Martinez V. West Covina Unified School Dist. 2bt7

Case 2:14-cv-06996-ODW-FFM Document 20 Filed 11/12/14 Page 1 of 19 Page ID #:68

1

2 3

TYLER & BURSCH, LLP Robert H. Tyler, CA Bar No. 179572 rtyler&tylerbursch. com Jennifer L. Bursch, CA Bar No. 245512 j

8

bursch@tylerbursch. com James A. Long, CA Bar No. 273735 jlong@tylerburs ch. c o m 24910 Las Brisas Road, Suite 110 Murrieta, California 92562 Tel: (951) 304-7583 Fax: (951) 600-4996

9

Attorneys for Plaintiffs,

4 5

6 7

10

LAW OFFICES OF NIC COCIS & ASSOCIATES Nicolaie Cocis, CA Bar No. 204703 [email protected] 38975 Sky Canyon Drive, Suite 211 Murrieta, California 92563 Tel: (951) 695-1400 Fax: (951) 698-5192

I.M.; ALEX MARTINEZaní NIYRNA MARTINEZ

11

I2

UNITED STATES DISTRICT COI]RT

13

FOR THE CENTRAL DISTRICT OF CALIFORNIA

T4 15

I6 t7 18 T9

20

2I 22 23

24 25

26

ISAIAH MARTINEZ, a minor by and Case No.: 2: l4-cv-06996-ODW-FFM through his parents ALEX MARTINEZ and MYRNA MARTINEZ, PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR PRELIMINARY Plaintiffs, INJUNCTION; MEMORANDUM OF POINTS AND AUTHORITIES; VS DECLARATIONS OF I.M. AND ROBERT H. TYLER; [PROPOSEDI WEST COVINA UNIFIED SCHOOL ORDER IN THEREOF' DISTRICT; GORDON PFITZER, individually and in his official capacity as an employee of West Covina Unified School District; SHERYL LESIKAR, Hearing: individually and in her official capacity as Date: December 15, 2014 an employee of V/est Covina Unified Time: 1:30 p.m. School District; and DOES 1 through20, Ctrm: 11 Inclusive,

27 28

Defendants

PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

CV 11-03560 DMG (JCx)

Case 2:14-cv-06996-ODW-FFM Document 20 Filed 11/12/14 Page 2 of 19 Page ID #:69

1

2

TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on December 15, 2014, at 1:30 p.ffi., or as soon

5

in Department 11 of the above-entitled Court located 312 North Spring Street, Los Angeles, California, plaintiff, I.M., by and through his parents, Alex and Myrra Martinez ("I. M." or "Plaintiff'), will move this

6

'West Covina United Court for a preliminary injunction prohibiting the defendants,

7

School District, et al., and its agents, and employees, from stopping Plaintiff from

8

ing out candy canes to his classmates with the candy cane legend attached at his

9

class Christmas party.

3

4

thereafter as counsel may be heard,

10

This Motion is being brought under Rule 65 of the Federal Rules of Civil

11

Procedure and is based upon the complaint, notice of motion, the memorandum of

T2

points and authorities, declarations and exhibits attached thereto, all opposition and

13

reply papers and oral argument of counsel at the hearing.

T4

Respectfully submitted,

15

L6

TYLER & BURSCH, LLP

T7

18 T9

20

2I 22

Dated: November 12, 2014

By: /s/ Robert H. Tvler Robert H. Tyler, Esq. Jennifer L. Bursch, Esq. James A. Long, Esq. Attorneys for Plaintiffs,

I.M.; ALEX MARTINEZanil

23

MYRNA MARTINEZ

24 25

26 27 28

2

PLAINTIFF'S MOTION F'OR PRELIMINARY INJT]NCTION

Cv 11-03s60 DMG (JCx)

Case 2:14-cv-06996-ODW-FFM Document 20 Filed 11/12/14 Page 3 of 19 Page ID #:70

TABLE OF CONTENTS

1

3

I. II.

4

ru.

PROCEDURAL HISTORY

5

5

IV.

ARGUMENT

6

A.

6

2

6

INTRODUCTION

I

FACTUALBACKGROUND

I

STANDARD FORA PRELIMINARY INJUNCTION

1. 2.

l 8

9 10

The Plaintiff Has Standing to Request an Injunction

6

A Preliminary Injunction is Justified in this Case

6

1.

Plaintiff will Suffer Irreparable Harm

7

ii.

Likelihood of Success on the Merits

7

11

a.

I2

b. c.

l3 I4

iii.

15

I6 T7

Plaintiffs' Freedom of Speech Claims Under the Federal and California Constitutions........

l

Plaintiffs' Establishment Clause Claim.

