 Filed 12/09/11 Page 16 of 22
prayer or other religious remarks were made. (Ex. AI at 55:5-13, 67:8-13, 79:3-16, 82:20-25,83:1-3, 151:3-6; Ex. A2 at 40:20-24, 38:9-15; Ex. A3 at 68:21-25, 69:1; Ex. A4 at 75:1-4; Ex. Bat 9-12 (Response to Interrogatory No.9)). h. Some staff comments. (Dkt. No. 75 at '1[46). No Plaintiff witnessed or was present for the comments by school personnel as alleged in paragraph 46 of their First Amended Complaint: "Leave a little room for Jesus" or "[I'll] pray for you." (Ex. AI at 137:20-25, 138: 1-3; Ex. A3 at 129:8-22; Ex. A4 at 84: 11-17; see Ex. A2 at 40:2024, 38:9-15; Ex. Bat 9-12 (Response to Interrogatory No.9)). 1. Religious icons, symbols, or texts. (Dkt. No. 75 at '1['1[47-51). The only religious icons, symbols, or texts observed by Christa Schultz were a cross and framed saying in Assistant Superintendent Chris Martinez' office and a cross at the front desk. (Ex. A3 at 39:19-25, 40:1, 41:25, 42:1-9). Danny Schultz only personally observed a cross in Mr. Martinez' office. (Ex. A4 at 43:11-25, 44:1-20, 44:24-25, 45:1-8, 86:825, 87:1-13). Danny and Christa did not observe the alleged icons or texts alleged in paragraphs 49 and 50 of the First Amended Complaint. J. Football games. (Dkt. No. 75 at '1['1[3, 13, 61-63). Plaintiffs Danny and Christa Schultz heard alleged religious comments or prayer at only three to four of the footbaJl games in the 2007-08 and 2008-2009 seasons since they were usually late to the games. (Ex. A3 at 50:23-25, 51:2-10, 52:17-25, 53:1-25; Ex. A4 at 65:1-7,66:1925, 67:3-11, 105:8-25, 106:1-3; 107:23-25, 108:1-4, 108:22-25, 109:1-13). Christa and Danny both indicated that they may have gone to one game in the Fall of 2009, but they arrived near half-time, after any student remarks. (Ex. A3 at 76:14-25, 77:1; Ex. A4 at 107:23-25, 108:1-4). Danny attended one football game in Fall2006. (Ex.
16

Case 5:11-cv-00422-FB Document 98 Filed 12/09/11 Page 17 of 22
A4 at 105:8-21). Although Christa and Danny Schultz attended a football game in the 2011-12 school year, as discussed supra, such brazen attempt to manufacture standing does not create standing. k. Graduation. (Dkt. No. 75 at ~76). The only Medina Valley High School graduation ceremonies that the Plaintiffs attended were the ones held in 2008 and 2009. (Ex. B at 9, Response to Interrogatory No. 8.) Trevor Schultz also attended the 2011 graduation ceremony; however, as discussed supra, he is no longer a student and thus, does not have standing concerning the 2011 graduation. (!d.) I. Mr. Tyler's morning announcements. (Dkt. No. 75 at ~3, 31, 34.) Christa and Danny Schultz never witnessed or otherwise observed Principal Toby Tyler making school announcements over the loudspeaker. (Ex. A3:68:21-25, 62:1; A4 at 21 :2-4). Because Plaintiffs do not have an actual injury from the above claims, this Court must dismiss those claims for lack of subject matter jurisdiction. 23. The only claims that Plaintiffs allege an actual, injury in fact, and thus, the only claims for which Plaintiffs have standing to bring in this suit are detailed below. a. Corwyn Schultz has alleged an injury on only the following claims:
1. The alleged religious remarks in Principal Toby Tyler's morning school announcements. (Dkt. No. 75 at ~~31-34).
2. The alleged comments made by school employees to him personally, as alleged in paragraphs 36, 37, 39, 40, 41,42 of the First Amended Complaint.
3. The alleged religious icons and symbols that Corwyn reportedly saw himself. (Dkt. No. 75 at ~~48-50).
4. The alleged religious remarks at football games he attended during his four
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Case 5:11-cv-00422-FB Document 98 Filed 12/09/11 Page 18 of 22
years in high school. (Dkt. No. 75 at ~63). 5. The alleged religious remarks at the 2008 and 2009 graduations. (Dkt. No. 75
at ~~81-82). b. Trevor Schultz has alleged actual injury on only the following claims:
!. The alleged religious remarks in Principal Toby Tyler's morning school announcements. (Dkt. No. 75 at ~31 ).
2. The alleged religious icons that he personally observed while a student. (Dkt. No. 75 at ~~48, 49). Trevor testified to only seeing a cross on teacher Ms. Griggs' desk, a Christian pamphlet in Officer Sides' office, a Bible verse and cross in the nurse's personal office, and a Bible behind teacher Nicole Houston's desk. (Ex. A2 at 41:12-21, 42:15-25, 43:1, 78:8-18, 99:17-25, 100:1-5, 101:5-9, 102:13-25, 103:1-2).
3. The alleged prayers of his soccer team and one teacher. (Dkt. No. 75 at ~~38, 53).
4. The alleged religious remarks at the football games he attended while in school. (Dkt. No. 75 at ~61).
5. The alleged religious remarks at the 2008 and 2009 graduations. (Dkt. No. 75 at ~~81-82).
c. Christa Schultz has alleged actual injury on only the following claims: !. The alleged religious remarks at the 2008 and 2009 graduations. (Dkt. No. 75 at ~~81-82). 2. The alleged religious remarks at the football game pre-game ceremonies that she attended, and according to her testimony, she attended only three to four
18

Case 5:11-cv-00422-FB Document 98 Filed 12/09/11 Page 19 of 22
games in which she heard religious remarks in the 2007-08 and 2008-09 school years. (See Appendix at '1[11.) 3. The religious icons or symbols she alleges that she personally observed (which she testified were a cross and framed verse in Assistant Superintendent Chris Martinez' office and a cross on a desk in the front office.) (Dkt. No. 75 at '1[48, 51; Ex. A3 at 39:19-25, 40:1, 41:25, 42:1-9). d. Danny Schultz has alleged injury on only the following claims: 1. The alleged religious remarks at the 2008 and 2009 graduations. (Dkt. No. 75 at '1['1[81-82). 2. The alleged religious remarks at the football pre-game ceremonies that he attended, which were one game in 2006 and three to four games in the 200708 and 2008-09 school years. (See Appendix '1[11 ). 3. The religious icon or symbol he alleges that he personally observed (which he testified was only a cross in Assistant Superintendent Chris Martinez' office). (Dkt. No. 75 at '1[51; Ex. A4 at 43:11-25, 44:1-20, 44:24-25, 45:1-8, 86:8-25, 87:1-13). C. Plaintiffs cannot establish subject-matter jurisdiction before the Court under the Declaratory Judgment Act. 24. Regarding Plaintiffs' request for declaratory judgment, a federal court has the power to hear a declaratory judgment action only if the case is otherwise within its subject-matter jurisdiction and involves an actual controversy. See 28 U.S.C. § 2201(a); Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240 (1937). The availability of this declaratory relief however presupposes the existence of jurisdiction in the first place. Schilling v. Rogers, 363 U.S. 666, 677 (1960). The operation of the Declaratory Judgment Act is procedural only, and although it
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Case 5:11-cv-00422-FB Document 98 Filed 12/09/11 Page 20 of 22
may enlarge the range of available remedies, it does not extend the jurisdiction of federal courts. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950). In Skelly Oil Co., The United States Supreme Court instructed:
When concemed as we are with the power of the inferior federal courts to entertain litigation within the restricted areas to which the Constitution and Acts of Congress confine them, 'jurisdiction' means the kinds of issues which give right of entrance to federal courts. Jurisdiction in this sense was not altered by the Declaratory Judgment Act. !d. Thus, the "requirements of jurisdiction -- the limited subject matters which alone Congress had authorized the District Courts to adjudicate -- were not impliedly repealed or modified" by the Declaratory Judgment Act. Skelly Oil Co., 339 U.S. at 672. 25. The Fifth Circuit has repeatedly held that the Declaratory Judgment Act is not an independent source of subject-matter jurisdiction. In re B-727 Aircrafi, 272 F.3d 264, 270 (51h Cir. 2001); Comstock Oil & Gas Inc. v. Alabama and Coushatta Indian Tribes of Texas, 261 F.3d 567, 573 (51h Cir. 2001), cert. denied, 535 U.S. 971 (2002); TTEA v. Ysleta del Sur Pueblo, 181 F.3d 676, 681 (51h Cir. 1999); Lawson v. Callahan, 111 F.3d 403, 405 (51h Cir. 1997). Despite Plaintiffs' request for declaratory relief, declaratory relief is only available when some other basis for jurisdiction is present. Appling County v. Municipal Elec. Authority o.fGa., 621 F.2d 1301, 1303 (5th Cir. 1980), cert. denied, 449 U.S. 1015 (1980); Jones v. Alexander, 609 F.2d 778,781 (51h Cir. 1980), cert. denied, 449 U.S. 832 (1980). 26. Because this Court lacks subject matter jurisdiction over Plaintiffs' claims for equitable relief, as set out above, this Court does not have jurisdiction over Plaintiffs' requests for declaratory relief as they relate to those claims. Accordingly, this Court must dismiss Plaintiffs' injunctive and declaratory relief claims for lack of subject matter jurisdiction.
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Case 5:11-cv-00422-FB Document 98 Filed 12/09/11 Page 21 of 22
IV. CONCLUSION 27. For all of the reasons set forth herein, MVISD respectfully requests that the Court grant Defendant's Second Motion to Dismiss for Lack of Subject-Matter Jurisdiction, dismiss all of the Plaintiffs' equitable and declaratory relief claims as well as all the nominal damages claims that Plaintiffs did not have an actual injury in fact as detailed above, deny the Plaintiffs any and all relief they seek, render a take nothing judgment against Plaintiffs and grant to Defendant its reasonable and necessary attorneys' fees, costs of court, and any and all other relief to which it may be entitled. See Does 1-7 v. Round Rock lndep. Sch. Dist., 540 F.Supp.2d 735 (W.D. Tex. 2007).
Respectfully submitted, WALSH, ANDERSON, BROWN,
GALLEGOS & GREEN, P.C. 100 NE Loop 410, Suite 900 San Antonio, Texas 78216 Tel No. 210-979-6633 Fax No. 210-979-7024 By: Is/ D. Craig Wood D. CRAIG WOOD ATTORNEY IN CHARGE State Bar No. 21888700 cwood@sa. wabsa.com STACY TUER CASTILLO State Bar No. 00796322 scastillo@sa.wabsa.com ATTORNEYS FOR DEFENDANT
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Case 5:11-cv-00422-FB Document 98 Filed 12/09/11 Page 22 of 22 CERTIFICATE OF SERVICE
I hereby certify that on December 9, 2011, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Mr. Gregory M. Lipper Americans United for Separation of Church & State 1301 K Street, NW, Ste. 850 Washington, DC 20005
Is/ D. Craig Wood D. CRAIG WOOD
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Case 5:11-cv-00422-FB Document 98-1 Filed 12/09/11 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CHRISTA SCHULTZ, et al
Plaintiffs,
v.
MEDINA VALLEY INDEPENDENT SCHOOL DISTRICT,
Defendant.

§

§

§

§

CIVIL ACTION NO. 5:11-CV-422

§

§

§

§

APPENDIX: DEFENDANT'S EVIDENTIARY SUMMARY OF MATERIAL FACTS IN SUPPORT OF DEFENDANT'S SECOND MOTION TO DISMISS FOR LACK OF
SUBJECT MATTER JURISDICTION

I. The following items in this Appendix are incorporated by reference for all purposes into Defendant's Second Motion Dismiss for Lack of Subject Matter Jurisdiction and into this Appendix:

Exhibit A: Affidavit of Stacy Castillo, authenticating discovery Exhibits AI, A2, A3 andA4.
Exhibit AI: Deposition of Corwyn Schultz Exhibit A2: Deposition of Trevor Schultz Exhibit A3: Deposition of Christa Schultz Exhibit A4: Deposition of Danny Schultz
Exhibit B: Plaintiffs Responses to Defendant's First Set oflnterrogatories
2. As set out in Defendant's original Motion to Dismiss, Plaintiff Christa Schultz and
Plaintiff Danny Schulz are not students at the District. (See Dkt. 43: Ex. A (Affidavit of Chris
Martinez). Plaintiffs Trevor and Corwyn Schultz have both graduated from the District; neither
are students at the District. (!d.)

1

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3. None of the Plaintiffs have attended any School Board meetings. (Ex. AI (Deposition of. Corwyn Schultz) at 98:7-10; Ex. A3 (Deposition of Christa Schultz) at 102:19-21; Ex. A4 (Deposition of Danny Schultz) at 64:1 0-18). 4. Plaintiffs Christa, Danny, and Corwyn Schultz did not attend any Fellowship of Christian Athlete ("FCA") meetings. (Ex. AI at 97:9-11; Ex. A3 at 103:15-17; Ex. A4 at 61 at 16-19). Of the one to two FCA meetings that Plaintiff Trevor Schultz attended, he does not recall any school employee or official praying or otherwise giving religious remarks. (Ex. A2 at 37:13-25.) 5. Plaintiff Corwyn Schultz did not attend any scholarship or award ceremonies at Medina Valley ISD. (Ex. AI at 97:12-15). Plaintiffs Trevor and Danny Schultz indicated that they attended at least one scholarship and awards ceremony at Medina Valley High School, but neither recalls any religious remarks being made at that ceremony. (Ex. A2 at 53:4-7, 17-18; 54:13-15; A4 at 63:7-9; 64:2-4) Christa Schultz attended one awards ceremony at Medina Valley High School around 2007 in which she claims Mr. Toby Tyler, the then incoming principal of Medina Valley High School, gave remarks in which he may have mentioned the word "God," but she cannot recall with certainty what Mr. Tyler may have said. (Ex. A3 at 48:413; 49:15-22; 50:4-16; 66:23-25). 6. Plaintiffs did not attend any Faculty Convocation meetings at Medina Valley ISD. (Ex. A3 at 102:22-23; Ex. A4 at 64:19-24.) At their depositions and in their Interrogatory Responses, when asked to identify all religious remarks or statements made by school personnel or officials that they witnessed at the District, Plaintiffs never identified any staff meeting or faculty convocation. (Ex. Bat 9-12 (Plaintiffs' Response to Interrogatory No. 9)). 7. Although Plaintiffs' allege constitutional violations of the Medina Valley Chamber of Commerce's hosting a new teacher luncheon for both Medina Valley ISD teachers and a local
2

Case 5:11-cv-00422-FB Document 98-1 Filed 12/09/11 Page 3 of 5
religious school, Plaintiffs admit they have no personal knowledge concerning any Chamber of Commercenewteacherluncheon. (Ex. AI at 175:7-12; Ex. A3 at 156:6-25,157: !;see Dkt. No. 75 at "i[66). Christa Shultz admitted that she did not attend the new teacher luncheon alleged in . paragraph 66 of Plaintiffs' First Amended Complaint. (Ex. A3 at 156:6-8). Likewise, at their depositions and in their Interrogatory Responses, when asked to identify all religious remarks or statements made by school persoilllel or officials that they witnessed at the District, Plaintiffs never identified any staffluncheon or Chamber of Commerce luncheon or event. (Ex. Bat 9-12, Response to Interrogatory No.9). 8. Corwyn has never attended a National Honor Society event. (Ex. AI at 174:5-7). No Plaintiff identified any National Honor Society event that they attended in which prayer or other religious remarks were made. (Ex. AI at 55:5-13, 67:8-13, 79:3-16, 82:20-25, 83:1-3, 151:3-6; Ex. A2 at 40:20-24, 38:9-15; Ex. A3 at 68:21-25, 69:1; Ex. A4 at 75:1-4; Ex. Bat 9-12 Response to Interrogatory No. 9). 9. Neither Corwyn nor Trevor Schultz participated in MVISD tem1is, volleyball, or basketball teams. (Ex. A1 at 97:16-17; 173:17-22; Ex. A2 at 54: 19-22). Indeed, Trevor is the only Plaintiff to have participated in sports, and he only played on the soccer team. (Ex. A2 at 54:19-22; A3 at 105:8-11). Corwyn did not witness any prayers at teilllis, basketball or soccer games. (Ex.Al at 170:1-3; 173:17-19; 174:1-4.) Otherthansoccerandfootballgames, Trevor did not witness any prayers at other athletic events. (Ex. A2 at 38:9-15; 40:20-24). Christa Schultz saw the soccer team huddle together but did not hear what was said during the huddle and could not see whether an employee was participating with the students. (Ex. A3 at 104:325). Danny Schultz did not witness prayers by the soccer team. (Ex. A4 at 20:23-25, 21:1 ). 10. No Plaintiff witnessed or was present for the alleged comments by school personnel in
3

Case 5:11-cv-00422-FB Document 98-1 Filed 12/09/11 Page 4 of 5
paragraph 46 of their First Amended Complaint (Dkt. No. 75): "Leave a little room for Jesus" or "[I'll] pray for you." (Ex. AI at 137:20-25, 138:1-3; Ex. A3 at 129:8-22; Ex. A4 at 84:11-17; see Ex. B at 9-12 (Plaintiffs' Response to Interrogatory No. 9)). Only Plaintiff Corwyn Schultz witnessed an alleged Febmary 10, 2010 comment by Christine Willing that she would "pray." (Dkt. No. 75 at~ 40). 11. Plaintiffs Christa and Danny Schultz did not personally witness or observe any religious text or cross in a school classroom or a religious plaque in fonner Vice-Principal Fletcher Turcato's office. (Ex. A3 at 39:19-25,40:1,41:25, 42:1-9; 47:2-4, Ex. A4 at 43:11~25, 44:1-20, 44:24-25, 45:1-8, 86:8-25, 87:1-13). The only religious symbol or icon that Danny Schultz observed was a cross in Assistant Superintendent Chris Martinez' office. (Ex. A4 at 43:11-25, 44:1-20, 44:24-25, 45:1-8, 86:8-25, 87:1-13). The only religious symbol or icon that Christa Schultz observed was a cross and framed religious saying in Assistant Superintendent Chris Martinez' office and a cross on a desk in the front office. (Ex. A3 at 39:19-25, 40:1, 41:25, 42:1-
9).
12. The only football games that Plaintiffs attended were the following: Danny and Christa Schultz went to most, if not all, home games in 2007-08 and 2008-09 school years, when Corwyn played in the band, but allegedly heard prayer only at three to four of those games. (Ex. A3 at 50:23-25, 51:2-10, 52:17-25, 53:1-6; Ex. A4 at 65:1-7, 66:19-25, 67:3-11, 105:8-25, 106:1-3; 108:22-25, 109:1-13). For some of the games that Christa and Darmy Schultz attended, they arrived late, after any student remarks occurred. (Ex. A3 at 53:16-25; A4 at 107:23-25, 108:1-4). Christa indicated she may have gone to one game in the Fall of 2009, but does not think she was there early enough to hear any student remarks. (Ex. A3 at 76:14-25, 77:1). Christa Schultz attended one football game in the 2011-12 school year, but only stayed for the
4

Case 5:11-cv-00422-FB Document 98-1 Filed 12/09/11 Page 5 of 5 pre-game portion of the game, leaving immediately after the student's remarks were given. (Ex. A3 at 77:2-5). Indeed, Christa brought a video camera to the one 20ll football game she attended to record the student remarks. (Ex. A3 at 77:9-14). Danny attended one football game in Fall2006. (Ex. A4 at 105:8-21). He also attended one game in Fall2009, arriving after halftime to pick up his son. (Ex. A4 at 107:23-25, 108:1-4). Danny attended two games in the 2011 football season, one of which was with Christa where they videotaped the remarks and then left immediately after the student remarks. (Ex. A4 at 65:8-11; 126:20-25). Danny and Christa did not attend any football games during the 2010-ll football season. (Ex. A3 at 76:9-23; A4 at 68:20-25, 69:1-4). 13. The only Medina Valley High School graduation ceremonies that the Plaintiffs attended were the ones held in 2008 and 2009. (Ex. B at 9, Response to Interrogatory No. 8.) Trevor Schultz, who is no longer a resident in Medina Valley ISD, also attended the 2011 graduation ceremony. (Jd; Ex. A2 at 8:16-17.) 14. Cln·ista and Danny Schultz never witnessed or otherwise observed Principal Toby Tyler making school rnmouncements over the loudspeaker. (Ex. A3 at 47:14-17; Ex. A4 at 21 :2-4).
5

Case 5:11-cv-00422-FB Document 98-2 Filed 12/09/11 Page 1 of 2

AFFIDAVIT OF STACY TUER CASTILLO

STATEOFTEXAS

§

§

COUNTY OF BEXAR

§

BEFORE ME, the undersigned authority, on this day personally appeared STACY
TUER CASTILLO known to me to be the person whose signature appears below, and
having been by me duly sworn, the said STACY TUER CASTILLO stated on oath as
follows:
"My name is STACY TUER CASTILLO. I am over 18 years of age. I have never been convicted of a crime and I am personally competent to make this affidavit. I have personal knowledge of all facts stated in this affidavit, and they are true and correct.
I am an attorney of record for the Medina Valley Independent School District, in the lawsuit styled, Christa Schultz et al v. Medina Valley Independent School District, which is currently pending in the United States District Court for the Western District of Texas, San Antonio Division as Civil Action No. 5:11-cv-422. I have served in this capacity at all times relevant in this lawsuit. Attached hereto and labeled as Exhibit "Al" are true and correct copies of the deposition excerpts of Corwyn Schultz, whose deposition was taken on October 7, 2011. However, on page 175, lines 13-17 of Corwyn's deposition, information designated by Plaintiffs' counsel as "Highly Confidential" has been redacted pursuant the Court's current Protective Order. Attached hereto and labeled as Exhibit "A2" are true and correct copies of the deposition excerpts of Trevor Schultz, whose deposition was taken on October 5, 2011; labeled as Exhibit "A3" are true and correct copies of the deposition excerpts of Christa Schultz, who deposition was taken on November 4, 2011; and labeled as Exhibit "A4" are true and correct copies of the deposition excerpts of Danny Schultz, whose deposition was taken on November 2, 2011. All of the foregoing are referred to and incorporated for all purposes in Defendants' Evidentiary Summary of Material Facts in Support of Defendant's Second Motion to Dismiss as well as Defendant's Second Motion to Dismiss for Lack of Subject Matter Jurisdiction.

Affidavit ofStacy Tuer Castillo

EXHIBIT "A"

Case 5:11-cv-00422-FB Document 98-2 Filed 12/09/11 Page 2 of 2
FURTHER AFFIANT SAYETH NOT."
SUBSCRIBED AND SWORN TO BEFORE ME by the said STACY TUER CASTILLO on this the 9th day of December, 2011, to certify which witness my hand and official seal.
c.
C. RENEE ROBINSON
Notary Public, State of Texas

Affidavit o.fStacy Tuer Castillo

EXHIBIT "A"

Case 5:11-cv-00422-FB Document 98-3 Filed 12/09/11 Page 1 of 16 1

1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

2

SAN ANTONIO DIVISION

3

4 CHRISTA SCHULTZ, et al

*

Plaintiffs

*

5

6
vs.
7

* CIVIL ACTION NO. 5:11-CV-422

8

9 MEDINA VALLEY INDEPENDENT *

SCHOOL DISTRICT,

*

10

Defendant.

*

11

12

13

14
ORAL DEPOSITION
15
OF
16
CORWYN J.G. SCHULTZ
17
. OCTOBER 7, 2011
18

19

20

21

22

23

24

EXHIBIT '' t\- \ '

25

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Case 5:11-cv-00422-FB Document 98-3 Filed 12/09/11 Page 2 of 16
2

1
I
2

AP P E ARANC E S

3 MR. GREGORY M. LIPPER LITIGATION COUNSEL
4 AMERICANS UNITED FOR SEPARATION OF CHURCH
5 AND STATE 1301 K STREET NW, SUITE 850E
6 WASHINGTON, DC 20005

FOR THE PLAINTIFFS

7

8 WALSH, ANDERSON, BROWN,

GALLEGOS & GREEN, P.C.

9 ATTORNEYS AT LAW

100 N.E. LOOP 410, SUITE 900

10 SAN ANTONIO, TEXAS 78216

BY: MR. D. CRAIG WOOD AND

11

MS. STACY TUER CASTILLO

FOR THE DEFENDANT

12
13 CORWYN J.G. SCHULTZ

WITNESS

14
15 BECKY A. OLSON
16

CERTIFIED SHORTHAN£ REPORTER

17

18

19

ORAL ANSWERS AND DEPOSITIONS of the

20 witness, CORWYN J.G. SCHULTZ, who resides in Rio

21 Medina, Medina County, Texas, in answer to questions

22 propounded to him in the above styled and numbered

23 cause, taken on behalf of the Defendant, before BECKY

24 A. OLSON, a Certified Shorthand Reporter in and for the

25 State of Texas, on October 7, 2011, in the offices of

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Case 5:11-cv-00422-FB Document 98-3 Filed 12/09/11 Page 3 of 16
55 C. SCHULTZ - BY MR. WOOD

'1:52:32 11:52:36 11:52:36 11:52:38 11:52:38 11:52:41 11:52:45 11:52:49 11:52:52 11:52:57 11:53:03 11:53:10 1:53:15 11:53:17 11:53:19 11:53:23 11:53:28 11:53:31 11:53:38 11:53:43 11:53:48 11:53:49 11:53:52 11:53:52 1:53:58

1 religious speech that you found to be offensive in the

2 Medina Valley Independent School District; is that

3 correct?

4

A. Yes, sir.

5

Q. Okay. Describe for me if you wi 11 then what

6 instances you encountered some sort of religious speech

7 while you were a student at Medina Valley.

8

A. Every year I was there there were -- Mr. Tyler

9 had said something or had said religious speech over

10 the intercom. There have been teachers during class

11 that have said things.

12

Q. Anything else?

13

A. Not that comes to mind.

14

Q. Okay. Let's talk about Mr. Tyler first. You

15 said every year he had some sort of religious speech

16 over the intercom. Tell me what you recall occurring,

17 what it was that Mr. Tyler said.

18

A. It was always just-- just like-- unless it

19 was a said prayer, he would add little things into his

20 speech like "and there's only one good book", things of

21 that nature.

22

Q. Only one good book, do you recall when he said

23 that?

24

A. I think that was during my jun -- yeah, my

25 junior year.

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Case 5:11-cv-00422-FB Document 98-3 Filed 12/09/11 Page 4 of 16
67
C. SCHULTZ - BY MR. WOOD

'2:08:18 12:08:18 12:08:22 12:08:26 12:08:28 12:08:35 12:08:35 12:08:37 12:08:40 12:08:43 12:08:44 12:08:59 2:09:01 12:09:07 12:09:09 12:09:13 12:09:17 12:09:23 12:09:27 12:09:31 12:09:33 12:09:38 12:09:40 12:09:47 .2:09:48

1

A. Yes, sir.

2

0. And tell me when those situations occurred.

3

A. Throughout my school year there or my school

4 career.

5

Q. Teachers, counselors? Who particularly are you

6 talking about?

7

A. Teachers and administration.

8

Q. Okay. Let's talk about teachers first. What

9 teachers did you hear engage in some sort of religious

10 speech?

11

A. Mr. Riley, Ms. Wolfshohl, Ms. Maldonado.

12

Q. Anyone else?

13

A. That's all that's coming to my mind right now.

14

0. Let's talk about Mr. Riley first. What

15 religious speech did you hear from Mr. Riley?

16

A. During -- the band was practicing. We were out

17 on the black tar and he was upon his podium and he

18 was -- I don't remember exactly what he said, but he

19 ended it with "and God bless this upcoming marching

20 season".

21

0. Any other occurrences from Mr. Riley?

22

A. Not that I recall.

23

0. Did you discuss that comment with Mr. Riley?

24

A. No, sir.

25

0. What did you play in the band?

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Case 5:11-cv-00422-FB Document 98-3 Filed 12/09/11 Page 5 of 16
79
C. SCHULTZ - BY MR. WOOD

'2:23:51 12:24:01 12:24:03 12:24:06 12:24:14 12:24:14 12:24:15 12:24:20 12:24:22 12:24:23 12:24:25 12:24:27 2:24:30 12:24:33 12:24:35 12:24:38 12:24:42 12:24:46 12:24:47 12:24:52 12:24:54 12:24:58 12:25:01 12:25:01 2:25:05

1

Q. Any other administrators that you can think of?

2

A. No, sir.

3

Q. Any other teachers besides the three that you

4 just named who engaged in some type of religious

5 speech?

6

A. Not that I can recall.

7

Q. Okay. Any other school district employees at

8 all regardless of their classification?

9

A. Yes, sir.

10

Q. Who else -- what other school district

11 employees engaged in religious speech?

12

A. Ms. Willing.

13

Q. What was Ms. Wi 11 i ng' s function?

14

A. She was the attendance clerk.

15

Q. All right. Anyone else?

16

A. Not that I can recall , no.

17

Q. And what was it that Ms. Willing said that you

18 found to be offensive?

19

A. She told me that she was going to pray for me.

20

Q. And when did that occur?

21

A. My junior year.

22

Q. What was the context when she made that comment

23 about you?

24

A. I was called in to the nurse's office to get my

25 eyesight and my hearing checked. I was waiting to be

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Case 5:11-cv-00422-FB Document 98-3 Filed 12/09/11 Page 6 of 16
82
C. SCHULTZ - BY MR. WOOD

12:27:09 12:27:12 12:27:13 12:27:17 12:27:22 12:27:26 12:27:28 12:27:31 12:27:33 12:27:33 12:27:39 12:27:42 12:27:43 12:27:44 12:27:45 12:27:53 12:27:56 12:27:59 12:28:01 12:28:10 12:28:24 12:28:29 12:28:30 12:28:33 12:28:35

1

Q. And what did you tell Mr. Tyler with respect to

2 Ms. Willing's comment?

3

A. That Ms. Willing had just told me she was going

4 to pray for me, that I was upset by it.

5

Q. Did you ask that Mr. Tyler do anything in

6 response to your concerns?

7

A. I don't recall .

8

Q. Did you discuss that matter with your parents?

9

A. Yes, sir.

10

Q. And in that context did you all discuss your

11 notion of perhaps filing a lawsuit against the school

12 district?

13

MR. LIPPER: Object to the form.

14

A. No, sir.

15

Q. (BY MR. WOOD) All right. Besides Ms. Willing,

16 any other employees of any type that you can think of

17 that we haven't already discussed who made some sort of

18 speech that you found offensive?

19

A. Not that comes to mind, no.

20

Q. Have you been present at school district events

21 at which religious speech has been offered by students?

22

A. Yes, sir.

23

Q. And what events have you been present for?

24

A. Football games.

25

Q. Anything else?

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Case 5:11-cv-00422-FB Document 98-3 Filed 12/09/11 Page 7 of 16
83
C. SCHULTZ - BY MR. WOOD

12:28:39 12:28:43 12:28:48 12:28:53 12:28:58 12:29:02 12:29:03 12:29:05 12:29:07 12:29:13 12:29:16 12:29:21 12:29:28 12:29:34 12:29:39 12:29:44 12:29:48 12:29:53 12:29:59 12:30:02 12:30:03 12:30:07 12:30:09 12:30:14 12:30:21

1

A. No.

2

Q. Have you attended any graduation ceremonies?

3

A. Yes, sir.

4

Q. I don't mean to clue you in. It's not my job.

5 Let's talk about -- anything besides football games and

6 graduation?

7

A. Not that comes to mind.

8

Q. Let's talk about football games. How many

9 football games have you attended while well, how

10 many Medina Valley football games have you attended?

11

A. Unless I was sick every one for my freshman and

12 sophomore year. My junior and senior year I would only

13 go if they were home games and I usually went to every

14 one. I probably missed like one or two.

15

Q. And how many of those games can you estimate

16 a number of total games that you might have attended?

17

A. Twenty to 40.

18

0. And at how many of those games would you have

19 heard some sort of religious speech being offered by a

20 student?

21

A. Every home game. I don't recall all the away

22 games. Some of the away games, yes.

23

0. And let's talk, first of all, about the home

24 games. You believe at every home game that some sort

25 of religious speech was offered?

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Case 5:11-cv-00422-FB Document 98-3 Filed 12/09/11 Page 8 of 16
97
C. SCHULTZ - BY MR. WOOD

01:43:06 01:43:09 01:43:09 01:43:10 01:43:16 01:43:18 01:43:18 01:43:21 01:43:22 01:43:30 01:43:32 01:43:33 11:43:37 01:43:42 01:43:42 01:43:43 01:43:46 01:43:47 01:43:50 01:43:51 01:43:52 01:43:57 01:43:58 01:43:58 )1 :44:01

1 speech of a religious nature in any of those

2 organizations?

3

A. Band.

4

Q. Band. The comment by Mr. Riley about God bless

5 the upcoming season or whatever?

6

A. Yes, sir.

7

Q. Okay. None other than that then?

8

A. Not that I recall.

9

Q. Did you ever attend any meetings of the

10 Fellowship of Christian Athletes?

11

A. No, sir.

12

Q. Did you attend any scholarship or award

13 ceremonies while you were a student at Medina Valley

14 Independent School District?

15

A. No, sir.

16

Q. Did you play any sports?

17

A. No, sir.

18

Q. So, I take it you did not attend any sports

19 banquets either?

20

A. No, sir.

21

Q. Were you aware of an event called "meet at the

22 pole" that occurred at the school district?

23

A. Yes, sir.

24

Q. And what do you know about "meet at the pole"?

25

A. Not a whole lot, just that members of the

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98
C. SCHULTZ - BY MR. WOOD

01:44:06 01:44:10 01:44:15 01:44:16 01:44:18 01:44:21 01:44:23 01:44:29 01:44:31 01:44:31 01:44:34 01:44:41
~1:44:42
01:44:43 01:44:46 01:44:48 01:44:49 01:44:53 01:44:55 01:44:56 01:45:00 01:45:02 01:45:03 01:45:05 11 :45:05

1 student body meet at the flagpole at the front of the

2 school. I think it's an association with the FCA. I

3 don't know though.

4

Q. Did you ever attend one of those events?

5

A. I saw one of them happening as I pulled up to

6 school, but I did not attend it.

7

Q. Did you ever attend any meetings of the board

8 of trustees for Medina Valley Independent School

9 District?

10

A. No, sir.

11

Q. You know that Medina Valley Independent School

12 District had a student code of conduct?

13

A. Yes, sir.

14

Q. And were you given a student handbook that

15 contained that student code of conduct?

16

A. Yes, sir.

17

Q. And did that student code of conduct include

18 provisions relating to a dress code?

19

A. Yes, sir.

20

Q. Were you required to sign for receipt of the

21 student parent handbook?

22

A. Yes, sir.

23

Q. And you did that, did you not?

24

A. Yes, sir.

25

Q. And as I recall, you were actually written up

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Case 5:11-cv-00422-FB Document 98-3 Filed 12/09/11 Page 10 of 16
137
C. SCHULTZ - BY MR. WOOD

03:00:58 03:00:59 03:01:00 03:01:13 03:01:16 03:01:22 03:01:24 03:01:25 03:01:31 03:01:34 03:01:35 03:01:37 13:01:39 03:01:39 03:01:42 03:01:45 03:01:45 03:01:47 03:01:50 03:01:52 03:01:57 03:02:00 03:02:03 03:02:07 J3:02:10

1 item number 11; is that right?

2

A. Yes, sir.

3

Q. Let's look at item number 13 on page 3 of 5 as

4 titled at the top. "Teachers have told students that

5 they will 'pray for you'." Did you personally witness

6 that discussion?

7

A. Yes, sir.

8

Q. Okay. And between whom -- what parties did

9 those discussions take place when the teachers told the

10 students that they would pray for them?

11

A. Then they told me that they would pray for me.

12

Q. Which teachers told you that they would pray

13 for you?

14

A. Ms. Willing has.

15

Q. Was that in context of the Obama shirt?

16

A. Yes, sir.

17

Q. Was there any other instance in which

18 Ms. Willing told you she would pray for you?

19

A. Not that I can recall, no, sir.

20

Q. Are you aware of teachers telling any other

21 students that they would pray for them?

22

A. Not that comes to mind, no.

23

Q. You also say in paragraph 13, "When separating

24 a male and female student engaging in a public display

25 of affection, have asked them to, quote, 'Make sure to

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138 C. SCHULTZ - BY MR. WOOD

03:02:14 03:02:18 03:02:20 03:02:22 03:02:28 03:02:30 03:02:31 03:02:35 03:02:37 03:02:41 03:02:42 03:02:44 13:02:46 03:02:51 03:02:56 03:02:59 03:03:04 03:03:06 03:03:10 03:03:13 03:03:17 03:03:20 03:03:21 03:03:25 )3:03:28

1 leave a little room for Jesus between you'". Were you

2 personally witness to that conversation?

3

A. No, sir. That was told to me by my friend.

4

Q. Would you take that to be a joke?

5

MR. LIPPER: Object to the form.

6

A. From my friend?

7

Q. (BY MR. WOOD) No. I'm asking you if a teacher

8 made this comment when a male and female student are

9 engaging in a public display of affection, in your

10 opinion would that be a joke?

11

A. Absolutely not. I don't think someone would

12 joke about their religion.

13

Q. Okay. On paragraph number 15 you say that

14 during the prayers at the 2009 graduation ceremony and

15 the football games to avoid hearing the prayers you

16 quietly sang to yourself or chanted "I hate this, this

17 isn't right". Is that what you did?

18

A. Yes, sir, but it wasn't always "I hate this" or

19 "this isn't right". That was just one occasion.

20

Q. You say in paragraph number 16 that you were

21 disciplined by your band section leader. Who was your

22 band section leader?

23

A. That could have either been Vincent De La Cruz,

24 Adrian I don't know his last name, or Carmen

25 Mcintyre.

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151
C. SCHULTZ - BY MR. WOOD

03:21:21 03:21:22 03:21:23 03:21:26 03:21:29 03:21:31 03:21:34 03:21:42 03:21:44 03:21:46 03:21:48 03:21:49 13:21:51 03:21:59 03:22:01 03:22:03 03:22:06 03:22:10 03:22:12 03:22:14 03:22:17 03:22:18 03:22:20 03:22:23 )3:22:26

1

MR. LIPPER: Object to the form.

2

A. Yes, sir.

3

Q. (BY MR. WOOD) What other events or situations

4 do you believe contribute to the environment of

5 pervasive religiosity?

6

A. I can't recall them all at this time.

7

Q. What was pervasive about these events?

8

MR. LIPPER: Object to the form.

9

A. Could you rephrase your question, please?

10

Q. (BY MR. WOOD) What was pervasive about these

11 events?

12

MR. LIPPER: Object to the form.

13

A. They just kept happening and happening time

14 after time.

15

Q. (BY MR. WOOD) At the end of paragraph number

16 16, "Upon information and belief, the prayers are

17 submitted to, and approved by, the Medina Valley High

18 School Principal before they are presented". Do you

19 have any personal knowledge about that?

20

A. I was told by the student council president

21 that's how it was done.

22

Q. And other than that information from the

23 student council president, do you have any other

24 knowledge that that's, in fact, the process?

25

A. No, sir.

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Case 5:11-cv-00422-FB Document 98-3 Filed 12/09/11 Page 13 of 16
170
C. SCHULTZ - BY MR. WOOD

03:46:25 03:46:28 03:46:29 03:46:31 03:46:45 03:46:50 03:46:54 03:46:59 03:47:05 03:47:10 03:47:18 03:47:21 ry3:47:24 03:47:26 03:47:27 03:47:29 03:47:35 03:47:38 03:47:41 03:47:44 03:47:48 03:47:53 03:47:54 03:47:57 )3: 48:00

1

Q. Did you witness any kind of religious speech or

2 prayer at those events? ,

3

A. No.

4

Q. All right. Now, Mr. Schultz, I'm going to

5 present what I hope to be the last exhibits and I'm

6 going to ask that Mr. Lipper acknowledge that we have

7 discussed this exhibit and we have agreed that I will

8 show you the unredacted version of Exhibit Number 44

9 which is marked ·· if I can find it because I've lost

10 mine. Which is marked, "Highly Confidential-Outside

11 Counsel's Eyes Only".

12

MR. WOOD: Mr. Lipper, have we agreed that I'm

13 going to show the witness this document and ask him

14 questions about that?

15

MR. LIPPER: We have as 1ong as I may have a

16 copy of it because what I have is redacted.

17

MR. WOOD: Let me give you a copy as well.

18

MR. LIPPER: I'd just like to clarify that

19 Mr. Wood is not going I believe you've agreed not to

20 ask Mr. Schultz if he can deduce the identity of any

21 plaintiff based on a specific paragraph that are

22 designated highly confidential.

23

MR. WOOD: I'm not going to ask him to deduce.

24 I'm going to ask him about the particulars that are set

25 forth in here, whether he is familiar with that set of

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Case 5:11-cv-00422-FB Document 98-3 Filed 12/09/11 Page 14 of 16

173
C. SCHULTZ - BY MR. WOOD

03:52:13 03:52:19 03:52:24 03:52:46 03:52:50 03:52:51 03:52:52 03:52:58 03:53:00 03:53:00 03:53:17 03:53:21 13:53:22 03:53:23 03:54:00 03:54:02 03:54:04 03:54:09 03:54:09 03:54:10 03:54:13 03:54:14 03:54:15 03:54:16 j3:54:21

1

Q. Did you ever recall him say God Bless America?

2

A. Not that I can recall.

3

Q. Were you ever present in a class in which

4 students were asked to raise their hands if they

5 believe in God?

6

A. No, sir.

7

Q. Were you ever present in a class during which a

8 teacher read Bible verses to the students?

9

A. No, sir.

10

Q. Were you ever present in a class during which

11 Coach Houston required students to watch a video of a

12 pastor giving a speech?

13

A. No, sir.

14

Q. Did you ever attend any of the events that the

15 tennis team participated in?

16

A. Could you repeat the question?

17

Q. Did you ever attend any of the events for the

18 tennis team?

19

A. No, sir.

20

Q. Did you ever attend any of the events for the

21 women's basketball team?

22

A. Yes, sir.

23

Q. Which events did you attend?

24

A. I attended a couple of their games, just once

25 or twice.

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Case 5:11-cv-00422-FB Document 98-3 Filed 12/09/11 Page 15 of 16

174 C. SCHULTZ • BY MR. WOOD

Q3:54:22 03:54:25 03:54:28 03:54:30 03:54:31 03:54:54 03:54:55 03:54:55 03:55:01 03:55:04 03:55:07 03:55:07 13:55:07 03:55:38 03:55:41 03:55:57 03:56:03 03:56:07 03:56:10 03:56:11 03:56:15 03:56:20 03:56:25 03:56:28 13:56:31

1

Q. When you attended the women's basketball

2 events, did you ever see the team engage in some sort

3 of prayer circle?

4

A. No, sir.

5

Q. Have you ever attended any of the National

6 Honor Society events?

7

A. No, sir.

8

Q. And I believe you told me, but just so I don't

9 miss it, you also told me you had not attended any

10 public meetings of the board of trustees for the

11 district?

12

A. No, sir.

13

Q. I'm going to show you this document which is

14 marked as Deposition Exhibit Number 44 and ask you to

15 turn to page 11. Item number 36 says that during the

16 2006-2007 school year the teacher of your leadership

17 class at the middle school repeatedly referenced

18 religion as part of class assignments. Tell me what

19 you know about that.

20

A. I don't remember much about that except for

21 that they made me uncomfortable in the class to the

22 point where I just switched classes. I told my parents

23 and they had me moved into art class.

24

Q. Do you remember what kind of comments that she

25 made that were religious in nature?

EDDIE MORRIS - COURT REPORTERS, INC.
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Case 5:11-cv-00422-FB Document 98-3 Filed 12/09/11 Page 16 of 16
175 C. SCHULTZ - BY MR. WOOD

q3:56:32 03:56:33 03:56:42 03:56:42 03:56:46 03:56:47 03:56:48 03:56:55 03:57:00 03:57:04 03:57:07 03:57:09 13:57:09 03:58:03 03:58:06 03:59:36 03:59:41 03:59:42 03:59:44 03:59:53 03:59:55 04:00:04 04:10:05 04:10:07 )4:10:11

1

A. No, I do not.

2

Q. Who was the teacher in that middle school

3 class?

4

A. Ms. Ramirez.

5

Q. Do you remember her first name?

6

A. No, I do not.

7

Q. Look at the bottom of page 16. It talks about

8 beginning at least 2007 and continuing through at least

9 2010 the Medina Valley Chamber of Commerce held a new

10 teacher luncheon. Do you know anything about those new

11 teacher luncheons?

12

A.

13

Q.

14

15

16
17 . _ ,

18

Q. Did we already talk about him?

19

A. Yes, sir.

20

MR. WOOD: Can we take about a five-minute

21 break? I think we're about ready to wrap up.

22

(Recess taken from 4:00 until 4: 10.)

23

Q. (BY MR. WOOD) I've just got a few more things

24 I need to tie up, Mr. Schultz. This cup that was used 25 as a hall pass, which class was that?

EDDIE MORRIS - COURT REPORTERS, INC.
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Telephone (210) 698-2727 Telecopier (210) 698-5556

Case 5:11-cv-00422-FB Document 98-4 Filed 12/09/11 Page 1 of 16 1

1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

2

SAN ANTONIO DIVISION

3

4 CHRISTA SCHULTZ, et al

*

Plaintiffs

*

5

6
vs.
7

* CIVIL ACTION NO. 5:11-CV-422

8

9 MEDINA VALLEY INDEPENDENT SCHOOL DISTRICT,

,*.

10

Defendant.

*

11

12

13

14
ORAL DEPOSITION
15
OF
16
TREVOR R.C. SCHULTZ
17
OCTOBER 5, 2011
18

19

20

21

22

23

24

i:

~;·

25

EXHIBIT ,, \-\ ~ L ,,

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Case 5:11-cv-00422-FB Document 98-4 Filed 12/09/11 Page 2 of 16
2

1

AP P EARANC E S

2

3 MR. GREGORY M. LIPPER LITIGATION COUNSEL
4 AMERICANS UNITED FOR SEPARATION OF CHURCH
5 AND STATE 1301 K STREET NW, SUITE 850E
6 WASHINGTON, DC 20005

FOR THE PLAINTIFFS

7

8 WALSH, ANDERSON, BROWN,

GALLEGOS & GREEN, P.C.

9 ATTORNEYS AT LAW

100 N.E. LOOP 410, SUITE 900

10 SAN ANTONIO, TEXAS 78216

BY: MR. D. CRAIG WOOD AND

11

MS. STACY TUER CASTILLO

FOR THE DEFENDANT

12 13 TREVOR R.C. SCHULTZ

WITNESS

14
15 BECKY A. OLSON
16

CERTIFIED SHORTHANC REPORTER

17

18

19

ORAL ANSWERS AND DEPOSITIONS of the witness,

20 TREVOR R.C. SCHULTZ, who resides in San Antonio, Bexar

21 County, Texas, in answer to questions propounded to him

22 in the above styled and numbered cause, taken on behalf

23 of the Defendant, before BECKY A. OLSON, a Certified

24 Shorthand Reporter in and for the State of Texas, on

25 October 5, 2011, in the offices of Walsh, Anderson,

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Case 5:11-cv-00422-FB Document 98-4 Filed 12/09/11 Page 3 of 16

37
T. SCHULTZ - BY MR. WOOD

Q9:34:04 09:34:07 09:34:10 09:34:11 09:34:11 09:34:15 09:34:19 09:34:19 09:34:20 09:34:23 09:34:27 09:34:28 19:34:29 09:34:34 09:34:34 09:34:37 09:34:39 09:34:44 09:34:46 09:34:46 09:34:47 09:34:49 09:34:53 09:34:55 <)9:34:58

1

Q. What did you contemplate - - before you attended

2 the FCA meeting, did you know what the nature of that

3 group was?

4

A. Yes, sir.

5

Q. And you knew that it was a group of athletes

6 who came together on the basis of their belief in

7 Christ?

8

A. Yes, sir.

9

Q. Did you believe that if you went to that

10 meeting you were 1ike 1y to experience some sort of

11 prayer?

12

A. Yes, sir.

13

Q. How often did you attend one of these FCA

14 meetings?

15

A. I attended that one and then after that maybe

16 once or twice.

17

Q. Did you ever see the Medina Valley Independent

18 School District offer a prayer at one of these

19 meetings?

20

A. Not that I can remember.

21

MR. LIPPER: Object to the form.

22

Q. (BY MR. WOOD) Did you ever see or hear a

23 Medina Valley Independent School District employee

24 offer a prayer at one of those meetings?

25

A. Not that I recall.

EDDIE MORRIS - COURT REPORTERS, INC.
92 Trai1crest, San Antonio, Texas 78232
Telephone (210) 698-2727 Telecopier (210) 698-5556

Case 5:11-cv-00422-FB Document 98-4 Filed 12/09/11 Page 4 of 16
38
T. SCHULTZ - BY MR. WOOD

09:34:59 09:35:01 09:35:06 09:35:06 09:35:08 09:35:14 09:35:17 09:35:17 09:35:20 09:35:28 09:35:32 09:35:37 19:35:41 09:35:43 09:35:49 09:35:52 09:35:55 09:36:01 09:36:02 09:36:04 09:36:07 09:36:08 09:36:08 09:36:18 J9:36:23

1

Q. To the best of your recollection then, were

2 those prayers at the FCA meetings offered or delivered

3 by a student?

4

A. I believe so, yes.

5

Q. Any other situations during which you were

6 exposed to prayer during your Medina Valley High School

7 experience?

8

A. Not that comes to mind at the moment.

9

- Q. Now, besides - just so that we can sum up, the

10 FCA meetings, Coach Houston's comments, Mr. Tyler's

11 comments and the prayers before soccer games, those are

12 the only prayers that you experienced while you were at

13 Medina Valley High School; is that correct?

14

A. No, sir. Football games as well as soccer

15 games and graduation.

16

Q. Let's talk about the football games. Were the

17 prayers at the football games offered by Medina Valley

18 employees?

19

A. No, sir.

20

Q. Were those prayers given by - - or delivered by

21 students?

22

A. Yes, sir.

23

Q. Do you know how the students who offered those

24 prayers were selected to give their speech at the

25 football games?

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Telephone (210) 698-2727 Telecopier (210) 698-5556

Case 5:11-cv-00422-FB Document 98-4 Filed 12/09/11 Page 5 of 16
40
T. SCHULTZ - BY MR. WOOD

09:37:40 09:37:40 09:37:41 09:37:46 09:37:47 09:37:47 09:37:49 09:37:50 09:37:50 09:37:55 09:37:58 09:37:58 )9:38:03 09:38:05 09:38:07 09:38:08 09:38:11 09:38:14 09:38:17 09:38:17 09:38:23 09:38:26 09:38:28 09:38:29 39:38:30

1 graduation?

2

A. I do not remember their names.

3

0. And you also said that you attended the 2011

4 graduation?

5

A. Yes, sir.

6

0. And you experienced prayer at that graduation

7 as well?

8

A. Yes, sir.

9

Q. Do you know how the students were selected to

10 give speeches at the graduation ceremonies?

11

A. No, sir.

12

0. Do you know what instructions, if any, those

13 students were given with respect to the content of

14 their speeches at graduation ceremonies?

15

A. No, sir.

16

0. Do you know what instructions, if any, or

17 guidelines, if any, the students were given with

18 respect to giving speeches at football games?

19

A. No, sir.

20

Q. Have you described for me, Mr. Schultz, all the

21 instances in which you have experienced prayer while

22 you were -- or you did experience prayer while you were

23 at Medina Valley?

24

A. I believe so, yes.

25

0. All right. Let's turn our attention then to

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Case 5:11-cv-00422-FB Document 98-4 Filed 12/09/11 Page 6 of 16
41
T. SCHULTZ - BY MR. WOOD

09:38:33 09:38:38 09:38:45 09:38:49 09:38:49 09:38:52 09:38:52 09:38:57 09:39:00 09:39:07 09:39:10 09:39:16 19:39:18 09:39:22 09:39:29 09:39:31 09:39:35 09:39:36 09:39:40 09:39:41 09:39:44 09:39:44 09:39:49 09:39:49 J9:39:50

1 the second area that you mentioned which is religious

2 icons or items. You said that was another basis upon

3 which you decided that - - or that you had been offended

4 while you were a student at Medina Valley; is that

5 correct?

6

A. Yes, sir.

7

Q. And tell me about those types of items or icons

8 that you experienced that you found to be offensive.

9

A. Throughout the school and the classrooms you

10 can find various crosses or little verses that are

11 framed and that's about the most of it.

