Doe Ex Rel. Doe v. School District of City of Norfolk

Before MORRIS SHEPPARD standing for the Invocation after the play- RILEY, ARNOLD and Circuit Judges, ing of the national anthem. He in- also BOGUE,1 and District Judge. structed the males to remove their caps during the national anthem and Invocation.

BOGUE, Judge. After returning home from the rehears- Doe, Plaintiffs-Appellants minor, John al, Doe, John who had not participated in Doe, Mary friend, and mother and his next the student vote concerning the inclusion appeal the district court’s2 dismissal of the Invocation and Benediction at Clause Establishment claims which ceremony, mother, informed arose, Doe, Mary in part, as a result of a recitation of of the scheduled prayers. Mary pro- a Christian Doe prayer commonly known as the ceeded to contact the Prayer high at American Civil Lib- (“ACLU”). ceremony. erties Union After careful May consideration we On conclude the district ACLU properly Superintendent court informed Ran- (“Nelson”) dy dismissed the action each of legal Nelson may action separate parties. be taken by a student if the Invocation and Benediction were included the ceremo-

I. FACTUAL AND PROCEDURAL ny. Each member of Board of Edu- BACKGROUND (“School Board”) cation was notified of the May On School District Num- ACLU’s contact with Nelson. The School ber Two of County, Madison Nebraska Board, response in to an administrative (“School District”), held a rehearsal recommendation, agreed to remove the preparation ceremony of a honoring the prayers from the ceremony. graduating students Norfolk Senior At opening of the ceremony, which High School. ceremony was sched- Does, attended School Board for May rehearsal, uled 2000. At the (“Krivohla- Brad President Krivohlavek John Doe learned that the ceremony would vek”) notified the change audience include two separate prayers, an Invoca- program. Videotapes recorded Kri- tion and separate Benediction. The pray- vohlavek’s statement. part, In relevant ers were placed the program schedule Krivohlavek stated: meeting after a during which the students voted in favor of begin festivities, the traditional practice. today’s Before I feel Students were allowed to submit non-sec- I you must share with change in to- and tarian non-proselytizing prayers day’s program. deepest regret With Bogue, 1. The Honorable Andrew W. Senior 2. The Camp, Honorable Laurie United Smith United Judge States District for the Judge District of States District for the District of Ne- Dakota, sitting by designation. South braska. so, more I and and would ask thing, and Administration from that this sounds any you to the apologies encourage, most sincere our we will need join Fa- in. Our please Class of [sic] Senior familiar and Benediction heaven, the Invocation thy remove be ther, hallowed who art ceremonies. today’s graduation from come, be thy will Thy kingdom name. our Administration days ago a few Just done, is in heaven. Give on earth as it attorney an ACLU was notified bread, us our forgive daily us our would be Schools Public Norfolk tres- forgive those who trespasses as we with the inclusion it proceeded if sued into lead us not against us and pass Board has graduation. evil, for but deliver us from temptation law of is now the been told that also power kingdom thine is After two Court. Eighth Circuit the you with May God be glory forever. the legal with negotiations days of intensive always. State, including the from across officials Please, my Back to take a please seat. Court, Supreme State from the advice to think You need original discussion. pro- advised not to has been Board the your life in the [sic] about rest Norfolk prayers. While with these ceed challenge is real setting goals. And the of the last has been one Schools Public to you goal, meet that reset If twofold. to con- of Nebraska schools State chal- goal. bigger The higher an even we graduation, to tinue include however, you goal set the lenge, is when to this. that it has come are saddened goal, the unable to and obtain you’re grad- the hopes Education The Board of all have fail- goal. un- the will uates, community will to We and lower parents, spiritual- this difficult deci- and support mentally and physically, derstand ures — bar, sion. lower the charge is not to ly. Your you high. I’ll leave with keep the bar ceremony with- proceeded From what we learned Wednes- this. scheduled Invocation. out the meaning behind in day, learned the ceremony, Kri- during the point At some May say good-bye. God be how to [sic] introduced James vohlavek you always. Congratulations. (“Scheer”), the member of School “a few stating that he had words recited that as Scheer The record reflects to the given access share.” Scheer stood or Prayer, Lord’s no the students the Districts’ a result of School podium as individu- caps although their two removed School past practice rep- no stage did stand. While als on the members, part were whose children District inter- of the School resentative class, to address the students graduating recitation, or disclaimed rupted Scheer were remarks and the audience. Scheer’s any Dis- no evidence that there is He videotape. stated: captured on also inten- knew about Scheer’s trict officials fairly uh short promise I make fact, Nelson speech. to his prior tions saying There is a that when for me. they were have and indicated Morton have opens. another one door closes com- by Scheer’s surprised and shocked things doing prohibited from some been ments. me brought today’s ceremony and it’s the Does filed On November couple over last to a lot of reflections against against suit reflect, I I days. And when have individual both their Nelson and Scheer And guidance. ask for