8

Plaintiffs' California Education Code Claim

Balancing of the Equities and the Public Interest Heavily Favors P

V.

10

11

t2

CONCLUSION

18

I9 20

2I 22 23

24 25

26 27 28

TABLE OF'CONTENTS A¡ID TABLE OF AUTHORITIES

cV

11-03s60 DMG (JCx)

Case 2:14-cv-06996-ODW-FFM Document 20 Filed 11/12/14 Page 4 of 19 Page ID #:71

TABLE OF AUTHORITIES

I 2

CASES

J

Buono v. Norton,

4 5

6 1 8

9 10 11

t2 13 T4 15 T6

I7 18

(9th cir. 2004) 371 F .3d s43 Catholic League v. San Francisco, (9th Cir. 2009) 567 F.3d sgs (t97 6) 427 U .5. 347

7

(r97r) 403 U.S. 602

8,9

(1984) 46s U.S. 668

8

Morgan v. Swanson, (5th Cir. 20II) 659 F.3d 3s9 (2007) 127

S.CL.26I8

(9th Cir. 2002) 303 F.3d 9s9

8

7

203.........

Smith v. Novato United School Dist.,

22

(2007) 150 Cal.App.4th

28

..................

Sammartano v. First Judicial Dist. Ct.,

2T

27

8

Morse v. Frederick,

(1963) 374 U.S.

26

I

Lynch v. Donnelly,

20

25

1

Lemon v. Kurtzman,

Sch. Dist. v. Schempp,

24

8

Elrod v. Burns,

I9

23

6

...........9

1439

... 10

Tinker v. Des Moines Independent Community School District, (1969) 393 U.S.

503.........

.......7,8

Walz v. Egg Harbor Twp. Bd. Of Educ., (3rd Cir. 2003) 342 F.3d 27 I

9

V/inter v. Natural Resources Defense Council, Inc., (2008) s55

U.S.7.............

...........6

ll

TABLE O['CONTENTS AND TABLE OF'AUTHORITIES

Cv 11-03s60 DMG (JCx)

Case 2:14-cv-06996-ODW-FFM Document 20 Filed 11/12/14 Page 5 of 19 Page ID #:72

1

STATUTES

2

Cal. Ed. Code, $

48907(a)..............

..... 10

3

4 5

6 7 8

9 10 11

T2 13 T4 15 T6

t7 18

t9 20

2l 22 23

24 25

26 27 28

111

TABLE OF CONTENTS A}[D TABLE OF AUTIIORITIES

Cv

11-03s60 DMG (JCx)

Case 2:14-cv-06996-ODW-FFM Document 20 Filed 11/12/14 Page 6 of 19 Page ID #:73

MEMORANDUM OF POINTS AND AUTHORITIES

I 2

I.

INTRODUCTION "Jesus

J

is not allowed in school." That is what I.M., a first grader at Merced

4

Elementary School was told by his teacher when he wanted to out candy canes at

5

the class Christmas party last year. The offending candy canes each had the "Legend

6

the Candy Cane" attached, a religious message explaining that Christmas is meant to

7

honor the birth of Jesus Christ. According to I. M.'s teacher, and the school's principal,

8

the religious message was not allowed to be ed out on school property. Therefore,

9

the school gave I. M. the option to either not out the candy canes or remove the

of

M. explained that he wanted to out his

10

message from the candy canes. When I.

1l

candy canes, his teacher removed the messages and threw them in the trash.

I2

I. M. informed his parents, who filed a formal complaint with the School District.

13

The school district concluded that the decision to censor I. M.'s message was made in

T4

order to remain neutral to religion. I. M. wants to out candy canes at this year's

15

class Christmas party with the same Legend of the Candy Cane message attached. Since

L6 T7

the West Covina School District has already found that the school's actions were proper, I. M. is concerned that he will be prevented from distributing the Legend of the

18

Candy Cane at this year's Christmas Party. I.

I9

requiring the school to allow him to distribute the candy canes with the attached Legend

20

of the Candy Cane.

2T

II.

M.

seeks

a preliminary injunction

FACTUALBACKGROUND On or about December 11, 2013,I.M.'s sister, Alexandra Cantu, shared with

22

M. the "Legend of the Candy Cane" (hereinafter the "Legend") which

23

I.