12

Q. Let's talk about those things. You said

13 throughout the school. Let's talk about particular

14 locations. Where do you recall seeing crosses within

15 the Medina Valley High School?

16

A. The one that I specifically remember was in

17 Coach Griggs' classroom.

18

Q. Okay. Tell me about the cross that was present

19 in Coach Griggs' classroom.

20

A. It was just a little cross that was sitting on

21 her desk.

22

Q. About - - can you describe approximately how big

23 it was?

24

A. Maybe yea big.

25

Q, Say 6 to 8 inches?

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Case 5:11-cv-00422-FB Document 98-4 Filed 12/09/11 Page 7 of 16
42
T. SCHULTZ - BY MR. WOOD

~9:39:52
09:39:52 09:39:55 09:39:56 09:39:58 09:40:03 09:40:05 09:40:05 09:40:07 09:40:13 09:40:15 09:40:15 19:40:16 09:40:18 09:40:19 09:40:23 09:40:26 09:40:28 09:40:32 09:40:37 09:40:37 09:40:41 09:40:50 09:40:56 )9:40:58

1

A. Yes, sir.

2

Q. And it was lying on her desk or standing on her

3 desk?

4

A. Standing.

5

Q. And did it have some sort of writing on it that

6 would have indicated to you that it was a Christian

7 cross?

8

A. Not that I remember.

9

Q. Did you ever ask Coach Griggs about - - or did

10 she ever did you ever ask her anything about that

11 cross?

12

A. No, sir.

13

Q. Did she ever speak to you about that cross?

14

A. No, sir.

15

Q. Any other crosses that you can recall besides

16 the one on Coach Griggs' desk?

17

A. Not that specifically comes to mind.

18

Q, Any other religious items that you encountered

19 while you were at Medina Valley Independent School

20 District?

21

A. Nothing else with a specific reference.

22

Q. So, you described that you had experienced

23 religious items or religious icons, but as you sit here

24 today the only single one that you can recall is the

25 cross on Coach Griggs' desk?

EDDIE MORRIS - COURT REPORTERS, INC.
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Telephone (210) 698-2727 Telecopier (210) 698-5556

Case 5:11-cv-00422-FB Document 98-4 Filed 12/09/11 Page 8 of 16
43 T. SCHULTZ - BY MR. WOOD

Q9:41:01 09:41:01 09:41:09 09:41:11 09:41:12 09:41:16 09:41:19 09:41:19 09:41:20 09:41:33 09:41:34 09:41:39 19:41:42 09:41:45 09:41:45 09:41:47 09:41:49 09:41:55 09:41:58 09:42:00 09:42:02 09:42:03 09:42:03 09:42:06 J9:42:07

1

A. Yes, sir.

2

Q. Did you make any kind of complaints about the

3 cross on Coach Griggs' desk?

4

A. No, sir.

5

Q. Did you ever make any type of complaint about

6 the prayers that you experienced while you were at

7 Medina Valley?

8

A. No, sir.

9

Q. When you attended the 2008 graduation, do you

10 recall who you sat with?

11

A. I believe I sat with my family and my

12 girlfriend's at the time family.

13

Q. A different girlfriend than Rachel?

14

A. Yes, sir.

15

Q. Who was your girlfriend at the time?

16

A. Sarah Braddy.

17

Q. And where do you recall that you all sat?

18

A. I don't remember. I think it was on the home

19 side, but I'm not sure.

20

Q. And you don't remember who the speakers were at

21 the ceremony?

22

A. No, sir.

23

Q. Do you remember any of the speakers at that

24 ceremony?

25

A. No, sir, I don't remember exactly who spoke.

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Case 5:11-cv-00422-FB Document 98-4 Filed 12/09/11 Page 9 of 16
53
T. SCHULTZ - BY MR. WOOD

ry9:52:37 09:52:40 09:52:42 09:52:45 09:52:48 09:52:52 09:52:52 09:52:53 09:52:58 09:52:59 09:53:00 09:53:03 19:53:05 09:53:11 09:53:13 09:53:15 09:53:16 09:53:17 09:53:19 09:53:32 09:53:33 09:53:33 09:53:37 09:53:39 )9:53:41

1

Q. Do you know whether or not your parents ever

2 attended an FCA meeting?

3

A. I don't believe they did, to my knowledge.

4

Q. I understand that the school district conducts

5 its scholarship and awards ceremonies. Did you ever

6 attend one of those?

7

A. Yes, I did.

8

Q. Do you know if your parents or Corwyn ever

9 attended one of those?

10

A. Yes.

11

Q. Tell me about that. Did your parents ever

12 attend the scholarship ceremony?

13

A. Yes, they attended when I got this silly award

14 that you get for having good grades.

15

Q. Was it only one time that you attended?

16

A. Yes.

17

Q. What year was that?

18

A. I believe that was my second year.

19

Q. And you completed your freshman year at Medina

20 Valley; is that correct?

21

A. Yes.

22

Q. And so when you say your second year, do you

23 mean your sophomore year?

24

A. It would have been a combination of sophomore

25 and junior.

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Case 5:11-cv-00422-FB Document 98-4 Filed 12/09/11 Page 10 of 16
54 T. SCHULTZ - BY MR. WOOD

~9:53:42
09:53:49 09:53:51 09:53:54 09:53:58 09:54:02 09:54:07 09:54:10 09:54:12 09:54:16 09:54:19 09:54:22 19:54:22 09:54:26 09:54:28 09:54:29 09:54:36 09:54:37 09:54:38 09:54:42 09:54:44 09:54:46 09:54:47 09:54:55 )9:54:58

1

Q. Okay. And so when you say a combination, I'm

2 not sure that I understand why that was.

3

A. Because I was home schooled up until 10th

4 grade. I came in with -- behind in credits, so I had

5 to, you know, work hard and catch up so I could

6 graduate on time. So, a 1ot of my high school years I

7 had a combination of like freshman and sophomore,

8 first, second and third year.

9

Q. And to the best of your recollection, that was

10 the only instance in which your parents attended a

11 scholarship and awards ceremony as well?

12

A. Yes, sir.

13

Q. Were there any types of prayers or religious

14 remarks made at that ceremony?

15

A. I don't remember.

16

Q. Do you know how the speakers are selected for

17 the scholarship and awards ceremony?

18

A. No, sir.

19

Q. All right. And besides --you already

20 mentioned the situation involving your soccer team.

21 Did you play any other sports?

22

A. No, sir.

23

Q. And with respect to the soccer coach, you never

24 heard Coach Payne offer a prayer?

25

MR. LIPPER: Object to the form.

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Case 5:11-cv-00422-FB Document 98-4 Filed 12/09/11 Page 11 of 16

78
T. SCHULTZ - BY MR. WOOD

10:35:14 10:35:15 10:35:18 10:35:18 10:35:21 10:35:23 10:35:24 10:35:25 10:35:28 10:35:28 10:35:35 10:35:41 '0:35:45 10:35:45 10:35:45 10:35:49 10:35:49 10:35:54 10:35:58 10:36:01 10:36:02 10:36:04 10:36:07 10:36:09 .10:36:11

1 never had any experience with him.

2

Q. Officer Sides, do you know him?

3

A. Yes, sir.

4

Q. Do you have any information - - personal

5 information about what he might know about the

6 discussion or promotion of religion?

7

A. Yes, sir.

8

Q. What information might Officer Sides have about

9 that?

10

A. In his office there are a number of religious

11 pamphlets sitting on his desk facing outwards.

12

Q. Did you personally see these religious

13 pamphlets?

14

A. Yes, sir.

15

Q. Tell me what those religious pamphlets look

16 1ike.

17

A. They were small brochure type pamphlets with

18 happy Christian messages on the front of them.

19

0. Happy Christian messages you said?

20

A. Yes, sir.

21

Q. Do you recall any of those happy Christian

22 messages that were contained on the front of these

23 brochures?

24

A. No, sir, I don't remember specifics.

25

Q. When do you recall seeing these brochures?

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Case 5:11-cv-00422-FB Document 98-4 Filed 12/09/11 Page 12 of 16
99
T. SCHULTZ - BY MR. WOOD

11:09:02 11:09:02 11:09:06 11:09:13 11:09:14 11:09:14 11:09:25 11:09:30 11:09:32 11:09:35 11:09:39 11:09:43 11:09:47 11:09:48 11:09:49 11:09:53 11:09:54 11:10:26 11:10:31 11:10:34 11:10:38 11:10:40 11:10:43 11:10:46 11:10:49

1 member.

2

Q. Okay. So, based upon your testimony today,

3 that may be a student-led prayer rather than a faculty

4 member; is that accurate?

5

A. Yes, sir.

6

Q. On item b there it says, "Before most if not

7 all soccer games beginning in 2006 until approximately

8 2009, Coach Payne gathered the team in a circle and

9 directed a student to lead a Christian prayer". And I

10 believe your testimony today is that you never heard

11 Coach Payne direct a student to lead a Christian

12 prayer, but you heard him ask a student to kick us off

13 or lead us out; is that correct?

14

MR. LIPPER: Object to the form.

15

A. Yes, he directed a student to 1ead us and

16 resulting in a prayer.

17

Q. (BY MR. WOOD) All right. Over on page 12 in

18 reseonse to interrogatory number 10' item number 1 it 19 says, "At various points during his time as a student

20 at Medina Valley High School, Trevor Schultz saw a

21 cross and a Bible verse displayed in the Nurse's

22 office". You haven't told me anything about that. Is

23 that statement accurate or is it inaccurate?

24

A. It's accurate. I forgot about the instance at

25 the nurse's office.

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Case 5:11-cv-00422-FB Document 98-4 Filed 12/09/11 Page 13 of 16
100 T. SCHULTZ - BY MR. WOOD

11:10:50 11:10:53 11:10:55 11:10:59 11:11:04 11:11:07 11:11:09 11:11:11 11:11:11 11:11:15 11:11:18 11:11:22 11:11:26 11:11:33 11:11:34 11:11:36 11:11:39 11:11:40 11:11:41 11:11:42 11:11:44 11:11:46 11:11:46 11:11:49 .11:11:50

1

Q. Okay. And you say -- so this says you saw a

2 cross in her office. Tell me about that.

3

A. As you walk in her door on her desk there's a

4 cross. I don't remember if it was sitting or laying

5 and on the other side of her desk was the Bible verse.

6

Q. All right. Let's talk about this. First of

7 all , you say this was in her office?

8

A. Yes.

9

Q. Is that the place where she sees students?

10

A. No, just in her personal office space.

11

Q. As far as the cross that was in her personal

12 office space, describe what that cross looked like.

13

A. Just probably wooden. It was brown. I don't

14 remember. It was a cross.

15

Q. Do you remember how big it was?

16

A. It wasn't too big. About the same size as the

17 other one.

18

Q. Six to 8 inches again?

19

A. Yes, sir.

20

Q. Was it on a stand or was it lying there or how

21 was it displayed?

22

A. I don't remember.

23

Q. Did it have any type of inscription on it?

24

A. Not that I recall.

25

Q. Did you ever discuss that cross with the nurse?

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Case 5:11-cv-00422-FB Document 98-4 Filed 12/09/11 Page 14 of 16
101
T. SCHULTZ - BY MR. WOOD

11:11:54 11:11:54 11:11:59 11:12:01 11:12:01 11:12:07 11:12:08 11:12:10 11:12:13 11:12:13 11:12:16 11:12:17 11:12:18 11:12:19 11:12:20 11:12:24 11:12:25 11:12:29 11:12:31 11:12:39 11:12:45 11:12:46 11:12:51 11:12:53 11:12:55

1

A. No, sir.

2

Q. Did you ever complain to anybody about the

3 presence of the cross on her desk?

4

A. No, sir.

5

Q. You also said there was a Bible verse

6 displayed. Where was that displayed?

7

A. On the opposite end of the desk.

1

8

Q. Again, this would be in her personal office?

9

A. Yes, sir.

10

Q. And it would not have been in the area where

11 she was treating students?

12

A. Correct.

13

Q. And what was the Bible verse?

14

A. I don't remember what it was.

15

Q. How was it displayed? You said the Bible verse

16 was displayed.

17

A. It was facing away from her desk, so as the

18 student walked in it could be read.

19

Q. And again, let me clarify. Was this a plaque,

20 was it -- was it a poster, was it something that she

21 had written?

22

A. I believe it was a plaque or something similar,

23 not a poster or written.

24

Q. You believe it was a plaque?

25

A. Yeah.

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Case 5:11-cv-00422-FB Document 98-4 Filed 12/09/11 Page 15 of 16

102
T. SCHULTZ - BY MR. WOOD

11:12:55 11:13:01 11:13:05 11:13:07 11:13:12 11:13:12 11:13:16 11:13:17 11:13:21 11:13:24 11:13:26 11:13:26 11:13:26 11:13:40 11:13:46 11:13:50 11:13:52 11:13:54 11:13:58 11:14:00 11:14:03 11:14:05 11:14:05 11:14:09 11:14:11

1

0. And were you offended by that?

2

A. Not offended, but it didn't belong in the

3 school's nurse O·ffice.

4

- 0. Were you offended by the Bib 1e - I mean excuse

5 me, the cross?

6

A. I wouldn't say offended, but more it made me

7 feel uncomfortable.

8

0. And did you complain about the Bible verse - - I

9 think you already told me you didn't complain about the

10 cross, but did you complain about the Bible verse to

11 anyone?

12

A. No, sir.

13

0. Over on the next page, page 13, item number 10

14 says that during the 2007-2008 school year Trevor saw a

15 Bible in Ms. Houston's class; is that accurate?

16

A. Accurate except for the year.

17

0. What year was it?

18

A. That would have been my senior year, so '08-09.

19

0. A11 right. That's one of the things that you

20 didn't mention. As we talked about this earlier you

21 had not mentioned the Bible in Ms. Houston's class.

22

A. I did.

23

0. I'm sorry. And remind me where the Bible was

24 in Ms. Houston's class?

25

/j, I believe it was behind her desk. I onl~ ever

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Case 5:11-cv-00422-FB Document 98-4 Filed 12/09/11 Page 16 of 16
103 T. SCHULTZ - BY MR. WOOD

11;14:16 11:14:19 11:14:21 11:14:23 11:14:24 11:14:24 11:14:52 11:14:55 11:14:59 11:15:00 11:15:00 11:15:12 \1:15:16 11:15:19 11:15:20 11:15:20 11:15:47 11:15:50 11:15:51 11:15:51 11:15:55 11:15:59 11:16:00 11:16:02 11:16:02

1 saw it the one time when she pulled it out at the end

2 of the school year to read the prayer.

3

Q. Okay. So, that was the only time that you saw

4 the Bible?

5

A. Yes, sir.

6

Q. Okay. Based upon your personal knowledge, do

7 you have any -- do you know what information James

8 Stansberry might have with respect to the promotion or

9 discussion of religion at the school?

10

A. No, sir.

11

Q. Based upon your personal knowledge, do you have

12 any information as to what knowledge Mr. Chris Martinez

13 might have with respect to the discussion or promotion

14 of religion at the school?

15

A. No, sir.

16

Q. With respect to this reading from the Bible by

17 Coach Houston, I believe you said that that was during

18 your senior year; is that correct?

19

A. Yes, sir.

20

Q. And at what point in that year did that occur?

21

A. That would have been at some point during the

22 end of the semester.

23

Q. The end of your senior year?

24

A. Yes, sir.

25

Q. And you believe that she read from the Bible

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Case 5:11-cv-00422-FB Document 98-5
Christa Schultz, et al Vs. Medina Valley Independent School District

Filed 12/09/11 Page 1 of 26

Christa Schultz 11/4/2011

1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

2

SAN ANTONIO DIVISION

3

4 CHRISTA SCHULTZ and DANNY *
SCHULTZ, both individually *

5 And as parents and guardians*

Of minor child C.S, a

*

6 Student in the Medina

*

Valley Independent School *

7 District; C.S, a minor,

*

Individually, by his next *

8 Best friends Christa

*

Schultz; and TREVOR SCHULTZ,*

9 Individually

*

*

10

* CIVIL ACTION NO.

VS.

* SA-11-CA-0422-FB

11

*

*

12 MEDINA VALLEY INDEPENDENT *

SCHOOL DISTRICT

*

13

14

15

16

17

ORAL DEPOSITION

18

OF

19

CHRISTA SCHULTZ

20

NOVEMBER 4, 2 011

21

22

23 24

EXHIBIT \\ 3 f-\~ "

25

Page 1
I•••;';:
s g
8

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Case 5:11-cv-00422-FB Document 98-5
Christa Schultz, et al Vs. Medina Valley Independent School District

Filed 12/09/11 Page 2 of 26

Christa Schultz 11/4/2011

Page2

1

APPEARANCES

2

3 MR. GREGORY M. LIPPER

LITIGATION COUNSEL

4 AMERICANS UNITED FOR

SEPARATION OF CHURCH AND STATE

5 1301 K. STREET NW, SUITE 850E

WASHINGTON, DC 20005

FOR THE PLAINTIFFS

6

7

WALSH, ANDERSON, GALLEGOS AND GREEN, P.C.

8 ATTORNEYS AT LAW

100 N.E. LOOP 410, SUITE 900

9 SAN ANTONIO, TEXAS 78216

BY: MR. D. CRAIG WOOD

10

MS. STACY CASTILLO

FOR THE DEFENDANT

11 12 CHRISTA SCHULTZ 13 14 SHERYL J. HUFF

WITNESS
CERTIFIED SHORTHAND REPORTER

15 16 DANNY SCHULTZ 17 18 19 20 21 22 23 24 25

OTHERS PRESENT

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Case 5:11-cv-00422-FB Document 98-5
Christa Schultz, et a! Vs. Medina Valley Independent School District

Filed 12/09/11 Page 3 of 26

Christa Schultz 1114/2011

Page 39

1 And with that, I'll allow Ms. Schultz to answer.

2

A. What do you mean by ''external consequences''?

3

Q. (By Mr. Wood) Well, other than something that

4 would be imposed by, for instance, the Judge, if you

5 were found to have committed perjury, do you believe

6 that there are any, for instance, eternal consequences

7 that if you were to lie

8

A. Eternal -- eternal consequences?

9

Q. Yes.

10

A. No. The consequences would be here and now,

11 and my conscience, it's unethical to lie.

12

Q. And distinguish for me, if you will, the

13 difference between it being unethical to lie and it

14 being a sin to lie.

15

MR. LIPPER: Object to the form.

16

A. It being a sin to lie is a form of external

17 morality and being unethical to lie is an internal

18 morality.

19

Q. (By Mr. Wood) Fair enough. All right. Let's

20 talk about some particulars of this actual case. If

21 you could tell me, have you ever seen any types of

22 religious objects or symbols that have been displayed

23 at

on Medina Valley property?

24

A. Yes.

25

Q. And what have you seen?

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Case 5:11-cv-00422-FB Document 98-5
Christa Schultz, ct al Vs. Medina Valley Independent School District

Filed 12/09/11 Page 4 of 26

Christa Schultz 11/4/2011

I I
Page 40

1

A. A cross in Chris Martinez's office.

I
I !

2 3

Q. When did you see that? A. When I went to his office to visit him in --

I*''ill
i

4

I I'm not even sure when it was -- it was 2000 --perhaps

5 nine and ten.

' ' j
! ,

6

Q. And are you certain that you witnessed that

I

7 object in person?

I

~

8

A. Yes.

i g

9

Q. And you're certain that it was not a video that

10 you saw that -- or -- or a photograph that reflected

11 that cross?

12

MR. LIPPER: Object to the form. You can go

13 ahead.

14

A. I am certain, yes. He had a cross in his

15 office. There may have -- as well been some framed

16 verses or religious sayings of some kind.

17

Q.

(By Mr. Wood) When you say there may have been

18 some framed verse -- verses or religious sayings

19 ''may have been'' is - is pretty generic. Do you recall

20 whether or not --

21

A. I recall

22

Q. -- there were such items?

23

A. I recall seeing the religious objects, and I

24 believe there was something in a frame, as well. It

25 made me uncomfortable. It made me not certain that

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Case 5:11-cv-00422-FB Document 98-5
Christa Schultz, et al Vs. Medina Valley independent School District

Filed 12/09/11 Page 5 of 26

Christa Schultz 11/4/2011

Page 41

1 Mr. Martinez and I were on the same page.

2

Q. Okay.

3

A. And I don't remember exactly what it was, but I

4

I do remember seeing it there.

5

MR. LIPPER: And, Ms. Schultz, let me just

6 remind you to let Mr. Wood finish his question --

7

THE WITNESS: Certainly.

8

MR. LIPPER: -- and give me a half a second to

9 object if I need to.

10

THE WITNESS: Certainly.

11

MR. LIPPER: No problem.

12

Q. (By Mr. Wood) And with respect to this framed

13 item, you don't have any recollection of the

14 particulars of it?

15

A. It was a

it was a verse or -- or a saying

16 and not a photo.

17

Q. Where was that item?

18

A. On a shelf.

19

Q. Did you complain to Mr. Martinez about either

20 of those items, either the cross or the framed item?

21

A. I did not.

22

Q. Did you complain to anyone else about those

23 items?

24

A. I did not.

25

Q. Other than the cross and the framed verse, do

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Case 5:11-cv-00422-FB Document 98-5
Christa Schultz, et al Vs. Medina Valley Independent School District

Filed 12/09/11 Page 6 of 26

Christa Schultz ll/4/201 1

Page 42 ~R

1 2

I you remember any

-

are

there

any

other

religious

items

* !
e !

i

or symbols that you've seen displayed on District

3 property?.

4

A. I believe in the front office.

5

Q. And when you say ''the front office,'' is that

6 the fiont office of the administration building, the

7 front office of the high school?

8

A. Of the high school. A cross on the desk in

9 there.

10

Q. And would that have been a cross that was on a

11

displayed on a trophy?

12

A. No.

13

Q. What did this cross look like that you saw in

14 the front office of the high school?

15

A. Small on the desk.

16

Q. And by gesture, you're making reference to

17 something approximately

18

A. A size-- I'm sorry-- approximately four or

19 five inches high.

20

Q.

Four or five inches high? And what -- if you

! i

21 can, describe -- what did that cross look like?

I'"

22

A. It was -- it was standing and had a base.

23

Q. Was there any type of writing or --

24

A. Not that I could see. I'm not in the office

25 very frequently, and I didn't get up close to it or

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Case 5:11-cv-00422-FB Document 98-5 Filed 12/09/11 Page 7 of 26
Christa Schultz, et a! Vs. Medina Valley Independent School District

Christa Schultz I 1/4/2011

1

A. Correct.

Page 47

2

Q. And you did not personally witness the item in

3 Mr. Turcato's office?

4

A. No.

5

Q. And you did not personally witness the hall

6 cup?

7

A. No.

8

Q. And were the photos taken of those latter two

9 items photos taken by your son?

10

A. Yes.

11

Q. And I believe those have been produced as

12 exhibits?

13

A. Yes.

14

Q. Have you ever been present for any type of

15 announcement made over the loud speaker at the high

16 school?

17

A. Not during the school day.

'

18 19

Q. Okay. And the school day?

what

about

after

--

after

or

before

I
I

20

A. Not during -- not in the high school building. N

21 Only at the

like games over in the stadium or

22 something like that.

I
ti

23

Q. Okay. So, we'll --we'll get to games

I

24 separately.

25

A. Well, I've been to-- actually, yes, I have.

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Case 5:11-cv-00422-FB Document 98-5 Filed 12/09/11 Page 8 of 26
Christa Schultz, eta! Vs. Medina Valley Independent School District

Christa Schultz I 1/4/2011

Page48

1 I've been to, like, performing arts night and things

2 like that, and there have been announcements made, but

3 not for the regular school day announcements, no.

4

Q. Okay. Setting aside for the moment the issue

5 of football games and graduation, have you ever been at

6 any other school-related event at which any type of

7 religious utterance was made?

8

A. Yes.

9

Q. Okay.

10

A. An awards ceremony in 2000

I want to say --

11 seven. I'm not entirely certain.

12

Q. And what type of an awards ceremony was this?

13

A. I believe it was an academic award ceremony.

14

Q. With whom did you attend that ceremony?

15

A. With my husband and my son, Trevor.

16

Q. What was the purpose of you attending the

17 ceremony?

18

A. To support one of Trevor's friends who was

19 getting an award.

20

Q. Who was that?

21

A. Sarah Braddy.

22

Q. Where did the award ceremony take place?

23

A. In the high school in the auditorium.

24

Q. Did anyone else attend besides yourself,

25 Trevor, and Danny? I mean with you.

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Case 5:11-cv-00422-FB Document 98-5
Christa Schultz, et al Vs. Medina Valley Independent School District

Filed 12/09/11 Page 9 of 26

Christa Schultz 11/4/2011

Page 49

1

A. Yes. I was going to say, ''Well'' -- no, not

2 with us.

3

Q. Okay. And where did you sit for that ceremony?

4

A. I don't recall. I sat in the folding chairs

5 that they have provided.

6

Q. Were you there for the entire ceremony?

7

A. I was.

8

Q. What type of religious utterance did you hear

9 at that ceremony?

10

A. Principal Tyler was the incoming principal for

11 the next school year, and he gave a speech that was

12 I felt to be almost entirely about his religion and

13 almost nothing about education. It was surprising for

14 an incoming principal, I felt.

15

Q. What particularly do you recall that Mr. Tyler

16 may have said?

17

A. I don't recall any of his specific words.

18

Q. Did he pray?

19

A. Not that I'm aware of and that I recall.

20

Q. So, he was -- as a general recollection, you

21 recall that he was expressing his beliefs?

22

A. Yes.

23

Q. Are you certain that he was expressing his

24 beliefs or might he have been talking -- talking about,

25 for instance, his upbringing?

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Christa Schultz, et al Vs. Medina Valley Independent School District

Christa Schultz 1!14/2011

Page 50

1

A. I am certain he was expressing his beliefs.

2

Q. And did he articulate what those beliefs were?

3

A. I don't recall any specific words that he said.

4

Q. Did he make reference to a deity?

5

A. God, I believe.

6

Q. Are you certain about that?

7

A. I am not certain, but I am fairly certain.

8

Q. And you don't remember -- you believe that he

9 said ''God'' --

10

A. Yes.

11

Q. -- right? But you're not certain --

12

A. I am not certain.

13

Q. -- what -- what he may have said about God?

14

A. That's correct.

J

Oi

15 16

Q. A.

Any other religious utterances at that event? Not that I recall.

2
I
I

17

Q. Then, besides the awards ceremony -- and,

i
l

'

18 again, we're setting aside for the time being football

19 games and graduations

have you been at any other

20 school-related events at which any type of religious

21 utterance was made?

22

A. Not that I recall.

23

Q. All right. On how many occasions have you

24 attended Medina Valley home games?

25

A. I attended all or nearly all of the home games

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Case 5:11-cv-00422-FB Document 98-5 Filed 12/09/11 Page 11 of 26

Christa Schultz, et al Vs. Medina Valley Independent School District
1 2000 -- Corrie's freshman and sophomore year.

Christa Schultz 11/4/2011
I ~
Page 51

2

Q. Okay. And, again, you'll have to help me with

3 the --with the years because I'm not going to keep

4 track of those.

5

A. Neither am I. That would be 2007 and 2008

6 school year, the -- probably 2007-2008 and then the

7 2008-2009 school year.

8

Q. Okay. Let's - so, you think you attended most 1

9 all of the games those two -- those two years?

10

A. Yes.

11

Q. Okay. Have you attended any football games

12 since then?

13

A. Yes.

14

Q. When was that?

15

A. I'm not certain which-- I believe that was --

16 there was at least one after Corrie was no longer in

17 the band that I attended, and then recently, in the

18 past few weeks.

19

Q. And would that have been the Champion football

20 game?

21

A. Yeah.

22

Q. Did that game occur on a Sunday?

23

A. That was a F~iday. Actually, I'm-- it may

24 have been the game before that one.

25

Q. The Devine football game?

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Christa Schultz, et al Vs. Medina Valley Independent School District

Christa Schultz 11/4/201!

Page 52

l

A. No. I don't remember playing Devine. What was

2

who was the next team?

3

Q. The next one after Champion, I believe, was

4 Uvalde.

5

A. I'm not certain.

6

Q. All right. Let's -- let's back up. You're not

7 certain who the opponent was?

8

A. That's correct.

9

Q. Okay. Let's first talk about the 2007-2008

10 school year. You said you attend -- believe you

11 attended most of the home football games. Do you

12 recall how many football games there -- home football

13 games there were that year?

14

A. I do not.

15

Q. Do you recall how many you attended?

16

A. I do not.

17

Q. At any of those football games that year, did

18 you hear any type of religious utterance?

19

A. Yes. There was a prayer before every game over

20 the announcements, the loud speaker.

21

Q. And you're certain every game that that

22 occurred?

23

A. I actually am not. There was announcements at

24 every game that I attended for the announcements prior

25 to the point where we stopped going for the

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Case 5:11-cv-00422-FB Document 98-5 Filed 12/09/11 Page 13 of 26
Christa Schultz, et al Vs. Medina Valley Independent School District

Christa Schultz ll/4/2011

1 announcements and began showing up afterward.

Page 53 !#

2

Q. Okay. So, I need to know a number of instances

3 in which you were actually --

4

A. Probab --

5

Q. -- present that a prayer took

6

A. Probably three or four.

7

MR. LIPPER: And, Ms. Schultz, let me remind

8 you again to let Mr. Wood finish his question.

9

THE WITNESS: Yes. I'm sorry.

10

Q. (By Mr. Wood) So, you believe that during the

11 2007-2008 school year that you were actually present

12 for a prayer?

13

A. Yes.

14

Q. Who delivered those prayers?

15

A. A student.

16

Q. And you said that some of the home games you

17 decided not to go because you didn't want to be exposed

18 to that?

19

A. No. Some of the home games we went after they

20 would have made those announcements.

21

Q. All right. That's what I meant.

22

A. Yes.

23

Q. So, you arrived after the announcements took

24 place?

25

A. Correct.

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Case 5:11-cv-00422-FB Document 98-5 Filed 12/09/11 Page 14 of 26
Christa Schultz, et al Vs. Medina Valley Independent School District

Christa Schultz J J/4/20 II

Page 62

1

A. No.

2

Q. -- issue?

3

A. This was related to Mr. Tyler's religious

4 speech over the intercom.

5

Q. And do you recall what year that was?

6

A. 2008.

7

Q. And it -- what particular speech over the

8 intercom -- what was -- what was your concern?

9

A. It wasn't a particular, like, speech that was

10 given. It was the language that was used. Language,

11 for example, references to the Good Book, to our Lord,

12 things of a Christian-sounding nature.

13

Q. Some of the allegations in this case are that

14 Mr. Tyler has made comments like "God bless our sports

15 team."

16

A. Yes.

17

Q. Do you consider that to be a prayer?

18

A. I do.

19

Q. Do you consider it to be a prayer if someone

20 sneezes and someone else responds, ''God bless you?''

21

A. It is, yes.

22

Q. If someone says, "God bless Texas,'' is that a

23 prayer?

24

A. Yes.

25

Q. When Corrie -- and, agaln, just for purposes of

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Christa Schultz, eta] Vs. Medina Valley Independent School District

Christa Schultz 11/4/2011

Page 66

1

A. Yes.

2

Q. ''God bless the United States''?

3

A. Depending on who's saying it, yeah.

4

Q. What about ''God save the United States and this I:~

f.

5 honorable Court''?

6

A. Yes. Those are prayers.

7

Q. You were describing for me Mr. Tyler --

8

THE WITNESS: Pardon me.

9

Q. (By Mr. Wood) That's all right. You were

10 describing for me Mr. Tyler's speech at the scholarship

11 ceremony.

12

A. Uh-huh.

13

Q. Was this Sarah Braddy's senior year that you

14 attended that ceremony?

15

A. I believe so, yes.

16

Q. Okay. And it -- it was because of the fact

17 that she was a senior, she was receiving some sort of

18 award?

19

A. I believe so, yeah.

20

Q. Do you recall what time of year that took

21 place?

22

A. Near the end of the school year, I believe.

23

Q. And you don't recall the particulars of what

24 Mr. Tyler said?

25

A. I do not.

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Christa Schultz, et al Vs. Medina Valley Independent School District

Christa Schultz ll/4/20 II

Page 68

1 you?

2

MR. LIPPER: Object to the form.

3

A. Regardless of what the surrounding

4 circumstances were?

5

Q. (By Mr. Wood) Yes.

6

A. What does that mean?

7

Q. Well, I'm saying, is there -- is there any

8 context in which, for instance, Mr. Tyler could have

9 used the phrase, the ''Good Book,'' over the

10 announcements or during the announcements that would

11 have been -- wouldn't -- would not have been offensive

12 to you?

13

A. No.

14

Q. Okay. So, every -- every use of the phrase,

15 the ''Good Book'' --

16

A. Is promoting religion over --

17

Q.

is promoting religion if it's -- if it's

18 if that phrase is used over a public announcement

19 system at the school?

20

A. Yes.

21

Q. And other than -- and -- and so, I think we've

22 clarified that other than that scholarship ceremony,

23 you -- the only other time that you've personally been

24 exposed to religious utterances was at football games

25 and graduations; is that correct?

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Christa Schultz, eta! Vs. Medina Valley Independent School District

Christa Schultz I 114/20 I I

Page 69

1

A. I believe so.

2

Q. Okay. So, we were talking about particularly

3 the 2007-2008 year, and you said that you thought the

4 same student on three or four occasions offered a

5 prayer over the -- over the announcement system?

6

A. Yes.

7

Q. And you think that at least on one occasion,

8 the announcer asked the per -- people stand for the

9 National Anthem and an invocation?

10

A. Yes.

11

Q. Okay. And do you -- well -- okay. And then we

12 were talking about also the 2008-2009 school year, and

13 I believe that you said that you thought you attended

14 every home football game that year?

15

A. No. Every game -- if not every game -- almost

16 every game if not every game.

17

Q. Do you remember how many games you may have

18 attended that year?

19

A. I do not.

20

Q. Do you remember the opponents from any of those

21 games?

22

A. Dan watches the football games. I go to see

23 Corrie in the band.

24

Q. Okay.

25

A. He was in the marching band.

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Case 5:11-cv-00422-FB Document 98-5 Filed 12/09/11 Page 18 of 26
Christa Schultz, et al Vs. Medina Valley Independent School District

Christa Schultz IJ/4/2011

Page 76

1 that's objectionable?

2

A. In that particular sentence, "Let us enjoy a

3 good game free from injury,'' correct. "Grant us a game

4 free from injury'' is a prayer.

5

Q. Okay. And ''Let us enjoy a game free of injury,

6 amen,'' turns it from what was not a prayer to what now

7 is prayer in your mind?

8

A. Correct.

9

Q. All right. And then I believe you said you

10 thought you'd attended at least one additional game

11 before the current year. Do you believe that was in

12 the 2009 -- the fall of 2009 or the fall of 2010?

13

A. One more game before the current year?

14

Q. I thought you told me that, in addition to the

15 home games in 2007 and the home games in 2008 --

16

A. I get you. Okay. I got you.

17

Q. I thought you told me you attended one

18 additional game?

19

A. I may have gone to -- I -- I believe I went to

20 a game with Dan in the following season.

21

Q. And so that would have been the 2000 -- fall of

22 2009?

23

A. Yes.

24

Q. Okay. And did you hear any type of religious

25 utterance at that game?

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Christa Schultz, et al Vs. Medina Valley Independent School District

Christa Schultz 11/4/2011

Page 77

1

A. I don't believe we got there early enough.

2

Q. Okay. And then you have attended one game this

3 year that's the fall of 2011, although you don't

4 remember which game it was?

5

A. That is correct.

6

Q. All right. And --

7

A. I think it was the game before the -- the big

8 game.

9

Q. And at that game you actually videotaped a

10 portion of the pre-game ceremonies; is that correct?

11

A. I did.

12

Q. Okay. And what was your purpose of videotaping

13 the pre-game ceremonies?

14

A. To make a record.

15

Q. Make a record of what, ma'am?

16

A. Of the prayer. It was announced that there was

17 golng to be a prayer in plenty of sufficient time to

18 get a camera out and record it.

19

Q. And who announced that there would be a prayer?

20

A. The same person who was making the general

'

21 announcements for the game.

22

Q. The announcer

the

23

A. The announcer.

24

Q. -- football --

25

A. The announcer.

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Case 5:11-cv-00422-FB Document 98-5 Filed 12/09/11 Page 20 of 26
Christa Schultz, et a] Vs. Medina Valley Independent School District

Christa Schultz I l/4/20 ll

Page 102

1 administrators and then eventually up to the Board of

2 Trustees?

3

A. We looked into -- no, I was not aware of that.

4

Q. Okay.

5

A. I'm not sure that's entirely the case in this

6 situation.

7

Q. And I think -- did you tell me earlier you have

8 not been involved in any other lawsuits?

9

A. That's correct.

10

Q. Have you ever been involved in any type of

11 administrative complaints or grievances, anything like

12 that?

13

A. No. I -- the only -- no.

14

Q. Okay. And so, did you ever bring your concerns

15 regarding prayer either at football games or at

16 graduation to the attention of the Board of Trustees

17 for Medina Valley Independent School District?

18

A. No.

19

Q. Have you ever attend -- attended a board

20 meeting?

21

A. No.

22

Q. Have you ever attended a faculty convocation?

23

A. No.

24

Q. Have you ever attended any type of faculty

25 meetings?

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Case 5:11-cv-00422-FB Document 98-5 Filed 12/09/11 Page 21 of 26
Christa Schultz, et al Vs. Medina Valley Independent School District

Christa Schultz 11/4/2011

1

A. Parent-teacher, parent -- PTA.

Page 103

2

Q. Okay. And did you hear any type of religious

3 speech at -- at those meetings?

4

A. Not that I recall.

5

Q. Are there any other instances ln which you were

6 exposed to religious utterances that you haven't

7 described for me already today in your deposition?

8

A. I don't believe so. I think we've covered

9 everything.

10

Q. Do you know what the FCA is?

11

A. No.

12

Q. Have you ever heard of the organization

13 referred to as the ''Fellowship of Christian Athletes''?

14

A. Yes.

15

Q. Have you ever attended a meeting of the

16 Fellowship of Christian Athletes?

17

A. No.

18

Q. Have you ever attended any type of sports

19 banquets at Medina Valley Independent School District?

20

A. I -- I don't think so.

21

Q. You mentioned the one award ceremony that you

22 attended ln which Sarah Braddy received an award. Have

23 you ever attended any other type of award ceremonies?

24

A. No.

25

Q. Now, did -- did either of your sons play sports

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Christa Schultz, et a! Vs. Medina Valley Independent School District

Christa Schultz I 114/2011

1 at Medina Valley?

Page 104

2

A. Yes.

3

Q. And in the context of those sporting events

4 well, first of all, what -- with respect to Trevor,

5 what sports did he participate in?

6

A. Soccer.

7

Q. During Trevor's soccer games or practices, did

8 you ever observe any type of religious activity in

9 connection with those events?

10

A. Yes.

11

Q. And what did you witness?

12

A. I witnessed the players all gathered together

13 near the end of the field, and I mentioned to Dan that

14 they were having a huddle like football, and he said,

15 no, they were praying, and Trevor confirmed that.

16

Q. Okay. Do you -- you could not hear anything

17 that was said?

18

A. I could not.

19

Q. Were there any employees of Medina Valley

20 Independent School District who were participating in

21 that prayer by the players?

22

MR. LIPPER: Object to the form.

23

A. I was not close enough to tell whether the

24 coach was participating or not.

25

Q. (By Mr. Wood) Okay. Do you know what the

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Christa Schultz, et a! Vs. Medina Valley Independent School District

Christa Schultz 11/4/2011

Page 105

1 meet-at-the-pole event is?

2

A. Meeting at the flag pole after school?

3

Q. Yeah. Well, I -- there's just an event

4 referred to as a ''meet-at-the-pole'' event.

5

A. I don't know exactly what that means.

6

Q. I should back up. I guess I --

7

A. Except just most vaguely.

8

Q. I jumped forward. Were there any other sports

9 that -- that your children participated in besides

10 Trevor's soccer participation?

11

A. No.

12

Q. Did you -- did you attend other sporting events

13 besides the football games and Trevor's soccer

14 participation?

15

A. No.

16

Q. Do you feel pretty confident, then, that you

17 have told me about all the religious utterances that

18 you would have been exposed to?

19

A. I believe so.

20

Q. Do you know who Fletcher Turcato is?

21

A. He was the vice principal.

22

Q. Did you have any interaction with Mr. Turcato?

23

A. I've spoken with him on the phone.

24

Q. And what kind of a -- what kind of a working

25 relationship did you have with Mr. Turcato? Did

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Case 5:11-cv-00422-FB Document 98-5 Filed 12/09/11 Page 24 of 26
Christa Schultz, et a! Vs. Medina Valley Independent School District

Christa Schultz 1!/4/20 II

Page 129
1 -- you -- you've never been personally present for when

2 Mr. Tyler has made any type of religious speaker during

3 announcements?

4

A. That is correct.

5

Q. That was poorly stated again. Any -- any type

6 of religious

7

A.

I --

8

Q. Yeah, I know. Thank goodness you're able to

9 read my mind. All right. On paragraph number --

10 number 16, you learn from your son, Corwyn, and his

11 friends that teachers have told students they will,

12 quote, "pray for you''?

13

A. Correct.

14

Q. You've not ever personally witnessed anything

15 like that; have you?

16

A. I have not.

17

Q. Okay. And then, you also learned that when

18 separating male and female student engaging in public

19 display of affection, that persons have asked to make

20 sure to leave a little room for Jesus between you?''

21 Where -- where did you obtain that information?

22

A. From my husband and my son.

23

Q. Do you consider that to be a religious remark?

24

A. Yes, I do.

25

Q. You don't consider that just to be a joke?

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Christa Schultz, et a] Vs. Medina Valley Independent School District

Christa Schultz 11/4/2011

Page 156

1 one that located this document from the internet and

2 printed it out?

3

A. I am not.

4

Q. Okay. Do you know who was?

5

A. I believe Danny found this on the internet.

6

Q. I take it you never attended any new teacher

7 luncheons; is that correct?

8

A. That is correct.

9

Q. And some questions have been asked about this

10 document. The title -- or the print above the pictures

11 on the first page says, ''For the fourth consecutive

12 year, the Chamber'' -- and I take it that's the Chamber

13 of Commerce

14

MR. LIPPER: Object to the form.

15

Q. (By Mr. Wood) -- is that correct?

16

A. I don't know.

17

Q. You don't know -- ''sponsored the new teacher

18 luncheon to welcome new teachers at Medina Valley ISD

19 and St. Louis Catholic School.'' Do you know whether or

20 not both -- the teachers from both of those

21 institutions were honored at the same luncheon?

22

A. I do not know.

23

Q. Do you know anything else about that luncheon

24 that's pertinent to this lawsuit?

25

MR. LIPPER: Object to the form.

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Christa Schultz, et al Vs. Medina Valley Independent School District

Christa Schultz 11/4/2011

1

A. I do not.

Page 157

2

Q. (By Mr. Wood) If you'll turn your attention to

3 Deposition Exhibit Number 8, these appear to be some

4 items of correspondence. The first page Bates stamped

5 Schultz 333, had you seen this item before?

6

A. Yes.

7

Q. And do you know who sent this item?

8

A. I do not. It came from a fake address.

9

Q. From a fake address?

10

A. Yes. Or it was unlisted. One of them was from

11 a fake address. This one, I believe, had no address.

12

Q. Okay. And then -- the next page, then, of

13 Deposition Exhibit Number 8 is Bates stamped Schultz

14 340, and have you seen that item before?

15

A. Yes.

16

Q. Do you know who Montgomery is?

17

A. I do not and I believe that is the one that is

18 a fake address. There's a

there was a fake address

19 and then no address. This

this was the fake

20 address. It's a real address. It comes from a library

21 or some public building. It's not an individual home

22 address.

23

Q. Okay. And -- and how do you know that?

24

A. I looked it up.

25

Q. Finally, looking at the last page of that

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Case 5:11-cv-00422-FB Document 98-6 Filed 12/09/11 Page 1 of 25 1

1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

2

SAN ANTONIO DIVISION

3

4 CHRISTA SCHULTZ, et al

*

Plaintiffs

*

5

6
vs.
7

* CIVIL ACTION NO. 5:11-CV-422

8

9 MEDINA VALLEY INDEPENDENT *

SCHOOL DISTRICT,

*

10

Defendant.

*

11

12

13

14
ORAL DEPOSITION
15
OF
16
DANIEL C. SCHULTZ
17
NOVEMBER 2, 2011
18

19

20

21

22

23

24

E:X~UBIT " f-\- 4 ''

25

EDDIE MORRIS - COURT REPORTERS, INC.
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Case 5:11-cv-00422-FB Document 98-6 Filed 12/09/11 Page 2 of 25
2

1

AP P EARANC E S

2

3 MR. GREGORY M. LIPPER

LITIGATION COUNSEL

4 AMERICANS UNITED FOR

SEPARATION OF CHURCH

5 AND STATE

"

1301 K STREET NW, SUITE 850E

6 WASHINGTON, DC 20005

FOR THE PLAINTIFFS

7

8 WALSH, ANDERSON, BROWN,

GALLEGOS & GREEN, P.C.

9 ATTORNEYS AT LAW

100 N.E. LOOP 410, SUITE 900

10 SAN ANTONIO, TEXAS 78216

BY: MR. D. CRAIG WOOD AND

11

MS. STACY TUER CASTILLO

FOR THE DEFENDANT

12
13 DANIEL C. SCHULTZ

WITNESS

14
15 BECKY A. OLSON
16

CERTIFIED SHORTHANt REPORTER

17

18

19

ORAL ANSWERS AND DEPOSITIONS of the witness,

20 DANIEL C. SCHULTZ, who resides in Rio Medina, Medina

·21 County, Texas, in answer to questions propounded to him

22 in the above styled and numbered cause, taken on behalf 23 of the Defendant, before BECKY A. OLSON, a Certified

24 Shorthand Reporter in and for the State of Texas, on 25 November 2, 2011, in the offices of The Tower Life

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Case 5:11-cv-00422-FB Document 98-6 Filed 12/09/11 Page 3 of 25
20
D. SCHULTZ - BY MR. WOOD

10:01:20 10:01:22 10:01:24 10:01:24 10:01:27 10:01:29 10:01:31 10:01:34 10:01:35 10:01:38 10:01:41 10:01:46 10:01:56 10:02:00 10:02:03 10:02:05 10:02:09 10:02:09 10:02:10 10:02:11 10:02:11 10:02:13 10:02:13 10:02:17 10:02:20

1

A. He's a friend of Corwyn's.

2

Q. Is he a current or former student?

3

A. Former.

4

Q. And what information -- when did your

5 conversation or conversations with Mr. Fly take place?

6

A. Over the summer.

7

Q. And what information did he provide you with

8 respect to the lawsuit?

9

A. None.

10

Q. What were your conversations with Mr. Fly then?

11

A. General this is what's going on.

12

Q. Before we move on let me just ask you about

13 these particular things. With respect to crosses on

14 teachers' walls, have you ever observed that yourself?

15

A. Not on a teacher's wall.

16

Q. What -- have you observed crosses on someone

17 else's wall?

18

A. Chris Martinez' wall.

19

Q. Any others?

20

A. No.

21

Q. Did you observe that personally or did you --

22

A. Yes.

23

Q. As far as prayers that may have taken place

24 with respect to the soccer team, were you ever present

25 to witness that?

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Case 5:11-cv-00422-FB Document 98-6 Filed 12/09/11 Page 4 of 25
21
D. SCHULTZ - BY MR. WOOD

10:02:22 10:02:23 10:02:26 10:02:28 10:02:29 10:02:33 10:02:33 10:02:34 10:02:36 10:02:39 10:02:43 10:02:44 10:02:51 10:02:54 10:02:55 10:02:55 10:02:59 10:03:00 10:03:03 10:03:03 10:03:05 10:03:07 10:03:11 10:03:12 10:03:14

1

A. No.

2

Q, And have you ever been present when morning

3 announcements were given?

4

A. No.

5

Q. Have you ever been a party to a lawsuit before,

6 Mr. Schultz?

7

A. No.

8

Q. Have you ever been a party to a grievance or

9 some sort of administrative complaint?

10

MR. LIPPER: Object to the form.

11

A. No.

12

Q. (BY MR. WOOD) Have you ever had any type of

13 license or certification that has been suspended or

14 revoked?

15

A. No.

16

Q. Have you ever been arrested?

17

A. Yes.

18

Q. How many times have you been arrested?

19

A. Once.

20

Q. When was that?

21

A.

1989.

22

Q. Where did that arrest take place?

23

A. Izmir, Turkey.

24

Q. How do you spell Izmi r?

25

A. I-Z-1-M-I-R.

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Case 5:11-cv-00422-FB Document 98-6 Filed 12/09/11 Page 5 of 25

43 D. SCHULTZ - BY MR. WOOD

10:34:10 10:34:14 10:34:17 10:34:21 10:34:23 10:34:26 10:34:30 10:34:38

- 1 be, but I don't see it. If I see proof, then I -

2 whereas an atheist just says there is nothing.

3

Q. When you say you conducted research regarding

4 religions, how did you go about that?

5

A. I checked out books from the library.

6

Q. Do you recall when you undertook this research?

7

A. I believe we were in South Dakota.

8

Q. And did you pursue that research after you 1eft

10:34:44

9 South Dakota as well?

10:34:45 10:34:45 10:34:51 10:34:57 10:35:00 10:35:06 10:35:06

10

A. No.

11

Q. All right. I'd 1ike to talk to you about

12 Medina Valley now for a moment. Have you ever seen any

13 types of religious objects or religious symbols or

14 religious icons on school district property at Medina

15 Valley Independent School District?

16

MR. LIPPER: Object to the form.

10:35:08 10:35:09 10:35:10 10:35:15

17

A. Yes.

18

Q. (BY MR. WOOD) And what have you seen?

19

A. There was the cross in Mr. Martinez' office.

20 Also seen that on Utube.

10:35:19 10:35:21 10:35:31

21

Q. Anything else?

22

A. I have seen pictures of a cup that advertises a

23 1ocal church in Castroville that was used as a hall

10:35:34 10:35:36

24 pass.

25

Q.

Do ~ou know who took that pi.cture?

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Case 5:11-cv-00422-FB Document 98-6 Filed 12/09/11 Page 6 of 25
44
D. SCHULTZ - BY MR. WOOD

10:35:39 10:35:41 10:35:45 10:35:52 10:35:55 10:35:56 10:36:01 10:36:04 10:36:06 10:36:10 10:36:14 10:36:15 10:36:20 10:36:20 10:36:23 10:36:25 10:36:26 10:36:27 10:36:35 10:36:39 10:36:41 10:36:49 10:36:51 10:36:52 10:36:58

1

A. I believe Corwyn did.

2

Q. And I take it that you don't know anything

3 about the circumstances as to who may have adopted that

4 cup, if you wi 11 , for use as a hall pass?.

5

A. No, I don't.

6

Q. And besides the pictures of the cup and the

7 cross in Mr. Martinez' office, any other religious

8 symbols or icons?

9

A. I've seen a picture of the placard that had the

10 Psalm on it outside Mr. Turcato's window facing into

11 the student hallway.

12

Q. And did Corwyn 1i kewi se take that picture?

13

A. Yes.

14

Q. And you never observed the plaque yourself?

15

A. I did not see the plaque myself.

16

Q. Any others?

17

A. No.

18

Q. Have you ever seen any type of religious text

19 at Medina Valley Independent School District?

20

A. No.

21

Q. Have you ever heard any type of - - let me back

22 up. Any type of religious posters?

23

A. No.

24

Q. So, in summary you've seen a picture of

25 Mr. Turcato's ~lague, ~ou've actuall~ witnessed

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45
D. SCHULTZ - BY MR. WOOD

10:37:02 10:37:05 10:37:08 10:37:09 10:37:11 10:37:14 10:37:17 10:37:18 10:37:27 10:37:30 10:37:44 10:37:53 10:37:53 10:37:57 10:37:58 10:38:00 10:38:06 10:38:09 10:38:14 10:38:17 10:38:17 10:38:19 10:38:19 10:38:25 10:38:29

1 Mr. Martinez' cross. And tell me about the

2 circumstances in which you witnessed Mr. Martinez'

3 cross.

4

MR. LIPPER: Object to the form.

5

A. We had a meeting with Mr. Martinez in his

6 office.

7

Q. (BY MR. WOOD) When was that?

8

A. I believe it was February 2010.

9

Q. And what was the purpose of that meeting?

10

A. To discuss Principal Tyler and the attendance

11 lady had made an offensive comment towards Corwyn,

12 Ms. Willing.

13

Q. Who else was present during the meeting besides

14 yourself and Mr. Martinez?

