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 40 of 54 relevant to his responsibility for their display in his classroom. First of all, he let the Bibles enter his public school classroom. Regarding this fact, he claims that FCA students brought them into his classroom for use by the FCA. (Id.) This may be true, but as the FCA supervisor for the fifteen or so years preceding his termination, Freshwater was well aware of FCA student activities, particularly those regarding the transport of a large box of Bibles into his public school classroom. (See Freshwater Termination Hearing Tr., John Freshwater Test., 10/28/08, at 405.) He could have, but chose not to, prevent their entry. Not only did he allow the Bibles into his classroom for display, but he also maintained and permitted their display over time. See Lee v. York Co. Sch. Div., 484 F.3d 687, 690 (4th Cir. 2007) (upholding a school district's decision to order removal of a teacher's religious materials from his classroom out of concern that the materials violated the Establishment Clause). Regarding this point, Freshwater admits that the box of Bibles remained in his public school classroom for three or four years. (Freshwater Dep. 84-85.) Yet during this time he did nothing to hide them, despite the fact that as the FCA supervisor, he could have very easily asked a member to have them removed or put out of sight. Only at the directive of school officials in April 2008, however, did he eventually have the Bibles removed. (Id. at 92 (“Q. So by April 16th [2008] the FCA Bibles that were in the back of the classroom, you had put those somewhere out of sight. A. Yes.”).) This removal, under his supervision, again emphasizes Freshwater’s control over the Bibles’ location and their display in his public classroom over those three or four years, including the 2007-2008 school year. Freshwater also argues that he is not liable for the purported “FCA” Bibles because Zach learned of their existence in late 2008 through FCA and because the Dennises have waived claims about these Bibles due to Zach’s participation in FCA. (Deschler Mem. in Opp. at 14.) This misstates Zach’s testimony. Zach testified that he first learned of the Bibles not during 33
Case 2:08-cv-00575-GLF-NMK Document 75 Filed 01/14/10 Page 41 of 54 FCA, but when Freshwater asked him to stay after class to help clean up his classroom. (Zachary Dennis Dep. at 36-37.) Zach also clearly states in his deposition that he first became aware of the existence of the Bibles in the classroom prior to December 2007. (Id.) But even if Zach had only noticed the Bibles in 2008, which he did not, this minimal exposure would be sufficient to find an Establishment Clause violation. Further, Zach’s participation in FCA does not defeat the Establishment Clause cause of action because Freshwater inappropriately displayed and maintained those Bibles in his classroom outside the times that Zach participated in FCA. Such exposure contradicts Zach’s parents’ constitutional right to provide their child religious teaching. See Wisconsin v. Yoder, 406 U.S. at 233 (stating that right). Beyond the purported “FCA” Bibles, Freshwater remains liable for the other Bible on display in his classroom throughout the 2007-2008 school year. Despite Freshwater’s attempt to evade constitutional scrutiny regarding this Bible—a Bible prominently displayed on his own desk throughout the 2007-2008 school year—in no way does he deny the existence or display of this Bible. (Deschler Mem. in Opp. at 2.) Instead, he simply states that the Dennises cannot use this Bible in support of their overall Establishment Clause claim because they did not raise it as an issue with the school district and because they did not specifically mention it in the Complaint. (See id.) Freshwater cannot, however, disclaim discussion of this evidence under these arguments. Regarding the first argument, the Dennises are not foreclosed from raising claims against Freshwater merely because they did not present them in a complaint to the school district. See Doe v. Wilson Co., 564 F. Supp. 2d at 787 (permitting federal claims when not originally raised with school officials). As to Freshwater’s second argument, the Dennises did not need to specifically allege facts regarding this Bible in their First Amendment Complaint. (See Deschler Mem. in Opp. at 2.) The Federal Rules of Civil Procedure only require a complaint to contain “a 34
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Plaintiffs' reply in support of their motion for partial summary judgment

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