24

follows:

states

25

A candy maker wanted to make a candy that would be a witness,

26

made the CHRISTmas Candy Cane to incorporate several symbols for the

27

birth, ministry, and death of Jesus Christ.

as

so he

28

MEMORANDT]M OF POINTS AND AUTHORITIES

CV 11-03s60 DMG (JCx)

Case 2:14-cv-06996-ODW-FFM Document 20 Filed 11/12/14 Page 7 of 19 Page ID #:74

1

He began with a stick of pure white, hard candy. White, to symbolize

2

the Virgin Birth, the sinless nature of Jesus, and hard to symbolize the Solid

3

Rock, the foundation of the church, and firmness of the promises of God.

4

The candy maker made the candy in the form of a "J" to represent the

It also represents

5

precious name of Jesus, who came to earth as our savior.

6

the staff of the "Good Shepherd" with which He reaches down into the

7

ditches of the world to

8

gone astray.

lift out the fallen lambs who, like all sheep, have

9

The candy maker stained it with red stripes. He used the three small

10

stripes to show the stripes of the scourging Jesus received by which we are

11

healed. The large red stripe was for the blood shed by Jesus on the Cross so

T2

that we could have the promise of eternal life,

13

trust in Him.

t4

if only we put our faith and

Unfortunately, the candy became known as

a Candy Cane

15

meaningless decoration seen at Christmas time. But the meaning is still there

t6

for those who "have eyes to see and ears to hear".

t7

I pray that this symbol will again be used to witness to the Wonder of

His Great Love that came down at Christmas and remains the

18

Jesus and

T9

ultimate and dominant force in the universe today.

2l

(Declaration of Alexandra Cantu ttf 3-5.) After hearing about the Legend, I. M. told his sister that he wanted to out candy canes to his classmates with the

22

Legend attached to share his belief about Christmas with his friends. (Cantu Dec. !f 5;

23

24

Declaration of I. M. tl3.) The next day, I. M. and his sister purchased candy canes, construction paper, and ribbon. (Cantu Dec. f 6; I.M. Dec. tl5.) That night they

25

printed the Legend on regular paper and fastened the Legend to decorative red paper.

26

They then fixed the Legend to each candy cane by a length of ribbon. (Cantu Dec. !f 7;

27

I. M. I)ec. T 5.)

20

28

2

MEMORANDT]M OF POINTS AND AUTIIORITIES

Cv

11-03s60 DMG (JCx)

Case 2:14-cv-06996-ODW-FFM Document 20 Filed 11/12/14 Page 8 of 19 Page ID #:75

On December 13, 20L3,I. M. attempted to hand out candy canes to his fellow

I

at Merced Elementary School. ("Merced") (Cantu Dec. tl8; I. M.

2

classmates

J

Dec. ,]t6.) After requesting permission from his teacher, Valerie Lu ("Ms. Lu") to

4

out the candy canes with the message to his classmates, Ms. Lu told I. M. that she had

5

to ask Merced principal, Gordon Pffizer ("Mr. Pfttzet'') about whether I. M. could

6

out the candy canes. (I. M. Dec.,

7

Mr. Pfitzer, Ms. Lu told I. M. that he could not out the candy canes because of the

8

religious content of the Legend. She explained to I. M. that "Jesus is not allowed in

9

school". (Cantu Dec.

![6)

t[9; I. M.

On December 18, 2013 , after being instructed by

Dec.

tl7.)

Ms. Lu told I. M. that the only way he

10

would be allowed to out the candy canes would be if the religious message were

11

removed. I. M. communicated that he still wanted to out the candy canes to his

T2

classmates. (I.

13

cane

M. Dec. tl 7.) Ms. Lu then ripped off the legend attached to each candy and threw them in the trash. (I. M. Dec. tl 7.)

T4

When I. M. came home that day he recounted what happened at school and stated

15

that he was afraid he was in trouble for trying to share the Legend with his friends. (Cantu Dec. f 9; I.M. Dec. ,!tf 8-9.) The next day, on December 19,20'1,3,I. M. and

16

t7

his sister Alexandra went to the school to speak with Ms. Lu about the candy

18

(Cantu Dec.

canes.

f 10.) Ms. Lu informed Alexandrathat because of the religious content of

the Legend attached to the candy canes, Ms. Lu needed to get permission from 20 Mr.Pfttzer before I. M. could distribute the candy canes. (Cantu I)ec. tl 10.) Ms. Lu t9

2l

also informed Alexandra that religious messages are not allowed to be distributed by the

22

students on school grounds. (Cantu Dec.

23

allow I. M. to distribute the candy canes to his friends. (Cantu Dec. f 10.)

f

That evening, Alexandra asked I. M.,

24

10.) Based on that policy, Mr. Lu could not

if

he wanted to distribute the candy canes at

26

his class Christmas party the next day. (Cantu Dec. T 11; I. M. I)ec. tt9.) I. M. stated that he still wanted to out his candy canes with the Legend attached. (Cantu Dec.