usually turn and alleging violations of capacities, and official usually I do is things one of Dis- Clause. some- Establishment going I to recite recite. So am (a) trict and Nelson filed a motion to dismiss both particularized, concrete and (b) January imminent, on the district actual or While rather conjec- than (2) tural considering court was or hypothetical; motion to dis- a causal connec- miss, tion between parties participated discovery. alleged injury and the conduct; is, August 14, On defendant’s inju- district court dis- that the ry ‘fairly is traceable’ to charges against missed the challenged School Dis- action; (3) Nelson, it likely trict and that a in his official favorable decision will redress the capacity.3 3, 2002, injury.” September On Id. (quoting Lujan, 560-561, 504 U.S. at Nelson, Does and in his capaci- individual 2136-37). 112 S.Ct. at ty, seeking filed summary motions judg- later, ment. Several September weeks Scheer does not challenge the formally the Does filed motion standing Does’ suit bring against him. to amend original complaint. Also on Similarly, the School District and Nelson September Scheer filed a motion dispute do not the Does’ standing on issues on the pleadings. The dis- related to allegation that they autho trict court denied the motion to amend the rized or participation coerced in Scheer’s pleadings, granted summary judgment in recitation of the Prayer. We have Nelson, favor of granted Scheer’s mo- little trouble finding that the Does have tion for on the pleadings after standing to challenge Scheer’s action as converting it to a motion summary well as the School District’s and Nelson’s judgment. The Does now appeal, raising potential involvement in Scheer’s com numerous issues. ments. The subjected Does were to an unwelcome religious recitation at a school

II. STANDING function and therefore have standing to standing challenge Although not the action. Valley was ad See Forge court, College dressed the district Christian v. we are Americans obli United for Separation gated State, Inc., the issue Church and appeal. consider 454 See of 464, 22, U.S. 752, 762, 487 n. Hays, 737, 742, U.S. v. 102 S.Ct. 515 70 U.S. 115 S.Ct. (1982) L.Ed.2d 700 (noting that when im 132 L.Ed.2d 635 (stating that pressionable schoolchildren subjected are federal courts have an independent obli to unwelcome religious exercises, gation issues). jurisdictional examine satisfied). standing requirement is “Standing is the require constitutional ment, imposed by the ‘cases and controver Whether Does standing have III, sies’ provision of Article plaintiff that a District, Nelson, sue the School and allege must a judicially cognizable and re- Scheer, to challenge the School District’s dressable injury in order to pursue law past policy of gradua at suit.” Ben Oehrleins Sons and ceremonies, tion presents a much closer Daughter, Hennepin v. County, Inc. 115 issue. The Does argue they have (8th 1372, Cir.1997) F.3d 1378 (citing Lu standing upon government based en jan v. Wildlife, 555, 504 U.S. dorsement of religion Defenders of mandatory 559-60, 112 2135-36, 119 graduation In response, rehearsal. (1992)). L.Ed.2d 351 Establishing stand School District and Nelson that the argue ing requires a plaintiff to demonstrate the Does could not have suffered “injury an “(1) following: an ‘injury in fact’ that is fact” as a result because the capacity 3. An official suit (1985). Thus, is treated suit 87 L.Ed.2d 114 against governmental entity. See Ken- will make no allega- further reference to the Graham, tucky Nelson, v. 473 U.S. 105 S.Ct. tions capacity. his official 610 III. DISCUSSION were cancelled Benediction

