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

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student in Washegesic.”). For the entire 2007-2008 school year, Freshwater subjected Zach Dennis to unconstitutional religious activities in his science classroom including, but not limited to, his postings of the Ten Commandments and his display of various Bibles. (Zach Dennis Decl. 12-13) In doing so, he violated the Dennises’ constitutional right to guide the “religious future and education” of their son. In that regard, the Dennises have consistently held that Freshwater’s religious activities were unwelcome and inappropriate, and at the least, they did this in the Complaint where the standing inquiry should begin. (See First Amend. Compl. 74-81; see also Jenifer Dennis Decl. 11 (raising concerns of Freshwater’s various religious activities with school officials); Stephen Dennis Decl. 13 (same).) Thus, because the Dennises seek redress “individually and as natural parents and next friends of their minor child,” they possess the requisite standing to challenge Freshwater’s teachings, which “defeat the rights of [the Dennises] to teach their children their own religious beliefs.” (See First Am. Compl. at 1 & 81.) Case 2:08-cv-00575-GLF-NMK Document 75 Filed 01/14/10 Page 36 of 54 Further, Freshwater’s use of statements from Zach to pursue his “psychological consequence” argument should not defeat the Dennises’ direct interests in protecting their son’s well-being. Freshwater claims that the box of Bibles did not bother Zach and that the Ten Commandment postings were minimally invasive. (See Deschler Mem. in Opp. at 14.) As an impressionable minor, however, Zach may not foresee or understand the harm caused by Freshwater’s Establishment Clause violations. Thus, his parents intervened on his behalf to ensure that Zach’s interests were protected in addition to their own right to teach their child the religious instruction of their choosing. Just because Zach may not fully understand or articulate the harm or threat of harm posed by Freshwater’s religious indoctrination does not mean that particularized or actual “injury in fact” has not occurred. See Lujan, 504 U.S. at 560 (discussing 29
Case 2:08-cv-00575-GLF-NMK Document 75 Filed 01/14/10 Page 37 of 54 the injury in fact requirement). Zach’s parents, “individually and as natural parents and next friends of their minor child,” retain the right to appreciate and address these actual harms caused by Freshwater. (See First Am. Compl. at 1.) And, at the very least, even Zach himself recognized the harm caused by the Ten Commandments postings by stating it was “wrong and . . . shouldn’t be happening.” (Zachary Dennis Dep. at 179, Aug. 18, 2009 (hereinafter “Zachary Dennis Dep.”) (attached as Ex. A to Deschler Mem. in Opp.).) In an attempt to minimize the harm done to the Dennises, Freshwater also argues that Zach suffered little exposure to Freshwater’s display of the Ten Commandments and Bibles and that the Dennises did not even complain of these displays until April 2008. (Deschler Mem. in Opp. at 15.) Regarding Zach’s exposure, even the undisputed facts make clear that Zach was aware of Freshwater’s displays for much of the 2007-2008 school year. For instance, he was exposed to the collection of Bibles in the back of the room sometime in 2007. (Zachary Dennis Dep. at 37; see also Zachary Dennis Decl. 13 (stating that a collection of Bibles remained in the classroom until May 2008).) Similarly, Zach knew the Ten Commandments were posted throughout the 2007-2008 school year, a fact that Freshwater does not deny. (See Zachary Dennis Dep. at 36.) Also, Zach was exposed to the Bible on Freshwater’s desk for the entirety of the 2007-2008 school year. (Freshwater Dep. at 71.) The exposure to these displays—however minor or inconsequential Freshwater deems them—are sufficient to maintain standing for the Dennises’ Establishment Clause claim. Although Freshwater is correct that the Dennises did not formally approach school officials regarding concerns of inappropriate religious activities until April 2008, this does not change the fact that Zach had been exposed to these unconstitutional activities throughout the 2007-2008 school year. Their delay in reaching out to school authorities cannot negate the harm 30
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Plaintiffs' reply in support of their motion for partial summary judgment

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