27

f

25

11; I. M. Dec.

tl9.) I. M. and Alexandra

spent the rest of that evening printing the

28

MEMOR.{NDTJM OF POINTS AND AUTIIORITIES

CV 11-03560 DMG (JCx)

Case 2:14-cv-06996-ODW-FFM Document 20 Filed 11/12/14 Page 9 of 19 Page ID #:76

I

legend, and fixing the Legend to the candy canes with ribbon. (Cantu Dec.

2

Dec.

f

f

11; I. M.

10.)

J

On December 20, 2013, the day of the class Christmas party, Alexandra called

4

Mr. Pfitzer to ask whether I. M. would be permitted to distribute the candy canes with

5

the Legend attached as a gift for the class Christmas party. (Dec. of Cantu ,1[13.)

6

Ms. Pfitzer consulted with Sheryl Lesikar at the V/est Covina School District, and

7

reported back to Alexandrathat neither he nor the school district would permit I. M. to

8

out the candy canes with the Legend attached due to the Legend's religious

9

content. (Cantu Dec.

f

13.)

10

While Alexandra was speaking with Mr. Pfttzer,I. M. was in class attending the

11

T2

I. M. I)ec. fT 11-12.) About lO-minutes before the end of school Mr. Pfitzer informed Alexandra that I. M. would be permitted

T3

to distribute the candy canes with the Legend attached off school grounds as students

I4

were leaving campus. (Cantu Dec.

15

grounds and waited for I. M.'s classmates to by. (Cantu Dec.

I6

ftl 13-14.) Although I. M. was eventually able to give a few of his classmates

I7

candy cane, he was unable to give his candy canes to his all of his classmates as he

18

wanted. (Cantu Dec. n

t9

class Christmas party. (Cantu Dec.

ll2;

f

14.) Alexandra quickly took I. M. off school

nM; I. M. Dec. the

M; I. M. Dec. t|fl 13-14.)

When I. M. returned home, he showed his parents and sister the gifts that were

M. I)ec. ftl

20

exchanged during the class Christmas party. (Cantu Dec. ,il 15; I.

2I

Apparently the School allowed his classmates to distribute secular Christmas messages,

22

such as Santa Clause figures, penguins with Santa hats, etc. (Cantu Dec.

15.)

23

tl 15; I. M. Dec. t[ 12.) One gift in particular was a wrapped box, which I. M. opened in front of

24

his parents and sister. (Cantu Dec.

25

26

(Cantu Dec. tl 16; I. M. I)ec. tl 15.) On the back of the box was a religious candy cane legend similar to the one I. M. wanted to distribute, which told the story of Jesus as the

27

Good Shepherd. (Cantu Dec. T 16.)

f

16.) Inside the box was a chocolate candy cane.

28

4

MEMORÄNDUM OF POINTS AND AUTHORITIES

Cv

11-03s60 DMG (JCx)

Case 2:14-cv-06996-ODW-FFM Document 20 Filed 11/12/14 Page 10 of 19 Page ID #:77

I

III.

PROCEDURAL HISTORY

2

On January 6,2014, Advocates for Faith and Freedom logged a formal complaint

J

on behalf of I. M. with Merced and the West Covina School District requesting that

4

I. M. be permitted to distribute the candy canes with the attached Legend. (Exhibit A,

5

attached

6

Superintendent of Human Resources for the West Covina School District investigated

7

the complaint and concluded that the school's decision to censor I. M.'s candy canes

8

was made in an effort to remain religiously neutral and that there was no intention to be

9

hostile to I. M.'s religion. @xhibit C, attached to the Dec. of Tyler.) But Mr. Seaman

10 11

T2

to the Declaration of Robert Tyler.) Michael F. Seaman, Assistant

refused to allow I. M. to distribute his candy canes with the attached Legend. (Id.)

On March '1, 2014, Advocates for Faith and Freedom, on behalf of I. M., appealed Mr. Seaman's findings to the West Covina School Board, again requesting

that I. M. be allowed to distribute his candy canes with the attached Legend. I4 (Exhibit D, attached to the Dec. of Tyler.) On March 26, 2014, the West Covina 15 School Board concluded that there was no violation of I. M.'s rights. (Exhibit E, 16 attached to the Dec. of Tyler.) The School Board also concluded that per District 13

I7

Regulations, I. M. would only be permitted to distribute his candy canes before school,

l8

after school, or during lunch time, but not during the class Christmas party. (Exhibit E.)

t9 20

On

April 14,2014, Advocates for Faith and Freedom, on behalf of I. M. appealed

the School Board's decision to the California Department of

Education.