Invocation ceremony. graduation prior to viola- Clause alleged Establishment instructed, gradua at the Doe John court in its tion, the district addressed rehearsal, planned Invocation tion is Scheer’s summary judgment opinion, Benediction, proper well as as begin Prayer. We of the Lord’s recitation Judge Invocation. As during the conduct con- focusing on Scheer’s analysis by our Platts City v. in ACLU noted Kopf ceremony, review- at the duct (D.Neb. 1024 mouth, NE, F.Supp.2d summary grant of court’s ing the district 2002), have determined circuits other the same applying judgment de novo contact personal of direct allegation v. Northland Hammond standards. alone sufficient acts with offensive Inc., Center, Counseling Id. standing requirement. satisfy Cir.2000). (8th City St. (citing Foremaster 1030-1031 (10th Cir.1989), cert. F.2d 1485 George, 882 Judgment Summary A. Motion For denied, (1990); City Saladin L.Ed.2d 300 judgment in favor summary granting (11th Cir.1987); F.2d 687 Milledgeville, Nelson, in individual Scheer and Cleveland, F.2d 736 City Hawley v. Adler v. cited capacity, the district court Cir.1985) (6th denied cert. Board, 206 F.3d County School Duval (1986)). L.Ed.2d Cir.2000) (en banc), rein- 1070, 1080 situation presents case stated, County v. Duval Adler informed that simply Doe was John where (11th Cir.2001),4 F.3d 1330 stat- occur. was scheduled to conduct offensive high at a every speaker ing that that this occurrence cannot find simply considered state should be in fact” element of “injury satisfies court ulti- district speaker. analysis. standing applying by its mately supported decision Does, in note that the Additionally, we by the tests enumerated well-known sought declaration complaint, Kurtzman, v. in Lemon Supreme Court at the ceremo- prayer recitation 2105, 602, L.Ed.2d 745 29 403 U.S. 91 S.Ct. rights. As ny their constitutional violated Weisman, 577, (1971) 505 U.S. Lee v. they specific deprivation, of this a result (1992). 2649, 120 L.Ed.2d 112 S.Ct. distress, damages for emotional requested facts and circum- Considering unique humiliation, embarrass- anguish, mental case, surrounding we feel that this stances ment, injuries related and other raised speech argument “private” constitutional of their alleged violation specific warrants consideration. failed to even as- have rights. Does restated, recently Supreme Court As the past policy District’s that the School sert “ crucial ‘there is a differ- approval, such, As any injury. them caused endors- speech government ence between past policy District’s School Establishment religion, which the ing gradua- at the and Benediction Invocation forbids, endors- private speech Clause dis- never before the ceremony was tion Speech and which Free ing religion, us similarly is before court and trict ” protect.’ Santa Free Exercise Clauses consideration. I, whereas, Hereafter, to as be referred Adler shall County Adler School 4. v. Duval Adler Board, Cir.2000) F.3d 1330 1070, County Board, v. Duval 206 F.3d (11th Cir.2001) to as Adler shall be referred reinstated, (en banc), County v. Adler Duval (11th Cir.2001) II. Board, F.3d 1330