15

A. My wife, Christa.

16

Q. What did you do when you observed the cross?

17

A. Nothing.

18

Q, Did you express to Mr. Martinez that you found

19 that to be unsatisfactory in some way?

20

A. No.

21

Q. Did you complain to anyone else?

22

A. No.

23

Q. All right. So, other than the picture of

24 Mr. Turcato's plaque, the picture of the cup and

25 Mr. Martinez' cross, is it fair to say that you have

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61
D. SCHULTZ - BY MR. WOOD

11:06:47 11:06:50 11:06:51 11:06:52 11:06:55 11:06:56 11:06:56 11:07:09 11:07:15 11:07:18 11:07:28 11:07:30 11:07:33 11:07:36 11:07:37 11:07:37 11:07:40 11:07:44 11:07:45 11:07:45 11:07:51 11:07:54 11:07:55 11:07:57 .11:07:59

1

Q. And did you have any conversations with that

2 person about why they were moving?

3

A. No.

4

Q. Did they make any kind of remarks to you about

5 why they were moving?

6

A. No.

7

Q. Do you know what FCA is?

8

A. Is that -- is that one of the student groups?

9

Q. Yes. Do you know what it is?

10

A. It's future Christian something.

11

Q. How about Fellowship of Christian Athletes?

12

A. That's it.

13

Q. I take it you were never a member of that

14 organization?

15

A. Correct.

16

Q. Did you ever attend any meetings of the

17 Fellowship of Christian Athletes in Medina Valley

18 Independent School District?

19

A. No.

20

Q. Do you know whether or not Corwyn ever attended

21 any meetings of the Fellowship of Christian Athletes?

22

A. I don't believe so.

23

Q. What about Trevor, did he ever attend any

24 meetings of the FCA?

25

A. He did .

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Case 5:11-cv-00422-FB Document 98-6 Filed 12/09/11 Page 9 of 25
63
D. SCHULTZ • BY MR. WOOD

11:09:24 11:09:26 11:09:30 11:09:31 11:09:39 11:09:42 11:09:48 11:09:51 11:09:52 11:10:01 11:10:02 11:10:08 11:10:11 11:10:13 11:10:16 11:10:26 11:10:32 11:10:35 11:10:43 11:10:44 11:10:48 11:10:48 11:10:57 11:10:58 .11:11:01

1

A.

No.

2

Q. Did he indicate that they actually spoke?

3

A.

No.

4

Q. The school holds scholarship and awards

5 ceremonies. Did you ever attend one of those?

6

A. Yes.

7

Q. When did you attend the scholarship and awards

8 ceremony?

9

A. It would have been 2008 or 2009.

10

Q. Where did it take place?

11

A. In the cafeteria/auditorium.

12

Q. And what was your reason for attending the

13 scholarship and awards ceremony?

14

A. I believe it was in support of Sarah Braddy.

15

Q. Who else attended that ceremony with you?

16

A. My wife, Christa, and Trevor. I don't recall

17 if Corwyn was there or not.

18

Q. How long did the ceremony last?

19

A. I don't recall.

20

Q. Do you know who the speakers were at that

21 ceremony?

22

A. I believe Mr. Tyler spoke at that. That's all

23 I remember.

24

Q. Did Mr. Tyler offer any type of religious

25 remarks?

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64
D. SCHULTZ • BY MR. WOOD

11:11:01 11:11:02 11:11:06 11:11:07 11:11:09 11:11:35 11:11:37 11:11:38 11:11:58 11:11:58 11:12:04 11:12:04 11:12:05 11:12:12 11:12:14 11:12:15 11:12:18 11:12:20 11:12:20 11:12:27 11:12:27 11:12:28 11:12:33 11:12:34 l1 :12:35

1

A. I don't recall.

2

Q. Did anyone offer any type of religious remarks,

3 to your recollection?

4

A. Not to my recollection.

5

Q. And you did not attend the 2010 or 2011

6 graduation ceremonies; ; s that correct?

7

A. Correct.

8

Q. Have you ever been in Officer Sides' office?

9

A. No.

10

Q. Have you ever attended a meeting of the board

11 of trustees?

12

A. No.

13

Q. Do you know whether or not your wife has ever

14 attended a meeting of the board of trustees?

15

A. She has not.

16

Q. Have either of your sons ever attended a

17 meeting of the board of trustees?

18

A. I don't believe so.

19

Q. Have you ever attended any type of faculty

20 convocation or meeting?

21

A. No.

22

Q. And what about new teacher orientation, have.

23 you ever attended one of those? -

24

A. No.

25

Q. Let's talk about football games for a moment.

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Case 5:11-cv-00422-FB Document 98-6 Filed 12/09/11 Page 11 of 25
65 D. SCHULTZ - BY MR. WOOD

11:12:50 11:12:54 11:12:54 11:12:55 11:13:07 11:13:16 11:13:25 11:13:33 11:13:34 11:13:38 11:13:42 11:13:43 11:13:49 11:13:50 11:13:50 11:13:53 11:14:00 11:14:01 11:14:02 11:14:07 11:14:16 11:14:19 11:14:19 11:14:20 .11:14:23

1 How often have you attended football games in Medina

2 Valley?

3

MR. LIPPER: Object to the form.

4

A. In 2008 and 2000 - - 1et me get my dates

5 straight. 2007 was Trevor's freshman year. I believe

6 I attended one game his freshman year. 2008-2009 I

7 went to all the home games.

8

Q. (BY MR. WOOD) Any others?

9

A. And this year I've attended two.

10

Q. In the 2011-2012?

11

A. Yes.

12

Q. And is that all the football games you've

13 attended?

14

A. Yes.

15

Q. Okay. So, during the 2007 school year you say

16 you attended one game. Do you remember which game it

17 was, who the opponent was?

18

A. I do not.

19

Q. Do you reca 11 who attended that game with you?

20

A. It was Trevor and I.

21

Q. Did you hear any type of religious speech at

22 that game?

23

A. Yes.

24

Q, What was the context of the religious speech?

25

A. After the National Anthem there was I believe a

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66
D. SCHULTZ - BY MR. WOOD

11:14:28 11:14:32 11:14:37 11:14:41 11:14:44 11:14:45 11:14:51 11:14:53 11:14:54 11:15:12 11:15:16 11:15:21 11:15:24 11:15:24 11:15:25 11:15:28 11:15:28 11:15:32 11:15:33 11:15:41 11:15:43 11:15:44 11:15:48 11:15:53 11:15:57

1 member of the student council who asked us to remain

2 standing and gave a nondenominational prayer.

3

Q. When you say it was a nondenominational prayer,

4 do you remember what exactly he or she said?

5

A. No.

6

Q. And when you say a nondenominational prayer,

7 describe generally what it was that you recall about

8 that religious speech.

9

A. I recall that at the end of it it was either in

10 your name we pray or -- I guess it started with Lord

11 and then in your name we pray, amen.

12

Q. And do you remember if it was a male or female

13 speaker?

14

A. I do not.

15

Q. Did you complain about that to anyone?

16

A. No.

17

Q. Did you discuss that with Trevor?

18

A. No.

19

Q. Then you said that during the '08-'09 season

20 you attended all the home games?

21

A. Yes.

22

Q. Did someone else attend with you?

23

A. Christa would sometimes go. Well, no, I guess

24

Christa went to probably all of those because Corrie

25 was in the band, so we were there.

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67
D. SCHULTZ - BY MR. WOOD

11:15:59 11:16:02 11:16:04 11:16:10 11:16:11 11:16:12 11:16:16 11:16:23 11:16:29 11:16:31 11:16:34 11:16:37 11:16:44 11:16:46 11:16:51 11:16:52 11:16:59 11:17:01 11:17:01 11:17:04 11:17:06 11:17:12 11:17:13 11:17:15 11:17:19

1

Q. Anyone else?

2

A. Not that I recall.

3

Q. And did you observe any type of religious .

4 remarks during those home games?

5

A. Yes.

6

Q. And on how many occasions?

7

A. I believe - . we didn't always arrive at the

.
8 start of the game, but I believe there were two

- 9 occasions - two or three occasions both seasons that

10 we were at the start of the game and it was very much

11 the same as I've already described.

12

Q. On those two or three occasions, in each

13 instance was it at the beginning of the game?

14

- A. Yes, it's always National Anthem - kids are on

15 the field, National Anthem.

16

Q. Were those - - were those remarks made on each

17 of those two or three occasions by students?

18

A. Yes.

19

Q. And do you recall any of the particulars

20 regarding what they may have said?

21

A. No, other than in your name we pray at the end

22 and amen.

23

Q. Do you remember who the speakers were on those

24 two or three occasions on which religious remarks were

25 made?

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Case 5:11-cv-00422-FB Document 98-6 Filed 12/09/11 Page 14 of 25
68
D. SCHULTZ - BY MR. WOOD

11:17:19 11:17:23 11:17:25 11:17:27 11:17:28 11:17:28 11:17:38 11:17:40 11:17:41 11:17:45 11:17:49 11:17:54 11:17:56 11:17:58 11:18:01 11:18:01 11:18:08 11:18:11 11:18:14 11:18:20 11:18:23 11:18:24 11:18:30 11:18:34 11:18:42

1

A. I believe they were student council members. I

2 don't remember if it was the same person.

3

Q. Do you know if they were male or female or was

4 it a mix?

5

A. I don't remember.

6

Q. Did any school officials offer any type of

7 religious remarks during the football games?

8

A. Not that I recall.

9

Q. And would that same answer be true for the '07

10 game that you attended; did any school officials offer

11 any religious remarks at that event?

12

A. It would be the same answer. I don't recall.

13

Q. And then this current year, the '11 and '12

14 season -- so you did not attend any football games

15 during the '09-'10 or the '10-'11 school years; is that

16 correct?

17

A. It would have been one -- there was one

18 football season we didn't attend any and that would

19 have been the '09-'10 year.

20

Q. Did you attend any during the '10-'11 school

21 year?

22

A. I'm sorry, I've got my dates mixed up. No, we

23 did not go to any of the '10-'11 year.

24

Q. So, it sounds to me like you missed two years

25 there, '09-'10 and '10-'11?

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69
D. SCHULTZ - BY MR. WOOD
A. Correct. Q. All right. So, no games at all during that period of time, correct? A. Correct. Q. Okay. And so during the current school year you've attended two games. Do you remember the opponents during those two games? A. Boerne Champion and Uvalde. Q. And did anyone attend the Boerne Champion game with you? A. Christa did. Q. And did anyone attend the Uvalde game with you?
A. No.
Q. When you attended the Boerne game, were there any type of religious remarks made during that game?
A. Yes. Q. And by whom were those religious remarks made? A. I believe it was Jana Bippert. Q. And is Jana Bippert a student? A. Yes. Q. And what were her remarks? A. A nondenominational prayer. Q. Do you remember any of the substance of what she said? A. Remember our troops, especially those overseas.
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75
D. SCHULTZ - BY MR. WOOD

11:25:56 11:26:06 11:26:09 11:26:10 11:26:12 11:26:17 11:26:19 11:26:21 11:26:22 11:26:23 11:26:26 11:26:27 11:26:27 11:26:30 11:26:32 11:26:33 11:26:37 11:26:39 11:26:39 11:26:53 11:26:53 11:34:08 11:34:08 11:34:10 .11:34:14

1

Q. So, football games and graduations are the only

2 instances in which you experienced religious speech, is

3 that correct, personally?

4

A. Yes.

5

Q. Do you know if the school district has a

6 student/parent handbook?

7

A. Yes, they do.

8

Q. And did you receive a copy of that?

9

A. Yes, I did,

10

Q. And did you sign for receipt of the

11 student/parent handbook?

12

A. Yes.

13

Q. Do you know whether or not the student/parent

14 handbook contains a dress code?

15

A. It does.

16

Q. Do you know whether or not that dress code

17 indicates that students may not have rips in their

18 jeans?

19

A. That is correct.

20

MR. WOOD: Let's go off the record if we may

21 for a moment.

22

(Recess taken from 11:26 until 11:34.)

23

Q. (BY MR. WOOD) I'm handing you what's been

24 marked as Deposition Exhibit Number 1 with copy to

25 counsel and this is the complaint and some attachments

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84
D. SCHULTZ - BY MR. WOOD

11:46:59 11:47:03 11:47:10 11:47:16 11:47:21 11:47:24 11:47:26 11:47:26 11:47:28 11:47:29 11:47:30 11:47:34 11:47:36 11:47:39 11:47:41 11:47:43 11:47:44 11:47:45 11:47:48 11:47:48 11:47:53 11:47:53 11:47:54 11:48:28 11:48:32

1

Q. Have you spoken to Ms. Wi 11 i ng about that?

2

A. No. Christa contacted Mr. Tyler, was referred

3 to Mr. McHazlett. I had a series of e-mail

4 correspondence with Mr. Turcato about the incident.

5

Q. Okay. We'll get to that i n a moment.

6

MR. WOOD: I'm going to object as

7 nonresponsive.

8

Q. (BY MR. WOOD) My particular question is have

9 you spoken to Ms. Wi 11 i ng about it?

10

A. I have not.

11

Q. And then the remainder of paragraph number 19

12 says, "When separating a male and female student

13 engaging in a public display of affection, the remark

14 was made 'to make sure leave a little room for Jesus

15 between you'". Do you have any personal knowledge

16 about that situation?_

17

A. I do not.

18

Q. Do you consider that to be a religious remark?

19

A. Yes.

20

Q. Do you believe that that endorses religion

21 somehow?

22

A. Yes.

23

Q. If we can, I'd 1ike to take a look at some of

24 the e-mail s now.

25

MR. WOOD: I'm going to note for the record

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86
D. SCHULTZ - BY MR. WOOD

11:49:57 11:49:59 11:50:01 11:50:04 11:50:09 11:50:12 11:50:13 11:50:13 11:50:30 11:50:34 11:50:39 11:50:42 11:50:51 11:50:54 11:50:58 11:51:02 11:51:05 11:51:09 11:51:10 11:51:12 11:51:17 11:51:20 11:51:20 11:51:24 .11:51:25

1

Q. (BY MR. WOOD) You'll have to answer orally.

2

A. I have no knowledge other than from counsel.

3

Q. Again, I won't ask you to reveal the contents

4 of any information you received from your attorney, but

5 separate and apart from that, do you have knowledge as

6 to who Pat Doe is?

7

A. No.

8

Q. On the first page of Deposition Exhibit Number

9 2, paragraph number 1 alleges that for years the

10 district has unlawfully promoted religion generally and

11 Christianity specifically at school and
12 school-sponsored events -- activities and events.

13 You've described for me religious remarks made at two

14 graduation ceremonies and some religious remarks made

15 at football games. Other than that, do you have any

16 personal knowledge of other instances in which the

17 school may have promoted religion generally, and again,

18 I'm talking about your personal knowledge?

19

A. The pictures I've seen that we already

20 discussed, the cross in Mr. Martinez' office.

21

Q. And the pictures will be the picture of the

22 cup?

23

A. The cup and the Psalm that was on the window

24 facing out.

25

Q. But }!OU eersonalli: did not see Mr. Turcato's

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87 D. SCHULTZ - BY MR. WOOD

/ .. 11:51:28 11:51:28 11:51:29 11:51:31 11:51:32 11:51:36 11:51:42 11:51:43 11:51:44 11:51:47 11:51:48 11:51:52 11:51:53 11:51:53 11:51:59 11:52:03 11:52:06 11:52:08 11:52:11 11:52:13 11:52:14 11:52:19 11:52:21 11:52:23 11:52:27

1 elague?

2

A. No.

3

Q. And you personally did not see the cup?

4

A. Correct.

5

Q. And so as far as you personally having observed

6 or been a part, we're talking two graduation ceremonies

7 and some football games; is that correct?

8

A. Correct.

9

Q. And nothing besides that?

10

A. Correct.

11

Q. I'm sorry, and the cross that you observed.

12 Anything besides that?

13

A. No, sir.

14

Q. The allegation is made in paragraph 2 that

15 religion has been promoted by individuals at all levels

16 of the school district's hierarchy from top
17 administrators. What knowledge do you have - - what

18 personal knowledge do you have about religion being

19 promoted by a top administrator?

20

A. I have no personal knowledge.

21

Q. With respect to personal knowledge about the

22 principal promoting religion, what personal knowledge

23 do you have of that?

24

A. From hearing him speak at the graduation.

25

Q, 2008?

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105
D. SCHULTZ - BY MR. WOOD

12:20:17 12:20:23 12:20:26 12:20:30 12:20:34 12:20:37 12:20:41 12:20:42 12:20:48 12:20:51 12:20:53 12:20:58 12:21:01 12:21:09 12:21:14 12:21:19 12:21:24 12:21:27 12:21:32 12:21:37 12:21:38 12:21:39 12:21:45 12:21:47 12:21:50

1

A. No, it's not. I had forgotten - - there were

- 2 games - Corwyn would stay after school. He did not

3 drive and so dad, can you come pick me up at the

4 football game and so at those games I would go pick him

5 up quite often. I'd go at half time because you could

6 get in free and stay for the end of the game and then

7 take Corwyn home.

8

Q. And so is it fair to say that of the fall 2007

9 games only one game do you recall having heard some

10 sort of religious speech?

11

A. Okay. I've got to make sure I have my dates

12 right now. I can tell you Trevor's freshman year I

13 went to one game. Trevor graduated i n 2009, but he
14 onl~ - - he came in as a sophomore, so that would have
15 been 2006. Corwyn's freshman year he was in the band.

16 I attended all those games. Corwyn's sophomore year he 17 was in the band. I attended all those games, so in

18 2007-2008 I attended all the home games. 2006,

19 Trevor's freshman year, I attended one. In 2009 I

20 attended approximately half of them picking Trevor up

21 - - or Corwyn up.

22

Q. All right. As you can imagine we're now going

-- 23 to need to go back and look at these because and I

24 understand about confusion of dates, but when you. said

25 you only attended one game, that was actually making

EDDIE MORRIS - COURT REPORTERS, INC.
92 Trailcrest, San Antonio, Texas 78232
Telephone (210) 698-2727 Telecopier (210) 698-5556

Case 5:11-cv-00422-FB Document 98-6 Filed 12/09/11 Page 21 of 25
106
D. SCHULTZ - BY MR. WOOD

12:21:54 12:21:57 12:22:00 12:22:01 12:22:04 12:22:05 12:22:06 12:22:09 12:22:10 12:22:15 12:22:18 12:22:20 12:22:22 12:22:23 12:22:27 12:22:28 12:22:37 12:22:39 12:22:40 12:22:45 12:22:48 12:22:52 12:22:54 12:22:54 .12:22:56

1 reference to the 2006 school year; is that correct?

2

A. Yes, that's correct. Trevor's freshman year I

3 attended one game.

4

Q. All right. And did you hear any religious

5 speech at that game?

6

A. Yes.

7

Q. And by whom was that speech given?

8

A. It was by a student.

9

Q. And do you recall any of the particulars

10 regarding that student speech?

11

A. I do not.

12

Q. Do you know who the student was?

13

A. I do not.

14

Q. And do you know how the student was selected?

15

A. I do not.

16

Q. So, now it looks like that the 2007-2008 season

17 you attended all the home games?

18

A. That is correct.

19

Q. At how many of those games -- previously you

20 had described that on two or three occasions you had

21 heard students engage in religious speeches. Is that

22 the season in which that was true?

23

A. Yes, sir.

24

Q. And you don't have any recollection of who

25 those students were?

EDDIE MORRIS - COURT REPORTERS, INC.
92 Trailcrest, San Antonio, Texas 78232
Telephone {210) 698-2727 Telecopier {210) 698-5556

Case 5:11-cv-00422-FB Document 98-6 Filed 12/09/11 Page 22 of 25
107
D. SCHULTZ - BY MR. WOOD

12:22:57 12:22:58 12:22:59 12:23:01 12:23:01 12:23:04 12:23:05 12:23:05 12:23:11 12:23:13 12:23:14 12:23:19 12:23:21 12:23:23 12:23:28 12:23:29 12:23:30 12:23:32 12:23:33 12:23:33 12:23:36 12:23:36 12:23:37 12:23:45 )2:23:47
"

1

A. Correct.

2

Q. You don't have any recollection of the

3 particulars of their speeches?

4

A. Correct.

5

Q. And you don't have any personal knowledge about

6 how they were selected?

7

A. Correct.

8

Q. All right. And then the '08-'09 year, did you

9 also attend all the home games that year?

10

A. Yes.

11

Q. And during how many of those games did you hear

12 any type of religious speech?

13

A. It would have been two or three.

14

Q. Do you have any recollection of who the

15 speakers were?

16

A. I do not. They were students.

17

Q. Do you recall any of the particulars of the

18 speeches that they gave?

19

A. I do not.

20

Q. And do you know anything about how they were

21 selected?

22

A. I do not.

23

Q. The '09-'10 school year you didn't attend any?

24

A. I did -- that was the I did go to -- that

25 was the part I forgot. I did go to pick up Corwyn.

EDDIE MORRIS - COURT REPORTERS, INC.
92 Trailcrest, San Antonio, Texas 78232
Telephone (210) 698-2727 Telecopier (210) 698-5556

Case 5:11-cv-00422-FB Document 98-6 Filed 12/09/11 Page 23 of 25

108
D. SCHULTZ - BY MR. WOOD

12:23:50 12:23:52 12:23:56 12:23:56 12:23:57 12:24:02 12:24:02 12:24:03 12:24:07 12:24:08 12:24:15 12:24:21 12:24:24 12:24:28 12:24:29 12:24:30 12:24:31 12:24:37 12:24:39 12:24:42 12:24:46 12:24:49 12:24:54 12:24:59
..,. .12:25:03

1 Usually I'd arrive at half time.

2

Q. Did you hear any religious speech at any of the

3 games that you attended during the '09-'10 year?

4

A. I did not.

5

Q. And during '11-'12 you said you've attended two

6 games?

7

A. Correct.

8

Q. Have you attended any of the away games?

9

A. No.

10

Q. Paragraph 14 says, "At all of the home football

11 games that I attended in fall 2007, 2008, and 2009, the

12 pregame ceremonies included a prayer delivered over the

13 public-address announcement by a student". That's not

14 accurate, is it?

15

MR. LIPPER: Object to the form.

16

A. Correct.

17

Q. (BY MR. WOOD) Would your recollection today be

18 the accurate description of your personal knowledge

19 about those games?

20

A. At all the games that I was present for pregame

21 ceremonies there was a prayer.

22

Q. Well , now let's clear that up because during

23 2007-2008 you said you attended all home games, but you

24 only had two or three occasions where you heard some

25 relil.JiOUS remarks; is that an accurate summar:z::: of lOUr

EDDIE MORRIS - COURT REPORTERS, INC.
92 Trailcrest, San Antonio, Texas 78232
Telephone (210) 698-2727 Telecopier (210) 698-5556

Case 5:11-cv-00422-FB Document 98-6 Filed 12/09/11 Page 24 of 25
109 D. SCHULTZ - BY MR. WOOD

12:25:06 12:25:06 12:25:07 12:25:11 12:25:13 12:25:15 12:25:19 12:25:22 12:25:25 12:25:25 12:25:25 12:25:28 12:25:30 12:25:30 12:25:38 12:25:54 12:26:01 12:26:04 12:26:08 12:26:09 12:26:10 12:26:12 12:26:24 12:26:25 !2:26:25

1 testimony?

2

A. That is correct.

3

Q. A11 right. And was there something -- did you

4 miss the pregame ceremonies for the remainder of those?

5

A. Correct.

6

Q. And then 2008-2009 you said you attended all

7 home games and again, you said there would have been

8 two or three games at which you heard religious

9 remarks?

10

A. Correct.

11

Q. And did you miss the remaining - - the opening

12 for the remaining - -

13

A. Yes.

14

Q. - - home games. I' 11 show you what's marked

15 Deposition Exhibit 6, a copy to counsel. On paragraph

16 number 4 it's alleged that your wife and you both spoke

17 with the Medina Valley High Schoo 1 counseling 18 department. Do you know with whom your wife spoke?

19

A. I do not.

20

Q. Who did you speak with?

21

A. I don't recall.

22

Q. Did Corwyn end up attending any counseling

23 sessions?

24

A. One.

25

Q. And do you know with whom he attended that

EDDIE MORRIS - COURT REPORTERS, INC.
92 Trailcrest, San Antonio, Texas 78232
Telephone (210) 698-2727 Te1ecopier (210) 698-5556

Case 5:11-cv-00422-FB Document 98-6 Filed 12/09/11 Page 25 of 25
126
D. SCHULTZ - BY MR. WOOD

02:19:31 02:19:35 02:19:40 02:19:45 02:19:48 02:19:53 02:19:55 02:19:59 02:20:02 02:20:03 02:20:06 02:20:09 12:20:13 02:20:16 02:20:18 02:20:19 02:20:22 02:20:22 02:20:24 02:20:26 02:20:30 02:20:31 02:20:33 02:20:36 )2: 20:37
'"·":'"'

1 vehicle. The Bush's Chicken restaurant actually had

2 something on their board, their display board that

3 normally has their specials. I don't remember exactly

4 what it said. Corrie told me about it. I did not see

5 it, but I thought that was a little overboard, also.

6

Q. (BY MR. WOOD) I'm going to show you what's

7 being marked as Deposition Exhibit Number 12, a copy to

8 counsel. Do you know who took that photograph?

9

A. Christa did.

10

Q. And when was this photograph taken?

11

A. That was at the football game against Boerne

12 Champion early October. I don't know the exact date.

13

Q. For what purpose did Christa take this picture?

14

MR. LIPPER: Object to the form.

15

A. I don't know.

16

Q. (BY MR. WOOD) Were you present with her when

17 she took it?

18

A. I was. I pointed out that that was

19 Mr. Stansberry and she took a picture.

20

Q. Did you attend the entire game or did you only

21 attend a portion of the game?

22

A. We only attended a portion of the game.

23

Q. Isn't it true that you only attended the

24 opening ceremonies?

25

A. Yes.

EDDIE MORRIS - COURT REPORTERS, INC.
92 Trailcrest, San Antonio, Texas 78232
Telephone (210) 698·2727 Telecopier (210) 698-5556

Case 5:11-cv-00422-FB Document 98-7 Filed 12/09/11 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

Christa Schultz, eta!., Plaintiffs,
v. Medina Valley Independent School District,
Defendant.

Civil Action No. SA-11-CA-0422-FB
Chief Judge Fred Biery Magistrate Judge Pamela A. Mathy

Plaintiffs' Objections and Responses to Defendant's First Set of Interrogatories Plaintiffs submit the following objections and responses to Defendants First Set
of Interrogatories.
General Objections 1. Plaintiffs object to Defendants Interrogatories to the extent that they are unduly burdensome, request documents not in the Plaintiffs' possession, custody, or control, or are not reasonably calculated to lead to the discovery of admissible evidence. 2. Plaintiffs object to Defendants Interrogatories to the extent that they ask for information or documents protected by the attorney-client privilege, work-product doctrine, or any other privilege. 3. Plaintiffs object to Defendants Interrogatories to the extent that they constitute premature contention interrogatories which ask Plaintiffs prematurely to identify legal claims or theories.

Case 5:11-cv-00422-FB Document 98-7 Filed 12/09/11 Page 2 of 17
4. These responses to Defendant's First Set of Interrogatories are based on information known to the Plaintiffs at this time. Plaintiffs reserve the right to supplement their responses to the extent they become aware of additional information.
Responses Interrogatory No.1: Identify each person answering these Interrogatories, supplying information, or assisting in any way with the preparation of the answers to these Interrogatories. Response:
Plaintiffs object to the extent that this Interrogatory seeks information protected by the attorney-client privilege and the work-product doctrine. Subject to, and without waiving the preceding objections, Plaintiffs respond that Plaintiffs and their counsel were involved in the preparation of these responses. Interrogatory No.2: Identify all documents or tangible items reviewed, consulted, examined, referred to or utilized in any way whatsoever in the preparation of the answers to these Interrogatories. Response:
Plaintiffs object to the extent that this Interrogatory seeks information protected by the attorney-client privilege and the work-product doctrine. Subject to, and without waiving the preceding objections, Plaintiffs respond that any non-privileged documents or tangible items consulted in preparing these responses will be included in Plaintiffs' response to Defendant's request for production number 1.
2

Case 5:11-cv-00422-FB Document 98-7 Filed 12/09/11 Page 3 of 17
Interrogatory No. 3: Identify all persons who you believe to have knowledge of or information about any relevant facts and identify the issues upon or about which you believe they have knowledge or information. This list is not limited to the fact witnesses who will testify at trial, but necessarily includes each such fact witness. The District will object to testimony by any fact witness called by you that is not identified in your original or supplementary responses to this Interrogatory. Response:
Plaintiffs object to the extent this Interrogatory calls for information protected by the attorney-client privilege or the work-product doctrine. Subject to and without waiving these objections, and in addition to the people identified in Plaintiffs' Initial Disclosures and Defendant's Initial Disclosures, Plaintiffs identify the following individuals:
a. David Wurzbach is a 2011 graduate of Medina Valley High School and may have information about Defendant's policies, practices, and customs with respect to the discussion or promotion of religion at Medina Valley High School and schoolsponsored activities and events, including graduation ceremonies. Mr. Wurzbach's phone number is (210) 355-2018. Mr. Wurzbach's address is unknown.
b. Dan Hill is a guidance counselor at Medina Valley High School and may have information about Defendant's policies, practices, and customs with respect to the promotion of religion at Medina Valley High School and school-sponsored activities and events, including graduation ceremonies. Mr. Hill's address and phone number are unknown.
3

Case 5:11-cv-00422-FB Document 98-7 Filed 12/09/11 Page 4 of 17
c. Julie Center is a guidance counselor at Medina Valley High School and may have information about Defendant's policies, practices, and customs with respect to the promotion of religion at Medina Valley High School and school-sponsored activities and events, including graduation ceremonies. Ms. Center's address and phone number are unknown.
d. Alicia Guerin is a 2011 graduate of Medina Valley High School and may have information about Defendant's policies, practices, and customs with respect to the discussion or promotion of religion at Medina Valley High School and schoolsponsored activities and events, including graduation ceremonies. Ms. Guerin's phone number and address are unknown.
e. Anna Johnson is a current employee at Medina Valley High School and may have information about the 2011 graduation ceremony, as well as Defendant's policies, practices, and customs with respect to the promotion of religion at Medina Valley High School and school-sponsored activities and events. Ms. Johnson's address and phone number are unknown.
f. Michael Nesbit is an Assistant Superintendent for the Medina Valley Independent School District and may have information about Defendant's policies, practices, and customs with respect to the promotion of religion at Medina Valley High School and school-sponsored activities and events, including meetings of the Medina Valley Independent School District Board of Trustees. Mr. Nesbit's address and phone number are unknown.
4

Case 5:11-cv-00422-FB Document 98-7 Filed 12/09/11 Page 5 of 17
g. Mason Englemeyer may have information about the 2011 Medina Valley High School graduation ceremony. Mr. Englemeyer's phone number is (210) 364-9019; his address is unknown.
h. Andreas Laven may have information about the 2011 Medina Valley High School graduation ceremony. Mr. Laven's phone number is (210) 422-1359; his address is unknown.
i. Alicia Ramirez is a reporter for the Medina Valley Times and may have information about meetings of the Medina Valley Independent School District Board of Trustees. Ms. Ramirez's phone number is (210) 692-3844; her address is unknown. Interrogatory No. 4: If you or anyone acting on your behalf has obtained statements, declarations or admission in any form from any individual pertaining to the facts of this lawsuit, please identify each individual making such statement, declaration and/or admission. Please note that this Interrogatory seeks only the identity of persons, and not the context of any statements you may claim to be privileged or protected from discovery. Response:
Plaintiffs object on the grounds that the Interrogatory asks for information protected by the attorney-client privilege and the work-product doctrine. Interrogatory No.5: If you are seeking an award of any sum of money, whether by damages or otherwise, state the full amount of money you seek (whether as actual, special, consequential, exemplary or punitive damages) and describe the manner in which the amount was calculated. Your description should include each element of damage or component of recovery that you seek, the amount sought for each element or component, and the manner in which each element or component of the calculation was determined.
5

Case 5:11-cv-00422-FB Document 98-7 Filed 12/09/11 Page 6 of 17
Response: Each Plaintiff seeks nominal damages of $1.00. In addition, if Plaintiffs prevail in
this case within the meaning of 42 U.S.C. § 1988, they will seek reimbursement for attorneys' fees and costs reasonably incurred. Documentation of those fees and costs will be submitted as part of Plaintiffs' fee petition. Interrogatory No. 6 If you have been a named party to any litigation or administrative proceeding of any kind, either prior to or subsequent to the date of the incident that is made the basis of this suit, please state the style, cause number, court, county, and state of such suit and identify (as that term is defined herein) your attorney(s). Response:
Plaintiffs object on the grounds that the Interrogatory is overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Interrogatory No.7 Identify any and all communications, including verbal, electronic, or written communications, between Plaintiffs and Defendant (including Defendant's employees, agents, officials, or trustees) relevant to this lawsuit, including but not limited to any communications concerning religious speech, expression, or viewpoints, graduation ceremonies, or school announcements. Response:
Plaintiffs object that the phrase "relevant to this lawsuit" is unduly vague and requires Plaintiffs to draw a legal conclusion. Subject to, and without waiving the preceding objection, Plaintiffs identify the following communications that related to the
6

Case 5:11-cv-00422-FB Document 98-7 Filed 12/09/11 Page 7 of 17
promotion of or discussion about religion in school or at school-sponsored activities and events:
a. During fall2006, Danny and Christa Schultz communicated with officials at the Medina Valley Middle School about religious statements made by the teacher of Corwyn Schultz's leadership class.
b. Officer Sides and Corwyn Schultz had a conversation, likely during the 2007-08 school year, in which Officer Sides asked Corwyn about his religion and gave him a religious pamphlet.
c. Between 2007 and 2009, Corwyn Schultz and student leaders of the band had a series of conversations about the requirement that Corwyn stand during prayers at Medina Valley High School football games.
d. In October 2008, Corwyn Schultz had an oral conversation with Toby Tyler regarding Mr. Tyler's practice of delivering prayers and religious messages over the loudspeaker. Throughout October 2008, Danny and Christa Schultz communicated orally and in writing about Mr. Tyler's prayers and religious messages with Toby Tyler, James Stansberry, Fletcher Turcato, and Dwight McHazlett.
e. After Corwyn Schultz expressed concerns in October 2008 about Mr. Tyler's religious speech over the loudspeaker, Corwyn was assigned to a counseling session with an unknown school official. Danny and Christa Schultz subsequently had a phone conversation about the counseling assignment with an unknown School District official.
7

Case 5:11-cv-00422-FB Document 98-7 Filed 12/09/11 Page 8 of 17
f. During the 2010-11 school year, Corwyn Schultz had a discussion with Ms. Roessler about a prayer for a teacher that Toby Tyler was delivering over the loudspeaker.
g. During the fall of 2009, Corwyn Schultz had a series of communications with Patti Maldondo concerning schoolwork of his that had been lost. In November 2009, Danny Schultz communicated over email with Fletcher Turcato about Ms. Maldonado and Corwyn's missing work; at least one such email from Mr. Turcato contained a religious reference.
h. During the 2009-10 school year, Corwyn Schultz and Patti Maldonado had a conversation about Ms. Maldonado's statement, in response to a student's question about whether students would get in trouble for saying "Merry Christmas," that she was a Christian.
i. In February 2010, Ms. Willing told Corwyn Schultz that she would "pray" for him because he was wearing a President Obama t-shirt.
j. Between February 2010 and June 2011, Corwyn Schultz periodically spoke to Toby Tyler about Mr. Tyler's practice of delivering prayers and religious messages over the loudspeaker.
k. Starting in February 2010, Corwyn, Danny, and Christa Schultz had a series of discussions in person, over the phone, and over email, with Toby Tyler, James Stansberry, and/ or Chris Martinez about the incident with Ms. Willing, Mr. Tyler's delivery of prayers and religious messages over the loudspeaker, the retaliation against Corwyn Schultz for expressing concerns about the incident with Ms. Willing and Mr.
8

Case 5:11-cv-00422-FB Document 98-7 Filed 12/09/11 Page 9 of 17
Tyler's prayers and religious messages, and the inclusion of prayers at Medina Valley High School graduation ceremonies.
I. In fall2010, Corwyn Schultz had a conversation with Fletcher Turcato about a religious display in Mr. Turcato's office.
m. In April and May 2011, Corwyn Schultz had a series of conversations with Toby Tyler, and a conversation with Holly Haby, about the inclusion of prayer at the 2011 graduation ceremony. Interrogatory No.8 Identify all Medina Valley Independent School District graduation ceremonies each Plaintiff has attended, including location, date and time. Response:
All four Plaintiffs attended the 2008 and 2009 Medina Valley High School graduation ceremonies. Trevor Schultz also attended the 2011 Medina Valley High School graduation ceremony. All graduation ceremonies were held at Medina Valley High School. Interrogatory No.9 Identify any and all written or oral statements made to any of the Plaintiffs or in Plaintiffs' presence by Medina Valley Independent School District officials or employees that were religious in nature, including who was present at the time of the statement, who made the statement, to whom the statement was directed, the content of the statement, the location of the speaker, the location of the Plaintiff, and the date and time the statement was made.
9

Case 5:11-cv-00422-FB Document 98-7 Filed 12/09/11 Page 10 of 17
Response: Plaintiffs were present for the following written and oral statements that were
religious in nature: a. In fall or winter of the 2006-07 school year, Coach Payne encouraged members of
the soccer team to attend that day's meeting of the Fellowship of Christian Athletes. Trevor Schultz was present for Coach Payne's statement. Trevor Schultz was also present at that day's meeting of the Fellowship of Christian Athletes when a faculty member led the meeting in a Christian prayer.
b. Before most if not all soccer games beginning in 2006 until approximately 2009, Coach Payne gathered the team in a circle and directed a student to lead a Christian prayer. Trevor Schultz was present as a member of the team for most of these prayers.
c. During the 2007-2008 school year, Officer Sides asked Corwyn Schultz about his religious beliefs and then gave him a Christian brochure.
d. Toby Tyler delivered prayers and religious remarks over the Medina Valley High School loudspeaker from fall2007 until approximately October 2008. Trevor Schultz and Corwyn Schultz were present in school for most if not all of these armouncements.
e. At the 2008 Medina Valley High School graduation ceremony, Toby Tyler delivered Christian remarks. All four Plaintiffs were present.
f. Towards the end of the 2008-09 school year, Nicol Houston prayed for the class and read from the Bible. Trevor Schultz was present in class for this statement.
10

Case 5:11-cv-00422-FB Document 98-7 Filed 12/09/11 Page 11 of 17
g. During summer 2008, Messrs. Galvez and Riley made religious statements at band camp. Corwyn Schultz was present.
h. In fall2009, Danny Schultz received one or more emails from Fletcher Turcato that was signed "God Bless."
i. During the 2009-10 school year, in response to a student's question about whether students would get in trouble for saying "Merry Christmas," Patti Maldonado responded that she was a Christian. Corwyn Schultz was a student in Ms. Maldonado's class when she made this statement.
j. On or about February 10, 2010, Christine Willing told Corwyn Schultz that she would "pray for [him]" because he was wearing a President Obama t-shirt.
k. Toby Tyler delivered prayers and religious remarks over the Medina Valley High School loudspeaker from February 2010 until at least June 2011. Corwyn Schultz was present for most if not all of these announcements.
1. During the 2010-2011 school year, Ms. Wolfshohl answered "loves you" after a student said "Jesus, Jesus." Corwyn Schultz was a student in Ms. Wolfshohl's class when she made this statement.
m. During a class in approximately March 2011, Ms. Griggs asked the class to pray for her because she was suffering from a headache. Corwyn Schultz was present as a student in that class.
n. At a graduation rehearsal held at Medina Valley High School in late May or early June 2011, Chris Martinez prayed and made the sign of the cross, in front of the senior
11

Case 5:11-cv-00422-FB Document 98-7 Filed 12/09/11 Page 12 of 17
class, after reading the order issued by the District Court in this case. Corwyn Schultz was present for this communication. Interrogatory No.10: Identify any and all tangible religious items that Plaintiffs believe were controlled or owned by Medina District Independent School District, its officials or employees and that were present on Medina District Independent School District's property, identifying the item, the location of the item, the date Plaintiffs viewed the item, and which Plaintiff viewed the item. Response: Plaintiffs object that the phrase"controlled or owned" is vague, ambiguous and calls for the legal conclusion. Subject to, and without waiving these objections, Plaintiffs have seen the following tangible religious items at Medina Valley High School or in School DislTict offices:
1. At various points during his time as a student at Medina Valley High School, Trevor Schultz saw a cross and a Bible verse displayed in the Nurse's office. Corwyn Schultz saw a cross and Bible verse displayed in the Nurse's office during the 2010-2011 school year.
2. At various points during his time as a student at Medina Valley High School, Corwyn Schultz saw a cross on display behind the front desk.
3. During the 2007-08 school year, Trevor Schultz saw a cross in Ms. Griggs's classroom. During the 2010-11 school year, Corwyn Schultz also saw a cross in Ms. Griggs's classroom.
4. During the 2010-11 school year, Corwyn Schultz saw a cross in Ms. English's classroom.
12

Case 5:11-cv-00422-FB Document 98-7 Filed 12/09/11 Page 13 of 17
5. During the 2009-10 school year, Corwyn Schultz saw a cross behind the desk in Ms. Maldonado's classroom.
6. During the 2008-09 school year, Corwyn Schultz saw a cross in Mr. Wolfshohl's classroom.
7. During the 2010-11 school year, Corwyn Schultz saw a cup bearing a religious message that was used as a hall pass by Coach Herb.
8. At various points during the 2008-09 academic year, Corwyn Schultz saw a cross in Ms. Hecker's classroom.
9. During the 2009-10 academic year, Corwyn Schultz saw a Christmas display in Ms. Maldonado's classroom.
10. During the 2007-08 school year, Trevor Schultz saw a bible in Ms. Houston's classroom.
11. During the fall semester of 2010, Corwyn Schultz saw, from the hallway, a sign containing Bible verse in the window in Fletcher Turcato's office.
12. During one or more meetings with Chris Martinez in February or March 2010, Christa and Danny Schultz observed a cross displayed on the wall of Mr. Martinez's office.
13. At various points during the 2006-07 and/ or 2007-08 school years, Trevor Schultz saw Christian-related brochures on the desk of Offices Sides's office in the school library.
13

Case 5:11-cv-00422-FB Document 98-7 Filed 12/09/11 Page 14 of 17
Interrogatory No.ll Identify any and all written or oral statements made at the graduation ceremonies identified in Interrogatory No. 8 that Plaintiffs found constitutionally offensive, including who made the statement, to whom the statement was directed, the content of the statement, the location of the speaker, the location of the Plaintiff, and the date and time the statement was made. Answer:
Plaintiffs object on the grounds that this is a premature contention interrogatory and that the phrase "constitutionally offensive" is vague, ambiguous, and calls for a legal conclusion. Subject to, and without waiving these objections, Plaintiffs have witnessed the following speeches containing religious statements at Medina Valley High School graduation ceremonies:
1. At the 2008 Medina Valley High School graduation ceremony, all Plaintiffs were present for an Invocation, a Benediction, and a speech from Principal Tyler that contained Christian messages.
2. At the 2009 Medina Valley High School graduation ceremony, all Plaintiffs were present for an Invocation, a Benediction, and a religious-oriented speech from an invited state legislator.
3. At the 2011 Medina Valley High School graduation ceremony, Trevor Schultz was present for the Opening Remarks, the Closing Remarks, the Valedictorian's Speech, the Salutatorian's Speech, the speech by Alicia Guerin, and the speech by Representative John Garza. Each of these speeches contained prayers and/or religious messages.
14

Case 5:11-cv-00422-FB Document 98-7 Filed 12/09/11 Page 15 of 17

Is/ Gregory M. Lipper

Donald H. Flanary, III (Bar No. 24045877)
GOLDSTEIN, GOLDSTEIN & HILLEY
310 South St. Mary's Street, Suite 2900 San Antonio, Texas 78205 (210) 226-1463 (210) 226-8367 (fax) donf!anary@hobnail.com

Ayesha N. Khan (pro hac vice) Gregory M. Lipper (pro hac vice)
AMERICANS UNITED FOR SEPARATION OF
CHURCH AND STATE
1301 K Street NW, Suite 850 Washington, DC 20005 (202) 466-3234 (202) 898-0955 (fax)
khan@au.org I lipper@au.org

October 3, 2011

Counsel for Plaintiffs

15

Case 5:11-cv-00422-FB Document 98-7 Filed 12/09/11 Page 16 of 17
Verification I, Christa Schultz, certify tmder penalty of perjury that the answer's set forth in Plaintiffs Responses and Objections to Defendants First Set of Interrogatories, dated October 3, 2011, are true and correct to the best of my knowledge, This Verification was executed on October 3, 2011, at Rio Medina, Texas.
Christa Schultz

Case 5:11-cv-00422-FB Document 98-7 Filed 12/09/11 Page 17 of 17
Certificate of Service On October 3, 2011, I served by email a copy of Plaintiffs' Objections and Responses to Defendant's Interrogatories, on the following: D. Craig Wood (cwood@sa.wabsa.com) Stacy Tuer Castillo (scastillo@sa.wabsa.com)
WALSH, ANDERSON, BROWN, GALLEGOS & GREEN, P.C.
100 NE Loop 410, Suite 900 San Antonio, TX 78216 (210) 979-6633
/ s/ Gregory M. Lipper Gregory M. Lipper
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Case 5:11-cv-00422-FB Document 98-8 Filed 12/09/11 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

§

CHRISTA SCHULTZ, et al

§

§

Plaintiffs,

§

v.

§

§

§

MEDINA VALLEY INDEPENDENT

§

SCHOOL DISTRICT,

§

§

Defendant.

§

_________________________ §

CIVIL ACTION NO. 5:11-CV422

ORDER GRANTING DEFENDANT'S SECOND MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION Be it remembered that on this day came to be considered Defendant's Second Motion to Dismiss for Lack of Subject-Matter Jurisdiction filed by Defendant. After considering said pleadings and other documents on file in this cause, and the arguments of the parties, the Court makes the following findings: (I) Plaintiffs' claims for equitable relief are moot; (2) Plaintiffs' claims for declaratory judgment are moot; (3) Plaintiffs lack standing regarding their equitable and declaratory claims for relief; (4) No actual or live controversy required under Article III of the U.S. Constitution exists, and therefore, this Court lacks subject matter jurisdiction over all of Plaintiffs' injunctive or equitable claims for relief and claims for declaratory relief. (5) Additionally, having no injury in fact, Plaintiffs lack standing on the following of their claims:
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Case 5:11-cv-00422-FB Document 98-8 Filed 12/09/11 Page 2 of 5

a.

Any alleged prayer at Board meetings. (Dkt. No. 75 at ,1~64-65).

b. Any alleged prayer or religious remarks at Fellowship of Christian Athlete meetings or events. (Dkt. No. 75 at ~~58-59).

c. Any alleged prayer at scholarship or award ceremonies. (Dkt. No. 75 at ,1~2, 64).

d. Any alleged prayer at faculty Convocation meetings or faculty meetings. (Dkt. No. 75 at ~52).

e. Any alleged prayer at new teacher luncheons. (Dkt. No. 75 at ~66).

f.

Any alleged prayer at National Honor Society events. (Dkt. No. 75 at

~64).

g. Any alleged prayer at Tennis, Volleyball, Basketball, Softball, Women's Soccer teams and/or games. (Dkt. No. 75 at ,1,154, 56, 57, 64). Plaintiffs Danny, Christa, and Corwyn also lack standing on any claims for prayers at boys' soccer games or practices.

h. The alleged staff comments of "leave room for Jesus" or "I'll pray for you" that Plaintiffs did not personally witness. (Dkt. No. 75 at ,146).

1.

Any alleged religious icons, symbols, or texts that Plaintiffs did not

personally observe or witness. (Dkt. No. 75 at ~,147-51). Specifically,

Christa, Trevor and Danny Schultz do not have standing for any claims

regarding Mr. Turcato's alleged plaque. Christa and Danny Schultz do not

have standing on any claims regarding crosses, Bibles, or religious texts in

classrooms or the nurse's office.

J.

Any alleged prayer or religious remarks at football games at which

Plaintiffs did not actually witness religious remarks or prayers. (Dkt. No.

75 at ~~3, 13, 61-63). Plaintiffs Danny and Christa Schultz lack standing

on the 2011 football pre-game ceremony they attended.

k. Any alleged prayer or religious remarks at any graduation ceremony other than the 2008 and 2009 ceremonies. (Dkt. No. 75 at ~76).

l.

Plaintiffs Christa and Danny Schultz lack standing concerning Mr. Tyler's

alleged religious remarks during school morning announcements. (Dkt.

No. 75 at ~3, 31, 34.)

The Court is, therefore, of the opinion that the Defendant's Second Motion to Dismiss is

well taken and should be granted.
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It is therefore ORDERED, ADJUDGED AND DECREED that Defendant's Second

Motion to Dismiss for Lack of Subject Matter Jurisdiction is hereby, GRANTED. Plaintiffs'

claims for injunctive, equitable relief and declaratory relief are DISMISSED for lack of subject

matter jurisdiction. The following claims made by Plaintiff are DISMISSED for lack of subject

matter jurisdiction:

a.

Any alleged prayer at Board meetings. (Dkt. No. 75 at ~,!64-65).

b. Any alleged prayer or religious remarks at Fellowship of Christian Athlete meetings or events. (Dkt. No. 75 at ~~58-59).

c. Any alleged prayer at scholarship or award ceremonies. (Dkt. No. 75 at
,1,!2, 64).

d. Any alleged prayer at Faculty Convocation meetings or faculty meetings. (Dkt. No. 75 at ~52).

e. Any alleged prayer at new teacher luncheons. (Dkt. No. 75 at ,166).

f.

Any alleged prayer at National Honor Society events. (Dkt. No. 75 at

~64).

g. Any alleged prayer at Tennis, Volleyball, Basketball, Softball, Women's Soccer teams and/or games, as well as Plaintiffs Danny, Christa, and Corwyn Schultz's claims regarding prayer at boys' soccer games or practices. (Dkt. No. 75 at ~,!54, 56, 57, 64).

h. Alleged staff comments of "leave room for Jesus" or 'Til pray for you" that Plaintiffs did not personally witness. (Dkt. No. 75 at ,!46).

1.

Any alleged religious icons, symbols, or texts that Plaintiffs did not

personally observe or witness. (Dkt. No. 75 at ,!,!47-51). Specifically,

Christa, Trevor and Danny Schultz do not have standing for any claims

regarding Mr. Turcato's alleged plaque. Christa and Danny Schultz do not

have standing on any claims regarding crosses, Bibles, or religious texts in

classrooms or the nurse's office.

J.

Any alleged prayer or religious remarks at football games at which

Plaintiffs did not actually witness religious remarks or prayers as well as

those occurring at any 2011 football game. (Dkt. No. 75 at ~~3, 13, 61-

63).

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Case 5:11-cv-00422-FB Document 98-8 Filed 12/09/11 Page 4 of 5

k. Any alleged prayer or religious remarks at any graduation ceremony other than the 2008 and 2009 ceremonies. (Dkt. No. 75 at ~76).

I.

Any claim by Plaintiffs Christa and Danny Schultz concerning any alleged

prayer or religious remark by Mr. Tyler during school mornmg

announcements. (Dkt. No. 75 at ~3, 31, 34.)

The only remaining claims for Corwyn Schultz in this suit are the following:

I. The alleged religious remarks in Principal Toby Tyler's moming school announcements. (Dkt. No. 75 at ~~31-34).
2. The alleged comments made by school employees to him personally, as alleged in paragraphs 36, 37, 39, 40, 41,42 of the First Amended Complaint.
3. The alleged religious icons and symbols that Corwyn reportedly saw himself. (Dkt. No. 75 at ~~48-50).
4. The alleged religious remarks at football games he attended during his four years in high school. (Dkt. No. 75 at ~63).
5. The alleged religious remarks at the 2008 and 2009 graduations. (Dkt. No. 75 at ,1,181-82).
The only remaining claims for Trevor Schultz in this suit are the following:
1. The alleged religious remarks in Principal Toby Tyler's morning school announcements. (Dkt. No. 75 at ~31 ).
2. The alleged religious icons that he personally observed while a student. (Dkt. No. 75 at ~~48, 49).
3. The alleged prayers of his soccer team and one teacher. (Dkt. No. 75 at ,1,138, 53).
· 4. The alleged religious remarks at the football games he attended while m school. (Dkt. No. 75 at ~61).
5. The alleged religious remarks at the 2008 and 2009 graduations. (Dkt. No. 75 at ~,181-82).
The only remaining claims for Christa Schultz in this suit are the following:

1. The alleged religious remarks at the 2008 and 2009 graduations. (Dkt. No. 75 at ,1,181-82).

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Case 5:11-cv-00422-FB Document 98-8 Filed 12/09/11 Page 5 of 5
2. The alleged religious remarks at the football game pre-game ceremonies that she attended - the three to four games in the 2007-08 and 2008-09 school years. (Dkt. No. 75 at~61).
3. The religious icons or symbols she alleges that she personally observed (a cross and framed verse in Assistant Superintendent Chris Martinez' office and a cross on a desk in the front office.) (Dkt. No. 75 at ,148, 51).
The only remaining claims for Danny Schultz in this suit are the following: 1. The alleged religious remarks at the 2008 and 2009 graduations. (Dkt. No. 75 at ,1,181-82). 2. The alleged religious remarks at the football pre-game ceremonies that he attended - one game in 2006 and three to four games in the 2007-08 and 200809 school years. (Dkt. No. 75 at ~61). 3. The religious icon or symbol he alleges that he personally observed (a cross in Assistant Superintendent Chris Martinez' office). (Dkt. No. 75 at ,151).
SIGNED on this the _ _ _ day - - - - - - - - - - - - · · · - · - ' 2011.
UNITED STATES DISTRICT JUDGE
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 </s> Case 5:11-cv-00422-FB Document 118 Filed 01/04/12 Page 1 of 36

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CHRISTA SCHULTZ , et al

§

Plaintiffs

§

§

vs.