22

@xhibits F'& G.) The California Department of Education has not responded to I. M.'s appeal. On September 8, 2014, I. M. (by and through his parents Alex and Mgna

23

Martinez) filed this action against the WEST COVINA SCHOOL DISTRICT,

24

GORDON PFITZER, and SHERYL LESIKAR. I. M. now seeks

25

injunction allowing him to distribute candy canes with the attached Legend at this

26

year's Christmas party.

2T

a preliminary

27 28

5

MEMORANDT]M OF' POINTS AND AUTHORITIES

CV 11-03560 DMG (JCx)

Case 2:14-cv-06996-ODW-FFM Document 20 Filed 11/12/14 Page 11 of 19 Page ID #:78

1

2 3

IV.

ARGUMENT

A. 1.

STANDARD FOR A PRELIMINARY INJUNCTION The Plaintiff Has Standing to Request an Injunction

5

To have standing to request a preliminary injunction a plaintiff must have suffered an injury in fact that is fairly traceable to the challenged conduct, and it must

6

be likely that the injury would be properly redressed by a favorable decision. (Buono v.

7

Norton, (9th Cir. 2004) 371F.3d 543,546.)

4

8

9

In this case, the Plaintiff, I. M. was precluded from ing out candy canes to his classmates on December 13 and 20,2013, due to I.

M.'s attachment of the candy cane

M. Dec., Tt[6, 7, 12; Cantu

10

legend, which contains a religious message. (I.

11

tffi 8-9, 12-14.) I. M. was only allowed to out the candy canes after I. M.'s teacher ripped off the candy cane legend from each candy cane and threw then into the trash.

T2

Dec.

13

(I. M. Dec., tl7.) The Christmas holiday is now approaching once again, and I. M.

T4

seeks to be able to out gifts to his class without fear of attaching messages that may

15

have religious connotation that are consistent with Plaintiff s religious beliefs.

T6

I. M.'s inability to out the candy canes with the candy cane Legend attached

I7

to them was a direct result of a decision by WCUSD employees, namely Pfttzer, and

18

ultimately the V/CUSD.

I9

Exs. C & E to Tyler Dec.) Because Plaintiff has filed suit for a violation of I. M.'s

20

Constitutional rights of free speech and religious practice, a decision in Plaintiff s favor

2T

would result in an Order directed at WCUSD and its employees that I. M.'s conduct is

22

protected under the United States and California Constitutions. Therefore, the injury

23

would properly be redressed by a favorable decision.

(I.M. Dec., f,1168; Cantu l)ec. tlï 10, 13-14; and

24

2.

25

A preliminary injunction is appropriate where a plaintiff

A Preliminary Injunction is Justified in this Case demonstrates that they

26

are likely to suffer an irreparable injury, where they are likely to succeed on the merits

21

of their claims, and where a balancing of the equities favors the plaintiff. (Winter

28

Natural Resources Defense Council, Inc., (2008) 555 U.S. 7, 20)

v.

6

MEMORANDTJM OF POINTS A¡ID AUTHORITIES

CV 11-03560 DMG (JCx)

Case 2:14-cv-06996-ODW-FFM Document 20 Filed 11/12/14 Page 12 of 19 Page ID #:79

1

i.

2

The loss of First Amendment Freedoms, or even minimal periods of time,

Plaintiff will Suffer Irreparable Harm

J

a

unquestionably constitutes irreparable

4

373.) The Ninth Circuit has held that the mere question of a colorable First Amendment

5

Claim

6

injunction. (Sammartano v. First Judiciql Dist. Ct., (9thCir.2002) 303 F.3d 959, 973.)

7

is

sufficient

to

injury. (Elrod v. Burns, (1976) 427 U.5.347,

show irreparable injury for the purposes

In this case, a more thorough discussion of

of a preliminary

whether Plaintiffs claims ate

9

will occur in the analysis of whether Plaintiffls claims are likely to succeed on the merits. For the purposes of this prong of the analysis, it is sufficient that the

10

WCUSD, and its employees, precluded Plaintiff from ing out the candy cane legend

11

multiple times in December of 2013, including a student party, at which other students

I2

were allowed to out gifts with secular messages. (I. M. I)ec.,

13

Dec. f[T 15-17.) Furthennore, Mr. Pftizer clearly indicated that students are not allowed

I4

to out religious messages on school property; and the School Board stated that

15

students are not allowed to out religious materials

T6

West Covina School District and Merced Elementary School have no intention of

I7

allowing Plaintiff to out the candy cane legend during the Christmas holiday party

18

in December of 2014. (Cantu Dec. nM; Exs. C & E to Tyler Dec.) As

L9

below, because WCUSD's conduct raises a meritorious and colorable claim under the

20

United States and California Constitutions, Plaintiff

2I

without Court intervention.