6H Independent Doe, Fe School District v. 530 membership on the School we do 290, 303, U.S. 147 not believe this connection requires us to (2000) L.Ed.2d 295 (quoting Board Ed. automatically reject Scheer’s private (Dist.66) Community Westside Schools speech argument. Brentwood Acade- Cf. Mergens, my S.Ct. Secondary Tennessee School Athlet- 2356, 2372, 110 (1990) L.Ed.2d 191 (opinion al., ic 288, Association et 295-296, J.)). O’Connor, issue before us (2001) 148 L.Ed.2d 807 (citation omitted) involves the rights par constitutional of a (stating that no single ent who is also member fact nor set of facts is absolutely sufficient Board, rather than those of a student. action). to find state noting distinction, While expressly this The Does contend pursuant to Ne applicable principles believe glean can be law, braska school board members “act in from the analysis provided ed in Santa Fe. representative capacity, not as individu Fe, In Santa the Supreme specifi- Court als.” al., Greer v. Chelewski et 162 Neb. cally private issue, addressed the speech (1956) 76 N.W.2d (citing Are rejecting an argument that student-led hart v. School Dist. No. 289 N.W. before games football was constitu- (Neb.1940)). Greer, plaintiff tionally protected private speech and not sought to have the individual members of speech. public 530 U.S. at the school board separately answer her Critical to Santa Fe’s conclusion request for admissions. Id. The board was determination that speech de- members filed reply, one which listed their livered a student pursuant to the school names but signed by was their attorney. was state-sponsored pri- rather than Id. The court determined that the accep II, 1336; vate. Adler 250 F.3d at Chan- tance of the reply proper, finding that v. Siegelman, dler 1315 the members of the school board were (11th Cir.2000) (noting that pro- Santa Fe appearing on behalf of the school district hibits school sponsorship of pray- student and not as contrast, individuals. Id. In er). In reaching conclusion, the Su- whether Scheer was acting individually or Court preme indicated that “degree of on behalf of the School quite Board is not school involvement” made it clear that the so obvious. believe that the informal prayers imprint bore “the of the State[.]” policy which allowed Scheer to address the Fe, at Santa U.S. 120 S.Ct. at audience, the surrounding facts his speech, Lee, 2277 (quoting 505 U.S. at 112 and the contents of the speech itself indi 2657). at S.Ct. Because Scheer’s remarks cate sufficient separation between Scheer sponsored were not and did not bear the and membership his on the School Board imprint state, of the we find that his reci- to warrant a determination that his re of the Prayer tation was constitu- private marks were and were not made in tionally protected private speech. representative his capacity as an official of the School District. Our on the degree focus of school sponsorship or involvement in Scheer’s The School District’s policy informal re- begins recitation with the assump quired Does’ that Scheer meet separate two cri- that tion Scheer’s comments were made in prior teria to speaking at representative his capacity (1) as official of an ceremony; parent a of a graduating the State. While Scheer senior; (2) is undeniably and a member of the School linked to the School District because of his requirements, Board.5 Both parental and As the appropriately district court deter- tional deficiencies. mined, policy this informal no constitu- has Santa derived from principles of the equal tion were of membership, Board