§

CIVIL ACTION NO. 5:11-CV-422

§

MEDINA VALLEY INDEPENDENT §

SCHOOL DISTRICT,

§

Defendant

§

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES Defendant Medina Valley Independent School District (“Medina Valley

ISD,” “MVISD,” “School District” or “the District”) and files its Motion for Summary

Judgment, and in support of such would show the following:

I. STATEMENT OF THE CASE AND RELEVANT PROCEDURAL BACKGROUND

1. Plaintiffs Christa Schultz, Danny Schultz, Trevor Schultz, and Corwyn Schultz

(hereinafter collectively referred to as “Plaintiffs”) have sued Medina Valley Independent School

District, alleging that the District has violated their First Amendment Constitutional rights. (Dkt.

Nos. 1, 75). Specifically, Plaintiffs claim that the District has violated the Establishment Clause

by permitting student speakers at graduation and football games to pray during their remarks.

(Dkt. No. 75 at ¶¶3, 115.) Additionally, Plaintiffs allege that school employees have prayed with

students at school, made religious remarks at school, and/or had crosses or other religious

symbols in their classrooms in violation of the Establishment Clause. ( Id.) P laintiffs seek

injunctive relief, declaratory relief, nominal damages, and attorneys’ fees. ( Id. at ¶¶119-124.)

On December 9, 2011, Defendant filed its Second Motion to Dismiss, asserting that Plaintiffs

lack standing on all of their equitable claims and on their nominal damage claims for which they

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Case 5:11-cv-00422-FB Document 118 Filed 01/04/12 Page 2 of 36
lack injury in fact. (Dkt. No. 98). Defendant denies that it has violated the First Amendment in any way, and now files this its Motion for Summary Judgment, asking this Court to enter a judgment as a matter of law denying all of Plaintiffs’ claims.
2. Pursuant to Local Rule CV-7 (c), attached to this Motion for Summary Judgment and incorporated by reference for all purposes is Appendix: Defendant’s Evidentiary Summary of Material Facts in Support of Motion for Summary Judgment (hereinafter referred to as “Appendix”) and its attached evidentiary exhibits, which prove as a matter of law that Defendant did not violate Plaintiffs’ rights under the Constitution.
II. SUMMARY JUDGMENT STANDARD 3. The summary judgment standard is well known by this Court. FED. R. CIV. P. 56; Celotex Corp. v. Catrett, 477 U .S. 317 ( 1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). In the case at bar, Plaintiffs make conclusory allegations of violations of law and cannot provide evidence to establish the necessary elements of their claims. Moreover, the District has submitted substantial summary judgment evidence to negate elements of Plaintiffs’ causes of action, thereby establishing its right to summary judgment as a matter of law.
III. THE SUMMARY JUDGMENT EVIDENCE 4. The District incorporates by reference for all purposes the items attached to and made a part of this Motion for Summary Judgment in Appendix: Defendant’s Evidentiary Summary of Material Facts in Support of Defendant’s Motion for Summary Judgment.
IV. ARGUMENT AND AUTHORITIES 5. As discussed in more detail infra, Defendant is entitled to summary judgment on Plaintiffs’ claims. P laintiffs Christa, Danny, and Trevor Schultz’ claims based on e vents occurring before May 26, 2009 a re barred by statute of limitations. A dditionally, Plaintiffs
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cannot prove essential elements of their §1983 claims; that is, they have not alleged a

constitutional violation, and they cannot establish that an official policy or custom of the District

resulted in the alleged promotion of religion at the District.

A.

STATUTE OF LIMITATIONS BARS CLAIMS

6. The Court must deny Danny, Christa, and Trevor’s claims of alleged

constitutional violations that are alleged to have occurred outside the applicable two-year statute

of limitations period. Texas’ two year statute of limitations applies to cases brought under §1983 for First Amendment violations. See Hitt v. Connell, 301 F .3d 240, 2 46 (5th Cir. 2002); Piotrowski v. City of Houston, 237 F.3d 567, 576 ( 5th Cir.), cert. denied, 534 U.S. 820 (2001);

see also TEX. CIV. PRAC. & REM. CODE ANN. §16.003 (Vernon 2005). The limitations period

begins to run “the moment the plaintiff becomes aware that he has suffered an injury or has

sufficient information to know that he has been injured.” Piotrowski, 237 F .3d at 576. The

limitations period is tolled until the plaintiff turns 18 years old. TEX. CIV. PRAC. & REM. CODE

ANN. §16.001 (Vernon 1987). Here, Plaintiffs filed suit on May 26, 2011 (Dkt. No.1). Trevor

turned 18 years old on October 3, 2008, giving him until October 3, 2010 to file any claims he had prior to his 18th birthday, and Corwyn turned 18 on July 26, 2011. (Ex. A1 at 8:25; 9:1; Ex.

A2 at 8:3-4). Christa and Danny Schultz are Corwyn and Trevor’s adult parents. (See Ex. A3 at

9:16-17; Ex. A4 at 8:2-3). Any claims Danny, Christa and Trevor have that occurred before May

26, 2009 are time-barred by the statute of limitations. Trevor had until October 3, 2010 t o file

any claim for injury that occurred while he was a minor. Thus, the following claims are barred

by the statute of limitations:

a. Football games- Other than the football game they attended in a blatant

attempt to create standing in the Fall of 2011 (see Dkt. No. 98 (which is incorporated by

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Case 5:11-cv-00422-FB Document 118 Filed 01/04/12 Page 4 of 36
reference for all purposes) at ¶21), Christa and Danny did not attend any football games in the Fall of 2010. T he last time Christa and Danny had heard any student remarks, including any alleged prayer, at a Medina Valley High School football game was in the Fall of 2008, clearly outside the limitations period in this case. (See Appendix at ¶61). Therefore, the Court must deny their claims regarding football games. The last football game of Trevor’s senior year was in the Fall of 2008, which is likewise outside his limitations period. (See Appendix at ¶62).
b. Graduations – The graduation attended by Plaintiffs Trevor, Christa, and Danny Schultz in 2008 is outside the limitations period, and any claims concerning the 2008 graduation should be denied as a matter of law. (See Appendix at ¶53).
c. Trevor’s claims - The only claims Trevor has within his limitations period are those occurring May 26, 2009 or later. He graduated on June 6, 2009, and his last day of school finals his senior year was June 4, 2009 . (Ex. V). Thus, he only had 10 days within which he was at school at Medina Valley High School that are within his limitations period. He was a student in Ms. Griggs’ class his sophomore year of High School, which was approximately 2007. (Ex. O). Likewise, Trevor’s claims concerning alleged prayer in his soccer team are barred by the statute of limitations. T he last day of his soccer team season his senior year of high school was March 20, 2009 – two month outside his limitations period. ( Ex. M, N). Accordingly, this Court should deny Trevor’s claims regarding Coach Payne and the soccer team, Ms. Griggs’ classroom, and any other claims he had occurring before May 26, 2009. B. PLAINTIFFS’ §1983 CLAIMS FAIL
1. No Constitutional Violation Occurred. 7. To prevail on a claim under §1983, Plaintiffs must prove: (1) that a constitutional violation occurred, and (2) that the defendant was legally responsible for that violation. Collins
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v. City of Harker Heights, Texas, 503 U.S. 115, 120 ( 1992); see Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 52 5 (5th Cir.1994). Here, Plaintiffs allege the following purported constitutional violations: (1) the promotion of religion through religious remarks or prayers by school employees and administrators (Dkt. No. 75 at ¶¶31, 34-42, 46, 53-54, 56-60, 64-66), (2) the promotion of religion by school employees and administrators through the display of religious objects (Dkt. No. 75 a t ¶¶47-51), and (3) the promotion of religion by the District’s policy or custom of allowing student speakers to pray at football games, graduations, and/or extra-curricular events (Dkt. No. 75 at ¶¶2, 61, 76, 82-85, 91-102, 105).
8. There are two distinct and oftentimes clashing constitutional rights expressed in the First Amendment to the U.S. Constitution: the Establishment Clause provides that “Congress shall make no l aw respecting the establishment of religion. . .” and the Free Exercise Clause provides that “Congress shall make no law. . . pr ohibiting the free exercise [of religion].” U.S. CONST. AMEND. 1; see Wallace v. Jaffree, 472 U .S. 38, 49 -50 (1985) (both clauses apply to governmental bodies, including school districts, through Fourteenth Amendment). In describing current Establishment Clause jurisprudence, the Fifth Circuit noted in Doe v. Duncanville Independent School District, “[W]e believe that a f act-sensitive application of existing precedents is more manageable and rewarding than an attempt to reconcile the Supreme Court’s confusing and confused Establishment Clause jurisprudence.” 994 F.2d 160, 166 n7 ( 5th Cir. 1993). “Establishment Clause challenges are not decided by bright-line rules, but on a case-bycase basis with the result turning on the specific facts…. The inquiry calls for line-drawing; no fixed, per se rule can be framed.” Pelphrey v. Cobb County, Ga., 547 F.3d 1263, 1268-69 (11th Cir. 2008).
9. The purpose of the Free Exercise and Establishment Clauses of the First
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Amendment, as explained by the U.S. Supreme Court, is “to prevent, as far as possible, the intrusion of either [the church or the state] into principles of the other.” Lemon v. Kurtzman 403 U.S. 602, 614 (1971). The government may not demonstrate a preference for one particular sect or creed, including a preference for Christianity over other religions or a preference for religion over non-religion. County of Allegheny v. Americans Civ. Liberties Union, 492 U.S. 573, 604-05 (1989). Typically, to determine whether a p articular governmental practice violates the Establishment Clause, a court uses what is commonly referred to as the “Lemon test,” based on the U.S. Supreme Court case Lemon v. Kurtman, 403 U.S. 602 (1971). To pass constitutional muster under the Lemon test, a governmental practice must (1) have a secular purpose, (2) neither advance nor inhibit religion in its principal or primary effect, and (3) not foster an excessive entanglement with religion. Lemon, 403 U.S. at 612-13; County of Allegheny, 492 U.S. at 592.
10. However, the Supreme Court also has often found it unnecessary to rely on Lemon in deciding Establishment Clause cases, refusing to be “confined to applying the Lemon principles in all cases ‘in this sensitive area.’” Warnock v. Archer, 380 F.3d 1076, 1082 (8th Cir. 2004) (quoting Lynch v. Donnelly, 465 U.S. 668, 679 (1984)); see Lee v. Weisman, 505 U.S. 577, 587 (1992); Marsh v. Chambers, 463 U.S. 783, 786-95 (1983). Courts have crafted a modifiedLemon endorsement inquiry, which provides that the “government impermissibly endorses religion if its conduct has either (1) the purpose or (2) the effect of conveying a message that religion or a particular religious belief is favored or preferred.” See e.g., County of Allegheny, 492 U.S. at 595; Lynch, 463 U .S. at 687-94 (O’Connor, concurring); American Civil Liberties Union v. Deweese, 633 F.3d 424, 431 (6th Cir.), cert. denied, 132 S.Ct. 368 (2011); O’Connor v. Washburn Univ., 416 F.3d 1216, 1224 (10th Cir. 2005); Nichol v. Arin Intermediate Unit 28, 268
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Case 5:11-cv-00422-FB Document 118 Filed 01/04/12 Page 7 of 36
F. Supp.2d 536, 549 (W.D. Pa. 2003). 11. In looking at purpose, the court will give deference to the government actor’s
stated reasons. Deweese, 633 F.3d at 431. H owever, the court will also look at not just the government’s stated purpose behind its speech but also look through the eyes of an “objective observer.” Deweese, 633 F.3d at 432; Trunk v. City of San Diego, 629 F.3d 1099, 1108 (9th Cir. 2011). Under this endorsement test, the government violates the Establishment Clause when it acts in a manner that a reasonable person would view as an endorsement of religion. Deweese, 633 F.3d at 434. The legality of the government’s actions does not turn on how Plaintiffs personally perceive the government’s actions but how a reasonable observer would perceive them. Weinbaum v. Las Cruces Pub. Sch., 541 F.3d 1017, 1031 (10th Cir. 2008). The challenged practice must have the principle or primary effect of advancing or endorsing religion. Id. (quoting Bauchman v. West High Sch.¸132 F.3d 542, 555 (10th Cir. 1997)), cert. denied 524 U.S. 953 (1998). However, the Supreme Court has pointed out that the word “endorsement” is not “self-defining.” County of Allegheny, 492 U .S. at 593. T he prohibition on “ endorsement” of religion precludes the governmental entity from “conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred,” but the term is closely linked to the term “promotion.” Id. Whether a reasonable observer would perceive the challenged action as an action by the governmental body is a question of fact; whether the challenged action is an endorsement of religion is a question of law. Joki v. Board of Educ. of Schuylerville Central Sch. Dist., 745 F. Supp. 823, 827, 829 (N.D. N.Y. 1990); see Lynch, 465 U.S. at 694 (O’Connor, J., concurring) (whether a government activity constitutes endorsement of religion is largely question of law); Foremaster v. City of St. George, 882 F.2d 1485, 1491 (10th Cir. 1989) (finding issue of material fact regarding how average observer would interpret city logo), cert.
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denied, 495 U.S. 910 (1990). 12. In analyzing Establishment Clause claims, courts have taken into consideration
several factors, including the context in which the alleged violation occurs, the permanence of the alleged unconstitutional display, the location of the alleged violation, and the passivity of the alleged violation. See Clever v. Cherry Hill Township Bd. of Educ., 838 F. Supp. 929, 937-38 (D. N.J. 1993); see also County of Allegheny, 492 U.S. at 573 ( finding context of display is critical to determine whether endorsement of religion occurred); Edwards v. Aguillard, 482 U.S. 578, 583-84 (1987) (noting Court is vigilant in monitoring compliance with Establishment Clause in school setting); Lynch, 465 U.S. at 686 (discussing passive symbol of crèche); Stone v. Graham, 449 U.S. 39, 41 ( 1980) (holding unconstitutional permanent display of Ten Commandments in school); Deweese, 633 F.3d at 434 (requiring inquiry to include “totality of circumstances surrounding the display”). “Every government practice [is] judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion.” Lynch, 465 U.S. at 694 (O’Connor, J., concurring). The context in which a symbol appears is critical because it may determine what viewers fairly understand to be the purpose of the display, and may negate any message of endorsement that the religious symbol might otherwise evoke. County of Allegheny, 492 U.S. at 573. Entanglement with religion must be “excessive” before it implicates the Establishment Clause. Agostini v. Felton, 521 U.S. 203, 233 ( 1997). “Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.” Van Orden v. Perry, 545 U.S. 677, 690 (2005).
13. Additionally, a crucial difference exists between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Exercise and Free Speech Clauses protect. See Board of Educ. Of Westside Community
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Case 5:11-cv-00422-FB Document 118 Filed 01/04/12 Page 9 of 36
Schools (Dist. 66) v. Mergens, 496 U.S. 226, 25 0 (1990). The Establishment Clause does not prohibit all religious expression in the public schools. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 313 ( 2000) (citing Engel v. Vitale, 370 U.S. 421, 430 ( 1962)). Often, as in this case, the school “faces the difficult task in complying with its Establishment Clause responsibilities without infringing on the Free Exercise Clause rights” of its students and employees. See Allen v. School Bd. for Santa Rosa County, Fla., 782 F. Supp.2d 1304, 1323 (N.D. Fla. 2011). In Allen, the school district was sued by students for various Establishment Clause violations and ultimately entered into a consent decree in which it agreed to prohibit teachers and school employees from displaying any religious symbols or quotations in their classrooms. Id. at 1311 n.8. Despite resolving the students’ claims by entering into a consent decree, the school district was faced with another lawsuit this time brought by employees and parents concerning, among many things, the prohibition of religious items on their desks. Id. at 1313. In deciding whether or not to grant the school district’s motion to dismiss, the court held that the employee-plaintiffs had pled sufficient facts to allege an arguable First Amendment injury, and allowed the employees’ case to proceed to trial. Id. at 1316-17.
14. School employees do not give up t heir free exercise or free speech rights when they become government employees. Warnock v. Archer, 380 F.3d 1076, 1082 (8th Cir. 2004); see also Brown v. Polk County, Iowa, 61 F.3d 650, 652-59 (8th Cir. 1995) (government employee allowed to display plaques and posters with prayers and religious references in his office), cert. denied, 516 U.S. 1158 (1996). When a disputed “activity is clearly personal and does not convey the impression that the government is endorsing it, the mere fact that it occurs in a government setting does not render it unconstitutional.” Warnock, 380 F .3d at 1082. O nly when a government employee’s speech and acts can reasonably be attributed to the government itself do
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the restrictions of the Establishment Clause apply. Id. a. Religious objects or symbols
15. Here, Plaintiffs claim the following District employees had religious objects displayed in alleged violation of the Constitution: Nurse Moody, Ms. Griggs, Ms. Hecker, Ms. Maldonado, Mr. Wolfshohl, Ms. English, Mr. Turcato, and Assistant Superintendent Martinez. (Dkt. No. 75 at ¶¶47-51; see Appendix at ¶¶65-82). Particularly instructive to the case at hand is Warnock v. Archer, in which a public school teacher sued the school and its Superintendent under §1983 f or alleged Establishment Clause violations, in part, for the Superintendent’s displaying religious effects in his office. 380 F .3d 1076, 1082 ( 8th Cir. 2004). T he teacher complained that the Superintendent displayed a Bible on hi s desk and had a framed scriptural quotation in his office. Id. at 1079. The Eighth Circuit Court of Appeals held that the personal religious effects in the school employee’s office did not violate the Establishment Clause. Id. at 1082. T he court found that the personal religious effects of the Superintendent were constitutionally protected under the free speech and free exercise clauses and did not simultaneously violate the Establishment Clause. Id.
16. Also instructive is Nichol v. Arin Intermediate Unit 28, in which the federal district court in Pennsylvania held that the elementary school employee-plaintiff had a First Amendment right to wear religious jewelry at school. 268 F.Supp. 2d 536, 561 (W.D. Pa. 2003). In Nichol, the school-defendant prohibited its employees from wearing religious emblems, dress, or insignia at school, including crosses and Stars of David. Id. at 541. T he plaintiff was suspended after she wore and refused to remove a cross necklace. Id. The court reviewed the school’s actions with the modified-Lemon endorsement inquiry, considering whether a “‘reasonable observer’ who is deemed aware of the history and context of a challenged policy or
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program would consider the government policy or program to be an endorsement of religion, which would violate the Establishment Clause, or simply an accommodation of religious beliefs or practices in the interests of individuals’ rights to freely practice or express their religion, which does not.” Id. at 550. The court took into account that elementary school children are typically more impressionable than high school or college students, but noted that “unless the employees are doing something that is likely to influence the students by exploiting their impressionability,” the impressionability of students is not a sufficient reason for denying the employees’ First Amendment rights. Id. at 553. G iven the inconspicuous nature of the employee’s expression of her religious beliefs by wearing a necklace, the court found it “extremely unlikely that even elementary students would perceive [the school] to be endorsing” her Christian viewpoint. Id.at 554. “Merely employing an individual, such as plaintiff, who unobtrusively displays her religious adherence is not tantamount to government endorsement of that religion, absent evidence of endorsement or coercion.” Id.
17. As set out in the Appendix, the crosses about which Plaintiffs complain were items that were in the teacher’s or school employee’s personal space, such as on their desk, near the teacher’s desk, or in their personal office. A s in Warnock and Nichol, these items were clearly personal and did not convey the impression that the District was endorsing them. Items on a teacher’s desk often include such as things a family photos and mementos. Having a small cross, which oftentimes is simply a gift from a student, alongside family photos or other student gifts, clearly does not demonstrate government endorsement. The mere fact that it occurs in a government setting does not render it unconstitutional. See Warnock, 380 F.3d at 1082. The items on the teachers’ or employees’ desks or personal office space clearly were not permanent displays and were not used in instructing the students. (See Ex. V). There was no danger of a
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high school student getting the wrong impression that the District was promoting religion when a teacher displayed a cross next to her other family, vacation, or other personal mementos any more than having a family photo on t he teacher’s desk proves that the District promotes procreation or going skiing. Moreover, the items on a teacher’s desk are much less obtrusive than religious jewelry worn by a teacher as in Nichol, in that the students are typically looking at the teacher at the front of the room while she teaches during the majority of the class-time instruction rather than looking at her desk and personal office space. Additionally, as set out below, the context in which these alleged religious items were displayed show that there was no entanglement, endorsement, or non-secular purpose in their display. See Clever, 838 F. Supp. at 937-38.
Nurse Moody’s Office 18. Regarding Nurse Moody’s office, Plaintiffs claim she had a Bible verse displayed in her office; however, neither Corwyn nor Trevor recalls what the Bible verse was or what was quoted, but both admit that the verse was in her personal office, behind a door. (See Appendix at ¶¶69-70). Likewise, Trevor admitted that the small cross he allegedly observed in Nurse Moody’s office was on her desk in her office. (Id.) As set out in the Appendix, to Nurse Moody, the Lamp of Learning picture with a reference to being the “Light of the World” displayed in her personal office was a personal reminder for herself that she may be the one positive influence a student may have in his or her life. (Id.) However, students did not ordinarily go into her personal office, which was separate from the clinic. (Id.) As a m atter of law, Nurse Moody’s personal effects in her office were not an official government endorsement of religion, but clearly personal and in her personal, unobtrusive space. A dditionally, Nurse Moody’s stated purpose of having those items in her office was personal, and Plaintiffs lack any objective
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evidence showing that said effects were used principally and primarily to advance religion. Simply having some religious meaning or content is not enough to show unconstitutional endorsement of religion. See Van Orden, 545 U.S. at 690. Nurse Moody’s personal effects did not violate the Establishment Clause. See Warnock, 380 F.3d at 1082; Nichol, 268 F. Supp.2d at 554.
Ms. Griggs’ cross 19. Regarding Ms. Griggs’ alleged display of crosses, although Ms. Griggs disputes Corwyn’s testimony that she had three black crosses in her classroom, any alleged crosses that Corwyn claims were in her classroom were by her desk. (See Appendix at ¶¶71-79). Additionally, the two crosses that Ms. Griggs acknowledges she had were all on or near her desk in her personal space in the classroom. (Id.) One of the crosses in her room was a gift from a student and was hanging up n ext to various other personal items, including personal photographs. (Id.) Additionally, none of her personal items were in full view of the students in the classroom. (Id.) The other small cross was on he r desk. ( Id.) As a matter of law, this display was personal and could not be perceived as government endorsement of religion. See Warnock, 380 F.3d at 1082; Nichol, 268 F. Supp.2d at 554. Moreover, as stated supra, there is no evidence showing that said effects were used principally and primarily to advance religion; simply having some religious meaning or content is not enough to show unconstitutional endorsement of religion. See Van Orden, 545 U.S. at 690. As a matter of law, Ms. Griggs’ personal effects did not violate the Establishment Clause. Ms. Hecker’s cross 20. Regarding geometry teacher Ms. Hecker’s alleged display of a cross, the testimony clearly shows that she did not display a religious item at all. (See Appendix at ¶¶74-
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75). She displayed student geometric artwork, one of which happened to have a geometric shape of a cross. (Id.) When discussing the purported offensive object, Corwyn acknowledged: “[Ms. Hecker] was a geometry teacher and there was a string around it shaped like a pattern.” (Id.) As Ms. Hecker explained, she assigned students in her class to make geometric designs using designs and materials of their own choosing. (Id.) Approximately four years ago, one student in her class designed a geometric pattern using an object that was cross-shaped with yarn. ( Id.) Ms. Hecker displayed that cross-shaped geometric object in the classroom, along with the designs that other students in her class had created, such as a boat, dragonfly, and guitar. (Id.) She often displayed the geometric designs made by her students in her classroom. ( Id.) The object about which Corwyn complains in Ms. Hecker’s room was not even a personal display but a display of various student geometric projects, one of which happened to be cross-shaped. (Id.) This display plainly was not a religious display. The evidence shows that the context of the display was a small, student-created geometric piece displayed with various other geometric student artwork from the same assignment. (Id.) Ms. Hecker had no involvement in the student’s decision to use a cross-shaped pattern. (Id.) There clearly was no primary or principal effect of advancing or endorsing religion by displaying the student geometric artwork. See Agostini, 521 U.S. at 233. Corwyn’s claim concerning Ms. Hecker’s alleged “religious” object fails as a matter of law. Ms. Maldonado’s cross, Mr. Wolfshohl’s cross, Ms. English’s cross, Mr. Martinez’ cross, and Mr. Turcato’s plaque
21. Regarding Ms. Maldonado, Mr. Wolfshohl, and Mr. Martinez, according to Corwyn, Ms. Maldonado and Mr. Wolfshohl allegedly had a cross on their desks, and according to Christa and Danny Schultz, Mr. Martinez had a cross in his personal office. (Appendix at ¶¶76-77, 81). As discussed above, any such display on a teacher’s desk or in an administrator’s
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office is constitutionally permissible as a personal effect; those objects are not an endorsement by the government itself. Regarding Mr. Turcato’s office, Corwyn testified (and the District stipulates) that the Vice-Principal in 2009, Mr. Fletcher Turcato, had a sign in his office that he set on his window sill that stated “Trust in the Lord with all your heart.” (See Appendix at ¶¶6768). According to Corwyn, Mr. Turcato’s sign faced into the office hallway and not into his own personal office. (Id.) Mr. Turcato was employed at the District for only a short period of time. (Id.) As with the employees discussed supra, Mr. Turcato’s sign was not an unconstitutional endorsement of religion as a matter of law; the sign was a personal effect in his personal office, and the display of the sign was temporary since Mr. Turcato was only at the District for a short time. A dditionally, Mr. Turcato never discussed his religion or faith with Corwyn. (Id.) Accordingly, the Court should deny Plaintiffs’ claims concerning Ms. Maldonado’s cross, Mr. Wolfshohl’s cross, Mr. Martinez’ cross, and Mr. Turcato’s plaque as a matter of law.
22. Regarding Ms. English’s classroom, according to Corwyn, Ms. English had one object that “was like two infinity signs making a cross, kind of” and was “colored in with Crayola it looked like.” (See Appendix at ¶78). The object was about the size of a hand, five inches long, on the class bulletin board. (Id.) Corwyn indicated that he believed the object to be a cross. (Id.) However, he also testified that he interprets any item that has two straight intersecting lines to be a religious cross. (Id.) Without even knowing or being able to articulate what exactly he saw in Ms. English’s class, Corwyn is unable to produce any evidence concerning any alleged exploitation or advancement of religion in Ms. English’s classroom. As a result, the Court should deny Plaintiffs’ claims concerning Ms. English’s alleged cross as a matter of law.
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Front desk cross 23. Corwyn testified that he observed a small, approximately 3 i nch cross near the front desk in the High School administration offices. (See Appendix at ¶¶79-80). The cross was behind assistant Ms. Witherall’s desk. (Id.) The only cross that was found during the course of investigating Plaintiffs’ allegations in this lawsuit was one on a trophy that was sitting behind the front desk; that trophy was from an FCA-sponsored 5k race in which a small cross is present on the trophy itself. (Id.) Like the other objects discussed above, this cross was displayed in an employee’s personal space. Moreover, the cross in this instance is on a trophy. The display of a trophy is hardly an advancement or endorsement of religion, but instead boasting rights of participating in a 5k r ace. T here is no e vidence of exploiting or advancing religion, and therefore, the Court should deny Plaintiffs’ claims regarding any alleged cross at a front desk. 24. As a matter of law, these objects in the employees’ personal space did not violate the Establishment Clause. None of these personal displays could be attributed to the District as government speech. See Warnock, 380 F.3d at 1082. Much less conspicuous than a teacher’s wearing religious jewelry or garb daily in front of the class, these personal, small displays are extremely unlikely to be perceived by a secondary school student as District-endorsed rather than an employee’s personal expression. Nichol, 268 F. Supp.2d at 554. As stated by Justice Guy in his concurring opinion in Washegesic v. Bloomindale Public Schools, such “trivial allegations of purported Establishment Clause violations establish “a class of ‘eggshell’ plaintiffs of a delicacy never before known to the law. I can well understand that someone. . .in some sense could be offended…but ‘injured’ is another matter. In this multicultural world that young persons are entering today, I would hope our schools are turning out people with a little more resiliency than is evidenced here…. [I]f I am permitted to use the expression, for heaven’s sake, stay out of the
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courthouse and quit trivializing the Constitution!” 33 F .3d 679, 684-85 (6th Cir. 1994)(Guy, J., concurring), cert. denied, 514 U .S. 1095 ( 1995). T he Court should deny Plaintiffs’ claims concerning the display of religious objects as a matter of law.
b. Religious speech of school employees or officials 25. Concerning alleged speech of school employees, as set out in the Appendix, Plaintiffs allege that Corwyn Schultz heard the following school personnel make religious comments: High School Principal Toby Tyler, teacher Patti Maldonado, teacher Deesa Griggs, teacher Mary Ann Wolfshohl, band director Keith Riley, and office clerk Christine Willing. (See Dkt. No. 75 at ¶¶31, 34-42, 46, 53-54, 56-60, 64-66; Appendix at ¶7). Corwyn also claims that he heard Officer Lynn Sides make religious comments. (See Appendix at ¶¶29-30). Trevor asserts that he heard the following school personnel make religious statements at school: Coach Nathan Payne, Mr. Tyler, and teacher Nicole Houston. (Id. at ¶¶8-17, 24-28). Principal Toby Tyler 26. Regarding Mr. Tyler, Corwyn and Trevor recall Mr. Tyler once referring to a “good book” during morning school announcements. ( See Appendix at ¶¶ 8-17). Neither recalled the context in which Mr. Tyler said “good book.” ( Id.) According to Corwyn, Mr. Tyler “said a prayer” for a teacher, Mr. Bollinger, who had recently died. (Id.) Trevor testified that Mr. Tyler “prayed” over the school intercom, but Trevor does not recall what exactly Mr. Tyler may have said that constituted a prayer other than he used “Christian language in the form of a prayer” and said the word “Amen” on at least one occasion. (Id.) Of the purported religious references by Mr. Tyler, his saying “God bless” was the most frequent of his alleged religious remarks, according to Corwyn and Trevor. (Id.) Additionally, Plaintiffs believe that saying “God bless” or “God bless you” is a prayer; they even believe that saying “God bless you” when
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someone sneezes or saying “God Bless Texas,” “God Bless America” or “God save the United States and this honorable Court” constitutes a prayer and/or promotes religion, and “God damn it” is a religious utterance. (Id.)
27. Mr. Tyler acknowledges saying “God bless” at school in reference to school sports teams or the U.S. troops, but feels like those references were colloquial and not religious in nature. (Id.) Mr. Tyler denies ever praying or using Christian language over a loudspeaker or school announcement. (Id.) His purpose behind such statements was congratulatory and often colloquial. (Id.) Mr. Tyler denies ever praying or using Christian language over a loudspeaker or school announcements. (Id.) School employees do not recall Mr. Tyler ever praying during school announcements, and deny he prayed for Mr. Bollinger on t he school loudspeaker. ( Ex. A9 at 86:12-15; Exhibits K, O, P, Q, T).
28. The context of Mr. Tyler’s “God Bless” comments show that no reasonable observer would find that his comments were an endorsement of religion, but mere colloquial, congratulatory remarks to the various sports teams and/or organizations being announced and very similar in content to what our nation’s own President uses in his speeches in public schools. (Ex. A15 and A16).1 Indeed, President Obama told public school students they had “God-given potential” and concluded his speech to them with “God bless you, and God bless the United States of America.” (Ex. A15). Plaintiffs’ hypersensitivity to any phrase that has the word “god” in it (such as their beliefs that “God damn it” and “God bless you” after someone sneezes are religious utterances) does not mean a reasonable observer would perceive such common and
1 President Obama gave remarks to the nation’s public schools, which were broadcast to students across the nation during school and which included references to the students’ “God-given” talent and “preaching to the choir.” (Ex. A15:http://www.whitehouse.gov/the-press-office/2010/09/14/remarks-president-back-school-speechphiladelphia-pennsylvania His inaugural address also concluded with “God Bless you. And God Bless the United States of America.” (Ex. A16: http://www.whitehouse.gov/blog/inaugural-address/))
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colloquial phrase as “God bless” a sports team or the troops as an endorsement of religion. Mr. Tyler’s comments clearly did not have a principal or primary effect of promoting religion. As shown in his own deposition testimony, he is known for frequently using colloquial phrases – from “holy smokes” to “irritates the devil out of me.” ( See Appendix at ¶14). M r. Tyler’s comments did not violate the Constitution as a matter of law. Ms. Griggs
29. Corwyn testified that Ms. Griggs told her class on one occasion, “If there’s ever a day to whisper, today’s the day. My head is killing me. I can’t even turn it. Maybe I’m having an aneurysm. P ray for me.” ( See Appendix at ¶18). Ms. Griggs does not recall ever saying that, and even if she had ever made such a comment, she would never intend such statement to be taken literally or spiritually. (Id.) Ms. Griggs did not promote her personal religious beliefs; as a matter of law, even if said statement were made by Ms. Griggs, the comment was isolated in nature and clearly not advancing or promoting religion. Plaintiffs’ claim regarding Ms. Griggs’ comment must be denied as a matter of law. Ms. Wolfshohl
30. According to Corwyn, a student in Ms. Wolfshohl’s physics class exclaimed, “Jesus, Jesus!” apparently because the student was upset or frustrated. (See Appendix at ¶19). Corwyn testified that after the student said that, Ms. Wolfshohl said, “loves you.” (Id.) Ms. Wolfshohl does not recall ever saying that, and even if she had made such a comment, she would never intend it to be a statement concerning her own personal beliefs. ( Id.) Looking at the context and isolated nature of this alleged statement, even taking it as true, the evidence shows that as a matter of law the alleged comment was not a promotion of her religious views. Thus, Plaintiffs’ claims concerning Ms. Wolfshohl must be denied.
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Ms. Maldonado 31. Pursuant to Corwyn’s testimony, in Ms. Maldonado’s English class, a student
asked if students were allowed to say “Merry Christmas” at school and stated that there was a rumor going around that any kids who said “Merry Christmas would be sent to ISS.” ( See Appendix at ¶¶20-21). Ms. Maldonado responded, “No, I’m a Christian. Why would I do that?” (Id.) Ms. Maldonado does not recall the students in her class ever discussing whether they were allowed to say “Merry Christmas.” (Id.) She does remember, however, a student asking her if she was a Christian, to which she responded yes and then quickly redirected the class’ attention to the lesson at hand. (Id.) T aking either version of said events in context and their isolated nature, no reasonable observer would perceive an endorsement by the District itself of religion. Moreover, Ms. Maldonado clearly did not proselytize or otherwise promote her religion in the classroom; she quickly changed the subject when the student brought up the topic of religion. As a matter of law, there was no endorsement of religion, and the Court should deny Plaintiffs’ claims regarding Ms. Maldonado. Mr. Riley
32. Corwyn testified that Mr. Keith Riley, one of the school’s band directors, told the band during practice, “God bless this upcoming marching season.” (See Appendix at ¶22). Mr. Riley, denies ever saying that and denies ever invoking the name of God, any deity, or any blessing in the presence of students. (Id.) Even assuming Corwyn’s allegations as true, as discussed supra, “God bless” is merely a colloquialism and a wish for good luck, not a promotion of religion. There is no e vidence that Mr. Riley was attempting to promote his personal religious beliefs in anyway. The Court should deny Plaintiffs’ claims concerning Mr. Riley.
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Ms. Willing 33. Corwyn also claims that when Ms. Christine Willing, an attendance clerk in the
District, saw that he was wearing a shirt with a picture of President Obama on it, she asked him why he was wearing that shirt, and he responded that he liked the president. (See Appendix at ¶23). According to Corwyn, she then said, “Well, I’ll pray for you.” (Id.) Contrary to Corwyn’s claims, Ms. Willing contends that she was joking with Corwyn and told him that President Obama needed prayer, not Corwyn. ( Id.) R egardless of which version is accurate, VicePrincipal McHazlett took swift, corrective action as soon as these allegations were reported to him and directed Ms. Willing not to discuss politics or prayer with students. ( Id.) No reasonable observer could have viewed the District as endorsing Ms. Willing’s viewpoint when it took such prompt, remedial action concerning Ms. Willing as soon as her comment was reported. Ms. Willing’s viewpoint clearly was her own, inappropriate or not, and the District did something about it as soon as Corwyn reported it. The Court should deny Plaintiffs’ claims concerning Ms. Willing. Officer Sides
34. Regarding Officer Sides, Plaintiffs never reported Officer Sides to anyone at the District. (See Appendix at ¶¶29-30). Officer Sides is not and at all times relevant to this lawsuit was not an employee of the District. (Id.) Not being an employee of the District and wearing his Sheriff-issued uniform at all times, Officer Sides clearly communicated with the students as an employee of the Sheriff’s office and not of the District; his comments could not have been perceived by a reasonable observer as being endorsed by the District. Accordingly, Plaintiffs’ claims concerning Officer Sides should be denied as a matter of law. Additionally, as discussed infra, Plaintiffs’ claims concerning Officer Sides should be denied because the District had no
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knowledge of his purported inappropriate actions. 35. As a matter of law, the purported comments by school employees did not violate
the Establishment Clause. The Court should deny Plaintiffs’ claims concerning the above employees’ alleged comments as a matter of law.
c. Religious speech of students 36. Plaintiffs allege that the purported religious speech of students at graduation and football games violated the Establishment Clause. 37. In 2007, the Texas legislature passed the Religious Viewpoints Antidiscrimination Act (hereinafter referred to as “RVAA”), which requires in part that school districts adopt a policy that establishes a limited public forum for student speakers at all school events at which a student is to “publicly speak,” specifically including graduation.2 See TEX. EDUC. CODE §§25.151-156. A student speaker using the school’s limited public forum cannot be discriminated against based on the expression of his or her religious viewpoint. See TEX. EDUC. CODE §25.152(a)(1). Additionally, school districts must employ neutral criteria for the selection of these student speakers. TEX. EDUC. CODE §25.152(a)(2). While school districts must ensure that the speech is not offensively lewd, obscene, vulgar, or indecent, there are few other restrictions that can be placed on the speech. See TEX. EDUC. CODE §25.152(a)(3). Graduation ceremonies must include a disclaimer (in writing, orally, or both) that clarifies that the student’s speech does not reflect the endorsement, sponsorship, position, or expression by the school district. TEX. EDUC. CODE §25.152(a)(4). The disclaimer must be provided for as long as a need
2 Even the District’s federal funding under the No Child Left Behind Act is predicated upon the District’s certifying in writing that it has no policy which prevents, or otherwise denies participation in constitutionally protected prayer in public schools as set forth in the Guidance issued by the U.S. Department of Education. See 20 U.S.C.A. § 7904 (b); U.S. Dept. of Educ. (Feb. 7, 2003) “Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools (http://www2.ed.gov/policy/gen/guid/religionandschools/prayer_guidance.html) (student religious expression at graduation may not be restricted because of its religious (or anti-religious) content if school employed neutral criteria in selection of speakers)
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exists to dispel confusion over the district’s nonsponsorship of the student’s speech. Id. 38. The Supreme Court has also held that a government entity may create a forum
that is limited to use by certain groups or dedicated solely to the discussion of certain subjects. Perry Educ. Ass’n v. Perry Local Educators Ass’n, 460 U.S. 37, 46 n. 7; see Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 470 ( 2009). In such a forum, a government entity may impose restrictions on speech that are reasonable and viewpoint neutral. See Good News Club v. Milford Central School, 533 U.S. 98, 106–107 (2001). The RVAA codified these principles.
39. Here, the District complied with state law concerning graduation speeches and student remarks at football games, having adopted a substantially similar policy to the statute’s model policy and implemented neutral criteria for the selection of speakers. (See Appendix at ¶4). Prohibiting a student who is speaking at graduation from expressing their religious viewpoint would result in the District’s being in violation of the RVAA, in essence, discriminating against the student based on the private religious content of his or her speech.
40. The Establishment Clause by no m eans imposes a prohibition on a ll religious expression in the public schools. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 313 ( 2000) (citing Engel v. Vitale, 370 U.S. 421, 430 (1962)). Nothing in the Constitution, as interpreted by the Supreme Court, prohibits any public school student from voluntarily praying at any time before, during, or after the school day. Id. An Establishment Clause analysis calls for the difficult task of separating a student’s private message, which may be religious in character, from a state-sponsored religious message, protecting the former and prohibiting the latter; this determination is of necessity, one of line-drawing, sometimes quite fine, based on the particular facts of each case. Rosenberger v. Rector and V isitors of the Univ. of Va., 515 U.S. 819, 847 (1995) (O’Connor, concurring).
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1. Football Games 41. The touchstone decision in cases involving prayer at school football games is Santa Fe Independent School District v. Doe, 530 U.S. 290 ( 2000). In Santa Fe, the school policy at issue explicitly authorized two student elections concerning remarks at football games – first to determine whether an “invocation” should be delivered at the football games and the second to select the spokesperson to deliver them. Id. at 297, 305-06. K ey to the Court’s decision in Santa Fe was the fact that the students voted on whether to have prayer at football games at all. Id. at 297, 305 -06. It was this policy that the Court declared facially unconstitutional. Id. at 315 (“The narrow question before us is whether implementation of the [school] policy insulates the continuation of such prayers from constitutional scrutiny”). The history of the school’s policy in Santa Fe, where the school had a dedicated student chaplain that delivered prayer before football games for many years prior to the enactment of the school’s policy on vot ing on whether to have prayer, evinced a perception that the school itself encouraged prayer. See id. at 294-95, 308. T he Court held that the school’s policy did not survive a facial challenge “because it impermissibly imposes upon the student body a majoritarian election on the issue of prayer.” Id. at 316. 42. In the case at bar, the evidence shows that no pr ayer or religious remarks were even given by students at the Medina Valley High School football games from the Fall of 2000 through the Fall of 2009. (See Appendix at ¶¶54-55). During those years, the Student Council Advisor had advised the students speaking at football games not to pray or make religious remarks based on he r interpretation of the Santa Fe case. ( Id.) S he even gave those student speakers sample remarks, which most students used. (Id.) T he remarks had no reference to a deity or blessings and clearly were not a form of prayer. (Id.). It was not until the Fall of 2010
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and 2011 that a student chose to make generic, non-proselytizing religious remarks or prayer at the introduction of the football games. (See Appendix ¶56-60).
43. The religious remarks made by students Kallisyn Guoard and Jenna Bippert in 2010 and 2011, r espectively, were constitutionally permissible. Santa Fe is clearly distinguishable from the present case. U nlike Santa Fe, here, at no t ime did the student body vote on whether to allow prayer at football games. See Chandler v. Siegelman, 230 F.3d 1313 (11th Cir. 2000) (distinguishing Santa Fe based on majoritarian election process for prayers), cert. denied, 533 U.S. 916 (2001). The District has not permitted an election by the student body on whether to allow prayer at football games or on who the speakers at the games should be. (See Appendix at ¶4). Indeed, the District’s very policy prohibits a majoritarian election on religion or encouraging prayer at school events. (See Ex. C-5 (Policy FNA (Legal)). Central to the holding in Santa Fe was the fact that the school policy put the decision whether to have prayer at football games in the hands of the student body by majority vote. Santa Fe, 530 U.S. at 297, 305-06; see Chandler, 230 F.3d at 1315. That did not happen here.
44. Additionally, the RVAA which was passed after the Santa Fe decision, requires the District to create a limited public forum at any event at which a student is to publicly speak, which would include football games. TEX. EDUC. CODE. ANN. §25.152(a) (Vernon 2008). The District’s Policies FNA (Legal) and (Local) were modeled after said statute. The District’s policies created a limited public forum for introductions at football games. (See Ex. C-5, C-6). The RVAA, District Policies FNA (Legal) and (Local), and Supreme Court precedent prohibit the District from engaging in viewpoint discrimination against the student speakers in such a forum. See TEX. EDUC. CODE. ANN. §25.152(c) (Vernon 2008); Good News Club v. Milford Central Sch., 533 U.S. 98, 106-07 (2001).
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45. A policy, like the one in this case, that merely “tolerates religion does not improperly endorse it.” See Chandler, 230 F.3d at 1317. N either the District’s policies nor its employees told or otherwise encouraged the student speakers to pray or discuss religion in their introductory remarks at the football games. (See Appendix ¶¶54-61). There was absolutely no endorsement or sponsorship of any religious remarks of students by the District. See Chandler, 230 F.3d at 1317. The student speakers were free to choose their own wording in their remarks, even if they chose to include religious remarks. ( See Appendix ¶ ¶54-61). A dditionally, a disclaimer was read and printed in the football programs at all Fall 2011 football games. (See Appendix ¶60). The 2010 and 2011 student remarks were wholly the students’ own wording and solely the student’s choice as to what to say; Ms. Bippert and Ms. Guaord did not receive any input from school employees or officials concerning the content of their remarks. ( See Appendix ¶¶56-60). Any prayer that resulted from the District’s current policy (as modeled by RVAA) was wholly incidental. As stated in Chandler, “Santa Fe condemns school sponsorship of student prayer. Chandler condemns school censorship of student prayer. In their view of the proper relationship between school and prayer, the cases are complementary rather than inconsistent.” Id. at 1315. H ere, the evidence shows that no pr ayer or religious remarks occurred at football games after the Santa Fe decision in 2000 through 2009. The 2010 and 2011 student remarks at the football games were purely the students’ own words, permitted under law and not endorsed by the District. Moreover, the 2010 and 2011 remarks given by the students were non-proselytizing. See Pelphrey, 547 F.3d at 1277-78 (references to “Jesus” or other deities is not proselytizing per se; proselytizing requires aggressive advancement of beliefs or disparaging other faiths). As a result, the District is entitled to summary judgment as a matter of law denying Plaintiffs’ claims concerning prayer or religious remarks at football games.
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2. Graduation 46. The Fifth Circuit has repeatedly upheld policies allowing a student to initiate nonproselytizing and nonsectarian prayer at graduation ceremonies against Establishment Clause challenges. In Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963 (5th Cir. 1992), cert. denied, 508 U.S. 967 (1993) (hereinafter Clear Creek II), the Fifth Circuit explicitly held that the school district’s policy “allowing a student-selected, student-given, nonsectarian, nonproselytizing invocation and benediction at a high school graduation ceremony…did not violate the dictates of the Establishment Clause. Clear Creek II, 977 F.2d at 968-72; see also Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806, 815 (5th Cir. 1999), aff'd, 530 U.S. 290 (2000) (citing Clear Creek II). The constitutionality of allowing a student “to choose to pray at high school graduation to solemnize that once-in-a-lifetime event” was again upheld in Ingebretsen on B ehalf of Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 280 ( 5th Cir.), cert. denied, 519 U.S. 965 (1996); see also Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402, 406 (5th Cir. 1995). Likewise, in Doe v. Tangipahoa Parish School Board, the Fifth Circuit reflected on the facts and holding of Clear Creek II, stating “[t]he student-driven nature of the prayers…and the lack of involvement with religious institutions allowed them to pass constitutional muster.” Doe, 473 F.3d 188, 199 ( 5th Cir. 2006), vacated on ot her grounds, 494 F.3d 494 (5th Cir. 2007) (citing Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d at 968-72). 47. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) does not change the Fifth Circuit’s graduation prayer precedent. Santa Fe does not stand for the proposition that prayer initiated and led by students at graduation ceremonies violates the Establishment Clause. Indeed, the Supreme Court in Santa Fe Indep. Sch. Dist. v. Doe ruled on the issue of “prayer at football games.” Santa Fe Indep. Sch. Dist., 528 U.S. at 1002 (emphasis added). Indeed, after
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the ruling in Santa Fe, the Eleventh Circuit Court of Appeals, en banc, upheld a school’s policy that permitted seniors to elect to have unrestricted student-led messages at the beginning and end of graduation ceremonies. Adler v. Duval County Sch. Bd., 250 F.3d 1330, 1342 ( 11th Cir.), cert. denied, 534 U.S. 1065 (2001). In the Adler court’s opinion, the student messages made possible by that policy did not need to be constrained because the messages would constitute purely private speech. Id. As here, the policy at issue in Adler forbade the school officials from regulating the content of any student speech, and the policy was entirely neutral as to the content of the student’s message. Id.
48. In another post-Santa Fe case, the Eleventh Circuit held that a school district’s allowing nonsectarian, nonproselytizing student-initiated prayer, invocations, and benedictions during such events as graduation ceremonies did not violate the Establishment Clause. Chandler, 230 F.3d at 1315-16. The Eleventh Circuit court found that “Santa Fe condemns school sponsorship of student prayer, while Chandler condemns school censorship of student prayer.” Id. at 1315. Santa Fe did not obliterate the distinction between State speech and private speech in the school context. Id. at 1316. “The Establishment Clause does not require the elimination of private speech endorsing religion in public places. The Free Exercise Clause does not permit the State to confine religious speech to whispers or banish it to broom closets. If it did, the exercise of one’s religion would not be free at all.” Id.
49. Here, as mandated by the RVAA, at all times relevant to this lawsuit, the District had adopted and followed a neutral policy concerning the selection of student speakers for its graduation ceremony, unlike the unconstitutional selection by majority vote indicated in Santa Fe. The District’s students, or a “majority vote,” do not and did not vote on who their graduation speakers would be nor on whether there would be prayer at the graduation ceremony. (See
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Appendix at ¶4). Instead, the District chose its student speakers based on neutral criteria and refrained from discriminating against the student speakers based on a ny religious viewpoint expressed by the student. District Policy FNA (Local) set out the criteria for selection of student speakers. (See Appendix at ¶4). The following students were eligible to give opening and closing remarks at graduation: the top three academically ranked graduates, the class president, and student council representatives. (Id.) The valedictorian and salutatorian speakers were chosen solely on c lass rank, and the class officers and student council representatives decided amongst themselves which speaking role they would take in the graduations that occurred through 2009. (See Appendix at ¶¶31-33). In 2011, t he Lead Counselor, Julie Center, asked class officers and student council representatives if they were interested in volunteering for the speaking roles their predecessors in past years had. (See Appendix at ¶¶44-46). Additionally, the 2011 graduation program guide contained a disclaimer. (See Appendix at ¶¶47-48). No speaker was asked to pray or deliver religious remarks; the students were told that they were to write their own remarks and were to choose what to say. ( See Appendix at ¶¶33, 43, 44 -46). There clearly was no endorsement by the District of any students’ religious remarks, and no student engaged in proselytizing speech. See Pelphrey, 547 F.3d at 1277-78; see also Appendix at ¶¶31-52. As a matter of law, the Court should enter judgment in favor of the District on Plaintiffs’ claims concerning graduation.
3. The Board of Trustees had no knowledge of any alleged constitutional violations. 50. Even if a school employee violated the First Amendment, in order to hold a
school district liable for alleged constitutional violations, Plaintiffs must prove that an “official policy or custom” of the district “was a cause in fact of the deprivation of rights inflicted.” Leffall, 28 F.3d at 525. An “official policy or custom” of a school district is: (1) “a policy
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statement, ordinance, regulation or decision that is officially adopted and promulgated by the district, or by an official to whom the district has delegated policy-making authority;” or (2) “a persistent, widespread practice of district officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents district policy.” Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1304 (5th Cir.1995), cert. denied, 517 U.S. 1191 (1996); Johnson v. Moore, 958 F.2d 92, 93 (5th Cir. 1992). A ctual or constructive knowledge of such custom must be attributable to the governing body of the district or to an official to whom that body had delegated policy-making authority. Id.
51. A school district cannot be held liable based solely under a theory of respondeat superior; instead, Plaintiffs must prove that the alleged constitutional violations were committed pursuant to an official governmental policy or custom. Monell v. Dept. of Soc. Servs. of New York, 436 U.S. 658, 691 (1978); Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003). T herefore, to prove their §1983 c laims, Plaintiffs cannot rely solely on e vidence of an employee’s actions; they must identify a policymaker with final policymaking authority and a policy that is the “moving force” behind the alleged constitutional violation. Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 532-33 (5th Cir.1996); see Doe v. Wilson County Sch. Sys., 564 F. Supp.2d 766, 804 (M.D. Tenn. 2008).
52. Whether a particular official has “final policy-making authority” is a question of state law. St. Louis v. Praprotnik, 485 U.S. 112, 128 (1988). It is well-settled law that, in Texas, only the District’s Board of Trustees has final policy-making authority in an independent school district. TEX. EDUC. CODE ANN. §11.151 (Vernon 2006); Jett v. Dallas Indep. School Dist., 7 F.3d 1241, 1245 ( 5th Cir. 1993); see Barrow v. Greenville Indep. Sch. Dist. 480 F.3d 377, 381-
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82 (5th Cir.), cert. denied, 552 U .S. 888 (2007); Rivera, 349 F.3d at 247-48. Neither a superintendent of schools nor a school administrator has final policy-making authority in a school district. See Jett, 7 F.3d at 1245; see also Hinojosa v. State, 648 S.W.2d 380, 386 ( Tex. App.-Austin 1983, pet. ref’d) (“superintendent and his subordinates were but employees or agents of the trustees”); Pena v. Rio Grande City Consolidated Indep. Sch. Dist., 616 S.W.2d 658, 660 (Tex.App.—Eastland, 1981, no w rit) (“superintendent is merely an employee or agent of the school board;” “school superintendent merely performs functions delegated to him by the trustees who do not by such delegation abdicate their statutory authority or control”). C ourts carefully distinguish “between those having mere decisionmaking authority and those having policymaking authority.” Jett, 7 F.3d at 1246.
53. In the case at bar, the District’s own policy provides that the Board has full and final authority on all District policy. (See Ex. C-I; C-1, C-2 (Board Policies BBE (Legal) and (Local)). As stated in its own policy, the “Board has final authority to determine and interpret the policies that govern the schools, and . . . has complete and full control of the District.” (Id. at Ex. C-2). Additionally, the District’s Policy BBE (Legal) further states that the “Board members as a body corporate have the exclusive power and duty to govern and oversee the management of the public schools of the District.” ( Id. at Ex. C-1 (Emphasis added)). T he law and District policy are clear that neither the Superintendent nor any other administrator act as the policymaker for the District. Only the actions or knowledge of the Board itself are pertinent to ultimate liability determinations under §1983. See Jett, 7 F.3d at 1245.
54. The evidence in this case shows that, even assuming Plaintiffs’ allegations concerning employees’ speech and display of religious objects as constitutional violations, Plaintiffs’ claims still fail as a m atter of law because there was no practice or custom in Medina
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Valley ISD of any Medina Valley ISD employee or official or Officer Lynn Sides promoting, sponsoring, or encouraging religion, praying,3 making religious remarks, or displaying religious symbols, texts, or icons during school or at school events or functions. (See Appendix at ¶¶83-93). Out of the approximately 70 (seventy) classrooms and 25 (twenty-five) offices in Medina Valley High School, Plaintiffs only reported seeing purported religious symbols in approximately 7 (seven) rooms plus the central administrative office of Assistant Superintendent Martinez. (See Appendix at ¶6). That is a f ar cry from a “w idespread practice or custom” of displaying religious objects. Additionally, out of over 80 (eighty) employees at Medina Valley High School, Plaintiffs heard a combined total of 9 (nine) employees plus Officer Sides make purported religious speech. (Id.) And of those 10 (ten) people, with the exception of Plaintiffs’ allegations concerning Mr. Tyler and Trevor’s barred claims regarding Coach Payne, none of those employees made the allegedly offensive comments more than once – hardly a “widespread practice or custom” of engaging in religious speech. (See Appendix at ¶¶18-29).
55. In Doe v. Wilson County School System, a school principal had permitted, among other things, a religious parent prayer group to meet on s chool campus during the school day, permitted prayer at a student Thanksgiving classroom celebration, allowed the distribution of Bibles to students at school, and permitted the prominent display of the Ten Commandments at school. 564 F. Supp. 2d at 776-87. The plaintiffs brought their concerns about the principal’s actions to the attention of the school system’s Director. Id. at 779, 7 87-88. A lthough the principal’s actions were unconstitutional and central administrators had notice of the principal’s conduct, the school district did not have any actual or constructive notice of the principal’s inappropriate conduct. Id. at 804. As a result, the school district could not be held liable for the
3Other than the ceremonial, generic prayers at Board meetings, which the 5th Circuit is currently split on their permissibility. See Doe v. Tangipahoa Parish Bd. of Educ., 473 F.3d 188 (5th Cir. 2006), vacated on other grounds, 494 F.3d 494 (5th Cir. 2007).
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principal’s unconstitutional conduct. Id. 56. As in Wilson County School System, here, even assuming a practice or custom of
displaying religious objects or engaging in religious speech existed at the District, which the evidence clearly negates, Plaintiffs’ §1983 claims fail because the Board had no actual or constructive knowledge of any such alleged practice or custom at the District. (See Appendix at ¶¶83-93). Indeed, the official District policy actually prohibits the very thing that Plaintiffs accuse District employees of doing. Policies (EMI) (Legal) and (Local) prohibit teachers from using religious texts or materials unless such materials are used objectively in a field of study concerning history, culture, literature, music, drama, or art and are intrinsic to that field of study. (See Appendix at ¶3). Policy EMI (Local) expressly prohibits the prominent display of religious symbols unless it is being used as a teaching aid and is limited to the specific teaching activity, and Policy EMI (Legal) prohibits religious exercises, including prayer, during classroom time. (Id.) Clearly, there is no official policy of the District permitting teachers or employees to pray with students in class or otherwise promote religion.
57. The only official policies Plaintiffs can claim permit possible religious expression at school are Policies FNA (Legal) and (Local), which establish a limited public forum for student speakers at all school events at which a student is to publicly speak. (See Appendix at ¶4). While these policies do not expressly authorize religious speech, the policies do prohibit the District from discriminating against a student who may voluntarily choose to express a religious viewpoint during his or her speech. (Id.)
58. The evidence shows that Plaintiffs never brought a complaint, filed a grievance, or otherwise expressed their concerns to the Board of Trustees concerning religious objects or symbols in the classrooms or school buildings, any religious speech of any school employee or
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Officer Sides, or any religious speech by students at school events. (See Appendix at ¶¶83-85). Indeed, other than Plaintiffs’ complaint to Principal Tyler and to Mr. Martinez about Mr. Tyler’s saying “God Bless” over the loudspeaker, his complaint to Mr. Tyler regarding Mr. Turcato’s sign, and his complaint to the principal and vice-principal regarding Ms. Willing’s comment that she “would pray for him,” Plaintiffs admit that they never even complained to school administrators or to the teacher or school employee whom they believed were unconstitutionally promoting religion. (See Appendix at ¶¶18-30, 67-82). Despite Plaintiffs’ outrage concerning Officer Sides’ giving Corwyn a Christian pamphlet and Ms. Houston’s praying in class, they never reported them to anyone in the District, including the Board. (See Appendix at ¶¶28, 29, 82). This lawsuit was the first time the School Board ever heard any allegations concerning religious entanglement or promotion of religion at school. (See Appendix at ¶¶83-93). Plaintiffs acknowledged in their individual depositions that they never complained or otherwise expressed their concerns regarding the alleged promotion of religion to the Board of Trustees. (See Appendix at ¶¶17, 19, 20, 22, 28, 29, 67, 69, 71, 74, 76-79, 81-82).
59. Moreover, Corwyn and Trevor received a student handbook each school year, which detailed the procedures to file a grievance or complaint with the Board. (See Appendix at ¶5). Additionally, Assistant Superintendent Martinez explained the grievance process to Danny and Christa and told them that they could take their concerns to the Board. (Id. at ¶17). Nevertheless, Plaintiffs never followed the complaint procedures or otherwise expressed their concerns to the Board. (Id. at ¶¶5, 17, 83).
60. The Board was absolutely unaware of any alleged prayers or religious comments by employees in the classroom or at school events, any discussion of religion by Officer Sides, or any religious symbols or crosses in any employee’s office or classroom. (Id. at ¶¶83-93). As set
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out in the Appendix and its attached exhibits, a Board member does not normally have personal knowledge of the day to day classroom activities, unless the Superintendent or administrator reports concerns to the Board or a parent, student, employee, or member of the public brings the concerns to the attention of the Board, usually through the grievance process. (Id. at ¶87). Board members do not usually walk through classrooms in the District. (Id.) Having failed to ever complain about Officer Sides or any coach, teacher, or other employee in the District, Plaintiffs wholly failed to ever call to the attention of the Board the alleged promotion of religion or alleged Establishment Clause violations. (Id. ¶¶83-93). Even though they were pointed to the school’s grievance process, Plaintiffs failed take their concerns to the Board. T he evidence clearly shows that the Board had no knowledge, whether actual or constructive, of any alleged constitutional violations, endorsement of religion, or custom or practice of the same. (Id.)
61. Because there was neither an official policy nor a widespread custom or practice in the District of promoting religion, Plaintiffs’ cannot prove an essential element of their §1983 claims. Likewise, because the Board lacked any actual or constructive knowledge of any alleged custom or practice of the same, Plaintiffs’ §1983 claims fail. Therefore, as a matter of law, the District is entitled to summary judgment denying Plaintiffs’ §1983 claims.
V. CONCLUSION 62. As shown supra, the District is entitled to summary judgment on all of Plaintiffs’ claims. WHEREFORE, PREMISES CONSIDERED, for the reasons shown above, the District respectfully moves this Court to grant this Motion for Summary Judgment, deny all of Plaintiffs’ claims and requests for relief, and to further grant the District all such other and further relief, special or general, at law or in equity, to which it shows itself justly entitled.
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Respectfully submitted, WALSH, ANDERSON, BROWN,
GALLEGOS & GREEN, P.C. 100 NE Loop 410, Suite 900 San Antonio, Texas 78216 Tel No. 210-979-6633 Fax No. 210-979-7024 By: /s/ D. Craig Wood_______________ D. CRAIG WOOD ATTORNEY IN CHARGE State Bar No. 21888700 cwood@sa.wabsa.com STACY TUER CASTILLO State Bar No. 00796322 scastillo@sa.wabsa.com ATTORNEYS FOR DEFENDANT
CERTIFICATE OF SERVICE I hereby certify that on January 4, 2012, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Mr. Gregory M. Lipper Americans United for Separation of Church & State 1301 K Street, NW, Ste. 850 Washington, DC 20005
/s/ D. Craig Wood_______________ D. CRAIG WOOD
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 </s> Case 5:11-cv-00422-FB Document 122 Filed 01/05/12 Page 1 of 43