8

22 23

24 25

colorable

ii. ù.

ftl

11-12; Cantu

in class, indicating g that

the

analyzed

will suffer irreparable injury

Likelihood of Success on the Merits

Plaintiffs' Freedom

of

Speech Claims Under

the Federal and

California Constitutions

In Tinker v. Des Moines Independent

Community School District, (1969) 393

26

U.S. 503, the United States Supreme Court held that students do not shed their

27

Constitutional rights

28

Although Plaintiff acknowledges that a student's right of free speech is not co-extensive

to freedom of

speech

or expression at the schoolhouse

gate.

7

MEMORÄNDT]M OF POINTS AND AUTHORITIES

Cv

11-03s60 DMG (JCx)

Case 2:14-cv-06996-ODW-FFM Document 20 Filed 11/12/14 Page 13 of 19 Page ID #:80

1

with that of an adults, or even a child's in other settings, the student's speech must be

2

evaluated in light of the special characteristics of the school environment. (Id. at 506)

3

As the Fifth Circuit recently held in a case factually similar to the case at bar, "Tinker

4

protects private student expression where there is no 'interference, actual or nascent,

5

with the schools' work or collision with the rights of other students to be secure and to

6

be let alone."' (Morgøn v. Swanson, (5th Cir.

7

Tinker, suprq, at 508.) The school may only suppress student speech if the speech will

8

"materially and substantially disrupt the work and discipline of the school." Morse

9

Frederick, (2007) 127 S.Ct.2618,2626 (citing Tinker,89 S.Ct. 733,740).)

20ll)

659 F.3d 359, 386; citing to v.

11

In the context of a classroom Christmas party and gift exchange, the School District cannot argue that candy canes with religious messages will "substantially

I2

disrupt the work and discipline of the school." Moreover, as can be seen from the letters

13

written by WCUSD's representatives, disruption was at no point a concern of the school

I4

district. To be sure, the only concern seemed to be remote possibility that I. M.'s

15

message would be considered

I6

message would preclude the WCUSD from acting

I7

(Exs. C

18

WCUSD was acting with religious antagonism by precluding I. M. from ing out the

I9

candy cane legend, while at the same time allowing countless secular messages to be

20

disbursed by and amongst the students.

10

2t

a school endorsement and/or the allowance of I. M.'s

in a religiously neutral manner.

& E to Tyler Decl.) To be sure, far from acting in a neutral manner, the

b.

(I.M.

Dec. 112; Cantu I)ec.

l|f

15-16.)

Plaintiffs' Establishment Clause Claim

24

The United States Supreme Court has explained that the Constitution affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostilify toward any. (Lynch v. Donnelly, (1984) 465 U.S. 668, 613

25

[Emphasis added].) The Ninth Circuit applies the traditional test set forth by the Court

26

in Lemon v. Kurtzman, (1971) 403 U.S. 602), to determine when a District has acted

27

with hostility toward religion (Cøtholic League v. Sqn Francisco, (9th Ch. 2009)

28

F.3d 595, 599) In order for governmental conduct to survive the Lemon test, the

22 23

567

8

MEMORANDTJM OF POINTS AND AUTHORITIES

Cv 11-03s60 DMG (JCx)

Case 2:14-cv-06996-ODW-FFM Document 20 Filed 11/12/14 Page 14 of 19 Page ID #:81

I

conduct must, (1) have a secular pu{pose, (2) not have as its principal or primary effect

2

the advancement or inhibition of religion, and (3) not foster an excessive governmental

3

entanglement of religion.l (Lemon, supre, at 612-613.)

4

Contrary to V/CUSD's claims

in its correspondence, the intent of the school

5

clearly was not religious neutrality; it was religious suppression. In each of the letters

6

sent by the WCUSD,

l

I. M. was precluded from handing out the candy canes. (Exs. C

8

Cantu Dec. t|f 10, 13.) Unlike the defendant in the Walz ex rel. LTalz v. Egg Harbor

9

T.p. Bd. Of Educ., (3rd Cir. 2003) 342 F3d

it was made clear that it was because ofthe religious

2ll,

message that

& E to Tyler Dec.;

which is cited in the WCUSD's

10

March 26, 2014, letter (Ex. E to Tyler Dec.), there was no policy of true neutrality

11

prior to the disbursal of gifts in the classroom that would have precluded øny viewpoint

T2

from being expressed, whether secular or religious. In that case, messages of øny kind

13

were discouragedbeþre the distribution of

I4

Furthermore, as the Court

gifts. (Id. at273)

in the Third Circuit recognized, First Amendment

15

rights when analyzed with respect to elementary school students must be analyzed in

T6

the context of the students' ages. There is an inverse relationship between the age of

T7

the student and the degree of control a school may exercise over the student. (Sch. Dist.