School any of involve- complete The absence Fe. pol- the informal and therefore importance determining in School District a ment oppose nor favor neither icy criteria a as speech deliver would paren- Scheer whether determination. speech private autonomy afforded complete was not as the that Scheer well indicates tal criterion of determining the content capacity in representative Scheer solely a acting state-sponsor- a lack of and indicates remarks School of the as a member ship of his recitation. indicates requirement membership solely parent. acting was not Scheer provide not an answer Fe does Santa parental re- However, the existence speech at a religious of when question extremely significant quirement private, considered can be function argument reject therefore we Chandler, 230 thus, See protected. as capacity in his official only spoke Scheer However, that one it notes F.3d at 1316. We do Board. a of School member “ objective an inquiry is ‘whether relevant membership on the that Scheer’s believe text, legisla- observer, acquainted finding state- requires implementation of history, and tive merely as rather, view it sponsorship, en- it as a state statute, perceive in- supports which the factors one of public schools.’” dorsement in the recitation of the state volvement at Fe, 530 U.S. at Santa prayer. 472 U.S. Jaffree, (quoting Wallace conclusion, Fe, reaching its Santa 86 L.Ed.2d S.Ct. written on the emphasis significant places (O’Connor, J., judg- (1985) concurring in student’s subjected the policy which ment)). the Su- precedent, this Applying confining regulations specific speech objective “an determined preme Court the mes- the content topic both unques- student will High Fe Santa Fe, sage. Santa pre-game the inevitable tionably perceive contrast, dispute involves In at 2276. seal stamped with her school’s prayer as by the implemented no formal Fe, Santa approval.” participated or by which it District at 2278. fact, comments. of Scheer’s approved case, our the context of Within any representa- is no evidence there of the School as member was introduced any knowl- had tive the School attempt to no official made Board and 11th Cir- edge of intentions. District from disassociate cuit, considering student-led and the students recitation. to rein- Fe found Santa prayer dispute, clearly unequivocally audience were absence of total “[t]he notion that force the of the administra- Krivohlavek notified whether deciding involvement state decision, by the School approved tive who message, a graduation there will be at be held prayers no that may say speaker speak, will or what addition, com- In Scheer’s ceremony. com- speaker’s student combined with the reci- ments, immediately prior to his made of the autonomy the content plete over dis- Prayer, further the Lord’s tation of message deliv- that the message [means] the School District. both, from tance his conduct ered, or or sectarian be it secular to the decision referred II, When Scheer 250 F.2d Adler state-sponsored.” Benediction, 1071). Invocation and 1,206 cancel the F.3d at (quoting at Adler “we,” a clear reference term he used the applica- 11th Circuit’s agree with the 12(b)(6) Board. As Scheer’s remarks R.Civ.P. de novo. See Springdale progressed toward his recitation the Educ. Ass’n v. Springdale Dist., Sch. Prayer, began he Lord’s the terms use Cir.1998). F.3d A complaint “me,” “I” personal indicative of a 12(b)(6) must not be dismissed under “un An objective statement. Norfolk Senior appears less it beyond doubt High student would undoubtedly perceive plaintiff can prove no set of facts that comments as his private Scheer’s own re- would demonstrate an entitlement to re surrounding marks. The facts Scheer’s Hansen, lief.” Gordon v. itself, speech, including speech further (8th Cir.1999). accept “[W]e complete evidence the lack of school in- complaint’s allegations factual as true and or sponsorship volvement in his remarks. construe in light them a most favorable to undeniably took advantage of his the plaintiff.” Id. Board membership gain access Relying in part on Monell v. De to a forum in which espouse he could partment Services, Social personal views. private speech (1978), S.Ct. 56 L.Ed.2d 611 is constitutionally protected, even though district court dismissed complaint it at a occurs school related function. See against the School District. According to Chandler, 230 F.3d at 1317. recog- While Monell, entities such as the School District nizing Scheer’s School affiliation only can § be sued under 1983 if “the principle and the that “free exercise of action that is alleged to be unconstitutional religion supersede does not the fundamen- implements statement, a policy or executes tal imposed by limitations the Establish- ordinance, regulation, or officially decision Clause,” Lee, ment 505 U.S. at adopted and promulgated by that body’s the lack of involvement officers.” 436 conduct on the part the School S.Ct.at 2035- requires Additionally, a deprivation determination of a con recitation of Prayer the Lord’s constituted pursuant stitutional right governmen to a private speech. “religious liberty pro- tal “custom” is also actionable. Id. Apply by the abridged tected Constitution is Monell, ing the district court determined when the affirmatively State sponsors the allegations found in the Does’ particular religious practice prayer.” complaint support did not a finding that Fe, Santa U.S. at 120 S.Ct. at the School District had any custom or being 2281. There no sponsor- affirmative policy supporting Scheer’s recitation of the ship practice case, in this Prayer. We believe that the district no violation constitutional has occurred. grant court’s of the motion to dismiss was proper. addition, In reject the argu B. Motion to Dismiss ments raised appeal. the Does on private speech Our determination does The Does seek opportunity not necessarily end this matter. addi- challenge the School District’s tion to constitutionality of Scheer’s rec- prayer policy. Our determination that the itation, allege the Does standing Does lacked challenge District and Nelson authorized or coerced prayer policy District’s participation prayer. Prior to necessarily any precludes further argu its summary judgment to Scheer addressing ment Nelson, particular this issue. capacity, his individual the However, the Does also district court seek to connect had dismissed the claims against the School the School to District. We review District Scheer’s recitation. the pursuant dismissal of a claim pursuit objective, Fed. In of this the Does argue