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

Christa Schultz, et al., Plaintiffs,
v. Medina Valley Independent School District,
Defendant.

Civil Action No. SA-11-CA-0422-FB
Chief Judge Fred Biery Magistrate Judge Pamela A. Mathy

______________________________________________________________________________
Plaintiffs’ Motion for Partial Summary Judgment ______________________________________________________________________________

Donald H. Flanary, III (Bar No. 24045877) GOLDSTEIN, GOLDSTEIN & HILLEY 310 South St. Mary’s Street, Suite 2900 San Antonio, Texas 78205 (210) 226-1463 (210) 226-8367 (fax) donflanary@hotmail.com

Ayesha N. Khan (pro hac vice) Gregory M. Lipper (pro hac vice) AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE 1301 K Street NW, Suite 850E Washington, DC 20005 (202) 466-3234 (202) 898-0955 (fax) khan@au.org | lipper@au.org
Counsel for Plaintiffs

Case 5:11-cv-00422-FB Document 122 Filed 01/05/12 Page 2 of 43
Table of Contents Table of Photographs ...................................................................................................................... ii Table of Authorities ....................................................................................................................... iii Introduction..................................................................................................................................... 1 Statement of Facts........................................................................................................................... 4
A. The School District’s Control Over Graduation Ceremonies............................................. 5 B. The School District Regulates, Reviews, and Revises Student Graduation Speeches ....... 6 C. Graduation Ceremonies Feature Multiple Prayers ............................................................. 9 D. The School District Reiterates Its Support for Graduation Prayer. .................................. 12 E. The School District Controls the Presentation of Prayer at Football Games. .................. 14 F. The School District Promotes Religion Throughout the School. ..................................... 17 G. The Schultz Family’s Attendance At School-District Graduations and
Football Games ................................................................................................................. 21 Argument ...................................................................................................................................... 22 I. Prayer At School-District Graduation Ceremonies Violates The Establishment Clause ........ 23
A. As in Santa Fe v. Doe, the Presentation of Student Prayer at Public Graduation Ceremonies Violates the Establishment Clause .............................................................. 23
B. The School District’s Endorsement of Student Prayer is Reinforced by the Circumstances Surrounding the Graduation Ceremonies................................................ 26 1. The School District Selects and Limits the Number of Graduation Speakers. .......... 26 2. The School District Regulates, Reviews, and Revises the Speeches’ Content. ......... 27 3. The School District Shows Its Approval of Religious Graduation Speeches............. 31
II. Prayer At School-District Football Games Violates The Establishment Clause ................... 32 III. The School District Is Liable For These Establishment Clause Violations,
And All Four Plaintiffs Are Entitled To Retrospective And Prospective Relief................... 33 Conclusion .................................................................................................................................... 35
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Case 5:11-cv-00422-FB Document 122 Filed 01/05/12 Page 3 of 43 Table of Photographs
Photo 1: Framed newspaper article autographed by Angela Hildenbrand (Exhibit BB45) ..........................................................................................................12
Photo 2: Fellowship of Christian Athletes plaque displayed by Brian Emerson (Exhibit BB60)..........................................................................................................19
Photo 3: “The Prayer of a Sportsman” displayed in boys’ locker room (Exhibit BB61)..........................................................................................................19
Photo 4: “In God We Trust” poster displayed in classroom of Patti Maldonado (Exhibits BB37–BB38) .............................................................................................20
Photo 5: “Cowboy’s Ten Commandments” displayed in classroom of Mark Wolfshohl (Exhibits BB20–21) ..................................................................................................20
Photo 6: “Steps to Failure” displayed in office of Deputy Sheriff Sides’s office in Library (Exhibit BB24)..........................................................................................................21
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Table of Authorities
Cases
ACLU of New Jersey v. Black Horse Pike Regional Board of Education, 84 F.3d 1471 (3d Cir. 1996) (en banc).........................................................................24, 29
ACLU of Ohio v. DeWeese, 633 F.3d 424 (6th Cir. 2010) .............................................................................................22
Adler v. Duval County School Board, 250 F.3d 1330 (11th Cir. 2001) (en banc) .........................................................................30
American International Specialty Lines Insurance Co. v. Canal Indemnity Co., 352 F.3d 254 (5th Cir. 2003) .............................................................................................22
Appenheimer v. School Board, No. 01-1226, 2001 WL 1885834 (C.D. Ill. May 24, 2001) ...............................................24
Carey v. Piphus, 435 U.S. 247 (1978)...........................................................................................................35
Cole v. Oroville Union High School District, 228 F.3d 1092 (9th Cir. 2000) .....................................................................................24, 29
Corder v. Lewis Palmer School District No. 38, 566 F.3d 1219 (10th Cir. 2009) ...................................................................................24, 26
Doe v. Duncanville Independent School District, 70 F.3d 402 (5th Cir. 1995) .........................................................................................31, 33
Doe v. Indian River School District, 653 F.3d 256 (3d Cir. 2011).........................................................................................25, 31
Doe v. Santa Fe Independent School District, 168 F.3d 806 (5th Cir. 1999) .............................................................................................23
Doe v. Wilson County School System, 564 F. Supp. 2d 766 (M.D. Tenn. 2008)............................................................................31
Does v. Enfield Public Schools, 716 F. Supp. 2d 172 (D. Conn. 2010) ................................................................................25
Does 1–7 v. Round Rock Independent School District, 540 F. Supp. 2d 735 (W.D. Tex. 2007)..............................................................................25
Gearon v. Loudon County School Board, 844 F. Supp. 1097 (E.D. Va. 1993) ...................................................................................24
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Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)...........................................................................................................23
Ingebretsen v. Jackson Public School District, 88 F.3d 274 (5th Cir. 1996) ...............................................................................................30
Jager v. Douglas County School District, 862 F.2d 824 (11th Cir. 1989) ...........................................................................................24
Jones v. Clear Creek Independent School District, 977 F.2d 963 (5th Cir. 1992) .............................................................................................25
Lassonde v. Pleasanton Unified School District, 320 F.3d 979 (9th Cir. 2003) .................................................................................24–26, 29
Lee v. Weisman, 505 U.S. 577 (1992).......................................................................................................2, 23
Legend Night Club v. Miller, 637 F.3d 291 (4th Cir. 2011) .............................................................................................35
Lundberg v. West Monona Community School District, 731 F. Supp. 331 (N.D. Iowa 1989)...................................................................................24
Piotrowski v. City of Houston, 237 F.3d 567 (5th Cir. 2001) .............................................................................................34
Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000)................................................................................................... passim
Stone v. Graham, 449 U.S. 39 (1980) (per curiam) ........................................................................................25
Statutes and Other Authorities
28 U.S.C. § 2201......................................................................................................................35
Federal Rule of Civil Procedure 56 .........................................................................................22
Religious Viewpoints Antidiscrimination Act, Tex. Educ. Code § 25.156 et seq .......................................................................................30
Tex. Educ. Code § 11.002........................................................................................................34
Tex. Educ. Code § 11.151........................................................................................................34
Craig Kapitan, Medina Valley Graduates Hear Prayers Aplenty, San Antonio Express-News, June 4, 2011 ...........................................................................4
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Plaintiffs move for partial summary judgment that the Establishment Clause prohibits the delivery of prayers at Medina Valley High School graduation cere monies and football gam es. Plaintiffs also respectfully request a hearing on this motion.
Introduction At their best, Medina Valley Independent Sc hool District graduations and football games can “bring together students and faculty as well as friends and family”—“from years present and past”—to celebrate or support “a common cause.” Santa Fe Indep. Sch. Dist. v. Doe , 530 U.S. 290, 312 (2000). As in the past, m embers of the Schu ltz family wish to attend these events, as part of the School District community. They wish to do so without being forced to hear prayers. The Establishment Clause gran ts them this ri ght, even if those pr ayers come from students. For although these School Di strict events are open to the public, the School District has not created a public forum for th eir student speakers. The School District plans, oversees, and controls virtually ever y aspect of its graduation cerem onies and football gam es—down to the dress codes, program layout, speaking order, choice of venue, a nd loudspeaker. So extensive is the School District’s oversight that in April 201 0, the Assistant Superintendent inform ed Plaintiffs, “While you may respectfully disagree with the format or religious portions of our district ceremonies, they are overseen a nd supported by our Board of Trus tees.” Exhibit A1 to Seventh Declaration of Gregory M. Lippe r at MVISD-157 (unless otherwis e noted, all Exhibit c itations are to the Lipper Declaration). The School District’s oversight and support extends to the choice of student speakers and the contents of their speeches. Graduation speech es are reserved for a select few: StudentCouncil officers, the senior-class P resident, and the Valedictorian and Salutatorian. At football games, just a single student—either the Stude nt-Council Vice-President or senior-class Vice-

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President—has spoken for the full season. The School District’s Student Expression Policy tells students what they can say: Gra duation speeches must “relate to the purpose of the graduation ceremony, marking and honoring th e occasion,” and speeches at football gam es must “relate to the purpose of introducing the desi gnated event.” Ex. I at 2–4. The Policy also prescribes what students can’t say, and contains an open-ended ba n on anything that “[c]reates reason able cause to believe that the speech would result in material and substantial interference with school activities or the rights of others.” Id. at 4.
To enforce these restrictions, graduation speeches are reviewed by the Principal and football speeches by the Student-Coun cil advisor. Student speakers hav e been requ ired to excise jokes about rival schools or comm ents deemed to be “insults.” When asked why the School District restricts and sometimes revises the content of student speeches, the Superintendent stated,
Because we’re not in th e ‘60s anymore. We don’t do protests. We’re here to do a school. We have a—you can say what you want to say, but there is something called taste. There is a value system that we instill. And thos e values are nothing that we want to have—if they want to do free speech like this, they need to go on the street corner, not in our schools. Ex. B1 (Stansberry Dep.) at 146:18–25. There is just one topic that the Policy speci fically authorizes: Speech from a “religious viewpoint.” Moreover, until Plainti ffs filed this lawsuit, each Sc hool District football game featured a designated Invocation, and each School District graduation featured a designated Invocation and Benediction. The Suprem e Court has rec ognized that when a school district solicits speeches with thes e names, “from a constitutional perspective it is as if a state statute decreed that the prayers must occur.” Lee v. Weisman, 505 U.S. 577, 586–87 (1992). And occurred they have. Every year, Medina Valley High School graduation cerem onies have featured multiple prayers—many of them overtly Christian, most of them asking the audience to join. Some of the prayers have been so similar from year-to-year that they appear to fol-
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low a script, which is unsurprising since the School District supplies the prior year’s speeches to the current year’s speakers. A prayer has also been delivered before virtually every home football game for at least the past three years, if not longer. Shedding the names “Invocation” and “Benediction”—in response to this lawsuit—has not reduced the number or intensity of prayers. To the contrary, the Superintendent has testified that it’s “common sense” that future graduations and football gam es will feature even m ore prayer, because “when you tell people you cannot pray, they pray.” Ex. B1 (Stansberry Dep.) at 93:4–94:11.
Much of this activity reflects what even the Superintendent admits: “[T]he religion of the community is reflected in the cu lture of the school district.” Id. at 80:22–24. A reasonable observer would be aware that School-District teachers have prayed in class, School-District security officers have proselytized, and School-District administrators have done both. Religious displays and quotations continue to populate Me dina Valley High School—including, in the boys’ locker room, a framed sign reciting “The Prayer of a Sportsman,” under the school’s logo.
Perhaps the best evidence of the School Dist rict’s constitutional violations are video recordings of speeches from the 2011 graduation ; hyperlinks to these vid eos are embedded into this motion. The Invocation-turned-Opening was a prayer; the Benediction-turned-Closing was a two-minute prayer to Christ that quoted Scripture. The Valedictorian delivered a Christian prayer lasting nearly two m inutes; the Salutatorian praised her for “walk[ing] in Christ.” T he invited Keynote Speaker, an elected State Representative, observed that “[t]he Judge of all judges com mands us to pray,” and urged the audience to “b elieve unto our Lord and Savior Jesus Christ.” These recordings illustrate that “[a]pplause er upted from the school’s packed football stadium with each ‘amen’—more so than during speakers’ frequent references to school spirit and claims of Medina Valley’s superiority over other schools,” and that the cerem ony “resembled a revival
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as much as a s mall town graduation.” Craig Kapitan, Medina Valley Graduates Hear Prayers Aplenty, San Antonio Express-News, June 4, 2011.
If the Establishm ent Clause m eans anything, there must be dayli ght between publicschool events and worship servic es. Members of the Schultz fam ily had and have the right to participate in the School-District community and attend public, School-District events—without checking their freedom of conscience at the gate.
Statement of Facts Although the School District now purports to embrace the virtues of student individuality and free expression, it actually trea ts its students as representatives of the school and larger community. Students must “acknow ledg[e] patriotism toward their country by participating in events such as Veteran’s Day Cerem onies, Pledge of Allegiance, and Flag Raising.” Ex. C 1 (2008–09 Student Handbook) at MVIS D-557. Students “must obtain prior approval from the principal before posting, circulating, or distri buting written m aterials, handbills, photographs, pictures, petitions, films, tapes, posters, or other visual or auditory materials that were not developed under the oversight of the school.” E x. C2 (2009–10 Student Ha ndbook) at MVISD-618. Students follow a strict dress code that reflects traditional gender norms; the School District regulates hair color and length, jewelry style and placement, and makeup hue—each with different rules for boys and girls. See Ex. C1 (2008–09 Student Handbook) at MVISD-543–544.1 Students, then, are viewed as extensions of the School Di strict and expected to “exhibit[] behaviors and attitudes”—“in and out of school”—“that reflect positively on their families, their school district, and their comm unity.” Id. at MVISD-557. This, in turn, infor ms the School Dis-
1 See also Ex. C1 (2008–09 Student Handbook) at MVISD-532 (distribution of written materials); Ex. C2 (2009– 10 Student Handbook) at MVISD-619, 651–52 (dress code); Ex. C3 (2010–11 Student Handbook) at MVISD-737 (distribution of w ritten materials), MVISD-738, 774–75 (dress cod e); Ex. C4 (2011–12 Student Handbook) at MVISD-835 (distribution of written materials), MVISD-836, 879–80 (dress code).
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trict’s control over student’s participation in graduation ceremonies and football games. A. The School District’s Control Over Graduation Ceremonies. The School District controls virtually all as pects of graduation, which the School District
treats as the “Super Bowl.” Ex. D1 (Center Dep.) at 165:13–17. Among other things, the School District has “full control over and responsibility for the sound system over which District graduation ceremonies are broadcast, the selection of the venue for Dist rict graduation ceremonies, the selection of student speakers for District graduation ceremonies, the order of events at District graduation ceremonies, and the dress code for st udents at District grad uation ceremonies.” Ex. E1 (Def.’s Responses to RFAs) at 4–5.
For instance, the Principal must approve the graduation dress code, which is even stricter than usual, Ex. F1 at MVISD- 1388–89, and “[s]trict dress code a dherence is required for [the] graduation ceremony,” Ex. C1 (2008–09 Handbook) at MVISD-512; Ex. C2 (2009–10 Student Handbook) at MVISD-626; Ex. C3 (2010–11 Student Handbook) at MVISD-747; Ex. C4 (2011– 2012 Handbook) at MV ISD-848. The School D istrict must approve the senior class’s choice of motto, flower, and song. See, e.g., Ex. F2 (MVISD-1048–50); Ex. G (Hildenbrand Dep.) at 183:23–184:12; Ex. H (Bippert Dep.) at 53:22–54: 7. The graduation program is drafted by a school official and approved by the Principal, who even decides whether to include the Pledge of Allegiance or National Anthem. See Ex. AA at MVISD-937, 1385, 1544, 1575, 1578, 1591.
The School District selects graduation speakers. See, e.g., Ex. D1 ( Center Dep.) at 171:21–173:3. Eligibility is lim ited to the top three students in the graduating class, the seniorclass President, and Student-Council officers. See Ex. I (Student Expression Policy) at 3. Student-Council officers have already been vetted by the School District; candidates may not run for office without faculty approval, based on candidate s’ “scholarship,” “citizenship,” “dependability,” “cooperation,” and “conduct.” Ex. C1 (2008–09 Student Handbook) at MVISD-509–10.
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The School District’s Superintendent also invites an outside speaker to deliver the graduation’s Keynote Address, and the School District is “very careful” to en sure that the keynote speakers’ remarks “are consistent with the scho ol district’s values.” Ex. B1 (Stansberry Dep.) at 177:13–17. In 2011, the Superintendent encouraged the keynote spea ker to have his rem arks “approved by the Attorney General,” in order “to protect the school district” from any fallout resulting from the speech. Id. at 178:11–12, 179:9–13.
School-District graduation pl anners revere tradition. See, e.g., Ex. D1 ( Center Dep.) at 183:8–14. When asked when the 2012 graduation ceremony would be pla nned, the Superintendent testified, “They planned that three or four years ago. They don’t change. They just keep doing the same thing.” Ex. B1 (Stansberry Dep.) at 300:4–9.
B. The School District Regulates, Reviews, and Revises Student Graduation Speeches. The School District controls the con tents of student graduation speeches. Accordin g to the Student Expression Policy, open ing and closing speeches “shall be related to the purpose of the graduation cerem ony and to the purpose of marking the opening and closing of the event; honoring the occasion, the pa rticipants, and those in attendance; bringing the audience to order; and focusing the audience on the purpose of the event.” Ex. I at 3. Th e other speeches must “relate[] to the purpose of the graduatio n ceremony, marking and honoring the occasion, honoring the participants and those in attendance, and the student’s perspective on purpose, achievem ent, life, school, graduation, and looking forward to the future.” Id. at 4. This Policy often guides students towards relig ion and prayer, which can alm ost always fit within criteria that are otherwise event-specific. According to one 2011 graduation speaker, “[The Policy] said that the speech es that are given were supposed to talk about the things that brought you to this point and all—and things that had gotten you to gr aduation. And I believe that I got there because of my faith and the things—and the re sources that God has given me. So
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I mean, I needed to thank who I believe was responsible for that.” Ex. J (Petty Dep.) at 151:9–17. Moreover, the Policy specifically singles out religious speech and religious speech alone, permitting “a student’s voluntary expression of a religious viewpoint, if any, on an otherwise perm issible subject.” Ex. I at 4.
Until Plaintiffs filed suit, the School Distri ct designated one speech as an “Invocatio n” and another as a “Benediction.” See Ex. E1 (Def.’s Responses to RFAs) at 4; Ex. O1 (2007 program) at Schultz-229; Ex. O2 (2009 program ) at Schultz-235; Ex. O3 (2010 program ) at MVISD-972; Ex. O4 (draft 2011 program ) at MVISD-949. In so doing, th e School District ensured that students would deliver prayers. For instance, the 2011 Benediction assignee drafted a prayer, because she “was told that [the Benediction] was the same as the invocation”; when previously asked to g ive an Invocation at football g ames, she “used Google Definitions and found out what an invocation was.” Ex. K (Gouard Dep.) at 26:22–25, 27:18–24, 29:7–8.
The School District also provides each year’s speakers with c opies of the previous year’s speeches—many of which were them selves prayers. For ins tance, when the students selected to speak in 2011 asked Ms. Center (t he graduation planner) for guidance about content, she distributed the prior year’s speeches as a “way to address all the questions [she was] getting about what should [the speeches] say.” Ex. D1 (Center Dep.) at 178 :17–179:3; see also Ex. L (MorenoHewitt Dep.) at 99:2–19; Wurn Aff. [Dkt. # 118-27] ¶ 9. Ms. Center told the 2011 speakers that they “could say the exact same thing as the year before.” Ex. J (Petty Dep.) at 113:13–18.
The Student Expression Policy contains additional restrict ions on graduation speeches, prohibiting students from saying anything that (1) “[p]ro motes illegal drug use”; (2) “[v]iolates the intellectual property rights, pr ivacy rights, or other rights of another person”; (3) contains “defamatory statements about public figures or others”; (4) “[a]dvocates imminent lawless action
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and is likely to incite or produce such action”; or (5) “[c]reates reasonable cause to believe that the speech would result in m aterial and substa ntial interference with school activities or th e rights of others” Lipper Decl., Ex. I at 4. According to the Superintendent, these restrictions help the School District prevent “students from hurting other students or embarrassing people or causing harm, embarrassment to themselves at a young age.” Ex. B1 (Stansberry Dep.) at 134:5–8.
When asked why the School District doesn’t o ffer student speakers more latitude, the Superintendent explained,
Because we’re not in th e ‘60s anymore. We don’t do protests. We’re here to do a school. We have a—you can say what you want to say, but there is something called taste. There is a value system that we instill. . . . Id. at 146:18–25. He added, “if [students] want to do free speech like this, they need to go on the street corner, not in our schools.” Id. To enforce these restrictions on stu dent speech, the School District req uires graduation speakers to submit their remarks for prior approval. Students give their remarks to the school official in charge of planning graduation, who reviews the speeches and gives them to the Principal for his rev iew. See, e.g., Ex. D1 (Center Dep.) at 190:1 4–19, 195:13–196:5; Ex. L (MorenoHewitt Dep.) at 101:10–15, 103:9–17; Wurn Aff. [Dkt. # 118-27] ¶ 7. The School District reserves th e right to require revisions. See Ex. F3 (graduation to-do list) at MVISD-1916 (“Check for appropriate content as well. Be sure to get their e-mail address, in case you need to have them revise their speeches.”). And accord ing to the Student Expression Policy, “[a] student is not using his or her own words when the st udent is reading or perform ing from an approved script, is delivering a message that has been approved in advance, or otherwise supervised by school officials.” Ex. I at 1. On two occasions, the teacher who planned the 2007, 2008, and 2009 graduation ceremonies revised a student’s gradua tion speech “when [she] determ ined that the speaker’s proposed
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wording might slander or publicly insult o r humiliate another person.” Wurn Aff. [Dkt. # 11827] ¶ 9. And in 2011, the Principal had a problem w ith David Wurzbach’s Salutatorian address, and he asked graduation planner Julie Center “to talk to David” about revising the speech, which poked fun at “another school.” Ex. D1 (Center Dep.) at 196:14–21. The Salutatorian’s revised speech omitted the joke. See id. at 198:7–199:10.
C. Graduation Ceremonies Feature Multiple Prayers. Every year, the graduation ceremony contains multiple prayers, including in the In vocation and Benediction. At Trevor Schultz’s grad uation in 2009, the Invocation stated, “Thank you for letting us gather here this evening in celebr ation. . . . [W]e ask for guidance in allowing and encouraging us to use our individual gifts and talent s in ways that make a difference. . . . In your name we pray.” Ex. N1 at MVISD-1972. Other y ears’ Invocations featured similar prayers. See, e.g., id. at MVISD-1929 (2007: “Bless us as w e gather here today. . . . Thank you for the wisdom, hope, and love you have be stowed upon us. . . . Amen.”); id. at MVISD-1947 (2008: “Please reside in all of our hear ts and minds, guiding us down the ri ght paths, as we persist in to the future. . . . In your nam e we pray.”). From 2007–2009, audience m embers were asked to stand and bow their heads. See id. at MVISD-1928–29, 1946–47, 1972, 1974. Moreover, from 2007 until 2009 the Benedictions were virtually identical:

2007 Benediction
“The graduates of 2007 would like to close this ceremony with a moment of reflection. Please bow your heads.”
“We would like to thank you for allowing us to be brought together this evening to celebrate the many accomplishments in our lives.”
“We are incredibly grateful for all the blessings that you have bestowed upon us.”

2008 Benediction “The graduates of 2008 would like to close this ceremony with a moment of reflection. Please bow your heads.”
“We would like to thank you for bringing us together this evening to celebrate the many accomplishments in our lives.”
“We are incredibly grateful for all the blessings that you have bestowed upon us.”

2009 Benediction “The Graduates of 2009 would like to close this ceremony with a moment of reflection. Please bow your heads.”
“We would like to thank You for bringing us together tonight to celebrate our many accomplishments.”
“You have bestowed many blessings upon us.”

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2007 Benediction
“Collossians Chapter 1 verse 10 says: ‘And we pray . . . that you may live a life worthy of the Lord and may please him in every way; bearing fruit in every good work, and growing in the knowledge of God.’”
“We ask that you continue to walk with us and support us through our many endeavors as we now go forward into our lives.”

2008 Benediction
“Romans, Chapter 12 verse 2 says, “Be not conformed to this world: but be ye transformed by the renewing of your mind, that ye may prove what is the good, and acceptable, and perfect will of God.”
“We ask that you continue to walk with us as we are about to face many life changing decisions, and support us through our many endeavors as we now go forward with our lives.”

2009 Benediction
“Matthew Chapter 17, Verse 20 says, “I tell you the truth, if you have faith as small as a mustard seed, you can say to this mountain, ‘Move from here to there’ and it will move. Nothing will be impossible for you.”
“We ask that You continue to walk with us as we enter into this new and exciting time in our lives.”

Id. at MVISD-1939–40, 1942–43, 1961–62 (emphasis in original). The 2010 graduation ceremony also featured an Invocation and Benediction, Ex. O3 (2010 pr ogram); their precise contents are unknown because the School District did not retain its written copies.2
On the eve of the 2011 graduation, in response to this lawsuit, th e School District renamed the “Invocation” to “Opening Re marks” and the “Benediction” to “Closing Re marks.” Compare Ex. O4 (draft program) at MVISD-949, with Ex. O5 (final program) at MVISD-5. The 2011 graduation planner did not think that this cha nge was material: “Q. What is the difference, in your view, between an invoca tion and an opening statem ent? A. Nothing. Q. What, in your view, is the difference between benediction and cl osing statement? A. Nothing.” Ex. D1 (Center Dep.) at 215:3–8. The Benediction assignee ag reed: “Q. Okay. So opening rem arks you understood to simply be another nam e for the invocation? A. Yes. Q. And did you understand closing remarks to simply be another name for benediction? A. Yes.” Ex. K (Gouard Dep.) at 174:10–22.
The contents of the Invocation and Benediction stayed the same after they were renamed.

2 Many other graduation speeches have also contained prayers or otherwise promoted Christianity. In 2008, the Class President stated, “You are a child of God. . . . We were born to make manifest the glory of God that is within us.” Ex. N1 at MVISD-1949. The 2008 Valedictorian observed, “we know that God has been there for us as we have struggled because he is here with us now as we succeed.” Id. at MV ISD-01958–59. In 2 009, the Class Pr esident urged, “always have faith in yourself and in God.” Id. at MVISD-1967. And in 2010, the Salutatorian advised, “follow[] the example of the greatest servant-leader of all, Jesus Christ.” Id. at AH-016.

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The 2011 Opening began, “Those who wish, will you please pray w ith me,” and continued , “Dear Lord, as we begin this evening’s graduati on ceremony, we want to give you the glory. . . . Strengthen our faith, Lord, so that in adversity we can remain true to you. . . . In your nam e we pray. Amen.” Ex. CC2 (video of Opening Remarks); Ex. N2 at MVISD-214 (written copy). The Closing was a Christian prayer la sting nearly two minutes; it requested that “[t]hose who wish, please pray with m e,” addressed “D ear heavenly father,” quoted Corinthians, asked that “the power of Christ may dwell in me,” called on th e “Lord [to] help us all to rem ain diligent in our faith,” and concluded, “In Jesus’ name we pray.” Ex. CC10 ( video of Closing Remarks); Ex. N3 (Gouard written speech); Ex K (Gouard Dep.) at 7:9–15, 186:2–9.
The Valedictorian, Angela Hild enbrand, delivered a Christian prayer that lasted nearly two-minutes. See Ex. G (Hildenbrand Dep.) at 213:11–219: 8; Ex. J (Petty Dep.) at 181:25– 182:5; Ex. K (Gouard Dep.) at 20:3–21:3. She stated, “Lord I thank you so much for the blessing of this day . . . . Lord I t hank you so much for your presence in our lives through these eighteen years and I just praise you for your incredible faithfulness . . . . God I thank you for the gift of your Son and the forgiveness that surpasses all unde rstanding . . . . And it is in Jesus’ nam e, I pray amen.” Ex. CC6 ( video of prayer); Ex. CC5 ( video of full speech ). The Salutatorian, who introduced her, proclaimed that she “walks in Christ.” Lipper Decl., Ex. CC4 ( video of introduction); Ex. C C3 (video of Salutatorian’s full speech). After each of the Opening, Closing, and Valedictorian prayers, the audience shouted, “Amen!” See Exs. CC2, CC6, CC10.
Finally, the Keynote Speaker, State Representative John Garza, prayed and proselytized. He noted that at the 2010 graduation, his daughter had delivered a speech about “service, and it used Christ Jesus as the example,” Ex. CC8 (first video excerpt), and observed that, “It’s almost humorous that we were almost mandated today not to pray, by our own courts” because “[t]he
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Judge of all judges commands us to pray,” Ex. CC9 (second video excerpt). Then he prayed:

Today is a day to pray. To pray for rain for our farmers and ranchers, to pray to restore our water table, to pray for our U.S. and local econom y to be restored and our debts to paid so you guys have a future. . . . Today we need to pray for those devastated by wildfires throughout Texas . . . .
We pray for you, graduates, that your fu ture be as bright and prom ising as the one I share with you today. To join me in this great adventure of faith in God. That if we all w ork together for the Good, like we did this week, then good things happen.

He ended, “believe unto our Lord and Savior Jesus Christ.” Id. (second video excerpt); see also

Ex. CC7 (video of full Rep. Garza Keynote Address).

The Superintendent thought that Representative Garza’s references to prayer we re “un-

timely,” but his concerns were with “the tone of his voice, not wh at he said as m uch.” Ex. B1

(Stansbery Dep.) at 178:6–7, 181:10–11. The School District would permit future student speak-

ers to make the same remarks. See id. at 182:1–6.

School-District teachers have also demonstrated their support for graduation prayers. For

instance, a newspaper article about the 2011 gr aduation—entitled “Medina Valley Graduates

Hear Prayers Aplenty”—has been framed and is currently

displayed in a teacher’s classroom at Medina Valley High

School. See Exs. BB46–47. Next to it is a fram ed article

detailing Ms. Hildenbrand’s intervention in this case. See

Ex. BB45. Each article bears her autograph, accom panied

Photo 1. Newspaper article, autographed by Angela Hildenbrand, displayed in classroom of
Donna Schorr (Dec. 23, 2011).

by a heart and a cross. See Exs. BB45–47.

D. The School District Reiterates Its Support for Graduation Prayer.

Since early 2010, the S chultz family has atte mpted to convince the School District to

craft a m ore inclusive graduation cerem ony. In a letter to Mr. Mar tinez dated April 8, 2010,

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Christa Schultz described her family’s experience at the 2009 graduation: As everyone around our group took to their feet and bowed their heads, we were compelled to remain in our se ats, overtly excluded from portions of the ceremony that included group prayer, and subjected to imm ediate consequences by way of glares, whispers (“W hose family is that?), and pointing from the other (prayerful) pare nts and attendees. One person nearby went so far as to m ove several rows away from us, as if close contact might somehow be harmful.
Ex. A1 at MVISD-150. She asked the School District to instead include a moment of silence in the 2011 ceremony. Id. at MVISD-150–53. The School District refused, explaining, “While you may respectfully disagree with the format or religious portions of our dist rict ceremonies, they are overseen and supported by our Board of Trustees.” Id. at MVISD-156–57.
On October 15, 2010, Am ericans United for Se paration of Church and State asked the School District, in writing, to refrain from including prayers in the 2011 graduation cerem ony. See Ex. A2. The School District did not respond. In May 2011, after the School District confirmed to Corwyn Schultz that p rayers would take place, Americans United asked the Schoo l District to reconsider its decision. See Ex. A4 at MVISD-6. W hen the School District again refused and the Schultz fam ily filed this lawsuit, the School District issued a press release stating, “[T]raditionally, our student speakers have chosen to speak words that g reatly reflect our community standards, beliefs and va lues. We are proud of the m and the words they have spoken for the past 50 years.” Ex. A3 at MVISD-465.
At the 2011 graduation cerem ony the following week, the School Dist rict included, for the first time, a written and oral dis claimer. Ex. O1 (2007 program ) at Schultz-228–32; Ex. O2 (2009 program) at Schultz-234–38; Ex. O5 (2011 pr ogram) at MVISD-4; Ex. E3 (Def.’s Responses to Trevor Interrogatories ) at 5. Before reciting the disc laimer, the Superintendent announced, “we have to make a little statement.” Ex. CC1 (disclaimer video).
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E. The School District Controls the Presentation of Prayer at Football Games. The School District exercises the sam e level of control over speakers at football games. In addition to banning s peech that promotes drug use, violates privacy rights, or “[c]reates reasonable cause to believe that the speech would result in material and substantial interference with school activities or the rights of others,” speech es at football gam es must “relate to the purpose of introducing the designated event.” Ex. I (Student Expression Policy) at 2. This requirement effectively excludes topics related to politics, policy, or social issues. According to the Superintendent, “if you’re at a football game, you don’t start talking about a problem with the ag[riculture] departm ent”—the speeches should “relate[] to the football.” Ex. B1 (Stansberry Dep.) at 144:7–9. B ut as with gr aduation, the Policy expr essly permits prayer, even though the link to football is tangential: “Q. Okay. And then how do—how is it that prayers get in there if the purpose is introducing the footba ll game? A. I think they pray for the students on both sides, for their health and their protection.” Id. at 144:10–15. Moreover, until this year, the Stud ent Council Constitution required th e Second VicePresident to sign an oath agre eing to “present the welcome and invocation at all athletic events when asked and any school or council functions.” See Ex. T at MVISD-1796 (em phasis added). Thus, when she was elected Second Vice-President at the end of her junior year, School District officials told Kallisyn Gouard that she would deliver an Invocation at fall 2010 hom e football games. See Ex. K (Gouard Dep.) at 25:18–19. By soliciting an Invocation, the School District guaranteed a prayer bef ore every game. After receiving her assignment, Ms. Gouard “used Google Definitions and found out what an invocation was.” Id. at 26:22–25. Her research revealed that an Invocation was a prayer: “Q. And why did you decide to include a prayer to God in your invocation? A. Because I’m Christian and, all the invocations that I read off of Google, that’s what they were.” Id. at 27:18–24.
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Ms. Gouard delivered one of three prayers before every hom e game over the publicaddress system. See id. at 26:4–8. One of them read,
Dear Lord, Thank you for bringing all athletes, co aches, and fans here together tonight. We ask that the boys play to th eir greatest ability, and in the m ost respectable way. We pray for the s afety of all athletes com peting tonight, on the field and in the gym . And we pray for the well being of the visiting team and the officials on their journey home. In Jesus’ name we pray—Amen. Ex. U1; Ex. K (Gouard Dep.) at 125:23–127:4. He r other Invocations al so began “Dear Lord” and ended with “Amen.”3 In 2011, the School District renam ed the “Invo cation” to “Mom ent of Reflection,” and also added a disclaimer for the first time. See Ex. B1 (Stansberry Dep.) at 89:1–22; id. at 92:23– 93:5; Ex. E3 (Def.’s Responses to Trevor Interr ogatories) at 5. But the result was the sam e: A lone senior-class officer delivered a prayer over the public-address system before every home game. During the summer before the 2011–12 school year, the Student Council advisors granted a request from senior-class Vice-President Jenna Bippe rt that she be sele cted to deliver the student remarks before each home football game. See Ex. H (Bippert Dep.) at 81:21–82:22, 85:3–8. Ms. Bippert was told to deliver a “Moment of Reflection” and to “ask people [in the audience] to join.” Id. at 86:9–10. The Student C ouncil advisors required Ms. Bippe rt to submit her remarks for advance approval. See id. at 95:16–96:14.
3 See id. (“Dear Lord, Thank you for bringing all the athletes, students, families, friends and fans together tonight. We ask that the boys play to their greatest ability. Keep all athletes safe as th ey compete, filling their hearts with courage, their spirits with passion and their minds with wisdom. We ask that you protect both teams, coaches, fans, and officials safe on their journey home. Amen.”); id. (“Dear Lord, Thank you for bringing all athletes, students, families, friends and fans here tonight. We ask that the boys play to their greatest ability and in the most respectable way. Keep all athletes safe as th ey compete, filling their hearts with courage, filling their spirits with passion, and their minds with wisdom. We ask t hat you protect both teams, coaches, fans and offi cials safe on t heir journey home. Amen.”).
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Before her remarks, the public-address announcer asked the audience to “remain standing please [for] Ms. Jenna Bippert, for the m oment of reflection”; with the audience standing, Ms. Bippert delivered the sam e prayer at each game—beginning “Dear Lord ” and con cluding, “In your name we pray, Am en.” Ex. CC11 ( video of Oct. 7, 2011 Moment of Re flection); Ex. R (Danny Dep.) at 71:22–72:8; Ex. S (Christa Dep.) at 77:9–11.4
From fall 1993 until fall 2008, the School District appears to have played an even greater role in shaping the content of Invocations at football games. The School District has subm itted an affidavit from Kathleen Wurn, the Student-Council advisor “[f]rom 1993–94 through 2008– 09 school years”; she confirms that each y ear, remarks at football games were delivered exclusively by the Student-Counc il Second Vice-President. See Wurn Aff. [Dkt. # 118-27] ¶¶ 2–3. Ms. Wurn avers that during this tim e period, she distributed to speakers a sam ple, non-religious statement “that they could read from verbatim or use as a template for their own remarks at football games.” Id. Finally, Ms. W urn “required [the select ed speakers] to provide [her] a copy of their proposed remarks in writing if they planned to deviate from the sample statement.” Id. ¶ 4.
Ms. Wurn also avers that—in response to “the 2000 U.S. Supreme Court decision of Santa Fe Independent School District v. Doe,” id. ¶ 3—she told students that if they chose to deviate from the pre-written s tatement that she provided them, “they were not allowed to pray or m ention anything religious in their remarks,” and that when sh e reviewed the drafts of the studen t remarks, she “purposefully looked for and m ade sure the students’ remarks did not use anything like ‘God’s name we pray,’ ‘In Jesus’ nam e we pray,’ ‘Dear Lord,’ ‘Hea venly Father,’ or any-
4 See Ex. U2 (written copy of Moment of Reflection: “For those who would like to join me, please stand and bow your heads for the moment of reflection. Dear Lord, thank you for allowing us to gather here safely tonight. Please watch over all wh o are p articipating in tonight’s events. Please help the players, coaches, and fans shoe good sportsman-like conduct during tonight’s game. Please watch over all of the troops, especially the ones overseas and let them return safely to th eir families. Finally Lord, please be with everyone and grant us all a safe journey home. In your name we pray, Amen.”); Ex. H (Bippert Dep.) at 9:21–10:3, 84:25–85:5 (identifying pregame remarks).
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thing that would appear to be a prayer in any way.” Id. ¶ 4. And she avers that she heard no student deliver a prayer at the home games she attended from fall 2000 until fall 2008. Id. ¶ 6.
Despite Ms. Wurn’s efforts, multiple current and former students have testified that prayers were delivered at virtually every home football game that they attended while at Medina Valley High School. See Ex. G (Hildenbrand Dep.) at 128:15–19 (attended 20 home games from fall 2007 until fall 2010: “I would say that there was probably a prayer at almost every one of them”); Ex. K (Gouard Dep.) at 27:25–28:17. And Ms. Bippert, who will graduate in 2012, has attended games since she was “[f]our or five” and remembers hearing a pray er before “each home football game.” Ex. H (Bippert Dep.) at 81:9–17. At the least, this third-party testim ony confirms that after Ms. Wurn retired, a prayer was delivered before every home football game in fall 2009, fall 2010, and fall 2011.
F. The School District Promotes Religion Throughout the School. Discovery has illustrated a wide range of pray er and pros elytization by School District officials—at board m eetings, awards ceremonies, faculty gatherings, athletic competitions, and even in class. For the purpose of this summ ary-judgment motion, the exam ples below come exclusively from admissions or testimony of School-District officials or third parties. The School District acknowledges that nearly every public Board of Trustees m eeting from January 2009 to May 2011 began with a prayer delivered by the Superintendent or Assistant Superintendent. See Amended Answer [Dkt. # 80] ¶ 65. Si nce at least 2008, the Superintendent or Assistant Superintendent has also delivered a “Christian prayer” or “Protestant prayer” at the School District’s an nual Faculty Convocation. See Ex. B1 (Stansberry Dep.) at 76:13–14, 249:5–20; Ex. V (handwritten prayer) at MVIS D-1338. The Superintendent has delivered prayers at most if not all employee-appreciation ceremonies, which some students attend. See Ex. W1 at MVISD-1212–28; Ex. B1 (Stansberry Dep.) at 257:4–258:10; Ex. Z (Tyler Dep.) at 96:6–7.
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Teacher and coach Nicol Houston prayed with her students in class “on two occasions.” Amended Answer [ Dkt. # 80] ¶ 38. Until rece ntly, the wa lls of her classroom displayed two crosses, as well as a poster and a p laque that each contain ed a Bible v erse. See Ex. E4 (Def.’s Supp. Responses to First Interrogatories) at 6. Th e School District has permitted her to continue displaying a cross on her wall. See Exs. BB15–17.
Lead Counselor Julie Center, who planne d the 2011 graduation, signed m any of her school emails with a Biblical quote that reads, “‘Be strong and c ourageous. Do not be afraid; do not be discouraged, for the LORD your God will be with you wherever you go.’ Joshua 1:9.” See Ex. D2 at MVISD-946, 963, 1149, 1345, 1352–53, 1388, 1390, 1544–45, 1549–56, 1564, 1572, 1574, 1576, 1578, 1583, 1719, 1722–23, 1731. In correspondence with Danny Schultz about Corwyn, then-Vice-Principal Turcato signed certain emails with the phrase “God Bless” or “God bless you.” Ex. X (em ail examples) at Schultz-282. A Bible verse adorned Mr. Turcato’s window, visible to anyone passing in the hallway. See Ex. D1 (Center Dep.) at 271:16–272:9.
Students who are selected by School District o fficials or elected by their peers have delivered prayers at multiple annual awards banquets and the annual scholarship ceremony. Ex. B1 (Stansberry Dep.) at 98:3–5; 101:7–20; Ex. K (Gouard Dep.) at 136:3–7, 137:17–19; Ex. W2 (2008, 2009, 2011 scholarship ceremony progr ams) at MVISD-1782–83, AH-002; Am ended Answer [Dkt. # 80] ¶ 105. For instance, a high-sc hool guidance counselor se lected a student to deliver the Invocation at the 2011 scholarship ceremony; he gave “a Christian prayer” that referenced “God the Father.” Ex. G (Hildenbrand Dep.) at 143:10–25; E x. K (Gouard Dep.) at 133:23–134:5; Ex. E2 (Def.’s Responses to Corwyn Interrogatories) at 4.
The School District has repeatedly promoted religion to student athletes. Former students have testified or averred that the coach of the women’s basketball team required team m embers
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to participate in p rayer circles, the coach of the volleyball

team participated in p rayer circles with stude nts, and th e

coach of the women’s soccer team directed and participated in

a prayer circle with s tudents. See Ex. K (Gouard Dep.) at

105:23–109:17 (volleyball), 111:1–113:17 (basketball); Dkt. #

14-1, Ex. 7 (Figueroa Decl.) ¶ 4 (women’s soccer). Medina

Valley High School administrators—including the Principal—

Photo 2. Office of head football coach Brian Emerson (Dec. 23, 2011).

have delivered prayers or proselytized at meetings of the high-

school’s chapter of the Fellowship of Christian Athletes. See Ex. G (Hildenbrand Dep.) at 92:20–

93:1; id. at 103:22–104:6; Ex. K (Gouard Dep.) at 50:14–24. The football coach (and athletic di-

rector) received an award—still di splayed in his office at the sc hool’s athletic facility—praising

his “awesome dedication and support” to the “Medina Valley Fellowship of Christian Athletes”:

“Where GOD Reigns and Panthers Rule.” See Ex. BB60.