18

v. Schempp, (1963) 374 U.S. 203,290-29L) \While I. M. is ittedly a young student

20

at Merced, the student in Walz was pre-kindergarten. (Id at 280-281) was pre-kindergarten. The difference between I. M. and the plaintiff in Walz was pre-

2T

kindergarten may seem minor, but the difference between a seven-year-old and a child

22

in pre-school cannot be understated. In fact, the age of seven is commonly referred to

23

the "age of reason".

L9

as

24

Finally, there is no evidence in this case that the V/CUSD's refusal to allow

25

Plaintiff to out the candy cane legend was the result of a legitimqte concern

26

regarding the schools entanglement to religion. Plaintiff sought to out the candy

27 28

I Because it is acknowledged that this element is not relevant here, Ptaintiff will only analyze the first two elements. 9

MEMORANDT]M OF POINTS AND AUTHORITIES

CV 11-03560 DMG (JCx)

Case 2:14-cv-06996-ODW-FFM Document 20 Filed 11/12/14 Page 15 of 19 Page ID #:82

2

for the sharing of Christmas gifts amongst the students at Merced. (I. M. I)ecl., I12.) It is simply not reasonable to believe that

J

anyone accepting a gift from a student during a Christmas party, or any other time for

4

that matter, would believe the gift had any connection with the school itself. Furthermore, the WCUSD fails to cite to any evidence of such issues in its correspondence to Plaintiff s counsel. @xs. C & E to Tyler Dec.)

1

5

6

canes during a pre-designated time

7

c.

8

California Education Code, Section a8907(a) requires:

9 10 11

I2 13

I4 15 T6

I7 18

Plaintiffs' California Education Code Claim Pupils of the public schools, including charter schools, shall have the right to exercise freedom of speech and of the press including, but not limited to, the use of bulletin boards, the materials or petitions, the wearing of distribution of buttons, badges, and other insignia, and the right of expression in official publications, whether or not the publications or other means of expression are ed financially by the school or by use of school facilities, except that expression shall be prohibited which is obscene, libelous, or slanderous. Also prohibited shall be material that so incites pupils as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school.

T9

[Emphasis added] The plain language of the statute guarantees student free speech rights in public schools

20

mandates that a school may not prohibit student speech simply because

2T

controversial ideas and opponents of the speech are likely to cause disruption; schools

22

may only prohibit speech that incites disruption, either because

23

disturbance or because the manner of expression, as opposed to the content of the ideas,

24

is so inflammatory that the

25

United School Dist., (2001) 150 Cal.App.4th 1439,1457.)

26

In the case at bar, it is clear that the California Legislature set limits on the freedoms it was outlining in Section a8907(a) by excluding from protection expression that is obscene, libelous, slanderous, likely to incite unlawful acts, and/or expression

27 28

it presents

it specifically calls for a

speech itself provokes the disturbance. (Smith v. Novqto

l0 MEMORANDTJM OF POINTS AND AUTHORITIES

cv

11-03s60 DMG (JCx)

Case 2:14-cv-06996-ODW-FFM Document 20 Filed 11/12/14 Page 16 of 19 Page ID #:83

1

that is disruptive to the orderly operation of the school. Nowhere in this limiting

2

language does the Legislature list religious expression. Furtherrnore, the statute actually

J

broadens the protections of the First Amendment by protecting speech even where it

4

may have been expressed in a medium financially ed by the school, or

5

conducted by the use

6

dispute, the WCUSD never listed I. M.'s conduct as disruptive, obscene, or likely to

7

cause a

of school facilities. Again, through the entire

course

of

this

8

disturbance. (Exs. C & E to Tyler Dec.) Therefore, I. M.'s conduct falls squarely into the purview of Section 48907(a), and is not removed by the WCUSD's

9

unfounded and uned claims of a fear of a lack of neutrality within the school.

10

l1 T2

Because of this, Plaintiff is likely to prevail on the merits of its Education Code claim.

iü.

Balancing of the Equities and the Public Interest Heavily Favors

Plaintiff

13

A balancing of the equities and analysis of the public interest favors the Plaintiff

I4

in this case because of the Constitutional implications. As stated above, the violation of

15

one's Constitutional freedoms, even for a minimal amount of time, is considered by the

I6

Courts to constitute irreparable injury. (Elrod, suprq, at373)

t7

Because the WCUSD has given every indication that

it will

again preclude I. M.

