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 38 of 54 done, nor the Dennises’ ability to seek redress for Freshwater’s actions during the entirety of the 2007-2008 school year. See Doe v. Wilson Co., 564 F. Supp. 2d at 787 (permitting federal claims regarding activities that parents had not originally raised with school officials). Indeed, the Dennises only became aware of the facts giving rise to their concerns as the school year progressed, and this natural discovery process does not negate standing. (See Jenifer Dennis Decl. 11; Stephen Dennis Decl. at 13.) Finally, this Court can redress the harm created by Freshwater. Admittedly, the Dennises need no longer enjoin Freshwater’s unconstitutional actions, but as will be discussed below, they continue to seek damages, attorneys fees, and the other relief necessary to redress Freshwater’s constitutional violations. 3. Freshwater Inappropriately Raises The Mootness Doctrine With Respect To The Dennises’ Claims, Other Than Their Claim For Injunctive Relief. Freshwater inappropriately raises the mootness doctrine against all of the Dennises’ claims when he could only challenge their equitable claim for injunctive relief. It is true that Freshwater no longer teaches at and the Dennis children no longer attend the Mount Vernon Middle School. (See Deschler Mem. in Opp. at 17.) It is also true that all of the challenged religious activities with respect to Mr. Freshwater have ceased. (Id.) As such, these facts render the Dennises’ claim for injunctive relief moot. See, e.g., Bd. of Sch. Comm’rs of Indianapolis v. Jacobs, 420 U.S. 128, 129-30 (1975) (per curiam) (finding moot a suit for injunctive relief where all plaintiffs had graduated). The Dennises have already conceded this point, but Freshwater was not aware of this concession at the time he filed his Memorandum in Opposition. (Dennis Mem. in Opp. at 1 n.1.) Otherwise, the Dennises’ claims for damages, attorneys fees, and other relief flowing from their Establishment Clause cause of action and other claims (see First Amend. Compl. 74-81, 96-104) should remain. See Donovan v. Punxsutawney Area Sch. Bd., 336 31
Case 2:08-cv-00575-GLF-NMK Document 75 Filed 01/14/10 Page 39 of 54 F.3d 211, 218 (3d. Cir. 2003) (permitting a student to pursue Establishment Clause claims against a school board for damages and attorney’s fees although graduation rendered injunctive relief moot); see also Boag v. MacDougall, 454 U.S. 364, 264-65 (1982) (per curiam) (holding that prisoner’s transfer to another prison did not moot a claim for damages in the prior location). 4. Freshwater Presents No Facts That Would Make His Actions Constitutional Under the Lemon Test. Freshwater fails to establish any factual controversy regarding his placement of several Bibles and Ten Commandments posters in his classroom in direct violation of the Establishment Clause. While he trumps up several issues to create a supposed factual controversy—denying that the Bible on his desk is at issue, blaming the FCA for several Bibles and a Ten Commandments poster, and even faulting school officials for his Ten Commandments posters and any supposed FCA materials—Freshwater has acknowledged responsibility for some or all of these materials, and he cannot now attempt to controvert these concessions. And based on the undisputed facts of his placement, maintenance, and eventual removal of these religious materials, he violated the purpose, endorsement, and excessive entanglement prongs of the Lemon test. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). a. Freshwater’s Explanations For The Bibles In His Classroom Do Not Create A Controversy of Fact Sufficient To Escape Lemon. Freshwater attempts to deny responsibility for the Bibles in his classroom, but he cannot do so based on the undisputed facts. Regarding the box or bag of Bibles in the back of his classroom, 3 for instance, Freshwater claims that they were FCA Bibles, not his. (Deschler Mem. in Opp at 25; see also Freshwater Dep. at 84.) This claim, however, ignores the contextual facts 3 Whether it is a box or bag of Bibles is not a factual dispute sufficient to defeat summary judgment (See Deschler Mem. in Opp. at 1), but for the purposes of this motion alone, the Dennises will concede that the Bibles were in a box. 32
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Plaintiffs' reply in support of their motion for partial summary judgment

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