In late October 2011, Mr. Em erson wrote to th e high-school coaches that they “m ay not

share [their] faith or participat e in prayer, etc with our athlet es.” Ex. A5 at MVISD-1741. Other

than a similar verbal instruction in July 2011, th is was the first such admonition since “[i]n or

around 2002.” Lipper Decl., Ex. E2

(Def.’s Responses to Corwyn Interrog-

atories) at 5. Yet as of Decem ber 2011,

the boys’ locker room displayed a

framed sign—bearing the School Dis-

trict’s logo—setting forth the “P rayer

of a Sportsman.” Ex. BB61.

Photo 3. Boys’ locker room (Dec. 23, 2011).

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Finally, a number of other religious icons, objects, and quotations appear throughout Me-

dina Valley High School. A sign on the front wall of one classroom proclaims in “God W e

Trust,” with its small-print identification as the national motto barely visible at the bottom of the

sign. See Exs. BB37–38. Another classroom has a

sign on its wall rec iting the “T exas 10 Co m-

mandments,” including admonitions to believe in

“Just one G od,” “Put nothing’ before God,” and

“Git yourself to Sunday m eeting.” See Exs. Photo 4. Classroom of Patti Maldonado (Dec. 23, 2011).
BB20–21. A cup, containing the logos of both Medina Valley Hi gh School and the Baptist

Church of Castroville, stores pe ns and rulers in o ne classroom; another of the sam e cup sits on

the desk in the main lobby. See Exs. BB6–7, BB18–19. The school nurse’s office displays a sign

quoting Scripture,

Exs. BB13–14, and

her office is som e-

times visited by stu-

Photo 5. Classroom of Mark Wolfshohl (Dec. 23, 2011).

dents, Ex. Z (Tyler

Dep.) at 69:21–23; Ex. P (Corw yn Dep.) at 30:15–18. And a recent inspection of Medina Valley

High School revealed over a dozen crosses and over a dozen religi ous icons, most of which re-

side in classrooms. See Exs. BB2–3, 8, 10, 13, 15, 20, 22, 25, 27, 29, 30, 32–33, 35, 37, 41, 44,

47, 51, 54–55, 57–59, 61, 63, 65, 67–68. The School District permits teachers to display such ob-

jects in their classrooms even “when students are present.” Ex. Y (Martinez Dep.) at 674:12–25.

Finally, the School Distri ct’s security officer is a Sheri ff’s Deputy, Officer Sides, who is

identified on the School District’s website as “District Staff.” See Ex. M1; Ex. M2 at Medina-5–

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21. When Corwyn was a student, Officer Sides gave him a Christian pamphlet after learning that he was not a Christian. See Amended Answer [Dkt. # 80] ¶ 37.
Until this fall, Officer Sides displayed several religious displays—including a woo den cross, posters with biblical references, a clock displaying a Psalm, and a depiction of Jesus—in his office in the schoo l library, where he so metimes meets with students. See Ex. E4 (Def.’s Supp. Responses to First Interrogatories) at 6; Ex. B1 (Stansberry Dep.) at 123:22–125:8; Ex. Y (Martinez Dep.) at 299:2–10, 315:2–9. Although it recently required Officer Sides to remove those items, the School District has permitted him to retain an upright wooden cross on his desk, Exs. BB22–23, and a sign warning that “Praylessness” is one of three “S teps to Photo 6. Office of Officer Sides in
school library (Dec. 23, 2011).
Failure,” Ex. BB24. Much of this activity reflects what even the Superintendent admits: “[T]he religion of the
community is reflected in the culture of the school district.” Ex. B1 (S tansberry Dep.) at 80:22– 24. For instance, the School District has included prayers at various events because “the community is a very religious comm unity,” “[o]ur staff is m ostly Christian,” and “it’s been the cu lture of the school district.” Id. at 80:12–21, 81:6–8, 257:19–23. At his fi rst Faculty Convocation, in fall 2007, the Superintendent told the entire faculty that the School District “should be governed by Judeo-Christian values.” Id. at 306:5–307:2.
G. The Schultz Family’s Attendance At School-District Graduations and Football Games.
All four Plaintiffs experienced prayers at the 2008 and 2009 graduation cerem onies. Trevor experienced prayers at the 2011 graduation; Corwyn, Christa, and Danny skipped Corwyn’s graduation in 2011 because of the prayers. Corw yn, Christa, and Danny a ttended all home foot-
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ball games in 2007 and 2008; Danny attended two games and Christa attended one gam e in 2011; Corwyn declined to attend football games this fall because of the likely prospect of prayer. All four Plaintiffs wish to attend the gradua tion ceremonies of family friends in 2012, 2013, and 2014; Danny and Corwyn wish to attend future home football games as well.5
Even the School District’s Superintendent adm its that prayers at these events are inevitable. He testified that it’s “common s ense” that there will be m ore prayers at future School District events, including at graduation s and football gam es, because “w hen you tell people you cannot pray, they pray.” Ex. B1 (Stansberry Dep.) at 93:4–94:11.
Argument Plaintiffs are entitled to summary judgment on their claims that the School District’s policy permitting prayers at graduation ceremonies and football games have violated and will violate their rights under the Establishm ent Clause. Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate where “the record indicates that there is no genuine issue as to any material fact and that the m oving party is entitled to judgm ent as a m atter of law.” Am. Intern. Specialty Lines Ins. Co. v. Canal Indemnity Co. , 352 F.3d 254, 260 (5th Cir. 2003) (quotations omitted). The application of the coercion and endorsement standards to undisputed facts is a question of law, ACLU of Ohio v. DeWeese, 633 F.3d 424, 434–35 (6th Cir. 2010), and reveals that the graduation and football prayers endorse religion and coerce religious practice.
5 Christa: Third Christa Decl. [Dkt. #52-2] ¶ 2 –4, 9–10; Fifth Christa Decl. [Dkt. # 101-9] ¶ 2 ; Ex. S ( Christa Dep.) at 50:23–53:6, 69:11–16, 80:7–11, 84:9–85:9, 88:12–89:21, 123:20–126:6.
Danny: Second Danny Decl. [Dkt. #52-2] ¶ 2–4, 9–10; Fourth Danny Decl. [Dkt. # 101-9] ¶¶ 2, 12; Ex. R (Danny Dep.) at 47:1–4, 49:9–50:23, 51:2–53:19, 58:11–60:25, 105:17–108:21, 158:24–159:3.
Corwyn: Third Corwyn Decl. [Dkt. #52-2] ¶ 2–4, 8–9; Fifth Corwyn Decl. [Dkt. # 101-9] ¶¶ 2–3; Ex. P (Corwyn Dep.) at 83:8–84:6, 89:2–90:1, 92:6–12.
Trevor: Second Trevor Decl. [Dkt. #52-2] ¶¶ 2–4, 11; Ex. Q (Trevor Dep.) at 43:9–44:17, 46:3–7, 49:12–25.
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I. Prayer At School-District Graduation Ceremonies Violates The Establishment Clause. A. As in Santa Fe v. Doe, the Presentation of Student Prayer at Public Graduation Ceremonies Violates the Establishment Clause. Despite this case’s controversy, on the fully-developed record it presents a straightfor-
ward application of Lee v. Weisman and Santa Fe v. Doe . When a sch ool includes prayer in its graduation ceremonies, it effectively “require[s ] participation in a religio us exercise,” Lee, 505 U.S. at 594, and conveys “both perceived and actual endorsem ent of religion,” Santa Fe, 530 U.S. at 305. These rules apply even when prayers are presented by invited speakers or students. See id. at 307–08; Lee, 505 U.S. at 5 87. As detailed on pages 9–12 and the accompanying links to video recordings, School-District graduation ceremonies have featured multiple prayers each year—including, in 2011, a series of lengthy prayers that were expressly sectarian and that overtly proselytized. See Exs. CC2 (video of Opening Re marks); CC10 (video of Closing Re marks); CC6 (video Valedictorian excerpt); CC9 (video of Keynote Address excerpt).
The School District is unable to inoculate its student prayers by ca lling the graduation a “limited public forum.” As the Fifth Circuit explained in Santa Fe, graduation ceremonies “have never served as forum s for public debate or di scussions, or as a forum through which to allow varying groups to voice their views.” Doe v. Santa Fe Indep. Sch. Dist. , 168 F.3d 806, 820 (5th Cir. 1999) (quotations omitted). Rather, when students deliver prayers “on government property at government-sponsored school-related events” and they are “broadcast over the school’s public address system, which remains subject to the co ntrol of school officials,” the audience will perceive them to be “delivered with th e approval of the school adm inistration.” Santa Fe, 530 U.S. at 308. And the Free Sp eech Clause permits the School District to restrict student prayers that “might reasonably [be] perceive[d] to bear the imprim atur of the school.” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271 (1988).
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Here, the School District exercises total co ntrol over the graduation ceremony—it selects
the speakers, regulates the content of their speec hes, approves their rem arks, supplies the venue
and loudspeaker, invites the audience, and script s the ceremony down to the dress code, the pro-
gram, and even the national anthem. A reasonabl e observer would not conc lude that the School
District relinquishes its control over every aspect of student behavior for the brief moment during which handpicked students speak at the most important School-District ceremony of the year.6
It matters not that the S chool District holds no direct student vote on prayer. In Cole v.
Oroville Union High School District , 228 F.3d 1092 (9th Cir. 2000), the Ninth Circuit held that
the Establishment Clause prohibits a school distri ct from allowing the va ledictorian “to make a
sectarian, proselytizing speech as part of the graduation ceremony,” id. at 1103; the court reiter-
ated that holding in Lassonde v. Pleasanton Unified School D istrict, 320 F.3d 979, 983–85 (9th
Cir. 2003). In Corder v. Lewis Palmer School District No. 38 , 566 F.3d 1219 (10th Cir. 2009),
the Tenth C ircuit reached the sam e conclusion where the school “nam ed valedictory speakers
based on the School District’s qualifications.” Id. at 1230. Thus, “[a] constitutional violation in-
herently occurs when, in a secondary school gradua tion setting, a prayer is offered, regardless of
who makes the decision th at the prayer will be given and who authorizes that actual wording of
the remarks.” Gearon v. Loudon Cnty. Sch. Bd., 844 F. Supp. 1097, 1099 (E.D. Va. 1993).
6 See, e.g., ACLU of N.J. v. Black Horse Pike Reg’l Bd. of Educ., 84 F.3d 1471, 1479 (3d Cir. 1996) (en banc) (“School officials decide the sequence of events and the order of speakers on the program,” “ceremonies are typically held on school property at no cost to the students,” and “the atmosphere at [the] graduation is characterized by order and uniformity.”); Jager v. Douglas Cnty. Sch. Dist., 862 F.2d 824, 831 (11th Cir. 1989) (“When a religious invocation is given via a sound system controlled by school principals and the religious invocation occurs at a schoolsponsored event at a scho ol-owned facility, th e conclusion is in escapable that the religious invocation conveys a message that the school endorses the religious invocation.”); Appenheimer v. Sch. Bd. of Wash. Cmty. High Sch. Dist. 308, No. 01-1226, 2001 WL 1885834, at *6 (C.D. Ill. May 24, 2001) (“[T]he commencement falls under the imprimatur of the state. . . . the invocation and benediction is delivered to a large audience as part of a regularly scheduled, school-sponsored function conducted on school property. The prayer is broadcast over the school’s public address system, which remains subject to the control of school officials.”); Lundberg v. W. Mon ona Cmty. Sch. Dist., 731 F. S upp. 331, 337 (N.D. Iowa 1989) (school “organizes, authorizes, and sponsors” the graduation program, conducts it on school property, and “retain[s] control over the type of speech admissible at the ceremony”).
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No Fifth Circuit case requires a different result. The Supreme Court’s decision in Santa Fe overruled an earlier Fifth Circu it decision that had allowed st udent prayers at graduations, Jones v. Clear Creek Independent S chool District, 977 F.2d 963, 969 (5th Cir. 1992). As Judge Sparks explained, Santa Fe necessarily overruled Jones because “to the extent the Santa Fe court recognizes differences between a graduation cerem ony and a football gam e, it is to note that a graduation ceremony involves a m ore coercive atmosphere than an athletic event.” Does 1–7 v. Round Rock Indep. Sch. Dist., 540 F. Supp. 2d 735, 748 (W.D. Tex. 2007).
The decision in Santa Fe, then, governs the School Dist rict’s graduation ceremonies. Even if Jones survived and Santa Fe’s holding inexplicably applied only to football gam es, the School District has failed to m eet even the requirement in Jones that student-initiated prayers be nonsectarian and non-proselytizing. See 977 F.2d at 967, 971. As detailed on pages 9–12, m any prayers delivered at graduations—in 2011 and before—were sectarian, proselytizing, or both.
The School District’s belated inclusion of a disclaim er in 2011 does not neutralize endorsement or nullify coercion. As to endorsem ent, a reasonable observer would be aware that no disclaimer appeared at any graduation cerem ony until after the filing of this lawsuit; in any event, a disclaimer cannot overcome the otherwise significant indicia of School District sponsorship of students’ rem arks.7 As to coercion, “regardless of a ny offered disclaimer, a reasonable dissenter still could feel that th ere is no choice b ut to participate in the proselytizing in order to attend high school graduation.” Lassonde, 320 F.3d at 984. Even when attendance is “purely voluntary,” prayer “has the im proper effect of coercing those present to participate in an a ct of
7 See, e.g., Stone v. Graham, 449 U.S. 39, 41–42 (1980) (per curiam) (statute mandating posting of Ten Commandments in public school violated Establishment Clause, in spite of statute’s additional mandate that display be accompanied by disclaimer highlighting secular purpose); Doe v. Indian River Sch. Dist., 653 F.3d 256, 285 n.16 (3d Cir. 201 1) (prayer at scho ol board meeting was co nstitutionally impermissible, despite official disclaimer of school endorsement); Does v. En field Pub. Schs., 716 F. Supp. 2d 172, 191 n. 24 (D . Conn. 2010) (“although the disclaimer [in school graduation program] informs a reasonable observer’s impressions, it would not cure the constitutional violations that this Ruling finds”).
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religious worship.” Santa Fe, 590 U.S. at 312. B. The School District’s Endorsement of Student Prayer is Reinforced by the Circumstances Surrounding the Graduation Ceremonies. The School District’s responsibility for the content of student prayers is am plified by
three additional factors: (1) the School District selects and limits the number of student speakers, (2) the School District regulates, reviews, and revises their speeches’ content, and (3) the School District promotes religion more generally.
1. The School District Selects and Limits the Number of Graduation Speakers. As in Santa Fe, the School District “do[es] not evince . . . any intent to open the [ceremony] to indiscriminate use by the student body generally.” 530 U.S. at 303 (quotations and alterations omitted). For one, the School District limits speaking roles to the top three students in the graduating class, the senior-class President, and Student-Council officers. See Ex. I (Student Expression Policy) at 3. Class o fficers and Student-Council officers have already been elected by students and vetted by the School District based on “scholarship,” “citizenship,” “dependability,” “cooperation,” and “conduct.” Ex. C1 ( 2008–09 Student Handbook) at MVISD-509–10. Thus, although students do not vote direct ly on graduation speakers or pr ayers, the “majoritarian process implemented by the District guarantees, by definition, that minority candidates will never prevail and that their views will be effectively silenced.” Santa Fe, 530 U.S. at 304. The same is true of the remaining slots, which are reserved for the Valedictorian and Salutatorian. By linking speeches to class rank, the School District has “endorsed and sponsored the speakers as representative exam ples of the success of the school’s own educational m ission,” Lassonde, 320 F.3d at 984; the speakers are “so clos ely connected to the sc hool that it appears the school is somehow sponsoring the speech.” Corder, 566 F.3d at 1229 (quotations omitted).
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2. The School District Regulates, Reviews, and Revises the Speeches’ Content. As in Santa Fe, the School District’s graduation speeches are “subject to particular re gulations that confine the content and topic of the student’s message.” 530 U.S. at 303. First, the S chool District require s that Invocations/Openings and Benedictions/Closings “relate[] to the purpose of the graduation cerem ony and to the purpose of m arking the opening and closing of the event; honoring the occasion, the participants, a nd those in attendance; bringing the audience to order; and focusing the audience on the purpose of the event,” and it imposes similar requirements for other graduation speeches. See Ex. I (Student Expression Policy) at 3–4. These requirements often guide students towards prayer; as one 2011 speaker explained, the Policy instructed students, “[T]o ta lk about the things that brought you to this point and all—and things that had gotten you to graduation. And I be lieve that I got there because of my faith and the things—and the resources that God has given me.” Ex. J (Petty Dep.) at 151:9–17. The Court in Santa Fe recognized the same phenomenon: By requiring speakers to “solemnize the event, to promote good sportsm anship and student safety, and to establish the appropriate environment for the competition,” the school district suggests that “a solemn, yet nonreligious, message, such as commentary on United Stat es foreign policy, w ould be prohibited” and “invites and encourages religious m essages.” 530 U.S. at 306. Medina Valley’s Student Expression Policy goes one step further by singling out, for protection, “a student’s voluntary expression of a religious viewpoint, if any, on an otherwise permissible subject.” Ex. I at 1. As in Santa Fe, “the expressed purposes of th e policy encourage the selection of a religious m essage”—the “only type of message that is expressly endorsed in the [Policy’s] text.” 530 U.S. at 306–07. Second, from 2007 until 2011, the School District designated one student speech as the “Invocation” and another as the “Benediction.” See Ex. E1 (Def.’s Responses to RFAs) at 4; Ex. O1 (2007 graduation program ); Ex. O2 (2009 gr aduation program); Ex. O3 (2010 graduation
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program); Ex. O4 (draft 2011 program ). The Court in Santa Fe recognized that “Invocation” is “a term that primarily describes an appeal for divine assistance, ” 530 U.S. at 306–07; “Benediction” has an equally religious meaning, as even School District administrators acknowledge. See Ex. L (Moreno-Hewitt D ep.) at 101:1 (“The word ‘b enediction’ to me means blessing.”). Thus, when Kallisyn Gouard was assigned the Benediction in 2011, she delivered a prayer because she “was told that [the benediction] was the same as the invocation.” Ex. K (Gouard Dep.) at 29:7–8. She had been assigned the Invocation at fall 2010 football games, and “used Google Definitions” to determine that an Invocation was a prayer. Id. at 26:22–25, 27:18–24.
The belated change to “Opening Rem arks” and “Closing Remarks” in 2011 did not solve this problem. Both graduation pl anners and student speakers unders tood these terms to be new names for the Invocation and Benediction. See id. at 174:10–12 (“Q. Okay. So opening rem arks you understood to sim ply be another nam e for the invocation? A. Yes.”); id. at 174:21–23 (“Q. And did you understand closing remarks to sim ply be another name for benediction? A. Yes.”); Ex. D1 (Center Dep.) at 215:3–8. Th e School District did not instru ct students to revise their speeches in light of the name change. Cf. Santa Fe, 530 U.S. at 309 (“the school did not conduct a new election, pursuant to the curre nt policy, to replace the results of the previous election, which occurred under the former policy”). Unsurprisingly, in 2011 the contents of the Invocation and Benediction did not change with their names.
Third, the School District influences the cont ent of graduation speeches by providing each year’s speakers with copies of the prev ious year’s speeches, as a substitute for direct guidance, Ex. D1 (Center Dep.) at 178:17–179:3, and w ith the assurance that students “could say the exact same thing as the year before,” Ex. J (Petty Dep.) at 113:13–18. Th is practice keeps the conveyor belt moving. Just as in Santa Fe, where the school’s “invocat ions” “always entailed a
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focused religious m essage,” 530 U.S. at 307, a t Medina Valley graduations every Invocation, Benediction, Opening Remark, and Closing Remark on record has been a prayer, and other graduation speeches have featured prayers or proselytization. See Ex. N1 at MVISD-1928–29, 1939– 40, 1942–43, 1946–47, 1961–62, 1972, 1974.
Fourth, the School District’s policy contains additional restrictions on speeches, prohibiting students from promoting drug use, making defamatory statements, or saying anything that “[c]reates reasonable cause to believe that the speech would result in material and substantial interference with school activities or the rights of others.” Ex. I (Student E xpression Policy) at 4. According to the Superintendent, these rules enable the School District “to prohibit the students from hurting other students or em barrassing people or causing harm , embarrassment to them selves at a young age.” Ex. B1 (Stansberry Dep.) at 134:5–8.
Fifth, the School District requires advance approval of speeches, including approval from the Principal. See Lassonde, 320 F.3d at 984 (graduation speeches attributed to school where “[t]he principal reviewed and approved [them] beforehand”); Cole, 228 F.3d at 1103 (sam e where principal “has final au thority to app rove”); Black Horse Pike, 84 F.3d at 1478 (sam e where principal m ay determine that certain topics are “not suitable”). And the School District concedes that “[a] student is not using his or her own words when the student is reading or performing from an approved script, is delivering a message that has been approved in advance, or otherwise supervised by school officials.” Ex. I (Student Expression Policy) at 1.
The School District exercised this control to force the 2011 S alutatorian to remove an insult “in regards to another school.” Ex. D1 (C enter Dep.) at 196:14–21. And on two other occasions, the then-Student-Council ad visor required student speakers to remove content that she concluded “might slander or pub licly insult or humiliate another person.” Wurn Decl. [ Dkt. #
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118-27] ¶ 9. This subjective determ ination may re flect a prudent exercise of discretion whe n planning a public-school event, but it hardly suggests that students speak freely.
This control over content also distinguishes the School District’s graduation prayers from those upheld in Adler v. Duval County School Board , 250 F.3d 1330 (11th Cir. 2001) (en banc). In Adler, the school district’s policy “[did] not allo w (indeed, forb[ade]) any regulation of the content of the speech”—such that the studen t speaker would “have complete autonomy over the message he eventually delivers at graduation” —and “school officials [were] affirm atively forbidden from reviewing the content of the message.” Id. at 1336 n.2 (emphases in original).
The School District’s control also exceeds that contemplated by the Religious Viewpoints Antidiscrimination Act, Tex. Educ. Code § 25.156 et seq.—which, in any event, cannot override the requirements of the federal Constitution. See, e.g., Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 279–80 (5th Cir. 1996) (statute allowing student-initiated prayer at non-com pulsory school events violated E stablishment Clause). Even the School District’s litigation-induced disclaimer omits the RVAA’s model language that “the district refrained from any interactions with student speakers regarding the student speakers’ viewpoints on permissible subjects,” Tex. Educ. Code § 25.156, because the School District reviews and revises the speeches.
Moreover, the RVAA’ s Model Policy includ es only a single restriction on students’ speeches: They m ay not be “obscene, vulgar, offensively lew d, or indecent.” Id. The School District has declined requests to repeal its additional restrictions and adopt th e RVAA’s more permissive policy, because th e latter “[does] not have the exclus ions for inciting drug use or—or criminal activity, or name-calling.” Ex. B1 (Stansberry Dep.) at 273:1–3; Ex. B2.
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3. The School District Shows Its Approval of Religious Graduation Speeches. The graduation prayers also reflect School Di strict endorsement because school officials have “manifest[ed] approval and solidarity with student religious exercises.” Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402, 406 n.4 (5th Cir. 1995). The School District has stated that student’s religious rem arks are “overseen and suppor ted by [the] Board of Trustees.” Ex. A1 at MVISD-157. After this lawsuit was filed, the School District issued a press release stating, “W e are fortunate that, traditionally, our student speakers have chosen to speak words that greatly reflect our community standards, beliefs and valu es. We are proud of them and the words they have spoken for the past 50 years.” Ex. A3 (P ress Release) at MVISD-465. The Superintendent believes that student prayers are “calm ing for t he school district.” Ex. B1 (Stansberry Dep.) at 96:9–12. And in 2011, the School District’s invite d keynote speaker—an elected State Representative—not only praised prayer-givers and ridi culed prayer opponents, but also delivered extensive prayers and otherwise proselytized for Christianity. See Exs. CC8–9. In addition, the reasonable observer takes into account other instances in which the School District promotes or has promoted relig ion—even when those instances were not experienced by th e plaintiffs. See Doe v. Indian River Sch. Dist. , 653 F.3d 256, 286 (3d Cir. 2011) (considering past instances of religious exercise in years leading up to challenged practice); Doe v. Wilson Cnty. Sch. Sys., 564 F. Supp. 2d 766, 795 (M.D. Tenn. 2008) (court considered conduct not challenged directly or experienced by pl aintiffs, including Ten Commandm ents in hallway, distribution of Bibles in class, and faculty wearing “I Prayed” stickers inside building). As detailed above on pages 17–21, School District and thir d-party witnesses have testified to (1) prayers and proselytization by teachers and other staff, (2) administrator prayer and proselytization at Fellowship of Christian Athletes meetings, (3) coaches leading or joining students in prayer circles, and (4) religious objects, icons, and verses in classrooms and other areas visible to students.
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The Superintendent admits that “the religion of the community is reflected in the culture of the school district.” Ex. B1 (Stansberry Dep.) at 80:22–24. Confronted with prayer after prayer after prayer at a School District graduation ceremony, a reasonable observer would agree. II. Prayer At School-District Football Games Violates The Establishment Clause.
For similar reasons, the presentation of pray ers at Medina Valley High School football games violates the Estab lishment Clause. As in Santa Fe, the prayers are “delivered to a larg e audience assembled as part of a regularly scheduled, scho ol-sponsored function conducted on school property” and are “broadcast over the school’s public address system, which remains subject to the control of school officials.” 530 U.S. at 307. As with its graduations, the School District’s selection of speakers, control over conten t, and the overall religious environment erases any doubts about the endorsement and coercion caused by football-game prayers.
First, as in Santa Fe a single student delivers prayers before football games for the entire season. The Student-Council Second Vice-Presiden t delivered the rem arks before each home football game until and including fall 2010. See Wurn Aff. [Dkt. # 118- 27] ¶ 2; Ex. K (Gouar d Dep.) at 26:4–8. In fall 2011, the senior-class V ice-President was the lone speaker before each home football game. See Ex. H (Bippert Dep.) at 85:3–5.
Second, as with graduation speeches, the School District prohibits football-game speakers from making several categories of remarks and also requires that “[t]he subject of the student introductions shall relate to the pur pose of introducing the designated event.” Ex. I (S tudent Expression Policy) at 2. The Superintendent agrees that most subjects are off-limits: “[I]f you’re at a football game, you don’t start talking about a pr oblem with the ag[riculture] departm ent,” and the speeches should “relate[] to the football.” Ex. B1 (Stansberry Dep.) at 144:7–9. Yet the Policy’s sole example of acceptable content is the “expression of a religious viewpoint.” Ex. I at 2.
Third, until 2011 the Student-Council Constitution required the Second Vice-President to
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agree, in writing, to “present the welcom e and invocation at all athletic events when asked.” Ex. T at MVISD-1796 (emphasis added). W hen the School District commissi ons an Invocation, “from a constitutional perspective it is as if a state sta tute decreed that the prayers must occur. ” Lee, 505 U.S. at 586–87.
The post-lawsuit renaming of Invocation to “M oment of Reflection” does not remove the endorsement or coercio n. The 201 1–12 Student C ouncil Constitution still requires the VicePresident to deliver an “Invocat ion.” Ex. T at MVISD-1831. Each Moment of Re flection in fall 2011 was a prayer. See Ex. H (Bippert Dep.) at 84:25–85:8. And the School District’s announcer asks the audience to stand before the prayers. See Ex. CC11.
Fourth, the School District pre-screens a nd pre-approves the speeches. Ex. H (Bi ppert Dep.) at 95:16–96:21; Wurn Aff. [Dkt. 118-27] ¶¶ 4, 6. The Student E xpression Policy provides that “[a] student is not using his or her own wo rds when . . . reading or perform ing from an approved script [or] delivering a message that has been approved in advance.” Ex. I at 1.
Finally, as with the graduation prayers, the School District “manifests approval and solidarity with” the prayers at football gam es. Duncanville, 70 F.3d at 406 n. 4. In addition to the prayers, practices, icons, and item s detailed above on pages 17–21, the School District displays, in the boys locker room, a framed “Prayer of a Sportsman.” See Ex. BB61. III. The School District Is Liable For These Establishment Clause Violations, And All
Four Plaintiffs Are Entitled To Retrospective And Prospective Relief. Each member of the Sc hultz family has suffered past injury and, without the Court’s intervention, will suffer injury in the future. All Plaintiffs heard prayers at the 2008 and 2009 graduations; Trevor heard prayers at the 2011 graduation, and the re maining Schultzes skipped Corwyn’s 2011 graduation because of the prayers; Corwyn, Christa, and Danny attend ed all home football games in fall 2007 and fall 2008, Danny attended two gam es and Christa attended one
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game in fall 2011, and Corwyn declined to attend football games in fall 2011 because of the like-
lihood of prayer; all P laintiffs wish to attend th e graduation cerem onies of fa mily friends i n 2012, 2013, and 2014; Danny and Corwyn wish to attend future home football games.8
The School District is liable for these consti tutional violations. M unicipal liability re-
quires “a policymaker; an official policy; and a violation of constitutional rights whose ‘moving
force’ is the policy or custom.” Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001).
The School District is controlled by its Board, Tex. Educ. Code Ann. § 11.002, 11.151(b), (d),
whose policies govern the selection of speakers a nd the content of speeches, Ex. I (Student Ex-
pression Policy). The School District m aintains that the delivery of prayer s at its events is con-
sistent with these policies; in addition, as detailed a bove on pages 9–12 and 14–17, the presenta-
tion of prayers at graduation cerem onies and football games has been longstanding practice, and the planning of graduation ceremonies and football games adheres to School District custom.9
8 Past attendance: Ex. P (C orwyn Dep.) at 89:2–90:1, 92:6–12; Ex. Q (Trevor Dep.) at 43:9–44:17, 46:3–7, 49:12–25; Ex. R (Danny Dep.) at 47:1–3, 49:9–50:23, 51:2–53:19; Ex. S (Christa Dep.) at 84:9–85:9, 88:12–89:21.
Future attendance: Third Christa Schultz Decl. [Dkt. # 52-2] ¶¶ 2–4, 10; Third Corwyn Schultz Decl. [Dkt. # 52-2] ¶¶ 2–4, 9; Second Danny Schultz Decl. [Dkt. # 52-2] ¶¶ 2–4, 10; Second Trevor Schultz Decl. [Dkt. # 52-2] ¶¶ 2–4, 11; Ex. S (Christa Dep.) at 50:23–51:12; id. at 52:17–53:6; id. at 69:11–16; id. at 80:7–11; Ex. R (Danny Dep.) at 105:17–21; id. at 106:4–107:16; id. at 158:24–159:3; Ex. P (Corwyn Dep.) at 83 :8–84:6; Fourth Danny Decl. [Dkt. # 101-9] ¶¶ 2, 12; Fifth Christa Decl. [Dkt. # 101-9] ¶ 2; Fifth Corwyn Decl. [Dkt. # 101-9] ¶¶ 2, 3. 9 School District policy: Ex. Y (Martinez Dep.) at 647:16–25 (“the district is following board policy and continuing to adhere to State guidelines in regards to freedom of student expression”); Ex. A3 (Press Release) at MVISD465 (“Our Board of Trustees are aware of the circumstances, and are in full support of our policies, practices, and plans.”); Ex. A4 at MVISD-28 (“Graduation speakers are selected according to the criteria set forth in the board policy.”); Lipper Decl., Ex. E3 (Def.’s Responses to Trevor’s Interrogatories) at 4 (“District Policy . . . pr ovided guidance on the selection of student speakers.”); Ex. Y (Martinez Dep.) at 686:5–9 (“[I]s the process for [speaker] selection . . . consistent with school board policy? A. Yes.”).
Ongoing practice and adherence to custom: Ex. D1 (Center Dep.) at 54:3–11 (“Q. And is [sic] a lot of the decisions you’re making in planning these events based on practices from previous years? A. Yes. . . . What the year before did, we pretty much mirror that.”); id. at 183:8–14 (“Q. Had you given any thought—did you ever gi ve any thought to, Let’s do something different this year [at graduation] . . . A. No. Q. Why not? A. I wasn’t going to be the one to change a tradition.”); Ex. L (Moreno-Hewitt Dep.) at 35:6–18 (“Q. And was it your understanding that the— whatever the program had been in the previous years was to be the program for this year? A. Yes. Q. And was that a—was it standard practice that tradition was very much a guide of how these events would take place? A. Yes.”).
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To prevent future injury, each Plaintiff is entitled to an injunction p rohibiting the School

District from sponsoring, inviting, authorizing, or otherwise permitting the delivery of prayers by

speakers, including student speakers, at its graduation ceremonies in 2012, 2013, and 2014; Dan-

ny and Corwyn are entitled to the s ame relief with respect to home football games beginning in

the 2012–13 season. Here, “monetary damages are inadequate to compensate for the loss of First

Amendment freedoms,” the government is not harmed by an injunction that prevents it from vio-

lating the Constitution, and “uphold ing constitutional rights is in the p ublic interest.” Legend

Night Club v. Miller , 637 F.3d 291, 302–03 (4th Cir. 2011) (citation s omitted). Further, to re-

dress these past v iolations, each P laintiff is entitled to $1 in nom inal damages. See Carey v.

Piphus, 435 U.S. 247, 266–67 (1978). Fina lly, under 28 U.S.C. § 2201(a), Plaintiffs are entitled

to a declaratory judgm ent that (1) the School Dist rict’s past presentation of prayers at gradua-

tions and football games violated the Establishment Clause and (2) future presentation of prayers

would do the same.

Conclusion

Plaintiffs are entitled to part ial summary judgment with respect to the past and future in-

clusion of prayers at football games and graduation ceremonies.

Respectfully submitted,

Donald H. Flanary, III (Bar No. 24045877) GOLDSTEIN, GOLDSTEIN & HILLEY 310 South St. Mary’s Street, Suite 2900 San Antonio, Texas 78205 (210) 226-1463 (210) 226-8367 (fax) donflanary@hotmail.com

/s/ Gregory M. Lipper ________________________ Ayesha N. Khan (pro hac vice) Gregory M. Lipper (pro hac vice) AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE 1301 K Street NW, Suite 850E Washington, DC 20005 (202) 466-3234 (202) 898-0955 (fax) khan@au.org | lipper@au.org

January 5, 2012

Counsel for Plaintiffs

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Case 5:11-cv-00422-FB Document 122 Filed 01/05/12 Page 41 of 43

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

Christa Schultz, et al., Plaintiffs,
v. Medina Valley Independent School District,

Civil Action No. SA-11-CA-0422-FB
Chief Judge Fred Biery Magistrate Judge Pamela A. Mathy

Defendant.

[Proposed] Order Granting Plaintiffs’ Motion for Partial Summary Judgment The Court has reviewed Plaintiffs’ January 5, 2012 Motion for Partial Summary Judgment. Pursuant to Federal Rule of Civil Procedure 56, the Court concludes that (1) there are no genuine issues of material fact on Plaintiffs’ challenges to prayers at Medina Valley High School graduation ceremonies and football games, and (2) Plaintiffs are entitled to judgment as a matter of law on those claims. Accordingly, Plaintiffs are entitled to partial summary judgment. For the reasons set forth in Plaintiffs’ motion, the Court orders the following relief: 1. Defendant shall pay $1 in nominal damages to each Plaintiff. 2. Defendant is enjoined from sponsoring, inviting, authorizing, or otherwise permitting the delivery of prayers by speakers, including student speakers, at Medina Valley High School graduation ceremonies in 2012, 2013, and 2014, or at Medina Valley High School home football games beginning with the 2012–13 season. 3. Plaintiffs are entitled to a declaration that (a) Defendant violated the Establishment Clause of the First Amendment to the U.S. Constitution by sponsoring, inviting, authorizing, or otherwise permitting the delivery of prayers by speakers, including student speakers, at Medina

Case 5:11-cv-00422-FB Document 122 Filed 01/05/12 Page 42 of 43

Valley High School graduation ceremonies in 2008, 2009, and 2011, and at home football games in fall 2007, 2008, 2009, and 2011; and (b) the Establishment Clause prohibits Defendant from sponsoring, inviting, authorizing, or otherwise permitting the delivery of prayers by speakers, including students speakers, at Medina Valley High School graduation ceremonies in 2012, 2013, and 2014, and at home football games beginning in the 2012–13 season.

Date:

_________________________ Fred Biery Chief United States District Judge

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Case 5:11-cv-00422-FB Document 122 Filed 01/05/12 Page 43 of 43
Certificate of Service On January 5, 2012, I served a copy of this Motion for Partial Summary Judgment on all counsel of record through the Court’s ECF system.
/s/ Gregory M. Lipper ____________________ Gregory M. Lipper

 </s> Case 5:11-cv-00422-FB Document 136-1 Filed 02/09/12 Page 1 of 21
APPENDIX I
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CHRISTA SCHULTZ, DANNY

)

SCHULTZ, CORWYN SCHULTZ, )

and TREVOR SCHULTZ,

)

)

Plaintiffs,

)

)

v.

)

)

MEDINA VALLEY INDEPENDENT )

SCHOOL DISTRICT,

)

)

Defendant.

)

CIVIL ACTION NO. SA-11-CA-0422-FB

SETTLEMENT AGREEMENT AND RELEASE ARISING DURING MEDIATION

Whereas on May 26, 2011 a lawsuit ("Lawsuit") was filed by Christa Schultz, Danny Schultz, Trevor Schultz, and Corwyn Schultz ("Plaintiffs") against Defendant Medina Valley Independent School District ("School District");
Whereas the Lawsuit is pending before the U.S. District Court, Western District of Texas ("the Court") as Case No. SA-11-CA-0422-FB;
Whereas bona fide disputes and controversies exist between the parties, both as to liability and the amount thereof, if any; by reason of such disputes and controversies the parties hereto desire to compromise and settle all claims and causes of action of any kind whatsoever which the parties have or may have in the future arising out of the transaction or occurrence which is the subject of this Lawsuit; and it is understood and agreed that this is a compromise of a disputed claim, and nothing contained herein shall be construed as an admission of liability by any party, all such liability being expressly denied; and
Whereas Plaintiffs and Defendant wish to resolve the Lawsuit under the terms of this Settlement Agreement and Release Arising During Mediation
("Agreement"):

Case 5:11-cv-00422-FB Document 136-1 Filed 02/09/12 Page 2 of 21
A. Promotion of religion by School District officials and employees.
1. School District officials, administrators, teachers, staff, agents, and/or employees ("School District Personnel") will not do any of the following in the presence of students, either during the school day or at School District-sponsored activities or events: (a) initiate, solicit or direct prayers, (b) join students in prayers (e.g., joining in a student prayer circle), (c) proselytize, or (d) invite a third-party to engage in any of the practices listed in (a)(c).
B. Religious icons and displays.
1. School District Personnel will not display crosses, religious images, religious quotations, Bibles or religious texts, or other religious icons or artifacts on walls, filing cabinets, halls, lobbies, locker rooms, windows, and doors of Medina Valley High School, unless such is for pedagogical and non-religious purposes (such as a history of world religions course).
C. Student remarks at graduations.
1. Contents of graduation program.
a. The School District will not include a prayerwhether referred to as a prayer, blessing, invocation, benediction, or otherwiseas part of the
official program of any graduation ceremony.
b. The portions of the program devoted to student speeches will each be given the same name, such as Student Remarks or a substantially similar, but non-religious term. For instance, "Student Remarks by
[valedictorian]".
c. The School District will not invite speakersincluding any
government officials or community leadersthat it has reason to
believe will proselytize, promote religion, or disparage the religious beliefs (or lack thereof) of students or members of the community during their remarks.
2. Contents of student graduation remarks.
a. Other than the restrictions set forth in the Model Policy Governing Voluntary Religious Expression in Public Schools, Texas Education Code §25.156 and this Agreement, as set forth in ¶ C.2 (e), the School District may not restrict, revise, edit, alter, or otherwise influence the content of Student Remarks. The School District may require students to insert their Student Remarks in the master notebook for all
2

Case 5:11-cv-00422-FB Document 136-1 Filed 02/09/12 Page 3 of 21
speakers so that they are in one place on the podium.
b. The School District may permit student graduation speakers to pray as part of Student Remarks.
c. The School District will not provide student graduation speakers with copies of previous student speeches.
d. The School District will not request or require that speakers submit
Student Remarks for review by School District Personnel, and School District Personnel will not otherwise pre-screen the content of any Student Remarks.
e. The School District may prohibit student graduation speakers from advocating imminent violence, promoting illegal drug use, or engaging
in speech that is "obscene, vulgar, offensively lewd, or indecent."
The School District will provide a written copy of the Graduation Disclaimer, set forth below in ¶ C.3 (a), to the students selected to make Student Remarks, upon selection.
3. Non-endorsement of student graduation remarks.
a. The School District will include, in each printed graduation program, the following or substantially similar disclaimer ("Graduation Disclaimer"): "The students who shall be speaking at graduation were selected based on neutral criteria to deliver messages of the students' own choices. The content of each student speaker's message is the private expression of the individual student and does not reflect the endorsement, sponsorship, position, or expression of the District. We
ask that the audience sit and remain seated during the Student
Remarks."
b. The School District will also deliver the Graduation Disclaimer orally at the beginning of the ceremony, prior to the first Student Remark.
c. The School District will not ask, request, or invite the audience to stand during any Student Remarks (other than the recitation of the Pledge of Allegiance or the singing of the national anthem).
d. To the extent that the audience has been asked to stand for a portion
of the graduation ceremony (such as the Pledge of Allegiance or
national anthem) that precedes a Student Remark, the School District
will ask the audience to be seated prior to any subsequent Student
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Remark.
e. In the event that a Student Remark contains a prayer or other
religious speech, School District Personnel on the stage will not stand.
4. Selection of student graduation speakers.
a. The School District may offer the graduating class's Valedictorian, Salutatorian, and Class President the opportunity to deliver Student Remarks.
b. The School District may select other students to deliver Student Remarks according to the following procedures:
i. Students will be eligible to deliver the Student Remarks if they (1) are graduating, (2) are one of the top three academically ranked graduates, the class president, or a student council officer, and (3) were not in a disciplinary placement during any part of the spring semester of the graduation year.
ii. The School District will orally notify the students eligible to deliver the Student Remarks and provide the eligible students with an opportunity to volunteer.
iii. The names of the eligible volunteers will be randomly drawn. The student whose name is drawn first will deliver the first Student Remark and the student whose name is drawn second will deliver the second Student Remark, etc.
5. FNA (Local) will be amended to conform to the requirements of this section.
D. Student remarks at football games, scholarship ceremonies, and other School District-sponsored activities and events.
1. Contents of event program.
a. The School District will not include a prayerwhether entitled prayer, blessing, invocation, benediction, moment of reflection, or otherwise
in the official program of any School District-sponsored event, including but not limited to football games, scholarship and award ceremonies, and academic or athletic banquets.
b. The portions of the program devoted to student speeches, if any, will each be given the same name, such as Student Remarks or a substantially similar, but non-religious term. For instance, "Student
4

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Remarks by [student volunteer]".
c. The School District will not invite speakersincluding any
government officials or community leadersthat it has reason to
believe will proselytize, promote religion, or disparage the religious beliefs (or lack thereof) of students or members of the community during their remarks.
2. Contents of student event remarks.
a. Other than the restrictions set forth in the Model Policy Governing Voluntary Religious Expression in Public Schools, Texas Education Code §25.156 and this Agreement, as set forth in ¶ D.2 (e), the School District may not restrict, revise, edit, alter or otherwise influence the content of Student Remarks. To the extent applicable, the School District may require students to insert their Student Remarks in the master notebook for all speakers so that they are in one place on the
podium.
b. The School District may permit student speakers to pray as part of Student Remarks.
The School District will not provide student speakers with copies of previous student speeches.
d. The School District will not request or require that speakers submit
Remarks for review by School District Personnel, and School District Personnel will not otherwise pre-screen the content of any Student Remarks.
e. The School District may prohibit student speakers from advocating imminent violence, promoting illegal drug use, or engaging in speech that is "obscene, vulgar, offensively lewd, or indecent."
3. Non-endorsement of student event remarks.
a. For football games, the School District will include, in each printed event program, the following or substantially similar disclaimer ("Event Disclaimer"): "The student speaking at this event is a volunteering student selected on neutral criteria to introduce the event. The content of the introduction is the private expression of the student and does not reflect the endorsement, sponsorship, position, or expression of the District." The oral rendition of the disclaimer will be announced as follows: "The student speaking at this event is a

Case 5:11-cv-00422-FB Document 136-1 Filed 02/09/12 Page 6 of 21
volunteering student selected on neutral criteria to introduce the event. The content of the introduction is the private expression of' the student and does not reflect the endorsement, sponsorship, position, or expression of the District. You may be seated." To the extent that the marching band is in the audience and not performing, its members will be seated during the Student Remarks.
b. For events other than football games, the School District will include, in each printed program, if any, the following or substantially similar disclaimer ("Event Disclaimer"): "The students who shall be speaking at this event were selected based on neutral criteria to deliver messages of the students' own choices. The content of each student speaker's message is the private expression of the individual student and does not reflect the endorsement, sponsorship, position, or expression of the District. We ask that the audience sit and remain seated during the Student Remarks." The School District will also deliver the Event Disclaimer orally at the beginning of the ceremony, prior to the first Student Remark.
c. For events other than football games, in the event that a Student
Remark contains a prayer or other religious speech, School District Personnel on the stage will not stand.
4. Selection of student event speakers.
a. Students will be eligible to deliver Student Remarks, if any, at events other than graduations if they (1) are in the highest two grade levels of the school and (2) are not in a disciplinary placement at the time of the speaking event or during any part of the first full week of instruction during the semester during which the speaking event is to take place.
b. During the first full week of instruction each semester, the School District will announce, during each day's morning announcements,
that (i) the students identified above in ¶ D.4 (a) are eligible to volunteer to deliver Student Remarks at selected school events during that semester, and (ii) such students may volunteer to deliver Student Remarks by submitting their names to the campus principal during the first full week of instruction during that semester.
c. The names of the students who volunteer to deliver Student Remarks will be randomly drawn until all names have been selected; the names will be listed in the order drawn.

Case 5:11-cv-00422-FB Document 136-1 Filed 02/09/12 Page 7 of 21
d. Certain students who have attained special positions of honor in the school have traditionally addressed school audiences from time to time as a tangential component of their achieved positions of honor, such as the captains of various sports teams, student council officers, class officers, homecoming kings and queens, prom kings and queens, and the like, and have attained their positions based on neutral criteria. Nothing in this Agreement eliminates the continuation of the practice of having these students, irrespective of grade level, address school audiences in the normal course of their respective positions. For instance, the National Honor Society president may speak at the National Honor Society Banquet; the captain of a sports team may speak at a pep rally; or the president of the debate team may speak at a debate event.
e. If there are fewer student volunteers than there are speaking opportunities in a given semester, the list of student speakers will be repeated as needed, in the same order that the students have been selected pursuant to ¶ D.4(c).
f. If no students volunteer or if the selected speaker declines or becomes ineligible, no Student Remark will be delivered at the given event.
5. FNA (Local) will be amended to conform to the requirements of this section.
E. Non-Disparagement and Non-Retaliation.
1. School District Personnel will not retaliate against any student who
complains or expresses concerneither to School District Personnel or otherwise
about an alleged violation of the terms of this Agreement or the requirements of the First Amendment to the U.S. Constitution.
2. School District Personnel will not retaliate against any other School District
Personnel who complains or expresses concerneither to School District Personnel or otherwiseabout an alleged violation of the terms of this Agreement or the
requirements of the First Amendment to the U.S. Constitution.
3. School District Personnel will not disparage the Plaintiffs.
F. Training of School-District Personnel.
1. The School District will provide annual training ("Personnel Training") to all School District Personnel who interact with students or parents or who supervise those who interact with students or parents.
7

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2. The Personnel Training will cover the topics in FNA Legal and Local, and highlight the following sections in such training: (a) First Amendment; (b) Freedom of Speech; (c) Prayer at School Activities; (d) Expression of Religious Viewpoints; (e) Student Expression of Religious Viewpoints; (1) the Agreement's prohibition of school officials or personnel from initiating, soliciting, or directing prayers; from joining in prayers, such as student prayer circles; and from proselytizing during the school day or at a school-sponsored activity or event; (g) the Agreement's prohibition of school officials or personnel inviting others to initiate, solicit, or direct prayers; to join in prayers, such as student prayer circles; or to proselytize during the school day or at a school-sponsored activity or event; (h) the Agreement's prohibition of school officials or personnel displaying crosses, religious images, religious quotations, Bibles or religious texts, or other religious icons or artifacts on walls, filing cabinets, halls, lobbies, locker rooms, windows, and doors of Medina Valley High School unless such is for pedagogical and non-religious purposes (such as a history of world religions course); (i) the School District's requirement that students and school officials and personnel respect the religious diversity of Medina Valley High School students and staff, including individuals who choose not to practice any
religion and those who do; (I) the Agreement's requirement that School District officials and personnel refrain from disparaging Plaintiffs; and (k) the Agreement's requirement that School District officials and personnel refrain from retaliating against any student or School District official or employee who complains or
expresses concern about an alleged violation of the Agreement or the First Amendment to the U.S. Constitution.
2. The Personnel Training will be conducted by School District personnel according to a program outline, approved by its outside counsel, covering the topics described in ¶ F.2.
3. The School District will also train relevant personnel about the Agreement's requirements governing such personnel's specific functions. By way of example, the School District will train its graduation planners about the procedures governing selection of student speakers and student speeches; planners of other events about the procedures governing those events; and the Medina Valley High School Principal about the procedures for solicitation of student volunteers to deliver Student Remarks at football games and other events. The School District's outside counsel will approve the list of additional individuals to be trained about such
topics.
G. Student Education.
1. The Medina Valley High School student handbook will contain a section on students' rights to religious freedom, including the importance of respect for and tolerance of students from all backgrounds and the specific procedures for
roi

Case 5:11-cv-00422-FB Document 136-1 Filed 02/09/12 Page 9 of 21
registering a complaint with School District Personnel about an alleged violation of the Agreement and the prohibition against retaliation by School District personnel against those who complain about an alleged violation of the Agreement. The School District can fulfill this requirement by including, in the student handbook, a summary of the terms of this Agreement and the relevant complaint procedures, attached hereto as Exhibit A, along with a link to the website URL containing the Agreement summary attached hereto as Exhibit B.
2. The Board policies will be amended to clarify the procedures for handling such complaints as follows:
a. The first sentence under the section entitled "Appeal" on page 6 of FFH(Local) will be amended to read: "A student who is dissatisfied with the outcome of the investigation may appeal to the Board using the Level Three procedures laid out on pages 5-6 of FNG(Local)."
b. Wherever FNG(Local) mentions "FFH," it shall be amended to read "FFH(Local) and FFH(Legal)."
3. The topics described above in ¶ G.1 will also be explained orally to all Medina Valley High School students during the first week of each school year by a member of the School District's administration.
H. Costs and Attorneys' Fees. No later than fifteen business days after the
Agreement takes effect, the School District will pay $125,000 in attorneys' fees and costs to Plaintiffs' counsel, Americans United for Separation of Church and State.
I. Enforcement.
1. The Court will retain jurisdiction to enforce this Agreement for a period of 10 years from the Effective Date, as defined in ¶ K, at which time this Agreement will expire of its own accord.
2. A breach of this Agreement may cause irreparable harm that monetary relief cannot adequately compensate, and for which an injunction may provide the only
adequate remedy.
J. Dismissal of Lawsuit and Mutual Release.
1. No more than five business days after the Agreement takes effect, Plaintiffs will move to dismiss the Lawsuit with prejudice, subject to the Court's retention of jurisdiction to enforce the Agreement.