614 reference, allegations, of or absence píete sufficient original complaint

that their begin could to draw Specifi which one language motion dismiss. a to withstand requires that the law complained cally, they contend conduct an inference the in a requirement pleading recitation, heightened no of, namely, resulted entity such § action or custom policy an unconstitutional from v. Tar Leatherman See district.6 minimum, a a At the District. of Intelligence and County Narcotics rant which would allege must facts complaint Unit, Coordination unconstitution- of an support the existence (1993). 122 L.Ed.2d 5.Ct. Meadowbriar or custom. See policy al hand, District the School the other On Gunn, Children, Inc. v. F.3d Home for Does’ failure suggest that the Nelson (5th Cir.1996) (stating that a 532-533 custom policy, a or existence of the plead support the plead must facts plaintiff a federal of deprivation that caused custom). policy of a or existence See Caldwell requires dismissal. right Elwood, Ind., F.2d City of additional The Does make several Cir.1992) (7th § com that a (stating they expose the arguments which believe a uncon of plead the existence plaint must liability. The to potential District custom or policy).7 stitutional is District that the School Does contend Does, agree cannot injuries the School because liable for District, must seeking to sue the School practice pattern, policy, had a an unconsti of specific plead existence resulted in the endorsing prayer which a com or When policy tutional custom. religion graduation at the establishment filed, may privy not be plaintiff plaint is Does, The fact rehearsal. accurately de necessary to to the facts discovery, uncovered through subsequent policies or customs identify any or scribe policy formal written the existence of a deprivation have caused the may which prayer at of student-led approved which Moreover, such a right. a constitutional not relevant ceremonies is liberality of holding disregard adequacy regarding our determination 8(a)(2) merely requires Fed.R.Civ.P. which Moreover, regard pleadings. of the claim statement plain “a short and rehearsal complaint, entitled to pleader is showing that to an do not rise inference allegations give 8(f), relief,” “pleadings which states policy procedure or an unconstitutional as to do substantial shall be so construed Ouzts v. District. See Cum of the School Thus, of the Does to justice.” the failure (8th Cir.1987) mins, 1276, 1278 F.2d of an un the existence specifically plead incident is insufficient (stating single custom, itself, policy or constitutional Thus, the Does’ policy). to establish for relief. not fatal to their claim merit. argument eom- is without is the deficiency complaint of their Sanders, Cir.1993). In argument briefing, 6. In raise Does plead district failed to support opposition plaintiff to the had of their stated that to amend. Be- denial of their motion court's or custom which that Sears had a opposition argument supports their right. cause this deprivation of a federal Id. caused the court’s dismissal of to the district comment, in the context of This made at 976. District, at this we address the contention summary judgment, of a our review juncture. plain- proposition that a support does not plead specific existence of an must tiff School Dis- support position, of its custom, procedure. policy, or unconstitutional Co., Sears, & Roebuck trict cites Sanders

