Plaintiffs' reply in support of their motion for partial summary judgment

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Case 2:08-cv-00575-GLF-NMK Document 75 Filed 01/14/10 Page 30 of 54 admonishment that just because others do something wrong does not make it okay for him to do it too. The law adopts a similar principle—proving that others have broken the law does not make one’s own violation of that law acceptable. See, e.g., Walz v. Tax Comm’n of New York, 397 U.S. 664, 678 (1970) (“[N]o one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it."). c. The Medical Battery Cases Highlight A Lack of Consent. The Dennises comprehensively addressed Freshwater’s consent arguments in their Memorandum in Opposition to Freshwater’s Motion for Partial Summary Judgment. (See generally Pls.’ Mem. in Opp. to Def.’s Mot. for Partial Summ. J. (hereinafter “Dennis Mem. in Opp.”) (Doc. No. 69).) Nonetheless, Freshwater’s argument that the “[m]edical battery cases are not applicable” (Deschler Mem. in Opp. at 10) merits a brief response here. The consent cases generally require full disclosure of the “probable consequences.” Lacey v. Laird, 139 N.E.2d 25, 29 (Ohio 1956) (Hart, J., concurring). Freshwater did not verbally disclose the probable consequences of the Tesla coil’s application, and the visual cues on which Freshwater relies—the momentary application of the device to other students, the “shock” coming out of the coil, and the immediate reactions of other students (Deschler Mem. in Opp. at 10-11)—do not reveal the full, material risks that may result from contact with the Tesla coil. From limited cues in the classroom, Zach could not foresee the “probable consequences” of the blistering, burning sensation, and discomfort to come. (Zachary Dennis Decl. 6-11 (attached as Ex. B to Pls.’ MSJ).) Thus, his consent was uninformed, and the medical battery cases prove informative. Because the Dennises have satisfied the elements of battery and because Freshwater does not provide any evidence placing the material facts surrounding their battery claim in dispute, the Dennises should be granted summary judgment on this claim. 23
Case 2:08-cv-00575-GLF-NMK Document 75 Filed 01/14/10 Page 31 of 54 D. Freshwater Provides No Viable Defense For His Own Actions Made In Violation Of The Dennises’ Establishment Clause Rights. Freshwater raises several legal and factual arguments regarding the Establishment Clause cause of action, but these present no viable defense. First, as with the Dennises’ battery claim, he attempts at several points to pass the blame for his actions onto the school or school officials through a “ratification” theory, but ultimately, he remains responsible for the unconstitutional activities in his own classroom. Second, Freshwater challenges the Dennises’ standing to bring this claim, but as parents, the Dennises have the right to teach Zach their own religious beliefs and to protect Zach from Freshwater’s unconstitutional religious activities in a public school classroom. In this regard, Freshwater’s actions did not create mere “psychological” injury but are a direct affront to the Dennises’ constitutional rights. Third, Freshwater’s mootness defense is unfounded because he conveniently forgets that, in addition to seeking certain equitable relief, the Dennises sought various damages and raised other causes of action to confront Freshwater’s unconstitutional activities. Finally, and as made clear in his motion for summary judgment, Freshwater cannot show any factual dispute that could possibly justify his Establishment Clause violations under the Supreme Court’s Lemon test. Under these precedents, Freshwater’s actions stand in clear violation of the Establishment Clause. 1. Freshwater Cannot Pass The Blame For His Personal Deprivation Of The Dennises’ Constitutional Rights. Throughout his memorandum in opposition, and specifically in the section relating to the Establishment Clause claims, Freshwater attempts to hide behind the cover of the Mount Vernon Middle School’s “ratification” or approval of his unconstitutional religious activities. (See, e.g., Deschler Mem. in Opp. at 12.) Regardless of whether the school permitted or even encouraged Freshwater’s actions, he, in his individual capacity as a teacher and state actor, remains liable for his own missteps made in violation of the Dennises’ constitutional rights. See Holloman ex rel. 24
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Plaintiffs' reply in support of their motion for partial summary judgment

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