Case 5:11-cv-00422-FB Document 136-1 Filed 02/09/12 Page 10 of 21
2. The parties and their counsel agree to cooperate with each other in the drafting and execution of any additional documents reasonably requested or required to implement the provisions and spirit of this Agreement.
3. If one or more disputes arise with regard to the interpretation andlor performance of this Agreement or any of its provisions, the parties agree that before seeking to enforce the Agreement in Court, they will attempt to resolve same by telephone conference with the mediator who facilitated this settlement or a mutually agreeable mediator.
4. As of the Effective Date, the parties release, discharge, and forever hold the other harmless from any and all claims, demands or suits, known or unknown, fixed or contingent, liquidated or unliquidated, whether or not asserted in the Lawsuit, as of this date, arising from or related to the events and transactions which are the subject matter of this cause, EXCEPT as to the obligations set forth herein. These mutual releases run to the benefit of all attorneys, agents, employees, officers, directors, shareholders, partners, heirs, assigns, and legal representatives of the released party/ies hereto.
5. The Agreement does not constitute an admission, by either Plaintiffs or the School District, to any wrongdoing or legal violation.
K. Effective Date. The Agreement will take effect only after each of the following has taken place:
1. The Agreement is signed by each Plaintiff, by an authorized representative of the School District, and by counsel for Plaintiffs and the School District.
2. The Agreement is approved by vote of the School District's Board of Trustees.
3. The Agreement is approved by the Court.
L. Construction and Amendment.
1. The Agreement has been prepared jointly by counsel for Plaintiffs and the School District. Any ambiguities will not be construed in favor of either Plaintiffs or the School District by virtue of either party having drafted the Agreement or any of its provisions.
2. Although the mediator has provided a basic outline of this Agreement to the parties' counsel as a courtesy to facilitate the final resolution of this dispute, the parties and their counsel have thoroughly reviewed such outline and have, where necessary, modified it to conform to the requirements of their agreement. All
10

Case 5:11-cv-00422-FB Document 136-1 Filed 02/09/12 Page 11 of 21
signatories to this Agreement hereby release the mediator from any and all liability arising from the drafting of this Agreement.
3. Any amendments to this Agreement must be (a) agreed to in writing by counsel for Plaintiffs and counsel for the School District, (b) approved by the School Board, and (c) approved by the Court. Neither side shall unreasonably withhold consent to an amendment, including an amendment under Federal Rule of Civil Procedure 60, based on changed circumstances.
M. Signatories
1. Each signatory hereto hereby warrants and represents that: a. Such person has authority to bind the parties for whom such person acts; b. The claims, suits, rights, andlor interests which are the subject matter hereto are owned by the party asserting same, have not been assigned, transferred or sold, and are free of encumbrance; and c. Such person has executed this Agreement freely and without duress, after having consulted with, or having had the opportunity to consult with, the attorneys of such person's choice. Each party hereto has been advised by the mediator that the mediator is not the attorney for any party and that each party should have this Agreement reviewed by such party's attorney prior to executing same.
11

Case 5:11-cv-00422-FB Document 136-1 Filed 02/09/12 Page 12 of 21

APPROVED AS TO FORM AND SUBSTANCE, AND AGREED TO ON THIS 6TH DAY OF FEBRUARY, 2011, BY:

PLAINTIFF,.
/ 2
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ChiThta Schultz
PLAINTIFF

MEDINA VALLEY INDEPENDENT SCHOOL DISTRICT
By:_
Its:

Danny Schultz PLAINTIFF

Trevor Schultz

PLAINTIFF

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1;.'

12

Case 5:11-cv-00422-FB Document 136-1 Filed 02/09/12 Page 13 of 21

APPROVED AS TO FORM AND SUBSTANCE, AND AGREED TO ON THIS 6TH DAY OF FEBRUARY, 2011, BY:

PLAINTIFF

MEDINA VALLEY INDEPENDENT SCHOOL DISTRICT

Christa Schultz PLAINTIFF

By:
Its:

Danny Schultz PLAINTIFF
Trevor Schultz PLAINTIFF
Corwyn Schultz

12

Case 5:11-cv-00422-FB Document 136-1 Filed 02/09/12 Page 14 of 21

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Case 5:11-cv-00422-FB Document 136-1 Filed 02/09/12 Page 15 of 21

APPROVED AS TQ.FORM ONLY:

Ayesha N. Klian (pro hac vice) Gregory M. Upper (pro hac vice)
AMERICANS UNITED FOR SEPARATION OF CHuRcH AND STATE
1301 K Street NW, Suite 850 Washington, DC 20005
(202) 466-3234
(202) 898-0955 (fax)
khan@au.org lipper@au.org
Donald H. Flanary, Ill (Bar No. 24045877)
GOLDSTEIN, GOLDSTEIN & HILLEY 310 South St. Mary's Street, Suite 2900 San Antonio, Texas 78205
(210) 226-1463
(210) 226-8367
donflanary@hotmail.com

fl Craig Wood(Bar No.121888700)
Stacy Tuer Cti110 (Bar No, 00796322)
WALsH, ANDERSON, BROWN,
GALLEG0S & GREEN, P.C. 100 NE Loop 410, Suite 900 San Antonio, TX 78216
(210) 979-6633 (21O 979-7024 (fax)
cwoodwabsa.com scastillo@wabsa.com
Counsel for Defendants

Counsel for Plaintiffs

Date:

Date:

'3

Case 5:11-cv-00422-FB Document 136-1 Filed 02/09/12 Page 16 of 21
Exhibit A (Insert for Student Handbook)
1. Religious Activity in School.
During the School day and at school-sponsored activities and events, School officials and personnel are prohibited from initiating, soliciting, or directing prayers; from joining in prayers, such as student prayer circles; and from proselytizing.
During the School day and at school-sponsored activities and events, School officials and personnel cannot invite others to initiate, solicit, or direct prayers; to join in prayers, such as student prayer circles; or to proselytize.
2. Respect for Religious Diversity.
Students and School officials should respect the religious diversity of Medina Valley High School
students and staff, including individuals who choose not to practice any religion and those who do.
3. Link to summary of Court Order.
Additional details about the restrictions on the promotion of religion and the display of religious objects by School officials and personnel at Medina Valley High School, and the selection of student speakers and delivery of student speeches at School events can be found in a summary of the February 2012 order of the U.S. District Court ("Court Order"), available at [URL].
4. Grievance Procedures. Students, parents, or staff members who wish to complain or express concern about the promotion of religion by School officials or personnel or the violation of the Court Order may use the applicable procedures described in the following School District policies:
(a) FFH (Local), available at http://www.tasb.org/policy/po1/private/ 163 908/pol.cfm?DisplayPage=FFH%28LOCAL%29 .pdf&Query Text=FFH,
(b) FNG (Local), available at http://www.tasb.org/policy/pol/private/ 163 908/pol.cfm?DisplayPage=FNG%28LOCAL%29 .pdf&Query Text=FNG,
(c) DIA (Legal), available at http://www.tasb.org/policy/pol/private/ 163908/pol. cfm?DisplayPage=DIA(LEGAL).pdf, and
(d) DIA (Local), available at http://www.tasb.org/policy/pol/private/1639O8/pol.cfm?DisplayPage=DIA(LOCAL) .pdf.

Case 5:11-cv-00422-FB Document 136-1 Filed 02/09/12 Page 17 of 21
Exhibit B (Summary of February 2012 Court Order)
1. Religious Activity in School.
During the school day or at school-sponsored activities and events, School officials and personnel are prohibited from initiating, soliciting, or directing prayers; from joining in prayers, such as student prayer circles; and from proselytizing.
During the school day or at school-sponsored activities and events, School officials and personnel cannot invite others to initiate, solicit, or direct prayers; to join in prayers, such as student prayer circles; or to proselytize.
2. Display of Religious Icons in School.
School officials and personnel cannot display crosses, religious images, religious quotations, Bibles or religious texts, or other religious icons or artifacts on walls, filing cabinets, halls, lobbies, locker rooms, windows, and doors of Medina Valley High School unless such is for pedagogical and non-religious purposes (such as a history of world religions course).
3. Non-Retaliation.
School officials and personnel cannot retaliate against any student or School employee who complains
or expresses concern about an alleged violation of the requirements of the First Amendment to the U.S. Constitution or an alleged promotion of religion in violation of the February 2012 order of U.S. District Court ("Court Order") in Schultz v. Medina Valley Independent School District, No. SA- 11 -CA-0422-
FB (W.D. Tex.).
4. Graduation Ceremonies.
The Medina Valley High School graduation cannot include a prayerwhether entitled prayer, blessing, invocation, benediction, or otherwiseas part of the official program of any graduation ceremony. It
may feature student speeches or remarks, all of which will be referred to by the same namefor
instance, Student Remarks, or a substantially similar, non-religious term, e.g. "Student Remarks by [valedictorian]".
The Valedictorian, Salutatorian, and Class President may be given the opportunity to deliver Student Remarks.
The School District may also decide to select additional students to deliver Student Remarks. Students
are eligible to deliver the Student Remarks if they (1) are graduating, (2) are one of the top three
academically ranked graduates, the class president, or a student council officer, and (3) were not in a
disciplinary placement during any part of the spring semester of the graduation year.

Case 5:11-cv-00422-FB Document 136-1 Filed 02/09/12 Page 18 of 21
Eligible students will be notified of their eligibility orally and given an opportunity to volunteer. The names of eligible volunteers will be randomly drawn and the student whose name is drawn first will
deliver the first Student Remark, and the student whose name is drawn second will deliver the Second Student Remark, etc.
The School may permit students to pray as part of the Student Remarks and may prohibit student speakers from advocating imminent violence, promoting illegal drug use, or engaging in speech that is "obscene, vulgar, offensively lewd, or indecent." The School District may also require Student Remarks to relate to the purpose of the event.
The School District may not otherwise edit or restrict the content of Student Remarks.
The School cannot provide student graduation speakers with copies of prior student speeches and cannot request or require that student speakers submit their remarks for review. School personnel will not otherwise pre-screen the content of any Student Remarks. School officials may require students to insert a written copy their Student Remarks in the master notebook for all speakers so that they are in one place on the podium.
The Graduation Disclaimer will state: "The students who shall be speaking at graduation were selected based on neutral criteria to deliver messages of the students' own choices. The content of each student speaker's message is the private expression of the individual student and does not reflect the endorsement, sponsorship, position, or expression of the District. We ask that the audience sit and remain seated during the Student Remarks."
The School District must provide a written copy of the Graduation Disclaimer to students selected to speak at graduation, upon selection. The Graduation Disclaimer must also be printed in each graduation program and delivered orally, at the beginning of the ceremony, prior to the first Student Remark.
The School District cannot ask the audience to stand during any Student Remarks, and when the audience has been asked to stand for some other part of the ceremony (e.g. Pledge of Allegiance), the School District will ask the audience to be seated prior to any subsequent Student Remark.
If a Student Remark contains a prayer or other religious speech, School officials or personnel on the
stage will not stand.
The School District cannot invite speakers to graduation whom it has reason to believe will proselytize, promote religion, or disparage the religious beliefs (or lack thereof) of students or members of the community.
5. Football Games and Other Events.
School District-sponsored events (such as football games, scholarship and award ceremonies, and
academic or athletic banquets) cannot include a prayerwhether entitled prayer, blessing, invocation, benediction, or otherwiseas part of the official program.
'I

Case 5:11-cv-00422-FB Document 136-1 Filed 02/09/12 Page 19 of 21
The School District may allow students to deliver speeches or remarks, all of which will be referred to
by the same namesuch as Student Remarks, or a substantially similar but non-religious term, e.g.
"Student Remarks by [student volunteer]".
If the School District decides to have Student Remarks at such an event, student speakers will be selected according to the following procedures. Students will be eligible to deliver Student Remarks if they are (1) in the highest two grade levels of the school, and (2) are not in a disciplinary placement at the time of the speaking event or during any part of the first full week of the semester during which the
event is to take place. Such students are eligible to volunteer to deliver Student Remarks by submitting their names to the campus principal during the first full week of instruction each semester. The names of the volunteers will be randomly drawn and listed in the order drawn.
The School District may permit students to pray as part of the Student Remarks and may prohibit student speakers from advocating imminent violence, promoting illegal drug use, or engaging in speech that is "obscene, vulgar, offensively lewd, or indecent." The School District may also require Student Remarks to relate to the purpose of the event.
The School District may not otherwise edit or restrict the content of Student Remarks.
The School cannot provide student speakers with copies of prior student speeches and cannot request or
require that students submit their remarks for review, and School personnel will not otherwise pre-
screen the content of any Student Remarks. If applicable, the School District may require students to insert their Remarks in the master notebook for all speakers so that they are in one place on the podium.
The Written Football Disclaimer will state: "The student speaking at this event is a volunteering student selected on neutral criteria to introduce the event. The content of the introduction is the private expression of the student and does not reflect the endorsement, sponsorship, position, or expression of the District."
The Oral Football Disclaimer will state: "The student speaking at this event is a volunteering student selected on neutral criteria to introduce the event. The content of the introduction is the private expression of the student and does not reflect the endorsement, sponsorship, position, or expression of the District. You may be seated."
At football games, the School must include a copy of the Written Football Disclaimer in each printed program. The Oral Football Disclaimer will be delivered orally prior to the first Student Remark. To the extent that the marching band is in the audience and not performing, its members will be seated during
the Student Remarks.
For events other than graduations and football games, the Event Disclaimer will state: "The students who shall be speaking at this event were selected based on neutral criteria to deliver messages of the students' own choices. The content of each student speaker's message is the private expression of the
3

Case 5:11-cv-00422-FB Document 136-1 Filed 02/09/12 Page 20 of 21
individual student and does not reflect the endorsement, sponsorship, position, or expression of the District. We ask that the audience sit and remain seated during the Student Remarks."
For events other than football games, the School District must include a copy of the Event Disclaimer in each printed program, if any. The Event Disclaimer will also be delivered orally at the beginning of the
ceremony, prior to the first Student Remark.
The School District cannot ask the audience to stand during any Student Remarks, and when the
audience has been asked to stand for some other part of the ceremony (e.g. Pledge of Allegiance), the
School District will ask the audience to be seated prior to any subsequent Student Remark.
If a Student remark delivered during an event other than a football game contains a prayer or other
religious speech, School officials on the stage will not stand.
The School District cannot invite outside speakers to School District-sponsored events whom it has reason to believe will proselytize, promote religion, or disparage the religious beliefs (or lack thereof) of students or members of the community.
6. Respect for Religious Diversity.
Students and School officials and personnel should respect the religious diversity of Medina Valley
High School students and staff, including individuals who choose not to practice any religion and those who do.
7. Grievance Procedures.
Students, parents, or staff members who wish to complain or express concern about the promotion of religion by School officials or personnel or the violation of any of the above provisions may use the following procedures, to the extent applicable, to present their complaints:
1. Students or parents may bring their concerns to the attention of any School District employee informally as set forth in School District policy FFH(Local), available at http://www.tasb.org/policy/pol/private/1639O8/pol. cfm?DisplayPage=FFH(LOCAL) .pdf&QueryText=F
FH.
2. Students or parents may also bring their complaint directly to the Superintendent as set forth in School District policy FFH(Local), available at http://www.tasb.org/policy/pol/private/163 908/pol.cfm?DisplayPage=FFH(LOCAL) .pdf&QueryText=F FH.
3. Any student or parent who is dissatisfied with the outcome of the School's investigation performed pursuant to a complaint submitted under FFH(Local) may appeal to the Board of Trustees using the Level Three procedures laid out on pages 5-6 of District policy FNG(Local), available at

Case 5:11-cv-00422-FB Document 136-1 Filed 02/09/12 Page 21 of 21 http://www.tasb.org/policy/pol/private/ 163 908/pol.cfm?DisplayPage=FNG(LOCAL).pdf&QueryTextz=F NG. 4. Any staff member may bring a complaint pursuant to District Policy DIA (Legal), available at http://www.tasb.org/policy/pol/private/163908/pol.cfm?DisplayPage=DIA(LEGAL) .pdf, and DIA (Local), available at http://www.tasb.org/policy/pol/private/ 163 9O8/pol. cfm?DisplayPage= DIA(LOCAL) .pdf
5

 </s> Case 5:11-cv-00422-FB Document 140 Filed 03/19/12 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DMSION

FILED
MAR 19 201Z

C~TASCBULTZandDANNY
SCHULTZ, both Individually and as Parents and Guardians of Minor Child C.S., a Minor (CORWYN SCHULTZ, now an Adult and Formerly a Student in the Medina Valley Independent School District); an~ TREVOR SCHULTZ, Individually,
Plaintiffs,
v.
MEDINA VALLEY INDEPENDENT SCHOOL DISTRICT,
Defendant.

)

)

)

)

)

)

)

)

)

)

)

)

CIVIL ACTION NO. SA-lJ-CA-422-FB

)

)

)

)

)

NON-KUMBAYA ORDER

THE HOMO SAPIEN SAGA CONTINUES

Before the Court are plaintiffs' Motion to Enforce Settlement Agreement (docket no. 137),

defendant's response (docket no. 138) and plaintiffs' reply (docket no. 139) to defendant's response.

Plaintiffs ask the Court to enforce the settlement agreement and redress recent alleged violations by the

Medina Valley Independent School District ("MVISD") superintendent and director ofthe high school

marching band ("respondents").

On February 9, 2012, the Court approved the parties' settlement agreement. Observing the

Court would retain jurisdiction to enforce it for the next ten years, the Court urged the parties to "be

tolerant ofthe beliefs of others and abide by the standards they have set for themselves." (Docket no.

136, at page 2). To ensure the parties promote respect for and compliance with its terms, the settlement

agreement contains a non-disparagement provision: "School District Personnel will not disparage the

Plaintiffs.''

Case 5:11-cv-00422-FB Document 140 Filed 03/19/12 Page 2 of 7
Hours after the Court approved the settlement agreement, the MVISD superintendent gave a televised interview and, among other things, stated "It is a witch hunt-[t]hat's all this has been." Stephanie Serna, Medina Valley ISD Settled Prayer DebateJ KSAT.com (February 9, 2012, 06:09:54 PM CST), http://www.ksat.com/news/Medina-Valley-ISD-settles-prayer-debate/-/478542/8623396/.. /Spyfogl...) (last visited March 19, 2012). The superintendent also inaccurately stated ''[t]hey wanted our teachers to stop wearing crosses." Id. MVISD responds that the superintendent referred to the "lawsuit" as a ''witch hunt'; because plaintiffs' counsel conducted an "excessively long and harassing" inspection of the high school. MVISD also reports that the superintendent was under the "mistaken impression that plaintiffs' request in the lawsuit to prohibit the display ofreligious objects or symbols included jewelry." In reply, plaintiffs point out that the lawsuit and plaintiffs are inextricably intertwined. 1
On February 17, 2012, one ofthe directors ofthe high school marching band accessed Facebook. While commenting on the page ofa current MVISD student, he said "[d]on't get me started on the lies and false accusations your friend [referring to Corwyn Schultz] made over last yearseJ issues." Calling someone a liar, if proven, could be actionable libel. In response, the band director invokes truth as a defense.
The band director also "liked" a comment from a recent graduate proposing: "There should be adisclaimer after a prayerthat says: 'No atheists or anti-religious activists were banned in the recitation
1 For th~se not familiar with this matter, the Court's order, opinion and Appendix II can be found at Schultzv. Medina Yalleylndep. Sch. Dist., Civil Action No. SA-11-CA-422-FB, 2012 WL 517518 (W.D. Tex. Feb. 9, 2012); Schultzv. Medina Valley Jndep. Sch. Dist., Civil Action No. SA-11-CA-422-FB, 2012 U.S. Dist. LEXIS 19397 (W.D. Tex. Feb. 9, 2012); and the Court's website: www.txwd.uscourts.gov.
2

Case 5:11-cv-00422-FB Document 140 Filed 03/19/12 Page 3 of 7
of this prayer.'" The band director responds that liking a comment on Facebook ~hich "cle~ly was intended as a joke is not making an affirmative statement, much less a disparaging one."
Like a good cook, the Court has purposely let this latest matter dished up to the Court simmer for several weeks. The reason for delay was to see if further allegations were to be made once the emotions ofthe moments and media attention following the settlement agreement had subsided. The Court has not been made aware of any.
Silence is golden. Silence would also have been the better choice for six lawyers who paid a dear price and lost their law licenses for, among other things, talking too much: President Richard Nixon: recorded conversations resulting in disbarment for improperly obstructing the FBI investigation ofthe Watergate scandal.2 United States Attorney General John Mitchell: disbarred after he was convicted of (1) conspiracy to commit offense or to defraud the United States; (2) influencing or injuring an officer, juror or witness; (3) false declarations before a grand jury or court, and (4) perjury for his role in the Watergate scandal.3 . President Bill Clinton: law license suspende~ for five years after a federal court found his false, misleading, and evasive deposition testimony regarding relations with a White ~ouse intern amom1ted to civil contempt.4
2 Matter o/Nixon, 385 N.Y.S.2d 305, 307 (N.Y. App. Div. 1976). 3 In re Mitchell, 310 N.Y.S.2d 99, 100-01 (N.Y. App. Div. 1975); see also United States v. Mitchell et al., Case No. 74-110 (D.D.C. Feb. 21, 1975). 4 Neal v. Clinton, No. Civ-2000-5677, 2001 WL 34355768, at *3 {Ark. Cir. Jan. 19, 2001 ); see also Jones v. Clinton, 36 F. Supp. 2d 1118, 1131-{E.D. Ark. 1999).
3

Case 5:11-cv-00422-FB Document 140 Filed 03/19/12 Page 4 of 7
Texas Attorney General Dan Morales: resigned membership to the State Bar of Texas and disbarred by the United States Supreme Court after he was convicted ofmail :fr~ud and filing false tax retums.5
I. Lewis "Scooter" Libby: disbarred after he was found guilty of two counts of perjury, one count ofobstruction ofjustice in a grand jury investigation, and one count ofmaking false statements to federal investigators.6
Judge Samuel Kent: resigned membership to the State Bar ofTexas after he was convicted of obstruction ofjustice for lying to investigators regarding sexual abuse of female staff members.'
The Court takes no pleasure in holding contempt hearings or sanctioning violations of court orders. Indeed, in thirty-three years ofTexas and United States judicial service, the Court recalls only four instances ofthreatening or imposing sanctions, all of which involved parties or lawyers speaking words better left unspoken. Or as grandmothers and moms have taught for generations: "Ifyou can't say something nice, don't say anything at all." The motion, response and reply now pending before the Court would be instance number five.
The four previous events may be instructive to the parties: 1. Two usually gentlemanly lawyers continued to pick at each other verbally. The Court
threatened to have United States Marshals take the two attorneys in front ofthe Alamo
s In the Matter of1Janiel C. Morales, Misc. No. 03·9205 (Tex. Dec. 15, 2003); In re Disbarment ofMorales,
550 U.S. 954, 9.54 (2007); see also United States v. Morales eta/., No. I:03-CR-86-SS (W.O. Tex. Oct 31, ~003).
6 In re L Lewis Libby, 945 A.2d 1169, 1169 (D.C. 2008); see also United States v. l Lewis Libby, Case No. 2005-CR-00394-RBW (D.D.C. Jun. 5, 2007).
7 In the Matter ofSamuel B. Kent, Misc. No. 09-9060 (Tex. Apr. 28, 2009); see also United States v. Samuel B. Kent, Case No. 4:08-CR-596-RV (S.D. Tex. May 11, 2009).
4

Case 5:11-cv-00422-FB Document 140 Filed 03/19/12 Page 5 of 7
and be required to kiss each other on the lips. They quickly apologized and the unprofessional verbal sparring ceased. 2. .On the other hand, two lawyers, notwithstanding the Court's admonitions and the jury's obvious displeasure, continued their antics. Because they were acting like third graders, the Court ordered them put in "time out" for a portion of the trial. The misbehavior ceased, and the jury was quite pleased, much as school officials are pleased when students obey the rules and follow directions. 3. A citizen, blessed to be an American, wrote to the Court that he would serve as a juror only if he were paid $100 per hour because of his "importance" to his business. Upon being offered chauffeur service and room and board provided by the United States Marshals Service if he did not appear at the appointed time, the citizen timely came to jury service and apologized. 4. A young man once disagreed with the Court's ruling as it affected someone with whom the individual had some sort of familial interest. After dropping the F-bomb in open court after the Court's ruling, the young man spent three days in jail. While Hollywood once proposed that "love means never having to say you're sorry,"8 life and litigation offer more realistic approaches to resolving disputes and avoiding a lengthy court hearing on the allegations and responses presently before the Court. Surely, the parties and counsel have more constructive things to do.
8 LOVE STORY (Paramount Pictures 1970).
5

Case 5:11-cv-00422-FB Document 140 Filed 03/19/12 Page 6 of 7
·The Court does not expect the parties to hold hands and sing "Kumbaya" around a campfire beside the Medina River. Nor does the Court expect the respondents superintendent and band director to engage in a public spectacle of self-flagellation for communicating words better left unsaid.
Moreover, the Court does not expect plaintiffs to become traditional Trinitarian Christians, though the Court suggests plaintiffs might follow the moral and civility lessons of Matthew 5:39 ("If someone strikes you on the right cheek, turn to him the other also") and a portion of "Essay on Criticism" (''to err is human; to forgive, divine"). 9
Counsel are hereby ordered to certify to the Court that plaintiffs and respondents superintendent and band director have read this order.
Accordingly, respondents are given the opportunity, within ten days of this order, to sign the following statement, privately and personally, with delivery to be made to counsel for the Medina Valley Independent School District:
"I apologize for statements I made, which were interpreted by plaintiffs as disparaging towards them. I will abide by the Settlement Agreement and Release entered on February 9, 2012." Ifthe statements are timely received, counsel for Medina Valley Independent School District shall convey the same to plaintiffs' counsel. Plaintiffs, within ten days of notification of respondents' signed statements, shall sign, privately and personally, with delivery to plaintiffs' counsel: "Your apology is accepted. I will abide by the Settlement Agreement and Release entered on February 9, 2012."
9 ALExANDER POPE, EsSAY ON CRITICISM 77 {Alfred S. West, ed. 1908). 6

Case 5:11-cv-00422-FB Document 140 Filed 03/19/12 Page 7 of 7

If the statements are timely received, counsel for plaintiffs shall convey the same to counsel for

Medina Valley Independent School District.

Ifthe Court's suggestion is acted upon, counsel shall so certify to the Court on or before May

1, 2012, and the Court will find that any alleged contempt by respondents has been purged. If no

certification is received, the matter will be set for a show cause hearing.

Finally, the Court reminds the parties of the Fifth Amendment to the United States

.

.

Constitution which provides in part that "no person shall be compelled in any criminal case to be a

witness against himself." While it is invoked for criminal prosecutions, its underlying premise is

instructive for Homo sapien relationships in general: Trouble does not come from words unspoken,

particularly in this age ofe-mails, tweets, cameras and recorders.

It is so ORDERED.
"1'1'-
SIGNED this _/lday ofMarch, 2012.

FRED BIERY CHIEF UNITED

7

 </s> Case 5:11-cv-00422-FB Document 1 Filed 05/26/11 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

)

CHRISTA SCHULTZ and DANNY SCHULTZ, )

both individually and as parents and

)

guardians of minor child C.S., a student in

)

the Medina Valley Independent School District; )

C.S., a minor, individually, by his next best friends )

Christa Schultz and Danny Schultz;

)

and TREVOR SCHULTZ, individually,

)

)

Plaintiffs,

)

)

v.

)

)

)

MEDINA VALLEY INDEPENDENT

)

SCHOOL DISTRICT,

)

)

Defendant.

)

)

4!! • II - e. V'" 'fel~
CIVIL ACTION NO. -J.- -

COMPLAINT '

Donald H. Flanary, ill (Bar No. 24045877) Goldstein, Goldstein & Hilley 310 South St. Mary's Street, Suite 2900 San Antonio, Texas 78205 Tel: (210) 226-1463 Fax: (210) 226-8367 donflanary@hotmail.com
Counselfor Plaintiffs

Ayesha N. Khan* (D.C. Bar No. 426836) Alex Luchenitser* (D.C. Bar No. 473393) Americans United for Separation
of Church and State 1301 K Street, NW, Ste. 850 Washington, DC 20005 Tel: (202) 466-3234 Fax: (202) 898-0955 khan@au.org luchenitser@au.org
*Motion for admission pro hac vice pending

Case 5:11-cv-00422-FB Document 1 Filed 05/26/11 Page 2 of 11

Introduction 1. "Everyone knows that in our society and in our culture high school graduation is one of life's most significant occasions.") So in 1992, the United States Supreme Court held in Lee v. Weisman that it is unconstitutional for public schools to include prayer as part of graduation ceremonies, because "[t]he Constitution forbids the State to exact religious conformity from a student as the price of attending her own high school graduation.,,2 2. Nonetheless, the Medina Valley Independent School District has a student deliver an "invocation" and "benediction" as an official part of its graduation ceremonies. Despite being informed of Lee and its progeny, District officials have declined to discontinue this practice - both in the past and with respect to the upcoming graduation ceremony on June 4, 2011 - thus forcing Plaintiffs to bring this action to enforce settled Supreme Court precedent that the School District has knowingly chosen to disregard. 3. Plaintiffs therefore seek a temporary restraining order prohibiting the Defendant from including anyprayer- whether denominated an "invocation," "benediction," or otherwise- in the Medina ValleyHigh School graduation ceremony on June 4,2011, a permanent injunction enjoining the District from sponsoring prayer at future school events, and the other relief listed in the Prayer for Reliefbelow.
Jurisdiction and Venue 4. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343.

Lee v. Weisman, 505 U.S. 577, 595 (1992).

2

Id. at 596.

2

Case 5:11-cv-00422-FB Document 1 Filed 05/26/11 Page 3 of 11

5. The Court has the authority to grant declaratoryreliefunder the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202.
6. Venue is proper in this Court under 28 U.S.C. § 1391(b). Parties
7. The Trustees of Medina Valley Independent School District constitute a corporate body that is amenable to suit under Texas law, and may sue and be sued in the name of Medina Valley Independent School District.3 The District has "the primary responsibility for implementing the state's system of public education" within its geographic borders.4 It thus has "the exclusive power and duty to govern and oversee the management of the public schools of the district," including the authority to "adopt rules and bylaws necessary to carry out" those duties.s This statutory authority extends to instituting and implementing the graduation-prayer practice, custom, and policy that is challenged herein.
8. Christa and Danny Schultz reside in the Medina Valley Independent School District. They do not subscribe to any religion, considering themselves to be Agnostic. They are parents of one child who attended, and another child who is currently attending, Medina Valley High School. Mr. and Mrs. Schultz attended the graduation ceremony of a family friend at Medina Valley High School in 2008, where they were exposed to unwelcome prayers. Their eldest child graduated from

3

See TEx. EDUC. CODE ANN. § 11.151(a) (2011); see also San Antonio lndep. Sch.

Dist. v. McKinney, 936 S.W.2d 279, 283 (Tex. 1996) ("We hold that an independent school district

is ... amenable to suit in federal court under the Eleventh Amendment to the United States

Constitution. The members of [an] independent school district's board of trustees sued in their

official capacities, likewise, are not protected by the Eleventh Amendment.").

4

TEx. EDUC. CODE ANN. § 11.002 (2011).

ld. § 11.151(b), (d).

3

Case 5:11-cv-00422-FB Document 1 Filed 05/26/11 Page 4 of 11
Medina Valley High School in 2009, and they, along with their younger son C.S., attended the graduation ceremony held that year. During the ceremony, they were again exposed to the graduation prayers challenged herein. Their second child, C.S., is a minor who is scheduled to graduate from Medina Valley High School on June 4, 2011. If the Schultzes were to attend the graduation of their son, they would once again be exposed to the School District's longstanding practice of presenting prayers as part of graduation ceremonies, unless the practice is enjoined.
9. Christa and Danny Schultz object to and are offended by the District's custom of presenting graduation prayers because the practice demeans and excludes their religious beliefs, fails to respect others' beliefs and religions as mandated by their personal beliefs, reflects a disregard of the boundary between church and state that is necessary in a pluralistic society, coercively exposes them and their children to publicly sponsored religious exercises, places coercive pressures on them to participate in religious exercises, and impedes their ability to direct and control the religious upbringing of their children free from governmental intrusion or interference. They also object to, and are offended by, the District's graduation prayers because their minor son C.S., who is scheduled to graduate this year from Medina Valley High School, has said that he may not attend the graduation ceremony if prayers remain a part ofthe ceremonies. Accordingly, if the prayers are not enjoined, Christa and Danny Schultz may be deprived ofthe opportunity to attend, and join in the celebration of, their son's graduation ceremony.
10. Christa and Danny Schultz are suing both individually and on behalf of their minor child, C.S. C.S. is also himself suing individually by his next best friends, Christa and Danny Schultz.
4

Case 5:11-cv-00422-FB Document 1 Filed 05/26/11 Page 5 of 11
11. C.S., like his parents, is religiously Agnostic. He attended his brother Trevor's graduation ceremony in 2009, where he was exposed to unwelcome prayers. C.S. objects to and is offended bythe District's graduationprayers because the practice demeans and excludes his religious beliefs, fails to respect others' beliefs and religions as mandated by his personal beliefs, reflects a disregard of the boundary between church and state that is necessary in a pluralistic society, and coercively exposes him to publicly sponsored religious exercises. C.S. would like to attend his upcoming graduation ceremony on June 4, 2011. If, however, the prayers are allowed to go forward, he is not yet sure whether he will attend.
12. Trevor Schultz no longer resides within the boundaries of the Medina Valley Independent School District, but he remains a resident of the State of Texas. He graduated from Medina Valley High School in June 2009 and is, like his parents and brother, religiously Agnostic. While attending his graduation ceremony, he was exposed to prayers that were presented as part of the program of ceremonies. He was deeply offended by the prayers because they demeaned and excluded his religious beliefs, failed to respect others' beliefs and religions as mandated by his own personal beliefs, reflected a disregard of the boundary between church and state that is necessary in a pluralistic society, and coercively exposed him to publicly sponsored religious exercises.
General Allegations The District's History of Graduation Prayer and Other Religious Activities
13. Upon information and belief, the District has a longstanding custom, practice, and policy of sponsoring graduation prayers. Plaintiffs attended the Medina Valley High School graduation ceremony in 2007, and prayer was included there. More recently, Plaintiffs attended the graduation ceremony of their eldest son in 2009, and prayer was included there as well.
5

Case 5:11-cv-00422-FB Document 1 Filed 05/26/11 Page 6 of 11
14. The graduation prayers are fully facilitated by the school administration. The official graduation-ceremonyprogram fOlll1ally lists an "invocation" and "benediction," as well as the names ofthe delivering students. By School tradition, the prayer-givers are selected from among the "Top Ten Percent Honor Graduates." School officials also provide the sound system through which the prayers are delivered, select and make available the venue for the presentations, determine the order of the events, and otherwise orchestrate the presentations.
15. Upon information and belief, graduates and their students are not the only students who attend commencement ceremonies. For example, students who participate in musical presentations that are part of the program of ceremonies are expected and instructed to attend and perform at graduation.
16. The graduation prayers are presented in a school environment that is characterized by pervasive religiosity. A member ofthe student council is tasked with delivering a prayer over the loudspeaker at Medina Valley High School sporting events such as football games. Upon information and belief, the prayers are submitted to, and approved by, the Medina Valley High School Principal before they are presented.
17. Medina Valley High School Principal Toby Tyler regularly makes religious statements - such as asking for God's blessing- over the school's loudspeaker during the morning announcements. When the Schultzes complained about these loudspeaker statements, Assistant Superintendent Chris Martinez responded with a letter in which he stated that the loudspeaker messages were appropriate because, "[a]fter consulting with our school district's legal representation, it was found that saying the word 'God' or the phrase 'God Bless Them' does not constitute an open prayer."
6

Case 5:11-cv-00422-FB Document 1 Filed 05/26/11 Page 7 of 11
18. Fonner Medina Valley High School Vice Principal Fletcher Turcato, who only recently left his position, likewise regularly made religious statements over the school's loudspeaker. Vice Principal Turcato also displayed a sign in his office window, with the text facing a school hallway regularly used by students, quoting Proverbs 3:5, "Trust in the Lord with all your Heart."
Mr. Turcato also regularly sends emails to students and parents, from his school account, that are
signed with biblical messages. 19. Upon infonnation and belief, teachers have told students that they will "pray for you"
and, when separating a male and female student engaging in a public display ofaffection, to "Make sure to leave a little room for Jesus between you." Complaints About the Practice & Americans United's Letter
20. In April 2010, Christa and Danny Schultz met with Assistant Superintendent Martinez, and followed up the meeting with a letter, to object to the various religious activities that were occurring at Medina Valley High School. In response, Mr. Martinez sent a letter defending all of the school's activities and including the following passage:
While you may respectfully disagree with the format or religious portions of our district ceremonies, they are overseen and supported by our Board ofTrustees. We have faith and beliefthat these elected officials represent the values and standards of our community. With that being said, there are no plans to change or sway from the current graduation fonnat that has traditionally been used. 21. On October 15,2010, Plaintiffs' counsel Americans United for Separation ofChurch and State sent a letter to James Stansberry, Superintendent of Medina Valley Independent School District, and Toby Tyler, Principal of Medina Valley High School. The letter explained that the inclusion ofa prayer at graduation ceremonies and other events, and school employees' presentation
7

Case 5:11-cv-00422-FB Document 1 Filed 05/26/11 Page 8 of 11
of other religious messages during the school day, were unconstitutional and requested that the District discontinue these practices. To date, Plaintiffs' counsel has received no response.
22. On May 25,2011, Medina Valley High School Principal Toby Tyler orally confirmed to C.S. that this year's graduation ceremony, like past graduation ceremonies, will include prayer.
23. On May 25, 2011, Plaintiffs' counsel sent a follow-up letter to Superintendent Stansberry, Principal Tyler, and every member of the Board of Trustees of the Medina Valley Independent School District, explaining that the Plaintiffs planned to file a lawsuit challenging the activities raised in Plaintiffs' earlier letter of October 15, 2010, unless the District informed Plaintiffs' counsel, by 9 am (EST) on May 26, 2011, that no prayer would be included in the June 4, 2011 graduation ceremony.
24. On May 26, 2011, Plaintiffs' counsel received a response letter from Superintendent Stansberry. The letter does not dispute that Medina High's graduation ceremonies include prayers; nor does it offer to discontinue this practice with respect to the June 4 ceremony. Rather, the letter attempts to justify the prayers as "honor[ing] the freedom ofexpression ofthe individual speaker."
Claim for Relief: First Amendment Violation 25. Paragraphs 1 through 24 above are incorporated as if fully set forth here. 26. The First Amendment of the United States Constitution provides, in relevant part, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech." 27. The First Amendment applies with full force and effect to the acts of local publicschool officials through the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.
8

Case 5:11-cv-00422-FB Document 1 Filed 05/26/11 Page 9 of 11
28. The Medina Valley Independent School District has violated and continues to violate Plaintiffs' rights under the Establishment Clause in several ways: the primary purpose of the Defendant's conduct has been, and continues to be, to promote and advance religion; the Defendant's course of conduct has had and continues to have the effect of advancing and endorsing religion; the District's conduct - by involving school officials in the drafting, editing, revision, and final approval of at least some of the prayers - excessively entangles government with religion; and the District's conduct coercively exposes students, teachers, parents, and others to unwanted religious activity and expression.
29. Defendant's conduct also violates the fundamental constitutional right of parents to control the religious upbringing of their own children, free from governmental intrusion or interference.
30. In light of these violations, Plaintiffs are entitled to remedies under 42 U.S.C. § 1983. Through the conduct described above, Defendants have harmed Plaintiffs, are continuing to harm Plaintiffs, and will otherwise inflict future harm upon Plaintiffs, entitling the Plaintiffs to the remedies set forth in the Prayer for Relief below.
Prayer for Relief 31. Paragraphs 1 through 30 above are incorporated as if fully set forth here. A. Declaratory Judgment 32. An actual controversy exists between the parties as to whether Defendant's conduct has violated and continues to violate the First Amendment. Accordingly, Plaintiffs respectfully request a declaratory judgment that the District's graduation prayers are
9

Case 5:11-cv-00422-FB Document 1 Filed 05/26/11 Page 10 of 11
unconstitutional and that Defendants have violated, and are continuing to violate, the u.s.
Constitution by engaging in the course of conduct described above. B. Temporary Restraining Order, Preliminary Injunction & Permanent Injunction 33. Plaintiffs have no adequate remedy at law. Defendant's violations of the First
Amendment to the United States Constitution have inflicted, and will continue to inflict, irreparable harm upon Plaintiffs. Plaintiffs therefore respectfully request a temporary restraining order and/or preliminary injunction prohibiting the Defendant from including any prayer whether denominated an "invocation," "benediction," or otherwise - at the upcoming Medina Valley High School graduation ceremony on June 4,2011; and a permanent injunction enjoining the District from sponsoring prayer at any future school events, including graduation ceremonies, and requiring Defendant to adopt a District-wide staff-training program to educate staff members about constitutional requirements regarding school employees' sponsorship of religious messages.
C. Nominal Damages 34. Plaintiffs request nominal damages of one dollar to each Plaintiff against the Defendant for the harm that Plaintiffs have suffered due to the District's past violations of the First Amendment and the violations that continue or occur after the filing of this Complaint. D. Attorneys' Fees and Costs 35. Plaintiffs further request an order awarding them the costs of this action, including attorneys' fees, under 42 U.S.C. § 1988 and 28 U.S.C. § 2412. E. Other Relief
10

Case 5:11-cv-00422-FB Document 1 Filed 05/26/11 Page 11 of 11 36. Plaintiffs further request any other relief that the Court deems just and proper.

Dated: May 26, 2011

Ian , H. LllHT,",")

ill

(Bar No. 24045877)

Goldstein, Goldstein & Hilley

310 South St. Mary's Street, Suite 2900

San Antonio, Texas 78205

Tel: (210) 226-1463

Fax: (210) 226-8367

donflanary@hotmail.com

Ayesha N. Khan* (D.C. Bar No. 426836) Alex Luchenitser* (D.C. Bar No. 473393)
AMERICANS UNITED FOR SEPARAnON
OF CHURCH AND STATE
1301 K Street NW, Suite 850 Washington, DC 20005 Tel: (202) 466-3234 Fax: (202) 898-0955 khan@au.org luchenitser@au.org

*Motion for admission pro hac vice pending

Counselfor Plaintiffs

11

 </s> Case 5:11-cv-00422-FB Document 76 Filed 11/07/11 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CHRISTA SCHULTZ and DANNY

)

SCHULTZ, both Individually and as

)

Parents and Guardians of Minor Child

)

C.S.,; TREVOR SCHULTZ, Individually, )

and PAT DOE, Individually,

)

)

Plaintiffs,

)

)

vs.

)

)

MEDINA VALLEY INDEPENDENT

)

SCHOOL DISTRICT,

)

)

Defendant.

)

CIVIL ACTION NO. SA-11-CA-422-FB

AMENDED ORDER ON PENDING MOTIONS This case involves allegations of Government (Medina Valley Independent School District)

using its power to promote and use tax dollars for the establishment of particular religious beliefs.

The District defends by alleging the actions of Government agents and employees are the exercise

of free expression. Both sides invoke the First Amendment to the United States Constitution. The

issue is joined.

Before the Court are 738 pages concerning the following matters:

1. Motion to Dismiss for Lack of Jurisdiction by Medina Valley ISD (docket no. 44);

2. Motion to Amend Complaint by Plaintiffs (docket no. 55); and

3. Motion for Leave to Permit Plaintiff Doe to Proceed Anonymously by Plaintiffs (docket no. 56).

The Court first notes there are at any given time about 250 felony defendants to whom the

Court is required to give precedence and about 200 pending civil cases, most of which are older than

this matter. Administrative duties over seven divisions spread over 90,000 square miles and about

Case 5:11-cv-00422-FB Document 76 Filed 11/07/11 Page 2 of 4
800 Court employees also take considerable time. Other than that, there is not much for the Court to do.
Meanwhile, the parties are spending what appears to be inordinate amounts of money and time which could be better spent on educating students. That of course would require the parties, with the assistance of counsel, to find some reasonable compromise. Or as the modern urban philosopher Rodney King once said, “[C]an we all get along?”1
The Court will first address Plaintiffs’ Motion to Amend Complaint (docket no. 44). Federal Rule of Civil Procedure 15(a) provides that “[t]he court should freely give leave [to amend a party’s pleading] when justice so requires.” Fed. R. Civ. P. 15(a)(2). Denial of leave to amend may be warranted for undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies, undue prejudice to the opposing party, or futility of a proposed amendment.” Rosenblatt v. United Way, 607 F.3d 413, 419 (5th Cir. 2010). There has been no undue delay, bad faith or dilatory motive on plaintiffs’ part, repeated failure to cure, undue prejudice to defendant, and the proposed amendment is not futile.
As a practical matter, denying the motion for leave to amend would simply result in the filing of a second case which in turn would likely be consolidated with this case.
Accordingly, the Motion to Amend Complaint (docket no. 55) is GRANTED. Plaintiffs’ Unopposed Motion for Leave to File “Motion for Leave to File First Amended Complaint” under Seal (docket no. 54) and Plaintiffs’ Motion for Leave to File “Reply Brief in Support of Motion for Leave to File First Amended Complaint” under Seal (docket no. 68) are also GRANTED.
1 David O. Sears, Urban Rioting in Los Angeles: A Comparison of 1965 with 1992, in M ULTICULTURALISM IN THE UNITED STATES: CURRENT ISSUES, CONTEM PORARY VOICES 81 (Peter Kivisto and Georganne Rundblad eds., 2000) (quoting Rodney King).
2

Case 5:11-cv-00422-FB Document 76 Filed 11/07/11 Page 3 of 4
Because Defendant’s Motion to Dismiss is based on the original complaint which has now been superceded, the Motion to Dismiss (docket no. 44), Plaintiffs’ Motion for Leave to File Response to Defendant’s Motion to Dismiss Under Seal (docket no. 52), Defendant’s Objections to and Motion to Strike Plaintiffs’ Evidence in Support of Plaintiffs’ Response in Opposition to Defendant’s Motion to Dismiss (docket no. 58), and Plaintiffs’ Motion for Leave to File “Opposition to Defendant’s Motion to Strike” Under Seal (docket no. 67) are now moot and are DENIED as being moot.
To the extent defendant has raised the issue of the inadmissibility of some statements in the various pleadings, it is premature to raise those evidentiary matters. They will be addressed at trial or by motions in limine.
Turning to the Plaintiffs’ Motion for Leave to Permit Plaintiff Pat Doe to Proceed Anonymously (docket no. 56), the Court finds it sadly unfortunate that youngsters fear the people within their own community and some of the adults responsible for their education. Plaintiffs’ pleadings on the issue of anonymity for proposed plaintiff Pat Doe document a pattern of harassment, threats and intimidation of those who disagree with the majority view in the school district community.
This case, like all cases, is a search for the truth. That search is conducted within a framework of the rule of law which provides a level playing field where each side has a fair opportunity to confront those who make allegations and raise defenses. At some point then, plaintiff Doe’s identity will have to be disclosed so that defendant can defend itself.
In the interim, however, and in the hope that the evaluation of plaintiff Doe’s claims could help the parties find common ground and giving deference to plaintiff Doe’s fears, the Court will
3

Case 5:11-cv-00422-FB Document 76 Filed 11/07/11 Page 4 of 4 temporarily allow plaintiff Doe to proceed anonymously. Accordingly, the Plaintiffs’ Motion for Leave to Permit Plaintiff Pat Doe to Proceed Anonymously (docket no. 56) is GRANTED in PART and DENIED in PART.
The denial in part is based on the Court’s unwillingness to allow plaintiff Doe to remain anonymous for more than a brief time. Presumably, plaintiff Doe will be deposed soon by defense counsel under similar circumstances used in the deposition of plaintiff, and former student, Schultz.
Accordingly, plaintiff Doe has until December 20, 2011, to decide if she/he wishes to proceed as a plaintiff without anonymity. Plaintiff’s Motion for Leave to File Under Seal “Reply in Support of Motion to Allow Plaintiff Pat Doe to Proceed Anonymously” (docket no. 69) is GRANTED.
It is so ORDERED. SIGNED this 7th day of November, 2011.
______________________________________ FRED BIERY CHIEF UNITED STATES DISTRICT JUDGE
4

 </s> Americans United Settles Texas Lawsuit Over Religious Activities In Public School
Settlement In Medina Valley Dispute Requires District To End Promotion of Religion
February 09, 2012
Americans United for Separation of Church and State today announced that it has settled a lawsuit over school-sponsored religious activity at the Medina Valley Independent School District in Castroville, Texas.
Americans United filed the lawsuit in May 2011 on behalf of Christa and Danny Schultz, and their two sons, Trevor and Corwyn, both of whom recently graduated from Medina Valley High School. Members of the Schultz family are agnostics and opposed official prayers during the graduation ceremony and other religious activities at the school.
Under the terms of the settlement, district officials, administrators, teachers, staff and other employees will not initiate, solicit or direct prayers; join students in prayers; proselytize or invite others to engage in these practices.
“This settlement brings an end to several practices we believed were unconstitutional and that violated students’ rights,” said the Rev. Barry W. Lynn, executive director of Americans United. “I’m glad we were able to resolve this matter out of court.”
Also under the settlement:
* School district personnel will not display crosses, religious images, religious quotations, Bibles or religious texts, or other religious icons or artifacts on the walls, hallways, and other areas at the school.
* The district will not invite speakers, including government officials or community leaders, whom it has reason to believe will proselytize or promote religion during their remarks.
* The Medina Valley High School student handbook will contain a section on students’ rights to religious freedom, including the importance of respect for and tolerance of students from all backgrounds and the specific procedures for registering a complaint with district personnel about violations.
* The district will provide annual training to all district personnel who interact with students or parents or who supervise those who interact with students or parents. The training will cover a variety of topics related to students’ rights and church-state separation.

AU Senior Litigation Counsel Gregory M. Lipper, who served as lead plaintiffs’ counsel, praised the Schultz family for coming forward and challenging the school district’s promotion of religion.
“The Schultz family displayed great courage in standing up for religious liberty and church-state separation in the face of intense community opposition,” Lipper said. “The significant changes in the Medina Valley School District could not and would not have happened without their courageous efforts.”
Under the settlement in the Schultz v. Medina Valley Independent School District case, the court will retain jurisdiction to enforce the agreement for 10 years.
Lipper called for members of the community to contact AU if they have any information about violations of the agreement, remarking, “If any Medina Valley students, parents, or staff have reason to believe that the School District is not complying with any of the settlement agreement’s requirements, they should not hesitate to call Americans United at (202) 466-3234.”
Americans United is a religious liberty watchdog group based in Washington, D.C. Founded in 1947, the organization educates Americans about the importance of church-state separation in safeguarding religious freedom.

