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 44 of 54 again, these arguments ring hollow because Freshwater remains liable for his own Establishment Clause violations. Even if school officials ordered Freshwater to plaster Ten Commandments posters all over his windows and provided the materials for this strange exercise—something it did not do—Freshwater would still be liable for his part in the unconstitutional undertaking. (See supra Section II.D.1.) As to the fourth copy of the Ten Commandments that was in his classroom, Freshwater claims that it was FCA material and not his. (Deschler Mem. in Opp. at 21-22.) Much like his arguments for the supposed “FCA” Bibles in the back of the room, however, these arguments do not relieve him of responsibility for its display. This poster remained on the bulletin board in his classroom for any number of years, and yet again, Freshwater did nothing to remove the unconstitutional display until school officials intervened, and he subsequently took it down. (Freshwater Dep. at 92.) Freshwater even admits in his opposition memorandum that the Ten Commandments were on his bulletin board, but that he just so happened to share his bulletin board with the FCA. Deschler Mem. in Opp. at 22; see also Lee, 484 F.3d at 690 (upholding removal of religious materials from a bulletin board in a teacher’s classroom). Freshwater also tries to blame school administrators for his unconstitutional actions, stating that they permitted him to store FCA materials. (Id. at 21.) Again, whatever activities school officials permitted do not relieve Freshwater himself of liability. (See supra Section II.D.1.) Further, while some school officials did not prevent Freshwater from storing FCA materials in his classroom, they did not say that he could store them by displaying them in his classroom but that he needed to store them out of sight. (See Freshwater Termination Hearing Tr., Timothy Keib Test., 10/28/09, at 3599 (attached as Ex. Q. to Deschler Mem. in Opp.) (“I didn’t realize that they had [stored FCA 37
Case 2:08-cv-00575-GLF-NMK Document 75 Filed 01/14/10 Page 45 of 54 materials in his classroom], but I never told him no.”); Freshwater Dep. at 92 (stating that school officials made Freshwater put FCA materials out of sight).) Much like the Bibles, Freshwater’s display of the Ten Commandments—both on his window and on his bulletin board—violate the Lemon test. Looking to the purpose prong of McCreary County, Freshwater again cannot provide a reasonable secular explanation for his religious activity. 354 F.3d at 446. Much of this is due to the fact that the “pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature” because the Commandments “are undeniably a sacred text in the Jewish and Christian faiths.” Stone v. Graham, 449 U.S. 39, 41 (1980). Freshwater nonetheless argues that the postings on his windows were made in response to a security directive issued by the Mount Vernon Middle School following the terrorist attacks of September 11, 2001. (Deschler Mem. in Opp. at 20.) As such, he claims that religion was not the “predominate purpose” but that it was instead for security purposes. (Id.) It may indeed be true that the school issued a security directive for teachers to cover the hallway windows to their classrooms, but this directive did not and could not legally mandate covering the windows with religious materials. To comply with this directive Freshwater could have used a newspaper, construction paper, or any other appropriate materials available at the school. Instead, he chose to cover his windows with religious materials, and in the process, hijacked a worthwhile secular directive for his own religious purpose. To follow Freshwater’s reasoning to its logical end, any posting—no matter how lude or offensive—would be shielded from legal scrutiny because security matters hold sway. His arguments in this regard are unavailing, and therefore, the religious nature of the posters predominates. 38
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Plaintiffs' reply in support of their motion for partial summary judgment

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