615 Second, argue the Does that Nelson and mental granted official was authority the School Board are liable for Scheer’s permission speak to for the entity. In they improperly conduct because endorsed support contention, of their cite Does In support argument, of this prayer. Pembaur City Cincinnati, v. al., et rely upon Does Steele Buren Van 469, U.S. 106 S.Ct. 89 L.Ed. 452 District, (8th Public School 845 F.2d 1492 (1986). Pembaur indicates that a munici Cir.1988). Steele, In a began teacher lead pality may liability incur for a single by act ing the band in prayer at rehearsals municipal policymakers under appropriate performances. Id. at 1493. The superin circumstances, see id. at tendent and the school board were made 1298, and holds that “municipal liability objections aware of the practice to the but § under 1983 attaches only where—and took formal no action. Id. at 1494. A where —a deliberate choice to a follow parent student sued and the district course of action is made from among vari permanent injunction court entered a pro ous alternatives the official or officials hibiting challenged practice. Id. On responsible establishing final policy appeal, the determination was made that respect with subject to the ques matter in the school board’s failure to act and the tion.” Id. at (citing S.Ct. at 1300 superintendent’s approval of the conduct Tuttle, City Oklahoma subjected the school district liability. L.Ed.2d Id. at 1495-1496. Steele does (1985)). district court found that the not stand for the proposition naked that a allegations complaint indicated that liability school can incur district when its acting circumvention of the or representatives board members policy District’s when the Lord’s tacitly fail to or approve religious act of a recited, Prayer was and did not a support Rather, exercise. the case holds that the conclusion that he acted policy- with final failure act and approval tacit of a reli making authority. agree with dis gious supports finding exercise a of the trict court and therefore affirm its existence a custom or the motion to dismiss favor prayer in school. Id. at A factual School District.8 distinction is clearly present between Steele present controversy. and this C. Motion Amend Steele, the teacher continued to pray, knowledge superintendent Finally, we address the Does’ board, months, the school for several id. at contention that the district court erred 1493-1494, situation, whereas only a failing to grant their motion to amend single religious recitation occurred. The complaint. We review the district court’s failure disclaim single religious one ex denial of the Does’ motion to amend for surely College ercise does support the exis abuse of discretion. See Concordia tence policy. of custom or Co., rp. v. W.R. Grace & Co Cir.1993), denied, cert. Finally, the argue Does that the School District incurred liability L.Ed.2d because Scheer’s (1994). “Although were it actions attributable to is well settled that District. The Does contend that a leave to freely munici- amend should ‘be given pality exposed to liability govern- justice if requires,’ when so Fed.R.Civ.P. 8. Our determination Mary court process district Doe’s substantive due right appropriately granted the School District's parental autonomy was violated. precludes finding dismiss motion District. Unexcused may be with- to amend

15(a), permission itself, justify the to delay, by does not have least is sufficient plaintiff if held the relief, if she or motion to for court’s denial of the grounds district colorable faith, dilatory NationsMart, delay, bad 130 F.3d of undue In re guilty amend. See would motive, to amend if permission or at 322. party.” opposing the

unduly prejudice court is of the district The Water Little Bock Mun. Williams AFFIRMED. Cir.1994) Works, 218, 224 21 F.3d 182, Davis, (citing Foman v. RILEY, concurring. Judge, Circuit (1962)). 9 L.Ed.2d majority opin- completely I concur grant to court refused The district with, great re- briefly, I ion. write amend, finding the amendment leave I agree to address the dissent. spect, School District. prejudice the spon- at a state prayer recited a Scheer also determined district court positions as by using event his sored significant result in to amend would leave parent Board and a School member district, court did find the delay. We assemblage. As the dissent address refusing abuse its discretion not was determined the cere- explains, Scheer complaint. to amend leave “despite the mony prayer would include a First, not seek leave the Does did it would not school board’s decision 23, 2002, over a September until amend point. privately That is the Scheer be.” had been month after pub- School Board’s oppose decided to Sec formally from the lawsuit.. dismissed include lic decision not to ond, Nelson, capacity, had in his individual ceremony by reciting the summary judg already filed a motion Prayer during his remarks. Scheer notably, More Does themselves ment. protested openly opposed personally judgment. summary had filed a motion for decision, a classic exer- the School Board’s Third, already matter had the trial of this religious speech, through of free cise ap trial and the date been scheduled spoke on act. No evidence exists proaching. opposed protest- behalf as the Board’s that “different con Additionally, we note Dis- ing the Board’s decision. The School party seeks apply siderations when knowledge had no of Scheer’s prior trict after the district pleadings amend plan District did not protest. The School Na complaint.” In re court dismisses prayer, sponsor did not approve or Litig. v. Corp. Tha tionsMart Securities conspire did collude or prayer, and (8th Cir.1998) (cit man, 130 F.3d undisputed facts estab- with Scheer. Commercial Workers United Food and ing thoroughly re- lish the District’s Inc., Group, Int’l Union v. Brown decided to re- complaint, searched Doe’s (8th Cir.1995), other rev’d on and benediction from move the invocation grounds, 517 U.S. ceremony, and announced (1996)). In the case before L.Ed.2d 758 audience, be- the Board’s decision to the us, poten on Does were notice put registered protest. Based fore Scheer complaint when tial deficiencies record, person could on this no reasonable filed their District and Nelson circumstances, from conclude these January motion to dismiss remarks, that Scheer was specific to seek leave to the Does waited anything protesting than doing other September until over a amend Board’s decision. month after the claims dismissal ARNOLD, tion, MORRIS SHEPPARD Mr. Scheer required should be Judge, dissenting. in respond damages. Circuit I respectfully therefore dissent. part I from the dissent court’s upholds Mr. quite transparent public effort to use his office anonymous thwart efforts of the