 </s> Case: 5:11-cv-00422-FB As of: 06/12/2012 04:30 PM CDT 1 of 14
U.S. District Court [LIVE] Western District of Texas (San Antonio) CIVIL DOCKET FOR CASE #: 5:11−cv−00422−FB

CLOSED

Schultz v. Medina Valley Independent School District Assigned to: Chief Judge Fred Biery Cause: 28:2201 Declaratory Judgment
Plaintiff

Date Filed: 05/26/2011 Date Terminated: 02/09/2012 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Christa Schultz Individually and as parents and Guardians of minor child C.S., a student in the Medina Valley Independent School District

represented by Alexander Joseph Luchenitser Americans United for Separation of Church and State 1301 K Street, NW, Suite 850, East Tower Washington, DC 20005 (202)466−3234 Fax: (202) 898−0955 Email: luchenitser@au.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ayesha N. Khan Americans United for Separation of Church and State 1301 K Street, Suite 850, East Tower Washington, DC 20005 (202) 466−3234 Fax: (202) 898−0955 Email: khan@au.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Donald H. Flanary , III Goldstein, Goldstein &Hilley 310 S. St. Mary's Street 29th Floor San Antonio, TX 78205−4605 (210) 226−1463 Fax: 210/226−8367 Email: donflanary@hotmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory M. Lipper Americans United for Separation of Church and State 1301 K St., N.W. Suite 850 East Tower Washington, DC 20005 (202) 466−3234 Fax: (202) 898−0955 Email: lipper@au.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Taryn C. Wilgus Null Americans United for Separation of Church and State 1301 K St., NW, Suite 850, East Tower Washington, DC 20005 (202) 466−3234

Case: 5:11-cv-00422-FB As of: 06/12/2012 04:30 PM CDT 2 of 14

Fax: (202) 898−0955 Email: null@au.org TERMINATED: 10/13/2011 ATTORNEY TO BE NOTICED

Plaintiff
Danny Schultz Individually and as parents and Guardians of minor child C.S., a student in the Medina Valley Independent School District

represented by Alexander Joseph Luchenitser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ayesha N. Khan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Donald H. Flanary , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory M. Lipper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Taryn C. Wilgus Null (See above for address) TERMINATED: 10/13/2011 ATTORNEY TO BE NOTICED

Plaintiff
Trevor Schultz Individually

represented by Alexander Joseph Luchenitser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ayesha N. Khan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Donald H. Flanary , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory M. Lipper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Taryn C. Wilgus Null (See above for address) TERMINATED: 10/13/2011 ATTORNEY TO BE NOTICED

Plaintiff Corwyn Schultz

represented by Ayesha N. Khan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 5:11-cv-00422-FB As of: 06/12/2012 04:30 PM CDT 3 of 14

Donald H. Flanary , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory M. Lipper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Pat Doe TERMINATED: 12/06/2011

represented by Ayesha N. Khan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Donald H. Flanary , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory M. Lipper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Medina Valley Independent School District

represented by Donald Craig Wood Walsh, Anderson, Gallegos, Green &Trevino, P.C. 100 N.E. Loop 410 − Suite 900 P.O. Box 460606 San Antonio, TX 78216 (210) 979−6633 Fax: 210/979−7024 Email: cwood@wabsa.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stacy Tuer Castillo Walsh, Anderson, Brown, Gallegos and Green P.C. 100 N.E. Loop 410, Suite 900 San Antonio, TX 78216 (210) 979−6633 Fax: 210/979−7024 Email: scastillo@wabsa.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/26/2011
05/26/2011

# Docket Text
1 COMPLAINT ( Filing fee $ 350 receipt number 0542−3660796), filed by Christa Schultz.(Flanary, Donald) (Entered: 05/26/2011)
2 MOTION for Temporary Restraining Order and Preliminary Injunction by Christa Schultz. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Flanary, Donald) (Entered: 05/26/2011)

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05/26/2011 05/26/2011 05/26/2011 05/26/2011 05/26/2011 05/26/2011 05/26/2011 05/26/2011
05/26/2011 05/27/2011 05/27/2011 05/27/2011
05/27/2011 05/30/2011
05/31/2011
06/01/2011 06/01/2011

3 AFFIDAVIT in Support of 2 MOTION for Temporary Restraining Order and Preliminary Injunction by Christa Schultz. (Flanary, Donald) (Entered: 05/26/2011)
4 AFFIDAVIT in Support of 2 MOTION for Temporary Restraining Order and Preliminary Injunction by Christa Schultz. (Flanary, Donald) (Entered: 05/26/2011)
5 NOTICE of Attorney Appearance by Donald H. Flanary, III on behalf of Christa Schultz (Flanary, Donald) (Entered: 05/26/2011)
6 MOTION to Appear Pro Hac Vice by Donald H. Flanary, III ( Filing fee $ 25 receipt number 0542−3660918) by on behalf of Christa Schultz. (Flanary, Donald) (Entered: 05/26/2011)
7 MOTION to Appear Pro Hac Vice by Donald H. Flanary, III ( Filing fee $ 25 receipt number 0542−3660931) by on behalf of Christa Schultz. (Flanary, Donald) (Entered: 05/26/2011)
8 Proposed Pretrial Order Granting Plaintiff's Motion for a Temporary Restraining Order and a Preliminary Injunction by Christa Schultz. (Flanary, Donald) (Entered: 05/26/2011)
9 JS44 (Civil Cover Sheet) submitted by Christa Schultz. (Flanary, Donald) (Entered: 05/26/2011)
Case Assigned to Chief Judge Fred Biery. CM WILL NOW REFLECT THE JUDGE INITIALS AS PART OF THE CASE NUMBER. PLEASE APPEND THESE JUDGE INITIALS TO THE CASE NUMBER ON EACH DOCUMENT THAT YOU FILE IN THIS CASE. (kh2) (Entered: 05/27/2011)
If ordered by the court, all referrals will be assigned to Magistrate Judge Mathy (kh2) (Entered: 05/27/2011)
10 ORDER setting Hearing on 2 MOTION for Temporary Restraining Order and Preliminary Injunction ( Motion Hearing set for 5/31/2011 11:00 AM before Chief Judge Fred Biery.). Signed by Chief Judge Fred Biery. (tm) (Entered: 05/27/2011)
11 Summons Issued as to Medina Valley Independent School District. (kh2) (Entered: 05/27/2011)
12 ORDER GRANTING 6 Motion to Appear Pro Hac Vice and GRANTING 7 Motion to Appear Pro Hac Vice. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Chief Judge Fred Biery. (ga) (Entered: 05/27/2011)
13 SUMMONS Returned Executed by Christa Schultz, Danny Schultz, Trevor Schultz. Medina Valley Independent School District served on 5/27/2011, answer due 6/17/2011. (Flanary, Donald) (Entered: 05/27/2011)
14 SUPPLEMENT to 2 MOTION for Temporary Restraining Order and Preliminary Injunction (Supplemental Exhibits, 3 through 17; Exhibits 3 through 6 are in main document) by Christa Schultz, Danny Schultz, Trevor Schultz. (Attachments: # 1 Exhibit 7−9, # 2 Exhibit 10−17)(Luchenitser, Alexander) (Entered: 05/31/2011)
15 Minute Entry for proceedings held before Chief Judge Fred Biery: Motion Hearing held on 5/31/2011 re 2 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Christa Schultz (Minute entry documents are not available electronically.). (Court Reporter Chris Poage.)(rf) (Entered: 06/01/2011)
16 ORDER ON PLAINTIFF'S MOTION TERMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION GRANTING 2 Motion for TRO. Signed by Chief Judge Fred Biery. (rg) (Entered: 06/01/2011)
17 Appeal of Order entered by District Judge 16 by Medina Valley Independent School District.( Filing fee $ 455 receipt number 0542−3670724) (Wood, Donald) (Entered: 06/01/2011)

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06/01/2011
06/01/2011 06/02/2011 06/02/2011
06/02/2011
06/03/2011 06/03/2011 06/03/2011 06/03/2011
06/15/2011 06/17/2011

17 NOTICE OF INTERLOCUTORY APPEAL as to 16 Order on Motion for TRO by Medina Valley Independent School District. Filing fee $ 455, receipt number 0542−3670724. Per 5th Circuit rules, the appellant has 14 days, from the filing of the Notice of Appeal, to order the transcript. To order a transcript, the appellant should fill out Form DKT−13 (Transcript Order) and follow the instructions set out on the form. This form is available in the Clerk's Office or by clicking the hyperlink above. (rf) (Entered: 06/02/2011)
18 AMENDED ORDER on 2 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Christa Schultz. Signed by Chief Judge Fred Biery. (tm) (Entered: 06/02/2011)
19 Amended Appeal of Order entered by District Judge 18 , 16 by Medina Valley Independent School District. No filing fee submitted (Wood, Donald) (Entered: 06/02/2011)
19 AMENDED NOTICE OF INTERLOCUTORY APPEAL as to 18 Amended Order, 16 Order on Motion for TRO by Medina Valley Independent School District. Per 5th Circuit rules, the appellant has 14 days, from the filing of the Notice of Appeal, to order the transcript. To order a transcript, the appellant should fill out Form DKT−13 (Transcript Order) and follow the instructions set out on the form. This form is available in the Clerk's Office or by clicking the hyperlink above. (ga) (ga, ). (Entered: 06/02/2011)
20 Transcript filed of Proceedings held on 5/31/2011, Proceedings Transcribed: Hearing on Temporary Restraining Order and Preliminary Injunction. Court Reporter/Transcriber: Chris Poage, Telephone number: 210−244−5036. Parties are notified of their duty to review the transcript to ensure compliance with the FRCP 5.2(a)/FRCrP 49.1(a). A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Notice of Redaction Request must be filed within 21 days. If no such Notice is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed Redaction Request due 6/23/2011. Redacted Transcript Deadline set for 7/5/2011. Release of Transcript Restriction set for 8/31/2011. Appeal Record due by 6/17/2011. (Poage, Chris) (Entered: 06/02/2011)
21 Letter of transmittal from USCA received for 19 Notice of Appeal − Interlocutory,, filed by Medina Valley Independent School District, 17 Notice of Appeal − Interlocutory, filed by Medina Valley Independent School District. (bn ) (Entered: 06/06/2011)
22 ORDER of USCA (certified copy) regarding the appelant's emergency motion to stay enforcement of temporary restraining order and preliminary injuction is DISMISSED AS MOOT. ; re 19 Notice of Appeal − Interlocutory, 17 Notice of Appeal − Interlocutory, re 21 (bn ) (Entered: 06/06/2011)
23 Letter of transmittal from USCA received for 19 Notice of Appeal − Interlocutory, filed by Medina Valley Independent School District, 17 Notice of Appeal − Interlocutory, filed by Medina Valley Independent School District. (bn ) (Entered: 06/06/2011)
24 Certified copy of USCA JUDGMENT/MANDATE Dismissing. It is Therefore Ordered that the emergency motion of the appellants to dissolve the temporary restraining order and preliminary injunction is GRANTED; accordingly the temporary restrainging order and preliminary injunction entered by the district court are DISSOLVED, and the case is REMANDED to the district court for possible further proceedings. 17 Notice of Appeal − Interlocutory, filed by Medina Valley Independent School District, 19 Notice of Appeal − Interlocutory, filed by Medina Valley Independent School District.re 23 (bn, ) (Entered: 06/06/2011)
25 ANSWER to 1 Complaint by Medina Valley Independent School District.(Wood, Donald) (Entered: 06/15/2011)
26 MOTION to Appear Pro Hac Vice by Donald H. Flanary, III ( Filing fee $ 25 receipt number 0542−3714099) by on behalf of Christa Schultz, Danny Schultz, Trevor Schultz. (Flanary, Donald) (Entered: 06/17/2011)

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06/21/2011
06/21/2011 07/08/2011 07/08/2011
07/08/2011 07/08/2011 07/11/2011 07/12/2011 07/21/2011 07/21/2011 07/22/2011
07/22/2011 07/25/2011 08/04/2011 08/10/2011
08/23/2011 09/06/2011

27 ORDER GRANTING 26 Motion to Appear Pro Hac Vice for attorney Gregory M. Lipper. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Chief Judge Fred Biery. (ga) (Entered: 06/21/2011)
28 Order for Scheduling Recommendations/Proposed Scheduling Order. Parties shall submit a scheduling recommendations/proposed scheduling order to the Court by 7/8/2011. Signed by Chief Judge Fred Biery. (ga) (Entered: 06/21/2011)
29 Scheduling Recommendations by Christa Schultz, Danny Schultz, Trevor Schultz, Medina Valley Independent School District. (Lipper, Gregory) Modified on 7/8/2011, to add filer (rf). (Entered: 07/08/2011)
30 Joint MOTION for Protective Order by Christa Schultz, Danny Schultz, Trevor Schultz, Medina Valley Independent School District. (Attachments: # 1 Exhibit Stipulated Protective Order)(Lipper, Gregory) Modified on 7/8/2011, to add filer (rf). (Entered: 07/08/2011)
Notice of Correction: ***NOTIFIED COUNSEL THAT THE DEFENDANT HAS BEEN ADDED AS A FILER OF THIS DOCUMENT**** re 29 Scheduling Recommendations/Proposed Scheduling Order. (rf) (Entered: 07/08/2011)
Notice of Correction: ***NOTIFIED COUNSEL THAT THE DEFENDANT HAS BEEN ADDED AS A FILER OF THIS DOCUMENT**** re 30 Joint MOTION for Protective Order. (rf (Entered: 07/08/2011)
31 ADVISORY AND ORDER CONCERNING PROCEDURES TO REACH RESOLUTION OF THE MERITS OF THIS CASE. Signed by Chief Judge Fred Biery. (rf) (Entered: 07/11/2011)
32 Stipulated PROTECTIVE ORDER. Signed by Chief Judge Fred Biery. (ga) (Entered: 07/12/2011)
33 ADVISORY TO THE COURT by Christa Schultz, Danny Schultz, Trevor Schultz regarding 31 Court's order on settlement. (Lipper, Gregory) Modified on 7/21/2011 to add link (ga). (Entered: 07/21/2011)
34 ADVISORY TO THE COURT by Medina Valley Independent School District. (Wood, Donald) (Entered: 07/21/2011)
35 SCHEDULING ORDER: ADR Report Deadline due by 9/6/2011. Amended Pleadings and Joinder of Parties due by 10/5/2011. Discovery due by 11/30/2011. Dispositive Motions due by 1/5/2012. The trial date will be determined at a later date by the Court. Signed by Chief Judge Fred Biery. (ga) (Entered: 07/22/2011)
36 Court Advisory Concerning Discovery. Signed by Chief Judge Fred Biery. (ga) (Entered: 07/22/2011)
37 Minute Entry for proceedings held before Chief Judge Fred Biery: Telephone Conference held on 7/25/2011 (Minute entry documents are not available electronically.). (Court Reporter Chris Poage.)(rf) (Entered: 07/26/2011)
38 MOTION to Appear Pro Hac Vice by Donald H. Flanary, III ( Filing fee $ 25 receipt number 0542−3832737) by on behalf of Christa Schultz, Danny Schultz, Trevor Schultz. (Flanary, Donald) (Entered: 08/04/2011)
39 ORDER GRANTING 38 Motion for Taryn C. Wilgus Null to Appear Pro Hac Vice. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Chief Judge Fred Biery. (rg) (Entered: 08/11/2011)
40 Notice of Alternative Dispute Resolution Outcome: Did not settle.(rg) (Entered: 08/24/2011)
41 ADR Report Filed − by Christa Schultz, Danny Schultz, Trevor Schultz(Lipper, Gregory) (Entered: 09/06/2011)

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09/06/2011 09/06/2011 09/06/2011 09/09/2011 09/13/2011 09/14/2011 09/15/2011 09/16/2011 09/16/2011 09/20/2011 10/03/2011 10/03/2011
10/05/2011
10/05/2011
10/06/2011
10/11/2011 10/11/2011
10/11/2011

42 Notice of Alternative Dispute Resolution Outcome: Did not settle.(Wood, Donald) (Entered: 09/06/2011)
43 MOTION to Dismiss for Lack of Jurisdiction by Medina Valley Independent School District. (Attachments: # 1 Affidavit)(Wood, Donald) Modified text on 9/7/2011 (rg). (Entered: 09/06/2011)
44 MOTION to Dismiss for Lack of Jurisdiction by Medina Valley Independent School District. (Attachments: # 1 Proposed Order)(Wood, Donald) (Entered: 09/06/2011)
45 MOTION to Withdraw as Attorney Taryn C. Wilgus Null by Christa Schultz, Danny Schultz, Trevor Schultz. (Lipper, Gregory) (Entered: 09/09/2011)
46 NOTICE of Attorney Appearance by Stacy Tuer Castillo on behalf of Medina Valley Independent School District (Castillo, Stacy) (Entered: 09/13/2011)
47 Unopposed MOTION for Extension of Time to File Response/Reply as to 44 MOTION to Dismiss for Lack of Jurisdiction by Christa Schultz, Danny Schultz, Trevor Schultz. (Lipper, Gregory) (Entered: 09/14/2011)
48 ORDER GRANTING 47 Motion for Extension of Time to File Response/Reply to the Motion to Dismiss on or before October 3, 2011. Signed by Chief Judge Fred Biery. (rg) (Entered: 09/15/2011)
49 Motion for leave to File Sealed Document (Attachments: # 1 Sealed Document Plaintiffs' Designation of Witnesses/Exhibits) (Lipper, Gregory) (Entered: 09/16/2011)
51 Sealed Document filed. (rg) (Entered: 09/20/2011)
50 Sealed Order. Signed by Chief Judge Fred Biery. (rg) (Entered: 09/20/2011)
52 Motion for leave to File Sealed Document (Attachments: # 1 Brief, # 2 Affidavit, # 3 Affidavit) (Lipper, Gregory) (Entered: 10/03/2011)
53 Memorandum in Opposition to Motion, filed by Christa Schultz, Danny Schultz, Trevor Schultz, re 44 MOTION to Dismiss for Lack of Jurisdiction filed by Defendant Medina Valley Independent School District (Attachments: # 1 Affidavit, # 2 Affidavit)(Lipper, Gregory) (Entered: 10/03/2011)
54 Unopposed Motion for leave to File Sealed Document (Attachments: # 1 Sealed Document Motion for Leave to File First Amended Complaint, # 2 Sealed Document First Amended Complaint, # 3 Sealed Document Exhibits to First Amended Complaint) (Lipper, Gregory) (Entered: 10/05/2011)
55 MOTION to Amend Complaint (Public Version) by Christa Schultz, Danny Schultz, Trevor Schultz. (Attachments: # 1 Exhibit First Amended Complaint, # 2 Exhibit Exhibits to First Amended Complaint)(Lipper, Gregory) (Entered: 10/05/2011)
56 Unopposed MOTION for leave to permit Plaintiff Doe to proceed anonymously by Christa Schultz, Danny Schultz, Trevor Schultz. (Attachments: # 1 Affidavit Second Declaration of Gregory M. Lipper, # 2 Affidavit Fourth Declaration of Christa Schultz, # 3 Affidavit Fourth Declaration of Corwyn Schultz, # 4 Affidavit Third Declaration of Danny Schultz)(Lipper, Gregory) (Entered: 10/06/2011)
57 ORDER − Court Advisory Regarding Discovery and Deposition Issue. Signed by Chief Judge Fred Biery. (rg) (Entered: 10/11/2011)
58 MOTION to Strike and Response in Opposition filed by Medina Valley Independent School District, re 44 MOTION to Dismiss for Lack of Jurisdiction filed by Defendant Medina Valley Independent School District (Attachments: # 1 Proposed Order)(Wood, Donald) Modified on 10/12/2011, to edit text (rf). (Entered: 10/11/2011)
59 REPLY to Response to Motion, filed by Medina Valley Independent School District, re 44 MOTION to Dismiss for Lack of Jurisdiction filed by Defendant Medina Valley Independent School District (Attachments: # 1 Affidavit)(Wood, Donald) (Entered: 10/11/2011)

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10/12/2011 10/13/2011
10/13/2011
10/14/2011 10/18/2011 10/21/2011 10/21/2011 10/24/2011 10/24/2011 10/26/2011 10/31/2011
11/02/2011
11/02/2011 11/02/2011 11/02/2011 11/02/2011 11/07/2011

60 ORDER GRANTING 45 Motion for Taryn c. Wilgus Null to Withdraw as Attorney. Signed by Chief Judge Fred Biery. (rg) (Entered: 10/13/2011)
61 Response in Opposition to Motion, filed by Medina Valley Independent School District, re 55 MOTION to Amend Complaint (Public Version) filed by Plaintiff Trevor Schultz, Plaintiff Danny Schultz, Plaintiff Christa Schultz (Attachments: # 1 Proposed Order)(Wood, Donald) (Entered: 10/13/2011)
62 Response in Opposition to Motion, filed by Medina Valley Independent School District, re 56 Unopposed MOTION for leave to permit Plaintiff Doe to proceed anonymously filed by Plaintiff Trevor Schultz, Plaintiff Danny Schultz, Plaintiff Christa Schultz (Attachments: # 1 Proposed Order)(Wood, Donald) (Entered: 10/13/2011)
63 Minute Entry for proceedings held before Chief Judge Fred Biery: Telephone Hearing held on 10/14/201.1 (Minute entry documents are not available electronically.). (Court Reporter Chris Poage.)(rg) (Entered: 10/14/2011)
64 MOTION to Compel Discovery Responses by Christa Schultz, Danny Schultz, Trevor Schultz. (Attachments: # 1 Affidavit Third Lipper Declaration + Exhibits 1−8, # 2 Exhibit Exhibits 9−14)(Lipper, Gregory) (Entered: 10/18/2011)
65 WITNESS/EXHIBIT LIST by Medina Valley Independent School District. (Wood, Donald) (Entered: 10/21/2011)
66 DESIGNATION OF EXPERT WITNESSES by Medina Valley Independent School District. (Wood, Donald) (Entered: 10/21/2011)
67 Motion for leave to File Sealed Document (Attachments: # 1 Memo in Support Opposition to Defendant's Motion to Strike, # 2 Affidavit Fifth Lipper Declaration) (Lipper, Gregory) (Entered: 10/24/2011)
68 Motion for leave to File Sealed Document (Attachments: # 1 Memo in Support Reply in support of Plaintiffs' motion for leave to amend, # 2 Affidavit Fourth Lipper Declaration) (Lipper, Gregory) (Entered: 10/25/2011)
69 Motion for leave to File Sealed Document (Attachments: # 1 Memo in Support Reply in support of motion to allow Plaintiff Pat Doe to proceed anonymously (Oct. 26, 2011)) (Lipper, Gregory) (Entered: 10/26/2011)
70 Response in Opposition to Motion, filed by Medina Valley Independent School District, re 64 MOTION to Compel Discovery Responses filed by Plaintiff Trevor Schultz, Plaintiff Danny Schultz, Plaintiff Christa Schultz (Attachments: # 1 Proposed Order)(Wood, Donald) (Entered: 10/31/2011)
71 ORDER DENYING 44 Motion to Dismiss for Lack of Jurisdiction ; DENYING 52 Motion for Leave to File Sealed Document; GRANTING 54 Motion for Leave to File Sealed Document; GRANTING 55 Motion to Amend Complaint; GRANTING IN PART AND DENYING IN PART 56 Motion ; DENYING 58 Motion to Strike ; DENYING 67 Motion for Leave to File Sealed Document; GRANTING 68 Motion for Leave to File Sealed Document; GRANTING 69 Motion for Leave to File Sealed Document Signed by Chief Judge Fred Biery. (rf) (Entered: 11/02/2011)
72 Sealed Document filed (Attachments: # 1 Exhibit) (rf) (Entered: 11/02/2011)
73 Sealed Document filed (rf) (Entered: 11/02/2011)
74 Sealed Motion filed (Attachments: # 1 Exhibit, # 2 Exhibit) (rf) (Entered: 11/02/2011)
75 AMENDED COMPLAINT against Medina Valley Independent School District amending 1 Complaint., filed by Christa Schultz, Danny Schultz, Pat Doe, Trevor Schultz, Corwyn Schultz. (Attachments: # 1 Exhibit)(rf) (Entered: 11/02/2011)
76 AMENDED ORDER ON PENDING MOTIONS − ORDER re 71 Order on Motion to Dismiss/Lack of Jurisdiction, Order on Motion for Leave to File Sealed Document,, Order on Motion to Amend Complaint, Order on Motion for Miscellaneous Relief, Order on Motion to Strike. Signed by Chief Judge Fred

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11/07/2011
11/07/2011 11/08/2011 11/10/2011 11/14/2011 11/17/2011 11/17/2011 11/21/2011 11/22/2011 11/22/2011 11/23/2011
11/28/2011 11/28/2011 11/30/2011

Biery. (rg) (Entered: 11/07/2011)
77 ORDERSETTING CASE FOR JURY SELECTION AND TRIL AND RELATED ORDERS (Pretrial Conference set for 1/27/2012 10:30 AM before Chief Judge Fred Biery., Jury Selection and Jury Trial set for 1/30/2012 08:30 AM. IT IS ALSO ORDERED that the pretrial information in conformance with Local Rule CV−16(e) shall be filed no later than 5 p.m. on Tuesday, January 17, 2012. IT IS FURTHER ORDERED that Motions in Limine shall be filed no later than 5 p.m. on Friday, January 20, 2012. Signed by Chief Judge Fred Biery. (rg) (Entered: 11/07/2011)
78 Minute Entry for proceedings held before Chief Judge Fred Biery: Telephone Conference Hearing held on 11/7/2011. (Minute entry documents are not available electronically.). (Court Reporter Chris Poage.)(rg) (Entered: 11/07/2011)
79 Miscellaneous Objection to 66 Designation of Expert Witnesses by Pat Doe, Christa Schultz, Corwyn Schultz, Danny Schultz, Trevor Schultz. (Attachments: # 1 Exhibit Exhibits A, B (expert reports))(Lipper, Gregory) (Entered: 11/08/2011)
80 Amended ANSWER to 75 Amended Complaint by Medina Valley Independent School District.(Wood, Donald) (Entered: 11/10/2011)
81 Unopposed MOTION for Extension of Time to File Response/Reply as to 64 MOTION to Compel Discovery Responses until Nov. 28, 2011 by Pat Doe, Christa Schultz, Corwyn Schultz, Danny Schultz, Trevor Schultz. (Lipper, Gregory) (Entered: 11/14/2011)
82 ORDER DISMISSING 79 Objection. Signed by Chief Judge Fred Biery. (rf) (Entered: 11/17/2011)
83 ORDER GRANTING 81 Motion for Extension of Time to File Response. Signed by Chief Judge Fred Biery. (rf) (Entered: 11/17/2011)
84 MOTION for Protective Order by Medina Valley Independent School District. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Wood, Donald) (Entered: 11/21/2011)
85 Unopposed Motion for leave to File Sealed Document (Attachments: # 1 Sealed Document Motion to Reconsider, # 2 Affidavit Lipper Declaration, # 3 Exhibit Exhibits to Lipper Declaration, # 4 Sealed Document Doe Declaration) (Lipper, Gregory) (Entered: 11/22/2011)
95 Sealed Motion filed (Attachments: # 1 Sealed Document, # 2 Sealed Document, # 3 Sealed Document) (rg) (Entered: 12/06/2011)
86 Transcript filed of Proceedings held on 11/07/2011, Proceedings Transcribed: Telephone Conference. Court Reporter/Transcriber: Chris Poage, Telephone number: 210−244−5036. Parties are notified of their duty to review the transcript to ensure compliance with the FRCP 5.2(a)/FRCrP 49.1(a). A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Notice of Redaction Request must be filed within 21 days. If no such Notice is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed Redaction Request due 12/14/2011. Redacted Transcript Deadline set for 12/27/2011. Release of Transcript Restriction set for 2/21/2012. (Poage, Chris) (Entered: 11/23/2011)
87 OBSERVATIONS ON APPROACHING JURY TRIAL. Signed by Chief Judge Fred Biery. (rf) (Entered: 11/28/2011)
88 Unopposed MOTION for Extension of Time to File Response/Reply as to 64 MOTION to Compel Discovery Responses until December 2, 2011 by Pat Doe, Christa Schultz, Corwyn Schultz, Danny Schultz, Trevor Schultz. (Lipper, Gregory) (Entered: 11/28/2011)
89 MOTION to Extend Scheduling Order Deadlines by Medina Valley Independent School District. (Attachments: # 1 Proposed Order)(Wood, Donald) (Entered: 11/30/2011)

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12/02/2011 12/02/2011 12/05/2011 12/05/2011 12/05/2011 12/06/2011 12/06/2011 12/09/2011 12/09/2011 12/20/2011
12/21/2011
12/22/2011 01/04/2012

90 Motion for leave to File Sealed Document (Attachments: # 1 Proposed Order, # 2 Sealed Document, # 3 Sealed Document, # 4 Sealed Document, # 5 Sealed Document, # 6 Sealed Document) (Wood, Donald) (Entered: 12/02/2011)
91 Unopposed MOTION for Extension of Time to File Response/Reply as to 64 MOTION to Compel Discovery Responses until December 9, 2011 by Pat Doe, Christa Schultz, Corwyn Schultz, Danny Schultz, Trevor Schultz. (Lipper, Gregory) (Entered: 12/02/2011)
92 Memorandum in Opposition to Motion, filed by Pat Doe, Christa Schultz, Corwyn Schultz, Danny Schultz, Trevor Schultz, re 84 MOTION for Protective Order filed by Defendant Medina Valley Independent School District (Lipper, Gregory) (Entered: 12/05/2011)
93 ORDER GRANTING 89 Motion to Extend Scheduling Order Deadlines. Signed by Chief Judge Fred Biery. (rg) (Entered: 12/06/2011)
94 Sealed Order. Signed by Chief Judge Fred Biery. (rg) (Entered: 12/06/2011)
96 Minute Entry for proceedings held before Chief Judge Fred Biery: Telephone Conference Hearing held on 12/6/2011. (Minute entry documents are not available electronically.). (Court Reporter Chris Poage.)(rg) (Entered: 12/06/2011)
97 ORDER DENYING as moot 84 Motion for Protective Order, with leave granted to defendant or plaintiff's to move to amend the Protective Order as may be necessary for a particular individual; DENYING 95 Sealed Motion. Pat Doe is DELETED as a plaintiff. Signed by Chief Judge Fred Biery. (rg) (Entered: 12/06/2011)
98 Second MOTION to Dismiss for Lack of Jurisdiction by Medina Valley Independent School District. (Attachments: # 1 Appendix, # 2 Affidavit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Proposed Order)(Wood, Donald) (Entered: 12/09/2011)
99 NOTICE by Christa Schultz, Corwyn Schultz, Danny Schultz, Trevor Schultz re 64 MOTION to Compel Discovery Responses (Lipper, Gregory) (Entered: 12/09/2011)
100 Transcript filed of Proceedings held on 12/6/2011, Proceedings Transcribed: Telephone Conference. Court Reporter/Transcriber: Chris Poage, Telephone number: 210−244−5036. Parties are notified of their duty to review the transcript to ensure compliance with the FRCP 5.2(a)/FRCrP 49.1(a). A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Notice of Redaction Request must be filed within 21 days. If no such Notice is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed Redaction Request due 1/10/2012. Redacted Transcript Deadline set for 1/20/2012. Release of Transcript Restriction set for 3/19/2012. (Poage, Chris) (Entered: 12/20/2011)
101 Memorandum in Opposition to Motion, filed by Christa Schultz, Corwyn Schultz, Danny Schultz, Trevor Schultz, re 98 Second MOTION to Dismiss for Lack of Jurisdiction filed by Defendant Medina Valley Independent School District (Attachments: # 1 Affidavit Sixth Lipper Declaration, # 2 Exhibit Exhibit A to Lipper Declaration, # 3 Exhibit Exhibit B to Lipper Declaration, # 4 Exhibit Exhibit C (Vol. 1) to Lipper Declaration, # 5 Exhibit Exhibit C (Vol. 2) to Lipper Declaration, # 6 Exhibit Exhibit D to Lipper Declaration, # 7 Exhibit Exhibits E−L to Lipper Declaration, # 8 Exhibit Exhibits M−U to Lipper Declaration, # 9 Affidavit Schultz Declaration)(Lipper, Gregory) (Entered: 12/21/2011)
102 REPLY to Response to Motion, filed by Medina Valley Independent School District, re 98 Second MOTION to Dismiss for Lack of Jurisdiction filed by Defendant Medina Valley Independent School District (Attachments: # 1 Exhibit A through A−3)(Wood, Donald) (Entered: 12/22/2011)
103 ***DOCUMENT IS DEFICIENT − CERTIFICATE OF SERVICE NOT SIGNED***Opposed MOTION to Strike 101 Memorandum in Opposition to Motion,, by Medina Valley Independent School District. (Attachments: # 1 Proposed Order)(Wood, Donald) Modified on 1/4/2012, to designate deficiency

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01/04/2012 01/04/2012 01/04/2012 01/04/2012 01/04/2012
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(rf). (Entered: 01/04/2012)
104 ***DOCUMENT IS DEFICIENT − CERTIFICATE OF SERVICE IS NOT SIGNED****Opposed MOTION for Summary Judgment by Medina Valley Independent School District. (Attachments: # 1 Appendix, # 2 Proposed Order)(Wood, Donald) Modified on 1/4/2012, to designate deficiency (rf). (Entered: 01/04/2012)
105 ***DOCUMENT IS DEFICIENT − TITLE PAGE AND CERTIFICATE OF SERVICE MISSING***Opposed MOTION for Summary Judgment by Medina Valley Independent School District. (Attachments: # 1 Exhibit Attachments to Defendants MSJ, # 2 Exhibit Attachments to Defendants MSJ, # 3 Exhibit Attachments to Defendants MSJ, # 4 Exhibit Attachments to Defendants MSJ)(Wood, Donald) Modified on 1/4/2012, to designate deficiency (rf). (Entered: 01/04/2012)
106 ****DOCUMENT IS DEFICIENT − TITLE PAGE AND CERTIFICATE OF SERVICE ARE REQUIRED***Opposed MOTION for Summary Judgment EXHIBITS by Medina Valley Independent School District. (Attachments: # 1 Exhibit Attachments to Defendants MSJ, # 2 Exhibit Attachments to Defendants MSJ, # 3 Exhibit Attachments to Defendants MSJ, # 4 Exhibit Attachments to Defendants MSJ)(Wood, Donald) Modified on 1/4/2012, to designate deficiency (rf). (Entered: 01/04/2012)
107 ****DOCUMENT IS DEFICIENT − TITLE PAGE AND CERTIFICATE OF SERVICE ARE REQUIRED****Opposed MOTION for Summary Judgment EXHIBITS by Medina Valley Independent School District. (Attachments: # 1 Exhibit Attachments to Defendants MSJ, # 2 Exhibit Attachments to Defendants MSJ, # 3 Exhibit Attachments to Defendants MSJ, # 4 Exhibit Attachments to Defendants MSJ, # 5 Exhibit Attachments to Defendants MSJ)(Wood, Donald) Modified on 1/4/2012, to designate deficiency (rf). (Entered: 01/04/2012)
108 ***DOCUMENT IS DEFICIENT − TITLE PAGE AND CERTIFICATE OF SERVICE ARE REQUIRED****Opposed MOTION for Summary Judgment Exhibits by Medina Valley Independent School District. (Attachments: # 1 Exhibit Attachments to Defendants MSJ, # 2 Exhibit Attachments to Defendants MSJ, # 3 Exhibit Attachments to Defendants MSJ, # 4 Exhibit Attachments to Defendants MSJ, # 5 Exhibit Attachments to Defendants MSJ, # 6 Exhibit Attachments to Defendants MSJ, # 7 Exhibit Attachments to Defendants MSJ, # 8 Exhibit Attachments to Defendants MSJ, # 9 Exhibit Attachments to Defendants MSJ, # 10 Exhibit Attachments to Defendants MSJ, # 11 Exhibit Attachments to Defendants MSJ, # 12 Exhibit Attachments to Defendants MSJ, # 13 Exhibit Attachments to Defendants MSJ, # 14 Exhibit Attachments to Defendants MSJ, # 15 Exhibit Attachments to Defendants MSJ, # 16 Exhibit Attachments to Defendants MSJ, # 17 Exhibit Attachments to Defendants MSJ, # 18 Exhibit Attachments to Defendants MSJ, # 19 Exhibit Attachments to Defendants MSJ, # 20 Exhibit Attachments to Defendants MSJ, # 21 Exhibit Attachments to Defendants MSJ)(Wood, Donald) Modified on 1/4/2012, to designate deficiency (rf). (Entered: 01/04/2012)
109 ****DOCUMENT IS DEFICIENT − TITLE PAGE AND CERTIFICATE OF SERVICE ARE REQUIRED****Opposed MOTION for Summary Judgment Exhibits by Medina Valley Independent School District. (Wood, Donald) Modified on 1/4/2012, to designate deficiency (rf). (Entered: 01/04/2012)
110 DEFICIENCY NOTICE: ****NOTIFIED COUNSEL THAT DOCUMENT IS DEFICIENT − CERTIFICATE OF SERVICE IS NOT SINGED**** re 103 Opposed MOTION to Strike 101 Memorandum in Opposition to Motion,,Opposed MOTION to Strike 101 Memorandum in Opposition to Motion,, (rf) (Entered: 01/04/2012)
111 DEFICIENCY NOTICE: ****NOTIFIED COUNSEL THAT DOCUMENT IS DEFICIENT − CERTIFICATE OF SERVICE IS NOT SIGNED**** re 104 Opposed MOTION for Summary Judgment (rf) (Entered: 01/04/2012)
Notice of Correction: ***NOTIFIED COUNSEL THAT THE RELIEF ATTACHED TO THESE ENTRIES HAS BEEN TERMINATED AS THE

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APPEAR TO BE EXHIBITS TO DOC #104 RATHER THAN SEPARATE MOTIONS AS FILED**** re 109 Opposed MOTION for Summary Judgment Exhibits, 107 Opposed MOTION for Summary Judgment EXHIBITS, 108 Opposed MOTION for Summary Judgment Exhibits, 106 Opposed MOTION for Summary Judgment EXHIBITS, 105 Opposed MOTION for Summary Judgment. (rf) (Entered: 01/04/2012)
112 DEFICIENCY NOTICE: ***NOTIFIED COUNSEL THAT A TITLE PAGE AND CERTIFICATE OF SERVICE ARE REQUIRED**** re 105 Opposed MOTION for Summary Judgment (rf) (Entered: 01/04/2012)
113 DEFICIENCY NOTICE: ***NOTIFIED COUNSEL THAT A TITLE PAGE AND CERTIFICATE OF SERVICE ARE REQUIRED*** re 106 Opposed MOTION for Summary Judgment EXHIBITS (rf) (Entered: 01/04/2012)
114 DEFICIENCY NOTICE: ***NOTIFIED COUNSEL THAT A TITLE PAGE AND CERTIFICATE OF SERVICE ARE REQUIRED**** re 107 Opposed MOTION for Summary Judgment EXHIBITS (rf) (Entered: 01/04/2012)
115 DEFICIENCY NOTICE: ***NOTIFIED COUNSEL THAT A TITLE PAGE AND CERTIFICATE OF SERVICE ARE REQUIRED***** re 108 Opposed MOTION for Summary Judgment Exhibits (rf) (Entered: 01/04/2012)
116 DEFICIENCY NOTICE: ***NOTIFIED COUNSEL THAT A TITLE PAGE AND CERTIFICATE OF SERVICE ARE REQUIRED*** re 109 Opposed MOTION for Summary Judgment Exhibits (rf) (Entered: 01/04/2012)
117 CORRECTED MOTION to Strike 101 Memorandum in Opposition to Motion,, by Medina Valley Independent School District. (Attachments: # 1 Proposed Order)(Wood, Donald) (Entered: 01/04/2012)
118 CORRECTED MOTION for Summary Judgment by Medina Valley Independent School District. (Attachments: # 1 Appendix, # 2 Affidavit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit, # 23 Exhibit, # 24 Exhibit, # 25 Exhibit, # 26 Exhibit, # 27 Exhibit, # 28 Exhibit, # 29 Exhibit, # 30 Exhibit, # 31 Exhibit, # 32 Exhibit, # 33 Exhibit, # 34 Exhibit, # 35 Exhibit, # 36 Exhibit, # 37 Exhibit, # 38 Exhibit, # 39 Exhibit, # 40 Exhibit, # 41 Proposed Order)(Wood, Donald) Modified text on 1/4/2012 (rg). (Entered: 01/04/2012)
119 Unopposed MOTION to Withdraw Notice of Correction, by Medina Valley Independent School District. (Attachments: # 1 Exhibit)(Wood, Donald) (Entered: 01/04/2012)
120 ORDER GRANTING 119 Motion to Withdraw Exhibit. Signed by Chief Judge Fred Biery. (rg) (Entered: 01/05/2012)
121 Unopposed MOTION for Leave to File 2nd Corrected Objections and Motion to Strike by Medina Valley Independent School District. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Proposed Order)(Wood, Donald). Added MOTION to Strike on 1/17/2012 (rf). (Entered: 01/05/2012)
122 Opposed MOTION for Partial Summary Judgment by Christa Schultz, Corwyn Schultz, Danny Schultz, Trevor Schultz. (Attachments: # 1 Affidavit Seventh Lipper Declaration, # 2 Exhibit Exs. A1−E1, # 3 Exhibit Exs. E2−M2, # 4 Exhibit Ex. N1 (Vol. 1), # 5 Exhibit Ex. N1 (Vol. 2), # 6 Exhibit Ex. N1 (Vol. 3), # 7 Exhibit Ex. N2, # 8 Exhibit Exs. N3−S, # 9 Exhibit Ex. T (Vol. 1), # 10 Exhibit Ex. T (Vol. 2), # 11 Exhibit Ex. T (Vol. 3), # 12 Exhibit Exs. U1−AA, # 13 Exhibit Exs. BB1−BB28, # 14 Exhibit Exs. BB29−BB50, # 15 Exhibit Exs. BB51−BB68)(Lipper, Gregory) (Entered: 01/05/2012)
123 ORDER Cancelling the Jury Trial Setting Deadline of January 30, 2012, IT IS FURTHER ORDERED that the joint request for mediation is GRANTED. If there is no resolution, the case is reset for jury trial beginning March 5, 2012.(Resetting Jury Selection and Jury Trial set for 3/5/2012 08:30 AM before Chief Judge Fred Biery.) Signed by Chief Judge Fred Biery. (rg) (Entered: 01/06/2012)

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124 ORDER GRANTING 121 Unopposed Motion for Leave to File Second Corrected Objections to and Motion to Strike. Signed by Chief Judge Fred Biery. (rg) (Entered: 01/13/2012)
125 ORDER − ADVISORY REGARDING PENDING MOTIONS AND UPCOMING. Signed by Chief Judge Fred Biery. (rg) (Entered: 01/13/2012)
126 ORDER FILING CD EXHIBIT TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AS PART OF THE RECORD re 122 Opposed MOTION for Partial Summary Judgment filed by Corwyn Schultz, Trevor Schultz, Danny Schultz, Christa Schultz. ORDERED that the CD delivered by plaintiffs' counsel to chambers' staff containing copies of Exhibits CC1−CC1 1 to Plaintiffs' Motion for Partial Summary Judgment is to be FILED as part of the record in these proceedings. Given the limited availability of physical space in the Clerk's office, the CD shall be stored in the chambers of Chief Judge Fred Biery. Signed by Chief Judge Fred Biery. (rg) (Entered: 01/13/2012)
127 Memorandum in Opposition to Motion, filed by Christa Schultz, Corwyn Schultz, Danny Schultz, Trevor Schultz, re 121 Unopposed MOTION for Leave to File 2nd Corrected Objections and Motion to Strike filed by Defendant Medina Valley Independent School District (Lipper, Gregory) (Entered: 01/16/2012)
128 Opposed MOTION to Strike 118 Opposed MOTION for Summary Judgment by Christa Schultz, Corwyn Schultz, Danny Schultz, Trevor Schultz. (Lipper, Gregory) (Entered: 01/17/2012)
129 Memorandum in Opposition to Motion, filed by Christa Schultz, Corwyn Schultz, Danny Schultz, Trevor Schultz, re 118 Opposed MOTION for Summary Judgment filed by Defendant Medina Valley Independent School District (Attachments: # 1 Affidavit Kelly P. Figueroa, # 2 Affidavit Corwyn Schultz, # 3 Affidavit Gregory M. Lipper, # 4 Exhibit Exhibit A, # 5 Exhibit Exhibit B, # 6 Exhibit Exhibit C, # 7 Exhibit Exhibit D, # 8 Exhibit Exhibit E, Vol. 1, # 9 Exhibit Exhibit E, Vol. 2, # 10 Exhibit Exhibit F, # 11 Exhibit Exhibit G, # 12 Exhibit Exhibit H, Vol. 1, # 13 Exhibit Exhibit H, Vol. 2, # 14 Exhibit Exhibit I, # 15 Exhibit Exhibit J, # 16 Exhibit Exhibit K, # 17 Exhibit Exhibit L)(Lipper, Gregory) (Entered: 01/18/2012)
130 Response in Opposition to Motion, filed by Medina Valley Independent School District, re 122 Opposed MOTION for Partial Summary Judgment filed by Plaintiff Corwyn Schultz, Plaintiff Trevor Schultz, Plaintiff Danny Schultz, Plaintiff Christa Schultz (Attachments: # 1 Affidavit, # 2 Affidavit, # 3 Affidavit, # 4 Affidavit, # 5 Proposed Order)(Wood, Donald) (Entered: 01/19/2012)
131 REPLY to Response to Motion, filed by Medina Valley Independent School District, re 128 Opposed MOTION to Strike 118 Opposed MOTION for Summary Judgment filed by Plaintiff Corwyn Schultz, Plaintiff Trevor Schultz, Plaintiff Danny Schultz, Plaintiff Christa Schultz (Wood, Donald) (Entered: 01/30/2012)
132 Response in Opposition to Motion, filed by Medina Valley Independent School District, re 128 Opposed MOTION to Strike 118 Opposed MOTION for Summary Judgment filed by Plaintiff Corwyn Schultz, Plaintiff Trevor Schultz, Plaintiff Danny Schultz, Plaintiff Christa Schultz (Attachments: # 1 Proposed Order)(Wood, Donald) (Entered: 01/30/2012)
133 ORDER − ORDERED that the parties response and reply deadlines to pending motions are STAYED pending the outcome of mediation. The March 5, 2012, trialsetting remains in full force and effect. Signed by Chief Judge Fred Biery. (rg) (Entered: 02/01/2012)
134 ORDER − Court Advisory Concerning Conference Call of February 1, 2011. Signed by Chief Judge Fred Biery. (rg) (Entered: 02/02/2012)
135 Joint MOTION to Approve Consent Judgment by Christa Schultz, Corwyn Schultz, Danny Schultz, Trevor Schultz, Medina Valley Independent School District. (Attachments: # 1 Exhibit Settlement Agreement)(Lipper, Gregory) Modified on 2/9/2012, to add filer (rf). (Entered: 02/08/2012)
Notice of Correction: ***NOTIFIED COUNSEL THAT THE DEFENDANT HAS BEEN ADDED AS A FILER OF THIS DOCUMENT*****re 135 Joint MOTION

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to Approve Consent Judgment. (rf) (Entered: 02/09/2012)
136 OPINION AND ORDER Of the Court Concerning Joint Motion to Approve Settlement and Enter Consent Decree. Signed by Chief Judge Fred Biery. (Attachments: # 1 Settlement Agreement and Release Arising During Mediation, # 2 Appendix II)(tm). (Entered: 02/09/2012)
137 Opposed MOTION to Enforce Settlement by Christa Schultz, Corwyn Schultz, Danny Schultz, Trevor Schultz. (Lipper, Gregory) (Entered: 02/22/2012)
138 RESPONSE to 137 Plaintiff's Motion to Enforce Settlement Agreement, filed by Medina Valley Independent School District, (Attachments: # 1 Exhibit A, # 2 Exhibit A−1 Disc went to the Court; Exhibit B, # 3 Exhibit C, # 4 Exhibit C1, # 5 Exhibit C2)(rg) Modified on 3/2/2012 (rg). (Entered: 03/02/2012)
139 REPLY Brief in Support of Motion, filed by Christa Schultz, Corwyn Schultz, Danny Schultz, Trevor Schultz, re 137 Opposed MOTION to Enforce Settlement filed by Plaintiff Corwyn Schultz, Plaintiff Trevor Schultz, Plaintiff Danny Schultz, Plaintiff Christa Schultz (Attachments: # 1 Affidavit Ninth Lipper Declaration, # 2 Exhibit Exhibits A−E to Lipper Declaration)(Lipper, Gregory) Modified docket text on 3/6/2012 (rg). (Entered: 03/05/2012)
140 NON−KUMBAYA ORDER THE HoMo SAPIEN SAGA CONTINUES − ORDER GRANTING 137 Motion to Enforce Settlement. Signed by Chief Judge Fred Biery. (rg) (Entered: 03/19/2012)
141 ADVISORY TO THE COURT by Medina Valley Independent School District. (Wood, Donald) (Entered: 03/20/2012)
142 NOTICE of Acceptance of Defendant's Apologies, by Christa Schultz, Corwyn Schultz, Danny Schultz, Trevor Schultz re 141 Advisory to the Court, 140 Order on Motion to Enforce Settlement (Lipper, Gregory) (Entered: 03/22/2012)


[CONTENT] Clearinghouse | August 4, 2020:   ||| May 26, 2011 | Medina Valley High School | the Medina Valley Independent School District | District Court | the Western District | Texas ||| Americans United for Separation of Church and State | the School District | First Amendment |||  ||| the same day | June 4, 2011 | two weeks ||| May 31 | the District Court | Fred Biery | June 1 |||  ||| the Fifth Circuit | June 3, 2011 | three | W. Eugene Davis | Jerry E. Smith | Leslie H. Southwick |||  |||  ||| July 11, 2011 ||| the end of the summer ||| September 6, 2011 ||| November 2 | second | December 9, 2011 ||| A month later |||  ||| February 2012 ||| February 8 |||  |||  |||  ||| ten years ||| February 9, 2012 ||| The following month ||| March 19, 2012 |||  ||| August 4, 2020 | February 2022 [SUMMARY] Summary posted to the Clearinghouse on August 4, 2020:

On May 26, 2011, an agnostic graduating senior at Medina Valley High School, his older brother (a former student at the school), and their parents filed suit against the Medina Valley Independent School District in the U.S. District Court for the Western District of Texas. Represented by Americans United for Separation of Church and State and by private counsel, the plaintiffs asked the court for declaratory and injunctive relief, nominal damages, and attorneys’ fees, alleging that the School District had violated their First Amendment rights. Specifically, the plaintiffs claimed that the school district, was in violation of the Establishment Clause by engaging in a course of conduct that included “presenting, sponsoring, encouraging, inviting, or coercing prayers at school and school-sponsored activities and events; displaying and permitting the display of crosses and other religious icons; and retaliating against students who complain[ed] about the unlawful promotion of religion or who decline[d] to participate in religious prayers, practices, or rituals.”

The plaintiffs moved for a temporary restraining order and preliminary injunction on the same day that they filed their complaint, hoping to enjoin the school district from featuring prayer at the upcoming high school graduation ceremony scheduled for June 4, 2011, two weeks after the complaint was filed. After a hearing on May 31, the District Court (Judge Fred Biery) granted their motion on June 1, finding that the plaintiffs were likely to succeed on the merits and that failing to issue an injunction would result in irreparable harm to the plaintiffs. It ordered the terms “invocation” and “benediction” stricken and any official group prayer removed from the graduation program.

The school district made an emergency interlocutory appeal to the Fifth Circuit, and on June 3, 2011, a three-judge panel (Judges W. Eugene Davis, Jerry E. Smith and Leslie H. Southwick) issued a per curiam opinion granting the motion to dissolve the temporary restraining order and preliminary injunction. The panel stated that they were not persuaded that the plaintiffs were “substantially likely to prevail on the merits, particularly on the issue that the individual prayers or other remarks to be given by students at graduation were, in fact, school-sponsored.”

The injunction was dissolved, and although the terms “invocation” and “benediction” had already been removed from the printed program, the graduation ceremony the following day included prayer as originally planned. 

On July 11, 2011, the district court urged the parties to attempt to settle rather than engage in protracted litigation, and the parties agreed to try mediation. At the end of the summer, however, they reported that they had been unable to reach an agreement.

On September 6, 2011, the school district moved to dismiss the complaint for lack of jurisdiction. This motion was mooted by the plaintiffs’ submission of an amended complaint on November 2, but the school district submitted a second motion to dismiss the amended complaint for lack of jurisdiction on December 9, 2011. A month later, the district moved for summary judgment. The plaintiffs subsequently moved for partial summary judgment on the issue of school prayer.

The court never ruled on any of these motions, however, because the parties were able to settle their dispute in February 2012. On February 8, they submitted a joint motion to approve a proposed agreement. Under the terms of the settlement, the school district agreed to stop initiating, soliciting, or directing prayers at school events, displaying religious symbols and texts at schools, and inviting religious speakers to proselytize, or to play any part in writing or editing student graduation speeches. It further agreed to train its staff in how to comply with the agreement, educate students on religious diversity, and refrain from retaliating against or disparaging the plaintiffs. The agreement allowed student-led prayer at events.  The court retained jurisdiction to enforce the settlement for ten years.

On February 9, 2012, the court entered a consent decree approving the settlement.

The following month, the court was called upon to enforce it—the school superintendent and the high school band director each made statements that could be construed as disparaging of the plaintiffs (the former referring to the lawsuit as a “witch hunt” and the latter calling the plaintiffs liars) shortly after the settlement was approved.

On March 19, 2012, the court issued an order requiring the district to apologize, and requiring the plaintiffs to accept the apology. Both did so.

As of August 4, 2020, the case is inactive, but the court retains jurisdiction through February 2022. 