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 34 of 54 or are forced to assume special burdens to avoid them have standing to complain of an Establishment Clause violation.” Daugherty v. Vanguard Charter Sch. Acad., 116 F. Supp. 2d 897, 905 (W.D. Mich. 2000). Accordingly, it takes no great leap of logic to realize that the Dennises have standing to challenge and seek redress for Freshwater’s religious activities in his classroom based on their right to guide Zach’s religious education. Several cases prove instructive on this point. In Doe v. Wilson County School System, for example, parents had standing to sue a school district, several school officials, and a teacher challenging a “pattern and practice of endorsing religious activities and particular religious beliefs.” 564 F. Supp. 2d at 771. Among other things, the school officials had permitted a parental group to convey various religious messages through posters and the school’s website and to promote various religious events. Id. at 787. Defendants in that case challenged the Does’ standing, asserting that they “were not directly affected by these activities,” but the Court rightly held that the parties had standing when James and Jane Doe, their children, had observed religious “flyers, posters, signs, and ‘I Prayed’ stickers.” Id. at 789-90. The children “could not avoid the religious posters and signs in the hallways” and the Does claimed offense at such exposure. Id. at 790. Here, of course, Zach Dennis was exposed daily to Freshwater’s religious activities in the eighth grade science classroom—something he could not avoid—and the Dennises have claimed offense at such exposure. (See First Amend. Compl. 74-81.) Similarly, in Washegesic v. Bloomingdale Public Schools, the Sixth Circuit found standing for a student bringing an action to compel his school district to remove a portrait of Jesus Christ from the hallway. 33 F.3d 679, 681 (6th Cir. 1994) (caption indicating that an adult plaintiff brought the suit as “next friend” of the minor). In addressing standing, the Washegesic Court remarked that “[t]he use of governmental authority to encourage a sectarian religious view 27
Case 2:08-cv-00575-GLF-NMK Document 75 Filed 01/14/10 Page 35 of 54 is a sufficient injury if directed toward the plaintiff.” Id. at 682. There, the plaintiff’s contact with the portrait was indeed direct because he saw it in the school, and, therefore, the “unwelcome direct contact with the offensive object [was] enough” to find standing. Id. (internal citations and quotations omitted). Freshwater attempts to rely on the broad “psychological consequence” standard in Valley Forge Christian Coll. v. Am. United for Separation of Church & State, 454 U.S. 464 (1982), (Deschler Memo In Opp. at 14), by suggesting that standing does not exist, but that is misguided. See Washegesic Pub. Sch., 33 F.3d at 682-83 (criticizing the school district’s heavy reliance on the Valley Forge language). Construing the “psychological consequence” language, the Sixth Circuit clarified that the Valley Forge plaintiffs’ “grievance had a vicarious quality” because they “were members of an organization challenging a government action they learned about through a news release.” Id. at 682. In that case, there was no “direct” contact with the offending conduct, unlike Washegesic or here, where a student had “continuing direct contact with the object at issue” and “[h]is grievance [was] not remote, vicarious or generalized as in Valley Forge.” Id. at 683. b. The Dennises Suffered Actual Injury From Freshwater’s Unconstitutional Actions—Wrongs That Can Be Redressed By This Court. In light of the above-outlined case law, the Dennises suffered actual injury when Freshwater interfered with their right to teach their son religion and when he exposed their son to unconstitutional religious activity. Freshwater’s attempt to dismiss the Dennises’ direct harm as mere “psychological consequence” not only ignores Sixth Circuit instruction on this language but takes away from the harm that the Dennises have indeed suffered. See Doe v. Harlan Co. Sch. Dist., 96 F. Supp. 2d 667, 670 (E.D. Ky. 2000) (finding standing for parents and their child when contact with the “Ten Commandments [was] far more regular than that of the former 28
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Plaintiffs' reply in support of their motion for partial summary judgment

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