18

from ing out the candy cane legend at his school's holiday party under the guise of

t9

neutrality (Exs. C

20

again this year. Conversely, the school has given no legally viable reason for

2I

suppression of the speech, such as disruption, profanity, or vulgarity, or evidence that

22

the schools conduct would be seen as advocating a particular religion. (Id.) Therefore,

23

the WCUSD would endure no hardship whatsoever in allowing I. M. to out the

24

candy cane legend this year especially at a time designated for exchanging gifts with

25

classmates, where I. M.

26

this, the equities favors the Plaintiff.

& E to Tyler Decl.), I. M.'s constitutional

rights will be violated

will endure suppression of his Constitutional rights. Because of

27 28 ll MEMORANDTJM OF POINTS AND AUTHORITIES

Cv 11-03s60 DMG (JCx)

Case 2:14-cv-06996-ODW-FFM Document 20 Filed 11/12/14 Page 17 of 19 Page ID #:84

I

V.

CONCLUSION For the foregoing reasons, Plaintifß would respectfully request that their request

2 J

for

a

preliminary injunction be GRANTED.

4

Respectfully submitted,

5

6

TYLER & BURSCH, LLP

7 8

9

Dated: November 12, 2014

B

10 11

T2

/s/ Roherf H- Tvler Robert H. Tyler, Esq. Jennifer L. Bursch, Esq. James A. Long, Esq. Attorneys for Plaintiffs,

I. M.; ALEX MARTINF,Z and MYRNA MARTINEZ

13

L4 15

L6

I7 18 T9

20

2I 22 23

24 25

26 27 28

l2 MEMORANDT]M OF POINTS AI\ID AUTHORITIES

Cv 11-03só0 DMG (JCx)

Case 2:14-cv-06996-ODW-FFM Document 20 Filed 11/12/14 Page 18 of 19 Page ID #:85

PROOF OF SERVICE

1

Martinez v. llest Covina Unified School District, et al. U. S. District Court, Central District of California, Case No.: 2:14-ov-06996-ODW-FFM

2 3

4 5

I am employed in the county of Riverside, State of California. I am over the age

of

18 and not aparty to the within action. Mybusiness address is 24910 Las Brisas Road, Suite 110, Murrieta, Califomia92562.

6 7 8

9

On November L2,2014,I caused to be served the foregoing documents described

PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONS OF I.M. AND ROBERT H. TYLER; [PROPOSEDI ORDER IN THEREOF on the following interested parties in this action: as

10

[See attached

11

Mailing List.]

BY MAIL An envelope was I deposited such envelope in the mail at or near Murrieta,

T2 13

X

T4

15

I6 I7 18

California.

As follows: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. Postal Service on that same day with postage thereon fully prepaid at or near Murrieta, California, in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.

I9 20

Executed on Novemb er 12,2014 at Murrieta, Califôrma.

2T

(State) I declare under penalty of perjury under the laws of the State of

22

California that the above is true and correct.

23

24

X

@ederal) I declare that I am employed in the office of a member of the Bar of this Court at whose direction the service was made.

25

26 27

J

Lloyd

28

l3 PROOF OF SERVICE

CV 11-03560 DMG (JCx)

Case 2:14-cv-06996-ODW-FFM Document 20 Filed 11/12/14 Page 19 of 19 Page ID #:86

Mailins LÍst

1

2

Martinez v. West Covina Unified School Distríct, et al. U. S. District Court, Central District of California, CaseNo.: 2:14-ov-06996-ODW-FFM

3

4 5

6 7 8

9

Aaron V. O'Donnell Marlon C. V/adlington Atkinson Adelson, Loya, Ruud & Romo 12800 Center Court Drive, Suite 300 Cerritos, California 907 03 Tel: (562) 653-3200 Fax: (562) 653-3333 aodonnell@aalnrcom mwadlington@aaln com

Attorneys for Defendants

V/est Covina Unified School District Attn: Debra Kaplan, Superintendent Schools l7I7 W. Merced Avenue V/est Covina, California 91190

Defendant

10 11

I2 T3

I4 15 T6

I7 18 T9

20 2T

of

Gordon Pffizer Merced Elementary School 1545 E. Merced Avenue V/est Covina, California 9L79I

Defendant

Sheryl Lesikar West Covina Unified School District I717 W. Merced Avenue V/est Covina, California 91790

Defendant

22 23

24 25

26 27 28

t4 PROOF OF SERVICE

CV 11-03560 DMG (JCx)