plaintiffs to ensure that the Constitution is ap- observed. The court refers to all the Sybil HERNANDEZ, Mother and Ad authorities, but,

posite I respect, be- ministrator of the Estate of Albert applies lieve that it them incorrectly. Feathers, James Six Plaintiff-Appel view, my in context which Mr. lee, operating, Scheer was it is apparent objective observer could see his actions as state-sponsored. Indep. See Santa Fe JARMAN, Brett Individually, Doe, Dist. Sch. Appellant, Defendant — (2000). 147 L.Ed.2d 295 He Dakota; Edgemont State of South Po acting was aas member of the school Department; Mary lice Kellogg, Indi in board an environment in which the re- vidually Capacity her Official cent school-prayer controversy had al- City as Commissioner; Council ready to; indeed, been alluded the school Roger Vasseur, Individually Le and in president, board merely instead of passing Capacity City his Official as a Council by, intentionally matter had expressed Commissioner; Clark, William Indi displeasure that the first amendment vidually Capacity his Official had been invoked plans and the for an City Commissioner; as a Council Alex invocation abandoned. It very is at the Asbridge, Individually his Offi least a jury question objective whether an Capacity City cial as a Council Com observer would regard Mr. Scheer’s missioner; West, George L. Individu “speech” state-sponsored. as ally Capacity and in his Official as a It saying directly, needs though the City Commissioner; Council Ted W. so, say court does not that Mr. Scheer was Hinesley, Individually and in his Offi merely speaking, praying. he was He Capacity Edgemont City cial as Attor deity. invoked “spoke” He in the vo- ney; City Edgemont; Jeffrey D. join cative case and he invited others to in. Tarrell, Individually; Jarman, Martha He a prayer recited that must have been Individually and in her Official Ca everyone familiar to present. who was pacity Deputy with the Fall River act, religious This was a pure and simple, County Department; Sheriffs Fall at a state-sponsored event a state actor County River Department; Sheriffs who, or so at least a reasonable person County, Dakota; Fall River South conclude, could determined Fazendin, Individually Robert and in ceremony would be outfitted with a bene- Capacity his Official as a Law En diction despite the school board’s decision forcement Officer with the Newcastle that it would not be. This was mani- Department; Police Newcastle Police purport fest of Mr. Scheer’s statement Department; City Newcastle, Wyo a saying “there is that when the door ming; through John Does 1 Defen closes opens.” another one For that ac- dants.

Case Details

Case Name: Doe Ex Rel. Doe v. School District of City of Norfolk

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Aug 20, 2003

Citation: 340 F.3d 605

Docket Number: 02-4135

Court Abbreviation: 8th Cir.